AB REHMAN WANI Vs. STATE
LAWS(J&K)-2006-4-14
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 17,2006

Ab Rehman Wani Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) WHILE posted as an ASI in police Department, petitioner was placed under suspension by SP, Budgam on 31.07.1987 after conduct of inquiry, Dy.SP, HQ suggested forfeiture of his two annual increments but the SSP did not agree and instead recommended his removal from service to concerned Dy. Inspector General of Police whereupon Director General Police issued a show cause notice to him on 15.09.1988 to show cause as to why he may not be removed from service, which was challenged by him in this court through a writ petition bearing No. 1687/88 which was allowed vide order dated: 3.8.1995 with quashment of charge sheet and show cause notice dated: 31.12.1987 asking respondents to restore petitioner back to the position obtaining prior to 30.07.1987 and reinstate him accordingly alongwith all consequential benefits whereafter petitioner was so reinstated but however a denovo inquiry was directed against him and SP HQs appointed as Inquiry Officer. Challenging the order of denovo inquiry as incompetent the petitioner challenged the same through another writ petition being SWP No. 1487/98 wherein the inquiry proceedings were stayed. During pendency of said petition, respondents issued order No. 348 of 1997 whereby eligible officers of executive police brought on promotion list "E" from the year 1991 but the petitioner not given benefit of order dated: 11.11.1997 which prompted him to file CMP No. 2819/2002 to challenge the same which was however dismissed by this Court on 11.04.2002 with an observation that said order i.e. No. 3478 of 1997 dated: 11.11.1997 provided the petitioner with a fresh cause of action and hence this petition for impugning the same on the ground that even though not brought on promotion list "E" under said order at his appropriate place in terms of seniority the petitioner has no been given independent charge of a Police station as was required to be done in terms of Rules 390 and 392 of Police Rules which practically would mean that promotion list aforesaid in respect of petitioner has not become operative. Other part of the grievance is that the promotion list contains a mention that petitioners promotion to the rank of SI would be subject to the outcome of denovo inquiry if and when conducted, and the writ petition No. 1485/96 presently pending in the court. Accordingly the petitioner prays for a direction for implementation of aforesaid promotion list in accordance with Rules 390 and 392 aforementioned. Materials appended with the petition include copies of relevant administrative and court orders.
(2.) IN their reply respondents while stating that while posted in Police Station, Budgam and investigating a criminal case under FIR No. 160/87 and 161/87 registered respectively under sections 380 and 392 RPC, the petitioner as Investigating Officer Police, was found to have returned 57 seized Golden Coins to one Gh. Qadir Sofi after retaining 13 out of 70 recovered from him and seized under a memo, and also committed pilferage of Rs. 800/ - while reflecting the quantum of seized cash as Rs. 4050/ - only instead of Rs. 4805/ - and misappropriating the same. Taking as a serious note of said misconduct on his part, authorities had placed him under suspension vide order No. 481 of 1987 dated: 31.07.1987 and the inquiry entrusted to Dy.SP HQs who recommended forfeiture of two annual increments against him to which as already said, the SSP did not agree and he forwarded the case to higher authorities for petitioners removal from service which ultimately culminated in issuance of charge sheet against petitioner which was later quashed by this court in SWP No. 689/88 consequent whereupon denovo inquiry was ordered against petitioner which is in abeyance under a stay order purporting to have been passed by this court in writ petition No. 1485/96. Meanwhile it is admitted that petitioner has been brought on promotion list "E" as claimed by him vide order No. 3478 of 1997 dated: 11.11.1997. During course of threshold submissions the counsels for parties have reiterated the contents of their pleadings.
(3.) IN so far as facts and circumstances attending the matter are concerned they are all matters of recorded and well documented, right from first suspension of petitioner in 1987, consequent inquiry and the following charge sheet, institution of writ petition and quashment of chargesheet, and consequent reinstatement of petitioner with all consequential benefits, denovo inquiry after disposal of first writ petition and institution of second one against denovo inquiry, stay of proceedings thereupon and the order bringing petitioner on promotion list "E" and admitted by both sides. Within that admitted circumstantial backdrop arises petitioners claim of giving consequential effect in terms of Rules 390 and 392 of Police Rules to the promotion list "E" for giving him independent charge of a police station etc. Perusal of the order dated: 11.11.1997 directing placement of petitioner into promotion list "E" as aforesaid, reveals that it is in three parts. Under first and third the petitioner has been brought on promotion list "E" of executive of Kashmir zone for the year 1991 in continuation of PHQs order No. 672 of 1991 dated: 05.06.1991 at the appropriate place of seniority and placed below one Ghulam Hyder No. 943/NGO and above Nazir Ahmad No. 1100/NGO in order of seniority; and in the second his promotion to the rank of SI has been kept subject to out come of denovo inquiry if and when conducted in pursuance of decisions of this Court in his pending writ petition No. 1485/96. In so far as the second part is concerned, the grievance projected by petitioner is that in terms of disposal of his earlier writ petition being No. 1689/1988, the denovo inquiry could not have been ordered; but that part is pending in other writ petition aforesaid being No. 1485/96 and cannot be simultaneously agitated in this petition which to that extent accordingly appears to be barred.;


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