Decided on March 24,2006

TIRATH RAM Appellant
STATE OF J AND K Respondents


J.P.SINGH, J. - (1.) APPELLANT came to this Court, initially in SWP No. 1160/2003, which, however, appears to have been withdrawn with liberty to file fresh one. The writ petition appears to have been withdrawn, when the action of the respondents in denying monetary benefits of retrospective promotion, was sought to be supported by the respondents on the strength of Order No. 1246 of 1988, dated December 27, 1988.
(2.) SECOND writ petition of the petitioner SWP No. 2279/2003 claimed the following reliefs: i) Writ of Certiorari seeking quashing of Order No. 142 of 2002 dated 27.05.2002 of the respondent No. 4 partially so far as it pertains to denial of monetary benefits accrued in favour of the petitioner on promotion to the present post of Head Constable. (ii) Quashing of Order No. 1246 of 1988 issued by the respondent No. 3. D.G.P declaring it inoperative, being an Administrative directive, which cannot over ride the constitutional and statutory provisions and can not be allowed to snatch away statutory/legal rights conferred upon the petitioner because the promotion is a condition of services and once it is made from a particular date, all benefits accrued to the promotee can not be denied unless forfeited as a punishment for a specific guilt, which is not the case, in present petition of the petitioner. Contrary to it, it is delay, fault and mistake of the respondents. (iii) Writ of mandamus, commanding upon the respondents to release the benefit of promotion as have been released to the juniors of the petitioner and denied to the petitioner vide promotion order No. 509 of 2001 dated 10.9.2000, all arrears with interest, from the date of promotion to the rank of S.G.C, which have been kept withheld illegally. (iv) Any other writ, order or direction whatever the Hon'ble Court may deem fit under the circumstances of the case may also be passed in favour of the petitioner. , Government Order No. 1246 of 1988, dated 27.12.1988, on which the claim of the appellant to monetary benefits had been declined, was questioned in paragraph 12 of the writ petition. This paragraph reads thus: 12. THAT the words and phrase 'pre -date promotion' emanating and originating from an administrative order of respondent No. 3, D.G.P., J&K;, vide his order No. 1246 of 1988 has no mandate of law, denying the earned benefits of the petitioner to which the petitioner is legally and constitutionally entitled, which thus creates cause of action in favour of the petitioner. The petitioner, therefore, strongly challenge the aforesaid order on the following grounds: - (i) The Administrative authority can not use the power of legislature and change the State Policy, with the power, vested in such authority for public good, which is protected and guaranteed by the provisions of the constitution and limited to the purpose of people welfare only. So, it will be antithetical to state policy under Article 39(a) of the Constitution, if this administrative order will be allowed to override the Constitutional provisions/rights. (ii) That no Administrative or Legislative enactment can take away the right of the employees which is guaranteed by the constitution, a principal which S.C. has repeatedly confirmed as laid down in recent judgement in a case Yogi Nath Bodge v. State of Maharashtra AIR 1999 Para 33 and other citation made in opening Para. (iii) That the present petition is an out come of grievance for mistake, delay and lapse on the part of the respondents, as such, the respondents can not be allowed to take advantage of their own inaction and negligence and put the petitioner to suffer time and again. Had the respondents acted promptly and with responsibly in submitting the out come of enquiry report to the Chairman DPC i.e., I.G.P., Jammu in time, the petitioner would have neither been left out of timely promotion and loss being imposed upon him nor the petitioner would have been exposed to this uncalled for litigation, heart burning and monetary and physical sufferance. (iv) Disallowing promotional benefits to the petitioner for the period, for which his juniors have got the same, will operate as a serious punishment upon the petitioner for no guilt on his part, for which seeks indulgence of the Hon'ble Court in the interest of Justice.
(3.) THE official respondents do not appear to have replied this paragraph of the writ petition in the objections filed by them to SWP No. 2279/2003. The only plea which was raised in regard to Government Order No. 1246 of 1988, dated 27.12.1988, is as follows: 3. That the present petitioner is expressly hit by delay and latches (laches). The petitioner is seeking quashment of order No. 1246 of 1988, dated 17.12.1988 (27.12.1988) long after in the year 2003.;

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