SHOWKAT HUSSAIN MIR Vs. STATE
LAWS(J&K)-1999-2-39
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 08,1999

Showkat Hussain Mir Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) PETITIONER is a Constable (Mechanic) working as Electrician with Armed wing of the State Police after his appointment on 22.06.1982 on substantive basis. In 1991, on the recommendations of the Departmental Promotion Committee various police personnel in transport Workshop Cadre, were promoted as Head Constables and Selection Grade Constables. Respondents 4 to 10, junior to petitioner were promoted as Selection Grade Constables vide order dated 11.03.1991 (Annexure -p3). The petitioner was left out and not promoted.
(2.) THIS order 120 of 91 dated: 11.03.1991 as also promotion of respondents 4 to 10 juniors to the petitioner is under challenge in this writ petition.
(3.) PETITIONER alleges that the promotion to selection Grade has to be according to seniority/merit. Petitioner is senior to the promoted respondents 4 to 10, as is evident from seniority list (Annexure -P2). The petitioner has earned a recommendation certificate in 1987. His conduct is good. Petitioners character roles are also good and satisfactory, in so far as if there were any adverse remarks or adverse entries in his ACRs/APRs, same would have been conveyed to him, therefore, he presumes that his ACRs are not adverse to him. For promotion to the post of Selection Grade Constable, neither any written test nor viva -examination is prescribed or held. No minimum qualification marks are prescribed for the purpose. No criteria or norm is laid or adopted for giving promotions to the higher grade of selection grade constable posts to eligible constables. Though on seniority, merit and suitability he deserved to be promoted, yet he was denied grade promotion illegally without any justifiable reason. The petitioner has not been given equal treatment with those who were equally placed and circumstanced as the petitioner for purpose of the promotion in question. Respondents have filed reply. It is admitted that the petitioners appointment as Constable Electrician has been on substantive post. It is also admitted that the petitioner is senior to respondents. It is averred that the departmental Promotion Committee considered the case of petitioner alongwith respondents and other eligible candidates. The seniority of petitioner is not denied. Non -communication of adverse ACRs is not also refuted. Earning of recommendation awarded in 1987 is not also refuted. However, petitioner is stated to have been, refused promotion by the Departmental Promotion Committee after it found that the petitioner has been awarded minor punishment in December 1987 and punishment of fine in January 1998. Besides the remarks recorded in the character roles of the petitioner for the years 1986 to 1990, were adverse. The Committee assessed him for the rank of selection fixed constable. The Departmental Promotion Committee fixed 12 marks for qualifying for the rank selection Grade Constable. But the petitioner could only earn one negative mark. Hence no promotion. The criteria for promotion to the Selection Grade Constable is merit -cum -seniority and not vice versa and other respondents secured the qualifying marks and therefore were found fit and given promotion. The counsel for petitioner solicits that no norm or method is laid by Departmental Promotion Committee for selection to Selection Grade Constable. No yard stick is laid to Judge how the 12 marks have been assessed and apportioned incase of candidates failing within consideration zone. The whole material before Departmental Promotion Committee was one performance certificate, one minor punishment, one fine punishment and allegedly the adverse ACRs for four years 1986 to 1990, on which the petitioner has been considered. Since alleged adverse ACRs for all these years have not been conveyed to petitioner, therefore, the same could not have been considered adverse to petitioner. This is so as in reply, respondents have not refuted/denied the petitioners allegation that the adverse remarks in petitioners character roles were at no stage and even for that matter the adverse censure and punishment was/were at no stage communicated to him. This being so there is no material whatsoever adverse to the petitioner and capped to it the seniority of the petitioner would place the petitioner on a stronger footing than the respondents. Petitioner has been discriminated against and arbitrarily left out from the promotion list and denied promotion.;


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