- (1.)THIS is a writ petition under section 103 of the Constitution of Jammu and Kashmir. It is directed against Government Order No. Home -138 (Police) of 1971 dated April 24, 1971 (Annexure J to the petition). That order reads: - "GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT -HOME DEPARTMENT Government Order No. Home -138 (Police) of 1971 Dated April 24, 1971. Whereas vide Central Police Offices Order No. 201 of 1969 dated 25 -6 -1969, the seniority of Shri Abdul Rashid Qadiri then working as Deputy Superintendent of Police was indicated in the cadre of Inspectors, of police; and Whereas by virtue of the aforesaid seniority, Shri Abdul Rashid Qadiri was temporarily promoted to the post of Superintendent of Police and posted as Superintendent of Police (Traffic), Jammu; and Whereas a number of appeals and representations were filed against the aforesaid seniority and promotion of Shri Abdul Rashid Qadiri which resulted in the revocation of the said order No. 201 of 1969 dated 25 -6 -1969; and Whereas in the meanwhile the seniority of police officers in the cadre of Deputy Superintendents of Police was being finalised and after consideration of all the representations received in this behalf the Government vide Home Departments No - Home 88/71 PB (GAZ) dated 29 -1 -1971, issued a final seniority list of Deputy Superintendents of Police; and Whereas consequent upon the finalisation of the seniority of the Deputy Superintendents of Police as aforesaid, it was found that the basis on which Shri Abdul Rashid Qadiri held the post of Superintendent of Police temporarily remained no longer tenable and accordingly he was to revert to his original post of Deputy Superintendent of Police; and Whereas in the fresh selection for the posts of Superintendents of Police from amongst the eligible Deputy Superintendents of Police, the case of Shri Abdul Rashid Qadiri was also considered on the basis of merit and suitability with due regard to his seniority and was not found fit for the post of Superintendents of Police. Now, therefore Government hereby orders that Shri Abdul Rashid Qadiri will resume the post of Deputy Superintendent of Police with effect from the date of this order. He will report to Inspector General of Police for further orders of posting as Deputy Superintendent of Police. By order of the Government of Jammu and Kashmir. Sd/ - (G. M. Mir) Secretary to Government, Home Department."
(2.)THE facts are these: The petitioner joined service of the State as Sub -Inspector of Police in the year 1948. There were two grades of Sub -Inspectors then, junior grade and senior grade. The petitioners order of appointment did not specify to which of these grades he was appointed. He was, however, treated to have been appointed as Sub -Inspector, junior grade. The petitioner made representation to the Government which was accepted by the then Deputy Prime Minister Incharge Police who ordered that the petitioner be promoted to the senior grade cadre of Sub -Inspectors. The order was conveyed to the Inspector General of Police by the Secretary to Government, Home Affairs, under his letter No. PB -1536/49 dated 8 -8 -1951 Annexure C to the reply affidavit). By order No. 162 of 1951 dated November 8, 1951 the Inspector General of Police therefore promoted the petitioner as Sub -Inspector, senior grade with effect from 8 -8 -1951 (Annexure D to the Reply affidavit). Later on the petitioner was confirmed as Sub -Inspector with effect from 1 -7 -1952 vide Inspector General Polices order No. 47 of 1964 dated 6 -3 -1964 (Annexure E to the Reply affidavit). Meanwhile he was promoted as Inspector of Police with effect from 1 -4 -196) vide Inspector General of Polices order No. 144 of 1961 dated 14 -4 -1961 (Annexure C to the Reply affidavit). He was confirmed as Inspector of Police with effect from 1 -4 -1963 under Inspector General of Polices order No. 435 of 1964 dated 24 -4 -1964. (Annexure H to the Reply affidavit). His name was placed at No. 39 in the list of confirmed Inspectors shown in the order, He made a representation against his placement in the list. The matter was referred by the Inspector General of Police to the Home Department for guidance. (Annexure ˜j™ to the Reply affidavit). On receipt of reply from the Home Department the Inspector General of Police considered the matter and by his order No. 60 of 1965 dated 1 -2 -1965 (Annexure K to the Reply affidavit) ordered that the petitioner shall rank senior to Shri Mohammad Khalil Inspector who too like the petitioner was confirmed as Sub -Inspector with effect from 1 -7 -1952. Meanwhile the petitioner appears to have been promoted as officiating Deputy Superintendent of Police on 25 -1 -1965 in his turn. On 21 -3 -1966 the seniority list of gazetted officers of the Police Department including Deputy Superintendents of Police (Annexure VI to the petition) was published in which the petitioners name was shown at No. 54. The seniority of Deputy Superintendents of Police commenced from serial No. 20. The order of the Inspector General of Police placing the petitioner above Shri Mohammad Khalil did not satisfy the petitioner. He claimed a still higher position at serial No. 22 above Shri D. N. Tiku consistently with the view conveyed by the Home Department. The claim found favour with the Inspector General of Police, who, by his order No. 201 of 1969 dated 25 -6 -1969 (Annexure III to the petition) ordered that the petitioner shall rank senior to Shri D. N. Tiku adding further that the promotion of the petitioner to the rank of Inspector shall be deemed to have effect from 1 -1 -1958 the date when Shri D. N. Tiku was promoted as Inspector, subject however to the condition that the petitioner shall not be entitled to any arrears in his emoluments. Subsequently by Government order No. Home 658 (Police) of 1969 dated 14 -10 -1969 (Annexure V to the petition) the petitioner was promoted as Superintendent of Police temporarily along with few others namely Shri Abdul Khaliq Butt, Shri Veeranna Aivalli and Shri Surat Singh. The petitioner was posted as Superintendent of Police (Traffic) Jammu. He continued to function as such for about 1Â 1/2 years till 24 -4 -1971 when the impugned order was passed by the Government and he was reverted as Deputy Superintendent of Police. Earlier vide Government Order No Home -64 (Police) of 1971 dated
(3.)-3 -1971, a copy whereof is on the file, some more Deputy Superintendents of Police namely Shri Mohd. Nassar Khan, Shri G. R. Dainposh, Shri Afzal Ahmad, Shri Ali Mohd. Watali, Shri Mohd. Amin Khan, S. Moti Singh, S. Surjit Singh, Shri Konchak Chospil and Abdul Majid Lone were promoted as Superintendents of Police. Both these orders followed the revocation of his earlier orders of 1965 and 1969 (No. 60 of 1965 and No. 201 of 1969) regarding the petitioners seniority by the Inspector General of Police by his order No. 448 dated 5 -12 -1970, and the preparation, meanwhile, in accordance therewith, of a fresh seniority list of Deputy Superintendents of Police by the Government Circulated vide Home Department No. 88/71 -PB (Gaz) dated 29 -1 -1971, a copy whereof is on the file. Consistently with the latest orders of the Inspector General of Police concerning the seniority of the petitioner in the order of Inspectors, the petitioners position was shown at S. No. 38 in the aforesaid list. 3. The petitioners case is - 1. That the order is violative of section 126 of the Constitution of Jammu and Kashmir; 2. That even apart from section 126 of the Constitution of Jammu and Kashmir, the order is violative of the principles of natural justice; 3. That the order is misconceived, arbitrary, capricious and mala fide; and
That the order of the Inspector General of Police revoking Order No. 201 of 1969 dated 25 -6 -1969 and Order No. 60 of 1965 dated 1 -2 -1965 and the order of reversion based thereon are otherwise also unjustifiable in law and even on facts. The Inspector Geenral of Police, respondent No. 2, has filed no reply. The case of the State -respondent No. 1, is that the earlier promotion of the petitioner as Superintendent of Police proceeded on a mistaken view about his seniority which excluded from consideration various other officers who were otherwise senior to him. The case of the respondent -State further is that this mistaken view about petitioners seniority was subsequently rectified by the Inspector General of Police in exercise of his powers of review in consequence whereof the impugned order was passed. 4. Section 126 of the Constitution of Jammu and Kashmir, so far as relevant reads: "Dismissal, reduction or removal of persons employed in civil capacities under the State -(I) No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry." This section is in pari -materia with Article 311 of the Constitution of India. On the judicial authority of the Supreme Court the law is well settled that Article 311 makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts and affords protection to both classes of employees. (See P. L. Dhingra V. Union of India, AIR 1958 S. C. 36. The Divisional personnel officer. Southern Railway, Mysore V. Raghavendrachar, AIR 1966 S. C. 1529 and K. H. Phadnis V. State of Maharashtra, 1971 Supreme Court cases, 790 at para 9). This is equally true about section 126 of the Constitution of Jammu and Kashmir. Accordingly where a Government servant officiating in a higher post is reverted to a lower post by way of punishment, the order must comply with the provisions of section 126 of the Constitution of Jammu and Kashmir. The form of the order does not matter as much as its effect and substance. The order may not provide that the reversion is by way of punishment and may still operate to be so. Each case will be governed by its facts and circumstances. As laid down by the Supreme Court in Dhingras case (Supra): - "The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service of the reduction in rank must be held to be wrongful and in violation of the Constitutional safeguards of the servant." Applying these principles to the instant case I cannot help observing that the impugned order visits the petitioner with evil consequences. The salient features of the order which drive me to that conclusion are these. It involves loss of seniority for the petitioner both in his substantive rank of Inspector and so also in the next higher rank of Deputy Superintendent of Police. According to earlier orders he ranked senior to Shri D. N. Tiku which put him at serial No. 22 whereas now he has been pushed down to serial No. 38. In fact according to the respondent -State this redetermination of seniority was the real cause for the reversion of the petitioner. Even according to the revised seniority list his juniors namely Qunchak Chospail and Shri Abdul Majid Lone have been allowed to continue as Superintendents of Police whereas the petitioner, though admittedly senior to them has been reverted as Deputy Superintendent of Police. Not only that his promotion has been withheld under the impugned order and his future chances of promotion too have been rendered remote nay even bleak. In view of these circumstances it must be held that the order of reversion was by way of punishment and since it did not comply with the provisions of section 126 of the Constitution of Jammu and Kashmir, it is unconstitutional.