Mohd Aftab vs state

was gutted. It was contended that the situation in Charare Sharif town itself and in Chadoora were different, in that, within Charare Sharif town the Police were engaged with the militants directly as they had moved into the shrine itself, whereas in Chadoora the duty performed on the said two days was one of containment. Regarding the incident at Badipora, 0the same was also aimed against communal forces who were trying to burn down the temple, but the same also involved containment and not a direct and active confrontation with militants. It was submitted that in the different circumstances, involving the S.H.O. of Charare Sharif and the Appellant, it could not be said that the Appellant had been discriminated against in the matter of out-of-turn promotion.

1. Having considered the submissions made on behalf of the parties and the materials on record, as also the judgments of the learned Single Judge and the Division Bench of the High Court, it does appear that the circumstances prevailing within the town of Charare Sharif and in Chadoora were different during the disturbance and the decision to grant out-of-turn promotion to Shaikh Hamidulla, who was the Station House Officer, Charare Sharif, during those fateful days was fully justified. In the absence of any glaring discrepancy or bias in the decision-making process, ordinarily the Court does not normally take upon itself the task of making a subjective assessment of an officer’s performance in relation to matters of promotion and that too of the nature contemplated in the present case.

However, at the same time, the Court is also entitled to consider the materials placed before it in order to arrive at a conclusion as to whether an injustice has been caused to the concerned officer. In the present case, both the Superintendent and Senior Superintendent of Police, Budgam District, had a chance to observe the Appellant’s performance on the ground on 10th and 11th of May, 1995, when the incident was actually taking place and they have recommended that the Appellant should be given out-of-turn promotion. The Director General of Police has also recognized the exemplary performance of the appellant. All such recommendations seemed to suggest that the performance of the Appellant merited special consideration. Of course, the Appellant has already been promoted to the post of Inspector on 19th August, 2000, and the only question which now survives is whether such promotion should be given retrospective effect from the date on which Shaikh Hamidulla and Sub-Inspector Sonaullah were given such promotion.

1. While considering the Appellant’s claim for out-of-turn promotion or accelerated promotion in the Writ Petition filed by him, the learned Single Judge took special note of the condition, procedure and norms which provided that out-of-turn promotion would be considered only for consistently exceptional performance on the anti-militancy front. The learned Judge took note of the fact that except for two episodes, which, in any event, were performed in the usual course of duties, the same did not constitute any consistent exceptional performance on the part of the Appellant which would entitle him to out-of-turn promotion. The said view was endorsed by the Division Bench while dismissing the Letters Patent Appeal filed by the Appellant herein.

2. Neither the learned Single Judge nor the Division Bench of the High Court appears to have given proper attention to the Circular No.14-GR of 1990 dated 6th March, 1990, in relation to the recommendations which had been made by the Superintendent and the Senior Superintendent of Police, Budgam District. However, the final assessment for giving out-of-turn promotion lay with Director General of Police and in his judgment a cash reward of Rs.2,000/- was felt to be appropriate in recognition of the exemplary services rendered by the Appellant.

3. However, from the materials on record it is quite clear that the claim of the Appellant is covered by the policy decision of the Government contained in Circular No.14-GR of 1990 dated 6th March, 1990, which provided an incentive to all Government employees to give their best performance of duties in the service of the people and in meeting the challenge of the anti-national forces to disturb the law and order situation in the State. It is only subsequently that on 6th January, 2000, that a Government Order No.Home-3(P) of 2000 was published by the State in its Home Department regarding the procedure for out-of-turn promotion in the Police Department. It is in the said circular that it has been indicated that out-of-turn promotion could be considered only for consistently exceptional performance on the anti-militancy front and that the recommendations of the Director General of Police, along with the dossier of the concerned employee, along with other formalities and the extent of deviation from the seniority rule, would have to be placed before the Home Department Select Committee for consideration and recommendation which would then be placed before the Chief Minister with the prior approval of the Minister of State, Home Department.

4. The aforesaid circular dated 6th January, 2000, directly links up out-of-turn promotion with the concept of consistently exceptional performance on the anti-militancy front, which did not figure in the earlier Circular No.14-GR of 1990 dated 6th March, 1990. Both the learned Single Judge and the Division Bench appear to have overlooked the difference in the two different circulars and the decision of the learned Single Judge is based on the later Circular dated 6th January, 2000, while the Appellant’s claim is under the earlier Circular of 6th March, 1990, in relation to incidents which had taken place prior to the promulgation of the Government Order dated 6th January, 2000. In fact, in the Supplementary Affidavit filed on behalf of the State of Jammu and Kashmir on 3rd August, 2010, the said two circulars have been referred to and it has been submitted that the Circular of 6th January, 2000, had been issued in continuation and in addition to the Circular dated 6th March, 1990.

It has also been stated that since the Circular dated 6th January, 2010, was issued subsequent to the circular issued in the year 1990, cases which have occurred after the issuance of the 2000 Circular would be subject to the same. It has been categorically stated that the case of the Appellant belongs to the period prior to the issuance of the 2000 Circular and, therefore, he would be governed by the 1990 Circular. Of course, it has also been submitted that the said Circular dated 6th March, 1990, does not confer any legal right on the Appellant nor does it cast any obligation on the State of Jammu and Kashmir, since it was only an internal guideline which authorized the State Government to grant out-of-turn promotion in cases where the officials of the Jammu and Kashmir Police display exemplary bravery and courage in confronting terrorists, militants and insurgents. In the said affidavit it has been sought to be justified that the case of the Appellant did not merit out-of-turn promotion and he deserved a cash reward which had been duly awarded to him.

1. It is clear that the Respondent State of Jammu and Kashmir is also alive to the fact that the claim of the Appellant has to be considered in the light of the earlier Circular dated 6th March, 1990, and not by the subsequent Circular dated 6th January, 2000.

2. In these circumstances, we are of the view that the Appellant’s claim for out-of-turn promotion, on the basis of the facts disclosed, require reconsideration in the light of the Circular dated 6th March, 1990, and not the Circular dated 6th January, 2000, as has been sought to be done in his case.

3. Accordingly, we set aside the orders passed by the learned Single Judge and the Division Bench of
   of the High Court and direct that the case of the Appellant be reconsidered by the concerned Respondents in accordance with the Circular No.14-GR of 1990 dated 6th March, 1990, for the purpose of granting retrospective effect to the promotion already granted to him on 19th August, 2000, and if such retrospective effect is given, to consider such other benefits that he may, thereafter, become entitled to in accordance with law. The said exercise should be completed within three months from the date of communication of this order.

4. The appeals are allowed.

5. There will be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)