Jammu & Kashmir High Court
Rohit Gupta S/O Shri Bodh Raj vs Shri Ajay Kumar Age 38 Years on 31 December, 2015
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 138 OF 2011 AND LPASW No. 139 OF 2011 AND LPASW No. 172 OF 2011 Rohit Gupta S/o Shri Bodh Raj, Mohd Amer Almansoor, S/o Majid Anwar Salaria Petitioners Shri Ajay Kumar age 38 years, S/o Shri Dhani Ram Sharma Respondent !Mr. U. K. Jalali, Sr. Advocate with Mr. Anil Khajuria, Advocate ^Mr. P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Tashi Rabstan, Judge Date: 31.12.2015 :J U D G M E N T :
LPASW No. 138/2011, LPASW No. 139/2011, LPASW No. 172/2011, LPASW No. 154/2011, LPASW No. 189/2011, LPASW No. D-69/2014, LPASW No. D-70/2014, LPASW No. 73/2014, LPASW No. D-74/2014 LPASW No. 75/2014 Date of order: 31.12.2015 LPASW No. 138/2011
1. Rohit Gupta S/o Shri Bodh Raj Gupta age 37 years, Sr. Prosecuting Officer, Vigilance Organization, Jammu R/o H. No. 181 Sec. 2 Phase- II JDA Housing Colony, Rajinder Nagar, Bantalab, Jammu
2. Mohd Amer Almansoor, S/o Majid Anwar Salaria Age 40 years, Sr. Prosecuting Officer, Police Head Quarter, J&K Srinagar/Jammu R/o H. No. 128 Gujjar Nagar, Jammu ..Appellants.
versus
1. Shri Ajay Kumar age 38 years, S/o Shri Dhani Ram Sharma R/o Village Muthi, Tehsil and District Jammu, Sr. Prosecuting Officer, Presently posted as I/C Fir Hection in the O/o Sr. Superintendent Of Police Vigilance Organization, Jammu. and 18 others respondents ..Respondents LPASW No. 139/2011
1. Rohit Gupta S/o Shri Bodh Raj Gupta age 37 years, Sr. Prosecuting Officer, Vigilance Organization, Jammu R/o H. No. 181 Sec. 2 Phase- II JDA Housing Colony, Rajinder Nagar, Bantalab, Jammu
2. Mohd Amer Almansoor, S/o Majid Anwar Salaria Age 40 years, Sr. Prosecuting Officer, Police Head Quarter, J&K Srinagar/Jammu R/o H. No. 128 Gujjar Nagar, Jammu ..Appellants.
Versus
1. Shri Manzar Khayam, S/o Sh. Abdul Majid Khan R/o Kalar Mohr, Tehsil Mendhar Distt. Poonch, Sr. Prosecuting Officer, O/o Directorate of Prosecution PHQ J&K Srinagar.
and 10 other respondents.
..Respondents 2 LPASW No. 172/2011
1. Rakesh Sambyal aged 41 years, S/o Sh. Angad Singh R/o Ward No. 6, Mandi Sher Singh, Kathua.
2. Shahid Mustafa, aged 38 years, S/o Shri Mohd Amin, R/o Naka Jabber Thanamang Tehsil Darhal, District Rajouri.
3. Pankaj Sethi, aged 37 years, S/o Sh. J. P. Sethi, R/o H. No. 536 Sector No. 3, Channi Himmat Housing Colon6y, Jammu
4. Gurjot Kour, aged 39 years, W/o Shri Satbir Singh, R/o 25-A (Privte ) Gandhi Nagar, Jammu
5. Prithipal Singh aged 42 years, S/o Sh. Sahib Singh, R/o 1312 6/9 Nanak Nagar, Jammu ..Appellants Versus
1. State of Jammu and Kashmir, Through Chief Secretary, Jammu and Kashmir Government, Civil Secretariat, Srinagar.
and 33 other respondents.
.Respondents.
LPASW No. 154/20111. Sanjay Kohli, Age 42 years, S/o Shri R R. Kohli R/o 23/5 Nanak Nagar, jammu At present posted as Senior Prosecuting Officer, Jammu
2. Anil Masgotra, age 42 years, S/o Shri V. S. Magotra, R/o 605, Sector E Sainik Colony, Jammu At present posted as Senior Prosecuting Officer, Jammu
3. Bachan Lal age 45 years, S/o Late Shri Dhanu Ram, R/o Ward No. 12 R. S. Pura, jammu At present Prosecuting Officer, Jammu .Appellants.
Versus
1. State of Jammu and Kashmir, Through Commissioner/Secretary Home Department, Jammu and Kashmir Government, Civil Secretariat, Srinagar and 26 other respondents.
..Respondents.
LPASW No. 189/20111. Rakesh Sambyal aged 41 years, S/o Sh. Angad Singh R/o Ward No. 6, Mandi Sher Singh, Kathua.
2. Shahid Mustafa, aged 38 years, S/o Shri Mohd Amin, R/o Naka Jabber Thanamang Tehsil Darhal, District Rajouri.
3. Pankaj Sethi, aged 37 years, S/o Sh. J. P. Sethi, R/o H. No. 536 Sector No. 3, 3 Channi Himmat Housing Colony, Jammu
4. Gurjot Kour, aged 39 years, W/o Shri Satbir Singh, R/o 25-A (Privte ) Gandhi Nagar, Jammu
5. Prithipal Singh aged 42 years, S/o Sh. Sahib Singh, R/o 1312 6/9 Nanak Nagar, Jammu Appellants Versus
1. State of Jammu and Kashmir, Through Commissioner-Cum-Secretary to Govt. Home Department , Jammu and Kashmir Government, Civil Secretariat, Srinagar.
and 82 other respondents.
.Respondents.
LPASW No. D-69 of 2014
1. State of Jammu and Kashmir, Through Chief Secretary J&K State, Civil Sectt. Jammu
2. Principal Secretary to Government Home Department Civil Sectt.
Jammu 3 Director General of Police, J&K State, PHQ, Jammu ..Appellants.
Versus
1. Manzar Khayam S/o Abdul Majid Khan, R/o Kular Mohr, Tehsil Mendhar, District Poonch and 9 other respondents.
.Respondents.
LPASW No. D-70/2014
1. Principal Secretary to Government Home Department, Civil Secretariat, Jammu
2. Director General of Police, J&K State, PHQ, Jammu .Appellants.
Versus
1. Zia-ur-Rehman S/o Ab.Rehman Khan, R/o Rambagh, Srinagar Presently posted as Prosecuting Officer Vigilance Organization Kashmir.
2. Rubina Akhter D/o Khazir Mohd Dar R/o Baramulla, Presentely posted as Prosecuting Officer, PD Budgam and 84 other respondents.
.. Respondents.
. 4 LPASW No. D-73 of 2014
1. State of Jammu and Kashmir, Through Chief Secretary J&K State,
2. Principal Secretary to Government Home Department Civil Sectt.
Jammu 3 Director General of Police, J&K State PHQ, Jammu ..Appellants.
Versus
1. Ajay Kumar S/o Sh. Dhani Ram Sharma, R/o Village Muthi, Tehsil and District Jammu and 17 other respondents.
Respondents.
LPASW No. 75/20141. State of J&K Principal Secretary to Government Home Department, Civil Secretariat, Jammu
2. Director General of Police, J&K State, PHQ, Jammu .Appellants.
Versus
1. Suresh Kumar S/o Shri Bansi Lal Dogra, R/o Village Sunjwan, P.o Sainik Colony, Tehsil and District Jammu.
and 27 other respondents.
.. Respondents.
LPASW No. D-74 of 2014
1. State of Jammu and Kashmir, Through Chief Secretary J&K State,
2. Principal Secretary to Government Home Department Civil Sectt.
Jammu 3 Director General of Police, J&K State PHQ, Jammu ..appellants.
Versus
1. Ajay Dogra S/o Shri Romesh Chander, R/o Ward No. 04 Mahadev Road, Udhampur.
and 34 other respondents.
.Respondents.
. 5 Coram:
Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Tashi Rabstan, Judge Appearing counsel:
For the Appellants(s) Mr. U. K. Jalali, Sr. Advocate with Mr. Anil Khajuria, Advocate ( in LPASW 154/2011) Mr. M. K. Bhardwaj, Sr. Advocate with Mr. Vasu Dubey,Advocate in ( LPASW Nos. 138/2011, 139/2011) Mr. W. S. Nargal, AAG in LPASW Nos.D-69/2014, D-70/2014, 73/2014, D-74/2014 and 75/2014) Mr. Rahul Pant, Advocate ( in LPASW 172/2011 and 189/2011) For the Respondent(s) : Mr. P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate.
Mr. Ashok Parihar, Advocate.
Mr. Abhinav Sharma, Advocate Mr. Pranav Kohli, Advocate Mr. Vipal Gandotra, Advocate i/ Whether to be reported in : Yes Press/Media ii/ Whether to be reported in : Yes Digest/Journal N. Paul Vasanthakumar, CJ
1. These appeals are filed by the appellant namely the Government and some of the respondents in the writ petitions in SWP No
2. The case of the writ petitioner in SWP No.1630/2008 before the learned Single Judge was that the petitioner was selected a in terms of Rule 111(2) of the Police Rules and not in terms of Rule 24 of the J&K Civil Services( Classification, Control & The writ petitioners in SWP No.1744/2008 were also aggrieved of the re-drawing of the seniority list in terms of Rule 111(2) In SWP No.1668/2008 the writ petitioners had made challenge to the re-drawn seniority list by contending that they are select Prosecuting Officers in terms of Rule 111(2) of the Police Rules. Similarly in writ petition No. SWP No.1493-S/2008 the case of the writ petitioners is that respondent No.2 has wrongly redraw
3. The case of the writ petitioners before the learned Single Judge was that the Prosecuting Officers, who were selected thro seniors and some of whom were even promoted temporarily before re-fixing the seniority.
4. The thrust of the argument by learned counsel for the writ petitioners before the Writ Court was that seniority fixed by a
5. The learned Single Judge allowed the writ petitions, declared Rule 111 of the Police Rules as ultra vires of the Constitut
6. Learned Senior counsels M/s U.K.Jalali, and M.K.Bhardwaj, Mr. W.S.Nargal, learned AAG and Mr. Rahul 9 Pant, Advocate, have elaborately argued the appeals and the thrust of their argument is as follows:-
(a) The Prosecuting Officers are selected by the J&K Police Recruitment Board and appointed based on the selection and they a investigations, investigation techniques etc. and after completion of the training the candidates are examined along with oth determination of seniority in respect of direct recruits including the Prosecuting Officers, the merit secured in the initial
(b) Legal opinion was also sought from the learned Advocate General and based on the legal opinion it was ordered to re-draw
7. The learned counsels argued that Rule 111 of the Police Rules applies to all the non-gazetted posts under Police Force. If themselves shall remain the same as during the period of probation.
9. The respective learned counsels argued that if persons are not appointed on the same date and are selected on the same dat fixing the seniority, the persons who were shown senior in the earlier final seniority list need to be issued any notice and
10. Mr. W. S. Nargal learned Additional Advocate general and Mr. U.K.Jalali, learned Senior Advocate appearing in LPASW No. 1
11. Mr. Abhinav Sharma, appearing for respondent No. 3 in LPASW 154/2011, on the other hand submitted that he was selected an department in wrongly assessing his medical fitness and he having been found medically fit he was appointed and sent for trai
12. Leaned counsel appearing for the private respondents vehemently argued that Police Rules are not applicable to the Prosec
13. In answer to the said submission, Mr. U. K. Jalali, learned counsel appearing for one of the appellant argued that the de Police Rules and the said decision having been rendered without analyzing the implications of Rule 111, has no application of
14. Learned counsels appearing for the appellant on the other hand submitted that for Police Gazetted Service, separate recru
15. Learned counsels submitted that for Non-Gazetted service, Police Rules is still in operation and there is no conflict bet
16. We have considered the rival submissions meticulously.
17. The issues which arose for determination in these appeals are:
(1) Whether the Prosecuting Officers are Police Officers, i.e. whether they are the separate wing in the police force. (2) Is there any conflict between Rule 24 of CCA Rules and Rule 111 of the Police Rules in fixing seniority and whether writ (3) Whether non issuance of the notice before altering the seniority of the Prosecuting Officer of 1998, 2002 and 2004 batche (4) Whether the official respondents are entitled to alter the seniority of the writ petitioners which was finalized by the o Issue No.1
18. The applications were invited for the posts of Prosecuting Officers by the Police Recruitment Board prescribing the physi Court in the decision reported in (2011) 14 SCC 243, specifically held that physical conditions prescribed in the Advertiseme is distinguishable on facts as the issue in these cases are claim of inter se seniority of the Prosecuting Officers appointed
19. The learned senior counsels appearing for the respondents fairly submitted that the Prosecuting Officers have to wear uni
20. It is well settled in law that a person can be sent to perform police duties only if he is in the cadre of police officer appointee shall have the seniority as per the order of merit in the selection list. Thus there is no shadow of doubt in our m
21. It is further to be noted that the Government of Jammu and Kashmir through SRO 132 of 2002 dated 03.04.2002 framed rules, Issue No.2
22. Rule 111 of the Jammu and Kashmir Police Rules, 1960 reads thus: 21 111. COMMAND AND PRECEDENCE:
(1) Command and precedence among Police Officers shall be by seniority according to rule 24 of C.C.S. R. Officers holding off (2) Officers appointed in or promoted to any rank will take seniority in the order which they are appointed or promoted and i Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956 reads thus:-
24. Seniority.-(1) The seniority of a person who is subject to these rules has reference to the service, class, category or Note 1.-The rule in this clause will not effect the seniority on the date on which these rules come into force of a member of Interpretation.-The words "date of first appointment" occurring in the above rule will mean the date of first substantive app Provided that the inter se seniority of two or more persons appointed to the same service, class, 22 category or grade simultaneously will, notwithstanding the fact that they may assume the duties of their appointments on diff
(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade;
(b) in the case of those recruited direct except those who do not join their duties when vacancies are offered to them accord
(c) as between those promoted and recruited direct by the order in which appointments have to be allocated for promotion and Note 2.-Any substantive appointments or permanent promotions made in any department prior to 15th May, 1953, will not be dist (2) A member of a service, class, category or grade, unless he is reduced in seniority as a punishment shall retain seniority (3) Where a member of any service, class, category or grade reduced to a lower service, class, category or grade he shall be
23. Rule 111(1) of the Police Rules clearly states that Command and precedence among Police Officers shall be by seniority ac close scrutiny in these appeals. The said Rule says that officers appointed on the same date as in this case will take senior
24. In other words, if several officers appointed directly or promoted were send for training to complete the probation and t same as during the probation period. A similar issue arose before the Hon?ble Supreme Court in the decision reported in (1997 "11(3) On the completion of the period of probation a person and passing the prescribed examination the appointment authority
(a) if his work and conduct is found satisfactory.
(i) confirm such person from the date of his appointment if appointed against a permanent vacancy; or
(ii) confirm such person from the date from which a permanent vacancy occurs; if appointed against a temporary vacancy ; or
(iii) declare that he has completed his probation vacancy; or
(b) if his work or conduct has not been, in its opinion, satisfactory and in the case of non-passing of prescribed department
(i) dispense with his services, if appointed by direct appointment or if appointed otherwise revert him to his former post, o
(ii) extend his period of probation and thereafter, pass such orders as it could have passed on the expiry of the first perio This shall also apply mutatis mutandisto the departmental examinations;
Provided that the total period of probation and the time allowed for passing the departmental examinations, including extensi In paragraph 8 it is held thus:-
It appears that series of orders came to be passed by the administrative Tribunal and one arising therefrom was decided by t A reading of this rule relating to conduct of examination would indicate that the Government shall hold the examinations twic It is further held that such of those candidates who did not pass the examination within the prescribed two years but passed
25. In these cases the probation was completed by the directly recruited Prosecuting Officers in terms of the condition menti probation in the rank of Prosecuting Officers was also issued on the same date. By virtue of non obstante clause Rule 111(2)
26. The learned counsels appearing for the appellants argued that Police Rule being a special Rule, it will prevail over the out the training and the confirmation was delayed due to delay in passing the training course or confirmation was delayed for
27. Insofar as respondent No. 3 in LPASW No. 154/2011 is concerned, a contention was raised that he was selected along with t
28. It is not in dispute that respondent no.3 in LPASW No. 154/2011 was found meritorious than the appellants during the sele 9. .the issue raised by him survives for adjudication as the appellant has been wrongfully denied appointment in the year
16. . It is directed that the appellant shall be deemed to have been appointed along with other appointees under the app consistently with his placement in the order of merit in the select list prepared by J&K PSC and later forwarded to the Law D Similar view was taken by the Hon?ble Supreme Court in the decision reported in AIR 1997 SC 250 ( Pilla Sitaram Patrudu and o
29. In the light of the categoric pronouncements made by Hon?ble the Supreme Court, we are of the firm view that the contenti
30. As rightly contended by the learned counsel appearing for the 1st respondent in LPASW No. 138/2011, in the appointment or their seniority shall remain the same as during the probation period. Thus the learned Single Judge was right in quashing the 10. .We find that the physical conditions prescribed in the advertisement are in consonance with Rule 176 of the Police R
31. Thus we hold that there is no inconsistency between Rule 24 of the CCA Rules, 1956 and Rule 111(2) of the Police Rules, 1 Issue No. 3
32. Non-issuance of notice to the persons who are already shown as seniors and some of whom were already given temporary prom no.2. The arguments advanced by the learned counsel for the appellants that even if notice is issued they have explanation to Issue No. 4
33. It is not disputed that the Prosecuting Officers appointed in the years 1998, 2002 and 2004 were given final seniority li by Hon?ble the Supreme Court in the decision reported in 2013 ( 5) LNN 413 (SC) ( State of Uttranchal and anr v. Shiv Charan 12. It can be stated with certitude that when a junior in the cadre is conferred with the benefit of promotion ignoring the Thus the vested rights conferred on the writ petitioners cannot be changed. Thus on facts, altering the final seniority assig Conclusion:
34. Issue no.1, namely, whether the Prosecuting Officers are Police Officers, namely, whether they are a separate wing in th It is held that the Prosecution Officers are governed by the Police Act and Police Rules and the contentions raised by the wr Issue no.2:
There is no inconsistency between Rule 24 of the CCA Rules, 1956 and Police Rules 1960 as Rule 111(2) of the Police Rules ope The decision of the learned Single Judge in declaring Rule 111 of the Police Rules as ultra vires is set aside. Issue No.3 and 4.
Non-issuance of notice to the writ petitioners whose seniority was finally determined after calling for objections with regar
35. In fine, the writ appeals are disposed of and the order of the learned Single Judge is affirmed insofar as allowing the w
36. No costs.
(Tashi Rabstan) (N. Paul Vasanthakumar) Judge Chief Justice Jammu, 31.12. 2015 Anil Raina, Secy.