Jammu & Kashmir High Court - Srinagar Bench
Bilal Ahmad Sheikh vs State Of J&K & Others on 17 September, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 14.09.2021
Pronounced on:17.09.2021
SWP No.2548/2017
Bilal Ahmad Sheikh ...PETITIONER(S)
Through: - Mr. Aftab Ahmad, Advocate.
Vs.
State of J&K & others ...RESPONDENT(S)
Through: - Mr. B. A. Dar, Sr.AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) Petitioner, through the medium of instant petition, has challenged order bearing No.02 of 2011 dated 07.01.2011, whereby petitioner's services as Special Police Officer (SPO) have been disengaged and order No.1472 of 2013 dated 30.05.2013, whereby approval accorded to the appointment of petitioner as Constable in J&K Police, has been cancelled ab initio.
2) It is the case of petitioner that he was engaged as an SPO in the year 2005 whereafter he continued to discharge his duties as such, in a dedicated and faithful manner. It is averred that because of excellent performance of petitioner, his case for appointment as a Constable in J&K Police was approved vide order No.3358 of 2011 dated 21.10.2011. However, in the meantime, petitioner was implicated in a false case 2 SWP No.2548/2017 registered under FIR No.288/2010 for offences under Section 302, 364, 120-B RPC of Police Station, Bijbehara and he was put to trial before the Court of Principal Sessions Judge, Anantnag. In pursuance of the aforesaid FIR, the petitioner was arrested and ultimately he was set free after his acquittal in terms of judgment dated 11.04.2016 passed by Principal Sessions Judge, Anantnag. It is further averred that vide impugned order dated 07.01.2011, the services of petitioner were disengaged by respondent No.5 without holding any enquiry and without giving any opportunity of being heard to the petitioner on the ground that he has unauthorizedly absented himself from the duty. As a consequence of aforesaid order, the other impugned order dated 30.05.2013 came to be passed and approval accorded to petitioner's appointment as Constable was cancelled ab initio.
3) The petitioner has challenged the impugned orders of disengagement and cancellation of his appointment as Constable on the grounds that while passing these orders, principles of natural justice were not observed nor any enquiry was conducted against the petitioner; that as per Section 19 of the J&K Police Act, an SPO is entitled to same privileges and protections as any other ordinary police officer and, as such, the official respondents were not justified in dispensing with the services of the petitioner without observing the procedure prescribed under the J&K Police Act and the rules framed thereunder; that the petitioner has been honourably exonerated of the charges by the Court of learned Principal Sessions Judge, Anantnag, after a full-dress trial and, as such, he is entitled to restoration of his previous position. 3 SWP No.2548/2017
4) The writ petition has been contested by the respondents by filing a reply thereto. In their reply, respondents have contended that the petitioner was arrested pursuant to registration of FIR No.88/2010 for offences under Section 302, 368, 34 and 120-B RPC due to his involvement in a murder case and thereafter he did not attend his duties. It is claimed that the petitioner, being a temporary engagee, cannot claim parity with permanent employees of police force who are holding civil posts. It is further contended that services of the petitioner were disengaged on account of his unauthorized absence and there was no need to hold an enquiry against him. It is also averred that the services of the petitioner were disengaged vide impugned order dated 07.01.2011 much prior to the approval of his appointment as Constable in terms of order dated 21.10.2011 and as soon as it came to the notice of the competent authority that services of petitioner as SPO had already been dispensed with, the impugned order dated 30.05.2013 cancelling the approval to the appointment of the petitioner as Constable was issued which is absolutely in accordance with law.
5) I have heard learned counsel for the parties and perused the record of the case.
6) The main contention that has been advanced by the learned counsel for the petitioner is that an SPO appointed under Section 18 of the Police Act is entitled to same privileges and protections as an ordinary officer of police. In this regard, learned counsel has relied upon 4 SWP No.2548/2017 the provisions of Section 19 of the Police Act and the judgment of this Court in Gh. Haider v. State of J&K & Ors.; 2013(3) JKJ 240.
7) So far as the petitioner is concerned, it is not in dispute that he was engaged as an SPO temporarily on consolidated wages. Section 18 of the Police Act deals with engagement of SPOs. It reads as under:
"18. Special Police officers.-- When it shall appear that nay unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the Police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any Police officer not below the rank of Inspector to apply to the nearest Magistrate to appoint so many of the residents of the neighbourhood as such Police officer may require to act as Special Police officers for such time and within such limits as he shall deem necessary ; and. the Magistrate to whom such application is made shall unless he see cause to the contrary comply with the application."
8) Section 19 of the Police Act deals with the powers of SPOs. It reads as under:
"19. Powers of Special Police Officers.-- Every special Police Officer so appointed shall have the same powers, privileges and protection, and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary officers of Police."
9) From a perusal of the provisions contained in Section 18 of the Police Act, it is revealed that SPOs are appointed by Police Officers above a particular rank for specific purposes when the police force ordinarily employed for preserving the peace is not sufficient for its 5 SWP No.2548/2017 preservation and for the protection of the inhabitants. The provision makes it clear that residents of neighbourhood can be appointed as SPOs for dealing with specific contingencies. Thus, engagement of SPOs is not of a permanent nature but it is only to take care of a particular contingency. It is in this context that the provisions contained in Section 19 of the Act are required to be interpreted. By doing so, it becomes axiomatic that SPOs enjoy same powers, privileges and protections as do the ordinary officers in the matter of crowd control, prevention of unlawful assemblies or contingencies of like nature. The said provision cannot be interpreted in a manner so as to extend even the powers, privileges and protections relating to service conditions of an ordinary police officer to the SPOs, who, admittedly, do not hold any civil posts regulated by any Statutory rules. Therefore, they are not entitled to any protection as afforded to ordinary police officers under Police Rules or Civil Service Regulations. I am supported in my aforesaid view by the judgment of a Division Bench of this Court in State of J&K v. Mohammad Iqal Mallah (LPA No.153 of 2012 decided on 05.06.2014).
10) It seems that the binding precedent rendered by Division Bench of this Court in Mohammad Iqbal Malla's case (supra), as also the provisions contained in Section 18 of the Police Act which deals with the purpose for which Special Police Officers are appointed, were not brought to the notice of the learned Single Judge when Gh. Haider's case was decided. 6 SWP No.2548/2017
11) Having held that the petitioner was not entitled to any right of hearing or enquiry keeping in view the nature of his engagement, therefore, it was not incumbent upon respondents to hold an enquiry or give an opportunity of hearing to the petitioner before disengaging his services as an SPO. Even otherwise, such an enquiry was not necessary at all in the facts and circumstances of the present case as, admittedly, the petitioner was absent from duty right from the day he was arrested on 20.12.2010 in connection with investigation of FIR No.288 of 2010 till he was acquitted on 11.04.2016 vide the judgment and order passed by learned Principal Sessions Judge, Anantnag. Thus, there was no need to hold an enquiry against the petitioner to prove his absence from duty.
12) The order of disengagement, which is impugned in this writ petition, is, therefore, in accordance with law and does not suffer from any legal infirmity. Once it is held that the order of disengagement of petitioner is in accordance with law, the consequent order of cancellation of approval accorded to his appointment as Constable cannot stand as the same was contingent upon continuation of petitioner's services as an SPO.
13) For the forgoing reasons, I do not find any merit in this petition and the same is, accordingly, dismissed.
(Sanjay Dhar) Judge Srinagar 17.09.2021 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No MOHAMMAD ALTAF BHAT 2021.09.17 15:14 Whether the order is reportable: Yes/No I attest to the accuracy and integrity of this document