Mohammad Aftab Mir vs State Of J & K & Ors

2. In November, 1990, when militancy was at its

height in the State of Jammu and Kashmir, the

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Appellant was selected for the post of Sub-

Inspector in the Jammu and Kashmir Police. In

February, 1995, he was posted as the Station House

Officer of Chadoora Police Station, adjacent to the

town of Charare Sharif in the district of Budgam,

which is the convergence point for pilgrims and

other visitors to the shrine of Hazrat Shaikh

Nooruddin Noorani, situated in Charare Sharif in

order to reach the shrine, people have to travel

through Chadoora which is the gateway to the

shrine. At the time of the Appellant's posting at

Chadoora Police Station, his batch-mate, Shaikh

Hamidulla, was already serving as the Station House

Officer, Charare Sharif.

3. In between the months of February and May,

1995, armed militants laid siege to the aforesaid

shrine prompting the Government to send two units

of the army backed by the Border Security Force to

flush out the militants from the shrine precincts.

3 The Chadoora Police Station under the Appellant's

charge was saddled with the duty of ensuring that

more militants and unruly mobs did not enter

Charare Sharif town during the said period. On 10th

and 11th of May, 1995, in a fierce encounter between

the Indian troops and the militants, the entire

town of Charare Sharif, including the aforesaid

shrine and about 1500 residential houses, were

gutted. This triggered off violent protests all

over Kashmir and, in particular, in the nearby

areas from where enraged citizens in processions

and even in unruly mobs starting marching towards

Charare Sharif, not only threatening further

deterioration in the law and order situation

therein, but also threatening to destroy the

secular fabric of the Valley by resorting to

communal violence. The Appellant claims to have

displayed exemplary courage and at the risk of his

life prevented a temple at Badipora from being

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desecrated and burnt by an unruly mob of about 3000

people and the action taken by the Appellant saved

Badipora from being converted into a battle field.

According to the Appellant, he successfully

resisted violent attempts by unruly mobs and

processions of thousands of people to enter Charare

Sharif through Chadoora which was under his

jurisdiction. In effect, according to the

appellant, it was the exemplary courage and

patriotism as displayed by him as part of his

official duties which prevented the situation from

going out of hand in the aftermath of the

destruction of the Charare Sharif shrine.

4. It is the Appellant's case that in order to

gear up its administrative machinery and to

effectively deal with the law and order situation,

the State of Jammu and Kashmir took a policy

decision to provide for accelerated promotion for

Government employees whose performance in discharge

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of their duties and combating militancy was

outstanding. A Circular, being No.14-GR of 1990,

dated 6th March, 1990, was published by the State of

Jammu and Kashmir in this regard. The procedure

for accelerated promotion entailed a special report

to be obtained about the conduct and performance of

the officer concerned which was to be considered by

the Promotion Committee. It was also provided that

the Government would consider the grant of

accelerated promotion where the special report

brought out outstanding performance on the part of

the officer concerned.

5. On 12th May, 1995, the day after the incident

in Charare Sharif, the Inspector General of Police

and the Senior Superintendent of Police visited the

area to assess the situation. On 10th June, 1995,

the Director General of Police gave only the

S.H.O., Charare Sharif, Shaikh Hamidulla and Sub-

Inspector Sonaullah, out-of-turn promotion, even

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though recommendations had also been made in

respect of the Appellant for such out-of-turn

promotion. The Appellant has referred to the

Letters of Appreciation given by the Commanding

Officer of the 12th Bn. Rashtriya Rifles, the

Commandant of the 136th Bn. BSF, the Commanding

Officer of the 7th Bn. Jat Regiment, Superintendent

of Police, Jammu and Kashmir Police and the Senior

Superintendent of Police, acknowledging the

outstanding role of the Appellant in containing the

law and order situation following the destruction

of Charare Sharif and, in particular, the shrine of

Hazrat Shaikh Nooruddin Noorani and recommending

him for accelerated promotion.

6. On 7th August, 1996, the Director General of

Police issued a Commendation Certificate with cash

reward of Rs.2,000/- in recognition of the

Appellant's exemplary performance. Thereafter,

since nothing further materialized, the Appellant

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filed Writ Petition, being 5114 of 1996 in the High

Court of Jammu and Kashmir, for a direction to the

Authority concerned to consider and promote the

Appellant to the rank of Inspector in recognition

of his excellent performance. On 12th December,

1996, the High Court through an interim order

directed the authorities to examine the Appellant's

case and to inform the Court of the decision taken

on the basis of such examination. Soon thereafter

on 1st March, 1997, militants broke into the

Appellant's house and killed his father.

Recognising the fact that the Appellant had been

discriminated against, the Superintendent of Police

recommended that retrospective promotion be given

to the Appellant from the date of the order passed

in respect of Shaikh Hamidulla and Sub-Inspector

Sonaullah. However, nothing further materialized

pursuant to the interim order passed by the High

Court on 12.12.1996 and on 19th August, 2000, in

8

routine course, the Appellant was granted

promotion.

7. Ultimately, the learned Single Judge dismissed

the Appellant's Writ Petition on 28th May, 2007, and

the Letters Patent Appeal No.149 of 2007 was also

dismissed by the Division Bench of the High Court

on 23rd July, 2007.

8. On behalf of the Appellant it was urged that he

was duly covered by the Circular No.14-GR of 1990

dated 6th March, 1990 and his claim to out-of-turn

promotion was duly supported by the recommendations

by the officers who were present when the Charare

Sharif incidents took place. It was submitted that

the task performed by the Appellant at Chadoora was

no less significant than the task performed by the

Police personnel in Charare Sharif itself and there

was, therefore, no reason to discriminate between

the Appellant and the Station House Officer of

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Charare Sharif, particularly when both had been

recommended for out-of-turn promotion by the

Superintendent of Police (Operations) and the

Senior Superintendent of Police, Budgam District,

Kashmir.

9. On the other hand, it was submitted on behalf

of the Respondent-State that the case of the

Appellant for out-of-turn promotion had been duly

considered by the authorities at the highest levels

and a decision was taken, considering the situation

at the ground level on 10th and 11th May, 1995 when

Charare Sharif town 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,

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the 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.

10. 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

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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

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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.

11. 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

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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.

12. 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.

14 13. 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

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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.

14. 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

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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

17

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.

15. 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.

18 16. 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.

17. Accordingly, we set aside the orders passed by

the learned Single Judge and the Division Bench 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

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exercise should be completed within three months

from the date of communication of this order.

18. The appeals are allowed.

19. There will be no order as to costs.

................................................J.

(ALTAMAS KABIR)

................................................J.

(CYRIAC JOSEPH)

New Delhi

Dated: 31.03.2011