Jammu, April 02: Central Administrative Tribunal Jammu Bench, Jammu in T.A. No.02/2020 (SWP No.2584/2015) With T.A. No.03/2020 (SWP No.394/2014) T.A. No.04/2020 (S.W.P. No.283/2019) titled Kamal Sangra & others after hearing Hon’ble Sri Justice L. Narasimha Reddy, Chairman, Hon’ble Ms. Bidisha Banerjee, Member (J) Hon’ble Sri A K Bishnoi, Member (A) Kamal Sangra & others Versus Union Territory of Jammu & Kashmir & Others ordered as:-
Mr. Justice L. Narasimha Reddy
This batch of three T.As. is heard by the Full Bench under a bit of extraordinary circumstances.
The T.As. arise out of three SWPs, that were pending before the Hon’ble High Court of Jammu & Kashmir. They were transferred to the Tribunal in view of re-organization of the State of Jammu & Kashmir. They were listed before a Division Bench for hearing. The learned Judicial Member on the one hand and learned Administrative Member on the other, differed in their conclusions.
However, they agreed on certain broad principles, and the difference was mostly about the extent of relief to be granted. As required under law, the cases were posted before a Third Member, i.e., one of us (Hon’ble Chairman).
On hearing the parties at some length, the Chairman was not able to agree with the conclusions arrived at by the learned Judicial Member or the Administrative Member. With the consent of the learned counsel for the parties, these T.As. were referred to a Full Bench.
Accordingly, the Full Bench was constituted and the matters are heard.
The applicants in the T.As. were appointed as Sub Inspectors (SIs) in Executive Wing (EW) of Jammu & Kashmir Police in the year 1995.
In the year 1960, the Armed Wing (AW) of Jammu & Kashmir Police was constituted through Section 6 of the Jammu & Kashmir Police Act. The recruitment to both the Wings are conducted separately, up to the level of Inspector.
The applicants in the T.As. were appointed as SIs in the EW in the year 1995, whereas the private respondents were appointed as SIs in the AW in the year 1998. The seniority lists are maintained separately for the post of SI in these two Wings. The promotions to the post of Inspector in these two Wings are made on the basis of seniority of SIs.
It so happened that the SIs of AW were promoted earlier, compared to the SIs in EW. To be precise, the private respondents, who were appointed as SIs in the year 1998, got promotion to the post of Inspector in the year 2005, whereas, the applicants, who were appointed as SIs in EW in the year 1995, got promotion as Inspector in the year 2007.
The applicants contend that in the combined seniority list of Inspectors, which is maintained for promotion to the post of Deputy Superintendent of Police , the names of the Inspectors from EW as well as AW are arranged only on the basis of the date of promotion to the post of Inspector and in the process, the private respondents were placed above them
They contend that the procedure adopted by the Government is contrary to Rule 172 of the Jammu & Kashmir Police Rules. According to them, the entire police of the State is one Unit and there was absolutely no basis for maintaining separate seniority lists for Inspectors, or for that matter SIs, of EW on the one hand and AW on the other.
With this background, the applicants have prayed for a writ, order or direction in the nature of mandamus directing the respondent Nos. 1 & 2 to consider and promote them to the post of Inspector in Jammu & Kashmir Police w.e.f. 21.07.2005, the date on which the private respondents were promoted and to treat them as seniors to private respondents for further promotion to the post of Dy. SP.
They have also made a prayer in the alternative, in the form of writ of certiorari to quash the order dated 21.07.2005 and other similar orders, through which the private respondents were promoted to the post of Inspector; and to quash the tentative seniority list dated 08.04.2010, insofar as it reflects the applicants as juniors to the private respondents; and thereafter to direct the official respondents to prepare and issue a final seniority list of SIs of Police in EW and AW as on 21.07.2005 and then to make promotion to the post of Inspector on the basis of such final seniority list.
The number of applicants in the three T.As. are 92 and the private respondents are 192 in number. ....
The basic plea of the applicants is that the entire Jammu & Kashmir of Police is one Unit and the official respondents were under obligation to prepare and maintain the common seniority list of SIs as well as Inspectors for both the Wings.
We have already mentioned that the State did not frame any Rules in this behalf. It was mostly on the basis of the long practice or Executive instructions. The plea of the applicants that the Armed Police is a separate Wing of Jammu & Kashmir Police, is evident from Section 6 of Police Act, which reads:-
“For internal security of the State, a special force called the “Jammu and Kashmir Armed Police” is maintained at Srinagar and Jammu. It is ordinarily used to meet any emergency in the law and order situation throughout the State. Being essentially a task Force normally it is not to be employed on duties of a routine nature, which are performed, by the Civil or the District Armed Reserve.
This force is specially “Trained” like an infantry Battalion. It shall be maintained and equipped in such strength and formations as Inspector-General of Police may, from time to time, direct. The Battalion of this force will be patterned and provisioned on the recommendations of the “All India Police Committee” subject to such alterations as the local conditions demand, with the Government sanction.”
Having regard to the fact that the nature of duties, to be discharged by the AW and type of training to be imparted to them is substantially different, the establishment was maintained separately and independent of the EW. This separation is strictly maintained up to the stage of Inspector. At no point of time, the applicants have made any issue out of it.
The promotions to the post of Inspector were being made on the basis of seniority of the SIs of the respective Wings.
It is true that under Rule 172 of the Police Rules, the method of preparation of seniority list, etc. is provided. However, no steps seem to have been taken to amend the Rules after the AW was created through Section 6 of the Jammu & Kashmir Police Act, 1960.
The question as to whether the State is under an obligation to maintain a common seniority list for the post of SI, was raised before the Hon’ble High Court, on more occasions than one. Initially, in LPA No.28/1972, it was opined that the common seniority list must be maintained for all the Wings of the Police.
However, the parties to those proceedings were Constables and Assistant Sub Inspectors (ASIs). Nothing substantial came out of it.
Thereafter, SWP No.630/1995 was filed before the Hon’ble High Court (Farooq Ahmed Mir & others v. State of Jammu & Kashir & others) by the SIs of AW of Jammu & Kashmir Police. Their grievance was that the SIs of other Wings got promoted to the post of Inspector earlier and if a common seniority list was being maintained for the post of SI of all the Wings, such discrimination would not have taken place. In a way, they pleaded what the applicants in the present T.As. are pleading. That was allowed by the learned Single Judge.
Another SWP No.307/2006 was filed by the SIs of Telecommunication Wing (TW). Similar grievance was ventilated, complaining about the delay in their promotions to the post of Inspector. That was dismissed by the learned Single Judge on the ground that the duties of the TW personnel are substantially different and they cannot draw comparison with other Wings.
LPASW Nos. 153/2003 and 184/2009, arising out of judgments in those two SWPs, were heard together. Through its judgment dated 22.12.2015, a Division Bench of Hon’ble High Court of Jammu & Kashmir has reversed the judgment in SWP No.630/1995 on the ground that (a) the petitioners did not approach the competent authority at the relevant point of time, ventilating their grievances; (b) they did not implead the affected parties; and (c) there was no enormous delay in pursuing the remedies.
The only difference in this set of proceedings is that it is the turn of the SIs of EW, to complain about delay in their promotions.
It has already been mentioned that an attempt made by the SIs of AW and TW, to seek a direction to the Government to maintain a common seniority list, was thwarted on the grounds (a) not approached the Government with a representation at the relevant point of time; (b) failure to implead the affected parties; and (c) the delay in pursuing the remedies.
The only improvement in this batch is that the applicants have impleaded the affected parties. On the remaining two aspects, the same situation obtains.
It is evident that the applicants are not able to cite any broad provision in support of their contention. Rule 172 of the Police Rules is general in nature and it does not refer to the existence of separate Wings in the Police. Further, the practice of maintenance of separate seniority lists for the posts of SI and Inspector of different Wings is in vogue for the past several decades.
It has assumed the strength of law. We are of the view that whatever may be the perception about the method of maintenance of separate seniority lists and making promotions in the absence of Rules, at least when the litigation started decades ago, the Government ought to have framed the Rules, governing the respective posts.
There was a clear default on the part of the Government and that, in turn, has given rise to the avoidable litigation. Though it cannot be said that any illegality has taken place in the promotions of the applicants on the one hand and the private respondents on the other, at the relevant point of time, the Government needs to step in with a set of Rules bringing about complete clarity on the issue.
The absence of Rules in the context of maintenance of seniority lists, at least when there is a convergence of two different categories, cannot be just or equitable. It would result in en bloc promotions of Inspectors of only one category to the post of Deputy Superintendent of Police at a given point of time to the detriment of the other categories. The same situation would arise some time later and the category, which was beneficial at one point of time, would be at the receiving end at a subsequent stage.
This would result in serious dissatisfaction in the Police force. A decent mechanism to intersperse the vacancies for the respective categories, depending upon the cadre strength of each of them, would bring about a perfect system.
The third question arises out of the alternative plea of the applicants. We have already taken the view that the promotions in the EW and AW are separate up to the stage of Inspector. The applicants are not able to cite any provision of law, that can be said to have been violated, in the process of promotion of the private respondents.
Hence, we do not find any basis to interfere with the promotion of the private respondents as Inspectors.
We, therefore, dismiss these T.As., but direct the Government to consider the feasibility of framing the Recruitment Rules for the posts of Sub Inspector and Inspector in various Wings of the Jammu & Kashmir Police as well as the Rules pertaining to the maintenance of common seniority list for Inspectors, duly maintaining proper ratio between Executive Wing and Armed Wing.
The exercise, if undertaken, shall be completed within a period of three months from the date of receipt of a copy of this order.
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