Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Parray vs State Of Jk & Ors on 21 December, 2021
Serial No. 13
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPASW No. 139/2018
IA No. 01/2018
Dated: 21st of December, 2021.
Bashir Ahmad Parray
... Appellant(s)
Through:
Ms Saima Mehboob, Advocate.
Versus
State of JK & Ors.
... Respondent(s)
Through: -
Mr B. A. Dar, Sr. AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Mohd. Akram Chowdhary, Judge
(JUDGMENT)
Per Magrey; J (Oral):
01. This intra Court appeal is directed against the Judgment dated
26th of September, 2017 passed by the learned Single Judge in SWP No.
1790/2015, whereby and whereunder the Petition filed by the Writ Petitioner/
appellant herein stands dismissed.
02. The brief facts leading to the filing of this appeal are that the Writ
Petitioner/ appellant herein, way back in the year 2008, participated in the
selection process initiated by the Respondent-Department for filling up the
available vacancies of Constables in various Districts of the Kashmir
LPASW No. 139/2018; IA No. 01/2018
Province, including District Baramulla. Upon culmination of the aforesaid
selection process, the appellant was declared as successful in all the requisite
tests and, accordingly, his name was included in the final select list, however,
no formal order of appointment was issued in the case of the appellant on the
ground that he was involved in FIR No.49/2001 registered at Police Station,
Kunzar. Aggrieved thereby, the appellant filed Writ Petition bearing SWP No.
270/2011, stating therein that since he already stands acquitted of the aforesaid
criminal case registered against him by the competent Court of jurisdiction,
therefore, he was entitled to be appointed in the Respondent-Department as a
Constable in tune with the merit position obtained by him in the selection
process. The aforesaid Writ Petition came to be disposed of vide Order dated
17th of February, 2011 directing the Respondents to consider the appointment
of the appellant. In compliance of the aforesaid direction, the appellant was
appointed as a Constable in the Respondent-Department in terms of Order
dated 16th of March, 2012. After having been appointed as such and joining
his duties, the appellant submitted a representation before the Respondents for
giving him appointment with retrospective effect. Since, no action was taken
on the said representation, the appellant claims to have filed another Writ
Petition bearing SWP No. 2239/2012, which Petition, too, vide Order dated
27th of August, 2013, came to be disposed of with a direction to the
Respondents to consider the claim of the Petitioner for his appointment
retrospectively. Thereafter, the Respondents, by an Order dated 13 th of
November, 2014, considered and rejected the claim of the appellant for
LPASW No. 139/2018; IA No. 01/2018
seeking retrospective effect to his appointment in the Respondent-
Department. This Order dated 13th of November, 2014 was challenged by the
appellant in SWP No. 1790/2015, inter alia, on the grounds that the same
suffers from the vice of non-application of mind on the part of the
Respondents; besides the same has been issued without taking into
consideration that the appellant stands already acquitted of all the criminal
charges levelled against him. The learned Single Judge, after hearing the
parties, in terms of Judgment dated 26th of September, 2017, dismissed the
Petition filed by the appellant. It is this Judgment dated 26th of September,
2017 passed by the learned Single Judge that has been assailed by the
appellant herein in this appeal on the grounds detailed out in the memo of
appeal.
03. Having heard the learned Counsel for the parties; gone through
the pleadings on record and after considering the matter, we are of the
considered view that the impugned Judgment passed by the learned Single
Judge is not only eloquent and clear, but also in consonance with the rules/
law governing the subject. The learned Single Judge has rightly appreciated
the claim made by the appellant in the light of the mandate of the provisions
of law relevant for determination of the case. The Respondents, after
ascertaining the fact that the appellant was involved in criminal charges,
though acquitted from the same, did not issue the formal appointment order
in favour of the appellant and it was only after the direction of the Court passed
in the earlier Writ Petition filed by the appellant that the appellant was
LPASW No. 139/2018; IA No. 01/2018
appointed in the Respondent Department. The Respondents appear to have
withheld the appointment order of the appellant having regard to the fact that
the appellant, whose involvement had surfaced in criminal charges, was not
feasible to be appointed in a disciplined force like the Police Department. It
is, thus clear that the Respondents, who were otherwise reluctant to issue
appointment order of the appellant in view of his involvement in the criminal
case, seemingly took a sympathetic view of the matter in the light of the
directions of the Court and issued the appointment order of the appellant. In
such circumstances, the appellant, instead of being satisfied with his
appointment, filed yet another Writ Petition with regard to seeking
retrospective effect to his appointment least caring about the fact that his very
appointment in the Respondent Department was shrouded under cloud and
based on the directions passed by the Court in the earlier round of litigation.
In that view of the matter, the decision of the Respondents in rejecting the
claim of the appellant for seeking retrospective effect to his appointment, as
rightly observed by the Writ Court, cannot be said to be erroneous or arbitrary.
04. Apart from the above perspective, it, needs, must be said here
that in the event the claim of the appellant for retrospective effect of his
appointment was accepted, the same would have definitely not only affected
the rights and interests of other employees concerned who were discharging
their duties in the Respondent Department much before the date of
appointment of the appellant, but also resulted in unsettling positions that were
LPASW No. 139/2018; IA No. 01/2018
long settled in the Respondent Department, thereby leading to grave
implications and multiplicity of litigation.
05. Viewed in the above background, we do not find any illegality or
perversity in the impugned Judgment passed by the learned Single Judge as
would warrant its interference from this Court. Consequently, this appeal fails
and is, accordingly, dismissed. Interim direction(s), if any subsisting as on
date, shall stand vacated.
06. Pending Miscellaneous Application(s), if any, shall also stand
disposed of accordingly.
(Mohd. Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
December 21st, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.12.22 15:19
I attest to the accuracy and
integrity of this document
