Jammu & Kashmir High Court - Srinagar Bench
Irshad Ahmad Rather vs Ut Of J&K & Others on 27 October, 2021
Item No.116
Suppl. List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No.2162/2021
CM No.7013/2021
Irshad Ahmad Rather ...PETITIONER(S)
Through: - Mr. Lone Altaf, Advocate.
Vs.
UT of J&K & others ...RESPONDENT(S)
Through: - None.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
ORDER(ORAL)
27.10.2021
1) Petitioner, through the medium of instant petition, has
challenged order bearing No.51 of 2012 dated 25.01.2012, issued by
respondent No.5, whereby petitioner's services as Special Police
Officer (SPO) have been disengaged with effect from 29.12.2001, on
the ground on unauthorized absence from duty.
2) It is the case of petitioner that he was appointed as an SPO in
terms of order No.14 of 2010 dated 15.01.2010. It is averred that
petitioner discharged his duties to the satisfaction of his superiors and
even participated in certain anti-militancy related operations. It is
further averred that in the meantime, petitioner's son developed a
serious ailment "Hirschrung disease" which required eight surgeries.
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Petitioner has placed on record medical prescriptions and copies of
hospital record to support his contention.
3) It is averred that while the petitioner was looking after his ailing
child, the respondent No.5 disengaged his services in terms of the
impugned order. It is contended that petitioner after coming to know
about the impugned order, made several representations to respondents
No.3 and 4 but no decision was taken thereon. It is further averred that
ultimately petitioner filed an appeal before respondent No.2 against the
impugned order but the same has not been decided as yet.
4) It is contended that the impugned order is illegal and arbitrary as
respondent No.5 had no jurisdiction to pass the impugned order. It is
further averred that the impugned order has been passed by respondent
No.5 without following due process as no opportunity of hearing has
been given to the petitioner. It is also averred that the impugned order
is not in accordance with the Jammu and Kashmir Police Rules.
5) I have heard learned counsel for the petitioner and perused the
record.
6) The petitioner was appointed as an SPO in terms of order No.14
of 2010 dated 15.01.2010, which has been issued by respondent No.5.
His services have been disengaged vide the impugned order which has
been passed on 25.01.2012. The instant writ petition has been filed by
petitioner on 16.10.2021 i.e., after a lapse of more than nine and a half
years. The explanation given for delayed filing of the writ petition is
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that petitioner's son was suffering from serious ailment and he had to
undergo several surgeries. It has also been contended that the petitioner
moved a number of representations before the respondents but the same
were not decided during this period.
7) It is true that as per medical record, son of the petitioner is
suffering from ailment and he has undergone several surgeries but the
question remains whether on account of this petitioner was prevented
from approaching this Court for more than nine and a half years. The
delay in filing the writ petition, in my considered view, is unduly long
and unreasonable and the mere fact that the petitioner's son was unwell
may not come to his rescue having regard to the length of delay that has
occasioned in filing the writ petition.
8) The other contention of the petitioner that he had filed several
representations against the impugned order before the respondents from
time to time is also not going to help the case of the petitioner. A litigant
cannot go on filing representations and wait for their outcome for years
together. Once his representations were not being considered by the
respondents, it was open to the petitioner to approach the Court
immediately. The conduct of the petitioner shows that he has
acquiesced in the inaction of respondents. It is only after nine and a half
years petitioner has woken up from deep slumber and filed the instant
writ petition.
9) The remedy provided by the Constitution of India under Article
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226 is discretionary in nature and the High Court in exercise of its
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discretion does not ordinarily come to the rescue of an indolent or
acquiescent and lethargic litigant. There is inordinate delay of more
than nine and a half years in filing the instant writ petition which has
not been explained by the petitioner satisfactorily. He cannot be
permitted a belated resort to extraordinary jurisdiction of this Court at
this Stage.
10) Even on merits, petitioner does not have a case. Engagement of
SPO made under Section 19 of the Police Act is not of a permanent
nature but it is only to take care of a particular contingency. The SPO's
do not hold any civil post 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), which has been reiterated by a Single
Bench of this Court in Bilal Ahmad Sheikh v. State of J&K & others
(SWP No.2548/2017 decided on 17.09.2021). Thus, it was not
incumbent upon the respondents to hold an enquiry regarding
unauthorized absence of the petitioner before disengaging his services.
11) So far as other contention of the petitioner that he has been
disengaged by an incompetent authority is concerned, the same is also
without merit because petitioner has been appointed under the hand and
signature of respondent No.5 and it is the said respondent only who has
passed the order of his disengagement.
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12) For the forgoing reasons, I do not find any merit in this petition
and the same is, accordingly, dismissed.
(Sanjay Dhar)
Judge
Srinagar
27.10.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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