High Court Of Jammu And Kashmir vs Duni Chand Sagotra And Another
2022 Latest Caselaw 190 j&K

                                                                   Sr. No. 1

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                                                   RPSW No. 18/2017
                                                   IA 1/2017

                                                   Reserved on 07.02.2022
                                                   Pronounced on 15.02.2022.


High Court of Jammu and Kashmir                                ..... appellant (s)

                               Through :- Mr. H.A.Siddiqui Advocate

                         V/s

Duni Chand Sagotra and another                               .....Respondent(s)

                               Through :- Mr. Abhinav Sharma Sr. Advocate
                                          with Mr. Vishal Sharma Advocate.


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE MOHAN LAL, JUDGE


                                   ORDER

1 By this petition, the petitioner seeks review of judgment dated

09.06.2017 passed by the Division Bench of this Court in SWP No. 1055/2017

titled „Duni Chand Sagotra vs State of Jammu and Kashmir‟.

2. With a view to appreciate the grounds urged by Mr. Siddiqui,

learned AAG, appearing for the review petitioner, it is necessary to notice few

material facts.

Respondent No.1 herein ["writ petitioner"] retired as District and Sessions Judge. Having been recruited as Munsiff, the writ petitioner, by dint of his merit and seniority, came to be promoted as Sub-Judge and thereafter, as District and Sessions Judge vide Govt. Order No. 1326-LD(A) of 2001 dated 28.05.2001. The promotion of the writ petitioner was initially made on ad hoc basis for a period of three months. The said ad hoc promotion of the petitioner was extended for a further period of three months vide Government Order No.2505-LD(A) of 2001 dated 05-10-2001. The writ petitioner was entitled to

either regularization of his promotion as District and Sessions Judge or extension in the term of his ad hoc promotion, but the review petitioner ["High Court"] did not give him extension in view of the writ petitioner‟s involvement in some criminal case. The other colleagues of the writ petitioner were, however, given extension except Mr. Mohd Nazir Fida.

The Respondent-High Court, on finding that the writ petitioner‟s involvement in the criminal case registered against him was not established and that there was nothing adverse against him, considered his case for his promotion in the year 2007 and vide Government Order No. 1257-LD (A) of 2007 dated 18th April, 2007, promoted the writ petitioner as District and Sessions Judge. The initial promotion of the writ petitioner was ad hoc, but the same was regularized in terms of Government Order No. 193 dated 09-06-2014 w.e.f. 18-04-2007 i.e., with effect from the date from which he was second time promoted as District and Sessions Judge on ad hoc basis. It further comes out that by virtue of the same order, the promotion of Mohd Nazir Fida and Ms. Sudesh Warikoo was also regularized, but w.e.f 10.06.2003 i.e the date when both these Members of the service were promoted as District and Sessions Judge on ad hoc basis. Feeling aggrieved of his regularization w.e.f 18.04.2007 instead of with effect from 28th May, 2001 when was for the first time promoted as District and Sessions Judge on ad hoc basis, the writ petitioner filed a representation before the respondent-High Court for retrospective promotional benefits and consequent seniority as District and Sessions Judge w.e.f 28.05.2001. This was considered by the Full Court on the Administrative side and it was found that the petitioner, having been promoted on ad hoc basis as District in the year 2007, was entitled to regular promotion from the said date i.e., from 18.4.2007 and, therefore, does not satisfy the criteria laid down for grant of selection grade.

3 Feeling aggrieved by the rejection of his representation, the

petitioner filed SWP No. 1055/2017 seeking, inter alia, a writ of certiorari for

quashing the communication dated 30.12.2015 by which the representation of

the writ petitioner for regularization of his promotion from the retrospective

date had been rejected. The petitioner also sought a direction to regularize his

promotion as District and Sessions Judge w.e.f December 2001 to April 2007

and consequently, for grant of selection grade on completion of five years

requisite service.

4 The writ petition was opposed by the respondent-High Court, inter

alia, on the ground that though, the writ petitioner was found entitled to ad hoc

promotion in the year 2001 and was also given one extension in his ad hoc

service, yet he could not be continued as District and Sessions Judge on the

ground that a police investigation into some serious allegations against him

was pending at the relevant point of time. The respondent-High Court,

however, admitted that the allegations leveled against the writ petitioner were

not found substantiated in the investigation and he was, accordingly,

considered and granted promotion in the year 2007.

5 The Division Bench of this Court, after hearing the rival

contentions and having taken note of the reply of the High Court, came to the

conclusion that since the allegations against the writ petitioner were not found

substantiated in the investigation and, therefore, was found entitled to

promotion as District and Sessions Judge and, therefore, there was no

justification to deny him regularization of his promotion from 2001. The writ

petition was, accordingly, allowed vide judgment dated 09.06.2017 and a

direction was issued to the respondent-High Court to regularize the promotion

of the petitioner as District w.e.f December 2001 to April 2007 with a further

direction to award all the consequential benefits. It is this judgment which is

sought to be reviewed by the respondent- High Court.

6 Mr. Siddiqui, learned counsel appearing for the High Court has

sought the review of the aforesaid judgment primarily on the ground that

Division Bench which passed the judgment under review did not admit the

petition formally and, thus, deprived the High Court of the opportunity to file

better reply affidavit. He submits that since the writ petitioner did not work as

District and Sessions Judge from December, 2001 till 18.04.2007 and,

therefore, he was not entitled to be regularized retrospectively as District and

Sessions Judge from his initial appointment as District and Sessions Judge on

ad hoc basis. He argues that since the writ petitioner was promoted as District

and Sessions Judge only on 27.04.2007 and was also regularized from the said

date vide order dated 09-06-2014 and, therefore, he was entitled to reckon his

seniority from 18.04.2007. He also seeks to explain as to how aforesaid Mohd

Nazir Fida and Ms. Sudesh Warikoo had been given promotion from the year

2003 by urging that they had actually worked on the post though, in ad hoc

capacity w.e.f 10.06.2003 i.e the date from which aforesaid persons were given

regular promotion as District and Sessions Judge. It is further urged by Mr.

Siddiqui that the directions as issued by the Division Bench could not have

been passed without first issuing a writ of certiorari quashing the decision of

the Full Court taken on the representation of the writ petitioner.

7 Having heard learned counsel for the parties and perused the

record, we are of the considered that the review petitioner has not been able to

point out any error of law or fact apparent on the face of record and, therefore,

this review petition is not maintainable. The argument of Mr. Siddiqui that the

writ petition was considered finally without formally admitting the same flies

on the face of judgment sought to be reviewed. The judgment begins with the

expression "with the consent of learned counsel for the parties, the matter

is heard finally". That being the position, it does not lie in the mouth of the

review petitioner to contend that the Division Bench should not have decided

the writ petition without formally admitting it and providing further

opportunity to it to file counter affidavit. On merits, there is no denying the fact

that the writ petitioner was promoted as District and Sessions Judge on

ad hoc basis on 28th May, 2001 initially for a period of three months. He was

also given extension for a further period of three months. He was denied

further extension only on the ground that there was a criminal investigation in

some serious allegations pending against him. As was and is the stand of

respondent-High Court that the writ petitioner was exonerated in the aforesaid

case and the allegations leveled against him were not substantiated. If that

being the admitted position, we see no reason or justification to deny the

benefit of retrospective promotion to the writ petitioner. Had there been no

enquiry pending against the writ petitioner at the relevant point of time, he

would have got his promotion as District and Sessions Judge retrospectively

from 28th May, 2001. The writ petitioner, therefore, shall be deemed to be

District and Sessions Judge also for the period w.e.f December 2001 to

18.04.2007. In that view of the matter, the writ petitioner would also be entitled

to selection grade on completion of five years of service.

8 The plea of Mr. Siddiqui, that since the writ petitioner has not

actually worked against the post of District and Sessions Judge for the

aforesaid period and, therefore, his promotion to the said post is required to be

reckoned only w.e.f 18.04.2007, is erroneous and without any substance.

9 Equally, meritless is the contention of Mr. Siddiqui that the

Division Bench could not have allowed the writ petitioner and issued the

directions for giving retrospective effect to the promotion of the writ petitioner

without first formally and specifically quashing the decision of the Full Court

taken on the representation of the writ petitioner. We have given thoughtful

consideration to this argument of Mr. Siddiqui and find that the Division

Bench, with the allowing of the writ petition and issuance of directions for

giving retrospective benefit in favour of the writ petitioner, has impliedly

quashed the decision of the High Court taken on its Administrative side on the

representation of the writ petitioner. The plea taken by the High Court is too

technical to be entertained in the review petition. The Division Bench, which

decided the writ petition of the writ petitioner, has considered all aspects and

has correctly allowed the writ petition. We, having found no error of law and

fact apparent on the face of record, are not inclined to entertain this review

petition and the same is, accordingly, dismissed.

                   (MOHAN LAL)                            (SANJEEV KUMAR)
                       JUDGE                                   JUDGE
Jammu
15 .02.2022
Sanjeev

                          Whether order is speaking:Yes

                          Whether order is reportyable:Yes/No