Kuldeep Kumar And Another vs Ut Of J&K And Others
2023 Latest Caselaw 896 j&K

                                                                          Sr. No. 01

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                             WP (C) No. 1534/2021
                                                             CM No. 6077/2021

                                                  Pronounced on : 09.05.2023

Kuldeep Kumar and another                                            ..... Appellant(s)

                       Through :- Mr. R.S.Jamwal, Advocate.

                  Vs

UT of J&K and others                                               .....Respondent(s)

                       Through :- Ms. Monika Kohli, Sr. AAG.


Coram:     HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                   JUDGMENT

1. The petition is not admitted to hearing so far. The same is taken up for

final consideration with the consent of the counsels for both the sides.

2. The petitioners herein, who were working as SPOs with the respondents,

were disengaged from the date of registration of FIR No.62/2010

registered with Police Station, Doda under Sections 458/376/382 RPC.

The petitioners were alleged to have committed rape upon the

prosecutrix and also committed theft of ornaments of the prosecutrix

after entering into the house of the prosecutrix. It is submitted in the

petition that Lekh Raj who was constable at the time of registration of

the FIR was also the accused along with the petitioners in the aforesaid

FIR has been reinstated by the respondents after the challan was

dismissed presented in the aforesaid FIR.

3. The petitioners have challenged the disengagement order passed by the

respondent No.4 on the ground that the order impugned was passed

without observing principle of natural justice as the petitioners were not

granted prior hearing before passing the impugned order. No show cause

notice was issued to the petitioners before passing the order impugned.

It is also submitted that the petitioners and Lekh Raj stand acquitted in

the criminal case registered against them and further that Lekh Raj has

since been reinstated but the respondents are not willing to reinstate the

petitioners though their case is at par with the said Lekh Raj.

4. The petitioners seek quashment of order of disengagement and further

seek relief of their re-engagement as Constable in view of the

Government orders passed by the respondents from time to time.

5. The respondents have filed objections to the petition, wherein the factual

aspects of the case are not disputed. The stand taken by the respondents

is that as the petitioners have breached the trust and conduct of

disciplinary force and the FIR stands registered against them, they

cannot be considered for regularization in the department.

6. Heard learned counsel for the petitioners and learned Senior Additional

Advocate General for the respondents.

7. The petitioners herein and Lekh Raj who was constable when the FIR

came to be lodged against all the three accused stand acquitted by the

court of learned Additional Sessions Judge, Doda in the FIR No.

62/2010 vide judgment dated 30.12.2020 on the ground that the

evidence of the witnesses is filled with discrepancies, contradictions and

improbable version. It may be noticed herein that though the order of

disengagement of the petitioners was passed on 22.03.2010, the

respondents did not challenge the same for a decade as it appears that

they waited for the outcome of the challan which was produced against

them in FIR No.62/2010.

8. As the petitioners failed to approach the court against the order of

disengagement passed in the year 2010 for a decade it shows that the

petitioners had no grievance as such of their disengagement order passed

by the respondents. Therefore, they cannot challenge the order

impugned in the present petition on the ground that no Show Cause

Notice was issued to them though the same should have been issued

before disengaging them as SPOs.

9. The learned counsel for the petitioners has filed the photocopy of

judgment passed by this Court in SWP No.1998/2006 titled 'Pishori Lal

and another vs. State of Jammu and Kashmir and others' decided on

10.09.2007, taken on record, in support of his contention that the SPOs

cannot be inflicted a major punishment like removal from the service

without conducting enquiry in terms of Police Act, 1983 (1927 A.D).

The court is of the view that this judgment does not come to aid the

petitioners for the reason that the petitioners have challenged their

disengagement from the police department after a decade meaning

thereby that they had no grievance as such of their removal by virtue of

order impugned in the writ petition.

10. The next relief sought for regularization as constable by the petitioners

is on the ground that the Government orders bearing No.GB/N-27/2007-

II/0357-67 dated 02.03.2013 and Order No.Home/PB-III/62/G/2008

dated 25.09.2009, passed by the Home Department, Govt. of J&K entitle

the petitioners to be regularized as Constable because of the act of

bravery shown by them when they were working as SPOs.

11. The respondents have taken the stand that the petitioners have tainted

their image because of the registration of the FIR and, therefore, cannot

be otherwise considered for regularization as Constable. Learned Senior

Additional Advocate General has submitted that the acquittal by itself

does not entitle the petitioners for reinstatement in the Police

Department not to speak of claim for regularization as constable.

Admittedly, the petitioners have remained disengaged from the year

2010 till date meaning thereby that there is no continuity of their

engagement as SPOs after 2010 whatever may be the reason.

12. The petitioners have not even mentioned in the petition as to when they

were initially engaged as SPOs and, therefore, they are entitled to be

considered for regularization as constable.

13. The very first condition in the Government orders pertains to the

minimum period of the engagement as three years as SPOs in addition to

other qualifications set out in the Government orders before the SPOs

could be considered for absorption as Constable in the police

department. The conditions laid down in the Government orders on

which the petitioners bank upon, therefore, cannot apply to the

petitioners. It is also seen from the Government Order dated 02.03.2013

that the age limit for absorption in any case is 37 years and the

petitioners have crossed the age bar as is evident from the caption of the

writ petition itself. So on that count also the petitioners cannot claim

any relief of their engagement as Constable with the respondents.

14. Last but not the least, the petitioners have sought their re-engagement in

the police department on the basis of parity with Lekh Raj, who the

petitioners submit has been reinstated in the police department as

Constable, who was working in that capacity when the FIR No.62/2010

came to be registered against the petitioners as well as the said Lekh

Raj.

15. The petitioners have not placed on record any document whereby the

said Lekh Raj has been reinstated. What weighed with the respondents

to reinstate the said Lekh Raj is not made known to the court. The

petitioners cannot seek parity with Lekh Raj as the engagement of the

petitioners herein was not permanent one whereas as per the assertion of

the petitioners the said Lekh Raj was permanent employee of the

department as he was working as Constable when the FIR came to be

lodged against him in which he was also acquitted along with the

petitioners herein. The petitioners cannot seek re-engagement as SPOs

or regularization as Constable only on the strength of their being

acquitted in a criminal case. This is what has been laid down by the

Hon'ble Apex Court in case titled 'Imtiyaz Ahmad Malla vs. The State

of Jammu and Kashmir and Ors.' reported in AIR 2023 SC 1308. It was

held in this authority that it is for the employer to consider the

antecedents of the person and examine if he is suitable for appointment

to the post.

16. There can be no second opinion that the integrity and the conduct of the

person who seeks employment in a police department which is for the

protection of the Society at large has to be impeccable and beyond

question.

17. In the light of the above, the Court finds no merit in the present petition.

The petition is, accordingly, dismissed. As the petitioners claim in the

writ petition that they have also filed representation for their re-

engagement with the Police Department after their acquittal in the FIR

in question and no specific order has been passed on the said

representation but the respondents are not ready to take the petitioners

back into service, the respondents are at liberty to consider the case of

the petitioners qua their representation irrespective of dismissal of the

writ petition.

(PUNEET GUPTA) JUDGE Jammu:

09.05.2023 Pawan Chopra

Whether the order is speaking: Yes Whether the order is reportable: Yes

PAWAN CHOPRA 2023.05.09 17:33 I attest to the accuracy and integrity of this document