Jammu & Kashmir High Court

Mushtaq Ahmed vs State Of J&K Th. Commissioner Secretary on 11 October, 2024

                                                      Serial No. 126
 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU
     SWP No. 348/2019


Mushtaq Ahmed, Age 57 years                               .....Petitioner(s)
S/O Sh. Ghulam Mustafa,
R/O Village Dandi, Bhaderwah,
Tehsil Bhaderwah District Doda

                       Through: Mr. P.N. Bhat, Advocate.

               Vs

1.    State of J&K Th. Commissioner Secretary,
      Forest Department,
      J&K Government Jammu;
2.    Managing Director,
      J&K State Forest Corporation,
      Jammu.
3.    Divisional Manager,
      J&K State Forest Corporation,
      Workshop Division, Jammu.
4.    Lakhvinder Singh
      S/O Swarn Singh,
      R/O Raika, Jammu.
      Presently posted as Driver,
      Workshop Division, Jammu.
                                                    ..... Respondent(s)

                       Through: Mr. Amit Gupta, AAG.

CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                 ORDER

(11.10.2024)

1. In the instant petition filed under Article 226 of the

Constitution of India read with Section 103 of the Constitution of

J&K State, the petitioner seeks the following reliefs:-

                (A)       WRIT OF CERTIORARI

                 (i)     Quashing Order No. SFC/23 of 2019 dated
                         05.02.2019 to the extent of the respondent
                         No. 4 as contained in Annexure-I.


                 (ii)    Quashing final seniority list of drivers to the
                         extent of respondent No. 4 by showing
                         petitioner at Serial No. 16-A as contained in
                         Annexure-II.


               (B)       WRIT OF MANDAMUS

               (i)      Commanding the respondents to promote

petitioner to the post of Incharge Driver in his own pay and grade with charge allowance on the analogy of order dated 08.04.2013.

(ii) Commanding the respondents to promote petitioner as Driver in the pay band of ₹5200- 2020 with grade pay grade pay of ₹2400 w.e.f. 11.04.2018 as contained in Annexure-I."

2. Before proceeding further in the matter and clinch the

controversy in question, it is imperative to give brief resume of the

facts, which in succinctly, are summarized as under:-

3. The petitioner-Mushtaq Ahmed alongwith one-Tanveer

Hussain, was appointed as Cleaner (Grade-II) on 30.01.1994,

whereas the respondent No. 4-Lakhvinder Singh was appointed as

such in the year 1999; though the said Tanveer Hussain was shown

ahead of the petitioner in the order of appointment, however, the

petitioner joined prior to him. During service period of the

petitioner, an allegation was made against him and he was falsely

implicated in a domestic criminal case and was arrested, which led

to his suspension from service as he was put behind the bars. Later

on, the petitioner was released on bail on 15.01.2009 and during

suspension period, the petitioner was working as full-fledged Driver.

4. It is asserted in the petition that vide order dated

27.07.2010, Senior Cleaners (Grade-II) including Tanveer Hussain

were promoted as Cleaner (Grade-I) with an observation that the

case of the petitioner would be considered after conclusion of the

criminal case filed against him. The petitioner was acquitted by the

Sessions Judge, Bhaderwah on 27.08.2014 and thereafter, he was

re-instated on 23.04.2015, i.e., almost after nine months and his

period from 16.08.2008 was treated as on duty.

5. It has also been asserted in the petition that after re-

instatement of the petitioner, the said Tanveer Hussain and others

were promoted as Incharge Drivers vide order dated 08.04.2013,

though at that point of time, the petitioner was under suspension

and his case was not considered for promotion to the post of

Cleaner Grade-I and thereafter to the post of Driver and alleged that

the junior officials like respondent No. 4-Lakhvinder Singh came to

be promoted as Driver vide order dated 05.02.2019, which is

impugned in the instant petition, pursuant to which, the seniority

list of the Driver was also issued, wherein the respondent No. 4 is

shown at Serial No. 17.

6. Feeling aggrieved of the aforesaid action on part of the

respondents ignoring his seniority, the petitioner has approached

this Court by way of instant petition.

7. Reply/objections on behalf of respondent No. 3-

Divisional Manager, J&K State Forest Corporation Workshop

Division, Jammu has been filed, wherein it has been stated that the

petitioner was arrested by Bhaderwah Police on 16.11.2008 in a

criminal case punishable under Sections 302, 201 & 498-A RPC

and placed under suspension vide Order No. 26 of 2009 dated

27.01.2009. He remained under police custody and bailed out on

15.01.2009, but the criminal trial was pending before the Court of

Sessions Judge, Bhaderwah. It is also contended in the objections

that the petitioner was reinstated vide SFC Order No. 222 of 2015

dated 23.04.2015 and his period of suspension w.e.f. 16.11.2008

was treated as on duty. During the intervening period, the DPC

Meeting was held on 27.03.2010, whereunder the promotion order

of the petitioner, falling at Serial No. 4 had been kept withheld for

want of conclusion of the criminal proceedings pending against the

said official.

8. It has been further asserted in the objections that the

petitioner was exonerated and acquitted of the charges by Sessions

Court, Bhaderwah on 27.08.2014 and subsequently, vigilance

clearance was also received from Administrative Department vide

No. FST/SFC/12/2018-1 dated 24.03.2021, besides the integrity

certificate has also been furnished by the concerned controlling

officers. The further stand of the respondent No. 3 is that the

concerned authority has issued the promotion order in favour of the

petitioner from Cleaner-II to Cleaner-I in the pay scale of Rs. 4440-

7400 with Grade Pay of 1400 retrospectively w.e.f. 25.05.2010

under Order No. JK FDC 92 of 2021 dated 06.04.2021. In the said

order, it has been mentioned that the petitioner shall figure in

seniority list of Cleaners Grade-I of Jammu region at Serial No. 5

below Sh. Tanveer Hussain and above Sh. Lakhvinder Singh and,

accordingly, the grievance of the petitioner was redressed.

9. The petitioner is essentially aggrieved of the SFC order

No. 23/2019 dated 05.02.2019, whereby his junior-respondent No.

4, namely Lakhvinder Singh was promoted alongwith one-Tanveer

Hussain, who was immediate senior to the petitioner as Driver from

Cleaner (Grade-I) of Jammu region in pay band of 5200-20200 with

Grade Pay of ₹2400/- under SFC rules and regulations w.e.f.

11.04.2018. The petitioner's claim is that he being next in seniority

to one-Tanveer Hussain was entitled to be senior to the respondent

No. 4, who has been promoted to the post of Driver vide impugned

order, ignoring the claim of the petitioner. The order impugned had

been passed by the Managing Director of the SFC with the note that

the promotion order in respect of other Cleaners (Grade-I), who had

also been cleared by the DPC shall be issued separately on receipt of

vigilance clearance/APRs etc. and that the promotion order was

issued without prejudice to their inter-se seniority and any Court

case pending in the Court below. It is an admitted case that the

petitioner as Cleaner (Grade-I) had been suspended in view of

criminal case pending against him, in which eventually, he was

acquitted by the Sessions Court, Bhaderwah vide judgment dated

27.08.2014 and after acquittal, the petitioner was re-instated on

23.04.2015. It has also been asserted that the petitioner in view of

the orders passed by the Divisional Manager had been driving

vehicle even during the period of his suspension and after being

re-instated.

10. Respondents have stated that the petitioner had been

acquitted and re-instated and that the vigilance report had also

been sought from the Administrative Department for consideration

of his promotion. However, when the DPC met on 27.03.2010 during

the period of his suspension, his case was withheld for want of

conclusion of criminal proceedings pending against him. It is not

undisputable as to how after his acquittal and being re-instated

revoking his suspension, the petitioner was ignored in the year

2019, when Tanveer Hussain and respondent No. 4-Lakhvinder

Singh, who were admittedly above and below in seniority list to the

petitioner of Cleaner (Grade-I) of Jammu region had been promoted

to the post of Drivers on 05.02.2019 vide SFC Order No. 23 of 2019.

11. Learned counsel for the petitioner submits that the

petitioner has since been superannuated, reaching the age of

retirement, the petitioner at the most in this petition to be

considered for being promoted before the respondent No. 4, namely,

Lakhvinder Singh was promoted, as he was entitled to be promoted

in view of his acquittal from the criminal case as well as on the

basis of his vigilance clearance by the department. In view of the

admitted facts that in seniority list, the petitioner was falling as

Cleaner (Grade-II) below Mr. Tanveer Hussain and above respondent

No. 4, who had been promoted vide impugned order, ignoring the

claim of the petitioner. It appears that the respondents have

arbitrarily passed the impugned order, wbereby the respondent

No. 4 (a junior to the petitioner) was promoted, ignoring the

petitioner's right of being promoted, as there was nothing adverse

shown by the respondents against the petitioner, he was entitled to

be promoted before the respondent No. 4. However, the petitioner

having been superannuated, it will not be, in the interest of justice,

to disturb the promotion of the respondent No. 4-Lakhvinder Singh.

12. For the aforesaid reasons, the petition is allowed in the

following directions:-

I. The respondents shall consider the appointment of the petitioner as Driver from the date his junior- respondent No. 4, namely, Lakhvinder Singh was promoted;