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| DB sets aside judgment of full bench of CAT, remands back to CAT | | Controversy over seniority of 95, 98 batches in Police | | Early Times Report
JAMMU, Mar 7: A division bench of Jammu & Kashmir and Ladakh High Court comprising Justice Dhiraj Singh Thakur while deciding the controversy over the promotion of 95 Executive and 98 Armed in police, set-aside the judgment of full bench of the Central Administrative Tribunal (CAT) with the observations that the hearing by the full bench could not have been permitted on issues on which the Judicial Member and the Administrative Member were ad idem.
The judges said that DB is of strong opinion that the entire procedure adopted for adjudication of the disputes in the present petitions post the minor difference of opinion between the members of the tribunal was contrary to the procedure prescribed by law. It is settled that "if law requires a particular thing to be done in a particular manner, it has to be done in that manner or not at all." The mandate of Section 26 of the Act nowhere authorized the learned Chairman to adjudicate upon an issue on which there was no conflict of opinion and assumed to itself the role of an appellate authority.
The DB observed that Section 26 does not envisage a re-hearing of the case by a larger bench as an appellate authority with a view to over-rule the judgment rendered by the Division Bench, on all issues on the basis of sheer strength of the members of the full bench. Moreover, Section 16 mandates that upon reference the decision would be based to opinion of the majority of the members of the tribunal who had heard the case, including those who first heard it.
With these observations, DB set-aside the judgement and order dated 31-3-2021 and ordered that the matter is remanded to the CAT Jammu bench. The points of difference expressed by the Judicial Member and the Administrative Member in its judgement and order shall be crystallized and a reference shall be made to the learned Chairman on such points of difference within ten days' from today.
A full bench of CAT comprising Justice L. Narasimha Reddy, Chairman, administrative members Bidisha Banerjee and A K Bishnoi while deciding the controversy over the promotion of executive police and armed police, directed the government to consider the feasibility of framing the recruitment rules for the posts of Sub Inspector and Inspector in various wings of the Jammu & Kashmir Police as well as the rules pertaining to the maintenance of common seniority list for inspectors, duly maintaining proper ratio between executive wing and armed wing. The CAT directed that the exercise, if undertaken, shall be completed within a period of three months from the date of receipt of a copy of this order.
The CAT observed that the applicants in the petitions were appointed as Sub Inspectors (SIs) in the Executive Wing (EW) of Jammu & Kashmir Police in 1995. In Jammu & Kashmir, there used to exist only one establishment of Police, which was general in nature. In the year 1960, the Armed Wing (AW) of Jammu & Kashmir Police was constituted through Section 6 of the Jammu & Kashmir Police Act. The recruitment to both the Wings are conducted separately, up to the level of Inspector and were appointed as SIs in the EW in the year 1995, whereas the private respondents were appointed as SIs in the AW in the year 1998. The seniority lists are maintained separately for the post of SI in these two Wings. The promotions to the post of Inspector in these two Wings are made on the basis of seniority of SIs. It so happened that the SIs of AW were promoted earlier, compared to the SIs in EW. To be precise, the private respondents, who were appointed as SIs in the year 1998, got promotion to the post of Inspector in the year 2005, whereas, the applicants, who were appointed as SIs in EW in the year 1995, got promotion as Inspector in the year 2007.
The applicants contend that in the combined seniority list of Inspectors, which is maintained for promotion to the post of Deputy Superintendent of Police (Dy. SP), the names of the Inspectors from EW as well as AW are arranged only on the basis of the date of promotion to the post of Inspector and in the process, the private respondents were placed above them en-block. They contend that the procedure adopted by the Government is contrary to Rule 172 of the Jammu & Kashmir Police Rules. According to them, the entire police of the State is one Unit and there was absolutely no basis for maintaining separate seniority lists for Inspectors, or for that matter SIs, of executive wing on the one hand and Armed Wing on the other.
The full bench of CAT after hearing both the sides observed that the confluence of these two wings takes place, at the stage of promotion to the post of Dy. SP, which is of a gazetted rank. Tentative / provisional seniority list of Inspectors was published on 8-4-2010. The names of the Inspectors from both the wings were arranged purely based upon the dates of their promotion to that post. Naturally, the applicants figured en bloc below the private respondents, who were promoted to the post of Inspectors three years earlier. This would have its own impact upon the chances of the applicants for promotion to the post of Dy. SP. This batch of T.As is filed claiming various reliefs.
The CAT observed that the separate seniority lists of EW on the one hand and AW, on the other hand, are being maintained for the post of SI at least from 1990s. While the applicants were appointed as SI in EW in the year 1995, the private respondents were appointed as SI in AW in 1998. The applicants did not make any protest about the maintenance of the separate seniority lists.
The CAT observed that the basic plea of the applicants is that the entire Jammu & Kashmir of Police is one unit and the official respondents were under obligation to prepare and maintain the common seniority list of SIs as well as Inspectors for both the wings. It is true that under Rule 172 of Police Rules, the method of preparation of seniority list, etc. is provided. However, no steps seem to have been taken to amend the Rules after the AW was created through Section 6 of the Jammu & Kashmir Police Act, 1960.
The CAT is of the view that whatever may be the perception about the method of maintenance of separate seniority lists and making promotions in the absence of rules, at least when the litigation started decades ago, the government ought to have framed the rules, governing the respective posts. There was a clear default on the part of the government and that, in turn, has given rise to the avoidable litigation.
The CAT observed that the absence of rules in the context of maintenance of seniority lists, at least when there is a convergence of two different categories, cannot be just or equitable. It would result in en bloc promotions of Inspectors of only one category to the post of Deputy Superintendent of Police at a given point of time to the detriment of the other categories. The CAT observed that the promotions in the EW and AW are separate up to the stage of Inspector. The applicants are not able to cite any provision of law that can be said to have been violated, in the process of promotion of the private respondents. Hence, we do not find any basis to interfere with the promotion of the private respondents as Inspectors.
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