HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1336-S OF 2004 Mohd Iqbal Petitioners State & Ors Respondent !Mr. M.R.Qureshi, Advocate with Mr. Z.A.Mughal, Advocate ^Mr. Jagdish Parihar, AAG Hon'ble Mr. Justice Mansoor Ahmad Mir, J Date: 06.05.2010 : J U D G M E N T :
Precise question for consideration is whether promotion order can be revoked without hearing
an employee?
It appears that petitioner was working as Head Constable in the year 2002, came to be
promoted as Assistant Sub Inspector vide Government Order no. 844 of 2002 dated 16th of
July’ 2002. Thereafter, respondents at his back, passed an order No. 497 of 2004 dated 11th of
November’ 2004 whereby and where-under the said promotion order came to be recalled-
rescinded. Feeling aggrieved, petitioner questioned the same on the grounds taken in the writ
petition.
Respondents have filed reply. They have accepted it in para 2 of the reply, that nothing
adverse was reflected against the petitioner when his case was considered for promotion. Thus,
the promotion came to be granted after due deliberations and considerations. According to the
respondents, some departmental inquiry was pending against the petitioner and Departmental
Promotion Committee (for short D.P.C) has not made recommendation in his favour, which
made the respondents, after lapse of two years, to pass the impugned order.
It is beaten law of the land that right of consideration for promotion is a legal right, but
to claim promotion is not a right. But when promotion is granted, it creates a vested right and it
cannot be taken away without hearing an employee.
It would be apt to reproduce Regulation 396 of J&K Police Manual, which reads as
under:-
396. PROBATIONARY PERIOD OF PROMOTION:- All police officers promoted in
rank may be reverted within two years of promotion without departmental proceedings as in the
case of constables promoted to the rank of Head Constable Junior Grade. Reversion of an
Officer shall not be considered as reduction. Confirmation will be subject to a favourable report
rendered to the officer authorised to make promotion prior to the expiry of the period during
which reversion is possible.
In terms of Regulation 396 of J&K Police Manual, a promotion order can be
withdrawn, rescinded or cancelled during the period of probation without conducting
departmental proceedings-inquiry within two years from the date of issue of the order. If the
order is not passed within two years, then in terms of the said Regulation, departmental inquiry
was required.
While arguing, Mr. Qureshi, placed on record a photostat copy of communication No.
GB/Rep/5453-59 dated 03rd of May’ 2005, made by the Commandant I.R. III Battalion to
Additional Director General of Police, which provides that there was need to pass the
impugned order and the promotion was rightly granted. Mr. Qureshi, also stated at bar that the
petitioner is still holding the post of Assistant Sub Inspector as on today.
Keeping in view the discussions made herein above read with mandate of Regulation
396 of J&K Police Manual, the writ petition succeeds and same is allowed. Accordingly, the
impugned order is quashed.
Disposed of along with all CMPs, if any.
(MANSOOR AHMAD MIR)
Judge
Jammu:
06-05-2010
Sanjay