HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 246 of 2004 U.O.I and Ors Petitioners Narinder Pal Singh Respondent !Mr. K. K. Pangotra, ASGI. ^Mrs. Surinder Kour, Advocate. Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice, Honble Mr. Justice Sunil Hali, Judge Date: 01.06.2010 :J U D G M E N T :
Per- Hali- J
This appeal has been preferred against the judgment of
learned Single Judge dated 22.03.2004 passed in SWP no.
897/2003. While disposing of the writ petition the learned Single
Judge directed the respondents to grant promotion to the writpetitioner
as Assistant Commandant with effect from
11.09.2001 when the private respondent was promoted.
In order to appreciate the controversy involved in the
present appeal, certain facts are required to be noticed.
The writ-petitioner-respondent was recruited as Sub
Inspector on 21.11.1984 and was promoted as Inspector on
25.09.1990. On the basis of his seniority, he became eligible for
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promotion as Assistant Commandant in the year 1996. He was
not promoted and the reason indicated was that he had not
undergone the mandatory Platoon Weapon Course and
Company Commander course, which was essential condition
for making such promotion. Writ petitioner was sent on
deputation to Special protection Group, New Delhi and request
was made for relieving him for undergoing the said training
course, which was declined by the borrowing department.
Various Departmental Promotion Committees were constituted
but the petitioners case was not considered due to the fact that
he had not undergone the special training course. In the
meanwhile the private respondent R. S. Yadav, who was junior
to the petitioner, was promoted as Assistant Commandant on
11.09.2001. The writ petitioner was finally promoted as
Assistant Commandant on 28.06.2002.
The grievance set out by the writ petitioner was that
despite being eligible and senior he was not deputed for the
mandatory training course as a result of which he could not
attain the eligibility for being promoted to the higher post. The
fault lies with the respondents in this behalf as they were
required to depute him for undergoing the necessary training
course.
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Writ petitioners further contention was that he had
undergone the mandatory training course from January 2001 to
April, 2001, but despite that he was not promoted by the
respondents when the DPC met in June, 2001.
The stand of the respondents before the writ Court was
that petitioner was not eligible for promotion as he had not
undergone the mandatory training course, which was the prerequisite
for such promotion. It is further contended by the
respondents that even though the writ petitioner underwent the
said training course from 29th of January, 2001 to 7th of April,
2001, but he could not be promoted by the Departmental
Promotion Committee constituted on 2nd of June, 2001, as
according to the instructions issued by DOP&T, New Delhi on
01.02.1999, the crucial date for determining the eligibility of
Subedars was 1st of January, 2001. The writ petitioner had not
obtained the eligibility as on 1st of January, 2001, which was the
date for determination of the eligibility for promotion to the post
of Assistant Commandant, as such, his case could not have
been considered for promotion.
We have heard the learned counsel for the parties.
The learned Single Judge has allowed the writ petition
solely on the ground that the writ petitioner was senior to the
private respondent and was required to be considered for
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promotion to the post of Assistant Commandant with effect from
11.09.2001, when his junior was promoted.
There is no dispute that writ petitioner admittedly was
senior to the private respondent, which fact stands admitted by
the respondents also. The issue which was required to be
addressed by the learned Single Judge was as to whether the
writ petitioner was eligible for promotion on the crucial date.
Eligibility would determine his right of promotion to the higher
post. The stand of the respondents in this behalf was that the
crucial date for determining the eligibility was 1st of January,
2001, and, on that date the writ petitioner had not acquired the
eligibility for promotion. This aspect of the matter has not been
considered by the learned Single Judge. As a matter of fact,
this was the crucial issue which was required to be determined
by the learned Single Judge. Seniority may be one of the
criterions for promotion but the most important aspect was
acquiring the eligibility for such promotion. This issue has been
left un-settled by the learned Single Judge.
We, therefore, allow this appeal, set aside the impugned
judgment and remand the matter to the learned writ Court, with
a request to hear the parties afresh on the issue of eligibility. It
is expected that the matter will be disposed of by the learned
Single Judge within a period of two months.
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Registry is directed to list the writ petition before the writ
Court in the first week of July, 2010.
(Sunil Hali) (Dr. Aftab H. Saikia)
Judge Chief Justice
JAMMU:
01.06.2010.
Anil Raina, Secy.
