S.K. Gupta, J.
1. This writ petition has been preferred seeking a direction to promote the petitioner, by giving a benefit of out-of-turn promotion on the basis of his exemplary and meritorious work, as Deputy Inspector of Police w.e.f.
30.11.2001 with all consequential service and auxiliary benefits including seniority from the date similarly situated persons on the same analogy have been given one time out-of-turn promotion, by issuing a writ of mandamus in invoking the writ jurisdiction under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir State.
2. According to the averments made in the petition, the petitioner was appointed as Sub Inspector in the year 1991. On the basis of his merit, seniority and suitability, the petitioner was subsequently promoted as Inspector in September, 1998. The State was under the grip of militancy and in order to effectively combat the insurgency, a Special Operation Group (hereinafter, for short, referred to as SOG) was formed in which suitable and willing officers were deputed for duties. The petitioner also volunteered for joining the SOG and was, accordingly, deputed to perform his duty in the SOG. The petitioner was put In-charge of SOG Camp Zakura and thereafter at Nowgam Sringar. Superintendent of Police, Operations, Srinagar, in considering the exemplary and meritorious service in the operations conducted against militants including fighting with dreaded militants in various encounters, strongly recommended the case of the petitioner- Mohan Lal Kaith, Inspector, for out-of-turn promotion to the rank of Dy.SP on anti-insurgency front to the Senior Superintendent of Police, Srinagar vide communication No. SOG/SGR/2001/1513 dated 30.11.2001 (annexure-A). In the aforesaid communication, Superintendent of Police, Operations, Srinagar, indicated few operations in which the performance of the petitioner was outstanding and have also been reproduced in para 4 of the writ petition. On the basis of the aforesaid recommendation, the Senior Superintendent of Police, Srinagar, vide his communication dated 23.03.2002 also highlighted the achievements of Mohan Lal Kaith-petitioner and further recommended his case for out-of turn promotion to the next higher rank so as to help in boosting the morale of such officers who are on forefront of fighting militancy in the valley. This recommendation was made by the SSP, Srinagar to the D.I.G., Srinagar Range, Srinagar, vide communication dated 23.03.2002 ( Annexure-B). The citations alongwith other connected documents were sent by the D.I.G., Srinagar Range, Srinagar, to the Inspector General of Police, Kashmir Zone, Srinagar, vide his communication No. CS/6-1259 dated 26.04.2002 (Annexure-C) and recommended for out-of-turn promotion in favour of the petitioner.
3. The petitioner has enclosed all these communications wherein recommendations for his out-of-turn promotion have been made by the aforesaid officers in highlighting his achievements in the operations against militancy and are annexures A, B & C with the writ petition. The petitioner further submitted that out-of-turn promotion was granted in view of the policy of the government based on conduct and performance of government employees during militancy vide circular No. 14-GR of 1990 dated 06.03.1990, annexed with the writ petition as Annexure-D. The petitioner has enclosed the promotion orders of M/S Abdul Rashid Baba, Narinder Pal Singh, Abdul Salam Rather & Sewa Singh Mankotia as annexures E & F respectively to the writ petition. The petitioner, therefore, claims one time out-of-turn promotion in view of the aforesaid circular of the government as recommended by the Superintendent of Police, Operations, Srinagar, for having demonstrated exemplary courage and initiative in different fields in combating the militancy. That the aforesaid officers in respect of whom out-of-turn promotion orders have been issued, though are similarly situated as the petitioner and performed better and outstanding duties in the prevailing crisis, but his case has been ignored and not considered on the same analogy by the respondents which amounted to arbitrary action being violative of Articles 14 & 16 of the Constitution of India and is a clear discrimination in the hands of the respondents.
4. The respondents in their counter affidavit, admitted that the petitioner had volunteered for joining SOG and was, accordingly, deputed and posted to perform his duty in SOG Srinagar. It is also admitted that the petitioner associated himself in several anti terrorist operations and performed his duties. It was, however, contended that the petitioner did not achieve the results single handedly. It was also stated that the achievements regarding killing of militants and recovery of arms and ammunition cannot be construed as individual action and effort of the petitioner. It is also stated that the case of the petitioner is not in any manner analogous to the other cases indicated and specified in the writ petition. One time promotion, according to the respondents, is given on different grounds and vary from case to case and, thus, the petitioner cannot claim analogous treatment.
5. I have heard learned counsel appearing for the respective parties and also perused the record meticulously. It is pertinent to point out that policy decision of the government for granting one time out-of-turn promotion to the employees in view of their conduct and performance during militancy has been reflected in the Circular No. 14-GR of 1990 dated 06.03.1990, which for facility of reference is reproduced as under:-
'Government of Jammu and Kashmir General Administration Department.
Circular No: 14- GR of 1990.
Dated: 6 -- 3 -- 1990.
Subject: Conduct and performance of Government employees during the present crisis.
1. The State is facing an unprecedented crisis arising out of the violent and terrorist activities of certain anti-national forces. The very security of the nation and the future of the secular character of our polity is at stake.
2. These are times which test the mottle and strength of an administration and the dedication, commitment and competence of its men.
3. Government expect each one of its employees to give his best to the performance of his duties in the service of the people and in meeting the challenge to established law and order posed by anti-national forces.
4. Secretaries to Government and Heads of Departments are advised to ensure that the conduct and performance of each employee during the current crisis is duly rewarded or punished as the case may be. A special Report may be obtained about such conduct and performance which should be considered by the promotion committees for determining suitability for promotion. Government will be glade to consider the grant of accelerated promotion where the Special Report brings out an outstanding performance on the part of an employee. Similarly, the competent authority should consider premature retirement or substantive punishment where the circumstances of the case so warrant. There should be no hesitation in awarding the extreme penalty of dismissal in such cases.
Sd/-
(R.K. Takkar)
Chief Secretary,'
6. A plenary reading of the aforesaid circular made it clear that government will consider the case of out-of-turn promotion of an employee on the special report depicting outstanding performance on the part of an employee, so that they are duly rewarded by the Secretaries to the Government and Heads of the Departments. The petitioner's case of dedication to duty, courage and team spirit exhibited in most professional manner by way of an exemplary performance in fighting against militancy and others, has been strongly recommended for promotion to the next rank by the Superintendent of Police, Operations, Srinagar, way back in November, 2001. This recommendation was made to the SSP, Srinagar, and the latter in-turn further highlighted the achievements of the petitioner with appreciation to the DIG, Srinagar Range, Srinagar on 23.03.2002 for out-of-turn promotion to the next rank as Dy.SP with a view to encourage the officers and boost their morale on the forefront of fighting militancy in Srinagar. The case of the petitioner was further recommended to the IGP, Kashmir Zone, Srinagar, by the DIG, Srinagar Range, Srinagar alongwith all connecting record for granting out-of-turn promotion.
7. From the orders of promotion placed on record by the petitioner, it is evident that out-of-turn promotion has been given by the department as soon as the act of outstanding performance and exemplary performance is carried out by the employees. The orders of promotion are passed by the respondents in recognition of their meritorious services rendered and exemplary courage shown in performing their duties. The act of exemplary courage and meritorious performance have been highlighted in detail by the SP, Operations, Srinagar, in his communication to the SSP, Srinagar, for out-of-turn promotion to the petitioner. In the said communication, he has given the minute details of the operations with outstanding performances.
8. According to the petitioner, his case has not been considered for one time out-of-turn promotion and ignored without any justification and smacks of mala fide, discrimination and arbitrary act of the respondents. It is further gatherable from record that officers similarly situated have been given one time out-of-turn promotion to the next higher rank, as and when the case of outstanding performance was recommended with promptitude. Whereas, in case of petitioner, unreasonable delay and inaction has been shown upon the recommendation of the SP, Operations, Srinagar dated 30.11.2001 and further recommended by SSP, Srinagar, DIG Srinagar Range, Srinagar, and finally to IGP, Kashmir Zone, Srinagar.
9. I find great substance in the submissions made by the petitioner that there is clear violation of concept of 'equality' guaranteed under the Constitution. The petitioner has not been granted one time out-of-turn promotion in terms of recommendation in recognition of his performance of exemplary courage and meritorious job in fighting militancy in Srinagar on various occasions as indicated in the recommendations in detail. The petitioner further contended that the case of the petitioner is on better footing than that of Sheikh Mehmood and Prabhat Singh, in which the Court had given benefit of one time out-of-turn promotion in allowing their writ petitions (SWP No. 2562/1991 & SWP No. 1435/1995 respectively). In the aforesaid petitions, the case of petitioners was of simple law and order situation, whereas the petitioner had shown outstanding performance and exemplary courage in fighting militancy in the Kashmir valley.
10. The petitioner in this case, in my considered view, is also entitled to the same treatment on the analogy of one time out-of-turn promotion given to the similarly situated persons in respect of whom he has placed on record their promotion orders in giving them the benefit of-out-of turn promotion. The approach of the State is not justified and arbitrary. The action of the State to apply double standard and different yard stick while dealing with the similarly situated employees cannot be appreciated, as is the view expressed by this Court in case 'State of J&K; and Anr. v. Parbhat Singh' reported as 1997 KLJ 311.
11. Consequently, I allow the writ petition and direct the respondents to treat the petitioner to have been promoted as DY.SP from 30.11.2001, when the recommendation was made by the SP, Operations, Srinagar and further direct that all consequential benefits of service during intervening period be given to the petitioner.