Post-acquittal and exoneration, employee entitled to retrospective promotion from juniors' date, rejecting sealed cover permanence.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.1785/2019 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.627/2020 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: -

“It is, therefore, most respectfully prayed before this Hon'ble Court that in view of the submissions made herein above, and those to be urged at the time of hearing, your Lordship may be pleased to allow the present writ petition and issue the appropriate writ order or direction in the nature of;

(I) Writ of Mandamus so as to command and direct the respondents to promote the petitioner as Head have Constable w.e.f his batch mates / counterparts order no. Estt/been promoted vide promotion Promotion/7214 dated 09.06.2009 pursuant to order No. 226 of 2009 dated 04.06.2009, as the petitioner promotion was kept withheld by the respondents, as such the petitioner may please be held entitled for promotion from the date his counter parts were promoted with all consequential benefits, in the interest of justice. OR case Any other writ Order or direction which this Hon'ble Court deems fit and appropriate in the peculiar facts and circumstances of the may also be issued in favour of the petitioner in the interest of justice.

a) The present Transfer Application arises out of SWP No. 1785/2019, originally filed before the Hon’ble High Court of Jammu & Kashmir at Jammu and subsequently transferred to this Tribunal and registered as T.A. No. 627/2020. The applicant, Mohd. Sayeed, was appointed as a Constable in the Jammu & Kashmir Armed Police vide Order No. 210 of 1993 dated 23.02.1993 and was later promoted as Selection Grade Constable vide PHQ Order No. 2103 of 1999 dated 24.06.1999 along with other similarly situated Constables. The applicant continued to discharge his duties without any adverse remark till he was implicated in FIR No. 207/2004 (later referred as FIR No. 201/2004) under Sections 302 and 307 RPC registered at Police Station Pacca Danga, Jammu, pursuant to which he was placed under suspension vide Order No. 130 of 2004 dated 16.10.2004.

b) While the criminal case and departmental proceedings were pending, the batch-mates and counterparts of the applicant, who were similarly placed Selection Grade Constables, were promoted to the rank of Head Constable vide Order No. 226 of 2009 dated 04.06.2009 and Promotion Order No. Estt/Promotion/7214 dated 09.06.2009. However, the case of the applicant was withheld solely on account of the pendency of the criminal case and departmental proceedings. Eventually, the applicant was acquitted by the Court of competent jurisdiction vide judgment dated 15.11.2012, whereafter he was reinstated in service.

c) Subsequently, a departmental enquiry was conducted, and upon consideration of the findings of the Enquiry Officer as well as the judgment of the criminal court, the Commandant JKAP 6th Battalion vide Order No. 447 of 2014 dated 19.09.2014 exonerated the applicant of all charges, treated the entire period of suspension from 16.10.2004 to 11.02.2013 (except certain periods of station permission and short spells of absence) as duty, and regularized the said absence by treating it as earned leave, clearly acknowledging that the applicant had remained absent only to attend court proceedings during trial.

d) Despite such complete exoneration, the respondents initiated repeated denovo enquiries against the applicant on the premise that his acquittal could not be treated as “honourable” in terms of Rule 338(4) of th