Jammu & Kashmir High Court - Srinagar BenchIlyas Ali vs State And Ors on 10 December, 2009IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR              
Swp no. 1566 of 2002 
Ilyas Ali
 Petitioners
State and ors
 Respondents 
!Mr. Iqbal Dar, Advocate
^Mr. N. H, Advocate

Honble Mr. Justice Muzaffar  Hussain Attar, Judge
Date: 10/12/2009 
:J U D G M E N T:Order No.   274 of 2002 dated 14.08.2002, is called in question, in this petition.Petitioner was selected  and appointed as constable in J&K Police Department in District Police
(Executive) Kargil in special on spot recruitment drive on 28th August 2000  along with many other
candidates  vide PHQ selection letter No.  Onspot/34191-93 dated 01.09.2000.  The formal appointment
order  could not be issued in favour of the petitioner as he was found  to be over age. Matter was taken
up with the competent authority and sanction was accorded for relaxation  of upper age limit by two
years seven months and twenty five days  in favour of petitioner as on  1st Jan. 2000. The petitioner
was, accordingly, appointed  as constable in the pay scale  of 2750-70-3800-75-4400 vide order dated
22nd March 2001. The petitioner was deputed to Police Training School (PTS) Manigam to undergo nine 
months Basic Recruitment Training Course (BRTC) and was accordingly relieved  from the office of the
Superintendent of Police District Kargil on 29th March 2001. The petitioner was reverted back to Kargil
for his unauthorized absence  from duty from 26th April 2001 by Pr. PTS Manigam vide order dated 15th
May 2001. The petitioner/constable reported  in the District Police Lines (DPL) Kargil  on 18th June 2001
after unauthorized absence of  fifty three days. The petitioner was allowed to join  PDL Kargil to facilitate
conducting of the departmental enquiry. The petitioner again absented himself on the dates shown
below:1.04.08.2001    to     07.08.2001 
                        2.08.08.2001     to     15.08.2001 
                        3.28.08.2001     to     10.09.2001 
                        4.06.10.2001    to      23.11.2001 
                        5.25.11.2001     to     till date

Notice was issued to petitioner informing him to resume  his duties and to facilitate conducting of the
enquiry. The enquiry, however,  could not be conducted and concluded.  It appears, the enquiry  has not
been conducted because of  unauthorized absence  of the petitioner from duty.After considering  all these aspects in the matter  the petitioners probation  was ordered to be
terminated  in accordance with the mandate of Rules of 187 of Jammu and Kashmir Police Rules, 1960, (
for short rules of 1960), It is this order which is called in question in this petition.On notice, respondents have filed reply affidavit/objections in which the factual details given in
the impugned order have been reiterated  and it is said that the order impugned  in this petition is legal
and valid.Heard ld counsel for parties. Considered the matter.Ld. counsel for the petitioner submitted, that  the petitioner  fell  ill at  Srinagar when he was reverted
back to parent district but he  could not immediately reach there as the road was closed. The ld counsel
further submitted that petitioner did not deliberately or intentionally  absented from his duty. It is  further
submitted that  after reporting  back to DPL Kargil he again fell ill and did not absent himself from duties
deliberately.Ld counsel also referred to and relied upon the judgment of Supreme Court reported in AIR 1964 SC 443,
2000(2) Supreme  259 and judgment of this court reported in 2005 (SLJ) 375,  and submitted that the
impugned order has stigmized  the petitioner  and it is not the order of discharge simplicitor. It is further
submitted by ld counsel for petitioner  that  as no enquiry has been conducted and no opportunity of
hearing  was  granted to the petitioner, the order is rendered illegal.Mr. N. H. Shah, Dy AG,  appearing for the respondents invited the attention of the  court to Rule 187 of
the of the Rules of 1960, and submitted that in view  of the fact situation obtaining  in this case,  there
was no option but to terminate the probation  of petitioner and discharge him from service as he was not
likely to prove a good police official. Ld counsel further  submitted, that there was no requirement  of
putting petitioner on notice  and conducting of an enquiry as the order impugned  in the writ petition is
the order of discharge simplicitor  and has not stigmized  the petitioner.   Ld counsel,  accordingly,
prayed for dismissal of the petition.True, it is,  that a person who seeks appointment in the police organization, the organization which is
charged with the duty of maintaining  law and order, dealing with the crime  and protecting the life and
liberty of  citizens of the State, has to prove a good official/officer while being put  on probation after
his appointment. A person who is appointed  in the police force cannot be permitted to play pranks with
his duties. If police officer/official while being  on probation, is found not fit to prove a good police
officer  on the basis   of his performance  which precedes the passing of the discharge order, the
competent authority  has power to terminate  the probation and discharge  the official/officer  from his
services, in accordance with mandate of Rule 187 of the Rules of 1960. Rule 187 of the Rules of 1960, is
reproduced as under:-Discharge  of inefficient.A constable  who is found  unlikely to prove an efficient  police  officer may be discharged by
the Superintendent at any time within three years of enrolment.
Perusal of the rule reveals that  a constable  when found unlikely to prove an efficient police official  may
be discharge  by the Superintendent  at any time within enrolment of three years. The  said power  is a
drastic power which has the potential  of throwing out  the police constable  from the services without
conducting enquiry. This rule, thus, requires to be  construed  strictly,  lest it is misused by the
authorities. The more absolute power  conferred  by rule on authority, the more serious duty is cast on
the said authority  to be more responsible  in dealing with the  official in accordance with  the  said rule.
The rule casts serious duty  for exercise of power  with utmost  care and caution as the said rule  has the
potential  of depriving  a police constable  of his services without conducting  an enquiry.
A government servant  has constitutional protections available  to him as enshrined inArticle 311of
Constitution of India read with  Section 126 of Constitution of Jammu and Kashmir.  A person  appointed
to services  in terms of the relevant rules  is put on probation so as to adjudge his capacities  and to
find out  whether he is likely to prove an efficient official.  The probationer unless his probation is
confirmed  does not become member of the services and it is how the protections guaranteed underArticle 311of the Constitution of India read with Section 126 of Constitution of Jammu and Kashmir may
not be available  to the probationer. However, when a probationer is discharged from services  and the
foundation for such discharge,  is, his, alleged misconduct  or any act, which would have potential  of
stigmizing the  said officer, in such circumstances  the order of discharge  from services  will  not be  an
order  discharge from services simplicitor  but would be   punitive  in nature and consequences would be
dismissal of official from services. In such cases, what becomes  necessary to ascertain  is as to
whether,  the order  of discharge is really an order of discharge simplicitor or the foundation thereof has
been  the alleged  misconduct  of the official
The petitioner  was selected  as constable in an on spot recruitment drive.  In order  to appoint him in
police service  government accorded sanction  for relaxation of upper age limit in his case. The petitioner
was ordered  to under go nine months  BRTC course at PTS Manigam. After joining the PTS Manigam,   
the petitioner absented  and was reverted back  to  DPL Kargil where he reported on 18th  June 2001. The
impugned order  reveals that  the petitioner was allowed to join in DPL Kargil for facing departmental
enquiry. The period of his unauthorized absence from services has also been listed in the  impugned
order. The Superintendent  Police District Kargil after giving all the details  about the conduct of
petitioner  in the impugned order recorded a finding, the relevant part of  which is reproduced  as under :-.On the above grounds it can be presumed that constable  is not willing to serve  in the police
department  and also  he will not proven to be a responsible  police personnel.

The respondent No.4 in terms of Rule 187 was duty bound  to record  a finding that the petitioner  was
likely  to prove  inefficient police official. The respondent No.4 has after referring to the  conduct of
petitioner  stated that it can be presumed  constable  is not willing to serve  the department and will not
to prove to be  a responsible person.The basis  for passing the impugned order,  has thus, two limbs, one that petitioner is not willing to serve
in the department,  and second that  he will not prove  to be a responsible person. If an employee is
stated to be not willing  to serve the organization, this certainly will  come in his way to secure
employment some where else as has the effect of declaring him  a non serious  person, consequently
stigmizing him,  unless such a  finding is recorded on the basis of enquiry conducted in accordance with
law, declaring official not willing to serve the department cannot be said to an innocuous allegations
leveled against official,  such  a finding can be recorded only by conducting  the enquiry.  Declaring an
official  not willing to serve the department  certainly  stigmizes  the official  as this casts a serious
reflection  on his whole personality and will have   adverse effect  to deprive the official to seek
employment else where. When such a finding becomes  basis for passing  of order of discharge  same 
does not remain an order of discharge simpliciter merely,  but the  order becomes punitive in nature. In
terms of Rule 187 of Rules of 1960, the Superintendent has to record  a finding  that  the official  is
unlikely to prove efficient  police officer. No such finding is recorded  in  this case.  What is stated, is
that, he will not prove to be a responsible person.  There is certainly difference between expression
efficient and responsible. Petitioner may be inefficient in one service but he can prove efficient for
other services, but  when the order is  passed on the ground that he will not prove to be a responsible
person, it casts  aspersions on official as he is declared irresponsible. Holding the petitioner  to be not a
responsible  person has  also stigmized  him.The impugned order in these circumstances  is held to stigmize  the petitioner and is punitive  in
character,  such order could not be passed unless after conducting  enquiry and putting  the petitioner
on notice. Neither any enquiry has been conducted nor the petitioner  has been put on notice
For the above stated reasons this petition succeeds and is allowed. By issuance of writ of certiorari,
impugned order No. 247 of 2002 dated  14.08.2002, is quashed.The quashment of the impugned order shall not prevent  the respondents  to initiate an enquiry against
the petitioner, if so advised. The intervening period will be also decided by the authorities in accordance
with the Rules of 1960.(Muzaffar Hussain Attar)
                           Judge                        
Srinagar
10.12.2009 
Ayaz