REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.2815-2816      OF 2011 (Arising out of SLP(C)Nos.29337-29338 of 2008)

Mohammad Aftab Mir … Appellant   

Vs.

State of J & K & Ors.   … Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. In November, 1990, when militancy was at its  

height  in  the  State  of  Jammu  and  Kashmir,  the

Appellant  was  selected  for  the  post  of  Sub-

Inspector  in  the  Jammu  and  Kashmir  Police.   In  

February, 1995, he was posted as the Station House  

Officer of Chadoora Police Station, adjacent to the  

town of Charare Sharif in the district of Budgam,  

which  is  the  convergence  point  for  pilgrims  and  

other  visitors  to  the  shrine  of  Hazrat  Shaikh  

Nooruddin Noorani, situated in Charare Sharif in  

order to reach the shrine, people have to travel  

through  Chadoora  which  is  the  gateway  to  the  

shrine.  At the time of the Appellant’s posting at  

Chadoora  Police  Station,  his  batch-mate,  Shaikh  

Hamidulla, was already serving as the Station House  

Officer, Charare Sharif.   

3. In  between  the  months  of  February  and  May,  

1995, armed militants laid siege to the aforesaid  

shrine prompting the Government to send two units  

of the army backed by the Border Security Force to  

flush out the militants from the shrine precincts.  

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The Chadoora Police Station under the Appellant’s  

charge was saddled with the duty of ensuring that  

more  militants  and  unruly  mobs  did  not  enter  

Charare Sharif town during the said period.  On 10th  

and 11th of May, 1995, in a fierce encounter between  

the  Indian  troops  and  the  militants,  the  entire  

town  of  Charare  Sharif,  including  the  aforesaid  

shrine  and  about  1500  residential  houses,  were  

gutted.  This triggered off violent protests all  

over  Kashmir  and,  in  particular,  in  the  nearby  

areas from where enraged citizens in processions  

and even in unruly mobs starting marching towards  

Charare  Sharif,  not  only  threatening  further  

deterioration  in  the  law  and  order  situation  

therein,  but  also  threatening  to  destroy  the  

secular  fabric  of  the  Valley  by  resorting  to  

communal violence.  The Appellant claims to have  

displayed exemplary courage and at the risk of his  

life  prevented  a  temple  at  Badipora  from  being  

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desecrated and burnt by an unruly mob of about 3000  

people and the action taken by the Appellant saved  

Badipora from being converted into a battle field.  

According  to  the  Appellant,  he  successfully  

resisted  violent  attempts  by  unruly  mobs  and  

processions of thousands of people to enter Charare  

Sharif  through  Chadoora  which  was  under  his  

jurisdiction.   In  effect,  according  to  the  

appellant,  it  was  the  exemplary  courage  and  

patriotism  as  displayed  by  him  as  part  of  his  

official duties which prevented the situation from  

going  out  of  hand  in  the  aftermath  of  the  

destruction of the Charare Sharif shrine.   

4. It is the Appellant’s case that in order to  

gear  up  its  administrative  machinery  and  to  

effectively deal with the law and order situation,  

the  State  of  Jammu  and  Kashmir  took  a  policy  

decision to provide for accelerated promotion for  

Government employees whose performance in discharge  

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of  their  duties  and  combating  militancy  was  

outstanding.  A Circular, being No.14-GR of 1990,  

dated 6th March, 1990, was published by the State of  

Jammu and Kashmir in this regard.  The procedure  

for accelerated promotion entailed a special report  

to be obtained about the conduct and performance of  

the officer concerned which was to be considered by  

the Promotion Committee.  It was also provided that  

the  Government  would  consider  the  grant  of  

accelerated  promotion  where  the  special  report  

brought out outstanding performance on the part of  

the officer concerned.

5. On 12th May, 1995, the day after the incident  

in Charare Sharif, the Inspector General of Police  

and the Senior Superintendent of Police visited the  

area to assess the situation.  On 10th June, 1995,  

the  Director  General  of  Police  gave  only  the  

S.H.O., Charare Sharif, Shaikh Hamidulla and Sub-

Inspector  Sonaullah,  out-of-turn  promotion,  even  

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though  recommendations  had  also  been  made  in  

respect  of  the  Appellant  for  such  out-of-turn  

promotion.   The  Appellant  has  referred  to  the  

Letters  of  Appreciation  given  by  the  Commanding  

Officer  of  the  12th Bn.  Rashtriya  Rifles,  the  

Commandant  of  the  136th Bn.  BSF,  the  Commanding  

Officer of the 7th Bn. Jat Regiment, Superintendent  

of Police, Jammu and Kashmir Police and the Senior  

Superintendent  of  Police,  acknowledging  the  

outstanding role of the Appellant in containing the  

law and order situation following the destruction  

of Charare Sharif and, in particular, the shrine of  

Hazrat  Shaikh  Nooruddin  Noorani  and  recommending  

him for accelerated promotion.   

6. On 7th August, 1996, the Director General of  

Police issued a Commendation Certificate with cash  

reward  of  Rs.2,000/-  in  recognition  of  the  

Appellant’s  exemplary  performance.   Thereafter,  

since nothing further materialized, the Appellant  

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filed Writ Petition, being 5114 of 1996 in the High  

Court of Jammu and Kashmir, for a direction to the  

Authority  concerned  to  consider  and  promote  the  

Appellant to the rank of Inspector in recognition  

of  his  excellent  performance.   On  12th December,  

1996,  the  High  Court  through  an  interim  order  

directed the authorities to examine the Appellant’s  

case and to inform the Court of the decision taken  

on the basis of such examination.  Soon thereafter  

on  1st March,  1997,  militants  broke  into  the  

Appellant’s  house  and  killed  his  father.  

Recognising the fact that the Appellant had been  

discriminated against, the Superintendent of Police  

recommended that retrospective promotion be given  

to the Appellant from the date of the order passed  

in respect of Shaikh Hamidulla and Sub-Inspector  

Sonaullah.  However, nothing further materialized  

pursuant to the interim order passed by the High  

Court on 12.12.1996 and on 19th August, 2000, in  

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routine  course,  the  Appellant  was  granted  

promotion.      

7. Ultimately, the learned Single Judge dismissed  

the Appellant’s Writ Petition on 28th May, 2007, and  

the Letters Patent Appeal No.149 of 2007 was also  

dismissed by the Division Bench of the High Court  

on 23rd July, 2007.   

8. On behalf of the Appellant it was urged that he  

was duly covered by the Circular No.14-GR of 1990  

dated 6th March, 1990 and his claim to out-of-turn  

promotion was duly supported by the recommendations  

by the officers who were present when the Charare  

Sharif incidents took place.  It was submitted that  

the task performed by the Appellant at Chadoora was  

no less significant than the task performed by the  

Police personnel in Charare Sharif itself and there  

was, therefore, no reason to discriminate between  

the  Appellant  and  the  Station  House  Officer  of  

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Charare  Sharif,  particularly  when  both  had  been  

recommended  for  out-of-turn  promotion  by  the  

Superintendent  of  Police  (Operations)  and  the  

Senior Superintendent of Police, Budgam District,  

Kashmir.

9. On the other hand, it was submitted on behalf  

of  the  Respondent-State  that  the  case  of  the  

Appellant for out-of-turn promotion had been duly  

considered by the authorities at the highest levels  

and a decision was taken, considering the situation  

at the ground level on 10th and 11th May, 1995 when  

Charare Sharif town was gutted.  It was contended  

that the situation in Charare Sharif town itself  

and  in  Chadoora  were  different,  in  that,  within  

Charare Sharif town the Police were engaged with  

the militants directly as they had moved into the  

shrine  itself,  whereas  in  Chadoora  the  duty  

performed  on  the  said  two  days  was  one  of  

containment.  Regarding the incident at Badipora,  

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the same was also aimed against communal forces who  

were trying to burn down the temple, but the same  

also  involved  containment  and  not  a  direct  and  

active  confrontation  with  militants.   It  was  

submitted  that  in  the  different  circumstances,  

involving  the  S.H.O.  of  Charare  Sharif  and  the  

Appellant, it could not be said that the Appellant  

had  been  discriminated  against  in  the  matter  of  

out-of-turn promotion.     

10. Having  considered  the  submissions  made  on  

behalf of the parties and the materials on record,  

as also the judgments of the learned Single Judge  

and the Division Bench of the High Court, it does  

appear that the circumstances prevailing within the  

town  of  Charare  Sharif  and  in  Chadoora  were  

different during the disturbance and the decision  

to grant out-of-turn promotion to Shaikh Hamidulla,  

who was the Station House Officer, Charare Sharif,  

during those fateful days was fully justified.  In  

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the absence of any glaring discrepancy or bias in  

the decision-making process, ordinarily the Court  

does  not  normally  take  upon  itself  the  task  of  

making  a  subjective  assessment  of  an  officer’s  

performance in relation to matters of promotion and  

that too of the nature contemplated in the present  

case. However, at the same time, the Court is also  

entitled to consider the materials placed before it  

in order to arrive at a conclusion as to whether an  

injustice has been caused to the concerned officer.  

In the present case, both the Superintendent and  

Senior Superintendent of Police, Budgam District,  

had a chance to observe the Appellant’s performance  

on the ground on 10th and 11th of May, 1995, when the  

incident was actually taking place and they have  

recommended that the Appellant should be given out-

of-turn promotion.  The Director General of Police  

has also recognized the exemplary performance of  

the appellant.  All such recommendations seemed to  

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suggest  that  the  performance  of  the  Appellant  

merited  special  consideration.   Of  course,  the  

Appellant has already been promoted to the post of  

Inspector  on  19th August,  2000,  and  the  only  

question  which  now  survives  is  whether  such  

promotion should be given retrospective effect from  

the  date  on  which  Shaikh  Hamidulla  and  Sub-

Inspector Sonaullah were given such promotion.   

11. While  considering  the  Appellant’s  claim  for  

out-of-turn promotion or accelerated promotion in  

the Writ Petition filed by him, the learned Single  

Judge took special note of the condition, procedure  

and norms which provided that out-of-turn promotion  

would  be  considered  only  for  consistently  

exceptional  performance  on  the  anti-militancy  

front.  The learned Judge took note of the fact  

that except for two episodes, which, in any event,  

were performed in the usual course of duties, the  

same did not constitute any consistent exceptional  

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performance  on  the  part  of  the  Appellant  which  

would entitle him to out-of-turn promotion.  The  

said view was endorsed by the Division Bench while  

dismissing the Letters Patent Appeal filed by the  

Appellant herein.

12. Neither  the  learned  Single  Judge  nor  the  

Division Bench of the High Court appears to have  

given proper attention to the Circular No.14-GR of  

1990  dated  6th March,  1990,  in  relation  to  the  

recommendations  which  had  been  made  by  the  

Superintendent  and  the  Senior  Superintendent  of  

Police,  Budgam  District.   However,  the  final  

assessment  for  giving  out-of-turn  promotion  lay  

with Director General of Police and in his judgment  

a  cash  reward  of  Rs.2,000/-  was  felt  to  be  

appropriate  in  recognition  of  the  exemplary  

services rendered by the Appellant.

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13. However, from the materials on record it is  

quite  clear  that  the  claim  of  the  Appellant  is  

covered by the policy decision of the Government  

contained  in  Circular  No.14-GR  of  1990  dated  6th  

March,  1990,  which  provided  an  incentive  to  all  

Government employees to give their best performance  

of  duties  in  the  service  of  the  people  and  in  

meeting the challenge of the anti-national forces  

to  disturb  the  law  and  order  situation  in  the  

State.  It is only subsequently that on 6th January,  

2000, that a Government Order No.Home-3(P) of 2000  

was published by the State in its Home Department  

regarding the procedure for out-of-turn promotion  

in  the  Police  Department.   It  is  in  the  said  

circular that it has been indicated that out-of-

turn  promotion  could  be  considered  only  for  

consistently exceptional performance on the anti-

militancy front and that the recommendations of the  

Director General of Police, along with the dossier  

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of  the  concerned  employee,  along  with  other  

formalities and the extent of deviation from the  

seniority rule, would have to be placed before the  

Home Department Select Committee for consideration  

and  recommendation  which  would  then  be  placed  

before the Chief Minister with the prior approval  

of the Minister of State, Home Department.   

14. The aforesaid circular dated 6th January, 2000,  

directly links up out-of-turn promotion with the  

concept of consistently exceptional performance on  

the anti-militancy front, which did not figure in  

the  earlier  Circular  No.14-GR  of  1990  dated  6th  

March, 1990.  Both the learned Single Judge and the  

Division  Bench  appear  to  have  overlooked  the  

difference in the two different circulars and the  

decision of the learned Single Judge is based on  

the later Circular dated 6th January, 2000, while  

the Appellant’s claim is under the earlier Circular  

of 6th March, 1990, in relation to incidents which  

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had taken place prior to the promulgation of the  

Government Order dated 6th January, 2000.  In fact,  

in the Supplementary Affidavit filed on behalf of  

the State of Jammu and Kashmir on 3rd August, 2010,  

the said two circulars have been referred to and it  

has been submitted that the Circular of 6th January,  

2000,  had  been  issued  in  continuation  and  in  

addition to the Circular dated 6th March, 1990.  It  

has also been stated that since the Circular dated  

6th January,  2010,  was  issued  subsequent  to  the  

circular issued in the year 1990, cases which have  

occurred after the issuance of the 2000 Circular  

would  be  subject  to  the  same.   It  has  been  

categorically stated that the case of the Appellant  

belongs to the period prior to the issuance of the  

2000 Circular and, therefore, he would be governed  

by the 1990 Circular.  Of course, it has also been  

submitted that the said Circular dated 6th March,  

1990,  does  not  confer  any  legal  right  on  the  

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Appellant nor does it cast any obligation on the  

State of Jammu and Kashmir, since it was only an  

internal  guideline  which  authorized  the  State  

Government to grant out-of-turn promotion in cases  

where the officials of the Jammu and Kashmir Police  

display  exemplary  bravery  and  courage  in  

confronting  terrorists,  militants  and  insurgents.  

In the said affidavit it has been sought to be  

justified that the case of the Appellant did not  

merit out-of-turn promotion and he deserved a cash  

reward which had been duly awarded to him.   

15. It is clear that the Respondent State of Jammu  

and Kashmir is also alive to the fact that the  

claim of the Appellant has to be considered in the  

light of the earlier Circular dated 6th March, 1990,  

and  not  by  the  subsequent  Circular  dated  6th  

January, 2000.   

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16. In these circumstances, we are of the view that  

the Appellant’s claim for out-of-turn promotion, on  

the  basis  of  the  facts  disclosed,  require  

reconsideration in the light of the Circular dated  

6th March,  1990,  and  not  the  Circular  dated  6th  

January, 2000, as has been sought to be done in his  

case.

17. Accordingly, we set aside the orders passed by  

the learned Single Judge and the Division Bench of  

the High Court and direct that the case of the  

Appellant  be  reconsidered  by  the  concerned  

Respondents in accordance with the Circular No.14-

GR of 1990 dated 6th March, 1990, for the purpose of  

granting  retrospective  effect  to  the  promotion  

already granted to him on 19th August, 2000, and if  

such  retrospective  effect  is  given,  to  consider  

such other benefits that he may, thereafter, become  

entitled  to  in  accordance  with  law.   The  said  

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exercise should be completed within three months  

from the date of communication of this order.

18. The appeals are allowed.   

19. There will be no order as to costs.  

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 31.03.2011

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