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No Retrospective Effect can be given to Appointment where no Appointment Letter has been Issued: High Court of Jammu & Kashmir and Ladakh at Srinagar

The question as to whether retrospective effect should have been given to the appointment wherein criminal charges are levied, yet appointment letter was not issued, was examined by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR, consisting of HON’BLE MR JUSTICE ALI MOHAMMAD MAGREY, AND HON’BLE MR JUSTICE MOHD. AKRAM CHOWDHARY, in the matter of Bashir Ahmad Parray vs. State of J&K and Ors. [LPASW No. 139/2018], on 21.12.21.

The facts of the case were that the appellant had been selected as a candidate for the post of Constable in the respondent’s Department, however the issuance of appointment letter had been withheld owing to an FIR having been filed against him. Aggrieved, the petitioner approached the Court in a petition seeking direction to the respondent to confirm selection owing to the fact that the appellant had been acquitted in the criminal case by a court of competent jurisdiction, and was therefore eligible to be considered to be selected. Accordingly, the Court allowed the petition and directed the respondents to consider the application, in compliance of which, post consideration, the appellant was appointed. Subsequently, the appellant sought retrospective effect to the appointment, and upon seeing no action being taken towards such effect, he filed a petition stating that he had been acquitted of the criminal charges, and therefore is entitled to retrospective effect of employment. Upon directions from the court, the respondents considered the matter, the rejected the claim for retrospective effect. The appellant thus approached the Court, which dismissed the application of the appellant. Aggrieved by the order, the appellants have appealed intra-court presently, praying that the rejection is a result of non-application of mind on the part of the respondents, and that the order suffered from lack of consideration of his acquittal.

The Honourable High Court of Jammu & Kashmir and Ladakh at Srinagar, after a thorough perusal of the facts, records, as well as upon hearing the counsels for both parties, arrived at the decision that the respondents had complied with the directions of the Courts adequately, and as the issuance of appointment letter had not been effectuated until post the order of the Court, retrospective effect of employment would not be a valid claim. Additionally, the Court took into account the employment of others and the discharging of duties, in order to conclude that such retrospective effect, if allowed, would impact the rights and interests of other employees negatively. Further, the Court acknowledged that the Police Force, being a profession of integrity, the respondents’ scrutiny and hesitation in appointment of an official with criminal charges alleged was justified, and not erroneous or arbitrary.

It was held that no illegality or perversity could be found in the impugned judgment passed by the learned Single Judge as would warrant its interference from the Court Therefore, the Court accordingly dismissed the petition.

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Judgement reviewed by Bhargavi

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