Page | 1 WP(C) 2402/2023 Serial No. 42 Regular Cause list HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) 2402/2023 CM(5894/2024) CM(5672/2023) 1. Faisal Rashid Shah Aged 32 Years S/O Abdul Rashid Shah (Late) R/O Panzth Wanpora Qazigund District Anantnag …Appellant(s)/Petitioner(s) Through: Mr. M.A Beigh, Advocate Vs. 1. Union Territory of J&K Through Commissioner Secretary Home Department Civil Sectt. Srinagar/Jammu. 2. Director General of Police Jammu and Kashmir Jammu/Srinagar. 3. Inspector General of Police Kashmir Zone Srinagar. 4. SSP Anantnag. 5. Dy.SP DAR DPL Anantnag. ...Respondent(s) Through: Ms. Nadiya Abdullah, Advocate CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE. JUDGMENT 05.08.2025 1. By this petition, petitioner herein has challenged the order 1347/2018 dated 13.08.2018 issued by respondent No. 4, whereby petitioner has been disengaged as SPO, without affording an opportunity of being heard. It is further contended by the petitioner that the respondents be directed to reinstate the petitioner as SPO along with all the benefits and emoluments. Factual Matrix of the Case: 2. The petitioner was engaged as SPO in J&K Police vide order No. 1211/2016 dated 12.12.2016 issued by SSP Anantnag (respondent No. 4 herein) on the basis of selection made by the competent authority. He performed his duties till 22.07.2018. 3. It is stated that the petitioner’s father was also working as Assistant Sub-inspector in the Police Department. He was active in Page | 2 WP(C) 2402/2023 Anti-militancy operations and because of this reason he was killed by militants, while in active service. 4. The petitioner could not attend his duties from 22.07.2018 till 10.08.2018. He approached the respondent No. 5, requesting him that he be allowed to resume his duties. His application was entertained and the report was sought from SHO, Police Station Qazigund, to the extent, as to whether the petitioner was involved in any illegal activities during his absence from 22.07.2018 to 10.08.2018. The respondent on receiving a detailed report from SHO concerned, considered the same and allowed the petitioner to resume his duties, with effect from 11.08.2018. The petitioner resumed his duties, but at his back the impugned order dated 13.08.2018, came to be issued by respondent No. 4, whereby the petitioner was disengaged with effect from his unauthorized absence from duties i.e. 22.07.2018. 5. The petitioner submits that he was pursuing his case with the higher authorities for conciliation of his disengagement order dated 13.08.2018, and in this regard he also filed number of representations, but no heed was paid to the representations filed by the petitioner as well as by his mother. 6. It is further stated that the petitioner was following his case but unfortunately due to abrogation of Article 370 on 05.08.2019, he could not approach the concerned offices because of law and order problem and thereafter also because of outbreak of Covid-19 in the country, it was not possible for him to pursue his case. 7. The respondents instead of cancelling or withdrawing the order of disengagement dated 13.08.2018, recommended the case of the petitioner in terms of communication dated 27.03.2021, whereby the SSP Anantnag had made a request to Inspector General of Police Kashmir Zone for re-engagement of the petitioner as SPO, after Page | 3 WP(C) 2402/2023 relaxation of his upper age bar. The Inspector General of Police Kashmir Zone vide communication 20.04.2021 also had taken the matter with the Director General of Police J&K, with the request for relaxation of upper age limit in favour of the petitioner for his re- engagement as SPO. 8. The petitioner states that the impugned order of disengagement has been passed in violation of Police Act 1983, as the engagement of SPO is governed by Section 18 and 19 of the Police Act 1983. Moreover, respondents were under an obligation to hold an enquiry, thereby providing a chance of hearing to the petitioner before passing the impugned order dated 13.08.2018. The respondents have not even taken into account the report submitted by SHO concerned. 9. Per contra, in the reply filed by the respondents, it is stated that the petitioner choose to remain absent without any intimation to his immediate senior officer. It is further stated that the respondent No. 5 after receiving a detailed report from concerned SHO allowed the petitioner to resume his duties with effect from 11.08.2018, but the petitioner chose not to resume his duties. Moreover, respondent No. 4 vide letter dated 27.03.2021 had only forwarded/resubmitted the case of the petitioner to respondent No. 3, without making any recommendation for re-engagement as SPO, as claimed by the petitioner. However the case of the petitioner for his re-engagement as SPO was not considered by PHQ Jammu and Kashmir, being over aged. 10. Heard learned counsel for the parties and perused the material on record. 11. The petitioner has challenged the impugned order dated 13.08.2018, primarily on the ground that SPOs’ appointed under the Police Manual are entitled to same powers, privileges and protection as Page | 4 WP(C) 2402/2023 are enjoyed by an ordinary officer of the police force, in terms of Rule 19 of the Manual. 12. Section 19 of the Police Act 1983, (“the Police Act” for short), deals with the powers, privileges, protection and duties of SPOs’. It reads as: 19. “Special Police Officers:- Every Special Police Officer so appointed shall have the same powers, privileges and protection and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary Officers of the Police.” 13. Rule 359 of J&K Police Rules, 1960 provides that a delinquent police official must be given an opportunity to meet the charges leveled against him. Sub-Rule (11) (2) of the said Rule specifically provides that said official has to be given a reasonable opportunity of showing cause orally and in writing against the proposed penalty. It reads thus: “359. Procedure in departmental enquiries (1) xxxxx xxxxx (11) (1) xxxxx (2) No police officer shall be dismissed or removed or reduced in rank until he had been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:- a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge; b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity. xxxxx xxxxx 14. Section 19 of the Police Act read with Sub-rule (11) (2) of Rule 359, clearly reflects that an SPO enjoys the same protection as an ordinary officer of police, holding a substantive post, his services Page | 5 WP(C) 2402/2023 cannot be disengaged unless he is provided a reasonable opportunity to show cause and to meet the charges leveled against him. 15. In this case, the petitioner has placed on record the report submitted by SHO Police Station Qazigund, as well as the communication dated 20.04.2021, whereby Director General of Police J&K has been requested to reengage the petitioner as SPO at District Anantnag after relaxation of upper age limit as a welfare measure to the martyr’s family. 16. Admittedly, there is nothing adverse in the report, which has been submitted by the SHO concerned. Moreover, respondents are also inclined to re-engage the petitioner. However, it was incumbent upon the respondents to follow principles of natural justice, thereby providing the petitioner an opportunity of being heard before passing impugned order of disengagement. Respondents have chosen not to conduct any enquiry or issuance of notice before disengaging the petitioner as SPO, as such the action on part of the respondents is not sustainable in the eyes of law. 17. This Court in SWP 2046/2015 titled “Dilshada Begum vs State of Jammu and Kashmir and Ors” decided on 13.03.2025, while taking note of the fact that the petitioner, SPO has been disengaged from service without an enquiry, has quashed the disengagement order and directed the respondents to reinstate the petitioner and hold an enquiry as per law occupying the field. 18. Similar decision has been reiterated by this Court in WP(C) 170/2022 titled “Nazir Ahmad vs UT of J&K and Ors”. 19. For the reasons given hereinabove, it can be said that disengagement of the petitioner from service has been ordered without providing any opportunity of being heard to the petitioner, before taking punitive action against him, even though, this would depend Page | 6 WP(C) 2402/2023 upon the facts and circumstances of each case. But, in the present case, facts clearly show that the petitioner has been condemned unheard and penalty of disengagement has been imposed upon him without affording him an opportunity of being heard. 20. In the foregoing reasons, the instant petition is allowed. Accordingly, order impugned dated 13.08.2018 is quashed. Respondents are directed to reinstate the petitioner as SPO, subject to the condition that he shall not be entitled to any monthly honorarium for the period he remained disengaged. However, respondents shall be at liberty to hold an enquiry against the petitioner, if required. (MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR: 05.08.2025 “Adil Ismail”  Whether the Judgment is Reportable? Yes/No.  Whether the Judgment is Speaking? Yes/No