1 S. No. 46 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No.3144/2023 CM No.7506/2023 ROUF AHMAD BHAT AND ORS. …Petitioner(s) Through: Mr. Younis Ahad, Advocate. Vs. UT OF J&K AND ORS ...Respondent(s) Through: Mr. Mohsin Qadri, AAG. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 01.09.2025 (ORAL) 1. The petitioners herein have maintained the instant petition under Article 226 of the Constitution and have sought the following reliefs: - A. Writ of Certiorari quashing the impugned order No.866/2018 dated 20.09.2018 issued by the Superintendent of Police District Pulwama. B. Writ of Mandamus commanding the respondents to re-engage the petitioners as the Special Police Officers as they were engaged prior to the passing of the disengagement order. 2. Facts emerging from the record would reveal that the petitioners 1 and 2 came to be engaged as Special Police Officers (SPOs) vide Order No.466/2018 dated 10.12.2016 issued by Superintendent of Police, Pulwama/respondent 4 herein and posted in District Pulwama, whereas the petitioner 3 came to be engaged as SPO vide Order No.97/2016, dated 07.03.2017 also issued by the Superintendent of Police, Pulwama/ respondent 4 herein, and during their working as such, the respondent 4, alongwith other SPO’s in terms of Order No.866 dated 20.09.2018 ordered disengagement of the petitioners from the roles of SPOs, wherein the petitioners figured at Serial Nos. 5,11 and 12 for having remained absent from duty with effect from 26.06.2018 and 29.06.2018 respectively. 3. The petitioners have challenged the said order dated 20.09.2018 inter- alia on the grounds that they were disengaged without issuance of a 2 show cause notice as also overlooking the fact that petitioners have had reported to the respondents about the threats extended to them by the terrorists of the area as well as the fact that one similarly situated SPO from the village of the petitioners have had been killed by the terrorists. 4. Reply to the petition has been filed by respondents wherein the petition is being opposed however, admitting the fact that the petitioners were engaged as SPOs on 10.12.2016 and 07.03.2017 respectively, whereafter the petitioners absented from duties whereupon their disengagement came to be recommended by the then Dy.SP DAR Pulwama vide letter dated 15.09.2018, as a consequence whereof the petitioners came to be disengaged in terms of order under challenge and that since the petitioners remained absent without authorization in breach of conditions of their engagement and since the SPO’s do not hold any civil post as such, there was no obligation upon the respondents either to conduct an inquiry against the petitioners or provide them an opportunity of hearing before disengagement. Heard counsel for the parties and perused the record. 5. It is significant to mention here that engagement of an SPO inasmuch as matter related thereto including their powers, privileges, protection, and duties are provided under Sections 18, 19, and 20 of the Police Act SVT 1983, which for the sake of brevity and convenience are extracted hereunder: - 18. Special Police Officers- When it shall appear that any unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the Police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any Police Officer not below the rank of Inspector to apply to the nearest Magistrate to appoint so many of the residents of the neighbourhood as such Police Officer may require to act as Special Police Officers for such time and within such limits as he shall deem necessary; and the Magistrate to whom such 3 application is made shall unless he see cause to the contrary comply with the application. 19. Powers of 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 Police. 20. Refusal to serve as Special Police Officers- If any person being appointed a Special Police Officer as aforesaid shall, without sufficient excuse, neglect or refuse to serve as such, or to obey such lawful order or direction as may be given to him for the performance of his duties, he shall be liable, upon conviction before a Judicial Magistrate to a fine not exceeding fifty rupees for every such neglect, refusal or disobedience. 6. Keeping in mind the aforesaid provisions of the Act and reverting back to the case at hand, it is not in dispute that the petitioners were engaged by respondents as SPOs pursuant to their respective engagement orders issued by the respondent 4 herein. Admittedly, the disengagement of the petitioners has been ordered by respondent 4 herein upon the recommendation of respondent 5 herein on the ground that the petitioners have absented from duties. 7. Since Section 19 Supra of the Act specifically provides that every SPO 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 subordinate to the same authorities as the ordinary police officers of the Police, thus the same suggests that an SPO, even though not holding a post under the Police Act SVT 1983, yet is entitled to the same protection and amenable to the same penalties as ordinary officers of the Police. Although under Section 20 supra SPO could also be proceeded against, in the event the SPO refuses to serve as SPO rendering him liable for conviction before a Judicial Magistrate to a fine not exceeding of Rs 50 for every such negligent, refusal or disobedience, yet, it cannot, in law, be contemplated that the SPO, if sought to be disengaged, would not be entitled to a show cause notice if not to be subjected to an enquiry under the Act and rules framed thereunder, in that, as the issuance of a 4 show cause notice before issuing an order which is prejudicial to the rights and interests of a person has been held to be based upon legal sound doctrine of Audi Alteram Partem, which doctrine inter-alia provides that no person should be condemned unheard, in that, the right to hear would mean that party must know the cause he or she has to meet and must have a reasonable opportunity to present his or her case and the said requirement of issuance of show cause notice as also affording an opportunity of hearing has been held to be flowing directly from the said doctrine of Audi Alteram Partem. A reference in this regard to the judgment of the Apex Court passed in case titled as “Dharampal Satampal Limited Vs. Deputy Commissioner of Central” reported in 2015 (8) SCC 519 would be relevant wherein, at paras 21, 24, and 28, following has been held: - [21. In common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision-making by judicial and quasi-judicial bodies, has assumed a different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must give (sic an opportunity) to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as “natural justice”. The principles of natural justice developed over a period of time and which is still in vogue and valid even today are: (i) rule against bias i.e. nemo debet esse judex in propria sua causa; and (ii) opportunity of being heard to the party concerned i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is the duty to give reasons in support of decision, namely, passing of a “reasoned order”. “24. The principles have a sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide a great humanizing factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take an administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision-making that a 5 decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong.” “28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.”] 8. Having regard to the aforesaid position of law, inasmuch as the facts of the case emerging from the record available on the file, the only escapable conclusion that could be drawn is that the respondents indeed have violated the basic fundamental principle of natural justice while ordering disengagement of the petitioner as SPO having condemned the petitioner unheard. 9. Viewed thus, the instant petition succeeds as a consequence whereof the impugned Order No.866 dated 20.09.2018 is quashed as a corollary whereof respondents are directed to reinstate the petitioners as SPOs with liberty to revisit and reconsider the unauthorized absence of the case of the petitioners issuing show cause notice to the petitioners and providing them an adequate opportunity of hearing. 10. Let needful be done within a period of eight weeks from the date a copy of this order is produced by the petitioners before the respondent. 11. Disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR 01.09.2025 Ishaq Whether the judgement is speaking ? Yes Whether approved for reporting ? Yes