Special Police Officers Don't Hold Civil Posts Regulated By Statutory Rules, Not Entitled To Service Conditions Of Regular Officers: J&K High Court

Dismissing a petition filed by SPO Aijaz Rashid Khanday, who had challenged his disengagement from service Justice Sanjay Dhar cited Section 18 & 19 of the Police Act and observed,

“.. Engagement of SPOs is not of a permanent nature but it is only to take care of a particular contingency… The said provision cannot be interpreted in a manner so as to extend even the powers, privileges and protections relating to service conditions of an ordinary police officer to the SPOs, who, admittedly, do not hold any civil posts regulated by any Statutory rules. Therefore, they are not entitled to any protection as afforded to ordinary police officers under Police Rules or Civil Service Regulations”.

Khanday, engaged as an SPO in 2014, was disengaged from service on March 27, 2019, due to unauthorized absence from duty starting October 3, 2018. The petitioner claimed he had received life threats from militants, particularly during the tumultuous period in South Kashmir in 2016, which forced him to stay away from duty. Despite attempts to resume his duties in February 2019, he was not allowed back, leading to his formal disengagement.

The petitioner argued that his disengagement violated the principles of natural justice as no enquiry was conducted nor was he given a hearing. He relied on Section 19 of the Police Act and the precedent set in Gh. Haider v. State of J&K arguing that SPOs should receive the same protections as regular police officers.

The respondents countered that SPOs are temporarily engaged on consolidated wages and are not entitled to the same service protections as regular police officers. They argued that the petitioner had shown cowardice by failing to perform his duties without informing his superiors, and there was no requirement for a departmental enquiry.

Court's Observations:

Justice Dhar upon examining the provisions of the Police Act, particularly Sections 18 and 19 observed that SPOs are appointed temporarily to handle specific contingencies such as riots or disturbances, and their engagement is not of a permanent nature.

The court explained that while Section 19 grants SPOs the same powers and privileges in operational duties as regular officers, it does not extend to service conditions since SPOs do not hold statutory civil posts.

Referencing State of J&K v. Mohammad Iqbal Malla where it was held that SPOs are not entitled to the same service protections as regular police officers the court pointed that the precedent was not considered in Gh. Haider v. State of J&K & Ors.; 2013, which the petitioner relied upon.

The court held that given the temporary nature of SPOs' engagement and their specific purpose, there was no obligation to conduct an enquiry or provide a hearing before disengagement. Furthermore, the petitioner's explanation of life threats was deemed insufficient and not credible.

“If the guardians of security of the common people abdicate their duties, then only God can save this Country. The ground projected by the petitioner for his absence from duty can by no stretch of imagination be termed as genuine”, the bench underscored while adding,

“Thus, even if an opportunity of hearing is given to the petitioner, the same would be an empty formality and it would not improve his case in any manner. The principles of natural justice do not operate in vacuum. Once the facts are evident, it would be an exercise in futility to give an opportunity of hearing to the petitioner”.

The court concluded that the disengagement order against the petitioner was lawful and did not suffer from any legal infirmity. The petition was accordingly dismissed.

Case Title: AIJAZ RASHID KHANDAY Vs STATE OF J&K AND OTHERS

Citation: 2024 LiveLaw (JKL) 194

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