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DHEERAJ SHARMA v. JAMMU & KASHMIR POLICE

Central Administrative Tribunal
Jul 28, 2021
Smart Summary (Beta)

Concise Analytical Summary of the Opinion: T.A. No. 62/864/2021 (Central Administrative Tribunal, Jammu Bench)

Factual and Procedural Background

The applicants (Dheeraj Sharma and others) challenged Government Order No. 891-Home of 2018 dated 10.07.2018 which created 151 posts of Wireless Assistant and engaged 151 ousted Wireless Operators (private respondents). The applicants contend that the impugned order is violative of Articles 14, 15 and 16 of the Constitution because the appointed private respondents have less merit than the applicants and were treated as a separate class to the applicants who had participated in the same selection process.

Procedural history expressly stated in the opinion: the original selection for Constable (Operator) followed Advertisement dated 09.03.2007 and a PHQ order dated 01.08.2009 (No. 2844-2609) operating at district level; that selection was set aside by the Hon'ble High Court by order dated 09.05.2014 and the respondents were directed to reframe the select list. A Review Application against the High Court order was disposed of on 25.02.2015. The private respondents had been appointed subject to the outcome of writ petitions; interim orders in those writ petitions allowed the private respondents to continue in service until further orders. The applicants moved the Tribunal seeking (i) quashing of Government Order No. 891-Home of 2018 dated 10.07.2018, and (ii) mandamus directing respondents to consider and appoint the applicants against the post of Wireless Assistant.

Legal Issues Presented

  1. Whether Government Order No. 891-Home of 2018 dated 10.07.2018 (creating 151 posts of Wireless Assistants and engaging ousted Wireless Operators) is violative of Article 14 and Article 16 of the Constitution of India.
  2. Whether the applicants have locus standi to challenge the impugned Government Order in public employment matters.
  3. Whether classification of the private respondents as a separate class (for purposes of employment) satisfies the Article 14 test of intelligible differentia and rational nexus to the object sought to be achieved.
  4. Whether appointments made without issuing advertisement and without a proper selection process violate Article 16.

Arguments of the Parties

Applicants' Arguments

  • The impugned Government Order No. 891-Home of 2018 dated 10.07.2018 is arbitrary and discriminatory and should be quashed as violative of Articles 14, 15 and 16 of the Constitution.
  • The private respondents and applicants were similarly situated, having participated in the same selection process; creating a separate class for the private respondents lacks an intelligible differentia and rational nexus to the object sought to be achieved.
  • The Government did not issue any advertisement for appointment to these posts; direct appointments without advertisement discriminate and violate Article 16.
  • The applicants asserted locus standi to challenge the order on the basis that public employment procedures must adhere to Articles 14 and 16 and a member of public can challenge systemic violations.

Respondents' Arguments (Official Respondents and Private Respondents)

  • Private respondents argued the applicants have no locus standi to challenge the impugned Government Order because the private respondents were engaged following earlier practices and interim protection by courts; their selection did not involve fraud or misrepresentation on their part.
  • The Administration/official respondents advanced reasons relied upon in the Cabinet decision and in their counter affidavit to justify classification and appointment. These included (as listed in the opinion): (1) the ousted candidates underwent a proper selection process conducted by PHQ; (2) ousted candidates were placed in the relevant grade of Constable Operators and were drawing salary; (3) they had undergone required training under Police Rules, 1960; (4) the State had invested in them by providing training and so it was in the larger interest of the State to appoint them; (5) the illegality in making selections/appointments at district level was not attributable to the ousted candidates; (6) many ousted candidates may have crossed upper age limit and may be ineligible for fresh recruitment; and (7) ouster worked harshly for the candidates and their families.
  • Respondents contended that the private respondents formed a separate, reasonable class distinguished from applicants by intelligible differentia and rational relation to the objective, and that compassionate considerations and long service (including training and salary drawn) supported sustaining the impugned order.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 Adherence to Articles 14 and 16 in public employment; a member of the public has standing to challenge Executive practices that flagrantly violate constitutional limitations. The Tribunal relied on Umadevi to hold that applicants have locus standi to challenge the impugned Government Order and to underscore that Articles 14 and 16 are mandatory in the process of public employment.
Pratap Kishore Panda v. Agni Charan Das, (2018) 1 SCC (L&S) 371 Umadevi doctrine: equities will not apply where employment is contrary to statutory provisions and rules; long service does not validate an illegal appointment. The Court applied this principle to reject the argument that long service or compassionate considerations should preserve appointments that are contrary to law.
D.S. Nakara v. Union of India, (1983) 1 SCC 305 Test for permissible classification under Article 14: (1) intelligible differentia, and (2) rational nexus to the object sought to be achieved. The Tribunal read this authority (with advantage) to evaluate whether the classification that separated private respondents from applicants met the Article 14 test; it found the classification deficient.
State of J&K v. Triloki Nath Khosa, 1974 (1) SCC 19 Principles concerning reasonable classification under Article 14 (cited alongside D.S. Nakara). Used in conjunction with D.S. Nakara to frame the Article 14 classification test applied by the Tribunal.
Arbind Kumar v. State of Jharkhand, (2016) (citation in text) Beneficiaries cannot blame appointing authority and claim that illegal appointment should continue; illegal appointments should not be perpetuated. The Tribunal relied on the observation to reject sympathy-based pleas that would perpetuate appointments set aside by court.
Rajesh Kumar v. State of Bihar, 2013 (4) SCC 690 Where appellants are innocent parties who did not indulge in fraud and served for several years, ouster may not be inevitable. The Tribunal noted the decision but distinguished it as factually different and concluded private respondents contributed to their predicament by accepting appointments subject to writ outcomes.
Tejinder Kaur v. Lady Constable Raj Kumari, (2009) 1 SCC 177 Equity in particular factual situations may warrant preserving benefits extended to candidates who had completed required training. The Tribunal observed the case but held it was factually different and not determinative in the present matter.
Sahil Aggarwal v. State of Punjab, 2014 (P&H) Appointments based on errors in answer keys need not be set aside if candidates worked for three years unless guilty of fraud or misrepresentation (as per cited state decision). The Tribunal noted the authority but found it factually distinguishable and held that private respondents had accepted appointments subject to writ outcomes, affecting their claim.
R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 Rights to salary, pension and other service benefits flow from a valid appointment; if an appointment is illegal, no statutory right to salary/pension arises. The Tribunal invoked this authority to support the principle that salaries and other benefits do not validate an appointment that is non est in law.
Rita Mishra v. Director, Primary Education, Bihar (Full Bench, cited in R. Vishwanatha Pillai) Full Bench view that salary, pension and other benefits are statutory and derive from a valid appointment; illegal appointments do not give rise to such entitlements. Cited (via R. Vishwanatha Pillai) to reinforce that payments made do not legalize an appointment that is otherwise illegal.
Union Public Service Commission v. Girish Jayanti Lal Vaghela, AIR 2006 SC 1165 Article 16 requires proper advertisement and a fair selection process; regular appointment without advertisement/selection violates Article 16. The Tribunal relied on this authority to hold that appointments made without advertisement and without a proper selection process violated Article 16 and supported striking down the impugned order.
Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, (1978) 1 SCC 405 Principle that the impugned order must state reasons; reasons cannot be supplemented solely by counter affidavits (cited in context of applicants' submission). The Tribunal noted the applicants' reliance on this authority in arguing that the impugned order did not give reasons and could not be supplemented by counter affidavits.

Court's Reasoning and Analysis

The Tribunal undertook a step-by-step analysis, as recorded in the opinion:

  1. Standing (Locus Standi): The Tribunal accepted that the applicants have locus standi to challenge the Government Order in public employment matters, relying on the principle in Secretary, State of Karnataka v. Umadevi that members of the public can challenge systematic violations of Articles 14 and 16.
  2. Consideration of Compassion/Equity: The Tribunal considered respondents' contention that private respondents had served for years and that it would be unjust to deprive them of employment. The Tribunal rejected this equitable plea for two principal reasons given in the opinion: (a) the private respondents were permitted to continue in service subject to the outcome of writ petitions and therefore consciously ran the risk of being turned out of service if writs were decided against them (they "cannot approbate and reprobate at the same time"); and (b) prevailing jurisprudence (Pratap Kishore Panda and Umadevi doctrine) holds that equities do not validate employment that is contrary to statutory provisions or rules.
  3. Validity of Classification under Article 14: The Tribunal articulated the twofold test for classification under Article 14 (intelligible differentia and rational nexus to the object) drawing on D.S. Nakara and Triloki Nath Khosa. It then examined whether the Government Order legitimately classified the private respondents as a separate class. The Tribunal found no intelligible differentia or rational nexus justifying separating private respondents (who had participated in the same selection process) from the applicants. The reasons relied upon by respondents for classification were characterized as artificially created due to the State's inaction (failure to take immediate remedial action after the High Court decision), and therefore the classification was unjust and unreasonable.
  4. Effect of Earlier Quashing of Selection: The Tribunal noted that the original selection list of 2009 had been quashed by the High Court in 2014; hence the contention that the selection was free of fraud or misrepresentation was rejected as inconsistent with the quashing order. The Tribunal cited Arbind Kumar to underscore that illegal appointments should not be perpetuated even if the appointees were 'victims' of appointing authorities.
  5. Impact of Salaries and Training: The Tribunal addressed respondents' reliance on salary drawn and training undergone by private respondents, invoking R. Vishwanatha Pillai (and the Patna Full Bench in Rita Mishra) to conclude that salary/pension/benefits arise only from valid appointments; payments or training do not validate appointments that are illegal.
  6. Article 16 and Advertisement/Procedure: The Tribunal applied the principle from UPSC v. Vaghela that appointments to public posts must normally follow advertisement and fair selection; appointments made without advertisement or a proper selection process were held to violate Article 16.
  7. Conclusion of Analysis: On the cumulative application of the above principles and precedents, the Tribunal concluded that the impugned Government Order created an unreasonable and discriminatory classification and that appointments made without following the recruitment/advertisement process violated Article 16. The impugned order therefore could not be sustained.

Holding and Implications

Holding: For the reasons recorded, the Tribunal set aside the Government Order No. 891-Home of 2018 dated 10.07.2018 as discriminatory and violative of Articles 14 and 16 of the Constitution of India, and declared it invalid. The Transfer Application (T.A.) was accordingly disposed of.

Implications / Consequences:

  • The direct legal consequence is that Government Order No. 891-Home of 2018 dated 10.07.2018 is invalidated and consequently the appointments under that order cannot stand in law pursuant to the Tribunal's order.
  • The Tribunal left it to the Government to proceed further "in accordance with law" (i.e., the State may take further lawful steps consistent with this order and applicable law and rules).
  • The Tribunal ordered no costs.

The opinion did not state any broader doctrine or new precedent being laid down beyond its application of existing authorities; it confined itself to applying established principles on locus standi, Article 14 classification, and Article 16 recruitment procedure to the facts before it.

Show all summary ...

:: 1 :: T.A No. 62/864/2021 (Reserved)

CENTRAL ADMINISTRATIVE TRIBUNAL

JAMMU BENCH, JAMMU

Hearing through video conferencing T.A. 62/864/2021

Pronounced on: This the 28thday of July 2021 HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J) HON'BLE MR. ANAND MATHUR, MEMBER (A)

1. Dheeraj Sharma Age 32 years S/o Sh. Tilak Raj Panotra R/o Village Chan Morian , Tehsil Hiranagar District Kathua

2. Sunil Kumar Sharma Age 32 years S/o Sh. Sardari Lal

R/o Village Sanoora,

Tehsil & District Samba

3. Parveen Kumar Age 38 years S/o Sh. Raj Kumar

R/o Village Chhan Malagran, P.O. Jatwal Tehsil Hiranagar, District Kathua

4. Sumit Sharma Age 31 years S/o Sh. Tarsem Raj

R/o Village Jasath,

Tehsil Hiranagar, District Kathua

5. Arun Sangra Age 29 years S/o Sh. Suresh Kumar R/o Village Kootah, Tehsil Hiranagar, District Kathua

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:: 2 :: T.A No. 62/864/2021 .......................Applicants (Advocate: Mr. Manish Chopra) Versus

1. State of J&K through Principal Secretary to J&K Government Civil Secretariat, Home Department, Srinagar.

2. Director General of Police, J&K Government, Srinagar

3. Inspector General of Police, Kashmir Range, Srinagar

4. Inspector General of Police, Jammu Range, Jammu

5. Umar Jam Beigh S/o Habib-ullah Beigh R/o Devi Angan Hariparbat District Srinagar

6. Irfan Ahmed Mir S/o Late Gh. Nabi Mir R/o Malik Sahib Gojwara District Srinagar

7. Tanvir Ahmed Qureshi S/o Fayaz Ah. Qureshi R/o Allochibagh Shallpora District Srinagar

8. Shabir Ahmad Ganai S/o Ab. Ahad R/o Gupt Ganga Ishber Nishat District Srinagar

9. Bilal Ahmed Bhat S/o Gulam Mohammad Bhat R/o Tilwani Mohallah Harwan District Srinagar

10. Basharat Ahmad Mir S/o Gh. Mohd Mir R/o Upper Brane Nishat Ranagar District Srinagar

11. Uzair Bashir S/o Bashir Ahmad Najar R/o Solina Payeen District Srinagar

12. Zahoor Ahmad Bhat S/o Naseer Ahmad Bhat R/o Pati Brane District Srinagar

13. Rameez Raja S/o Late Ali Mohd Hajam R/o Magarmal Bagh Government Flat District Srinagar

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14. Jasbir Singh S/o Harcharan Singh R/o Tulsi Bagh Opposite M-5 District Srinagar

15. Diber Mohd Saleem S/o Ab. Samad Sofi R/o Malabagh District Srinagar

16. Nahid Ahmad Dar S/o Shabir Ahmad Dar R/o Basant Bagh District Srinagar

17. Adiel Hassan Mir S/o Ghulam Hassan Mir R/o Sadura Dooru District Anantnag

18. Sajad Ahmad Bhat S/o Gh Mustafa Bhat R/o Arwani Bijbehara District Anantnag

19. Bilal Ahmad Khan S/o Mushtaq Ahmad Khan R/o Hamandi Liver Pahalgam District Anantnag

20. Aabid Hussain Bhat S/o Abdul Hamid Bhat R/o Tailwani, District Anantnag

21. Syed Faheem Hussain S/o Syed Mohd Farooq R/o Sagam District Anantnag

22. Shakil Abdullah Shah S/o Mohd. Abdullah R/o Ganoorah, District Anantnag

23. Mohd Asif Bhat S/o Gh Nabi Bhat R/o Hugam, District Anantnag

24. Mudasir Ahmad Wani S/o Ghulam Nabi Wani R/o Shangas District Anantnag

25. Mohd. Hussain Ganie S/o Assadullah Ganie R/o Shangas District Anantnag

26. Salama Yaqoob D/o Mohd Yaqoob Sheikh R/o Hardu Shichen District Anantnag

27. Shabir Ahmad Malik S/o Mohd. Munwar Malik R/o Gani Gund Dooru District Anantnag

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28. Shahnawaz Ahmad Malik S/o Gh. Rasool Malik R/o Okingam District Anantnag

29. Ashaq Hussain Lone S/o Ab. Hamid Lone R/o Kullo Nowgam District Anantnag

30. Muzafar Ahmad Bhat S/o Mohd. Anwar Bhat R/o Hunomanpora Phalgam District Anantnag

31. Aabid Hussain Bhat S/o Gh Rasool Bhat R/o Shangus District Anantnag

32. Peer Zada Murtaza Ahmad S/o Peer Zada Sonaullah R/o Nanil District Anantnag

33. Muzaffar Ahmad Chopan S/o Mohd Sultan Chopan R/o Lalan District Anantnag

34. Shabir Ahmad Sheikh S/o Nazir Ahmad R/o Kokagund Verinag Dooru District Anantnag

35. Showkat Ahmad Rather S/o Habib Rather R/o Loui Seer Phalgam District Anantnag

36. Mohmad Rafi Khan S/o Gh. Rasool Khan R/o Losi Seer Pahalgam District Anantnag

37. Bilal Ahmad Naik S/o Mohammad Ayoub Naik R/o Asnoor District Kulgam

38. Sajad Ahamd Dar S/o Mohd Ramzan Dar R/o Checkpora District Kulgam

39. Usman Yousuf Wani S/o Mohd. Yousuf Wani R/o Yamrach District Kulgam

40. Bilal Bashir S/o Bashir Ahmad Mir R/o Chansar District Kulgam

41. Asif Mohi-Ud-Din Tak S/o Gh Mohui-Ud-Din Tak R/o Yaripora Kulgam

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42. Hilal Ayoub Shah S/o Mohd Ayoub Shah R/o Balsoo District Kulgam

43. Mohd Amin Bhat S/o Mohd Ismail Bhat R/o Qaimoh District Kulgam

44. Shabir Ahmad Bhat S/o Mohd Afzal Bhat R/o Yamrach District Kulgam

45. Arshid Abass Mir S/o Gh Mohd Mir R/o Zangalpora

46. Parvaiz Ahmad Lone S/o Gh Mohd Lone R/o Bogand District Kulgam

47. Aijaz Hussain Mir S/o Nazir Ahmad R/o Bumthan District Kulgam

48. Mohd. Ashraf Lone S/o Gh. Hassan Lone R/o Shapora Tral District Pulwama

49. Mohd Amin Reshi S/o Gh. Hassan Lone R/o Shapora Tral District Pulwama

50. Sartaj Habib S/o Habib Ullah Bhat R/o Zainapora District Shopian

51. Irfan Ahmad Shah S/o Nazir Ahmad Shah R/o Sangran District Shopian

52. Manzoor Ahmad Dar S/o Mohd Ahsan Dar R/o Gatipora District Shopian

53. Parvaiz Ahmad Wani S/o Gh. Rasool Wani R/o Mugalpora District Shopian

54. Zulifqar Ahmad Mir S/o Gh Ali Mir R/o Kerana Manloo District Shopian

55. Tahiq Ahmad Wani S/o Gh. Mohd Wani R/o Largam District Shopian

56. Jamsheed Iqbal Khan S/o Bashir Ahmad Khan R/o Kariwa Zewoora District Shopian

57. Mohd Iqbal Wani S/o Ahmad Ullah Wani R/o Agglar District Shopian

58. Tariq Ahmad Wani S/o Gh Mohi-ud-Din R/o Wachi District Shopian

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59. Ishfaq Hussain Shah S/o Mohd Sadiq Shah R/o Sugoo Handhama District Shopian

60. Ajay Sudan S/o Ashok Kumar R/o Jandial Thati Tehsil District Jammu

61. Nitish Sharma S/o Mohan Lal Sharma R/o Khojipur Bishnah District Jammu

62. Ajeeb Singh S/o Rasal Singh R/o Dumi Bahera Tehsil & District Jammu

63. Varinder Singh S/o Ram Singh R/o Kandoli Nagrota Tehsil & District Jammu

64. Deepak Sharma S/o Nanak Dev Sharma R/o Lower Gadi Garh Tehsil & District Jammu

65. Arun Kumar S/o Bishan Dass R/o Seri Panditan Tehsil & District Jammu

66. Tanveer Singh Chib S/o Late Parlad Singh R/o H.No. 97 Narwal Pain Tehsil & District Jammu

67. Jitendar Singh S/o Jagetter Singh R/o Vihar Tehsil Akhnoor District Jammu

68. Bharat Bushan Raina S/o Jagar Nath Raina R/o Darapora Kupwara A/P Q.No. 521 Mishriwala Camp District Jammu

69. Tarundeep Singh S/o Ajit Singh R/o Basti H.No. 1 Gho Manhasan Tehsil & District Jammu

70. Sushil Singh Chib S/o Jankar Singh Chib R/o Ashok Nagar Canal Road Tehsil & District Jammu

71. Anjuman Sharma S/o Madan Lal Sharma R/o Sobka A/P H.No. 235 Sector 4 Pamposh Colony Janipur

72. Suraj Parkesh Singh S/o Haqiqat Singh R/o Jagti Nagrota Tehsil & District Jammu

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73. Sahil Bakshi S/o Nand Kishore R/o Ismailpur Tehsil & District Jammu

74. Gurpreet Singh S/o Manjeet Singh R/o Azadnagar Upper Gadi Garh Tehsil & District Jammu

75. Manoj Kumar Pandita S/o Ram Jee Pandita R/o Nagrihakcherpora Kupwara A/P Q.No. 714 Migrant Camp Mishriwala District Jammu

76. Lakhbir Singh S/o Harminder Singh R/o Sehora Babafareed Nagar Bishnah District Jammu

77. Naresh Kumar Sharma S/o Rashpaul Sharma R/o Majua Uttam Bishnah District Jammu

78. Gurmeet Singh S/o Late Amrik singh R/o Purana Pind (Shiv Nagar) R.S.Pura District Jammu

79. Rohit Kumar Saini S/o Kuldeep Singh R/o Kool Kalan P/S Arnia Bishnah District Jammu

80. Abhinandan S/o Som Dutt Sharma R/o Bhure Chaak Tehsil & district Jammu

81. Kavinder Singh Jamwal S/o Sham Singh R/o Tengbal Kulgam A/P Q.No. 406 Sec-II Vinayak Nagar Muthi District Jammu

82. Arvinder Sharma S/o Harban Lal R/o Badyal Brahmna R.S.Pura District Jammu

83. Gagandeep Singh S/o Amardev Singh R/o Bhou R.S.Pura District Jammu

84. Mandeep Singh S/o S.Narinder Singh R/o Khutian R.S.Pura District Jammu

85. Ajay Kumar S/o Kuldeep Singh R/o 130/1 Narwal Pain Tehsil & District Jammu

86. Mukesh Sharma S/o Late Makhan Lal R/o Dadi Garh Tehsil & District Jammu

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87. Manmohan Khajuria S/o Babu Ram R/o H.No. 594 W.No. 2 Narwal Pain Tehsil & District Jammu

88. Vishal Singh Jamwal S/o Bhupinder Singh R/o Raipur Bantalab Tehsil & District Jammu

89. Neeraj Jamwal S/o Balbir Singh R/o Katal Batal Nagrota Tehsil & District Jammu

90. Avtar Krishan S/o Rattan Lal R/o Bhatyari-Bishnah District Jammu A/P H.No. 270 Sector F Sainik Colony District Jammu

91. Mohinder Kumar S/o Bodh Raj R/o Rohi Morh Tehsil & District Jammu

92. Harish Sharma S/o Durga Dass R/o Lower Gadi Tehsil & District Jammu

93. Vishal Sharma S/o Kuldeep Raj Sharma R/o H.No. 18 Kacchi Chowni Tehsil & District Jammu

94. Rameek Singh S/o Sagar Singh R/o Gurha Slathia Vijaypur District Samba

95. Sanjeev Choudhary S/o Sh. Mohinder Singh R/o Khanpur Camp Vijaypur Samba

96. Vikas Kumar S/o Harbans Lal R/o Patti Vijaypur District Samba

97. Sanjeev Kumar S/o Tilak Raj R/o Ramloo Brahamna Ramgarh District Samba

98. Ashwani Kumar S/o Des Raj R/o Patti Vijaypur District Samba

99. Ghulam Nabi S/o Hyder Hussain R/o Khara Madana District Samba

100. Sanandan Singh S/o Yudhvir Singh R/o Gurah Slathia Vijaypur Samba

101. Bhanu Partap Singh Sambyal S/o Surkakh Singh R/o Chak Manga District Samba

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102. Anil Sharma S/o Ashok Sharma R/o Om Colony Vijaypur District Samba

103. Rakesh Singh S/o Sewa Singh R/o Channi Kartholi Bari Brahamana District Samba

104. Amit Kumar Dubey S/o Ram Rattan R/o Jakh Vijaypur District Samba

105. Deepak Sharma S/o Ram Lal Sharma R/o Bari Brahamana District Samba

106. Sukesh Singh S/o Pritam Singh Slathia R/o Gurha Slathia Ramgarh District Samba

107. Deepak Sharma S/o Puran Chand R/o W.No. 05 Tehsil & District Kathua

108. Vijay Kumar S/o Om Parkash R/o Parnalla Tehsil Billawar District Kathua

109. Diraj Singh S/o Raghubir Singh R/o Partap Nagar W.No. 17 Tehsil & District Kathua

110. Vikas Singh S/o Parshotam Singh R/o Kharote Tehsil & District Kathua

111. Raj Kumar Sharma S/o Kasturi Lal R/o W.No. 4 Tehsil & District Kathua

112. Vijay Kumar S/o Bishan Dass R/o Dhare Tehsil Billawar District Kathua

113. Kulbashan Sharma S/o Subash Chander R/o Beril Tehsil Billawar District Kathua

114. Naresh Sharma S/o Jai Krishan R/o Malti Tehsil Billawar District Kathua

115. Krishan Gopal S/o Kalidass R/o Najote Tehsil Billawar District Kathua

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116. Shashi Pal S/o Vijay Kumar R/o Karroh Tehsil & District Kathua

117. Mukesh Kumar S/o Mansa Ram R/o Durang Tehsil Billawar District Kathua

118. Vikas Mathur S/o Ram Dass R/o Chak Changa Tehsil Hiranagar District Kathua

119. Munish Sharma S/o Netar Parkash R/o Ramnagar Keerian Tehsil & District Kathua

120. Manoj Kumar S/o Som Dutt R/o Hardo Muthi Tehsil Hiranagar District Kathua

121. Sakinder Hussain Shah S/o Nazar Hussain R/o Harmutta Gursai Tehsil Mendhar District Poonch

122. Tayab Hussain Shah S/o Muneer Hussain Shah R/o Gursai Tehsil Mendhar District Poonch

123. Waheed Ahmad Khan S/o Naazir Hussain Khan R/o Nar Tehsil Mendhar District Poonch

124. Vishal Sudan S/o Bhagat Ram Sudan R/o Khakha Naban Tehsil Haveli District Poonch

125. Swinkle Bali S/o Suraj Prakash R/o Bhainch Tehsil Haveli District Poonch

126. Gulzar Ahmad S/o Mansoo Khan R/o Kasblari Tehsil Mendhar District Poonch

127. Ifqar Hussain S/o Mohd Afzal R/o Dhanore Jarallan Tehsil & District Rajouri

128. Vikram Singh S/o Gardhari Singh R/o Peoni Ramnagar District Udhampur

129. Rajnish Khajuria S/o Ram Parshad R/o Jaganoo District Udhampur

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130. Rockey Singh Rathore S/o Bhrui Singh Rathore R/o Umella Tehsil & District Udhampur

131. Ranjeet Singh S/o Dhian Singh R/o Battal Tehsil & District Udhampur

132. Vikas Khajuria S/o Narayan Dutt R/o Bhaghta Tehsil & District Udhampur

133. Renuka Sharma D/o Tirth Ram Sharma R/o Dhonori Tehsil & District Udhampur

134. Pawan Kumar S/o Daya Nand R/o Chah Rakwalan Tehsil & District Udhampur

135. Banu Partap Singh S/o Narinder Singh Jamwal R/o Marta Ramnagar District Udhampur

136. Asad Kamran S/o Rukman-ud-din R/o Basantgarh Ramnagar District Udhampur

137. Mohd Shakil S/o Mila Baksh R/o Baryal Tehsil & District Udhampur

138. Serinder Kumar S/o Suram Chand R/o Muttal Tehsil & District Udhampur

139. Sumit Kumar S/o Hans Raj R/o Sela (Gadal) District Reasi

140. Anil Dev Singh S/o Sher Singh R/o Gajore District Reasi

141. Sanjeev Kumar S/o Om Parkash Sharma R/o Laiter (Danga) District Reasi

142. Pritam Singh S/o Raj Chand R/o Patta District Reasi

143. Khalid Jahangir S/o Abdul Hamid R/o Bagga Mahore District Reasi

144. Mohd Ishaq Malik S/o Mohd Abdullah R/o Shajroo Mahore District Reasi

145. Neeraj Sharma S/o Om Parkesh Sharma R/o Marri (Pouni) Tehsil & District Reasi

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146. Farooq Ahmad S/o Abdul Rashid R/o Tunga Paryote Tehsil & District Doda

147. Anil Kumar Kotwal S/o Mohinder Nath R/o Kullatha Tehsil & District Doda

148. Ramnik Kumar S/o Dawki Nand R/o Ghat Tehsil & District Doda

149. Shree Sharma S/o Sansar Chand R/o Chinchora Bhaderwah District Doda

150. Iftekhar Yousuf Tantray S/o Mohd Yousuf R/o Kharkoot Tehsil Banihal District Ramban

151. Showkat Ahmad Chopan S/o Mohd Ramzan R/o Nowgam Tehsil Banihal District Ramban

152. Tanveer Ahmad S/o Mohd Afzal Beigh R/o Kaskoot Malikpora Tehsil Banihal District Ramban

153. Muzamil Nissar S/o Nisar Ahmad R/o Chareel Mirpora Tehsil Banihal District Ramban

154. Nasir Nabi Butt S/o Gh Nabi Butt R/o Umer Mohalla District Kishtwar

155. Jasbir Singh S/o Jarnail Singh R/o Dhorri Tehsil and District Kathua ....................Respondents

(Advocate: Mr. Amit Gupta, learned A.A.G./ Mr. Sunil Sethi, Sr. Advocate assisted by Mr. Ankesh Chandel, advocate/ Mr. Abhinav Sharma, Sr. Advocate assisted by Ms. Saba Atiq, advocate for private respondents)

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:: 13 :: T.A No. 62/864/2021

(ORDER)

(Delivered by Hon'ble Mr. Rakesh Sagar Jain, Member (J)

1. Applicant Dheeraj Sharma and 4 other applicants seek the following reliefs:

"(i) Issue an appropriate writ, order or direction in the nature of Certiorari, the impugned Government order bearing no. 891- Home of 2018 dated 10.07.2018, be quashed.

(ii) Issue an appropriate writ, order or direction in the nature of Mandamus, directing the respondents to consider and appoint the applicants against the post of Wireless Assistant.

(iii) Any such order or direction which this Hon'ble Court may consider appropriate in the given facts and circumstances of the case."

2. Case of applicants is that respondent-State selected Constable (Operator) in J&K Police in pursuance to Advertisement dated 09.03.2007 at district level instead of State or Divisional level vide PHQ order No. 2844-2609 dated 01.08.2009 which was set aside by the Hon'ble High Court vide order dated 09.05.2014 and respondents were directed to reframe the select list. Review Application filed against the order dated 09.05.2014 was disposed of vide order dated

25.02.2015.

3. It is the further case of applicants that respondent No. 2 issued Government Order No. 891 Home of 2018 dated 10.07.2018 creating 151 post of Wireless Assistants and engaging 151 ousted wireless

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:: 14 :: T.A No. 62/864/2021 assistants (private respondents) which is challenged in the present case being violative of Article 14, 15 and 16 of the Constitution of India. The applicants also aver that the impugned order would also indicate that the candidates (private respondents) appointed have less merit than the applicants.

4. As per order dated 20.05.2021, Mr. Abhinav Sharma, advocate for private respondents had submitted that counter affidavit filed in TA No. 864/2021be treated counter affidavit in this application also. In the counter affidavit filed by private respondents, it has been averred that the applicants have no locus standi to challenge the impugned government order since their right have been violated. Vide order dated 19.01.2017, the Official Respondents re-framed the selection list and the services of answering respondents were terminated which have been challenged in Writ Petitions wherein interim orders were passed allowing the applicants (private respondents herein) to continue till further orders from the court. The impugned government order dated 10.07.2018 sanctioned the engagement of 151 ousted Wireless Operators (Private Respondents in the present T.A.) by treating them as a separate and distinct class. It is further averred in the counter affidavit that Cabinet decision was outcome of the finding that the answering respondents had been selected after proper selection process without there being any element of fraud or misrepresentation on their part, but on account of error of Government and that the said Wireless Operators had been working having completed at that point of time, three years of service, as also most of them having become over aged for fresh recruitment in as much as

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:: 15 :: T.A No. 62/864/2021 their ouster would have consequences as they had been provided with arms and technical training and had gained sufficient experience on the post.

5. The private respondents further aver that the applicants and answering private respondents are not similarly situated and therefore not entitled to equal treatment. The consideration of the case of the Wireless Assistants is founded on reasonable classification having an intelligible differentia, which distinguishes them from the petitioners and differentia has a reasonable relation to the object sought to be achieved. Petition, therefore, being misconceived is liable to be dismissed.

6. The Administration in its counter affidavit averred that the impugned Government order was issued on consideration of following conclusions that: - 1. The ouster candidates had undergone through a proper selection process conducted by the PHQ. (2)The ousted candidates were placed in the relevant grade of Constable Operators and drawing salary; (3)The ouster candidates underwent the training as is required under the Police Rules, 1960; (4)The State by providing them training has invested in these candidates, hence, it is in the larger interest of the State, if the ousted candidates are appointed; (5)The illegality in making selections/appointments at the district level of Constable (Operators) is not attributable to the ousted candidates; (6)The ousted candidates may have crossed the upper age limit prescribed for government jobs and hence may not be able to apply

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:: 16 :: T.A No. 62/864/2021 afresh; and (7)The ouster of these candidates may have applied harshly to their families, besides the candidates.

7. At the onset, it was argued by respondents that applicants have no locus standi to challenge the impugned Government Order. Whereas, learned counsel for applicants submitted that in the matter of public employment, Government cannot adopt a procedure which is violative of law to benefit a few persons to the exclusion of the equally situated persons, and therefore, applicants have the locus standi to challenge the Government Order.

8. The applicants have the locus standi to file the present case is clear from the observation of the Hon'ble Apex Court in Secretary, State of Karnataka Vs. Umadevi, (2006) 4 SCC 1 that:

"These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment."

". . . . The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty

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:: 17 :: T.A No. 62/864/2021 of this Court to entertain the writ petition and adjudicate upon the validity of such practice."

9. It has been argued by the respondents that the private respondents have been employed for a number of years and it would be an injustice that after a long length of service and when they have become overage, they should be deprived of their employment as wireless operators and that the Tribunal ought to take a compassionate view by upholding the impugned order. We consider this contention only because the respondents have raised it.

10. The select list of 2009 was challenged in the year 2009 itself. The respondents were permitted to appoint the private respondents in 2010 subject to outcome of the writ petitions. So, the respondents were cautioned that appointments made would be subject to outcome of writ petitions and consciously ran the risk of being turned out of service if the writ petition is decided against them. They cannot approbate and reprobate at the same time. The contention that being employed for a number of years and becoming overage, it would be injustice if they be deprived of their employment is devoid force of law and cannot be accepted. Reference may made to Pratap Kishore Panda Vs. Agni Charan Das, (2018) 1 SCC (L&S) 371, wherein the Hon'ble Apex Court observed that:

"The prevailing law is now discernable from Umadevi, which has correctly been cited before us in extenso. The Umadevi doctrine is that if employment of persons is contrary to or de

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:: 18 :: T.A No. 62/864/2021 hors the statutory provisions and/or Rules and Regulations, then equities will not have any play even if such persons have been rendering services for several years."

11. It has been argued by learned counsel for applicants that the classification making the private respondents a distinct and separate class for appointments is not founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and that the differentia does not have a rational nexus to the object of employment sought to be achieved by the Government Order impugned in the present T.A.

12. Whereas, learned counsels for respondents argued that the private respondents were rightly treated as class separate from the applicants and this classification is in accordance with Article 14 and 16 of the Constitution of India. Learned counsels submitted that they were selected after proper selection process and besides completing three years of service, have become overage to apply for fresh recruitment and have gained sufficient experience on the post and that the case of the private respondents is founded on reasonable classification having an intangible differentia and differentia has a reasonable relation to the object sought to be achieved.

13. The impugned Government Order appointed the private respondents by treating them as a separate and distinct class of unemployed persons. It is now well settled that Article 14 forbids class legislation,

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:: 19 :: T.A No. 62/864/2021 but does not forbid reasonable classification. Whether a classification is a permissible classification under Article 14 or not, two conditions must be satisfied, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational nexus to the object sought to be achieved by the statute in question. (Read with advantage D.S Nakara

V. Union Of India, (1983) 1 SCC 305 andState of J&K v. Triloki Nath Khosa, 1974 (1) SCC 19)

14. So, it is to be seen whether the classification of applicants and private respondents is based on an intelligible differentia which distinguishes or classify them into different class and the classification has to be justified on the basis of the nexus between the classification and the object to be achieved.

15. In the counter affidavits, the impugned order is sought to be sustained on the ground that the private respondents formed a separate class which entitles them to be employed in Government service. The private respondents are sought to be inserted in a separate class for the reasons mentioned in counter affidavit of official respondents and referred to in above paragraph No. 6.

16. All the criteria/reasons relied upon by the respondents for classification of private respondents into a separate class have arisen due to the extension of the services of the private respondents by the Government knowing fully well that the appointments are subject to

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:: 20 :: T.A No. 62/864/2021 the outcome of the writ petition. If the State had acted wisely and taken remedial action immediately on the decision of the Hon'ble High Court in 2014, these criteria would not have arisen. All the criteria relied upon by respondents to create a separate and distinct class for private respondents have been created artificially due to inaction of the Government. In any case, we find no rational principle for creating a separate and distinct class for the private respondents.

17. In order to consider the question as to the reasonableness of the classification of ousted private respondents, it is necessary to take into account the objective for such classification. Respondents' case being that the object was to provide employment to the ousted candidates (private respondents) for the reasons mentioned in the decision of the Cabinet Sub-Committee to the exclusion of the applicants who also appeared along with the private respondents in the same selection process.

18. Indisputably, all unemployed persons inclusive of applicants and private respondents form one class and entitled to be considered equally for the public employment offered by the Government and their classification has to be based on some rational principle and the rational principle must have nexus to the objects sought to be achieved.

19. Both applicants and private respondents are unemployed and form one class for seeking public employment. Just because, the Government

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:: 21 :: T.A No. 62/864/2021 appointed the respondents subject to the outcome of the writ petitions, would not make them a class apart from the applicants otherwise equally placed in matter of public appointments. Therefore, the criteria which classified the parties to the dispute into two classes is not based on any rational principle and if the rational principle is the one of dividing the equally placed persons to give something more to some persons in contrast to other persons, otherwise equally placed, it would be discriminatory and it is so, in the present case. The criteria were creation of the respondents.

20. We may refer to the arguments of the respondents that the initial selection of the private respondents was made after proper selection process without any fraud on part of the respondents but on account of error of the Government. It be noted that the initial selection was quashed by the Court. Therefore, this contention is to be outrightly rejected in view of the observations of the Hon'ble Apex Court in Arbind Kumar v/s State of Jharkhand, (2016) 10 Scale 310 as under:

"Although the appellants have pleaded that they are mere victims of irregular or illegal action by the concerned police officials who appointed them to the post of Constable without following the procedure prescribed under the Police Manual and hence deserve sympathy, but we are not persuaded to accept such submission. In our considered view, the beneficiaries cannot blame the appointing authority alone and claim that the illegal appointment should be continued in perpetuity. To accept such plea would amount to giving premium to dishonest and illegal acts in matters of public appointments."

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21. Regarding the contention of private respondents that their selection was not made on the basis of any fraud or misrepresentation on their behalf and they have remained in service for a long time and that it was due to error on behalf of Government, they were selected, they placed reliance upon (1) Rajesh Kumar Vs. State Of Bihar, 2013 (4) SCC 690, the Hon'ble Apex Court held that since the Appellants were innocent parties who did not indulge in any fraud and misrepresentation for preparation of the erroneous key or the distorted result and served the State for nearly seven years now, their ouster need not be inevitable and inexorable consequence of such a re- evaluation. The facts of the cited case are entirely different from the facts of the present case. In any case, the respondents contributed to the present predicament by accepting appointment which were subject to outcome of the writ petition. (2) Tejinder Kaur v/s Lady Constable Raj Kumari, (2009) 1 SCC 177 wherein it was observed that "6. We find that the guidelines really provide for request by the candidate for re-assessing of his/her marks and there is no scope for asking for re- assessment in the case of other candidates. But in view of the earlier order of the High Court that question has become academic. It is to be noted that the respondent Nos. 6 to 10 in the writ petition had completed 2 years of training. In the meantime they had appeared in List B, C and List D. 7. In view of the aforesaid peculiar situation we set aside that part of the order of the High Court by which their selection was set aside. It would be inequitable to deprive them the benefits of what had been extended to them. Deficiency, if any, in not

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:: 23 :: T.A No. 62/864/2021 allotting proper marks as done by the authorities cannot deprive them of the benefit which they have obtained. It is not shown that they were a party to the wrong allotment of marks at the original stage." (3) Sahil Aggarwal v/s State of Punjab, 2014 Legal Eagle (P&H) 2026 wherein it was held that appointments are not to be set aside if the same have been made on the basis of some error in question of answer sheet since they have worked for three years unless they are guilty of fraud and misrepresentation. In both these cases, the facts are entirely different from the facts of the present case and in any case, the respondents contributed to the present predicament by accepting appointment which were subject to outcome of the writ petition.

22. Even, if the applicants are getting the salaries, they are drawing the salary since they accepted the appointment orders subject to the outcome of the writ petitions which were ultimately decided against them and so, the appointment orders became non est having no sanctity in the eye of law. In this regard, we may refer to R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 wherein the Hon'ble Apex Court held that:

"17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar [AIR 1988 Pat 26 : 1988 Lab IC 907 : 1987 BBCJ 701 (FB)] . The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13)

"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in

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:: 24 :: T.A No. 62/864/2021 nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it."

18. We agree with the view taken by the Patna High Court in the aforesaid cases."

23. It is difficult to accept the contention that the ousted private respondents stand on a different footing from the applicants. The test is whether the applicants are equally in a disadvantageous position like the ousted respondents in matter of employment. There can be no doubt and it is not disputed that both of them stand on an equal footing and there is no difference between these two classes of employees in that regard. To exclude the applicant in matter of public appointments will not, therefore, satisfy the test of intelligible differentia that distinguishes the ousted private respondents grouped together from the applicants and other persons who would have been part of the selection process. It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification cannot be said to be a reasonable one. In the instant case, we are also unable to accept the contention of the respondents that such exclusion of the employees of private establishments is justified on the ground of administrative convenience.

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24. In the present case, we do not find any intelligible differentia for classification of the unemployed class into two groups who are equally situated. Members of both groups seek public employment and cannot be divided and classified into two classes on an unintelligible principle with a view to giving something more to persons otherwise equally placed, which course would be discriminatory. In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the court has also to consider the objective for such classification. If the objective be unjust, necessarily the classification will have to be held as unreasonable. In the instant case, the foregoing discussion reveals that the classification of the ousted employees by the impugned Government Order of employment purpose to the exclusion of applicants who like the respondents are unemployed and took part in the selection process is unreasonable and unjust, as it does not subserve any fair and logical objective. The applicants like the ousted respondents are entitled to the benefit of public employments. It follows from the above discussion that the impugned Government Order made a classification which cannot to be justified on any reasonable basis, must be held to be discriminatory and violative of Article 14 and 16 of the Constitution.

25. It was also argued by learned counsel for applicant that all cases of direct appointments to public posts without these being advertised would be discriminatory and hit by Art. 16 of the Constitution. It was argued by learned counsel for applicant that the State did not issue any

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:: 26 :: T.A No. 62/864/2021 advertisement in matter of public appointment and the Government Order is discriminatory towards the applicants. And the impugned order does not give any reason for its promulgation and cannot be supplemented by reasons given in the counter affidavits and placed reliance on Mohinder Singh Gill v/s The Chief Election Commissioner, New Delhi, (1978) 1 SCC 405.

26. It is a settled principle of law that recruitment to Public Services should be held strictly in accordance with the recruitment rules and publicity so as to enable all persons to participate in the employment drive. Deviation, as is sought to be done in the present case, from the rules allows entry to chosen few persons and deprives many others who could have competed for the post and more so, private respondents secured lesser marks that applicants are being given undue preference for employment to the exclusion of applicant.

27. We may in this regard refer to Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others, AIR 2006 SC 1165, wherein the Hon'ble Supreme Court of India stated: -

"Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible

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:: 27 :: T.A No. 62/864/2021 candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."

28. In the present case, admittedly, appointments are being made without issuing advertisement for selection and without holding a proper selection process where all eligible candidates get a fair chance to compete violates the guarantee under Article 16 of the Constitution and on this ground too, the impugned Government Order deserves to be struck down.

29. For the reasons aforesaid, the Government Order No. 891 Home of 2018 dated 10.07.2018 is set aside as discriminatory and violative of Article 14 and 16 of the Constitution of India and, accordingly, invalid. T.A. is accordingly disposed of. It is left to the Government to proceed further in accordance with law. No costs.

(ANAND MATHUR) (RAKESH SAGAR JAIN)

MEMBER (A) MEMBER (J)

Arun/-

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