O R D E R
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The above captioned five petitions were initially filed before the Hon'ble High Court of Jammu & Kashmir under Article 226 of the Constitution of India which have been transferred to this Tribunal vide Hon'ble High Court's order dated 27.07.2020 and are registered as Transfer Applications Nos. (i) 3106/2020 (ii)
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3102/2020 (iii) 3110/2020 (iv) 3104/2020 (v) 3120/2020. Since the facts, grounds, relief claimed and law questions involved in all the four Transfer Applications are same, therefore, these TAs are being disposed of by a common order. For the sake of convenience, the facts are being taken from the T.A. No. 3106/2020 titled Bal Krishan and Others Vs. State of J&K & Others.
2. The petitioners in T.A. No. 3106/2020 titled Bal Krishan have prayed for the following relief:-
(i) To issue writ of certiorari for quashing the selection of Respondents No. 6 to 130 as constables in District Doda and Kishtwar as the same is suffering from illegality and arbitrary exercise of the powers by Respondents No. 1 to 5, whereby the merit has been converted into demerit and the selection has been made in total disregard to the mandate of the constitutional provisions, as well as, the service jurisprudence relating to the selection and appointment in Public Service.
(ii) For issuance of Writ of Mandamus commanding the Respondents to select and appoint the petitioners and constable in J&K Police in District Kishtwar."
3. The relief claimed in the T.A. No. 3102/2020 titled Jagjeet Ram Vs. State of J&K and Others is as under:-
"(i) For issuance of a writ for quashing the selection of respondents no. 6 to 30 as constables in District Kishtwar as the same is suffering from illegality and arbitrary exercise of the powers by respondents no. 1 to 5, whereby the merit has been converted into demerit and the selection has been made in total
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disregard to the mandate of the constitutional provisions, as well as, the service jurisprudence relating to the selection and appointment in public service.
(ii) For issuance of Writ of mandamus commanding the respondents to select and appoint the petitioner as constable in J&K Police in District Doda."
4. In the case of Raj Kumar Shan & Others Vs. State of J&K & Others (T.A. No. 3110/2020), the petitioners have prayed for the following relief:
"(i) For quashing the selection of respondents no. 6 to 30 as Constables J&K Police in District Kishtwar as the same are suffering from illegality and arbitrary exercise of powers by the respondents no. 1 to 5 whereby the merit has been converted into demerit and the selection has been made in total disregard to the mandate of the constitutional provisions, as well as, service jurisprudence relating to the selection and appointment in Public Service.
(ii) For issuance of writ of mandamus commanding the respondents to select and appoint the petitioners as Constable in J&K Police in District Kishtwar.
(iii) That the Hon'ble Court may kindly be pleased to direct the respondents to produce the entire selection records of respondents no. 6 to 30 with regard to their
selection/appointments to the posts of Constables in J&K Police and the Hon'ble Court will find that how in clandestine manner by passing all the norms, the selection has been made.
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5. The relief claimed in the T.A. No. 3104/2020 titled Daleep Kumar Vs. State of Jammu & Kashmir is as under:-
"(i) For quashing the selection of respondents no. 6 to 30 as Constables J&K Police in District Kishtwar as the same are suffering from illegality and arbitrary exercise of powers by the respondents no. 1 to 5 whereby the merit has been converted into demerit and the selection has been made in total disregard to the mandate of the constitutional provisions, as well as, service jurisprudence relating to the selection and appointment in Public Service.
(ii) For issuance of writ of mandamus commanding the respondents to select and appoint the petitioners as Constable in J&K Police in District Kishtwar.
(iii) That the Hon'ble Court may kindly be pleased to direct the respondents to produce the entire selection records of respondents no. 6 to 30 with regard to their
selection/appointments to the post of Constables in J&K Police and the Hon'ble Court will find that how in clandestine manner by passing all the norms, the selection has been made.
6. The relief claimed in the T.A. No. 3120/2020 titled Suresh Kumar and Another Vs. State of J&K and Others is as under:-
"(i) For quashing the selection of respondents no. 6 to 30 as constables J&K Police in District Kishtwar as the same are suffering from illegality and arbitrary exercise of powers by the respondents no. 1 to 5 whereby the merit has been converted into demerit and the selection has been made in total disregard to the mandate of the constitutional provisions, as well as,
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serviced jurisprudence relating to the selection and appointment in Public Service.
(ii) For issuance of writ of mandamus commanding the respondents to select and appoint the petitioners as Constable in J&K Police in District Kishtwar.
(iii) That the Hon'ble Court may kindly be pleased to direct the respondents to produce the entire selection records of respondents No. 6 to 30 with regard to their
selection/appointments to the posts of constables in J&K Police and the Hon'ble Court will find that how in clandestine manner by passing all the norms, the selection has been made.
7. The factual matrix of the case is that the petitioners, who belong to Bimal Nag (Kishtwar), participated in the selection process conducted at Chilly Bala (Gandoh) and Bimal Nag (Kishtwar) for making on spot selection of candidates for the posts of Constables in J&K Police. It has been declared by Respondents No. 3 to 5 that 186 candidates out of the total candidates, who appeared in the selection process stand selected from Bimal Nag Area including the petitioners. It has been submitted that much less candidates have been shown to be selected from the Chilly Bala area, but thereafter they came to know that 98 candidates have been shown to be selected from the Chilly Bala area and only 29 candidates have been selected from Bimal Nag area and the petitioners have been left out from the select list of Bimal Nag (Kishtwar) area. The private respondents /selected candidates i.e. Respondents No. 6 to 103 are from Chilly Bala (Gandoh) area and respondents at serial. No. 104 to 128 are from Bimal Nag (Kishtwar) area. It has been submitted that the select list has been kept a secret
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and the Respondents No. 6 to 130 have been given appointment letter individually to join the J&K Police as Constables. A request dated 01.03.2008 was made to the Inspector General of Police, J&K Police Department, Jammu, to provide a copy of select list of candidates as Constables in J&K Police for District Kishtwar and Doda out of the section process held on 31.12.2007, but to no avail.
8. The petitioners have challenged the action of the respondents in not appointing them as constables in J&K Police on the ground that no selection process as prescribed under the Service Law has been followed by the respondents for making appointment of Constables. Therefore, the selection of private respondents is against the settled proposition of law and is not sustainable in the eyes of law. It has been alleged that the selection is outcome of malafide intention inasmuch as Bimal Nag (Kishtwar) area has 14 Panchayats and 29 candidates have been selected from Chilly Bala (Gandoh) area, whereas Chilli Bala (Gandoh) area has 10 Panchayats and 98 candidates have been selected from there. Thus according to the population of the area, proportionately less candidates have been selected from the area Bimal Nag (Kishtwar) which is discriminatory. The impugned
selection/appoitnment is in violation of SRO 126 of 1994 as the Reservation Rules have not been followed while making the selection/appointment. It has been contended that the petitioners were duly selected by Respondents No. 3 to 5 during the selection process held on 31.12.2007, but the respondents have not issued their appointment orders which is illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution of India.
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9. The official respondents nos. 1 to 5 have filed written statement contesting the claim of the petitioners. It has been stated therein that the State Cabinet vide decision No. 157/13/2009 dated 04.12.2009 took a decision that "the State Police will undertake special recruitment drives, in the under-represented areas in the State, for completing the recruitment process at the level of Constabulary in a time bound manner. The Home Department shall consider relaxation in the prescribed minimum educational qualification from 'matriculation' to middle pass in all hard cases". Pursuant thereto, the respondents No. 3 to 5 conducted on spot recruitment on 31.12.2007 at Chilly Bala (Gandoh) and Bimal Nag (Kishtwar) according to the following criterion:
| Category |
Qualification |
Height |
| A |
Graduate & Above |
5’-8” and above |
| B |
10+2 |
5’-10” and above |
| C |
Matriculate |
5’-11” and above |
| D |
SC/ST/RBA/SOC |
5’-8” and above |
| E(Female) |
SC/ST/RBA/SOC/MATRIC and above |
5 ’ - 2” and above |
Only those candidates, who had completed 18 years and below 28 years
as on 01.01.2007 were considered for selection. The selection was
conducted on spot in the light of aforesaid criteria and 125 candidates
were short listed for selection as Constable subject to the approval of
the PHQ and the selected candidates are arrayed as private
respondents. It has also been submitted that wide publicity to the on-
spot recruitment at Village Bimal Nag, District Doda through the
concerned S.H.O. of Police Stations was given. The revenue staff at the
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field level was also informed to apprise the un-employed youth for on- spot recruitment. The petitioners also participated in the on-spot recruitment and having failed to make to the merit in accordance with the criteria formulated above, have challenged the said selection. The on-spot recruitment was in accordance with the Police Rule 179, which prescribes that the efforts shall be made to enrol men belonging to community or class, whose representation in the force may not be adequate. The on-spot recruitment was done in order to ensure effective representation to the people at remote places like Village Chilly Bala (Gandoh) and Bimal Nag (Kishtwar), District Kishtwar, which is the remotest area of the J&K State. The petitioners have not been prejudiced in any way by mode or manner of recruitment as they themselves have participated in the on spot recruitment. The plea of the petitioners regarding applying reservation in selection has also been controverted by submitting that the petitioners cannot raise any grievances regarding implementation of SRO 126 of 1994 pertaining to Reservation rules, as the petitioners do not belong to any reserve category and is from open category. No prejudice has been caused to the petitioners by way of not implementing the reservation rules, though not admitting as the same were not complied with. The due representation had been given to all the selected candidates in accordance with the reservation policy as prescribed under SRO 126 of
1994.
10. The private respondents have also filed written statement. While reiterating the contentions raised by the official respondents, it has been contended that once the petitioners have participated in a particular selection without any protest to the selection criteria followed by the
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respondents, they cannot lawfully challenge the same after having been declared unsuccessful. It has also been submitted that the allegations of malafide are also vague and unspecific. Even otherwise allegations of malafide cannot be alleged against a person, who is not a party respondent by name in the petition against whom the allegations of malafide have been levelled.
11. The petitioners have filed rejoinder controverting the defence pleas taken by the respondents. A judgment of the Hon'ble Supreme Court in the case of Suresh Kumar & Ors Vs. State of Haryana, (2003) 10 SCC 276 has also been placed on record in support of the claim of the petitioners. Reliance has also been placed on a judgment in the case of A.P. Public Service Commission, Hyderabad & Anr V/s B. Sarat Chander & Ors, 1990 (2) SCC 669.
12. The Hon'ble High Court vide order dated 05.03.2008 granted interim relief to the extent that the appointment of private respondents, if any, made shall remain subject to the outcome of the writ petition.
13. We have gone through the pleadings, heard learned counsels and considered the contentions of both the sides.
14. The controversy involved in this case is as to whether the appointment made by the respondents to the post of constable in J&K Police is in consonance with the provisions of law viz-a-viz Recruitment Rules.
15. The main contention of the petitioners is that the selection process, as prescribed in the Service Rules, has not been followed by the respondents for recruitment of constable for J&K Police, therefore, the same is unsustainable in the eyes of law. It is admitted case of the respondents that the respondents no. 3, 4 and 5 made on spot
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recruitment of constables including short-listing was also done on-spot on 31.12.2007. It has, however, been contended that the on-spot recruitment was made in accordance with the Police Rule 179. For better appreciation of the arguments advanced on behalf of the both sides, the Rule 179 is reproduced hereunder:-
"179. Supervision of Recruitment
The standard of performance and the reputation of a police force depends above all upon the quality of its Constables. Standards for recruits are laid down in the rules which follow but over and above these, constant attention and effort to raise the general standards of recruitment are essential. Gazetted Officers should at all times devote special attention to discovering and encouraging men of a thoroughly good stamp to enrol themselves. Efforts shall be made to enrol a proportion of men belonging to communities or classes whose representation in the force may not be adequate. The examination and the taking of measurements of candidates for enrolment shall invariably be carried out by a gazetted officer who shall take meticulous care to ensure that no unfair or unwholesome methods are adopted by the candidates in taking the examination or by such subordinate officers as are incharge of the test. Deputy Inspector General, in addition to exercising a careful control over recruitment generally, and preventing the enrolment of undesirable types, shall, at their inspections, formal and informal, pay special attention to the observance of this rule."
As is clear from the Rule 179, it deals with how the recruitment be supervised to ensure fair selection of the constables as per the standards laid down in the rules but over and above these, constant attention and effort to raise the general standards of recruitment are essential. The Rule 179 nowhere suggests that the recruitment from amongst the persons of unrepresented area can be made without following the prescribed set of rules made for such selection. Moreover, the Rule 172 empowers the authorities to make appointment, which reads as under:
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172. AUTHORITIES EMPOWERED TO MAKE APPOINTMENT
Recruitment to the rank of Assistant Superintendents of Police is governed by the Indian Service (Recruitment) Rules, 1954. Deputy Superintendents of Police are appointed in accordance with the rules prepared by the Public Service commission and sanctioned by the Government from time to time.
The following table shows the delegation of powers of appointments of the non-gazetted ranks:-
| (1) |
(2) |
(3) |
| Class of Government Servants. |
Authority to whom the power of appointment is delegated. |
The extent of the delegation. |
| Inspectors |
Inspector General of Police |
Full powers subject to the J&K Non-gazetted Recruitment Rules. |
| Sub-Inspectors. |
*Additional Inspector General of Police Dy. Inspector General of Police |
Full powers subject to the J&K Non-gazetted Recruitment Rules. |
| Asstt. Sub-Inspectors |
Additional Inspector General of Police Dy. Inspector General of Police |
Full powers subject to the J&K Non-gazetted Recruitment Rules. |
| Head Constables Senior grade. |
Dy. Inspector General of Police |
Full powers subject to the J&K Non-gazetted Recruitment Rules. |
| Head constables Junior Grade |
Superintendent of Police. |
Full powers subject to the J&K Non-gazetted Recruitment Rules. |
| Constables. |
Superintendent of Police. |
Full powers subject to the J&K Non-gazetted Recruitment Rules. |
*Substituted vide SRO 357 dated 31stJuly, 1975
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(2) All appointments to non-gazetted rank above that of constables shall be made by the appointing authority on consideration of recommendations of a selection board. Such boards shall be constituted in accordance with the orders of the Inspector-General.
(3) The power to confirm the appointment of officers appointed on probation vests in the case of gazetted officers with the government and in the case of Inspectors, Sub- Inspectors and Assistant Sub-Inspectors with the Inspector General of Police, in the case of Head Constables. Senior Grade with the Deputy Inspector General of Police and in the case of Head constables Junior Grade and Constables with the Superintendents of Police.
(4) The seniority of Inspectors and Sub-Inspectors shall be inter-range. Assistant Sub-Inspectors shall be borne on range rolls and shall receive range constabulary numbers.
Head constables and constables in each district shall be borne on district rolls and shall receive district constabulary numbers.
16. As per Rule 172, the Superintendent of Police has full powers to make appointment to the post of constables. However, the same are subject to the J&K Non-gazetted Recruitment Rules. Exercise of any powers by the Authority in contravention of the Recruitment Rules are illegal, unconstitutional and bad in law.
17. The contention of the respondents that wide publicity of the recruitment has been made is not supported by any document. No public notice regarding the recruitment drive was issued to make the residents of the relevant area aware about the on-spot recruitment, to ensure maximum participation of the eligible aspirants. No advertisement inviting application from the eligible candidates has been issued. The fact remains that the no efforts were made to make wide publicity of the recruitment which is a mandatory exercise to be done before making any recruitment to the public service. The Employment Exchange was also not intimated about the said recruitment enabling
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them to send the eligible candidates to participate in that selection process.
18. In order to buttress the arguments, respondents submitted that the State Cabinet vide its decision No. 157/13/2009 dated 04.12.2009 passed the decision that the State Police will undertake special recruitment drives in the under- represented areas in the State for completing the recruitment process at the level of Constabulary in a time bound manner. The Home Department shall consider relaxation in the prescribed minimum educational qualification from "matriculation" to middle pass in all hard areas. It is noticed that the said decision was taken on 04.12.2009, whereas the under challenged
recruitment/selection was held on 31.12.2007, two years prior to the Cabinet decision. The directions issued vide order dated 04.12.2009 cannot be made applicable retrospectively to regularize the selection made in an arbitrary manner without following the due procedure for selection in the year 2007. It becomes amply clear that the impugned selection has been made without obtaining prior written approval from the Competent Authority in this regard, which has been admitted by the respondents in letter dated 25.10.2010 addressed to the Sr. Superintendent of Police, wherein it has been stated that the on-spot recruitment drives were carried out on the verbal directions of the Government and no orders in writing were given on the subject, which shows that the procedure adopted in selection process was not in accordance with the procedure to be followed in running of administration as per law.
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19. Be that as it may, before making any recruitment, it is for the competent authority to follow the due procedure for selection, as per the Rules. According to the procedure, the process of selection begins with the issue of advertisement and culminates in forwarding the list to the appointing authority. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examination, calling for interview or viva voce and preparation of list of successful candidates for appointment. These are the basic ingredients of any selection made for public service. However, nothing like that has happened in the present case. The selection made to any public post without following the procedures prescribed under law is liable to be held as illegal.
20. The Hon'ble Supreme Court in the case of Suresh Kumar (supra) upheld the order of the Hon'ble High Court of Punjab and Haryana, whereby the recruitment of 1600 Police Constables were quashed while declaring the selection vitiated as there was no advertisement and no due publicity inviting applications from candidates at large. The case of the petitioners therein, who challenged the selection even after participation in the selection process, was allowed. In the present case also, the selection has been made without making a due publicity of the recruitment drive inviting applications from maximum candidates, which is in violation of Articles 14 and 16 of Constitution of India. In the absence of any public notice, many eligible candidates may not get information about the recruitment drive, which would have deprived them of their right of getting equal opportunity for employment, as enshrined in Article 16 of the Constitution of India. Any selection
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process made in violation of Articles 14 and 16 is illegal and unsustainable in the eyes of law, as has been observed by the Hon'ble Supreme Court in the case of Renu & Others Vs. Distt. And Sessions Judge (Civil Appeal No. 979 of 2014 (Arising out of SLP (C) No. 26090 of 2011 Decided On, 12 February 2014)
" Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution. Xxxxxxx
Xxxxxxxx
8. As Article 14 is an integral part of our system, each and every state action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors.
v. Piara Singh & Ors. etc."
21. In view of the discussion herein above, the impugned selection held on 31.12.2007 is held to be illegal. The appointment made in pursuance thereof are quashed and set aside. The respondents are directed as under:-
(i) To initiate holding the selection afresh as per the J&K Non- Gazetted Recruitment Rules within a period of four weeks from today.
(ii) The private respondents, who were appointed on the basis of the said selection and are continuing till date, shall be permitted to continue until fresh selection is made.
(iii) The selectees whose selection has been set aside, would be entitled to appear at the fresh selection pursuant to the advertisement going to be issued in view of our direction, by relaxation of age.
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(iv) In the matter of selection, the selecting authority would obviously give some preference to the experience gained by these selectees, who have been appointed and are continuing in service.
(v) Those, who have been selected but not appointed would also be eligible to appear in the selection process going to commence pursuant to the fresh advertisement and their case would also be considered by making relaxation of age, though they cannot claim any preference since they do not possess any experience.
(vi) The entire process of selection be concluded within six months from today. It is made clear that the selectees, whose appointments have been quashed and have been permitted to continue because of the interim order of this Court, would be permitted to continue till the selection process is over pursuant to our aforesaid direction and in the even they fail to get themselves selected they will make way for the fresh selectees.
22. The T.As are disposed of accordingly.
23. No orders so as to costs.
(DR. A.K.DUBEY) (SURESH KUMAR BATRA)
MEMBER (A) MEMBER (J)
'mw'
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