Iftikhar Hussain vs State of Jammu & Kashmir and Others

Y.P. Nargotra, J.—The petitioner through this writ petition is seeking quashment of order No. 515-GAD of 2000 dated 8.5.2000 by which

respondents 3 to 5 have been allotted J&K Police Gazetted service by changing their original departments of allocation. The petitioner also seeks

issuance of mandamus to the respondents to allot him J&K Police Gazetted service.

J&K Public Service Commission invited applications from eligible candidates for appearing in Combined Services Competitive Examination to

be held by the Commission by Notification No. 15aa/95/26th Asad, 1917 dated 17th July 1995. The petitioner being eligible candidate applied for

taking the aforesaid examination and was allotted Roll No. 15488. Respondents 3 to 5 also applied. The petitioner and the said respondents

appeared in the preliminary, main examination as well as in the interview and were selected for appointment. Respondent No. 2 vide its notification

No. PSC/Ex/99/25 dated 26.4.1999 issued the select list of various candidates, including the petitioner. In the said list petitioner was shown at

S.No. 243 whereas respondents 3 to 5 were shown at S.Nos. 244, 246 and 251 respectively. The petitioner belonged to Scheduled Tribe

category. Respondents 3 to 5 were selected under Open Merit category. The petitioner and respondents 3 and 5 were allotted J&K Accounts

Gazetted service and respondent No. 4 was allotted J&K Cooperative Gazetted service. After the allocation of departments the petitioner and

respondents 3 to 5 appear to have applied for change of their respective departments. The Government vide its order No. 515-GAD of 2000

dated 8.5.2000 ordered for change of departments of respondents 3 to 5 to J&K Police Gazetted service and directed their adjustment against the

newly created four additional posts of Dy.S.Ps. in the pay scale of Rs. 7500-12000. As the change of department was not allowed in favour of the

petitioner, he has filed the present writ petition seeking the above said direction.

The case of the petitioner is that he possessed better merit than respondents 3 to 5 and as such if the change of department was to be allowed,

then it should have been allowed in his favour instead of respondents 3 to 5.

The stand of respondent No. 2, Public Service Commission, as reflected in the counter affidavit, is that vide SRO 161 of 1995 dated 17.7.1995

the State Government notified as many as 18 services against which posts in gazetted cadre were required to be filled up on the basis of

Preliminary examination, written (Main) and viva-voce. The posts were accordingly advertised. Thereafter preliminary, written test, as well as viva

voce test were conducted by the Commission and accordingly candidates were recommended for appointment according to their merit, suitability

and roster points. It was admitted that the petitioner was shown at S.No. 243 and was allotted J&K Accounts Gazetted service as per his merit

and suitability coupled with order of preference and roster point. His merit position has been detailed by the Commission in the counter affidavit as

follows:-

____________________________________________________________________

NAME ROLL NO. MERIT NO. ROSTER NO.

____________________________________________________________________

Iftikhar 15488

Preference No. of Candidates alloted service from

given by the amongst ST Cagegory having higher

petitioner in merit than the petitioner

his application

form.

Jr. K.A.S. 01 70

Revenue 02 112 and 177

Sectt. 02 235 and 325

Police 08 128,170,196,m352,384,385,

444, 469 and 492

Tourism -

E & T 01 344

CD&NES 02 371 and 480

I&C 01 438

Social 01 529, 540, 556, 560.

Welfare

Account 05 566, 572, 580, 581, 598

____________________________________________________________________

As regards the allocation of J&K Accounts Gazetted Service to the petitioner is concerned the petitioner has no grievance against the

Commission. Petitioner feels aggrieved only of the action of the Government whereby change of department has been allowed to respondents 3 to

The action of the State needs to be taken note of. It has been stated in the counter affidavit filed on behalf 01 the State as follows:-

That the representation of the petitioner for change of his cadre from Jammu & Kashmir Accounts Gazetted service to Jammu & Kashmir Police

Gazetted service was considered by the Cabinet along with various such type of cases when it was decided that as a matter of policy no change in

cadre would be permitted by the State Government. The representation of the petitioner was thus rejected by the Government. The Cabinet

however while considering the representation of respondents 3 to 5 and one Mohd Sharif Chouhan decided to create four additional posts of

Dy.S.Ps for the aforesaid persons in view of their having served the Police department for more than 10 years before their joining the Government

service pursuant to their selection through Combined Competitive Examination. Petitioner cannot claim similarity with the aforesaid persons as the

case of the petitioner has no semblance of similarity with that of respondents No. 3 to 5.

It has further been submitted that the candidates qualifying the Combined Competitive Examination have been allotted respective Gazetted

Service by the Commission according to the merit in the Competitive Examination as per the choice for service made by them at the time when

they applied for sitting in the competition for the aforesaid examination. The petitioner figures at S.No. 245 (it should be 243) in the merit list and in

view of the aforesaid merit amongst 261 candidates he has been allotted the Jammu & Kashmir Accounts Gazetted Service.

Thus the stand of the State-respondent appears to be that as a matter of policy no change of allocation of department was to be permitted.

However, in view of the fact that respondents 3 to 5 had already been serving in the Police Department before their selection in the Combined

Competitive Examination, therefore, change of cadre in their favour was ordered.

I have heard the learned counsel for the parties.

Mr. Inderjeet Gupta learned counsel for the petitioner has argued that the order of the Government by which the change of department has been

made is arbitrary, whimsical, irrational and discriminatory. He has argued that once respondents 3 to 5 had chosen to appear in the Combined

Competitive Examination, the fact of their earlier serving the Police Department got obliterated and they stood at par with other candidates who

had appeared in the examination and had been selected like them by the Commission. According to him in the matter of allotment of departments

there should have been equality and fairness. Equality rule as enshrined in Article 14 of the constitution require that they should have been allotted

department according to their merit position which they obtained in the Combined Competitive examination and if at all any change was to be

allowed then the petitioner should have also been allowed change as admittedly he possessed better merit than respondents 3 to 5.

Per contra Mr. Salathia learned A.A.G. has argued that the candidates selected have no right to opt for any particular department. According

to him it is the prerogative of the Government to allot any particular department to any particular candidate by considering his suitability to the post

for which he was to be appointed. In support of his contention he has placed strong reliance on the case State of Bihar Vs. Kumar Promod Narain

Singh and Others, .

Since the controversy arises out of the selection made through competitive examination held by the Public Service Commission and relates to

the allocation of the services, therefore, it would be apt to examine the rule position in this behalf.

In exercise of the powers conferred by the proviso to Section 124 of the constitution of J&K the Government of Jammu & Kashmir made and

published SRO 161 dated 17.7.1995 for the purpose of recruitment to the XVIII services enumerated therein with respect to the vacancies

available in Junior scale of J&K Administrative Service and in direct recruitment quota in the enumerated service through Combined Competitive

Examination to be conducted by J&K Public Service Commission in accordance with the provision of J&K Public Service Commission(Conduct

of Examination) Rules 1973.

Rule 8 provides that such examination shall consist of two successive stages; one, Combined Services (Preliminary) for Selection of candidates

for main examination; two, Combined services main examination consisting of written test and an interview.

Once the Government decides for the recruitment in available vacancies Public Service Commission is called upon to conduct the examination

as aforesaid. After the examination the Commission is required to prepare the merit list of the candidates under Rule 10. Then the stage of

allocation of services comes. Rule 10- reads:-

Marks thus obtained by the candidates in the Main Examination (written part as well as interview) would determine their final order of merit.

Candidates shall be allotted to the various services keeping in view their interse merit in the examination and the preferences expressed by them for

the various services and posts;

Provided that any candidate belonging to a class regarding which a provision for reservation of appointment or posts has been made who though

not qualified by the standard prescribed by the Commission is declared by them to be suitable for appointment thereto by reduced standards with

due regard to the maintenance of efficiency in administration, shall be recommended for appointment to vacancies reserved for members of such

class in that service.

From the reading of the rule it is manifest that after drawing up the merit list the Commission has to identify in the list the placement of Reserved

Category candidates who are found suitable for appointment by the reduced standards. After this has been done the question of allocation of the

services is to be addressed. How this is to be done is prescribed in Rule 10 and explanation to Rule 2(a), the said explanation reads:-

Explanation-Candidates shall be allotted to various services and posts keeping in view their merit in the examination and the preferences

expressed by them for various services and posts. A candidate shall be considered for selection only for such of the services as are indicated by

him in the application form and not for any other service which is not mentioned specifically by the candidate therein.

The rule prescribed for allotment to various services is that it shall be done keeping in view the merit obtained in the examination and the

preference expressed by a candidate in his application form for various services and posts for which the vacancies are available for recruitment of

which the examination has been conducted. Thus allocation of the services is required to be made on the basis of merit-cum-preference. It may be

explained thus suppose in Police (Gazetted) service there is one vacancy available, say 10 candidates have given preference for the said service, it

would be allocated to the candidate who has obtained top merit position in the merit list.

Going by the merit-cum-preference rule the Commission recommended the names of the petitioner and private respondents in J&K Accounts

(Gazetted) service, and J&K Cooperative (Gazetted) service for appointment and accepting the recommendation of the Public Service

Commission the Government by its order No. 789-GAD of 1999 dated 12.7.1999 accorded the sanction for appointment of the candidates in

various departments allocated to them and accordingly the selected candidates came to be appointed. Then the Government passed order

impugned on 8.5.2000 which reads :-

Government order No. 515-GAD of 2000.

Dated 08-05-2000.

Sanction is hereby accorded to the:-

Creation of four additional posts of Deputy Superintendents of police in the pay scale of Rs. 7500-12000 in the police Department; and

Appointment of the following candidates declared on the basis of Combined Service Competitive Examination who are serving in the J&K

Police Department prior to their selection/appointment in the department other than police department, against newly created posts:-

_______________________________________________________________________

S. Name of the Service to which allotted

No. candidate vide Govt. Order No.

789-GAD of 1989

dated 12.7.99.

_______________________________________________________________________

Mohd Sharief J&K Accounts(G) service.

_______________________________________________________________________

Pawan Kumar Parihar -do-

_______________________________________________________________________

Manzoor Ahmed Dalai J&K Cooperative (G) service.

_______________________________________________________________________

Altaf Hussain J&K Account (G) service.

_______________________________________________________________________

As consented by ...they shall figure at the bottom of the list of the batch of Dy.S.Ps appointed in the year....

By order of the Government of Jammu and Kashmir.

Could it be legally done? The admitted stand of the Government is that as a matter of policy no change of the department is permissible. Still

the departure from the policy was made in case of the respondents and change of department was allowed by taking into consideration the fact

that before appearing in the Combined Competitive Examination they had rendered service in police department. Mr. Salathia learned counsel for

the State has argued that it is the prerogative of the employer to post its employee in its administrative discretion to any post where his service may

be deemed suitable. An employee has no right to insist for his posting in any particular department or post.

Allocation of a department to a candidate selected on the basis of a Competitive Examination for being directly recruited is no doubt the

incidence of service and no candidate has any right to insist for appointment on a particular post. The State being an employer has absolute

administrative discretion for deciding as to at which particular post/service a candidate be adjusted. However, as the State is also governed by rule

of law. In every democratic set up the State action should be in consonance with such standards or norms which should not be arbitrary, irrational

or irrelevant and this criteria for a valid state action has become a mandatory rule of administrative law. The State sometimes in exercise of its

administrative and legislative power makes rules for regulating its administrative action and itself sets down the norms and standards required to be

observed for taking particular action. Once such standards and norms are prescribed by the State for regulating any particular subject of state

action, it is not legally permissible for it to make a departure there from because such administrative action made in violation of the rules would be

arbitrary and whenever there is room for arbitrariness in a State action it violates the principles of rule of law-the hallmark of the democratic

constitution.

In the present case the State in exercise of the power vested in it u/s 124 of J&K Constitution framed the rules under SRO 161 for regulating

the direct recruitment to the various services. It also provided the norms in rule 10 read with explanation to rule 2(a) to be followed in allocating

service/department amongst the candidates selected by the Combined Competitive Examination for appointment in the various services. After

following the rule admittedly the services came to be allocated amongst the selected candidates. No candidate under law could have any choice in

selecting any particular service out of the available services. There is no rule in SRO 161, which empowered the Government to allow change in

the allocation of service/department by ignoring the merit-cum-preference rule embedded in the said SRO. The appointments in the allocated

services/departments were to be made by direct recruitment meaning thereby that all the selected candidates stood at the same footing.

Be that as it may, the fact remains that petitioner and private respondents 3 to 5 applied for change of their services/departments. As to the

available vacancies the allocation stood made on the basis of merit position, so the Government could not have legally upset the allocation and

appointment of any particular candidate on any of the available vacancies. So it appears from the order impugned that the Government created

four more vacancies for being filled up by the candidates selected by the Commission under Combined Competitive Examination. Whether such

vacancies stood referred to the Commission including the vacancies for the recruitment of which Competitive Examination was conducted is the

question, which has not been raised. Therefore without going to the same let us assume that four more vacancies (newly created) were available in

J&K Police (Gazetted) service for being"" filled up from amongst the selected candidates. The allocation for these four vacancies could only be

made by following merit-cum-preference rule enshrined in SRO 161 irrespective of any candidate's applying for a change in his

service/department.

The Government, however, instead of following the rules in the matter of allocation of services/departments in respect of the newly created

posts ordered the allocation in favour of private respondents and declined the change to the petitioner not on the basis of their inter-se merit-cum-

preference but on the basis of the past service record in police department. The criteria adopted for change of service in my considered opinion is

unsustainable in law. The appointments to be made in the available vacancies were to be made directly on the basis of Combined Competitive

Examination. For being eligible to appear in the examination the past service in any particular department was not relevant. After selection by the

examination every selected candidate stood at the same footing, irrespective of being unemployed or if employed in which service/department he

was working or at what position he was before he was able to get through the competitive examination. His merit position alone was to be

determinative of the service, which he had to get on allocation.

Therefore, the criteria adopted by the Government for allowing change of cadre of the respondents 3 to 5 ex-facie is in contravention of the

rules and is irrelevant. For allocation of police service in four newly created vacancies the Government was bound to follow the rule of merit-cum-

preference in observance of the rules framed under SRO 161. But as the newly created vacancies were sought to be filled up much after the

completion of recruitment process and the opening of the issue of allocation of services according to the rules amongst all the selected candidates

was likely to create difficult administrative situation for the Government, at least it could have followed the rule in allocation of service amongst the

petitioner and private respondents 3 to 5 by assuming that other selectees were satisfied with allocation already made. The Government order No.

515-GAD of 2000 dated 8.5.2000 being arbitrary, discriminatory and violative of rules, therefore, cannot be legally sustained and as such is

quashed. The respondents are directed to re-examine the issue of re-allocation of service amongst the petitioner and respondents 3 to 5 in respect

of the three available vacancies in strict compliance with the rules, within a period of three months.

Disposed of accordingly.