Nishan Singh vs State of Jammu & Kashmir and Others

Muzaffar Hussain Attar, J.—In the year 2002 in pursuance of policy decision of the State Government to make on spot recruitment in the

State Police Organisation on spot selection process was conducted by the respondents in which petitioner being one of the Candidate qualified

physical test. Provisional selection list was notified in which petitioner figured at Serial No. 10. Petitioner was not ultimately appointed which

constrained him to file SWP No. 127/2006, which was disposed of by the Court vide order dated 25.09, 2006.The operative part of the said

order is reproduced as under:

In view of the above statement made by the learned AAG, this petition is admitted and disposed of with a direction that respondent No. 2 shall

consider the decide the representation of the petitioner for considering his case for appointment against the post of Constable on the same analogy

as has been done in the case of private respondent No. 4. This would be done within a period of four weeks from the date of receipt of a copy of

this order by respondent No. 2. In case, any adverse order is passed, then a speaking order would be passed and the petitioner shall also be given

a personal hearing.

Writ petition disposed of along with connected CMPs, if any, in the matter indicated above.

Learned counsel for the petitioner submitted that petitioner, who had qualified physical test and was shown to be selected and figured at Serial

No. 10 of the selection list, has been illegally and arbitrarily not appointed. Learned counsel also submitted that one Ravinder Singh (respondent

No. 4 herein) is shown to be appointed on compassionate grounds, but the compassion referred to is that he belongs to poor family. Learned

counsel also submitted that during the pendency of the writ petition, respondent No. 5 has been appointed who had also participated in the

selection process along with petitioner who has been subjected to invidious discrimination, inasmuch as, his claim has been wrongly rejected.

Mr. Basotra, learned AAG appearing for respondents submitted that besides others, physical measurement of the petitioner and private

respondents was taken in the month of July, 2002 but matter could not proceed further because of enforcement of Model Code of Conduct in

view of the assembly election of 2002. Learned counsel also submitted that petitioner does not form a class with the respondent No. 4 as his

appointment has been made purely on sympathetic consideration for the reason that he belongs to poor family. Learned counsel submitted that

claim of the petitioner has been considered by the competent authority and after considering the matter in lib entirety reasoned order has been

passed. Learned counsel submitted that appointment in the respondent department is to be made strictly in accordance with rules and petitioner is

not entitled for any relief. Learned counsel further submitted that petitioner Cannot base his claim for appointment, which has been made in favour

of the private respondent as in the event the Court finds that the appointment of private respondent is illegal then that is to be quashed. Learned

counsel accordingly prayed for dismissal of the writ petition.

It is not in dispute that petitioner has not participated in the selection process. It is also not in dispute that petitioner physical measurement was

taken. The plea of the petitioner, as projected in the writ petition, is that he figured at Serial No. 10 of the tentative selection list is not denied in the

objection which is supported by an affidavit. The only ground on which appointment has been denied to the petitioner is that matter could not

proceed further in view of the enforcement of Model Code of Conduct at that point of time.

Petitioner, in view of the afore stated facts, was selected candidate and was to be appointed on the post of Constable. The selection process

was halted in its tracks because of enforcement of Model Code of Conduct. It is true that selected candidate does not get any vested right for

being appointed on a post But when exercise is initiated for making selection to a post, then that selection process is to be brought to its logical

conclusion either by appointing successful candidates on the post for which selection process was initiated or for some valid reasons appointment

may be denied to the candidate. Selection process is initiated in pursuance of a decision of an authority to fill up a post. All eligible candidates are

subjected to the selection process to find out the meritorious and suitable candidate to whom appointment would be offered. The selection process

without there being any valid reason, cannot be truncated in law and left midway.

The ground on which the 2. State, feeling aggrieved of the said judgment, filed time barred Letters Patent Appeal. Letters Patent Bench vide order

dated 19.04.2007 dismissed the Condonation of Delay application as well as LPA.

When the judgment was not implemented, petitioner filed Contempt Petition COA (SW) No. 128/2007. In the contempt proceedings, affidavit

was filed by Director General of Police stating that respondent No. 4 was appointed by Sh. Gopal Sharma, Ex-Director General of Police as

Constable in the J&K Police purely on compassionate grounds. Thereafter another affidavit was filed in the said contempt petition by the same

authority and paragraph 3 thereof is reproduced as under:

That the case of the private respondent namely Sh. Ravinder Singh S/o Naseeb Singh, who belonged to a poor family was received in the Police

Hqrs in the year 2005 and accordingly the same was considered sympathetically and keeping in view the family status of the private respondent, he

was appointed as Constable by the then DGP, vide PHQ Order No. 2784 of 2005 dated 13.09.2005 in exercise of the powers vested in the

DGP.

Contempt petition was disposed of by the Court vide order dated 07.05.2009. The relevant paragraph thereof is reproduced as under:

However, at this stage, Mr. S.C. Gupta, learned AAG, appearing for respondent made a statement at the bar that the respondent will have no

objection in reconsidering the claim of the petition on the analogy of similarly situated official whose name has been referred to above.

In view of the statement made by Mr. S.C. Gupta, learned AAG, this petition is disposed of with a direction that the petitioner shall file a detailed

representation before the respondent, who shall consider and dispose of the same by passing a speaking order within a period of two months from

the date a copy of this order along with the representation, if any, is filed by the petitioner. In case the petitioner is able to project before the

authority concerned that he is similarly situated to respondent No. 4 whose name has been mentioned above and who has been granted the benefit

then the petitioner shall also be accorded the same treatment.

Representation was filed by petitioner in which he mentioned that one Ravinder Singh, whose name appeared in the select list has been

appointed as Constable in District Police Kathua. Copy of the appointment order was also enclosed with the representation,

DGP considered the representation of the petitioner in pursuance of the orders passed by the Court and vide Order No. 3431 of 2009 dated

25/09/2009 rejected the same.

Petitioner, being aggrieved of the said order has challenged the same in this writ petition.

On notice issued, official respondents have filed objections.

Heard learned counsel for the parties. Considered the matter.

appointment is denied to the petitioner after having been tentatively selected is that process could not be carried forward because of enforcement

of the model code of conduct. It is not the claim of the respondents that the petitioner could not secure requisite merit for being appointed on the

post of Constable.

A duty was cast on the respondents to carry forward selection process, after model code of conduct was over and offer appointment to the

selected candidate. In the facts and circumstances of this case leaving the selection mid way, is held to be not justified. Respondents were duty

bound to offer appointment to the selected candidate after the model code of the conduct was over.

Petitioner has been continuously pursuing his claim either before the Court or before the authorities. Respondents were duty bound in law to

take a decision in the Aforestated background. Unfortunately, the claim of the petitioner has been rejected on the ground that he is not similarly

circumstanced with Mr. Ravinder Singh who is claimed to have been appointed on the compassionate grounds because he come from humble

surroundings.

A post available in the State and with its authorities is a public property and all eligible candidates have right to seek consideration for being

selected and appointed on a post when same is notified by the State and its authorities after declaring their intention to fill up the same. This

mandate is contained in Article 16 of the Constitution of India, When State and its authorities make appointment on a post, presumption is that said

appointment is legal unless same is challenged in appropriate proceedings and is declared to be illegal by the Court of law. There can be another

ground also for undoing the wrong committed by the authorities viz. the authority itself can rescind and revoke its order after recording reasons that

order was illegal. In this case nothing is stated in the objections that at any point of time any effort was made to rescind order passed in favour of

the private respondents. Presumption is that orders passed in favour of the private respondents are legal. Petitioner was to be given same treatment

in view of the statement made by the learned counsel for respondents during the contempt proceedings and petitioner could not be denied

appointment in the manner same has been denied to him in terms of impugned order.

The respondents have not acted in just manner in denying appointment to petitioner.

For the above stated reasons, this petition is allowed in the following manner:

a. By issuance of writ of Certiorari, impugned order No. 3431 of 2009 dated 25.09.2009 passed by respondent No. 2 is quashed.

b. By issuance of writ of Mandamus respondents are directed to offer appointment to the petitioner and appoint him on the post of Constable

within a period of two months from the date copy of this order is served upon them. It is made clear that respondents will not entertain any like

claim and even not appoint any other person in the manner in which it is directed in this judgment. It is further provided that upper age limit fixed for

appointment of Constable shall be deemed to have been relaxed in respect of petitioner in view of the peculiar facts and circumstances of this case.