State and Others vs Maharaja Krishan Bhat and Others

This Judgment has been overruled by : Maharaj Krishan Bhatt and Another Vs. State of Jammu & Kashmir and Others, (2008) 106

CLT 778 : (2008) 118 FLR 883 : (2008) 13 JT 593 : (2008) 11 SCALE 29 : (2008) 9 SCC 24 : (2008) 2 SCC(L&S) 783

V.K Jhanji, J.—This appeal by the state is directed against order dated 30.04.2001 passed by the learned Single Judge, whereby state has

been directed to grant the same relief to the writ petitioners as was granted to the writ petitioner in SWP No. 519/87.

In brief the facts are that one Hamidullah Dar, who had been enrolled in the police Department as a constable in the year 1978, possessing

Masters, Degree (Previous) from Kashmir University applied for the post of Sub Inspector in relaxation of recruitment rules. He at that time was

posted in the Office of Director General of Police J&K, Jammu, On receipt of his application, DIGP for Director General of Police, J&K

recommended that sanction be granted to the appointment of Hamidullah Dar, Constable as Sub Inspector of Police in relaxation of recruitment

rules. Government vide order dated 1.4.1897 granted sanction to the appointment of Hamidullah Dar as Sub Inspector of Police against direct

quota vacancy in relaxation of recruitment rules. Writ petitioners, who were graduates, felt aggrieved of the appointment of Hamidullah Dar as sub

Inspector, as according to them they were also fully qualified to be appointed as Sub Inspector being not only physically, educationally and morally

fit but also had better merit and suitability than Hamidullah Dar. They represented to the Government to accord same treatment to then as has been

given to Constable Hamidullah Dar, but since the Government did not act on the representation, the petitioners filed writ petition being SWP No.

351/87 before the High Court Wing at Jammu praying therein that they be treated at par with Hamidullah Dar in the matter of appointment as Sub

Inspector. On 13.9.1991 writ petition was disposed of with a direction to the state that while making appointment to the post of ASI/SI, the writ

petitioners be also considered against the direct recruitment quota as per rules. Director General of police, J&K vide order No 1809 of 1991

dated 13.12.1991 rejected the representation of writ petitioners on the ground that they had appeared in the test but did not make the grade and

thus are not entitled for appointment to the post of ASI/SI. The writ petitioners were not satisfied with the order whereby representation was

rejected as they were under the impression that they were to be given the same treatment in the matter of appointment as Sub In- spector as it was

done in the case of Hamidullah Dar. The petitioners thus filed contempt petition being COA No. 24/92 for initiation of contempt proceedings

against Director General of Police. The contempt petition was disposed of on 23.7.1992 with a direction to Director General of Police to consider

the case of writ petitioners in case they fall in the eligibility clause and also on the touch stone of the case of Hamidullah Dar for promotion/

appointment as Sub Inspector. The case of writ petitioners was reconsidered, but vide order dated 16.9.1992 the same was rejected. Being

aggrieved of the order, writ petitioners filed another contempt petition being COA No 162/92. However, vide order dated 9.5.1994 the contempt

petition was dismissed as the learned Judge deciding the contempt petition was of the view that the direction for consideration of writ petitioners

case afresh did not imply that they had to be necessarily selected or appointment nor envisaged that all the rules should be given to bye for

appointing them to the post of Sub Inspector. Since the court's order directing their consideration subject to eligibility had been carried out, the rule

issued in the contempt petition was discharged. The writ petitioners took the matter in appeal, but appeal too was dismissed on 11.7.1997.

Undeterred, writ petitioners filed SWP No. 3735/97, order passed in which is the subject matter of this appeal, seeking direction that they be

appointed Sub Inspector retrospectively by treating them at par with Hamidullah Dar. They also sought quashing of order whereby the

representation had been rejected by the Director General of Police. Upon notice of the writ petition, the state filed counter through Director

Prosecution. The state took up the plea that the writ petitioners cannot be given out of turn promotion/appointment ignoring the claim of hundreds

of Constable/Head Constable's and Assistant Sub Inspector, and appointment if given will amount to grant of promotion against the rules. It was

also stated that in police force accelerated or out of turn promotion can be granted by the Director General of Police of one rank only and that too

on the extra ordinary performance by the official concerned, and in this case the writ petitioners had not done anything which would entail them for

out of turn promotion to the rank of Sub Inspector. The state denied the allegation of writ petitioners that Director General of Police had assured

them that they would be given the same treatment as was given to Himidullah Dar and rules would be relaxed in their case as well. The stand of the

state was that relaxation of recruitment rules is not with in the power of Director General of Police but within the power of state Government and

Government alone is competent to relax the rules. It was denied that there was any discrimination vis-a-vis the writ petitioners.

Before the writ court the writ petitioners not only cited the case of Hamidulllah Dar for giving them out of turn promotion/ appointment, but also

submitted that the appointment of Hamidullah Dar challenged by one Abdul Rashid in SWP No 519/87 and the said writ petition was allowed by

the Srinagar Wing of High Court on 24.9.1998. Learned Single Judge relying on the order passed in the said writ petition, whereby appointment of

Hamidulah Dar was not disturbed but Abdul Rashid was directed to be given the same treatment as was given to Hamidullah Dar, allowed the writ

petition directing that the petitioners be given the same treatment. Learned Single Judge also took notice of fact that against the order passed in

SWP No 519/87, letters patent appeal was preferred by the state, but the same was dismissed and the SLP was also dismissed by the Supreme

Court. Hence the appeal by the State.

Learned counsel for the appellants contended that the writ petitioners cannot seek appointment against the rules not any appointment which was

made against the recruitment rules can be made the basis to seek appointment to the post. The precise submission of the learned counsel for the

state is that Article 14 of the constitution of India cannot be invoked on the basis of an order in favour of other person which was contrary to law.

On the other hand learned counsel appearing on behalf of writ petitioners contended that the writ petitioners are not only similarly situated by

Hamidullah Dar was possessing lesser merit, suitability and efficiency as compared to writ petitioners. He also contended that Abdul Rashid, who

had challenged the appointment of Hamidullah Dar, has since been appointed and on this score alone the writ petitioners are entitled to the same

treatment. He contended that the learned Single Judge has not acted erroneously in directing the state to give similar treatment to writ petitioners as

has been given to Hamidullah Dar and Abdul Rashid.

We have heard learned counsel for the parties at length and carefully gone through the record of this case.

In SWPMp. 519/87 filed by Abdul Rashid a definite finding recorded by the writ court that appointment of Hamidullah Dar was in relaxation of

recruitment rules and the relaxation so granted was contrary to the decision given by the Supreme Court in J and K. Public Service Commission,

etc. Vs. Dr. Narinder Mohan and others etc. etc., . Hamidullah Dar was appointed in the year 1987 and the writ petition challenging his

appointment came to be decided in September 1998. The writ court considering that appointment of Hamidullah Dar had been made 11 year

before, did not deem it fit to quash his appointment. The state, however was directed to accord same treatment to Abdul Rashid. The state being

aggrieved took the matter in appeal but the LPA Bench after noticing that Hamidullah Dar had been in service as Sub Inspector for 11 years and it

would not be proper to cancel his appointment dismissed the appeal. The state went to the Supreme Court in SLP but the same was dismissed in

limine. Because of the directions given by the writ court, state had no option but to appoint Abdul Rashid. The appointments of Hamidullah Dar as

well as Abdul Rashid were against the vacancies meant for direct recruits. In the case of Hamidullah Dar recruitment rules were relaxed although

relaxation was contrary to the decision of Supreme Court in Narinder Mohan's case (supra), whereas Abdul Rashid too had not undergone the

process of selection but was appointed in pursuance of directions given by the court in a writ petition filed by him. It is further not in dispute that

direct recruitment to the post of Sub Inspector is on the basis of selection to be made by the J&K state service selection Board. Thus, the only

question which arises for consideration is whether the writ petitioners are entitled to the same relief which was given to others in violation of

recruitment rules.

In Chandigarh Administration and another Vs. Jagjit Singh and another, Supreme Court opined that if the order in favour of the others person is

found to be contrary to law or not warranted in the facts and circumstances of his case, then such illegal or unwarranted order cannot be made the

basis of issuing a writ compelling the authority to repeat the illegality or to pass another unwarranted order. It was also said that extraordinary and

discretionary power of the High Court cannot be exercised for such a purpose and that too because the authority had passed one

illegal/unwarranted order. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest.

It will be a negation of Law and the rule of law.

In Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, the Supreme Court said that ""the guarantee of equality

before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other words, if an illegality or

irregularity has been committed in favour of any individual or a group of individuals, the other cannot invoke the jurisdiction of the High Court or of

the Supreme Court that the same irregularity or illegality be committed by the state or an authority which can be held to be a state within the

meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which

have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have

been passed in favour of persons who were not entitled to the same but they cannot claim orders which are not sanctioned by law in their favour

on principle of equality clause this concept nor Article 14 of the constitution conceives within the equality clause this concept nor Article 226

empowers the High Court to enforce such claim of equality before law. If such claim are enforced it shall amount to directing to continuance and

perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must

be established by the petitioners that his claim being just and legal has been denied to him, while it has been extended to others and in this process

there has been a discrimination.

In I.C.A.R. and another Vs. T.K. Suryanarayan and others, the Supreme Court reiterated that ""even if in some cases, erroneous promotions

had been given contrary to the service Rules and consequently such employees have been allowed to enjoy the fruit of improper promotion, an

employee cannot base his claim for promotion contrary to the statutory service Rules in law court. In correct promotion either given erroneously by

the department by misreading the said service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory

service Rules. In a court of law, employees cannot be permitted to contend that the Services Rules should not be adhered to because in some

cases erroneous promotion had been given"".

In Union of India and Others Vs. Rakesh Kumar etc., the Supreme Court took the view that ""by erroneous interpretation of the rules if

pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be

unjustifiable to submit that by appropriated writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is

no question of application of Article 14 of the constitution. No person can claim any right on the basis of decision which is de hors the statutory

rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship.

In the light of law laid down by the Supreme Court in the aforementioned cases that relief wrongly given to others cannot be made the basis to

issue writ or order in another case, it is now to be seen whether the writ petitioners have enforceable legal right to claim appointment to the post of

Sub Inspector. It is not in dispute that the writ petitioners were recruited as constable and in due course were promoted to the post of Head

constable and presently are holding the post of Assistant Sub Inspector. In case the state is directed to give same treatment to them as was given

to Hamidullah Dar and Abdul Rashid, the effect would be that the state will have to appoint them as Inspectors because presently Hamidullah Dar

and Abdul Rashid are holding the posts of Inspector. It would mean that without undergoing the process of selection in accordance with the

recruitment rules the writ petitioners would rank senior to the persons who may have come to be appointed in police force much prior to the

petitioners. The main contention of the writ petitioners is that they being graduates are entitled to be promoted as Sub Inspector as was done in the

case of Kamidullah Dar. The state in its counter has stated that hundreds of graduate and post graduates are working as constable/Head Constable

in the police department and if the writ petitioners are directed to be appointed as Inspectors, then all those who are graduates and post graduates

shall seek the same treatment and in that eventuality all will have to be appointed without undergoing the process of selection.

During the course of hearing of this appeal learned counsel for the writ petitioners fairly conceded that against the vacancies meant for direct

recruits, the writ petitioners had competed but not selected as they did not make the grade. The writ petitioners, who did not make the grade on

merit, cannot seek appointment to the post of Sub Inspector simply because they are graduates nor this Court can direct the state to appoint them

as Sub Inspector/Inspector in relaxation of rules as it will amount to negation of rules. The Supreme Court in Suraj Parkash Gupta and Others Vs.

State of Jammu & Kashmir Others, while noticing that state of J&K in making appointment had been flouring basis rules of recruitments by relaxing

the rules and also rules requiring consultation with PSC/DPC for promotions/recruitment, gave certain general directions to the State of Jammu and

Kashmir so as to ensure that the rules are not flouted in future. One of the directions was that the state of J&K will ensure that no relaxation is

made for direct recruitment through PSC/DPC for purpose of appointment, regular promotion/recruitment by transfer. This being the law and there

being no rule providing that all graduates as a matter of course are to be appointed as Sub Inspector, writ petitioners do not have any enforceable

legal right and thus are not entitled to the relief sought for in the writ petition.

In will not be fair if we do not notice the judgment cited by the learned counsel for the writ petitioners. Learned counsel for the writ petitioners

cited H.C. Puttaswamy and others Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others, in which their Lordships of the

Supreme Court after considering that the employees who had been appointed against the recruitment rules were in services for more than 10 years

and some of them in the normal course had been promoted to the higher cadre and had crossed the age for entry into any other service, did not

quash their appointment. Reading of para 16 of the judgment shows that the circumstances of said case justified an humanitarian approach and the

appellants therein deserved justice ruled by mercy.

In Dr. Narinder Mohan's case (supra), the supreme court said held that in absence of statutory rules the state in exercise of Article 162 can

create civil posts and fill them up according to executive instructions consistent with Article 14 and 16 of the constitution. We fail to understand in

what manner this judgment can be applied to the facts of present case.

In J.C. Yadav and others Vs. State of Haryana and others, the Supreme Court opined that if the rule confers power on the Government to

dispense with or to relax the requirement of any of the rules to the extent as it may consider necessary for dealing with the case in a just and

equitable manner, the same can be exercised. There is no dispute with this proposition of law because the object and purpose of conferring such a

power on the Government is to mitigate undue hardship in any particular case and to deal with a case in a just and equitable manner. It is also true

that the power to grant relaxation can be exercised in case of any individual to remove the hardship being caused to him or number of individuals

who may be similarly placed, but in the case of writ petitioners if rules are directed to be relaxed that will cause hardship to hundreds of

Constable/Head Constable and Assistant Sub Inspector who are in line for promotion to the post of Sub Inspector.

In our view the judgment cited by the learned counsel for the writ petitioners do not render any assistance to the case of writ petitioners.

In view of the above, the appeal is allowed and judgment of learned Single Judge is set aside, resultantly the writ petition is dismissed with no

order as to costs.