Sudershan Mehta vs State

By this common judgment I propose to dispose of all the three petitions together. Whereas SSWPs 218 and 974 of 1993 were admitted to

hearing on 13.12.1993 and 23.3.1994 respectively and are thus being finally disposed of. In SSWPNo. 800/93, vide court order dated 12.5.94,

the parties had agreed that this petition, even being without formally admitted to hearing be disposed of at the motion hearing stage. It also requires

to be observed that despite order dated 20.12.1994 passed in SSWP No.800 of 1993 wherein respondents were directed to produce the original

record before the court for consideration and despite the fact that other petitions were posted for final hearing, the respondents, particularly the

State Government did not chose to produce any record whatsoever before the court for its perusal or consideration.

The facts are very simple and wholly undisputed. The petitioners are all working as SubInspectors in Jammu and Kashmir Police, having been

appointed as such directly from time to time. Respondent Sanjay Sharma (arrayed as respondent No.6 in SSWP No. 218/ 93 and as respondent

No.3 in the other two petitions) was also appointed as SubInspector directly in Jammu and Kashmir Police. Admittedly, respondent Sanjay

Sharma was appointed as SubInspector at a point of time later than all the petitioners and, therefore, on the post of SubInspector and in that

grade, he was junior to the petitioners. Vide notification SRO 82 dated 7.4.1992, the Govt. of Jammu and Kashmir in exercise of powers

conferred upon it by proviso to section 124 of the State Constitution etc. promulgated Jammu and Kashmir Government Employees

(Appointments of outstanding sports personnel) Rules 1991 (1991 Rules for short). These rules were to come into force immediately on the

issuance of the aforesaid notification. Even though the rules did not have any preamble, purportedly and ostensively these were issued to enable the

Government to appoint outstanding sports persons in any department of the government against any vacancy in the nongazetted cadre,

notwithstanding any procedure or rules regulating such appointments in force to the contrary in any other government notification or order etc.

Outstanding Sports Persons"" has been defined in the definition para of 1991 Rules and reads as under:

(ii) ""Outstanding Sports Persons"", means

(a) a person who has won first or second position in individual events or first position in team events in National or All India LiterState

Competitions (Senior Level officially recognised) in any of the games/sports mentioned in AnnexureI annexed to these rules;

or

(b) a person who has represented India at the Olympic games, Asian games or other officially recognized test matches and World Cup

competitions in any of the games/ sports mentioned in AnnexureI annexed to these rules.

The power to make appointment of an outstanding sports person in government services as observed above has been conferred upon the

government under 1991 Rules in Rule3 thereof which reads as under:

Appointment by the Government:Notwithstanding anything contained in the rules or orders for the time being in force regulating the procedure

for appointment to any service under the Government, the Government may consider the appointment of any outstanding sports person at its sole

discretion in any department against any vacancy in the nongazetted cadre for which such sports person is otherwise eligible and qualified for such

appointment subject to the conditions:

(i) that his eligibility has been certified by the Sports Council;

(ii) that he is fully qualified for the post under the relevant recruitment rules regulating that post.

Rule4 permits a sports person already in Government service also for consideration for appointment, depending upon his being qualified for the

same. Rule7 says that all cases under these rules shall be processed for appointment by the General Administration Department. This rule being

relevant for our purpose may be quoted as under :

All cases under these rules shall be processed for appointment by the General Administration Department.

In pursuance to the aforesaid 1991 Rules, therefore, respondent Sanjay Sharma was appointed as Inspector of Police on the basis of his

outstanding performance in the field of sports vide Govt. Order No. 293GAD of 1993 dated 6.4.1993. This order reads as under :

Government of Jammu and Kashmir General Administration Department.

Sub: Appointment of Shri Sanjay Kumar, SubInspector of Police as Inspector of Police.

Ref: Home Department's office memo No. Home/102/Appt/92/PBIII dated 30.11.1992.

Govt. Order No. 293GAD of 1993 dated 06.4.1993.

In pursuance of rule 4 of the Jammu and Kashmir Government Employees (Appointment of outstanding sports personnel) Rules, 1991, sanction is

accorded to the appointment of Shri Sanjay Kumar SubInspector as Inspector of Police on the basis of his outstanding performance in the field of

sports as certified by the Secretary, Jammu and Kashmir Sports Council provided he is otherwise eligible for such appointment.

By order of the Government of Jammu and Kashmir.

Sd/

(B.S.Jaswall)

Secretary to Government, General Admn. Department.

On April 7,1993, Director General of Police, Jammu and Kashmir repeated his own order, making reference to the aforesaid Government

Order No. 293GAD of 1993 and reiterated the appointment of Shri Sanjay Sharma as Inspector, Police (Surprisingly one does not understand as

to where was the need for the issuance of such an order}. This order reads as under:

Police Headquarters Jammu and Kashmir,

Jammu.

Order No. 852 of 1993

Dated: 0741993

Vide Government Order No. 293GAD of 1993 dated April 6, 1993, Shri Sanjay Kumar S/O Sh. Sagar Chand Sharma R/o 14A Ahata Amar

Singh, Jammu presently working as SubInspector of Police and undergoing training in PTC Udhampur has been appointed as Inspector of the

Executive Police in the pay scale of Rs.2000602300EB753200 on the basis of his outstanding performance in the field of sports as certified by the

Secretary, Jammu and Kashmir Sports, Council, in pursuance of rule4 of the Jammu and Kashmir Government Employees {appointment of

outstanding sports personnel, Rules, 1991).

Shri Sanjay Kumar (Now Inspector) will continue his training in PTC Udhampur.

Sd/

{B.S.Bedi)

EX3 Police, Jammu and

Kashmir, Jammu.

The petitioners have challenged the constitutional validity and legality of the appointment of respondent Sanjay Sharma as Inspector, Police vide

the aforesaid two orders dated 6.4.1993 and 7.4.1993 (hereinafter to be called the impugned orders) purportedly issued in terms of rule4 of 1991

Rules on the plain, simple and sole ground of violation of Articles 14 and 16 of the constitution of India which guaranteed them, along with

respondent Sanjay Sharma the right of equal opportunities in the matter of appointments in the services of the State. The petitioner's grievances are

that they themselves were highly proficient, eminent and outstanding sports persons, squarely falling within the purview, scope and purpose of 1991

Rules and, they being similarly situated as respondent Sanjay Sharma, rather having superior claim, merit and seniority over respondent Sanjay

Sharma were entitled as a matter of right to be considered along with respondent Sanjay Sharma and all others when the appointment to the post

of Inspector Police was being made by the Government. The petitioner's limited grievance is that the appointment of respondent Sanjay Sharma on

the post of Inspector, Police was made by the respondentState without in any manner associating the petitioners or to that matter any other person

in the process of selection or consideration or without affording the petitioners or any other person any opportunity whatsoever of consideration or

participation in the selection process. Put in concrete terms, the petitioners case is that, respondentState did not evolve any method or procedure

whereby either any advertisement was issued indicating its intention to fill up the post of Inspector. Police under 1991 Rules or allowing any other

sports person covered by these rules, the opportunity of applying for consideration for appointment on this post. In various paragraphs of all the

three writ petitions, the petitioners have given de tailed facts regarding the excellency achieved by them in various fields of sports. They have also

filed various documents along with the petitions in support of their contentions that they were eminent, proficient and outstanding sports persons.

The petitioners have taken pains to emphasise that they were fully eligible and covered by 1991 Rules as outstanding sports persons because, they

fell within the purview, scope and definition of the expression ""outstanding sports persons"" as occurring in clause 22 (ii) (a and b) of 1991 Rules.

According to them the appointment of respondent Sanjay Sharma is an act of favoritism by the State Government, resulting in hostile discrimination

against the petitioners, because respondent Sanjay Sharma was singled out by the respondentState for favorable treatment on purely arbitrary and

whimsical bases and without adopting any procedure or norms whatsoever.

It is much more important to analyse the stand of the State Government in the objections/counters filed in the petitions. It is also note worthy and

interesting to appreciate and understand the stand taken by respondent Sanjay Sharma himself in his separate objections/counters filed in answer to

the writ petitions in all the three cases. None of them, neither the State Government nor respondent Sanjay Sharma has contested, controverted or

refuted any of the aforesaid factual allegations leveled with regard to the appointment of respondent Sanjay Sharma by the petitioners. The

respondents do not, even indirectly or remotely dispute that the petitioners were outstanding sports persons, as squarely falling within the scope,

ambit and purview of this expression, as contained in 1991 Rules. The respondents have no way even by remote suggestion contended that the

petitioners were not eligible for consideration in terms of rule3 of 1991 Rules or that they themselves were either inferior in any manner to

respondent Sanjay Sharama or that they were not covered by 1991 Rules. Respondents have not even contented or controvered the fact that all

the petitioners, as SubInspectors were senior to respondent Sanjay Sharma. Only in case of petitioners Sudershan Mehta in SSWP No. 218/93,

respondent Sanjay Sharma has halfheartedly, vaguely and fainity made an indirect suggestion that this petitioner does not fall within the purview of

being an outstanding sports person as defined in 1991 Rules. I may say the attempt was halfhearted, faint and vague because in the same

paragraph after the aforesaid averment, respondent Sanjay Sharma has himself admitted that the petitioners could seek consideration under the

1991 rules by approaching the competent authority. I may also say so on the basis of the fact that whereas, in paras2 and 3 of the writ petition, the

petitioner Sudershan Mehta has indicated in full details all the particulars of his achievements as a sports person, viz. that he participated in Cooch

Bihar Trophy organised by the Board of Cricket Control of India, C.K. Naidu Trophy organised by All India Schools Games was selected for

C.K. Naidu Trophy organised by Board of Cricket Control of India was selected in the North Zone Cricket Team, participated in the Ranji

Cricket Tournament and in many other national events at various levels. As against these detailed particulars regarding the achievements of the

petitioner reflected in paras2 and 3 of the petition, the reply of respondent Sanjay Sharma, as contained in his counter may be reproduced as

under:

In reply to averments made in paras No. 2 and 3 it is most respectfully submitted that the answering respondent is an outstanding sports

person who represented Jammu and Kashmir State and India at National and International Levels respectively . The biodata of the answering

respondent which is attached herewith as AnnexureI clearly substantiates the proficiency of the answering respondent in the game of Hand Ball.

Various certificates and testimonial witnessing the achievements made by the answering respondent are attached as Annexures Rule 1 collectively.

Nothing more was required to establish that the attempt to dispute the eligibility of petitioner Sudershan Mehta also was halfhearted, faint and

vague.

Coming to the mode and method of selection, the respondents have not, neither the respondentState nor respondent Sanjay Sharma at all

controverted the allegations of fact levelled by the petitioners. It is not the case of the respondents that either any advertisement was issued for

filling up this post, or that any person other than the petitioners was considered while appointment was being made in favour of the petitioners. The

respondents have not put up any case that either the petitioners or any other serving police official was ever either invited or allowed or permitted

to participate in the selection process or to compete with the petitioner. Respondents have admitted the allegations of the petitioners that no

opportunity whatsoever was afforded to the petitioners or any one else asking or permitting them to apply for these posts nor were the petitioners

or any one else invited by any mode or method and being considered along with respondent Sanjay Sharma.

The only case set up by the respondentState as well as respondent Sanjay Sharma is that he was an outstanding sports person, the Govt. had

an absolute authority, power and jurisdiction to appoint any one who applied for such an appointment and whom the government considers fit and

suitable. Much reliance was laid on the expression ""at its sole discretion"" to emphasise that the government was the sole arbiter of the power to

make appointments under 1991Rulesandthatthepowerto make such appointments was unquestionable, untrembled and unfettered. It was

submitted and argued on behalf of the respondents that the government was not obliged to take recourse to any mode or method for making

selection for such an appointment and that the petitioners being eligible under 1991 Rules and having applied, the government was obliged and the

petitioner were entitled for making and obtaining the appointment.

Ever since the Constitution of India came into force, bringing with it the noble concept of equality before law and equal opportunities to all

citizens, as contained in Articles 14 and 16, the legal jurisprudence in this country has now been indisputably well settled that, in matters of public

employment, all citizens have a guaranteed right of equal opportunities and that the State can neither discriminate against a citizen nor accord

favorable treatment to the others. Whereas Article 14 expresses the general intendment of Constitution makers as to equality before laws, Article

16 indicates particular application to the doctrine of equality to provide equal opportunities to all citizens in the matters relating to employment or

appointment to any office under the state. These two Articles are not by way of a mere prohibition, but confer an abstract right of equality and their

violation by the State strikes at the very root of the equal opportunity and guaranteed right in favour of citizen. The right to equality, as enshrined in

Article 14 is a genus and the right to nondiscrimination as contained in Article 16 are its species. Every citizen irrespective of caste, sex, religion,

birth etc. is entitled to these rights. The object of both the Articles is to ensure equality of opportunities for all citizens in matters relating to

appointment to public offices because both form part of same constitutional code of guarantees and supplement each other. While Article 14

guarantees general right of equality, Article 16 is an instance of same right in favour of citizens in certain special circumstances, rather an incident of

the application of concept of equality in the particular field of service jurisprudence. Violation of either Article 14 generally or Article 16 particularly

specifically renders the offending government orders, law and rules void and nonest. Equality of opportunity, in the matters relating to service

jurisprudence clearly means that a citizen has equal chance with others in matters relating to employment under the State. In other words, it means

that in matters of employment under the State, equality as between members of same class of employees has to be ensured and guaranteed and

that in the same class of employees, the State cannot act arbitrarily by picking up and choosing a favourable one for grant of either a largess or a

concession and by ignoring others, even others may have either equal or better merit than the one arbitrarily picked up and chosen by the State for

favourable treatment. Every eligible candidate has a right to be considered, even though no such person has a right to either appointment or

promotion. Public employment opportunity is a wealth in which all citizens are equally entitled to share and no class of people can be permitted to

monopolies public employment either in the guise of ""efficiency"" or on any other ground. The right to equal opportunity to public employment

cannot be thus treated as a new form of private property with its attributes or competitive exploitation.

Viewed in the aforesaid legal and constitutional backdrop, and the settled position of law assisting in our country today, what but with

consistent and uniform pronouncements on the subject by the Apex Court of the country and by various other High Courts, let us now examine as

to whether the appointment of respondent Sanjay Sharma was in violation of Articles 14 and 16 of the constitution.

Undoubtedly the objectives for which 1991 Rules were brought into vogue and promulgated can neither be faulted nor assailed nor

condemned because, every one would agree that sports in our Country, has to be promoted in every respect and good talented and outstanding

sports persons have not only to be given due recognition, but encouragement in all fields and, if to achieve this noble objective, the State takes a

policy decision to award outstanding sportspersons by giving them employment, by way of exception to the general rule of procedure for

recruitment in Govt. services, the State's policy had indeed to be leaded. If the State does come across a talented sports person of outstanding

merit and proficiency, who deserves to be given recognition by being suitably rewarded, one cannot perhaps dispute the State's right to give him

either outofturn promotion or even employment by way of direct recruitment, since such an act of the State would go a long way in promoting

sports in the Country and in encouraging genuine, bonafide and out standing youths to take to sports in a big way. So for so good. The policy of

the State, even though laudable

and praiseworthy has to follow certain well recognised rules, which in turn have their basis originating to the principles of law enshrined in the

.constitution. If one therefore tests the constitutionality and soundness of rule3 of 1991 Rules, one finds that this rule gives absolute, arbitrary,

unfettered and unlimited powers to the State Govt. to appoint ""any outstanding sports person"" at ""its sole discretion"" in any department against any

vacancy in the nongazetted cards. Rule3 read with rule 7 empowers the General Administration Department of the State Govt. to process the

appointment cases of ""every such outstanding sports person"". As will be seen from a careful and minute perusal of 1991 Rules, no guidelines or

parameters have been prescribed in any para thereof whereby the power to make appointment has been channelised. These rules do not contain

any stipulation or any provision so as to indicate as to how, in what manner and on what consideration the appointment has to be made and who

are eligible for being accorded consideration and ultimately being granted the benefit of rules for the purposes of the appointment. It is too late in

the day now to argue that the government can do anything ""at its sole discretion"". The accountability of the Government of public, the cleanliness

and transparency of its acts and deeds is the hallmark of Indian democratic system, based on the fountain head of law. It is synonymous to the very

basic concept of Rules of law. Had, therefore, 1991 Rules contained any guidelines and parameters regarding the exercise of the powers and had

those parameters and guidelines been consistent with the principles of natural Justice, fair play, good conscience and the concept of equality

contained in Articles 14 and 16 of the constitution, and had those guidances and parameters been followed by the Government in making the

appointment, this Court would not have had any hesitation whatsoever in upholding the appointment in its entirety. Unfortunately in the present

case, neither the rules contain any guidelines or parameters nor for that matter the process of appointment on the administrative side has been

accompanied by the exercise of the aforesaid principles of natural Justice, fair play, good conscience and equality of opportunity, any attempt to

defend the impugned orders or the action of the Government in appointing respondent Sanjay Sharma on the post of Inspector of police can

neither be justified nor hold to be responsible or even defensible.

There is another angle to the controversy. 1991 Rules are a piece of delegated legislation. If the delegated or subordinate legislation did not

contain the guidelines and parametters, one could still sustain the legislation, if in pith and substance, it conformed to Article 14and 16, if mere even

existed administrative guidelines, parameters or instructions so as to regulate the procedure to be adopted for achieving the purposes of the rules.

Not only that one can perhaps go a step further, and in a given case, with reference to its particular peculiarities, one may even examine the merits

of a particular selection or appointment to find out, as to whether, even in the total absence of guidelines and parameters either in the rules

themselves or even in the administrative instructions, was the selection process or the act of making appointment accompanied by the observance

of the principles of natural Justice, fair play, good conscience, equity, equality of opportunity and equality before law which are hall' marks of

Article 14 and 16 of the constitution. If one thus found that the State, even in the absence of such guidelines or parameters either on the statutory

field or on the administrative side, had carried out the exercise of selection fairly, equitably and by strict observance in letter and spirit of Article 14

and 16, one could perhaps have had no hesitation in upholding the selection or the appointment.

Even though there are a very large number of pronouncements by the apex Court on the concept of equality under Article 14 generally, and

equal opportunities under Article 16 particularly, the lates landmark Judgment of the final Court delivered by a Constitution

Bench of 9 Hon'ble Judges, in the case of Indra Sawhney Vs. Union of Indiaand Others reported in AIR 1993 SC 477, their lordships while

dwelling upon the aforesaid principles of equality and equal opportunity observed as under :

The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been

referred to in the preamble and the articles under the subheading ""Right to equality""{Articles 14 and 18). In short, the goal is ""equality of status and

the opportunity"" Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in part

IV{Directive principles of State policy), ""Justice, Social Economic and political"", is the sum in part IV

Article 14 enjoins upon the State not be deny to any person ""equality before the law"" or ""the equal protection of the laws"" within the territory of

India. Most constitutions speak of either ""equality before the law"" or ""the equal protection of the law"", but very few both.......

The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the

expressions ""equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to State the same rule in positive and

affirmative terms in Article 15to 18. Though Article 15 they declared in positive terms that the State shall not discriminate against any citizen on the

grounds only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent under able practices it was

declared in clause{2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any or them be subject to

any disability, liability, restriction or condition with regard to shops, public restaurant, hostels and place of public entertainment or to the use of

well, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.

At the same time, with a view to ameliorate the conditions of women and children a provision was made in clause (3) that nothing in the said Article

shall prevent the state from making any special provision for women and children. ""7. Inasmuch as public employment always gave a certain status

and power it has always been the repository of State powerbesides the means of livelihood, special care was taken to declare equality of

opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or

appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be

discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them."".....

State is the custodian of the interests of its employees. To the State, every employee is its child. The father has to treat all children equally. It

does not behave of a father to pick up one child, from out of the lot of children for a special favourable treatment. All children being equal to the

father, it is the sacred duty of the father to accord them equal treatment. When the father happens to be the State, the duty becomes all the most

sacred, holy and paramount. It is not excepted of the State to say that because one person applied for the job, it was given to him. Did others

know of the State's intention to fill up the posts? Were others afforded an opportunity, effective and real, and not illusory to compete? Did the

State take adequate steps to ensure that not only were all properly informed, allowed to compete, but out of them all, the best one was selected?

Did the State follow most suited and well accepted principles of public advertisement or issuance of notification whereby all concerned eligible

persons were given chance to compete with each other, with all other eligible candidates, so that they were considered on the merits of their

performance, and enabling the State and appointing authority to make a selection from the lot of best available candidates?

In the case before us all above referred questions assume significance and importance because the answers to all of them go against the State.

The State has not come out with the flying colours in this case. As will be noticed, I am purposely avoiding the mention of any malafides, totally

avoiding any influence that respondent Sanjay Sharma may have had exerted by virtue of his position, one way or the other. I am doing so because

need not consider all this. I am avoiding any mention of the influence because, under the abstract constitutional law, his appointment cannot be

sustained.

For the reasons that I have stated, I have no hesitation in coming to a conclusion that the appointment of respondent Sanjay Sharma ""n the post

of Inspector, Police by virtue of impugned orders was wholly unconstitutional and illegal. Inevitably, I also have no hesitation in coming to the

conclusion that even though 1991 Rules by themselves are neither unconstitutional nor illegal, they cannot be acted upon or enforced because of

absence of any guidelines or parametres, regulating the exercise of the power. With particular reference to Rule3,1 am clearly of the view that this

rule by itself is not in violation of Articles 14 and 16 of the Constitution, but in the absence of guidelines and parameters regulating the exercise of

power in accordance with Articles 14 and 16, the rule being totally exposed to abuse and misuse, and to the arbitrary exercise of power can

neither be acted upon nor enforced. Yes, once the guidelines and parametres regulating the exercise of power are prescribed, the 1991 Rules,

including rule3 can immediately be acted upon, operated and enforced. The same can be said about rule7 also because, by itself one cannot find

fault with the provisions prescribing the processing of applications in a particular department. How has the process to be done, in what manner and

what mode has to be adopted, being absent either in rule7 or in the 1991 Rules themselves, or elsewhere, even this rule cannot be acted upon and

enforced. Rule3 and rule7, therefore, being the very spirit, the very heart of 1991 rules, being the very sheet anchor of the power, inability to

enforce them, implement them or act them upon makes 1991 Rules themselves redundant and meaningless, in the absence of regulatory guidelines

and parameters.

I allow all the petitions. By issuance of a writ of certioraris I quash and setaside the impugned orders whereby respondent Sanjay Sharma was

appointed as Inspector of Police. By issuance of writ of prohibition I restrain the respondentState from acting upon, operating, implementing or

enforcing in any manner whatsoever 1991 Rules till proper guidelines and parametres strictly in accordance with the letter and spirit of Articles 14

and 16 of Constitution of India are framed and formulated. I wish to observe, very clearly and unambiguously, once the guidelines and parametres

are framed and formulated, it shall be open to the State to immediately operate, act upon and enforce 1991 Rules, but not until then. Once,

however, the guidelines and parametres are formulated and brought into force, the posts of Inspector, Police if available or if created may

undoubtedly be filled in accordance therewith and petitioners, respondent Sanjay Sharma and all other eligible persons shall be entitled for

consideration. But, in the meanwhile, as a result of the quashing and setting aside of the impugned orders, respondent Sanjay Sharma shall, with

immediate effect be deemed to have vacated the post of Inspector of Police, which consequently shall be deemed to have been rendered vacant.

No order as to costs. Connected CMPs shall stand disposed of in all the petitions.