Vikas Kant and Another vs State of Jammu & Kashmir and Others

V.K. Jhanji, Judge

Government orders No. Home 133(P) of 2002 dated 13th March, 2002, whereby respondent No. 5 has been appointed as Deputy

Superintendent of Police in the grade of Rs. 7,500/- 12,000/- in Jammu & Kashmir Police Department in relaxation of method of recruitment is the

subject matter of challenge in this petition.

Petitioner No. 1 is stated to have obtained Bachelor's Degree in Science in the year 1997. Thereafter, having pursued the prescribed of study

for three years, he has also been admitted to the Degree of Bachelor of laws (Professional) by University of Jammu in the year 2000. Petitioner

No. 2 has obtained the Degree of Bachelor of Arts from University of Jammu in the year 2000. It is stated by them that they are eligible for

competing for selection and appointment against the post of Deputy Superintendent of Police but the respondent State in total disregard of the

constitutional mandate under Articles 14 and 16, the established law and the relevant Rules have appointed respondent Nos. 5 as Deputy

Superintendent of Police against the direct quota post, thereby not only impinging upon the fundamental rights of the petitioners but also showing

total disrespect to the judgment of the Apex Court in Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, wherein the

Supreme Court, apart from other directions, specifically directed the State of Jammu and Kashmir that no relaxation of the basic recruitment rules

shall be made for direct recruitment through Public Service Commission or for purpose of regular recruitment by transfer. Petitioners have prayed

for quashment of the impugned order and a direction to the official respondents to refer the said post of Deputy Superintendent of Police to the

Jammu and Kashmir Public Service Commission for selection in accordance with the law.

The official respondents in their counter affidavit have stated that respondent No. 5, while serving as an Army Officer in the Indian Army, was

taken on deputation in the Police Department initially for a period of two years. In this regard the matter was taken up by the State Home

Department with Secretary, Government of India, Ministry of Defence, for according no objection to the appointment of respondent No. 5 initially

on deputation basis for two years and then on permanent absorption basis. The Army Authorities conveyed their no objection in relieving the said

respondent. He was appointed on deputation basis for a period of two years in terms of Government Order No: Home-97 (P) of 1999 dated 9th

March, 1999. The case of the official respondents is that, in view of the on going militancy, the State Government in its wisdom thought it expedient

and proper to utilize the services of an outstanding Army Officer in order to impart training to the various Police Officers recruited from time to

time to effectively fight the militancy. Since respondent No. 5 was released from Army in April, 1999, his appointment on deputation basis was

reviewed and he was appointed on contractual basis for a period one year vide Government Order No. Home-321 (P) of 1999 dated 14th July,

1999. The period of contractual appointment was subsequently extended for a further period of one year in terms of Government Order dated

28th April, 1999 and finally he was appointed as Deputy Superintendent of Police in relaxation of method of recruitment vide Government Order

No. Home-133 (P) of 2002 dated 13th March, 2002. It is denied that the case falls within the purview of the judgment of the Apex Court in Suraj

Prakash Gupta v. State of J & K (supra). It is stated that respondent No. 5 after joining the Police Department has successfully completed the

probation period and efficiently discharged his duties in imparting training to various newly recruited Police Officers. The claim of the writ-

petitioners that their fundamental/legal rights have been violated is denied. Further, it is stated that the appointment of respondent No. 5 was purely

in the exigencies of the situation and not for any other consideration.

Respondent No. 5 has also filed his counter -- affidavit. In paragraph 1 under the caption ""background facts of the case"", the reply starts with

the following averment:-

That in the year 1998 the deponent herein while serving in the Indian Army as a Captain approached the Government of Jammu and Kashmir for

his adjustment, if possible, in the J&K Police Department owing to his domestic Problems.

Respondent No. 5, while reiterating the facts as contained in the counter-affidavit filed by official respondents and narrated above, has stated

that in pursuance of communication dated 12th January 1999, addressed by the Government of Jammu and Kashmir in the Home Department to

the Secretary, Government of India, Ministry of Defence, Military Secretary Branch/MS -- 78 Army Headquarters, vide Communication bearing

No. 05507/35593/MS 78 dated 27th January, 1999 informed the Additional Secretary to Government Home Department that the said HQ had

no objection with regard to his adjustment in the J&K Police Department and, if selected he would be considered for release from the Army within

three months. After receipt of the said communication from the Ministry of Defence, Government of Jammu and Kashmir vide Government order

dated 9th March, 1999 sanctioned his appointment as Deputy Superintendent of Police in Jammu and Kashmir Police for a period of two years on

deputation. Respondent No. 5, thereafter, was released from the Army with effect from 5th April, 1999. Respondents No. 5 has further stated that

the State Government was of the opinion that since the Army had instead of relieving, released him to join J&K Police Department on deputation,

as such his deputation had been sealed and, therefore, the Government ordered his appointment on contractual basis for one year. Respondent

No. 5 has further stated that, keeping in view the extraordinary and excellent performance report about him made by Director, Sher-1-Kashmir

Police Academy, dated 1st March, 2000, his contractual appointment on the post was extended for a further period of one year. During the

currency of the second year of contractual appointment, respondent No. 5 made an application for his permanent absorption in the Police

Department. The Director General of Police, as stated by respondent No. 5 recommended the case to the Government in the Home Department.

The Home Department, however, vide their letter dated 17th December, 2000 informed the Director General of Police that it had been decided to

watch the performance of respondent for at least two years before his request for regular appointment/absorption in J&K Police could be

considered. His contractual appointment was extended by one more year vide Government order No. Home/339 (P) of 2001 dated 7th August,

2001. He again made a written request for his permanent absorption and his performance report was obtained from Director, Sher-1-Kashmir

Police Academy, Udhampur. According to Respondent No. 5 after the matter was thoroughly examined and the opinion of the General

Administration Department and Law Department was obtained, the Government vide Order dated 13th March, 2002, accorded sanction to his

appointment as Deputy Superintendent of Police in the pay scale of Rs. 7500-12000 against a direct recruitment quota post in relaxation of

method of recruitment. Respondent No. 5 has stated that the judgment of the Apex Court in Suraj Prakash's case (supra) has no application to his

case and that it was in face of the ongoing militancy that the State Government in its wisdom thought it expedient and proper to utilize his services

as an outstanding Army Officer in order to impart training to the various Police Officers recruited from time to time to effectively fight out militancy.

He has further stated that the present writ petition has been filed only after he was appointed on permanent basis and that in absence of challenge

to the initial orders of appointment on deputation basis and also to the orders appointing him on contractual basis, the petitioners are estopped

from challenging the impugned order. It is stated that since the appointment in question was in the exigency of the situation and for any other

consideration, no fundamental or legal rights of the petitioners have been violated. According to respondent No. 5, his case was submitted to the

Chief Minister in coordination in terms of Rule 31(1) of Jammu and Kashmir Government Business Rules and its Third Schedule Entry 27 with

proposal for his appointment in relaxation of the Rules and it was only after the opinion of the law Department was obtained that the proposal was

accepted and approved. It is contended by respondent No. 5 that his case for appointment in relaxation 'of rules was decided by the Government

in exercise of its residuary power to obviate hardship caused to him and that he has successfully completed his probation and that, after his

appointment, his performance has been excellent.

I have heard learned counsel for the parties and have carefully gone through the record of the case.

Learned counsel for the respondent raised an objection to the maintainability of the writ petition, as, according to them, the petitioners do not

have any locus to challenge the impugned order. It was submitted that since the appointment of respondent No. 5 was made purely in the

exigencies of the situation, the petitioners could not challenge the expediency that was involved in such appointment. Petitioners' case is that they

are duly qualified and eligible for being considered for appointment as Deputy Superintendents of Police. Learned counsel for the petitioners

submitted that they are desirous of enrolment in the Police Department. Since the respondents have made appointment of respondent No. 5 against

the direct recruitment quota post of Deputy Superintendent of Police without taking recourse to the recruitment process, they have been denied an

opportunity of competing for the post, thereby violating their fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India.

Equality before law and equal opportunity of consideration for selection and appointment to a public post is one of the most precious rights

guaranteed to every eligible candidate under Articles 14 and 16 of the Constitution. No amount of administrative maneuvering or machination can

thwart or defeat this right guaranteed to a citizen. And if it is shown by a claimant that his rights under Articles 14 and 16 have so been sought to be

defeated, he has the constitutional remedy under Article 226 to seek enforcement of the constitutional mandate and redressal of his grievances. In

the present case, the petitioners pray that the impugned order be quashed and the respondents be directed to refer the post to the concerned

Recruitment Board so as to consider all eligible candidates. They do not seek a relief that they alone should be considered. The prayer made by

them is in line with the positive concept of Articles 14 and 16 of the Constitution of India. Therefore, it cannot be said that they do not have any

locus to maintain this petition. The objection, therefore, in not sustain-able.

Learned counsel for the petitioners submitted that respondent No. 5 for all purpose is a backdoor entrant and his appointment cannot be

sustained on any ground whatsoever. On the other hand, learned counsel for the respondent submitted that it was in face of the on going militancy

in the State that the Government in its wisdom thought it expedient and proper to utilize the services of an outstanding Army Officer to impart

training to the Police Officers, to effectively combat militancy and that the State has power to make appointments in relaxation of Rules. Learned

counsel for respondent No. 5 also referred to and relied upon Rule 31(1) of the Jammu and Kashmir Government Business Rules and Entry 27 of

its Third Schedule.

At the out-set, it may be observed here that recruitment is a proeess by which an eligible person is appointed to a public post. It is the first

process leading to eventual appointment in a service aimed at obtaining the services of the best and the most meritorious candidates. The best body

to adjudge the suitability, merit and other allied factors is the Selection Authority. Even if it is assumed that the Government intended to engage the

services of an ""outstanding Army Officer"" for the purpose, as sought to be made out by them before the Court that object could not be achieved

by pick and choose method. The best course was to lay that as the criterion, refer the post to the concerned Selection Committee and obtain the

services of the best person, be it an Army Officer. After all Selection process in accordance with Rules is conducted only to obtain the services of

outstanding candidates. The fact that respondents have chosen not to adopt the procedure established by law, casts a serious doubt on the

genuineness of the cause pleaded. Even otherwise the justification put forth in not borne out or supported by either the pleadings made, the

documents appended with the returns filed by the respondents or the contemporaneous record.

Respondent No. 5 in the very first paragraph of his counter affidavit has made an emphatic averment that in the year 1998, while serving in the

Indian Army as a Captain, he approached the Government of Jammu and Kashmir for his adjustment in the J&K Police Department ""owing to his

domestic problems"". This averments is supported by the contemporaneous record, as would be referred to hereafter. Note No. 1 of the original

record (File No. Home/PB-1/Misc/25/78) produced before this Court indicates that, respondent No. 5 addressed the application, containing the

aforesaid request, to the Chief Minister who in turn endorsed the same to Director General of Police. It needs a mention here that recruitment to

the post of Deputy Superintendent of Police is made after selection of candidates by Public Service Commission in a Combined Competitive

Examination. The appointments are made by General Administration Department. Record further reveals that at the time respondent No. 5 made

the aforesaid request, the available vacant posts of Deputy Superintendent of Police had been referred to the Public Service Commission. The

Commission had already completed the process of preliminary examination and the Combined Competitive Examination of the candidates and, in

fact, the Commission was in the process of interviewing the candidates who had been declared successful in the Preliminary and Combined

Competitive Examinations. In face of the aforesaid fact, as is revealed by Note 2 on the original record, the Director General of Police, while

informing the Home Department about the aforesaid developments, requested the Government in the Home Department that if respondent No. 5

had to be appointed as Deputy Superintendent of Police, then one post would have to be withdrawn from the Public Service Commission. Note

13 on the file may be extracted below:

Mr. Qureshi (Captain) has stated in his application he wants to join State Police Force so that he could stay in his home State and look after his

old parents.

At Note 15 it is stated that in all 132 posts of Deputy Superintendent of Police had been referred to the Public Service Commission till 1998

through General Administration Department for selection. Note 16 of the record states that ""if the request of the Captain is to be considered then

one vacancy of Deputy Superintendent of Police has to be withdrawn from GAD for adjustment of Shri M. F. Qureshi (Captain). If the absorption

of the officer in the State Service is considered, a no objection is requested to be obtained from Army Hqrs (MOD) and will be adjusted on

deputation basis for two years in the first instance"". Note 18 and 19 reveal that it was decided to write to the Defence Ministry if they had any

objection to relieving the officer first on deputation for two years and then on permanent absorption basis. Consequent upon the aforesaid, the

Government in the Home Department addressed a communication No. Home/PB-1/Misc/25/98 dated 12th January, 1999 to the Secretary,

Government of India, Minister of Defence, Army HQ Br. M. S. 7 B, New Delhi to the following effect:

SS-35593?

Captain M.F. Qureshi of 5031 ASC Bn. (Ml)has approached the J&K State Govt. for his adjustment in the State Police Force. It is proposed to

appoint him in the State Police Department first on deputation for two years and then on permanent absorption basis.

I am directed to request you to kindly intimate if there is any objection in relieving the Officer on deputation basis in J&K Police initially for a

period to two years and then on permanent absorption basis.""(Underlining supplied).

In response the concerned Army authority vide their communication dated 27th January, 1999 conveyed their no objection in the following

manner:-

This HQ has no objection with regard to SS-35593 Capt. MF Qureshi being adjusted in the J&K Police Department. If selected, the officer will

be considered for release from the Army within three months.

Since there was no post of Deputy Superintendent of Police, one post was ordered to be withdrawn from Public Service Commission. This is

evident from Note 44 of the record. Consequent upon which, in terms of Government order dated 9th March, 1999, respondent No. 5 was

appointed as Deputy Superintendent of Police in J&K Police for a period of two years on deputation basis with effect from the date he would join

in the State Police Service. Meanwhile, it appears that, respondent No. 5 made a written request to Army Authorities to ""release him from Army

Service. The Army authorities ""Released"" the Officer at his request who seems to have been on ""extended tenure in Army Service"", with effect

from 5th April, 1999. It is note worthy that the State Government did not seek his "" relieving"" from Army. They only sought no objection to his

releasing"" on deputation basis. Since he was released from the Army and no longer was in Army Service, his deputation could not be continued.

Vide Government Order dated 14th July, 1999, he was appointed on contract basis for a period of one year. During the currency of this

contractual appointment, the father of respondent No. 5, namely, Sajad Haider Qureshi, made an application to the Chief Minister requesting for

permanent absorption of respondent No. 5 as Deputy Superintendent of Police in the J&K Police Department. Notes 73 to 80 on the original

record file reveal that Shri Sajad Haider Qureshi, had stated that he was a retired Officer of Para-Military force and had been awarded by

Government of India for his works in areas of heavily infested insurgency like Nagaland State. He had further stated that after his retirement from

the force, he was operated thrice for his kidney ailments and due to his continuous ailment his son, namely, Mohd. Faisel Qureshi, who was

working as a captain in the India Army, had left the Army Service. On these ground, he had made a request for his son's (respondent No. 5's)

permanent adjustment in the Police Department. The Chief Minister had desired to put up the matter before him. Though the contractual

appointment of respondent No. 5 was extended from time to time, in all in three spells, yet the record reveals that the impugned appointment in

relaxation of method of recruitment against an available vacancy was ultimately eventuated by the aforesaid written request of Shri Sajad Haider

Qureshi father of respondent No. 5 made to the Chief Minister. In view of all the above facts and circumstances, borne out by the record, both

contemporaneous and otherwise, it becomes manifest firstly, that the ground on which respondent Nos. 5 appointment as Deputy Superintendent

of Police in the J&K Police was made was not any expediency or exigency of situation, but was motivated by considerations other than the one

pleaded; secondly, that the Government was driven by sympathy rather than the State interest and thirdly that the Government had from the very

inception, when respondent No. 5 made the application to the Chief Minister, decided to absorb him permanently in J&K Police Department,

come what may. At the top of it, the impugned order does not speak of such as the reason of appointment of respondent No. 5 as Deputy

Superintendent of Police. In this connection, the impugned order may be quoted below. It reads as under:-

Government of Jammu and Kashmir Home Department.

Sub: Appointment of Sh. Mohd. Faisel Qureshi as Dy. SP. In relaxation on method of recruitment.

Ref. No. GDC-140/CM/99 dated 11/03/2002.

Government Order No. Home-133(P) of 2002 Dated 13/03/2002.

In view of the experience of service in the Army and the performance during his two year appointment as Dy. SP. On contracted basis in the

Police Department in imparting training to Probationary Police Officers, sanction is hereby accorded for appointment of Sh. Mohd. Faisel Qureshi,

Ex-Captain, as Dy. SP in the Pay Scale of Rs. 7500-12,000/- against a direct recruitment quota post, in relaxation of method of r recruitment.

The appointment of Sh. Qureshi shall be regulated under terms and conditions stipulated for Director Recruits (Dy. SPs.) appointed vide

Government order No. 137 -GAD of 2002 dated 22.01.2002 issued by General Administration Department. By order of the Government of

Jammu & Kashmir. Deputy Secretary to Government Home Department.

As seen above, the order does not bear even an inkling that it was issued on any ground of expediency or exigency. In that view of the matter,

no other inference is available except that the order was issued for considerations other than pleaded now before the Court.

It appears that the Government was adamant to appoint respondent No. 5 dehors all canons of law and Rules. Communication No.

05507/35593/MS-7B/31 dated 1st April 1999 on the subject of release of respondent No. 5 from Army reveals that he had himself requested for

release from the Army Service which request was acceded to by the concerned Army Authorities. When the Government realized the position that

respondent was no longer in Army Service and his deputation could not be continued, there was a move to appoint him on permanent basis in

relaxation of recruitment rules against an available post of Dy. SP. having been created due to establishment of some new battalions of IRP. Note

111 on the original record reveals that father of respondent No. 5 met the Principal Secretary to Government, Home Department, on 4th April,

2001, consequent upon which he directed to process the case. When the file reached Deputy Secretary (H), he raised, certain important

objections at notes 120 to 121 of the record to the course suggested by the Principal Secretary, Home. It was inter alia, stated by the Deputy

Secretary (H), that respondent No. 5 wanted appointment against direct recruitment quota; that he was over aged; that posts of Dy. SP. has been

referred to Public Service Commission; the appointments could be made only through Combined Competitive Examination; that in case respondent

No. 5 was to be appointed direct recruitment quota without reference to the Public Service Commission, that would require relaxation of basic

method of recruitment; such a course would be in contravention to the judgment given by the Hon'ble Apex Court in Suraj Prakash Gupta's case.

The objection with regard to age was over come by treating respondent No. 5 as an Ex-service man in whose respect the upper age limit for

recruitment to Gazette Service has been prescribed to be 38 years. Faced with the above situation, the Principal Secretary to Government, Home

Department, at note 139 observed that in the past one Noman Thakur had been appointed as Deputy Superintendent of Police without reference

to the Public Service Commission which resulted in litigation by many candidates asking for similar treatment. It is further stated in the note that the

representations made by the candidates in pursuance of Court orders had been disposed of by the Government on the stand that since the

vacancies had been referred to the Public Service Commission, there was no exigency to fill the post of Deputy Superintendent of Police without

reference to the Public Service Commission. The Principal Secretary, accordingly, solicited orders whether the case of respondent No. 5 should

be processed for regular appointment in relaxation of rules. The Principal Secretary made a mention of the judgment of Apex Court in Suraj

Prakash Gupta's case in his above said note and the directions contained therein. However, despite all this, a proposal was prepared for being

placed before the Chief Minister in coordination through General Administration Department. When the matter reached the General Administration

Department, a specific query was raised, i.e. ""in the proposal submitted it has been mentioned that the proposal is in contravention of the judgment

of the Hon'ble Supreme Court in the Suraj Parkash case. If that be the case, how the department would be in a position to defend the appointment

of the petitioner if challenged subsequently before the Court""?

When the matter again came to Deputy Secretary (Home), who had raised the objection to the proposal of permanent absorption of

respondent No. 5 in context of the judgment of the Apex Court in Suraj Prakash Gupta's case, he recorded that"" the case of Shri Qureshi has

been under correspondence prior to the judgment in Shri Suraj Prakash Gupta's case"" and that ""it has to be appreciated that the Officer has

rendered excellent service in imparting training to probationers"". The same officer earlier raised the objection on 18th April, 2001 to such a course

being adopted, as being in contravention of the Apex Court judgment. He tendered the above opinion on 4th December, 2001, i.e. just within less

than eight months of his objection. What intervened in between that influenced the Deputy Secretary (Home), is not unimaginable. It pains one to

notice that and officer of the rank of a Deputy Secretary has the guts to venture upon an exercise to interpret the judgment of the Apex Court of

the Country as if sitting in appeal over that judgment. It is important to note that, thereafter, the other authority, including the Law Department

toward to this line distinguishing the application of the Apex Court judgment on a flimsy ground. A case has been made out that since there was a

correspondence going on in relation to the case of respondent to prior to the pronouncement of the judgment by the apex Court in Suraj Parkesh

Gupta's case the judgment was not applicable to his case. It is not worthy that on the relevent date. i.e. the date on which the Supreme Court

delivered the judgment in the aforesaid case, relaxation to the rules of recruitment in respect of respondent no. 5's impugned appointment had not

been granted nor any headway in regard to that decision was made. The judgment of the Supreme Court Came 28th April, 2000 whereas the

relaxation in the instant case was accorded on 13th March, 2002, i.e. almost two years after the Apex Court made positive directions in Suraj

Parkash Gupta's case (supra). The law enunciated by the Apex Court does not admit of fallacious reasoning to wriggle out of the rigour contained

therein. The law laid down by the Supreme Court becomes law of the land and the principle of the law takes effect the moment it is pronounced.

No authority can sit over, as if in appeal, to interpret and distinguish the principle of the law the Supreme Court judgment on the ground that, in a

particular case, correspondence in relation to the subject had started prior in point of time to the laying down of law on such subject by the Apex

Court. I would advert to the effect of the judgment in Suraj Parkash Gupta's case a bit latter. Presently, it would suffice to say that it is a fallacy

devised by the concerned authorities in the Government that application of that judgment was not attracted to the present case, and the reasons for

such Machiavellian exercise of authority could not be any thing other than an act motivated by extraneous and ulterior considerations.

Reference to the contemporaneous record, as made above, glaringly demonstrates that the appointment of respondent No. 5 did not emanate

from any genuine concern of the Government to utilize the service of a trained Army Officer but to see that respondent No. 5 was, somehow,

accommodated in Gazette Police Service de hors the Rule and against the well established law. In the view of the matter, the action of the

Government cannot be sustained, being not only volatile of the mandate of Articles 14 and 16 of the Constitution, but also offending the Principle

of law laid down by the Apex Court in Suraj Parkash Gupta's case (supra).

An argument was raised that since the performance of respondent No. 5 during his contractual appointment for the three years was watched

and it was assessed to be excellent, that fact also weighted with the Government, which culminated into passing of the impugned order. Experience

gained during tenure of appointment de hors the rules cannot be a substitute to adherence to Rules. Since experience does not and would not alter

the implication of non-observance of the mandate of Articles 14 and 16 of the Constitution and the Rules of Recruitment.

Learned Counsel for respondent No. 5 also contended that since he had been released by the Army on the request of the State Government

on the promise of being permanently absorbed in the J&K Police Department, and the State Government, in order to remove the difficulties in his

individual case, was within its power to relax the Rules to obviate the suffering respondent No. 5 had been made to undergo. Record reveals that

respondent No. 5 was only a Short Commissioned Officer working in the Army and he was on extended tenure of service. The State Government

had sought no objection from the Army Authorities only to his deputation. It may be noticed here that ""deputations"" are government by Rule 52(E)

of the Jammu and Kashmir Civil Service Regulations. In deputations, there are always a borrowing and a lending agency. Borrowing agency, as a

necessary corollary, has to make a request to the lending agency for sparing the services of the deputationist and has to obtain consent in that

regard from the lending agency. Consent in the instant case would mean no objection to the relieving of respondent No. 5 for being taken on

deputation by borrowing agency, i.e. by the State Government. The concerned Army Authorities did furnish their consent to the 'relieving' of the

officer. However, later respondent No. 5 himself had made a written request to the concerned Army Authorities for his release from the Army on

account of his personal reasons i.e his desire to stay at home. The Army authorities acceded to his request. Respondent No. 5 was not entitled to

derive any advantage from this background fact, nor could the government confer any such advantage on him on this account to the detriment of

eligible candidates waiting in queue for being considered for such a post. It is true that the Government has, in fact, build up the case of respondent

No. 5 on the aforesaid premise as well but perusal of the original record gives out a grim picture, besides depicting the scant regard the concerned,

authorities have shown to the established practices and the law of the land. These authorities have juggled with the issue, from time to time, in the

manner as suited to the achieving of the single objective of conferring and undue and unlawful advantage on respondent No. 5, killing the legal and

legitimate aspirations of some one, like the petitioners.

Coming to the judgment in Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, while dealing with the issue whether

recruitment rules could be relaxed, the Supreme Court noticed almost all the judgment delivered by it on the subject. It was way back in 1992 that

the Supreme Court in Keshav Chandra Joshi and others etc. Vs. Union of India and others, . held that there can be no relaxation of the basic or

fundamental rules of recruitment. In that case the Rule permitted relaxation of the Conditions of service and it was held by a three Judge Bench that

the Rule did not permit relaxation of Recruitment Rules. The Supreme Court went ahead observing that the words ""may consult PSC"" used in the

Rule were to be read as ""shall consult PSC"" and the Rule was treated as mandatory. Again in 1993 in Syed Khalid Rizvi and Others and Ramesh

Prasad Singh and Others Vs. Union of India (UOI) and Others, though the residuary power conferred under the rules did permit relaxation of the

Rules, yet the Apex Court refused to imply relaxation of Recruitment Rules. In that case it was held by the Apex Court that conditions of

recruitment and conditions of services are distinct and whereas the latter is preceded by an appointment according to rules, the former cannot be

relaxed. Similarly in State of Orissa and others Vs. Smt. Sukanti Mohapatra and others, . it was held that though the power of relaxation envisaged

in the rule was in regard to 'any of the provisions of the rules' this did not permit relaxation of the rule of direct recruitment without consulting the

Commission. The Apex Court expressed similar view in Dr M.A. Haque and Others Vs. Union of India (UOI) and Others, . that for direct

recruitment, the rules relating to recruitment through Public Service Commission could not be relaxed. In J and K. Public Service Commission, etc.

Vs. Dr. Narinder Mohan and others etc. etc., . it was held that the provisions of J&K Medical Recruitment Rules could not be relaxed for direct

recruitment and that the backdoor direct recruitment could not be permitted. And lastly, their lordships of the Supreme Court in Suraj Prakash

Gupta's case (supra) held that the power under Rule 5 of the Jammu and Kashmir (Classification, Control and Appeal) Rules, 1956 to relax the

Rules cannot be treated as wide enough to include a power to relax rules of recruitment. As is seen from the above, it was not that the Supreme

Court for the first time in Suraj Prakash Gupta's case expressed the aforesaid view; the law in this behalf was laid down way back in 1992.

Therefore, the justification supplied that judgment of the Apex Court in Suraj Prakash Gupta's case was the recent trend of law and, therefore, the

earlier trend, as recorded in the contemporaneous record, could be resorted to, is totally wrong and, to repeat, a dubious method aimed at

conferring illegal and unlawful gain on respondent No. 5. The law is settled that the Rules of Recruitment cannot be relaxed. If it is allowed to be

done the same would be antithesis to the cherished concept of equality before law enshrined in Articles 14 and 16 of our Constitution.

It would be apt to notice the Rule position in the present case. Appointment of Gazetted Police Service in the State of Jammu and Kashmir

Police (Gazetted) Service Recruitment Rules, 1977. Rule 5 of the aforesaid Rules prescribed the Method of recruitment. It envisaged that

appointment to the Service shall be made (i) by direct recruitment; and (ii) by promotion in the ratio and manner as indicated against each post in

Schedule ""A"" thereof. In Schedule ""A"", the post of Deputy Superintendent of Police was shown to be Class III category ""a"" post requiring the

qualification of Degree of a recognized University in India or equivalent thereof an the method of recruitment was prescribed to be 50% by direct

recruitment on the basis of competitive examination and 50% by promotion. These Rules did not provide for relaxation of any Rule of these Rules.

However, in Rule 21 in relation to residuary matters, it was provided that, ""in regard to matters not specifically covered by these rules or by any

order, the members of the service shall be governed by the rules, regulations and orders applicable to the State Civil Services in general"". The only

provision applicable to appointment to Gazette Services in the State with regard to relaxations is contained in Rule 5 of the Jammu and Kashmir

Civil Services (Classification, Control and Appeal) Rule, 1956. The Apex Court, as already noticed has expressed its view that this Rule is not as

wide as to include power to relax the Rules of Recruitment. In the year 1984, the Government framed the Jammu and Kashmir Police (Gazette)

Service Recruitment Rules, 1984. The earlier Rules in force were repealed in terms of Rule 23 of the 1984 Rules. However, vide Notification

SRO No. 166 dated 22nd April, 1985 the Rules of 1984 were kept in abeyance in view of the Union Government's objection that these Rules

would militate against the scheme of All India Police Service. Fresh Rules Governing the Service were framed vide SRO 132 dated 3rd April,

2002. These Rules had to come into force from the date of their publication in Government Gazette. The Rule were published in Government

Gazette in its issue dated 3rd April, 2002 itself. The impugned order is dated 13th March, 2002. These Rules have no application to the impugned

appointment of respondent No. 5.

I need not go into the implication of keeping the Rules of 1984 in abeyance, i.e. whether by such abeyance notification the repealing Rule 23

would operate or not and whether the Rules of 1977 were revived? Because the record reveals that, though there was a difference of opinion

between the various functionaries of the Government on this issue, nevertheless the Government going by the opinion of Law Department had

come to the conclusion that no Rules existed and consequently, the General Administration Department had issued SRO 210 of 1994, providing

for filling up of the posts of Deputy Superintendents of Police partly by direct recruitment through Combined Competitive Examination and Partly

by promotion in the ratio of 50:50. It is not shown that these SRO of 1994 contained any provision empowering the Government to relax the

recruitment Rules. Going by the original record itself, direct recruitment had to be made only through Public Service Commission and the

Commission could make selection only through the process of Combined Competitive Examinations. Admittedly, no such process was resorted to

in the instant case. The Government did not even feel the necessity of consulting the Public Service Commission. In other words the Commission

was totally bypassed. This is a glaring example of the despotic tendency breeding in the corridors of the authorities at the helm of affairs, having

scant regard for the Rule of law. Such an action cannot be sustained.

Learned Counsel for respondent No. 5 has also made a reference to Rule 31(1) and Entry 27 of Third Schedule of the Business Rules to

canvass that under the residuary power, the Government was competent to appoint respondent No. 5 dehors the Rules. Rule 31(1) referred to

and relied upon by the learned counsel does not relate to the source of power. In any case, law is settled that Rule of Recruitment cannot be

relaxed on any ground.

Learned Counsel for respondent No. 5 has also contended that, since the petitioners did not challenge the contractual appointment of

respondent No. 5, they are estopped from challenging his permanent appointment now. Contractual appointments do not confer any right,

whatsoever, on such appointees. The service rendered by a contractual appointee is inconsequential and no claim can be founded on such service

nor can it be considered by the concerned agency for any purpose. In that view, the petitioners were not required to challenge the contractual

appointment of respondent No. 5. The plea of estopped is untenable.

In view of the above. I am of the considered view that there were no special circumstances attendant to the case of respondent No. 5, other

than the resolve of the Government, motivated by extraneous and unlawful considerations, to the detriment of the rights of persons like the

petitioners, to appoint respondent No. 5 as Deputy Superintendent of Police which action of the respondents is totally in negation of the mandate

of Articles 14 and 16 of the Constitution.

The ""outstanding"" Army background sought to be attributed to respondent No. 5 is a hoax created by the respondents. Respondent No. 5 was a

Short Commissioned Officer in Army Supply Corps. Officer of Supply Corps do not have any trainings or expertise, much less specialized

trainings, either in fighting techniques or in any other sphere concerning the role of the Army. Reliance on any so called ""outstanding"" attributes of

respondent No. 5 is an endeavor on the part of respondents to hoodwink the established law on the subject.

This writ petition is therefore, allowed. The impugned order is quashed. The post held by respondent No. 5 is directed to be referred to the

Public Service Commission within a period of two months from the date of his judgment for its being filled up in accordance with Rules.

Respondent No. 5 would be free to apply for his consideration before the Public Service Commission, if otherwise eligible under Rules. In the

event he has crossed the age of recruitment prescribed for Ex-servicemen, the Government would consider his case for relaxation of age bar.