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2003 DIGILAW 282 (JK)

Rajan Gupta And Jugal Kishore Anand v. State

2003-09-15

PERMOD KOHLI

body2003
1. Back-door entry into the Government service has again invited the attention of this Court through the medium of the present petition. 2. Respondent No. 4 Owais Ahmed who is the son of the then Cabinet Minister of State came to be appointed as Assistant Tourist Officer in relaxation of rules vide Order No. 1421-GAD of 1998 dated 29.10.1998. Petitioner Rajan Gupta (in SWP No. 1363/2000) who claims to be a Post Graduate with Diploma in Management and Post Graduate in Marketing Management and knowledge of German language is highly qualified. Similarly, petitioner Jugal Kishore Anand (in SWP No. 1235/2000) is B.Sc, LL.B, with Master of Business Administration (MBA); P.G. Diploma in Tourism Administration with 18 months Post Graduation Course in Advance Computer applications and One year Accountancy Training from Northern Zonal Accountancy Training Institution, J&K Govt, is highly qualified person. Both the petitioners have challenged the appointment of respondent No. 4 Owais Ahmed on the grounds that the same is un-constitutional and violative of Articles 14 & 16 of the Constitution of India. Respondent No. 4 has been appointed only on account of the influence of his father, who was a State Cabinet Minister at the relevant time. The post in question has not been filled up through any process of selection nor the eligible candidates including the petitioners who were better qualified and more suitable have been provided opportunity for seeking their consideration in such appointment. 3. Official respondents have filed the objections wherein the stand taken is that the appointment of respondent No. 4 has been made by the Government in relaxation of rules to alleviate the sufferings of the State Subjects and in the interest of public and general administration. It is averred that the appointment of respondent No. 4 in relaxation of rules is not actuated by any influence of his father. The State Government considered various applications received from numerous persons affected by militancy in the State and the Competent Authority exercised the jurisdiction and authority in several cases and made appointments in relaxation of rules. 4. Respondent No. 4 has filed separate counter wherein it is stated that he belongs to a far of border village on Actual Line of Control, namely, Gharkote in Tehsil Uri. He has passed his B.A Part-I and has a good academic and extra curricular record. 4. Respondent No. 4 has filed separate counter wherein it is stated that he belongs to a far of border village on Actual Line of Control, namely, Gharkote in Tehsil Uri. He has passed his B.A Part-I and has a good academic and extra curricular record. It is further stated that on account of Militancy he could not complete is graduation. There was threat to his life being son of a State Cabinet Minister and thus he could not carry on his studies. His academic career as well as of his brothers and sister has been adversely affected due to militancy in the Valley. On his request the State Government has considered it expedient just and proper to appoint him in relaxation of rules to alleviate the miseries. I have heard the learned counsel for the parties and have gone through the record on the file minutely. 5. Learned counsel for the petitioner has contended that the appointment of respondent No. 4 vide the impugned order is only on account of influence of his father, who happened to be a Cabinet Minister at the time of his appointment. He does not possess any qualification much-less the one required for appointment to the post. It is also urged that appointment of respondent No. 4 having been made without advertising the post and providing opportunity to all eligible candidates including the petitioners is not sustainable. Petitioners referred to their own qualifications as stated hereinabove and submitted that highly qualified persons to man the post were/are available, but they have been deprived of their constitutional right to apply for the post and be considered for the same on their merit. The appointment of respondent No. 4 is stated to be against the mandate of Articles 14 & 16 of the Constitution of India. Mr. Salathia, AAG has defended the appointment on the basis of the pleadings filed by the State. 6. Mr. D.C. Raina, learned counsel appearing for respondent No. 4 has filed written submissions justifying the appointment. It is vehemently urged that the State has the power to relax the recruitment rules or any other rules made under Article 309 of the Constitution of India, read with corresponding provision contained in Section 124 of the Constitution of Jammu and Kashmir. Mr. D.C. Raina, learned counsel appearing for respondent No. 4 has filed written submissions justifying the appointment. It is vehemently urged that the State has the power to relax the recruitment rules or any other rules made under Article 309 of the Constitution of India, read with corresponding provision contained in Section 124 of the Constitution of Jammu and Kashmir. Such relaxation is permissible to meet any emergent situation where injustice might have been caused or likely to be caused to an individual or class of employees or where the working of the rule might have become impossible under service jurisprudence as also the Administrative law, such a power has necessarily to be conceded to the employer. He has further submitted that respondent No. 4 was appointed in the year 1999, whereas the present petition came to be filed in the year 2000. Now the said respondent has worked for more than four years, therefore, equity must weigh in his favour. Reference is made to sections 5 & 124 of the Constitution of Jammu and Kashmir and Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules 1956 as also Rule 14 of the J&K Civil Services (Decentralization of Recruitment to Non-Gazetted cadres) Rules 1969, and contended that the State has the power to relax the rules. He has also relied upon the judgment in cases S.C. Putta Swamy v. Honble Chief Justice, High Court of Karnataka, AIR 1991 SC 295 and Ashok Kumar Uppal v. State of J&K. 7. I have carefully gone through the written submissions and the arguments. The Executive power of the State extends in respect to all matters for which it has legislative power as provided under section 5 of the State Constitution cannot be disputed, but where the power is regulated by any statute or law it has to be exercised in the manner provided in such statute/law. Similarly, the power to relax rules as provided under different rules framed under section 124 of the State Constitution cannot be disputed. However, as held in Ashok Kumar Uppal v. State of J&K, such powers can be exercised under the situations indicated herein. What was held in the said case is quoted below: "26. Similarly, the power to relax rules as provided under different rules framed under section 124 of the State Constitution cannot be disputed. However, as held in Ashok Kumar Uppal v. State of J&K, such powers can be exercised under the situations indicated herein. What was held in the said case is quoted below: "26. Power to relax the Recruitment rules or any other rule made by the state Government, under Article 309 of the Constitution of India of which the corresponding provision is contained in Section 124 of the Constitution of Jammu & Kashmir, is conferred upon the government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have become impossible, under service jurisprudence as also the Administrative Law, such a power has necessarily to be conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under them in different departments including the Central or the State secretariat." 8. It has not been indicated in the replies filed by the respondents as to under what circumstances the power has been exercised. What was the emergent situation and what was in-justice which was required to be un-done. There is also no situation where the working of any rule has become impossible. The judgment has no application to the facts of the present case. It is a pure and simple case of appointment dehors the rules. Respondents have also not placed on record anything to show that rules have been relaxed in any manner. Merely saying that the appointment made is in relaxation of rules does not mean that the State has actually exercised the power to relax the rules. Even if any rule has been relaxed the appointment of respondent No. 4 is still not sustainable having been made in violation of Articles 14 & 16 of the Constitution of India. Reference to other rules in the submissions has no relevance to the issue in question. 9. The issue of back-door appointments came up for judicial scrutiny a number of times. This Court and the Apex Court on examination has ruled against the appointments made by the Executive in violation of the mandate of Articles 14 & 16 of the Constitution of India. 9. The issue of back-door appointments came up for judicial scrutiny a number of times. This Court and the Apex Court on examination has ruled against the appointments made by the Executive in violation of the mandate of Articles 14 & 16 of the Constitution of India. The admitted facts in the present case are that respondent No. 4 is under-graduate. His academic career does not appear to be bright. This is as per his own admission made in the counter affidavit. It is no where stated in the reply that respondent No. 4 has all along stayed in his village alone and had no benefit of having better education in the twin Capital Cities of the State. The stand taken by the official as well as private respondents that the appointment of respondent No. 4 is only to alleviate his miseries is without any basis. What kind of miseries fell upon respondent No. 4 during his academic career, particularly when he was a well protected person being son of a State Cabinet Minister has not been disclosed in the reply. 10. The question of exercising power of relaxation of rules to bestow favour to a particular individual came up for judicial scrutiny in number of cases and the Courts of law have always deprecated such an approach of the Executive for obvious reason that the same is against the constitutional mandate which provides equality before law and equal protection to all, who are similarly situated. In a similar case where son of a bureaucrat came to be appointed as Dy Superintendent of Police in relaxation of rules, a Division Bench of this court on consideration of the law laid down by the Apex Court has ruled against such back door appointment made in relaxation of rules. The judgment delivered in LPA (SW) 227/98 State of J&K and others v. Sunil Gupta and others, is applicable to the facts of the present case from all corneRs. In view of the law laid down by the Apex Court and the Honble Division Bench in the afore-said case the appointment of respondent No. 4 is not sustainable in law being in contravention to mandate of Articles 14 & 16 of the constitution of India. I accordingly allow this petition and quash the appointment of respondent No. 4. In view of the law laid down by the Apex Court and the Honble Division Bench in the afore-said case the appointment of respondent No. 4 is not sustainable in law being in contravention to mandate of Articles 14 & 16 of the constitution of India. I accordingly allow this petition and quash the appointment of respondent No. 4. It is further directed that the vacancy caused due to quashing of appointment of respondent No. 4 shall be advertised and filled up in accordance with the procedure prescribed by providing opportunity to all eligible candidates. Let the necessary process for filling the vacancy be initiated within a period of three months.