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2003 DIGILAW 378 (JK)

Gurmukh Singh Dutta v. State

2003-12-02

PERMOD KOHLI

body2003
Validity of Government order No. 518-P of 1999 dated 26-11-1999 has been questioned in the present proceedings, whereby the claim of the petitioner for appointment as Assistant Sub-Inspector in Police in relaxation of rules, has been rejected. 2. Brief resume of the facts is taken note of with a view to consider and decide the controversy involved in the petition. 3. Petitioner was a candidate for selection as ASI for which process was initiated by the respondents. After clearing the physical test as held by the Department, the candidates were required to appear in the written examination. The criteria for qualifying the written statement was fixed by the Department wherein a candidate must secure not less than 40% marks in the written test to enable him to be summoned for viva-voce which was to follow the written test. 4. Admittedly petitioner did not qualify the written test by not securing 40% minimum marks prescribed for the same. He was not summoned for viva-voce. In the meanwhile the petitioner appears to have approached Inspector General of Police (IGP), seeking his selection on the basis of his outstanding performance in the National Cadet Corps (NCC). Recommendation was made in his favour to the government for his appointment in relaxation of rules of recruitment as also upper age limit. This recommendation was made by the IGP. Petitioner also relied upon a certificate of merit given by the then Governor of the State who appreciated his proficiency as a cadet of NCC. Based upon aforesaid recommendation and the appreciation given by the then Governor of the State, the petitioner filed two writ petitions, SWP No: 1684/1992 and SWP No: 1385/1994. Both these writ petitions were disposed of by a common judgment dated 7-10-1998, wherein the court made the following observations: "....It may not be possible to say anything in favour of the petitioner so far as the criteria fixed by the respondent authorities is concerned. The petitioner no doubt qualified in the two preliminary tests but was unable to pass and attain 40% marks in the written test. There is, however, something to be said in favour of the petitioner. This is on the basis of recommendations made by the Inspector General of Police. It be seen that the appointing authority of ASI is the Inspector General of Police. There is, however, something to be said in favour of the petitioner. This is on the basis of recommendations made by the Inspector General of Police. It be seen that the appointing authority of ASI is the Inspector General of Police. Once he had made recommendations for relaxation of the Rules, then that should have been final word of the matter. As a matter relaxation in age limitation can be made. This has been so held by the Supreme Court in the case reported as AIR 1994 SC 1080. Once a recommendation was made by a competent authority, then formality of approval was required to be given. It is only by way of abundant precaution competent authority had referred the matter to the Additional Chief Secretary to Government, Home Department. This was a formality which should have been completed. This has not happened in this case. Let this be done now. The petitioners further submission that as per the instructions issued on 27th April, 1976, some reservation had to made for N.C.C. candidates. This has not happened in this case. This is also required to be looked into. In view of the above writ petition No. 1357/1994 is disposed of with the direction that the respondents would take notice of the recommendations made by the Inspector General of Police. They would also take notice of its own circular issued in the year 1976. They would adopt positive approach and take necessary action. Let this be done within a period of two months. Period of two months would begin from the date copy of the order passed by this court along with writ petition and its annexures is made available by the petitioner to the respondent authorities...." 5. The direction of the court having not been complied with, a contempt petition No. 214/1999 was preferred. During the pendency of the contempt petition, respondents came forward with the impugned order rejecting the claim of the petitioner. Taking note of the passing of the impugned order, contempt court disposed of the contempt petition vide its order dated 10-11-2000, leaving it open for the petitioner to challenge the impugned order through separate proceedings. This is how, the present petition has been preferred. 6. Mr. Taking note of the passing of the impugned order, contempt court disposed of the contempt petition vide its order dated 10-11-2000, leaving it open for the petitioner to challenge the impugned order through separate proceedings. This is how, the present petition has been preferred. 6. Mr. S. T. Hussain, learned Senior Advocate appearing for the petitioner has challenged the impugned order on the following grounds:- (i) That the direction contained in the judgement dated 3-10-1998 constitutes res judicata and is binding upon the respondents. His further submission is that the finding returned by the court have not been challenged, the respondents had no option but to accept the same. (ii) The IGP being the appointing authority, recommended relaxation of rules and the government had no authority to bye-pass the same. (iii) The appreciation by the Governor of the State constitute a relevant consideration before the government which has not been taken into consideration while passing the impugned order. 7. I have minutely and carefully considered the impugned order. The claim of the petitioner has been rejected primarily on the ground that the petitioner has failed to secure the requisite 40% marks in the written test which was the criteria laid down for selection/appointment. In respect to the applicability of circular dated 27-11-1976, the respondents have specifically stated that the said circular ceases to exist in view of the issuance of SRO 126 of 1994. I have heard learned counsel for the parties. 8. With a view to appreciate the contention of Mr. Hussain regarding the binding nature of the judgement dated 7-10-1998, no doubt certain observations have been made by the court in the aforesaid judgement and some weightage was directed to be given to the recommendations of the IGP who recommended the case of the petitioner for relaxation of rule of recruitment as also the upper age limit., a further direction was issued by the court to take into consideration the circular dated 27-4-1976, which gives preferential treatment to a candidate who has undergone NCC training and had secured some merit certificate therein. However, the court while issuing the direction to the State only directed to consider the case of the petitioner in the light of the recommendations and the circular. However, the court while issuing the direction to the State only directed to consider the case of the petitioner in the light of the recommendations and the circular. The respondents have specifically dealt with this direction of the court while passing the impugned order, the stand taken by the respondents is that the circular does not exist having been replaced by SRO 126 of 1994. 9. Even if the circular is still in vogue and the case of the petitioner is required to be considered in terms of the said circular, the petitioner is still not entitled to any benefit thereof for the simple reason that the rule of preference only means preference to a candidate if he has secured marks equal to at least the last selected candidate. The petitioner was not included in the select list as he could not secure the minimum required marks in the written examination and could not claim any right for viva-voce. Therefore, the question of application of rule of preference does not arise in the facts and circumstances of the present case. 10. In respect to second contention regarding relaxation of rules, no doubt State has the power to relax the rules. The question whether rule of recruitment can be relaxed or it is only the rule of procedure which can be relaxed is required to be considered. The Apex Court in case J&K Public Service Commission Versus Dr. Narinder Mohan and others, AIR 1994 SC 1808 has specifically ruled that as far relaxation of qualification for recruitment are concerned, same is impermissible and is violative of Article 14 and 16 of the Constitution of India. Ratio of the said judgement of the Apex Court is as follows: ".......Moreover the proviso to Art. 320 (proviso to S.133 of J&K Constitution), though gives power to the State Government to specify case or class of cases in respect of which consultation with the PSC may be dispensed with still the recruitment shall be in compliance with either of the Art. 320(1) and S. 133(1) of the J&K Constitution or be duly constituted body or authority. The rules or instructions should be in compliance with the requirements of Arts. 14 and 16 of the Constitution. The procedure prescribed shall be just, fair and reasonable. The rules or instructions should be in compliance with the requirements of Arts. 14 and 16 of the Constitution. The procedure prescribed shall be just, fair and reasonable. Opportunity shall be given to eligible persons by inviting application through the public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the State. Therefore, it must be held that power of relaxation exercised by the Government is ultra vires the Rules and the High Court is right in holding that Government cannot relax the rules of recruitment to be made by the PSC. Government have no power to make regular appointment under the Rules without selection by the Public Service Commission under S. 133(1) read with Rule 5 and Schedule III of the Rules." 11. Mr Hussain relies upon a judgement of this court reported in 1999 SLJ 511, Abdul Hamid Bhat v. State of J&K & Ors., wherein a coordinate bench of this court considering the similar question and relying upon rule 5 of the CCA Rules held that the Government is empowered to relax the rules in individual cases if it is satisfied that the strict application of the rules would cause hardship to the individual concerned. 12. Assuming for the sake of argument that the power to relax the rules rests with the State, whether the petitioner is the one in whose favour the power should be exercised. The only ground taken in the writ petition and submitted at the bar is that the petitioner possesses exceptional merit having undergone special training in NCC and same has been acknowledged by the Governor of the State by awarding him cash. 13. Question of hardship and appreciation are two different things, How and in what manner any hardship has been caused to the petitioner has not been indicated in the writ petition. It will not be out of context to say that there is no whisper in this regard. A person may be meritorious but it is not necessary that he is facing hardship. Rather a meritorious person has better avenues and more chances, if he decides to compete. 14. It is finally submitted by Mr. Hussain that the petitioner is getting over aged. A person may be meritorious but it is not necessary that he is facing hardship. Rather a meritorious person has better avenues and more chances, if he decides to compete. 14. It is finally submitted by Mr. Hussain that the petitioner is getting over aged. There are thousands of young person who are going to become over age or have become over aged and could not secure the job, though may be more meritorious than the petitioner and may be having achievements in different fields of life. That does not make out a case for grant of relaxation in the rules of recruitment. Notwithstanding existence of such a rule, same has to be applied in exceptional cases on the existence of valid, rationale and plausible grounds and circumstances warranting the exercise of powers of relaxation of rules. I am afraid the petitioner is entitled to be bestowed with such an indulgence. 15. For the foregoing reasons, I do not find any merit in this petition which is accordingly dismissed along with connected CMPs.