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J&K High Court · body

2003 DIGILAW 406 (JK)

Sanjeev Khajuria v. State Of J. &K.

2003-12-22

PERMOD KOHLI

body2003
Exercise of discretion vested with authority be it administrative, quasi judicial or judicial, is the soul searching question involved in the present petition. This petition proceeds on certain admitted facts. Petitioner and respondents 5 to 7, all claim to be sports persons possessing proficiency in sport though belonging to different fields of games. Petitioner is sports person associated with game of hand ball whereas respondent-5 is wrestler and respondents 6 and 7 are Athletics. Petitioner alongwith respondents 5 to 7 and one Bhupinder Singh were recommended for appointment under SRO82 of 1992 dated 7.4.1992 on being certified by the J&K Sports Council of their proficiency in sports vide GAD Communication dated 25.4.1994 to the Home Department. Their credentials were verified through CID Wing of the Police Department, who communicated clearance vide order dated 14.1.1995 in respect to the recommendees. They were subjected to medical examination and declared medically fit as communicated by the Medical Superintendent, Police Hospital, Jammu vide his letter dated 11.1.1995. Finally, the petitioner came to be appointed as Sub Inspector of Police ( Executive) in the Police Department vide Government Order No. 1069/GAD of 1994 dated 30.12.1994. Respondent -5 was appointed as Inspector of Police ( Executive) in the Police Department vide Government Order No. 1070/GAD of 1994 dated 30.12.1994, respondent-7 was appointed as Inspector of Sales Tax in the Sales Tax Department vide Government Order No. 782-GAD of 1995 dated 28.9.1995 and respondent-6 was also appointed as Inspector in the Police Department. Petitioner joined Police Training School pursuant to his appointment and it is while under training that he came to know of appointment of respondents 5 and 6 as Inspectors in Police Department and respondent-7 as Inspector Sales Tax as claimed in the petition. Since the appointment of private respondents was against higher posts and petitioner was appointed on lower post, though recommended simultaneously, representation dated 14.7.1995 was made to the Commissioner/Secretary to Government, GAD seeking recommendation for his appointment on the parity of private respondents and some others. This representation was followed by some more representations, copies whereof have been placed on record. His representation was ultimately rejected vide impugned communication No. GAD(MTG) Sports/13/92 dated 18.6.1999. Consequently petitioner approached this court through the medium of present petition. This representation was followed by some more representations, copies whereof have been placed on record. His representation was ultimately rejected vide impugned communication No. GAD(MTG) Sports/13/92 dated 18.6.1999. Consequently petitioner approached this court through the medium of present petition. Two fold prayer made in the petition is that: (i) quashment of order dated 18.6.1999 through the medium of which, his claim for higher post stands rejected; and (ii) quashment of appointments of respondents 5 to 7 against higher posts. 2. State Sports Council as also the private respondent-6 filed their separate disclaimers. Other private respondents i.e. 5 and 7 were set ex parte. As far respondent-6 is concerned, it has been urged on his behalf that though said respondent was appointed as Inspector Excise but the pay scale of Inspector Excise is equivalent to pay scale of Sub Inspector of Police Department. Therefore, the appointment of said respondent cannot be said to be against higher post notwithstanding the nomenclature of the post. I need not to go into this aspect, in view of the above position, as I found that respondent-6 cannot be equated with petitioner as far nomenclature is concerned, both being from different services though in the same pay scale. This should also satisfy the petitioner. Regarding the case of other respondents, said respondents through General Administration Department, have filed reply. Only defence projected in the reply, is repeal of SRO 82 of 1992 and the discretion exercised by the respondents in making appointment under SRO 82 of 1992. It is specifically stated that claim of petitioner cannot be considered for appointment against higher post. Firstly, said SRO stands repealed and replaced by another SRO. Secondly, appointment under sports category, is at the sole discretion of the government and the government having exercised discretion in making appointments of the petitioner and private respondents against different posts, same cannot be interfered with by the court. This is coupled with the plea that petitioner cannot seek appointment against a particular post. In respect to the impugned order dated 18.6.1999 rejecting prayer of petitioner for appointment against higher post, it is stated that the impugned order does not suffer from any error of law and the post of Inspector being a promotional post, petitioner cannot be considered for appointment against the said post. In respect to the impugned order dated 18.6.1999 rejecting prayer of petitioner for appointment against higher post, it is stated that the impugned order does not suffer from any error of law and the post of Inspector being a promotional post, petitioner cannot be considered for appointment against the said post. It is relevant to note here that there is absolutely nothing in the reply as to under what circumstances, respondents 5 and 7 were appointed as Inspectors Police and the petitioner as Sub Inspector in the same department. 3. I have heard learned counsel for the parties and perused the material on record. 4. It is in-disputed that petitioner as also respondents 5 to 7 were recommended simultaneously by common recommendation. Their credentials were verified by CID and cleared by a common order. Medical report regarding their fitness was also by the same Board, though they have been appointed by different Government Orders. Source of appointment of these persons, is also SRO 82 of 1992 dated 7.4.1992,. Petitioner as also the private respondents have been certified to be sports persons possessing proficiency in sports as defined under the aforesaid SRO. Therefore, they are equal in all respects. Though the petitioner has alleged that private respondents are not of the same status in the field of sports as the petitioner is, but since the Sports Council have certified all of them possessing proficiency in sports, it is not advisable to go into this area, which has been considered by the Expert Body. Other wise also, perhaps this question may not be relevant for the purpose of present petition. Portion of SRO 82 of 1992 relevant for the purpose of this petition, is contained in rules 3 to 5. Same are quoted herunder: " 3. Appointment by the Government: Notwithstanding anything contained in he 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 non-gazetted 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. 4.A sports person already in Government Service may also be considered for appointment under these rules on any other post for which he is fully qualified. 5.The appointment of a sports person under these rules shall be made only against the recruitment vacancies. 5. Rule 3 empowers the government to consider the appointment of any outstanding sports person at its soul discretion in any department against any vacancy in non-gazetted cadre. This is subject to the eligibility and qualification of person for such appointment. Eligibility is to be certified by the Sports Council and the qualification should be as provided under the recruitment rules regulating the appointment against the post. Rule-4 empowers the government to appoint a sports person already in government service to a post for which he is qualified under rule. Under rule-5 all the appointments are to be made against direct recruitment quota. 6. No doubt, Rule 3 confers discretion upon the government to make appointment of sports persons at its sole discretion; the question, which has been raised in the writ petition and falls for consideration of this court is, does the discretion conferred upon the government mean an arbitrary exercise of power in contravention to the mandate of Articles 14 and 16 of the Constitution of India. It is this aspect, which invites the judicial scrutiny of the rule and the action of the respondents. The mandate of Article 14 is equality amongst equals, fairness in action, exclusion of arbitrariness and fair opportunities to all. In the matter of employment, Article 14 is to be read conjointly with Article 16, which further provides equal opportunity and equal treatment in the matter of employment. 7. Whenever the question of equal treatment comes up for consideration, it has to be applied amongst equals. These Articles do not envisage equality amongst un-equals. Therefore, with a view to seek application of the aforesaid Articles, it is necessary to establish that equals have been treated unequally, differently and in discriminatory manner. Petitioner has made specific averment in the writ petition giving details of the qualifications and their eligibility. They were recommended by the General Administration Department to the Home Department for their appointment in the Police Department and on consideration, they have been appointed. Petitioner has made specific averment in the writ petition giving details of the qualifications and their eligibility. They were recommended by the General Administration Department to the Home Department for their appointment in the Police Department and on consideration, they have been appointed. Respondents have not indicated any distinguishing feature in respect to qualification, eligibility, merit or any other factor to demonstrate that private respondents were having superior or better merit as against the petitioner for their appointment against the higher posts or any infirmity or disqualification suffered by the petitioner for his appointment against the lower post. No circumstance whatsoever has been shown in the reply or any other record to bring home any un-equality between the petitioner and private respondents. Why and how the private respondents have been appointed against a higher post of Inspector and the petitioner against a lower post of Sub Inspector, is not understandable. The plea of the respondents, that the government has absolute discretion in making appointment, cannot be accepted. The government being a representative of the people in a democratic set up, a model employer, has to go fairly. Even if any statute or law confers any discretion, the same cannot be exercised in arbitrary manner as this goes against the spirit of Article 14 of the Constitution of India. The discretion has to be exercised bonafidely, fairly, rationally and in accordance with the mandate of law of the land. Whenever in the garb of discretion, persons equally placed are treated differently and discriminately, this court is required to exercise its power of judicial review to set aside the action of the State or for that matter any authority, if the same is violative of Articles 14 and 16 of the Constitution of India. 8. The contention of the respondents that post of Inspector in Police Department is required to be filled up by promotion and thus, petitioner cannot be appointed against that post, is an attempt to defy the mandate of law. Again respondents have failed to show, how private respondents have been directly appointed against the promotional post and petitioner ignored, therefore, this contention also fails on the same principle, as above. Finally, the argument of Mr. Again respondents have failed to show, how private respondents have been directly appointed against the promotional post and petitioner ignored, therefore, this contention also fails on the same principle, as above. Finally, the argument of Mr. B.S. Slathia, AAG that SRO 82 having been rescinded and substituted by another SRO, no action is warranted in terms of repealed SRO and therefore, the claim of the petitioner made through various representations, was rightly rejected. I am afraid, this is an argument meant only to be rejected. The appointment of the petitioner as also the private respondents, was made in terms of SRO 82 of 1992. The representation of the petitioner was not to make fresh appointment for which the respondents had to consider an apply the rules existing at the time of consideration of the representation of the petitioner. The representation related to the appointments made by the respondents in violation to principles of equality and ignoring the parity between the appointees. They were only required to reconsider and pass order, either reverting the private respondents to lower post or making appointment of the petitioner against the higher post. Such an action is not regulated by any provision of SRO 82 or for that matter any other SRO. The rules only regulate the appointment and lay down the qualification as also the eligibility criteria. The manner and mode of appointment is governed by either recruitment rules or, is an administrative action. Therefore, the existence or repeal of SRO 82, is irrelevant for the purpose. Another argument, projected by Mr. Slathia, AAG is, that the court cannot compel the respondents to direct appointment of the petitioner against the higher post. This argument is also to meet the same fate as other contentions. It is not the case, where the court is required to direct consideration for appointment under normal circumstances, where the eligibility of the petitioner is to be assessed. It is a case where the petitioner has been adjudged as duly qualified and eligible under law. He having been appointed on the basis of his eligibility and qualification, but treated discriminately and in arbitrary manner. Where the court finds that any action of the respondents, is violative of Articles 14 and 16 of the Constitution of India, a direction to treat the petitioner at par with other similarly situated persons, is the only relief that can be granted. 9. Where the court finds that any action of the respondents, is violative of Articles 14 and 16 of the Constitution of India, a direction to treat the petitioner at par with other similarly situated persons, is the only relief that can be granted. 9. In addition to above, it has been noticed that the rules regulating the appointment of sports persons do not provide any guidelines norms for making appointment against different posts. The State has to act in such a manner so as to not to violate the mandate of Articles 14 and 16 of the Constitution. Therefore, it is necessary rather mandatory that the rules that may be framed by the State providing source of appointment for a particular class of people. It must also lay down guidelines and norms for proper regulation of the same. Who is to be appointed against a higher post and who against a lower post, should be properly incorporated in the rules to avoid arbitrary exercise of power by the authority entrusted with the exercise of discretion/power under any law. In other words, discretion is required to be regulated and minimized. This is the soul and spirit of Article 14 of the Constitution of India. 10. In view of the detailed discussion, this writ petition is allowed. Respondents/State is directed to appoint the petitioner against the higher post of Inspector in Police Department on the anology of respondents 5 and 7 or revert the said respondents to a lower post of Sub Inspector within a period of three months.