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2004 DIGILAW 111 (JK)

Vikas Kant v. State Of J&K & 4 Ors.

2004-04-21

V.K.JHANJI

body2004
1. 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 - 12,0007- in Jammu & Kashmir Police Department in relaxation of method of recruitment is the subject matter of challenge in this petition. 2 Petitioner No. 1 is stated to have obtained Bachelors 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 Prakash Gupta Vs. State of J & K (2000) 7 SCC 561.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. 3. 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. 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 Vs. 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. 4. Respondent No. 5 has also filed his counter - affidavit. 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. 4. 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." 5 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-l-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. 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-l-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 Prakashs 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. 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. 6 I have heard learned counsel for the parties and have carefully gone through the record of the case. 7 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. 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. 8. 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. 9. At the out- set, it may be observed here that recruitment is a process 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. 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. 1 0 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-l/ 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 Gereral 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 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 Gereral 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." 11. At Note15 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-l/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. 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) 12. 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." 13. 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. 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 sons (respondent No.5s) 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. 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." 14. 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. 15. 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. 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 Honble Apex Court in Suraj Prakash Guptas 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 Guptas 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. The Principal Secretary made a mention of the judgment of Apex Court in Suraj Prakash Guptas 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 Honble 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"? 16. 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 Guptas case, he recorded that " the case of Shri Qureshi has been under correspondence prior to the judgment in Shri Suraj Prakash Guptas 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 Guptas case1 the judgment was not applicable to his case. It is not worthy that on the relevent date. 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 Guptas case1 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. 5s 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 Guptas 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 Guptas 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. 17. 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 dehors the Rule and against the well-established law. 17. 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 dehors 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 Guptas case (supra). 18. 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 dehors 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. 19. 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. 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. 20. Coming to the judgment in Suraj Parkesh Guptas Vs. State of J&K (2000)7 SCC 561. 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 Vs. Union of India. 1992 Supp (1) SCC 272. 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 Sved Khalid Rizi Vs. Union of India 1993 Supp(3) SCC 575. 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 Sved Khalid Rizi Vs. Union of India 1993 Supp(3) SCC 575. 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 Vs. Sukanti Mohapatra 1993(2) SCC 486. 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 M. A. Hague (Dr.) Vs. Union of India 1993 (2) SCC 213. that for direct recruitment, the rules relating to recruitment through Public Service Commission could not be relaxed. In J&K Public Service Commission Vs. Dr. Narinder Mohan 1994(2) SCC 630. 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 Guptas 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 Guptas 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 Guptas 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. 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. 21. 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 Governments 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. 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. 22. 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. 23. 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 :he 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. 24. 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. 24. 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. 25. In view of the above. I am of the considered view that there were no special circumstances attendant to the case of respondentNo.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 hoaxcreated 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. 26. 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.