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2009 DIGILAW 672 (JK)

State Of J. &K. v. Ifthkar Hussain

2009-12-23

BARIN GHOSH, MUZAFFAR HUSSAIN ATTAR

body2009
1. An advertisement for recruitment in different Services was responded by the writ petitioner-respondent. The advertisement was published in accordance with the Rules governing selection for the vacancies in respect whereof the said advertisement was published. The Rules as well as the advertisement indicated that a candidate applying shall be entitled to give his preference to different Services, the vacancies in respect whereof had been advertised. The Rules made it clear that recommendation for appointment shall only be made on the basis of merit-cum-preference. The writ petitioner-respondent indicated his preference and his tenth preference was Accounts Service; whereas his fourth preference was Police Service. On the basis of merit adjudged amongst Schedule Tribe candidates and upon considering his preference, writ petitioner-respondent was recommended for being appointed in the Accounts Service. At the same time, upon consideration of their merit in the open category and their preference, two of the private respondents, too, were recommended for being appointed in the Accounts Service and one in the Cooperative Service. The State Government acted on the basis of such recommendation and appointed the petitioner-respondent as well as the private respondents in their respective Services to which they were recommended. Such appointments were given in the year 1999. Petitioner-respondent and the private respondents made representations to the Government for appointing them in the Police Service. The State Government while did not find any merit in the representation made by the petitioner-respondent, found merit in the representations given by private respondents, as they, prior to their such selection, were working in the Police Department, though in lower rank and had shown gallantry in keeping law and order in the State. Considering such past contribution of the private respondents, the State Government created three new posts in the Police Department and appointed private respondents in the said posts. Such appointments were given in the year 2000. Soon thereafter, a writ petition was filed in the year 2000 by the petitioner-respondent, contending that there was no just reason for not honouring the representation of petitioner-respondent but honouring the representations of private respondents. 2. Such appointments were given in the year 2000. Soon thereafter, a writ petition was filed in the year 2000 by the petitioner-respondent, contending that there was no just reason for not honouring the representation of petitioner-respondent but honouring the representations of private respondents. 2. By the judgment and order under appeal, rendered on May 18, 2004, the contention of writ petitioner-respondent was upheld and the order by which private respondents were appointed in the Police Service was quashed and, at the same time, the State Government was directed to consider re-allocation of Services amongst the petitioner-respondent and private respondents. In the connected appeals preferred by the private respondents, order dated May 18, 2004 remained stayed. In the result, writ petitioner-respondent continued to serve in the Accounts Department and the private respondents continued to serve in the Police Department. 3. In the present appeal, many a questions are required to be answered, namely, whether the Executive Government was competent to create the subject posts? Even if it could create the same, could the Executive Government supply the same, de hors recommendation of the Public Service Commission, by the private respondents or by the petitioner-respondent? And whether adjustments of private respondents in the newly created posts could be treated to be transfer from one Service to the other, and, if so, whether the same is permissible in terms of the appropriate statutes governing the Services in question? 4. Learned Advocate General appearing in support of appeal preferred by the State, submitted that what the Government did in reallocating the private respondents to Police Service, was to obtain continued service of the private respondents in the same department where they had excelled. It was stated that such action was taken in public interest and without any bad motive. It was submitted, infraction of law, if any, in the facts and circumstances of the case, should not be taken into account to the extent that action can be treated to be a mala fide action. It was submitted that there was no malice in law. With that, learned Advocate General, at the same time submitted that, the State is agreeable to consider the case of petitioner-respondent also for being reallocated to the Police Service. It was submitted that there was no malice in law. With that, learned Advocate General, at the same time submitted that, the State is agreeable to consider the case of petitioner-respondent also for being reallocated to the Police Service. He submitted that the private respondents, who are working in the Police Department for last nine years, should be permitted to remain in the Police Department, again, for public interest until such time reconsideration is made. 5. We feel that, in view of such submissions made by the learned Advocate General, the matter should be disposed of. However, the learned counsel appearing for petitioner-respondent submitted that his client is working in the Accounts Department for the last ten years with two promotions and, at this stage, it may not be appropriate to reallocate him to Police Service; instead, he submitted, it would be appropriate if his further representation, that he may make in a months time, be considered. 6. Considering such submissions made by learned counsel for the parties, we are of the view that the decision rendered on the writ petition, as challenged in the present appeal, would interfere with the rights already accrued in favour of not only the private respondents but also to the writ petitioner-respondent, for, if on reconsideration he is reallocated to Police Service, his service interest may be prejudiced. Furthermore, one must keep in mind that the private respondents have served the Police Department since 2000 and are still serving as such, their status as such police officers have remained unchanged since last nine years. In the event, such status of any of the private respondents stands altered, on the basis of the order under appeal, on the one hand, petitioner-respondent may not be benefited, but surely private respondent, whose status will stand altered, would suffer irreparable prejudice. In other sense, implementation of order, which learned Advocate General has submitted that State is ready to implement, would not be beneficial to any of the parties to the lis. 7. In other sense, implementation of order, which learned Advocate General has submitted that State is ready to implement, would not be beneficial to any of the parties to the lis. 7. We, accordingly, while deciding not go in to the questions referred to above, but, at the same time, taking into account the prejudice the parties to the lis are likely to suffer by reason of the judgment and order under appeal, set aside the same with a direction upon the petitioner-respondent to make a representation to the State Government within a period of one month from today, with a further direction upon the State Government to consider and decide the said representation in accordance with law within in a period three months therefrom. 8. In view of the judgment and order rendered in LPASW no. 233/2006, LPASW no. 103/2004 stands allowed and judgment and order under appeal is set aside.