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J&K High Court · body

2010 DIGILAW 289 (JK)

Qadri Nazir Ahmad v. State

2010-05-14

MOHAMMAD YAQOOB MIR

body2010
1. Petitioners among others were also appointed as Guards in pay scale of Rs.2610-3540 vide order Nos.285/ADM of 1998 dated 19.12.1998 and 206/Adm of 1999 dated 26.5.1999 respectively. The said appointments were challenged and finally the matter landed up in the Apex Court and the Hon’ble Apex Court vide order dated 16th of September, 2004 quashed all such appointments and issued the following directions:- "1. All the vacant posts shall be notified for appointment and applications called for in accordance with the Rules within six months from the date of the receipt of the judgment. 2. All the appellants herein may be permitted to submit application for appointment against such notification. 3. As regards the upper age limit, these appellants shall be given relaxation but there shall not be any relaxation in the matter of the basic qualification for appointment to Class IV posts. 4. The appellants may be allowed to continue in service till such regular recruitments are made and these posts are filled up by a regular process of appointment." 2. In compliance thereof, advertisement notice No.1 of 2005 dated 2.4.2005 came to be issued. Petitioners also competed, were selected among others on 9.2.2007 and thereafter appointed in terms of the appointment order issued from the office of Commissioner Commercial Taxes J&K and figure at serial No.8 and 13 in the list of Kashmir Division as published in Kashmir Times, Jammu in its issue dated February 18, 2007. While conducting their measurement, the Committee reported that the petitioners bear lesser height than the prescribed ranging from 2.25" to 1.50" inches respectively but since both of them have worked in the department and have crossed the age limit, therefore, the Committee proposed to the Commissioner that relaxation in the norms of height by 2.25 to 1.50 inches may be taken up with the Government. The Government issued order No.322-F of 2008 dated 27.11.2008, where-under after approval of his Excellency the Governor, sanction has been accorded to the confirmation of action of the Commissioner, Commercial Taxes Department in appointing the petitioners as Guards in the Commercial Taxes Department in relaxation of prescribed height standards. 3. The earlier appointment of the petitioners though was quashed but in terms of the direction No.4 referred above, they were allowed to continue in service till such regular recruitments are made and the posts are filled up by regular process of appointment. 3. The earlier appointment of the petitioners though was quashed but in terms of the direction No.4 referred above, they were allowed to continue in service till such regular recruitments are made and the posts are filled up by regular process of appointment. Since the petitioners while competing made the grade, got selected, therefore, in view of that position, their case for relaxation of height standards was recommended and approved. 4. An interested situation arose i.e. the respondent Commissioner, Commercial Taxes did not permit the petitioners to join and addressed a detailed communication to the Commissioner/Secretary to Finance Department that the Govt. order No.322-F of 2008 cannot be operated upon and needs to be rescinded forthwith. According to the said Commissioner, relaxation in view of the directions of the Apex Court is not permissible. The Finance Department in response to said communication dated 31.12.2008, responded vide communication dated 23.4.2009 addressed to Commissioner, Commercial Taxes by stating that opinion of the Law Department was sought about the implementation of Govt. order dated 27.11.2008 and Law Department has opined that two appointees fulfill the qualification as prescribed under rules, deficiency in the physical standards stand relaxed pursuant to the directions of the Court dated 1.11.2006. The said relaxation cannot be revoked. 5. Learned counsel for the petitioners rightly pointed out that the basic qualification in terms of the Excise and Sales Tax (Subordinate Service) Recruitment Rules, 1991, vis-a-vis eligibility for appointment against the post of Guards/Armed Guards as specified in Schedule III, is middle pass and added that physical fitness is not a qualification. The direction No.3 of the Hon’ble Apex Court is that there should be no relaxation in the matter of basic qualification, so deficiency in height of a candidate which has been relaxed is not a basic qualification. That apart, even the physical standard was to be prescribed by the Commissioner, Sales Tax, when he has not prescribed any standard. 6. Learned counsel for the respondents in opposition stated that the respondent Commissioner, Sales Tax is ready to permit the appointment but it should not run contrary to the directions of the Hon’ble Apex Court 7. Considered the submissions. 8. The apprehension of the respondent Commissioner appears to be misconceived. 6. Learned counsel for the respondents in opposition stated that the respondent Commissioner, Sales Tax is ready to permit the appointment but it should not run contrary to the directions of the Hon’ble Apex Court 7. Considered the submissions. 8. The apprehension of the respondent Commissioner appears to be misconceived. Schedule III of the Excise and Sales Tax (Subordinate Service) Recruitment Rules, 1991 is reproduced here-under: Class Category Designation of post with scale of pay Minimum qualification for direct recruitment Method of Recruitment V (b) Guards/ Armed Guards 745- 1025 Middle By direct recruitment provide that no person shall be appointed as Guard unless he is physically fit by such standard as Commissioner Sales Tax/Excise may be general order prescribed. 9. The Schedule clearly indicates that the minimum qualification for direct recruitment is that the candidate must possess minimum qualification of middle, so it is the basic qualification which both the petitioners possess. 10. The standard for physical fitness has to be prescribed by the Commissioner, Sales Tax by a general order. No such general order has been issued by the Commissioner, Sales Tax. However, such physical standard has been prescribed by Excise Commissioner vide office order No.80/Adm of 1994 dated 22.7.1994. So far as Commissioner, Sales Tax is concerned, he has not issued any such order so as to prescribe the physical standard, when the petitioners are appointed as Guards in the Sales Tax Department. Therefore, apprehension of the counsel for the respondents that the relaxation of physical standard in height may not run contrary to the direction of the Hon’ble Supreme Court, is totally misconceived. On one hand the height standard cannot be said to be a basic qualification and on the other hand no such standard has been prescribed by the Commissioner, Sales Tax, therefore, in both forms such situation shall not stand in the way of the petitioners who otherwise already have been permitted to join pursuant to the direction issued by this Court dated 17.7.2009. 11. Viewed thus, petitioners who have already been permitted to join shall be entitled to all benefits as permissible in terms of their appointment dated 28th February, 2007. Disposed of on aforesaid terms.