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2012 DIGILAW 11 (JK)

Zulfikar Ahmad Wani v. State of J&K & Ors.

2012-01-31

HASNAIN MASSODI

body2012
1. Shri G.M. Wani-father of the present petitioner after serving the Jammu and Kashmir Police Department for 32 years, retired on superannuation as Deputy Director Prosecution on 28th February, 2002. Shri Wani, emboldened by the policy of the State Government to recruit wards of Police Officials/Officers without asking them to go through usual selection process, submitted an application on 4th March, 2002 to the Home Minister of the State requesting for appointment of his son, Sh. Zulf ikar Ahmad Wani - petitioner herein, as Sub Inspector (Executive) in relaxation of rules, i.e. without his participation in the normal selection process in the Police department. It needs to be pointed out that petitioner, sometime before the afore-stated application was filed, responded to the advertisement notice issued by the respondents inviting applications from the eligible candidates for recruitment as Sub Inspectors (Executive) in the Police Department. However, the petitioner was not able to make it to the selection list, though he qualified outdoor and indoor tests, because of low merit in viva-voce. 2. The respondents appear to have considered the application dated 4th March, 2002 and appointed the petitioner as Wireless Operator (Constable) in the Police Department. The petitioner, though not satisfied with the favour shown, joined as Wireless Operator (Constable), to later voice his grievance that he was not given a post commensurate with his qualification. The petitioner, it may be noted, has a Bachelor Degree in Science to his credit. Besides he is a young man of 32 years with good physique and excellent state of health and finds himself eligible for the post of Sub Inspector (Executive) having regard to the qualification prescribed under Rules for the post. 3. When the repeated representations made by Sh. Wani were left unheeded and the recommendation for his appointment as Sub Inspector (Executive) in relaxation of rules vide No. Home/173/PB-III/Relx/2002 dated 13.08.2002 declined, the petitioner filed a writ petition registered as SWP No.928/2005 seeking a direction to the respondents to appoint the petitioner as Sub Inspector (Executive) in the State Police Department in relaxation of rules. The petitioner placed reliance on recommendation made by Director General of Police under No. PEPS/A-402/2002/2772 dated 04.06.2002, whereby the appointment case of the petitioner was recommended to the respondent no.1. The writ Court did not find merit in the writ petition and dismissed it on 22.03.2006. 4. The petitioner placed reliance on recommendation made by Director General of Police under No. PEPS/A-402/2002/2772 dated 04.06.2002, whereby the appointment case of the petitioner was recommended to the respondent no.1. The writ Court did not find merit in the writ petition and dismissed it on 22.03.2006. 4. Aggrieved with the order of the writ Court dated 22.03.2006, the petitioner filed Letters Patent Appeal registered LPA No.180/2006. The appeal was disposed of on 25.07.2008 by the following order; "In the circumstances, we deem it appropriate to dispose of the writ petition itself directing respondents to consider request of the petitioner for appointment in accordance with law considering all aspects of the matter as well as taking into account the orders by which such relaxation was granted to other similarly situated persons. Orders be passed within a period of three months from the date of receipt of copy of this order." However, the respondent No.1 once again rejected the petitioner's claim vide Government Order No. 472(P) of 2009 dated 01.06.2009. 5. The petitioner in the petition on hand questions the Government Order No. 472(P) of 2009 dated 01.06.2009, whereby his claim has been rejected on the grounds set out in the petition. The respondents oppose the writ petition on the grounds that under the Reservation Act and the Rules made thereunder, wards of serving or retired Police personal do not constitute any separate category qualifying for reservation. It is insisted that if the State Government has, at any stage, shown favour to wards of Police Officers against the mandate of law or in relaxation of rules, any candidate though similarly placed cannot ask for the same benefit as is extended to the former. It is next pleaded that the petitioner having accepted the post of Wireless Operator (Constable) in the Police Department cannot turn around to ask for a higher post and is estopped from laying a claim for his appointment as Sub Inspector (Executive.). 6. I have gone through the pleading as also the record available on the file and have heard learned counsel for the parties. 7. The employment under the Government is a public largesse and cannot be given arbitrarily, selectively and de hors the Recruitment Rules. Everyone eligible for a post having regard to the Recruitment Rules governing recruitment to the post under the State, is to be given fair chance to compete for the post. 7. The employment under the Government is a public largesse and cannot be given arbitrarily, selectively and de hors the Recruitment Rules. Everyone eligible for a post having regard to the Recruitment Rules governing recruitment to the post under the State, is to be given fair chance to compete for the post. To achieve the object, availability of the vacancy is to be duly notified, so that all eligible candidates are aware of such availability and have a fair opportunity to participate in the selection process. An appointment made without following the procedure laid down under Rules including one requiring fair opportunity to all eligible candidates to compete for the available vacancy violates Article 14 and 16 of the Constitution of India and is in common parlance styled as "back door appointment". Even where the posts are reserved for a category under the Reservation Law - J&K Reservation Act, 2004 read with Rules made thereunder. The posts are to be notified for information of all the eligible candidates from the said category so that they can respond to the advertisement notice and participate in the selection process. The Government cannot secretly reserve posts for a particular class or category, not having sanction of the Reservation Act and, thereafter, without notifying the posts make appointments selectively and arbitrarily against such self styled "reserved category". 8. The State Government as evident from the pleadings and the record available on the file has been making appointments in favour of the wards of Police Officials/Officers, treating it has a reserved category without the category having identified as such under J&K Reservation Act, 2004 and the Rules made thereunder. The policy of selective and arbitrary appointments of the wards of Police Officials/Officers offends the Recruitment Rules and is in gross violation of mandate of Articles 14 and 16 of the Constitution of India. 9. The respondents impliedly have admitted that the appointment of the wards of the Police Officials/Officers without their participation in the normal selection process, is illegal and in violation of constitutional mandate. However, the respondents insist that "illegal" appointment orders in favour of the wards of Police Officials/Officers mention whereof is made in the petition, cannot be made a basis for parity with "illegal" appointees, claimed by the writ petitioner. However, the respondents insist that "illegal" appointment orders in favour of the wards of Police Officials/Officers mention whereof is made in the petition, cannot be made a basis for parity with "illegal" appointees, claimed by the writ petitioner. It needs to be emphasized that the practice of making secretive selection and arbitrary appointment in favour of the wards of Police Officials/Officers de hors Recruitment Rules is nothing but illegal and unconstitutional exercise of executive power by the respondents and all the appointments are liable to be quashed. However, once such appointments are allowed to continue for the reason that it would not be in the interest of justice to disturb the appointees after they have served the Police Department for a long time and have crossed the upper age limit prescribed for the government service, the State cannot be heard claiming that it has a right to further discriminate amongst beneficiaries of such illegal appointments as regards extent of illegal benefits extended to them. 10. It is a common practice for the State to confer illegal benefits on its favourites and, thereafter, when such benefit is claimed by a similarly situated person to turn around and say that conferment of illegal benefit on one person cannot justify extension of such benefit to other person, though similarly placed. The State, in such case, is neither ready to withdraw the benefit extended illegally in favour of someone close to the seat of power either because of relationship, political loyalties or such other reason, nor willing to extend such benefit to a similarly placed person or in some cases, more meritorious and deserving but without any political connections or close to the powers that be, though it wants such illegal favours to be condoned. 11. It is true that one wrong cannot justify on other wrong and one illegal benefit cannot be made basis for conferment of similar benefit on another person. It is equally true that a person seeking a writ of Mandamus must establish a right in his favour with corresponding duty on the State and that he/she cannot claim a right to get a benefit not available under Law. It is equally true that a person seeking a writ of Mandamus must establish a right in his favour with corresponding duty on the State and that he/she cannot claim a right to get a benefit not available under Law. However, when conferment of illegal benefit or concession assumes a pattern and the State does not extend such benefit in a single case but in favour of a number of individuals over the time it cannot discriminate amongst the selected group of beneficiaries and make discrimination within the class picked up by it for conferment of illegal benefit. The case in hand presents a classic example of such discrimination within the class identified by the State for conferment of benefit in violation of Law. The State Government decided to appoint wards of police officers/officials as a class, in violation or disregard of Recruitment Rules, without such class being entitled to the treatment given under the Reservation Act, 2004, and the Rules made there under or any other Law for the time being in force. Thereafter, the Government arbitrarily gave different ranks at its choice to such wards of police officers/officials, irrespective of their academic qualification and eligibility. While the petitioner, having a Bachelor Degree in Science to his credit, was appointed as Wireless Operator (Constable) in the Police Department. Shri Nazir Ahmad Bhat S/o Late Ali Mohd. Bhat R/o Ahtwajan -Srinagar, was on approval of Chief Minister vide Government order no. Home-140 of 2002 dated 15.3.2002 appointed as Assistant Sub Inspector in the Police Department in relaxation of upper age bar of about four years (as per annexure - "K2" to the petition), Shri Manzoor Ahmad Khan S/o Rtd. SI Sher Khan R/o Natipora, Srinagar — son of a Police Officer also with a B.Sc Degree was appointed as Assistant Sub Inspector in the Police Department vide Government Order No. 186 (P) of 2005 dated 28.4-2005, even in relaxation of requirements of height under Recruitment Rules by 3/4 inch (as per annexure "L2" to the petition). SI Sher Khan R/o Natipora, Srinagar — son of a Police Officer also with a B.Sc Degree was appointed as Assistant Sub Inspector in the Police Department vide Government Order No. 186 (P) of 2005 dated 28.4-2005, even in relaxation of requirements of height under Recruitment Rules by 3/4 inch (as per annexure "L2" to the petition). The course adopted by the State Government of first identifying a class in violation of Articles 14 and 16 Constitution of India and Recruitment Rules for a special treatment and, thereafter, extending different benefits to the members of such class though similarly placed is not permissible and cannot be condoned on the ground that as the identification of class itself was illegal, a member of such class has no right to ask for a similar treatment as given to other similarly placed member of the class. 12. From the above discussion, following principles emerge; a. That when the State Government or its functionaries confer a benefit on a group of persons, as against a single person, in violation of Rules and conferment of such benefit assumes a pattern, the State Government cannot deny a similar benefit to a similarly placed person, only on the ground that as conferment of benefit on the group of persons was in violation of Rules. The State Government or its functionaries cannot refuse to extend such benefit to a similarly placed person claiming the benefit, unless such benefit is withdrawn/revoked in respect of the group of persons to whom it was extended. b. That when the State Government or its functionaries identify a group or class of persons for conferment of a benefit though in violation of rules, the State Government and its functionaries cannot make any discrimination within the group and extend the benefit selectively and arbitrarily within the members of the group or the class and resist a claim for equal treatment on the ground that since identification of the group conferment of benefit was itself illegal, the member of the group asking for equal treatment cannot be denied such equal treatment, unless benefit granted to the group or class is withdrawn/revoked. 13. 13. After discussion of background facts and the principals emerging there from, let us see whether the respondents have followed the order dated 25.7.2008 in LPA No. 180/2006, while rejecting the petitioner's claim vide Government Order No. 472 (P) 2009 dated 01.06.2009, impugned in the present petition. 14. It may be recalled that the order dated 25th July, 2008, required the respondents to consider the petitioner's case for appointment against a higher post in accordance with the law considering all aspects of the matter as well as taking into account the orders by which such relaxation was granted to other similarly situated persons. The respondents (respondent no. 1) based the order rejecting the petitioner's claim on the following ground:- "There is no justification for considering the appointment of petitioner as Sub Inspector in the Police in relaxation of rules merely on the ground that his father had worked and superannuated from J&K Police" 15. A bare look at the government Order Home 472 (P) 2009 dated 1st June, 2009, reveals that the respondents did not comply with directions of LPA Court dated 25.7.2008, in letter and spirit. In terms of the LPA Court order, the respondents were directed to (i) consider all aspects of the matter and (ii) take into account the orders by which such relaxation was granted to other similarly situated persons. The respondents while taking a decision in the matter did not at all take into account the orders by which relaxation was granted to other similarly situated persons. The respondents completely ignored this part of the LPA Court direction. The respondents were expected to explain and justify why and how S/Shri Shri Nazir Ahmad Bhat and Manzoor Ahmad Khan, wards of police officers/officials having same qualification as that of the petitioner were appointed as ASI in Police Department even in relaxation of eligibility criteria as regards age and height and the petitioner also a ward of a police officer/official having same academic qualification to his credit, was singled out for discriminatory treatment and appointed against a lower post i.e. Wireless Operator (Constable). The respondents by not complying with the LPA Court order dated 25.7.2008, while rejecting the petitioner's claim have rendered the order No. Home 472 (P) of 2009 dated 01.6.2009, impugned in the petition liable to be quashed. 16. For the reasons discussed, the writ petition is allowed and the Government Order no. The respondents by not complying with the LPA Court order dated 25.7.2008, while rejecting the petitioner's claim have rendered the order No. Home 472 (P) of 2009 dated 01.6.2009, impugned in the petition liable to be quashed. 16. For the reasons discussed, the writ petition is allowed and the Government Order no. Home 472 (p) of 2009 dated 01.06.2009, is quashed. The respondents are directed to accord fresh consideration to the petitioner's case for his appointment against a post commensurate with the post against which wards of police officers/officials having same qualifications and similarly placed have been appointed, in light of the LPA Court order No. dated 25th July, 2008. The respondents shall take a decision in the matter within eight weeks from the date copy of the order is served on the respondents.