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2012 DIGILAW 412 (JK)

State of J&K & Ors. v. Jehangir Ahmad Khanday

2012-07-11

HASNAIN MASSODI, M.M.KUMAR

body2012
1. The instant appeal is directed against an inter locutory order dated 20.08.2011, passed by learned Single Judge of this Court in CMP no. 2981/2011, directing the appellants to allow the writ petitioner-respondent to join against the post of Constable in J&K Executive Police in District Anantnag, despite the fact that after his selection, he has been found involved in case FIR no. 122/2010 registered at Police Station, Qazigund under Sections 354,427,323,336,147 and 447 RPC. The trial in the aforesaid FIR was pending. The order dated 20.08.2011 deserved to be read in extenso and the same reads thus:- "It is contended that the petitioner has been selected as a Constable in the Jammu and Kashmir Executive Police in District Anantnag but the respondents are not allowing him to join for the reasons that he is involved in FIR No. 122/2010 at Police Station, Qazigund, under Section 354,427,323,336, 147 and 447 RFC and is pending trial. Hence this Writ Petition. Notice returnable within four weeks. Steps for service within one week. Be listed after the service is effected. CMP No. 2981/2011 CMP is disposed of by directing the respondents to allow the petitioner to join against the post of Constable in Jammu and Kashmir Executive Police in District Anantnag in terms of the selection already made. Disposed of" 2. Mr. Magray, learned Senior AAG, appearing for the appellant-State, has argued that once the antecedents of a selected candidate have been found to be unworthy of entry tpo government service like a Police Constable, in as much as, a criminal case has been registered against him, then the appellant-State is within its right to deny him the appointment. Another submission made by Mr. Magray is that selection does not confer any indefeasible right which has come to be vested in the writ petitioner-respondent He has also placed reliance on Rule 185 of the Jammu and Kashmir Police Rules, 1960 ((for brevity the Rules) and argued that it is mandatory to verify the antecedents of a selected candidate with the object of ensuring that no candidate with doubtful antecedents could enter the service. 3. Mr. J. I. Ganai, learned counsel for the writ petitioner-respondent, however, has submitted that the appellant-State in one case is allowing the joining of a Constable whereas in another case it is raising objection which is totally arbitrary. 3. Mr. J. I. Ganai, learned counsel for the writ petitioner-respondent, however, has submitted that the appellant-State in one case is allowing the joining of a Constable whereas in another case it is raising objection which is totally arbitrary. According to the learned counsel, the writ petitioner-respondent deserved to be appointed and the learned Single Judge did not commit any error by directing the appellants to permit him to join because the result of trial in cases concerning FIR may not be available for a long period. 4. Having heard learned counsel for the parties and perusing the record with their able assistance, we are of the considered view that this appeal deserves to be allowed. 5. Rule 185 of the Rules deals with verification of character of selected candidates and the same reads us under:- "185. Recruitments-verification of character of (1) The character and suitability for enrolment of every recruit shall be ascertained by a reference to the Lambardar of the village or Ward Officer of the Town of which the recruit is a resident. A second slip may also be sent to the Finger Print Bureau in order to establish his freedom or otherwise from conviction. Such Lambardar or Ward officer shall if the recruit is of good character, furnish a certificate to that effect in Form 27 which shall be verified and attested by the Sub-Inspector Incharge of the local Police Station. Recruits shall be provisionally enrolled pending result of the reference." 6. A perusal of the aforesaid Rule along with Rule 179 shows that the character and suitability of enrolment of every recruit must be ascertained by a reference to the Lambardar of the village or Ward Officer of the Town of which the recruit is a resident. A reference may also be sent to the Finger Print Bureau in order to establish that he is free from any stigma or otherwise from conviction. Rules 179 of the Rules cast a duty upon the authority to be more careful at the time of recruitment and to ensure that a person who is appearing as a candidate, if selected, does not carry an element which could be said to be undesirable for the Police Force. The aforesaid Rule has remained subject matter of consideration of this Court in case of Fayaz Ahmed Panchoo v. State of J&K and ors 2003 (Supp.) JKJ 765. The aforesaid Rule has remained subject matter of consideration of this Court in case of Fayaz Ahmed Panchoo v. State of J&K and ors 2003 (Supp.) JKJ 765. Referring to Rule 185, the Division Bench has held that it is mandatory duty cast upon the appointing authority to verify the character and suitability for enrolment of every recruit and that must be ascertained. 7. Therefore, we are of the view that at the stage when the verification is in progress and it has been revealed that an FIR is registered against the writ petitioner-respondent, then no direction ought to have been issued by a Writ Court to the appellants, asking them to permit him to join. Moreover, by an interim order the whole relief, which would result into allowing the writ petition, could not have been granted. We also agree with the submissions made by Mr. Magray that the selection does not confer any indefeasible right on a selected candidate which always remains subject to the condition that his antecedents are found to be up to the mark. In that regard, reliance may be placed on the judgments of the Supreme Court in Mani Subrat Jain and ors v. State of Haryana and ors (1977) 1 SCC 486 and Union Territory of Chandigarh v. Dilbagh Singh (1993) 1 SCC 154 . 8. We are unable to accept the submission made on behalf of the writ petitioner-respondent that by an interim order in an another case a candidate has been permitted to join despite registration of FIR against him. The order shown to us passed in case of Rayees Ahmed Ganai v. State and Ors. in SWP No. 885 of 2011, CMP No. 1455/2011 does not disclose the registration of FIR. Moreover, interim orders are not to be treated as precedent especially when such orders are found to be suffering from legal infirmity. Therefore, we have no hesitation in rejecting the argument of learned counsel for the writ petitioner-respondent. 9. As a sequel to the above discussion, the appeal is allowed and the order passed by the learned Single Judge dated 20.08.2011 is set aside. Therefore, we have no hesitation in rejecting the argument of learned counsel for the writ petitioner-respondent. 9. As a sequel to the above discussion, the appeal is allowed and the order passed by the learned Single Judge dated 20.08.2011 is set aside. However, we make it clear that any observation made in this order shall not be considered as an expression of opinion on the merits of the controversy and the learned Single Judge shall proceed to decide the issue without being influenced by the order passed by us. 10. The appeal and CMP No. 75/2012 stands disposed of. 11. No costs.