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J&K High Court · body

2018 DIGILAW 280 (JK)

Syed Rouf Ahmad v. State

2018-05-09

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : Petitioner, a competing candidate for the selection of Constable in IRP 13th Bn, has been selected by the Police Recruitment Board and accorded approval vide Order No. 1935 of 2016 dated 25.06.2016 and adjusted in IRP 13th Bn vide APHQ J&K, Order No. 448 of 2016 dated 09.07.2016 on reporting the commandant IRP 13th Bn for issuance of formal orders in tune with the approval granted by the PHQ and APHQ was denied the appointment on the ground that he is deficient in height standard by 25 cms. 2. Needless to mention that the process of selection was initiated by the Police Recruitment Board and on completion of the process the police recruitment board had recommended the candidates for appointment. Denial of the benefit of appointment formed a ground for the petitioner to approach this court for seeking justice in SWP no. 2096/2016 and this court in terms of order dated 27.12.2016, while noticing the relevant facts with reference to claim made disposed of the writ petition with the direction to the competent authority to decide the claim of the petitioner in terms of circular dated 17.10.2016 issued by the DGP within a period of four weeks from the date of receipt of certified copy of the order. 3. On receipt of the order of the court, the respondents rejected the claim of the petitioner merely on the ground that the Circular which was issued in October, 2016 in respect of Transparent Recruitment Polilcy has no retrospective effect so as to make it applicable to recruitments carried out earlier. 4. Mr. J. A. Kawoosa, learned counsel for the petitioner, has invited the attention of this Court to the Circular issued by the DGP in terms of Order No. Pers-Recpt/A-117-2015/60164-84 dated 17.10.2016 only to demonstrate that in terms of the decision of the DGP the competent authorities were asked not to recheck the physical standards which was already conducted by the Police Recruitment Board with further direction to issue the appointment orders by taking formal approval as final. 5. The impugned order rejecting the claim of the petitioner by the DGP is questioned in the instant petition on variety of grounds with particular reference to the decision being arbitrary and unfair exercise of powers. Mr. 5. The impugned order rejecting the claim of the petitioner by the DGP is questioned in the instant petition on variety of grounds with particular reference to the decision being arbitrary and unfair exercise of powers. Mr. Kawoosa, further submits that the petitioner and all those candidates who competed in the process of selection against 3622 posts of constable in the J&K Police Executive (Armed) are similarly situated with the petitioner and in the case of candidates selected, the DGP has, in terms of the circular dated 17.10.2016, asked the competent authorities to take the physical tests conducted by the Police Recruitment Board as final and not to recheck the physical standards tests with further direction to issue appointment orders on the formal approval of the PHQ. But in the instant case the decision is based on an unwarranted approach thereby violating the fundamental right of the petitioner guaranteed under Article 14 and 16 of the Constitution of India. There is no denial to the fact that petitioner has competed in the process of selection against the post of Constable which process is initiated and taken to logical conclusion by the Police Recruitment Board. The process of selection included the physical standard test etc. 6. Admittedly the recruitment of the constables is divided in two parts, one is for the Recruitment board which includes allowing the competing candidates to show their performance which would find that suitable for the selection including the physical standard test and physical measurement; second is for the appointing authority to make the appointment of those selected candidates in tune with the Rules which has reference to scrutinizing their qualification and other credentials. Once the respondent/ Commandant on receipt of the approval from the PHQ joins the issue with reference to questioning the physical standard made by the Polilce Recruitment Board, the recommendation so made loses significance. The authority of the Police Recruitment Board is made doubtful. Respondent, Director General of Police, had rightly, in terms of Circular dated 17.10.2016, defined the role of the Police Recruitment Board and that of the appointing authority. But this decision notified in the shape of Circular is only adopted on pick and choose basis. After all the decision of the authorities is required to be fair and honest. Respondent, Director General of Police, had rightly, in terms of Circular dated 17.10.2016, defined the role of the Police Recruitment Board and that of the appointing authority. But this decision notified in the shape of Circular is only adopted on pick and choose basis. After all the decision of the authorities is required to be fair and honest. The decision taken in the case of petitioner by not giving him the benefit as asked by this court in terms of the orders passed in earlier writ petition smacks not only the arbitrariness but unfair approach too. 7. The contention raised by Mr. B.A. Dar, learned Sr. AAG, that the claim has been considered and was found without any merit, has no substance because the very basis of the impugned order is contradictory and in conflict with the decision of the DGP. The Administrative decisions cannot but be inclusive. It cannot draw a line to benefit some and deprive some. The decision, therefore, is declared as being violative of the fundamental rights of the petitioner guaranteed under Article 14 and 16 of the Constitution. 8. Mr. Dar, learned Sr. AAG, had further tried to draw a difference between the Recruitment Board and that of the Commandant which he could not, though, convincingly plead. 9. The Commandant cannot reinitiate and reassess the suitability and merit of the candidate. It is the sole domain of the Recruitment Board whose recommendation is admittedly accepted by the DGP while according formal approval for the appointment of the petitioner. 10. The consideration made in terms of the impugned order is not only arbitrary, unfair and uncalled for, but is also found in violation of the directions passed by this Court in SWP no. 2096/2016 vide order dated 27.12.2016, whereby this Court while noticing the facts of the case had directed respondents to decide the claim of the petitioner in terms of the Circular dated 17.10.2016. Respondents have decided the claim of the petitioner against the Circular, thereby violating with impunity the directions of this court. The order dated 27.12.2016 has earned finality as there is no challenge to the said order, therefore, is required to be implemented in letter and spirit. Respondents have decided the claim of the petitioner against the Circular, thereby violating with impunity the directions of this court. The order dated 27.12.2016 has earned finality as there is no challenge to the said order, therefore, is required to be implemented in letter and spirit. Since the order impugned is found to be in violation of the order of this court dated 27.12.2016, therefore, the Court has even the option of proceeding against the respondents for such non-violation also, but the Court refrains itself from doing so. 11. The case in hand is a classic example of non-application of mind, in that, the petitioner, a competing candidate for the post of Constable in the Police Department is selected by the Recruitment Board and recommended for the appointment. The recommendation is accepted by the Competent Authority and the Commandant is asked to issue the appointment order after completing the pre-requisites, who in turn reopens the whole process of selection and puts the petitioner again to the physical test. The question would arise as to whether the Commandant was within his powers to reassess the suitability of the petitioner for the post in question. The answer is certainly NO. The contention of the learned State counsel that the completion of pre-requisites would mean that the Commandant has to put the petitioner to physical test, therefore, the action is not bad in law, is noted to be rejected only, for, that would amount to undone, not only the process of selection, thereby rendering the Recruitment Board as a toothless tiger, but would also overshadow the importance of the Approving Authority. The pre-requisites, in the circumstances, would certainly mean, as held in the foregoing paragraphs, to check the academic credentials of the candidate and not the reopening of the selection process which includes the physical examination. The action of the Commandant, as such, is unknown to the procedure and if it is allowed to be practiced it would, certainly, open a Pandora box and every selection, in that way, would be made a futile and directionless exercise which cannot be allowed. The action, therefore, cannot withstand the test of law. 12. The action of the Commandant, as such, is unknown to the procedure and if it is allowed to be practiced it would, certainly, open a Pandora box and every selection, in that way, would be made a futile and directionless exercise which cannot be allowed. The action, therefore, cannot withstand the test of law. 12. In the above background, this writ petition is allowed and the Order No. 3987 of 2017 dated 16.11.2017, impugned in the instant petition, is quashed with a further direction to the respondent Commandant to issue formal appointment order in favour of the petitioner in tune with the approval granted by the PHQ. The petitioner is held entitled to all the consequential benefits notionally. 13. Disposed of along with connected MP.