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2019 DIGILAW 321 (JK)

Abdul Ahad Palla v. State of J&K

2019-07-02

TASHI RABSTAN

body2019
JUDGMENT : 1. Petitioner seeks quashment of Order No.4351 of 2018 dated 29.08.2018, passed by Director General of Police, J&K (respondent No. 2 herein), whereby appointment of petitioner as Constable in J&K Executive Police has been cancelled ab initio, thereby rejecting claim of petitioner being barred by time. 2. The facts-in-brief leading to filing of instant writ petition are that respondent No.2 vide Advertisement Notification No.Pers-A-21/2010/4804-903 dated 07.04.2010 invited applications for selection/ appointment to the posts of Constables in J&K Executive Police. In addition to the criteria fixed in the Notification, additional six marks were earmarked for the candidates having prescribed additional qualifications including 02 marks for the candidates possessing degree/diploma in ITI from any university. However, during course of selection, the additional 02 marks reserved for possessing degree/diploma in ITI, were denied to various candidates, which led to filing of various writ petitions. The said writ petitions came to be disposed of by a common judgment dated 06.12.2012, passed in SWP No.1635/2010, titled Mohammad Maqbool Wani vs. State & others, directing official respondents therein to consider the diploma certificates of petitioners therein and award them two marks and, thereafter, consider their cases for selection/ appointment to the posts of Constables by passing appropriate orders thereon. Appeal filed against the said order of learned Single Judge did not succeed and was ultimately dismissed. The Special Leave Petition filed by respondents also met with the same fate and came to be dismissed in limine. 2.1. Petitioner herein along with other candidates, who were similarly situated to that of petitioners in SWP No.1635/2010 and other connected matters too, approached this Court by filing SWP No.2865/2015, titled as Shabir Ahmed Baba & others vs. State of J&K & others, which came to be disposed of on hearing motion itself by directing the official respondents to consider the claim of petitioners therein having regard to judgment delivered in SWP No.1635/2010 (supra), provided the same was applicable to their case and of course in accordance with rules governing the field. 2.2. In compliance to the directions passed by this Court in SWP No.2865/2015, titled Shabir Ahmed Baba & others vs State of J&K & others, respondents considered the claim of petitioners therein along with other similarly situated candidates. 2.2. In compliance to the directions passed by this Court in SWP No.2865/2015, titled Shabir Ahmed Baba & others vs State of J&K & others, respondents considered the claim of petitioners therein along with other similarly situated candidates. From amongst 18 such candidates, 14 candidates, including petitioner herein, on being allotted two additional marks in their respective categories and districts, were found coming under the merit zone within cut-off points and age limit, thus, were selected as Constables in J&K Executive Police with immediate effect vide PHQ Order No.2393 of 2017 dated 17.07.2017 issued by respondent No. 2. And in pursuance thereof, vide communication dated 05.09.2017, petitioner was adjusted in District Leh. Formal appointment order bearing No.372 of 2017 dated 22.11.2017, was issued by Senior Superintendent of Police, District Leh, in favour of petitioner as Constable in J&K Police. By Movement Order dated 11.07.2018 issued by Senior Superintendent of Police, District Leh, petitioner was directed to undergo Basic Recruit Training Course at STC Sheeri, Baramulla, with effect from 16.07.2018. It is stated that it was during this period when petitioner was undergoing Basic Recruit Training Course (BRTC) that his appointment came to be cancelled ab initio vide Order No. 4351 of 2018 dated 29.08.2018, impugned herein, issued by respondent No.2. Aggrieved, petitioner is challenging the same in writ petition on hand. 3. When this matter was listed on 28.05.2019, the writ petition was admitted to hearing and with the consensus of learned counsel appearing for both the parties, the matter was finally heard at length and reserved for pronouncement of judgment. 4. The lone ground taken by respondents in opposition to the case set up by petitioner is that only those persons who had approached this Court by filing various writ petitions during 2010 to 2013 were to be appointed as Constables in J&K Police in terms of Notification No.Pers-A-21/2010/4804-903 dated 07.04.2010. Since petitioner herein had not approached this Court between the year 2010 to 2013, rather he filed writ petition in the year 2015, i.e., at a belated stage, his claim was to be rejected being barred by time. 4.1. Learned counsel for respondents has argued that since petitioner was not a party to writ petitions filed during the year 2010 to 2013, his claim is hit by delay and laches. 4.1. Learned counsel for respondents has argued that since petitioner was not a party to writ petitions filed during the year 2010 to 2013, his claim is hit by delay and laches. He has also argued that appointing petitioner at this belated stage, would open a floodgate producing more claims by similarly situated claimants, imploring akin treatment and as a corollary respondent department would land in an administrative predicament inasmuch as it would not be possible for the department to accommodate such huge number of candidates in absence of clear vacancies of constables. 5. In the present case, petitioner has been selected as Constable in J&K Executive Police vide Order No.2393 of 2017 dated 17.07.2017 issued by Director General of Police, J&K, after observing that on being allotted two additional marks, petitioner was found falling under the merit zone. By this, respondents have themselves admitted that at the time of selection, they had not allocated two additional marks to petitioner for possessing additional qualification of degree/diploma in ITI as per the criteria fixed in terms of Advertisement Notification No.Pers-A-21/2010/4804-903 dated 07.04.2010. Had respondents allocated two additional marks to petitioner at the time of making selection for the post of Constable in J&K Executive Police, he would have fallen under the merit zone at the relevant time itself. Since respondents did not make fair selection, by not allocating two additional marks to petitioner in terms of the criteria fixed, he cannot be penalized for the same on the ground that his claim is barred by time. Otherwise also, petitioner came to be considered for selection by the respondents after this Court, in SWP No.2865/2015, directed them to consider his claim in terms of rules governing the field and having regard to judgment delivered in SWP No. 1635/2010 (supra). In case respondents were aggrieved of order dated 21.01.2016 passed in SWP No.2865/2015, they ought to have approached this Court with an appeal. Instead of filing the appeal, respondents, while implementing the direction of this Court, selected petitioner as Constable in J&K Executive Police, against a clear vacancy vide Order No.2393 of 2017 dated 17.07.2017. Not only this, respondents also issued appointment order in his favour on 22.11.2017 and, thereafter, sent him for Basic Recruit Training Course. Instead of filing the appeal, respondents, while implementing the direction of this Court, selected petitioner as Constable in J&K Executive Police, against a clear vacancy vide Order No.2393 of 2017 dated 17.07.2017. Not only this, respondents also issued appointment order in his favour on 22.11.2017 and, thereafter, sent him for Basic Recruit Training Course. Since respondents did not challenge the order passed in SWP No. 2865/2015, they cannot be expected to cancel the appointment of petitioner once he has been selected and appointment order too issued in his favour. Since respondents themselves had opted to implement the order of the Writ Court by issuing order dated 17.07.2017, they cannot cancel the appointment order of petitioner after a period of more than one year, that too when the order of the Writ Court has attained finality. 6. Once respondents, after having considered the claim of petitioner and on being found him eligible, issued appointment order in his favour, have acquiesced to the right of the petitioner, they later on cannot take the shield of delay and laches in filing the writ petition by petitioner to cover up their incompetency and inaction on time. It is settled principle of Law of Limitation that in a case where one party acquiesces or admits the right of other party, then it dilutes the rigour of Law of Limitation and fresh limitation period starts from the date of such acquiescence, that too when the proceedings were of extraordinary and equitable nature. Therefore, the argument of delay and laches as projected by the respondents is of no significance. 7. Further, petitioner was selected and appointed against a clear post on substantive basis, as such, his appointment cannot be cancelled without affording him an opportunity of hearing and holding proper inquiry in terms of Section 126(2) of the Constitution of Jammu & Kashmir as also in terms of Article 311(2) of the Constitution of India as well as provisions of J&K Civil Service Regulations, 1956, which provides that no person, who is a member of a civil service of a State or holds a civil post, shall be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. 8. 8. It be also seen that no employee governing the J&K Police Manual can be departmentally punished otherwise than as prescribed in the Police Regulations. In terms of Regulation 359 of Police Manual, before imposing any punishment, the competent authority has to give a notice to the delinquent officer and he is to be heard. Under this regulation, before imposing a major punishment which includes removal from service, the authorities have to hold a regular inquiry into the conduct of the delinquent official and to give him an opportunity to meet the charges leveled against him. In the present case, the impugned order on the face of it, is not in accordance with the mandate of Regulation 359 of Police Manual. Non-adherence to the rules while cancelling the appointment of petitioner is violation of principles of natural justice. 9. A Division Bench of this Court in Khair Din vs State of J&K, 1994 SLJ 463, has held that the order of discharge/ removal/dismissal from service without holding any inquiry is bad in law. Same view has been taken by this Court in Kali Dass vs State, 2013 (3) JKJ 240 [HC]. 10. In view of the law laid down in the aforementioned cases and for the reasons given hereinabove, it can be said that the removal of petitioner from service has been ordered without holding any regular enquiry. Further, no opportunity of being heard has been provided to him before taking punitive action against him. 11. In the present case since petitioner had already joined his services, the cancellation of his appointment has adversely affected his legal rights. Before cancellation of his appointment, an opportunity of hearing was to be given to petitioner in consonance with principles of natural justice to have his say. It is trite position of law that in a case where the prerequisite minimum qualification for appointment is fulfilled and a candidate is appointed to the post, the action for cancellation of appointment requires that a fair procedure is followed to consider all the relevant material and give reasons for the same. 12. It is trite position of law that in a case where the prerequisite minimum qualification for appointment is fulfilled and a candidate is appointed to the post, the action for cancellation of appointment requires that a fair procedure is followed to consider all the relevant material and give reasons for the same. 12. In case of Basudev Tiwari vs Sido Kanhu University & Others, SCC (1998) 8 SCC 194 , the Supreme Court has held that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorized manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an inquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. The Supreme Court has made it clear that to arrive at such a finding, inquiry will have to be held and in holding such an inquiry, the person, whose appointment is under inquiry, will have to be issued a notice and in case notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, if not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable. 12.1. While applying the ratio of judgement in Basudev Tiwari’s case (supra), the respondents were required to give notice to petitioner and afford him opportunity of being heard. However, same is missing as respondents have not followed all what has been held by the Supreme Court in Basudev Tiwar’s case (supra). In that view of the matter, writ petition deserves to be allowed. 13. This Court vide order dated 19.09.2018 stayed the operation of impugned order dated 29.08.2018 to the extent it related to the petitioner. However, same is missing as respondents have not followed all what has been held by the Supreme Court in Basudev Tiwar’s case (supra). In that view of the matter, writ petition deserves to be allowed. 13. This Court vide order dated 19.09.2018 stayed the operation of impugned order dated 29.08.2018 to the extent it related to the petitioner. Further, this Court vide order dated 17.10.2018 directed the respondents to ensure implementation of order dated 19.09.2018 thereby allowing the petitioner to continue in service. In such circumstances, petitioner has been continuing in service since 22.11.2017 when the order appointing him as a Constable was issued in his favour. 14. In view of foregoing discussion, writ petition is allowed and impugned Order No. 4351 of 2018 dated 29.08.2018, issued by respondent No.2, so far as it pertains to petitioner, is hereby quashed. Respondents are directed to allow petitioner to undergo basic training course, if the same has not been completed. It is further made clear that this order is passed in the facts and circumstances of this case and shall not be applicable to other cases pertaining to said select list. Connected interim application, if any, shall stand disposed of. CPSW No.40/2019 15. In view of allowing of writ petition, this contempt petition does not survive and is, accordingly, closed. Rule, if any, issued shall stand discharged.