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2020 DIGILAW 726 (JK)

State of J&K v. Syed Rouf Ahmad

2020-12-31

RAJNESH OSWAL, SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—This appeal by the erstwhile State of Jammu and Kashmir (now Union Territory of Jammu & Kashmir), in terms of Clause 12 of the Letters Patent, is directed against the judgment dated 9th of May, 2018, passed by learned Single Judge of this Court (the Writ Court) in SWP No.2508/2017 titled ‘Syed Rouf Ahmad vs. State of J&K & others’ whereby the writ petition filed by the respondent (the writ petitioner) has been has allowed, order impugned in the writ petition dated 16th of November, 2017 quashed and a direction has been issued to the appellant No.4 to issue the formal order of appointment in favour of the writ petitioner. The writ petitioner has also been held entitled to all consequential benefits notionally. The appellants are aggrieved and have sought to challenge the impugned judgment on several grounds. 2. Before we proceed to appreciate the grounds of challenge urged by Mr. B. A. Dar, Sr. AAG, on behalf of the appellants, a brief reference to factual antecedents would be advantageous. 3. The appellants notified the posts of Constables for selection in the year 2007. The writ petitioner claiming to be eligible for appointment submitted his application form to the appellants. The writ petitioner qualified all the requisite tests and physical standards laid down by the Police Recruitment Board and was eventually selected as Constable in IRP 13th Bn. Pursuant to his selection, the writ petitioner reported to appellant No.4 along with all requisite documents as were mentioned in the selection notification. The writ petitioner even filled up the requisite form required for joining on the post. The writ petitioner was, however, not permitted to join by the appellants on the ground that on measurement of physical standards, he was found deficient in height by 25 centimeters (cms). Aggrieved, the writ petitioner filed a representation before the appellant No.2 on 05.06.2007 contending, inter alia, that his height and other physical standards had been measured by the Recruitment Board and, therefore, appellant No.4 was not competent to re-measure the same and deny him appointment on the ground that he was falling short in height by 25 cms. The writ petitioner claims to have filed representation after representation but there was no decision by the appellants on any of his representations. 4. The writ petitioner claims to have filed representation after representation but there was no decision by the appellants on any of his representations. 4. As is pleaded by the writ petitioner in the petition, in the year 2015, another process of selection for the post of Constables was initiated by the appellants. Similar issue cropped up before the appellants. The appellant No.2 after considering the matter came up with Circular No.Pers/Rectt/A-117-2015/60164-84 dated 17.10.2016, wherein it was clarified that since all physical tests were conducted by the officers of the Police Recruitment Board, as such, there was hardly any need to put the candidates for a re-check of their physical standards. The writ petitioner having seen the aforesaid circular, once again made a representation to the appellant No.2 and sought his appointment as Constable in the light of the Circular which clearly stipulated that the appointing authority i.e. Superintendent of Police was not competent to re-verify physical standards and vary the findings of the Recruitment Board. The writ petitioner even sought the intervention of local MLA to expedite the decision on representation. 5. Having failed to persuade the appellants to take a favourable decision on the representation in the light of the circular issued in the year 2016, the writ petitioner filed SWP No.2096/2016 which came to be disposed of by a Bench of this Court on 27th of December, 2016, with a direction to the competent authority to decide the claim in the light of circular issued by Director General of Police on 17th of October, 2016. The appellant No.2, Director General of Police, considered the claim/representation of the writ petitioner in compliance to the direction passed by this court and rejected the same vide its order bearing No.3987 of 2017 dated 16th of November, 2017. The claim of the writ petitioner was rejected, primarily, on the ground that the circular of 2016, relied upon by the writ petitioner, did not have retrospective effect and, therefore, could not be applied to the selection/recruitment carried prior to the issuance thereof. It is this order of the appellant No.2 which was made subject matter of challenge by the writ petitioner in SWP No.2508/2017, which has been allowed by the Writ Court in terms of the judgment impugned. Feeling dissatisfied and aggrieved, the appellants are before us in this appeal. 6. Heard learned counsel for the parties and perused the record. 7. It is this order of the appellant No.2 which was made subject matter of challenge by the writ petitioner in SWP No.2508/2017, which has been allowed by the Writ Court in terms of the judgment impugned. Feeling dissatisfied and aggrieved, the appellants are before us in this appeal. 6. Heard learned counsel for the parties and perused the record. 7. There is no dispute with regard to the fact that the writ petitioner, having been treated as eligible and meeting the required physical standards, was allowed to participate in the selection process. There is also no dispute that in view of his merit obtained in the selection process, the writ petitioner came to be approved for appointment as Constable in IRP 13th Bn. vide PHQ order No.1500 of 2007 dated 27.04.2007. The appellant No.4, who was heading the IRP 13th Bn., was the competent authority to issue the formal order of appointment in favour of the writ petitioner as Constable in the Battalion under him. As is evident, during the fulfillment of pre-appointment formalities, the appellant No.4 re-verified the physical standards of the writ petitioner and found him deficient in height standard by 25 cms. This re-verification was done by a Board constituted by the appellant No.4 in terms of order dated 3rd of May, 2007. On the ground that the writ petitioner did not meet the required physical standards, he was denied appointment. 8. It is also not in dispute that the writ petitioner claiming to be aggrieved did not agitate his grievance with promptitude. All though he claims to have filed representations from time to time and pursued the matter with the appellants for almost eight years yet there is nothing on record that the representations claimed to have been filed by the writ petitioner were ever received by the appellants. It is, thus, more than evident that the writ petitioner agitated his claim to appointment only in the year 2016 when he came across circular dated 17th of October, 2016 issued aftermath the selection process which was initiated in the year 2015 and concluded somewhere in the year 2016. It is, thus, more than evident that the writ petitioner agitated his claim to appointment only in the year 2016 when he came across circular dated 17th of October, 2016 issued aftermath the selection process which was initiated in the year 2015 and concluded somewhere in the year 2016. The whole thrust of the writ petitioner was that the circular, which prohibited the re-verification of physical standards by the appointing authorities and to treat the physical measurements taken by the Recruitment Board as final, was applicable to the writ petitioner as well and, therefore, the re-verification of physical standards by the Board constituted by the appellant No.4 was without any authority of law. 9. The Writ Court accepted the contention of the writ petitioner and held that the consideration accorded to the writ petitioner was not in consonance with the direction passed by this Court on 27th of December, 2016, in SWP No.2096/2016. It was observed by the Writ Court that the direction of the Court was to consider and decide the claim of the writ petitioner in terms of circular dated 17th of October, 2016, whereas the appellant No.2 decided the claim of the writ petitioner contrary to the circular. The Writ Court also found that the Commandant was not competent to set at knot the selection process conducted by the duly constituted Recruitment Board. In the aforesaid background, the writ petition of the writ petitioner came to be allowed. 10. Mr. B. A. Dar, Sr. AAG, has assailed the judgment of the Writ Court on two counts; (1) that the circular was prospective in operation and, therefore, could not have been applied to the selection made in the year 2007; (2) that the direction of the Writ Court in SWP No.2096/2016 was to consider the case of the writ petitioner in terms of circular dated 17th of October, 2016 and, therefore, DGP was well within his rights to decide as to whether or not the case of the writ petitioner was covered by the circular. 11. Mr. Dar has also pressed into service delay and latches on the part of writ petitioner in approaching the Court for redressal of his grievances. He submits that the selection process was concluded in the year 2007 whereas the grievance was brought by the writ petitioner to this Court for the first time in the year 2016 by way of SWP No.2096/2016. He submits that the selection process was concluded in the year 2007 whereas the grievance was brought by the writ petitioner to this Court for the first time in the year 2016 by way of SWP No.2096/2016. 12. Per contra, Mr. Javed Kawoosa, learned senior counsel arguing on behalf of the writ petitioner, submits that the circular relied upon by the Writ Court to grant the relief was clarificatory in nature and, therefore, was applicable to the selection made in the year 2007, in which the writ petitioner had emerged as a successful candidate. He even disputed the competence of the appellant No.4 to take the measurements of physical standards by constituting his own Board and coming to findings contrary to what were recorded by the duly constituted Police Recruitment Board for selection of Constables. 13. We have carefully weighed the rival contentions. From a perusal of the consideration order, impugned in the writ petition, it clearly transpires that the appellant No.2 has not rejected the claim of the writ petitioner on the ground that it is belated and hit by delay and laches. We could not find it even from the objections filed by the appellants before the Writ Court that any such plea of delay and latches was ever taken. In that view of the matter, we are not inclined to entertain this plea of the appellants and would rather prefer to decide this appeal on merits. 14. Before we proceed further, we deem it appropriate to refer to relevant rules contained in Chapter VII of the J&K Police Rules, 1960, framed by the Government in exercise of powers conferred by Section 8 and 12 of the Police Act, Samvat, 1983. Chapter VII of the Police Rules deals with appointment and enrolment of non-gazetted ranks in the Police Establishment. Under rule 172, the power of appointment of various non-gazetted ranks is delegated to different authorities. In so far as Constables are concerned, the power of appointment is delegated to the Superintendent of Police. 15. In terms of sub-rule (2) of Rule 172, all appointments to non-gazetted ranks above that of Constables have been provided to be made by the appointing authority on consideration of recommendations of a selection board to be constituted by the orders of Inspector General. 15. In terms of sub-rule (2) of Rule 172, all appointments to non-gazetted ranks above that of Constables have been provided to be made by the appointing authority on consideration of recommendations of a selection board to be constituted by the orders of Inspector General. The word “Inspector General” used in the Act and the Rules has been substituted by the word “Director General of Police”. 16. From a careful reading of Chapter VII of the Police Rules, one thing that vividly comes to fore is that there is no specific provision made in so far as recruitment to the post of Constables is concerned. However, as was contended before us without much dispute, that all recruitments in the Police Department in the non-gazetted cadre except Inspectors, which is now a promotion post, are made through Police Recruitment Board constituted by the Government from time to time. The duty to conduct the selection at all its stages is enjoined upon such Board. The District Superintendent of Police, in the case of Constables, only issues the formal order of appointment after verifying their credentials and testimonials. 17. The provision with regard to recruitment age and physical standards of the Constables can be found in Rule 182 of the Police Rules which, inter alia, provides that physical standards and age of the candidates for enrolment as Constable shall be the same as for other ranks as indicated in Rule 176. It may be noted that Rule 176 lays down the following standards for selection to the post of Inspectors, Sub Inspectors or Assistant Sub Inspections to be appointed by direct recruitment: (i) Height =5’ 6” (ii) Chest, Unexpanded 32” Expanded 33½” By virtue of Rule 182, the same physical standards are required to be met by the male Constables also. There are, however, different physical standards prescribed for female candidates to be appointed as Constables. 18. Rule 183, which was pressed into service by Mr. B. A. Dar, Sr. AAG to buttress his argument that Superintendent of Police is competent to re-verify physical standards, deserves to be reproduced here-under: “183. Recruits-medical examination Every recruit shall, before enrolment, be medically examined and certified physically fit for service by the Civil Surgeon or the Police Medical Officer. A certificate in the prescribed form (Try. Form No.49) signed by the Civil Surgeon or Police Medical Officer personally, is an essential qualification for enrolment. Recruits-medical examination Every recruit shall, before enrolment, be medically examined and certified physically fit for service by the Civil Surgeon or the Police Medical Officer. A certificate in the prescribed form (Try. Form No.49) signed by the Civil Surgeon or Police Medical Officer personally, is an essential qualification for enrolment. The examination by the Civil Surgeon or Police Medical Officer will be conducted in accordance with the instructions issued by the Medical Department and will test the eyesight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit, and is age. The candidate must strip for examination underwear being allowed except when the examination is being completed and any candidate who refuses to do so must be rejected. The conditions of police service make it necessary that the medical examination of candidates should be strict. Candidates shall be rejected for any disease or defect which is likely to render them unfit for the full duties of a police officer. (2) Superintendents of Police are themselves responsible for rejecting candidates whose general standard of physique and intelligence is unsatisfactory; only those candidates should be sent for medical examination whom the Superintendent has accepted as being up to the required standards in these aspects. 19. Rule 183, as is evident from its title, deals with medical examination of the recruits and the ‘recruits’ would mean the candidates selected for different non-gazetted ranks in the police. The medical examination, as is evident from the scheme of the Rules, is amongst the formalities to be completed before a formal order of appointment by the competent authority is issued and the recruit is put on probation. He/she may have to undergo training wherever required or prescribed. Sub-rule (2) of Rule 183 does provide that Superintendent of Police shall be responsible for rejecting candidates whose “general standard of physique and intelligence” is found unsatisfactory. It further provides that only those candidates who meet the required standards of physique and intelligence alone shall be sent for medical examination. The candidates who are found fit in medical examination shall be enrolled by a formal order of appointment to be issued by the competent authority. 20. Placing strong reliance on sub-rule (2) of Rule 183, Mr. Dar, Sr. The candidates who are found fit in medical examination shall be enrolled by a formal order of appointment to be issued by the competent authority. 20. Placing strong reliance on sub-rule (2) of Rule 183, Mr. Dar, Sr. AAG, submits that the appointing authority i.e. Commandant in the instant case was competent to re-verify the physical standard and take measurements of the selected candidates and it is in exercise of this power conferred upon him, the Commandant constituted a Board for re-verification of physical standards and found the writ petitioner deficient in prescribed height by 25 cms. 21. The argument of Mr. Dar though appears to be attractive on the first blush but on close scrutiny is found to be a mere bubble of water. Mr. Dar has not been able to appreciate the distinction between the term “physical standards” fixed by the Government for non-gazetted ranks of police including the Constables under Rule 176 and 182 and the term “general standard of physique and intelligence” as is indicated in sub-rule (2) of Rule 183. 22. On a plain reading, the term “physical standards”, when the term is understood in the context, would mean the standards of height and chest. The term “physique” as defined by Merriam Webster means “the firm or structure of a person’s body: bodily make up”. In Oxford Learners dictionary, the term “physique” is defined as size and shape of a person’s body. The definition of “physique” can be found in other dictionaries as well as the meaning attributed to the term is almost identical and in any case different from the meaning given to the term “physical standards”. It is thus evident that what the Superintendent of Police has been empowered to verify is not the “physical standards” but only “general standard of physique and intelligence”. The word “physique” has been used in conjunction with word “intelligence” and that clearly distinguishes the term from “physical standards”. This, unholy mixed up by the learned Senior AAG has led to the raising a contention which on scrutiny is found to be fundamentally flawed. 23. From the aforesaid discussion, it is thus axiomatic that once physical standards have been measured by the Police Recruitment Board constituted by the Government, the Superintendent of Police/Commandant has no authority to sit in appeal and take the measurements of physical standards yet again. 23. From the aforesaid discussion, it is thus axiomatic that once physical standards have been measured by the Police Recruitment Board constituted by the Government, the Superintendent of Police/Commandant has no authority to sit in appeal and take the measurements of physical standards yet again. The question as to whether the circular dated 17th of October, 2016 issued by the DGP is prospective or retrospective in operation pales into insignificance. 24. For all these reasons, we do not find any substance in the appeal of the appellants except that the writ petitioner would be entitled to appointment as Constable with effect from the year 2016 when he filed SWP No.2096/2016 and agitated his grievance for the first time before this Court. Accordingly, the judgment of the Writ Court is modified to the extent that the writ petitioner would be entitled to appointment as Constable with effect from the date he filed SWP No.2096/2016. The appellant No.4 shall issue the formal order of appointment in favour of the writ petitioner within a period of four weeks from the date certified copy of this order is served upon him. This, however, shall be subject to verification of credentials and testimonials of the writ petitioner. The writ petitioner would be entitled to all service benefits notionally with effect from the date of his enrolment/appointment till passing of the formal order of appointment and substantively from the actual date of order of appointment.