JUDGMENT : Sanjeev Kumar, J. 1. This petition under Article 226 of the Constitution of India is directed against judgment dated 08.03.2021 passed by the Central Administrative Tribunal, Jammu Bench, Jammu [“the Tribunal”] in T.A No.61/767/2020 titled ‘Gourav Gupta vs. State and others’ whereby the Tribunal has dismissed the petition of the petitioner registered as T.A. 2. Briefly stated the facts which emerge from pleading of the parties are that the petitioner was considered along with other outstanding sportspersons under SRO 376/2004 for appointment in Government service. On the basis of recommendations made by the Committee constituted under SRO 349/1998 read with SRO 376/2004, the petitioner was appointed as Demonstrator in the pay scale of Rs.9300-34,800 with Grade Pay of Rs.4200 in the Department of Technical Education vide Government Order No.1110-GAD of 2014 dated 24.10.2014. The petitioner submitted his joining report before respondent No.3 on 10.09.2014 and the same was accepted. On scrutiny of the qualification documents of the petitioner, the Department of Technical Education found that the petitioner did not hold the eligibility qualification for the post of Demonstrator against which he stood appointed by the Government. Consequently, respondent No.4 vide his communication dated 27.11.2014 intimated this fact to the General Administration Department [“GAD”]. 3. When the matter was under examination of the GAD, the petitioner filed an application on 30.10.2014 requesting therein that he may be appointed against the post of Sub-Inspector in the Excise and Taxation Department in the pay scale of Rs.5200-20,200 with grade pay of Rs.2400 with an undertaking that he shall not make claim for higher or equivalent grade of Demonstrator against which he was appointed vide Government order dated 24.10.2014. The application was considered by the GAD and after taking up the matter with the Finance Department for locating a direct recruitment post of Sub-Inspector in the Excise and Taxation Department, the petitioner was appointed to the post of Sub-Inspector in the pay scale of Rs.5200-20,200 with grade pay of Rs.2400 in Divisional Cadre, Jammu vide Government Order dated 29.01.2015. This order was accepted by the petitioner without any protest or demur. It was only after the petitioner had worked for more than 6 months, it occurred to him to approach this Court to lay claim for the post of Inspector in the Excise and Taxation Department which is in the pay scale of Rs.9300-34,800/- with Grade Pay of Rs.4200. 4. It was only after the petitioner had worked for more than 6 months, it occurred to him to approach this Court to lay claim for the post of Inspector in the Excise and Taxation Department which is in the pay scale of Rs.9300-34,800/- with Grade Pay of Rs.4200. 4. With the coming into force of the Jammu and Kashmir Reorganization Act, 2019 and the constitution of Central Administrative Tribunal for UT of Jammu and Kashmir, the writ petition filed by the petitioner came to be transferred to the Tribunal . On receipt of the said writ petition, the Tribunal registered it as T.A No.61/767/2020 which has been disposed by the Tribunal vide order and judgment impugned in this petition. 5. Heard learned counsel for the parties and perused the material on record. 6. Admittedly, the petitioner is an outstanding sportsperson and, therefore, eligible to be considered for appointment in Government service under the Jammu and Kashmir (Appointment of Outstanding Sportspersons), Rules 1998 [“the Rules of 1998”]. 7. Rule 3 of the Rules of 1998 clearly indicates that the outstanding sportspersons are entitled to be considered for appointment against any vacancy in the non-gazetted cadre subject to the procedure laid down in the said Rule. Sub-Rule (2) of Rule 3 of the Rules of 1998 provides for constitution of a Committee headed by the Chief Secretary to make recommendations for appointment of outstanding sportspersons. The appointment of outstanding sportspersons against non-gazetted posts is, of course, at the sole discretion of the Government. As is provided in Rule 3(i) and 3(ii), a person possessing qualification of 10+2 may be considered for appointment against a vacancy in the non-gazetted cadre; a person possessing qualification less than 10+2 may be considered for appointment against class-IV post; and a person possessing qualification of Graduation or above, may be considered for appointment against a higher post in the non-gazetted cadre of service. The appointment to be made under Rule 3 of the Rules of 1998 is subject to the candidates i.e the outstanding sportspersons fulfilling other eligibility conditions under the relevant Recruitment Rules/Regulations governing the said services. They are also supposed to produce certificate of being outstanding sportspersons to be issued by the Secretary, J&K Sports Council. The appointment to be made under Rule 3 of the Rules of 1998 is subject to the candidates i.e the outstanding sportspersons fulfilling other eligibility conditions under the relevant Recruitment Rules/Regulations governing the said services. They are also supposed to produce certificate of being outstanding sportspersons to be issued by the Secretary, J&K Sports Council. A noteworthy feature of Rule 3 of the Rules of 1998 is that the appointment of an outstanding sportspersons shall be made only against the direct recruitment vacancies (non-gazetted) subject to availability of post with a further stipulation that maximum number of appointments of outstanding sportspersons against direct recruitment quota in all the services of the State during a calendar year shall not exceed 25 in any case. 8. With a view to give effect to the provisions of the Rules of 1998, the Government of Jammu and Kashmir constituted a Committee headed by the Chief Secretary for making appointments of outstanding sportspersons against the non-gazetted posts in the State services for the quota of calendar year 2011. The Selection Committee, after considering the list of outstanding sportspersons numbering 52 for the quota of calendar year 2011 furnished by the J&K Sports Council, recommended 25 sportspersons for appointment against suitable posts in the Government Departments. The petitioner was amongst the 25 persons recommended for appointment and the recommendation in respect of appointment of the petitioner was for the post of Demonstrator in the Polytechnic/ITI in the Technical Education Department. 9. Indisputably, the post of Demonstrator carried the pay scale of Rs.9300-34,800 with grade pay of Rs.4200 which is equivalent to the pay scale of Sub-Inspector in the Police Department. Other than the petitioner, one more candidate, namely Ashish Sharma was appointed in the same pay scale. He was recommended to be appointed as S.I in the Police Department. The recommendations were accepted by the Government and vide Government order dated 24.10.2014, all the recommended candidates including the petitioner came to be appointed against different posts. 10. As taken note of hereinabove, the petitioner having accepted the appointment as Demonstrator submitted his joining report in the Technical Education Department. Not only did the petitioner join in the Department of Technical Education, but he worked there as Demonstrator for almost one year. 10. As taken note of hereinabove, the petitioner having accepted the appointment as Demonstrator submitted his joining report in the Technical Education Department. Not only did the petitioner join in the Department of Technical Education, but he worked there as Demonstrator for almost one year. It was later on detected by the Technical Education Department that the petitioner was not possessing the requisite qualification for holding the post of Demonstrator, either in the Polytechnic or ITI of the Technical Education Department. The matter was brought to the notice of the Director, Technical Education who took up the matter with the GAD and sent back the case of the petitioner to the GAD. We have already adverted to the communication of the Director, Technical Education addressed to the GAD. 11. Ordinarily, and, as was normally expected of the GAD, the petitioner who could not continue with his appointment as Demonstrator should have been accommodated by the GAD by offering him some other equivalent post in any other Department of the Government. This did not happen immediately. The appellant, as is gatherable, did not want to wait for the GAD to locate some equivalent post in some other Department of the Government and offer it to the petitioner. He decided to accept the post of S.I in the Excise and Taxation Department which post admittedly carried lesser pay scale. The GAD was apprehensive that the petitioner, after accepting the appointment as S.I in the Excise and Taxation Department will rake up the issue of seeking a higher post carrying the pay scale of Rs.9300-34800 with grade pay of Rs.4200, the pay scale attached to the post of Demonstrator against which the petitioner stood appointed without verifying his eligibility qualifications. 12. The GAD, as it appears, asked the petitioner to give an undertaking in writing that if he is appointed against the post of S.I. in the Excise and Taxation Department, he would not claim higher or equivalent grade of Demonstrator against which he was appointed vide Government order dated 24.10.2014. The petitioner readily agreed and submitted an application on 30.12.2014. Accordingly, the matter was taken up by the GAD with the Department of Finance for identifying a direct recruitment post of S.I in the Excise and Taxation Department so that the same could be offered to the petitioner. The petitioner readily agreed and submitted an application on 30.12.2014. Accordingly, the matter was taken up by the GAD with the Department of Finance for identifying a direct recruitment post of S.I in the Excise and Taxation Department so that the same could be offered to the petitioner. On request of the GAD, one post of S.I in the direct recruitment quota was identified by the Finance Department and intimated to the GAD. This paved the way for issuing appointment order of the petitioner as S.I. in the Excise and Taxation Department. The order of appointment in favour of the petitioner was issued vide Government order dated 29.01.2015. This order was issued in partial modification of Government Order dated 24.10.2014(supra) so far as it related to appointment of the petitioner appearing at S.No. 23 of the said order. The order of appointment issued on 29.01.2015 was accepted by the petitioner and he joined his services in the Department of Finance. It is only on 9.07.2015 almost after six months, the petitioner, as was apprehended by the GAD, raked up the issue of his entitlement to appointment against the post of Inspector in the Excise and Taxation Department carrying the pay scale of Rs.9300-34800 with grade pay of Rs.4200. The petitioner prayed for his appointment against the post of Inspector in the Excise and Department only with a further relief of consequential benefits, such as, seniority etc. The petitioner also sought a direction to the respondents not to fill up the post of Excise Inspector notified vide Advertisement Notice dated 01.09.2015. 13. With regard to the undertaking submitted by him and giving his consent to accept the post of S.I. in the Excise and Taxation Department, it was pleaded by the petitioner that the GAD being in a dominant position, forced the petitioner to submit an undertaking and, the circumstances which he was placed in, had left him with no other option, but to give such undertaking. The petitioner in paragraph (10) of the petition, however, submitted that he came to know that the post of S.I. on which he had joined pursuant to an order of his appointment carried the pay scale of Rs.5200-20200 with grade pay of Rs.2400, whereas, the earlier post against which he was erroneously appointed i.e. the post of Demonstrator carried the pay scale of Rs.93000-34800 with grade pay of Rs.4200. The petitioner further submitted that pursuant to the information supplied by the respondents in their response to his RTI application, he came to know that various persons under the category of outstanding sportspersons were appointed by the respondents in the grade of Rs.9300-34800 before and after the petitioner. 14. The writ petition was contested by the respondents, who, in their reply affidavit, refuted the claim of the petitioner for a higher pay scale on the ground that it was in pursuance of the request made by the petitioner and an undertaking submitted by him not to raise any dispute in future, the petitioner was appointed as S.I in the Excise and Taxation Department in the year 2015. It is submitted that it is only after the request was received from the petitioner, the post of S.I. was identified in the Finance Department and appointment was offered to the petitioner. 15. Regarding the claim of the petitioner for higher pay scale, it is submitted that other than one Ashish Sharma, no other outstanding sportsperson against the quota of 2011 was appointed against the post carrying the higher pay scale. 16. The matter was considered by the Tribunal. The Tribunal, however, did not agree with the contentions of learned counsel for the petitioner and dismissed the petition on the ground that the entitlement of the petitioner possessing qualification of Graduation and above was only of consideration against a non-gazetted post and not against a non-gazetted post carrying a particular pay scale. 17. Having given our anxious consideration to the rival contentions and the material on record, we are of the considered opinion that the petitioner, in view of his conduct, has lost his right to be appointed against any other post in the Government, particularly a post carrying pay scale of Rs.9300-34800 with grade pay of Rs.4200. We, however, do not subscribe to the reasoning given by the Tribunal in support of its judgment. 18. Rules of 1998 have been framed under proviso to Section 124 of the Constitution of Jammu and Kashmir by the Governor to provide special dispensation and confer benefit of appointment in Government service on the outstanding sportspersons. These Rules are aimed at encouraging the students to take up and excel in the sports so that the Country and the State is represented at National and International level. These Rules are aimed at encouraging the students to take up and excel in the sports so that the Country and the State is represented at National and International level. With a view to conferring this benefit, the Government earmarks certain non-gazetted posts in different services of the State which shall not exceed 25 in a calendar year. Against these identified posts, the outstanding sportspersons, as are certified as such by the J&K Sports Council, are considered as per their qualifications and proficiency in sports. The Committee headed by Chief Secretary considers all the eligible candidates and makes recommendations for their appointments against different posts. Against the quota of 2011, the Committee received the cases of in as many as 52 eligible candidates from the Jammu and Kashmir Sports Council. Accordingly, on the basis of their merit determined in reference to proficiency in sports, 25 outstanding sportspersons in the order of their merit were recommended for appointment against different posts in the State services. The petitioner with qualification of MCA figuring at S.No. 5 of the list was recommended to be appointed as Demonstrator in the Technical Education Department, whereas another candidate, namely Ashish Sharma with qualification of B.A, standing at S.No.7, was recommended as S.I in the Police Department. The recommendations made by the Committee were accepted and, accordingly, the appointment orders in favour of 25 candidates were issued. The petitioner, who was appointed as Demonstrator joined in the Technical Education Department, but, as explained above, he could not be permitted to perform the duties of Demonstrator because of his ineligibility to hold the said post. This is how the matter came back to the GAD on 27.11.2014. 19. The petitioner would have been well within his right to contend that after his case was returned by the Technical Education Department to the GAD, the GAD should have offered him the appointment carrying the pay scale of Rs.9300-34800 as was the pay scale attached to the post of Demonstrator against which he stood recommended by the Selection Committee. He, however, himself abandoned that right when he moved an application before GAD for his appointment against the post of S.I in the Excise and Taxation Department. He, however, himself abandoned that right when he moved an application before GAD for his appointment against the post of S.I in the Excise and Taxation Department. As was apprehended, the GAD accepted the request of the petitioner for appointment as S.I in the Excise Department subject to the petitioner submitting an undertaking that he will not raise any dispute in future and claim higher pay scale equivalent to the pay scale carried by the post of Demonstrator against which he was earlier appointed. 20. From a reading of application dated 30.12.2014 made by the petitioner, it clearly transpires that the Department of GAD was apprehensive that the petitioner may, after accepting the appointment involve the Government in litigation and claim higher pay scale. It is because of this reason that on the suggestion made by the GAD, the petitoner even undertook not to claim any such right. It is not the case of the petitioner that after the case was returned by the Technical Education Department to GAD, the GAD took inordinate time to offer him fresh appointment which constrained him to accept the appointment against the lower post. We cannot also accept the contention of petitioner that he became aware of the lower pay scale attached to the post of S.I only after he joined the post. 21. Apparently and clearly, the petition filed after six months was an afterthought. We also could not find any material on record placed by the petitioner to demonstrate that, at the time of acceptance of offer of the Government for appointment as S.I or any time immediately thereafter, he raised any objection to such appointment and claimed appointment against the post of S.I. True it is that under Rule 3 of the Rules of 1998, the respondents were not under any statutory obligation to offer to the petitioner a post carrying a particular pay scale. Offering of post for appointment to the outstanding sportsperson is at the sole discretion of the Government and so long as exercise of such discretion is not hit by Articles 14 and 16 of the Constitution of India, the same cannot be made justiciable in the Court of law, particularly under Article 226 of the Constitution of India. Offering of post for appointment to the outstanding sportsperson is at the sole discretion of the Government and so long as exercise of such discretion is not hit by Articles 14 and 16 of the Constitution of India, the same cannot be made justiciable in the Court of law, particularly under Article 226 of the Constitution of India. We are aware that the person similarly situated with him, rather lesser in merit in sports, namely Ashish Sharma was appointed as S.I in higher pay scale However, we cannot brush aside the fact that the petitioner too was treated on a par with him and offered the appointment as Demonstrator which carried the same pay scale as that of S.I in Police Department. 22. It is true that the petitioner could not perform his duties as Demonstrator because of his ineligibility to hold the post. We do appreciate the argument of learned Senior Counsel for the petitioner that it is because of faux pas committed by the Selection Committee, the petitioner was appointed against a wrong post for which he did not have the requisite qualification. Be that as it may, the fact remains that the petitioner should have allowed the GAD to explore the possibility for adjusting him on the equivalent post in some other Department. However, acting impatiently, the petitioner approached the GAD and offered to accept the appointment of S.I in the Excise Department and it is in pursuance of this request made by the petitioner through his letter dated 30.12.2014, a communication was addressed by the GAD to the Finance Department to locate/identify one direct recruitment post of S.I. to accommodate the petitioner. The Finance Department responded and the petitioner was appointed. It is in these circumstances, we are not inclined to accept the contention of the petitioner that he accepted the appointment as S.I in the Excise and Taxation Department under duress and undue influence of the GAD. The facts and circumstances obtaining in the case indicate otherwise. The petitioner having accepted his appointment as S.I without any protest or demur and having joined on the post cannot be permitted to turn around and claim that he was entitled to be appointed as Inspector in the Excise and Taxation Department which carries the higher pay scale, more particularly when Rules do not envisage offering a post carrying a particular scale to an outstanding sportsperson. 23. 23. The appointments of outstanding sportspersons under the Rules of 1998 are at the sole discretion of the Government depending upon several factors viz. qualification/eligibility of a candidate, his proficiency in sports and availability of a suitable non-gazetted post in a particular calendar year. Such discretionary benefit envisaged for outstanding sportsperson, though regulated by statutory Rules, is nonetheless founded in equity and, therefore, capable of being waived or acquiesced in. 24. For the foregoing reasons, we find no merit in this appeal and the same is, accordingly, dismissed. The order and judgment passed by the Tribunal is upheld, though for different reasons. Record be returned to the concerned.