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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Permod Kohli, J.
Gurmukh Singh Dutta - Appellant
Versus
State & Ors. - Respondent
SWP No. 1949/2000
Decided On : 02 December, 2003
Government Order - Appointment as Assistant Sub-Inspector in Police - Circular dated 27-11-1976, SRO 126 of 1994, AIR 1994 SC 1080, AIR 1994 SC 1808 - The court discussed the validity of the government order rejecting the petitioner's claim for appointment as Assistant Sub-Inspector in Police in relaxation of rules. The court considered the recommendations made by the Inspector General of Police, the circular dated 27-11-1976, and the subsequent SRO 126 of 1994. The court also referred to relevant Supreme Court judgments, including AIR 1994 SC 1080 and AIR 1994 SC 1808, which addressed the relaxation of rules for recruitment and the impermissibility of relaxing qualifications for recruitment.
Fact of the Case:
The petitioner's claim for appointment as Assistant Sub-Inspector in Police in relaxation of rules was rejected by the government. The petitioner had sought relaxation based on outstanding performance in the National Cadet Corps (NCC) and recommendations made by the Inspector General of Police and the Governor of the State.
Finding of the Court:
The court found that the petitioner failed to secure the requisite 40% marks in the written test, which was the criteria for selection/appointment. The court also noted that the circular dated 27-11-1976 ceased to exist in view of the issuance of SRO 126 of 1994.
Issues: The issues included the binding nature of the previous judgment, the authority to relax rules, and the consideration of the Governor's appreciation in the impugned order.
Ratio Decidendi: The court held that the power to relax rules for recruitment is impermissible and violative of constitutional provisions. It also emphasized that the existence of valid, rationale, and plausible grounds and circumstances is necessary for the exercise of powers of relaxation of rules.
Final Decision: The petition was dismissed as the court did not find any merit in the petitioner's claim.
2. Brief resume of the facts is taken note of with a view to consider and decide the controversy involved in the petition.
3. Petitioner was a candidate for selection as ASI for which process was initiated by the respondents. After clearing the physical test as held by the Department, the candidates were required to appear in the written examination. The criteria for qualifying the written statement was fixed by the Department wherein a candidate must secure not less than 40% marks in the written test to enable him to be summoned for viva-voce which was to follow the written test.
4. Admittedly petitioner did not qualify the written test by not securing 40% minimum marks prescribed for the same. He was not summoned for viva-voce. In the meanwhile the petitioner appears to have approached Inspector General of Police (IGP), seeking his selection on the basis of his outstanding performance in the National Cadet Corps (NCC). Recommendation was made in his favour to the government for his appointment in relaxation of rules of recruitment as also upper age limit. This recommendation was made by the IGP. Petitioner also relied upon a certificate of merit given by the then Governor of the State who appreciated his proficiency as a cadet of NCC. Based upon aforesaid recommendation and the appreciation given by the then Governor of the State, the petitioner filed two writ petitions, SWP No: 1684/1992 and SWP No: 1385/1994. Both these writ petitions were disposed of by a common judgment dated 7-10-1998, wherein the court made the following observations:
"....It may not be possible to say anything in favour of the petitioner so far as the criteria fixed by the respondent authorities is concerned. The petitioner no doubt qualified in the two preliminary tests but was unable to pass and attain 40% marks in the written test. There is, however, something to be said in favour of the petitioner. This is on the basis of recommendations made by the Inspector General of Police. It be seen that the appointing authority of ASI is the Inspector General of Police. Once he had made recommendations for relaxation of the Rules, then that should have been final word of the matter. As a matter relaxation in age limitation can be made. This has been so held by the Supreme Court in the case reported as AIR 1994 SC 1080. Once a recommendation was made by a competent authority, then formality of approval was required to be given. It is only by way of abundant precaution competent authority had referred the matter to the Additional Chief Secretary to Government, Home Department. This was a formality which should have been completed. This has not happened in this case. Let this be done now.
The petitioners further submission that as per the instructions issued on 27th April, 1976, some reservation had to made for N.C.C. candidates. This has not happened in this case. This is also required to be looked into.
In view of the above writ petition No. 1357/1994 is disposed of with the direction that the respondents would take notice of the recommendations made by the Inspector General of Police. They would also take notice of its own circular issued in the year 1976. They would adopt positive approach and take necessary action. Let this be done within a period of two months. Period of two months would begin from the date copy of the order passed by this court along with writ petition and its annexures is made available by the petitioner to the respondent authorities...."
5. The direction of the court having not been complied with, a contempt petition No. 214/1999 was preferred. During the pendency of the contempt petition, respondents came forward with the impugned order rejecting the claim of the petitioner. Taking note of the passing
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