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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohammad Yaqoob Mir, J.
Qadri Nazir Ahmad & Anr. -Appellant
Versus
State & Ors. -Resopndent
SWP No. 1002-2009
Decided On : 14-05-2010
Appointment - Relaxation of Height Standards - Excise and Sales Tax (Subordinate Service) Recruitment Rules, 1991 - Schedule III
Fact of the Case:
The petitioners were appointed as Guards in the Commercial Taxes Department, and their appointments were challenged. After a series of legal proceedings, they were allowed to continue in service and were later appointed in compliance with the court's directions. However, their height did not meet the prescribed standards, and there was a dispute regarding the relaxation of height standards.
Finding of the Court:
The court found that the petitioners possessed the basic qualification of middle pass, which was the minimum requirement for direct recruitment. It was also noted that the physical fitness standard had to be prescribed by the Commissioner, Sales Tax, and no such standard had been issued. Therefore, the court concluded that the relaxation of physical standards in height did not run contrary to the directions of the Apex Court.
Issues: The main issue was whether the relaxation of height standards for the petitioners was permissible in accordance with the directions of the Apex Court and the Excise and Sales Tax (Subordinate Service) Recruitment Rules, 1991.
Ratio Decidendi: The court held that the petitioners met the basic qualification of middle pass, and since no specific physical standard had been prescribed by the Commissioner, Sales Tax, the relaxation of height standards was not in violation of the court's directions.
Final Decision: The court disposed of the case, stating that the petitioners, who had already been permitted to join, were entitled to all benefits as permissible in terms of their appointment.
"1. All the vacant posts shall be notified for appointment and applications called for in accordance with the Rules within six months from the date of the receipt of the judgment.
2. All the appellants herein may be permitted to submit application for appointment against such notification.
3. As regards the upper age limit, these appellants shall be given relaxation but there shall not be any relaxation in the matter of the basic qualification for appointment to Class IV posts.
4. The appellants may be allowed to continue in service till such regular recruitments are made and these posts are filled up by a regular process of appointment."
2. In compliance thereof, advertisement notice No.1 of 2005 dated 2.4.2005 came to be issued. Petitioners also competed, were selected among others on 9.2.2007 and thereafter appointed in terms of the appointment order issued from the office of Commissioner Commercial Taxes J&K and figure at serial No.8 and 13 in the list of Kashmir Division as published in Kashmir Times, Jammu in its issue dated February 18, 2007. While conducting their measurement, the Committee reported that the petitioners bear lesser height than the prescribed ranging from 2.25" to 1.50" inches respectively but since both of them have worked in the department and have crossed the age limit, therefore, the Committee proposed to the Commissioner that relaxation in the norms of height by 2.25 to 1.50 inches may be taken up with the Government. The Government issued order No.322-F of 2008 dated 27.11.2008, where-under after approval of his Excellency the Governor, sanction has been accorded to the confirmation of action of the Commissioner, Commercial Taxes Department in appointing the petitioners as Guards in the Commercial Taxes Department in relaxation of prescribed height standards.
3. The earlier appointment of the petitioners though was quashed but in terms of the direction No.4 referred above, they were allowed to continue in service till such regular recruitments are made and the posts are filled up by regular process of appointment. Since the petitioners while competing made the grade, got selected, therefore, in view of that position, their case for relaxation of height standards was recommended and approved.
4. An interested situation arose i.e. the respondent Commissioner, Commercial Taxes did not permit the petitioners to join and addressed a detailed communication to the Commissioner/Secretary to Finance Department that the Govt. order No.322-F of 2008 cannot be operated upon and needs to be rescinded forthwith. According to the said Commissioner, relaxation in view of the directions of the Apex Court is not permissible. The Finance Department in response to said communication dated 31.12.2008, responded vide communication dated 23.4.2009 addressed to Commissioner, Commercial Taxes by stating that opinion of the Law Department was sought about the implementation of Govt. order dated 27.11.2008 and Law Department has opined that two appointees fulfill the qualification as prescribed under rules, deficiency in the physical standards stand relaxed pursuant to the directions of the Court dated 1.11.2006. The said relaxation cannot be revoked.
5. Learned counsel for the petitioners rightly pointed out that the basic qualification in terms of the Excise and Sales Tax (Subordinate Service) Recruitment Rules, 1991, vis-a-vis eligibility for appointment against the post of Guards/Armed Guards as specified in Schedule III, is middle pass and added that physical fitness is not a qualification. The direction No.3 of the Hon’ble
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