Libertatem Magazine

SC: Discrepancies in Appointment In Services Not to be Set Aside

Contents of this Page

This case concerns whether the appointment for the post of Sub-inspector in the state of Jammu & Kashmir was as per the Rules of recruitment and Appointment.

Brief Facts of the Case

On 25th Feb 1999, an advertisement had been issued by 2nd respondent (Director-General of Police, J&K state), calling applications for the post of Sub-Inspector of Police (Executive) and these post were to be filled through open selections in terms of the procedure prescribed under J&K Police (Executive) Rules. There had been nowhere provided in the scheme of Rules nor in the advertisement that a separate merit list will be published for Jammu and Kashmir Province. The cut-off marks for the provinces were different i.e., 56 for Jammu Province and 50 for Kashmir Province. The merit list of 252 candidates was published Province-wise on 23rd April 2000. This is the third round of litigation arising out of the selection process. 

In the first round of litigation, the unsuccessful candidates filed a writ petition challenging the selection process. The Division Bench of High Court, by order dated 19th Aug 2002, asked to redraw the merit list and not disturb the selected/ appointed candidates within the merit zone. An SLP before this Court was dismissed. In compliance with the order of Division Bench, 259 candidates were appointed and 47 were ousted. 

In the second round of litigation, the writ is filed by ousted candidates and was allowed by Single Bench to continue until the next hearing. The Division Bench by order dated 3rd Dec. 2004, directed that candidates not within merit zone cannot be allowed to continue, if continued, will be removed. This was challenged in an SLP by 44 candidates who had been directed to be removed. Various interlocutory applications by a total of 22 candidates for their impleadment before this Court. This Court by order dated 10th May 2007, allowed 47 ousted candidates and 22 impleaded candidates to be accommodated on the post of sub-inspector but without examining the litigant parties and only based on the statement of Advocate General. They were appointed by the 2nd respondent by order dated 23rd Feb 2008 and 11th Mar 2008. 

In the third round of litigation, the left out candidates holding higher order of merit qua 22 candidates. The Single Judge Bench on 26th Aug 2010, directed that no concession by Advocate General will deprive them of fair consideration for the post as per the order of merit. This resulted in cognate appeals being filed at the instance of the persons aggrieved to Division Bench, which disposed of these batch of appeals, setting aside the order of Single Judge. Relying on the said judgment, on 12th Mar 2013, other cognate appeals were decided and became the subject of challenge in appeal before this Court. 

Appellant’s Argument

The Order dated 10th May 2007, merely recorded the concession by Advocate General and it had been entirely misconstrued by the Division Bench that order being passed under Article 142 of the Constitution, cannot be questioned in collateral proceedings. Further, the appointment of 22 candidates, who were nowhere in the merit list was taking away the right of fair consideration from those placed higher in order of merit in the redrawn merit list. It is not only violative of statutory recruitment Rules but also of Article 14 of the Constitution.

There can be no delays that could be attributed to the appellants as few of them approached the Court at the initial stage in the year 2000 when the selection process was questioned. However, they were primarily aggrieved by the appointment of 22 candidates, who did not find any place in the redrawn merit list, prepared as per order dated 19th Aug 2002, they cannot be referred to as fence-sitters as observed by Division Bench in the impugned judgment. 

There had been attempts to justify that 26 candidates were condemning the impugned judgment of Division Bench of High Court in the given proceedings and 10 of the appellants were serving as Head Constables/Constables, 9 in various Government departments, and only 7 were from the private sector. It had been contended that the appellants will suffer mental agony, due to the appointment of candidates lower in rank. There would be no financial burden on the respondents as appellants were not asking for any back wages and there still exists 100 vacant posts of sub-inspector. Thus, appellants can be accommodated without disturbing these 22 candidates. 

Respondent’s Argument

The Respondent contended that the 47 ousted candidates had been working in the department since 2000 and the department had incurred huge expenses on their training. They were also involved in anti-insurgency operations, thus, there exits apprehension of threat to their life. When the order dated 10th May 2007 was passed, it was conceded that after saving the appointment of 47 candidates, 22 vacancies were still available. These 22 candidates did not only become party but had also been litigating since 2000. Thus, to settle the issue and sum up the proceedings, the 47 ousted candidates along with these 22 candidates, were accommodated for the post in pursuance of advertisement notified in Feb 2001. 

It was submitted that the appellants were not the senior-most 22 candidates as per the redrawn merit list and there exists a good number of candidates who are higher in order of merit qua present appellants. The candidates with whom the present appellants had been serving since 2008. If the Court accepts, what had been contended by appellants, most of the appellants would not find their name in the queue of appointment as they are not the senior-most 22 candidates and in such peculiar circumstances, High Court Impugned judgment needs no interference. 

Observation by the Court

The Court observed that the selection of candidates for various services should be made as per the rules of recruitment and appointment shall be made accordingly. Contrary to this, if any appointments are made bypassing this procedure will lead to a violation of Articles 14 and 16 of the Constitution. This had been observed in the judgments of State of U.P. V. Rajkumar Sharma and Others and Arup Das and Others v. the State of Assam. 

The State has committed a mistake by passing an order dated 10th May 2007, still, it cannot be forced by a person as alleged to be aggrieved to perpetuate the said mistake. Relying on the Judgement of Union of India and Another v. Kartick Chandra Mondal and Others.  And Arup Das and others v. State of Assam and others. In the latter case, it has been observed that Article 14 does not envisage negative equality and if the state had committed a mistake, it cannot be forced to perpetuate the same. 

Although, despite the existence of discrepancies in the appointment, the Court refused to set aside the appointment on account of the term of service. This has been observed in the cases of Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat and Buddhi Nath Choudhary v. Abahi Kumar. 

The Court disapproved of the reasoning that the appointment of 22 candidates under article 142 did complete justice and was not inclined to disturb the appointment of these 22 candidates. 

The decision of the Court

The Court found no substance in the present appeals and is accordingly dismissed. No costs. 

Pending applications, if any, stands disposed of.

Click here to read the judgment. is now on Telegram. Follow us for regular legal updates and judgment from courts. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

About the Author