Suhail Ahmad Malik & Ors vs State Of J&K & Others
2021 Latest Caselaw 830 j&K/2

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


CJ Court

                                             Reserved on:15.07.2021
                                           Pronounced on:30.07.2021

                       LPA No.241/2019
                               c/w
         LPA Nos.238/2019, 239/2019, 240/2019 & 267/2019


SUHAIL AHMAD MALIK & ORS.                      ...APPELLANT(S)

Through:-     Mr. Z. A. Shah, Sr. Adv. with Mr. A. Hanan,
              Advocate in LPA Nos.241 & 267/2019
              Mr. M. Y. Bhat, Sr. Adv. with M/S: Faizan Majid
              Bhat & Furqan Yaqub, Advocates, in LPA Nos.238/
              2019, 239/2019 & 240/201

                     Vs.

STATE OF J&K & OTHERS                         ...RESPONDENT(S)

Through:-     Mr. B. A. Dar, Sr, AAG.

CORAM:-
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.

                               JUDGMENT

Per Sanjay Dhar 'J'

1) These intra-court appeals are directed against the judgment

dated 9th of August, 2019, passed by the Writ Court in a batch of writ

petitions with SWP No.3019/2018 being the lead case, whereby, while

upholding the selection and appointment of Sub Inspectors in J&K

Police made pursuant to advertisement notice dated 30th of December, LPA No.241/2019 c/w LPA Nos.238/2019 Page 1 239/2019, 240/2019. & 267/2019 2016, the writ petitions filed by the appellants (hereinafter referred to

as the writ petitioners) have been dismissed.

2) Before coming to the grounds of challenge, it is necessary to

give a brief background of the facts leading to filing of these intra-

court appeals.

3) Director General of Police, Jammu and Kashmir, in terms of

advertisement notice No.Pers-A/400/2016/75303-403 dated

30.12.2016, invited applications for the posts of Sub Inspectors in

Executive/Armed wings of the Jammu and Kashmir Police. It was

provided in the advertisement notice that the conditions of

employment as prescribed under J&K Special Recruitment Rules,

2015 ["Rules of 2015" for short hereinafter), notified vide SRO 202

dated 30.06.2015, shall be applicable.

4) Pursuant to the aforesaid advertisement notice the writ

petitioners responded to the same and they were subjected to physical

test, physical endurance test and physical standard test. Upon

qualifying the aforesaid tests, the writ petitioners appeared in the

written examination (objective type), where-after some of the writ

petitioners were shortlisted for interview. The final selection list was

issued by the official respondents vide PHQ order No.6626 of 2018

dated 15th of December, 2019. The writ petitioners did not find their

name in the aforesaid selection list and, as such, they filed a batch of

LPA No.241/2019 c/w LPA Nos.238/2019 Page 2 239/2019, 240/2019. & 267/2019 writ petitions challenging the selection list as well as the consequent

appointment orders issued in favour of the private respondents.

5) The writ petitioners challenged the impugned select list and

appointment orders, primarily, on the grounds that the procedure and

conditions prescribed in the advertisement notice, particularly those

relating to use of biometric devices to eliminate duplication and

impersonation and use of CCTV technology to videograph various

stages of recruitment and also to track the activities at various

recruitment centres, were not adhered to at a number of recruitment

centres; that as per the advertisement notice, the selection of the

candidates was to be undertaken in accordance with the Rules of

2015, but the official respondents went on to undertake the selection

process in violation of the aforesaid rules, inasmuch as the selection

was made by the Selection Committee constituted by the Home

Department and not by the Service Selection Board; that majority of

the selected candidates belong to Jammu Division and only a few

candidates from Kashmir Division found their name in the select list

and this raises suspicion about the fairness of the process.

6) The learned Writ Court did not find substance in any of the

contentions raised by the writ petitioners in their writ petitions and the

same were dismissed primarily on the ground that the writ petitioners

having participated in the selection process but failing to make the

grade for their selection, cannot be allowed to turn around and raise a LPA No.241/2019 c/w LPA Nos.238/2019 Page 3 239/2019, 240/2019. & 267/2019 grievance against the procedure adopted by the official respondents.

Thus, the writ petitions were held to be not maintainable on the

ground of estoppel.

7) Aggrieved by the common judgment of the Writ Court, the

instant intra-court appeals came to be filed by the writ petitioners

challenging the impugned judgment passed by the Writ Court, mainly,

on the following grounds:

(I) That the principle of estoppel by conduct or acquiescence

has no application in a case where the Government has

committed glaring illegalities in the procedure relating to

selection of candidates;

(II) That in the instant case, selection of candidates was required

to be undertaken in terms of the Rules of 2015, as was clear

from the advertisement notice but instead of doing so, the

selection of the candidates was undertaken by a Selection

Committee appointed by the Home Department and not by

the Service Selection Board constituted in terms of Rule 5 of

the Rules of 2015, thereby making it a case of glaring

illegality in procedure of selection;

(III) That the provisions relating to appointment of non-gazetted

rank police officials as contained in the Jammu and Kashmir

Police Rules, 1960, stand impliedly repealed by the Rules of

LPA No.241/2019 c/w LPA Nos.238/2019 Page 4 239/2019, 240/2019. & 267/2019 2015, as such, it was not open to the official respondents to

undertake selection of the candidates except in accordance

with the Rules of 2015;

(IV) That the Selection Committee, even as per the J&K Police

Rules, had to be constituted by Director General of Police

but in the instant case, the same has been constituted by the

Government which is against the mandate of legal position;

(V) That there has been non-adherence to the conditions of

advertisement notice, particularly those relating to recording

of biometric attendance of candidates and videography of

recruitment centres through CCTV cameras, which smacks

of mala fides on the part of official respondents in making

the selection.

8) We have heard learned Senior counsels, Mr. Z. A. Shah and

Mr. M. Y. Bhat, appearing for writ petitioners and Mr. B. A. Dar, Sr.

AAG, for official respondents. It is pertinent to note here that the

selected candidates i.e., private respondents despite service did not

choose to appear in these appeals.

9) Mr. Z. A. Shah, Senior advocate, has, with his usual eloquence,

vehemently argued that in the instant case the official respondents

were required to follow the procedure prescribed under the Rules of

2015 but instead of doing so, the selection process was undertaken by

LPA No.241/2019 c/w LPA Nos.238/2019 Page 5 239/2019, 240/2019. & 267/2019 the official respondents by constituting Selection Committee in terms

of the Jammu and Kashmir Police Rules. According to the learned

Senior counsel, the provisions of the Police Rules relating to

recruitment at the level of Sub Inspector stand impliedly repealed by

SRO 202 notified by the Government under Section 124 of the

Constitution of the State. Taking his argument further, learned Senior

counsel has submitted that the Writ Court without giving a finding as

to which set of rules would be applicable to the instant selection has

proceeded to non-suit the writ petitioners on the ground of estoppel by

conduct. Submission of the learned Senior counsel is that if the very

procedure under which the selection has been made is without

jurisdiction, it would amount to a glaring illegality and, as such, in

view of the ratio laid down by the Supreme Court in Raj Kumar and

others vs. Shakti Raj and others (1997) 9 SCC 527 and Dr. (Major)

Meeta Sahai vs State of Bihar 2020 BLJ 276, estoppel by conduct

against the writ petitioners would not come into play.

10) In order to test the merits of this argument, we need to first

determine as to which set of rules would be applicable to the instant

selection.

11) Chapter VII of the Jammu and Kashmir Police Rules, 1960

provides for appointment and enrolment and Rule 172 of the said

Rules enumerates the authorities empowered to make appointment.

LPA No.241/2019 c/w LPA Nos.238/2019 Page 6 239/2019, 240/2019. & 267/2019 Sub-rule (2) of Rule 172 is relevant to the context and the same is

reproduced as under:

"(2)All appointments to non-gazetted rank above that of the constables shall be made by the appointing authority on consideration of recommendations of a selection board. Such boards shall be constituted in accordance with the orders of the Inspector General."

12) From the afore-quoted provision it is clear that all appointments

to non-gazetted rank above that of Constables is to be made on the

basis of recommendations of a Selection Board to be constituted by

the orders of Inspector General of Police (replaced by Director

General of Police).

13) The Rules of 2015 also provide for method of selection etc.

of non-gazetted posts borne on the establishment of any department or

service of the Government. Rules 3 and 5 of the said Rules are

relevant to the context and the same are reproduced as under:

"3. Application of the rules.--These rules shall apply to all non-gazetted posts borne on the establishment of any department or service of the Government and such gazetted post, as may be notified by the Government from time to time

5. Appointment under these rules.--(1) Notwithstanding anything to the contrary contained in any rule or order for the time being in force relating to the method of recruitment and conditions of service for recruitment in any service, or to any post, under the Government--

(i) the appointments to all non-gazetted posts borne on the establishment of any Department or Service of the Government shall be made by the Government on LPA No.241/2019 c/w LPA Nos.238/2019 Page 7 239/2019, 240/2019. & 267/2019 temporary basis on the basis of the selection made by the Selection Committee, consisting of--

(a) Chairman or a member of the Services Selection Board to be nominated by the Chairman.............Convenor;

(b) District Head of the indenting office/ Department........... Member;

(c) One officer of, or above, the rank of Deputy Secretary to the Government from the concerned Department ............ Member; and

(ii) the appointments to the gazetted posts, notified under rule 3 of these rules shall be made by the Committee, consisting of--

(a) a member of the Public Selection Commission to be nominated by the Chairman..............Convenor ;

(b) subject matter experts to be co-opted by the Chairman Public Service Commission ........Member :

Provided that nothing hereinabove shall apply to the posts which have been referred to the Public Service Commission or the Services Selection Board on the date of issuance of these rules.

(2) The Selection Committees referred to in sub- rule (1) shall make the selections as per the provisions of the Jammu and Kashmir Reservation Act, 2004 and rules framed thereunder."

14) Thus, there are two sets of rules which were in force at the

relevant time governing the selection and appointment to non-gazetted

posts borne on the establishment of Police Department. The question

arises as to whether selection was to be made in terms of Rule 172 of

the Jammu and Kashmir Police Rules or in terms of the Rules of 2015.

LPA No.241/2019 c/w LPA Nos.238/2019 Page 8 239/2019, 240/2019. & 267/2019

15) Mr. Z. A. Shah, Senior Advocate, has contended that the Rules

of 2015 are later in point of time and these rules provide special

procedure for appointment to non-gazetted posts including special

conditions relating to nature of appointment, fixation of pay and other

conditions of service and these rules have impliedly overruled the

Jammu and Kashmir Police Rules, 1960, so far as the same relate to

the appointment of non-gazetted ranks of Police Department, even

though there is no specific provision of repeal contained in the Rules

of 2015. In this regard, he has placed heavy reliance upon the

judgment of the Supreme Court in the case of S. Prakash and another

vs. K. M. Kurian and others (1999) 5 SCC 624. He has also submitted

that in the advertisement notice itself it has been clarified that the

conditions of employment as prescribed under Rules of 2015 shall

apply, meaning thereby that there was no doubt in the mind of official

respondents that the provisions contained in the Rules of 2015 would

apply to the instant selection but despite this, they resorted to the

procedure contemplated under Rule 172 of the Jammu and Kashmir

Rules, 1960, which is absolutely illegal, thereby rendering the

impugned selection void ab initio.

16) So far as the Jammu and Kashmir Police Rules are concerned,

the same have been framed by the Government in exercise of its

powers under Section 8 and 12 of the Police Act. It will be apt to

LPA No.241/2019 c/w LPA Nos.238/2019 Page 9 239/2019, 240/2019. & 267/2019 notice the provisions contained in Section 12 of the Police Act, which

reads as under:

"12. Power of Inspector General to make rules.-- The Inspector General of Police may, from time to time, subject to the approval of the Government, frame such orders and rules as it shall deem expedient relative to the organization, classification and distribution of the Police force, the places at which the members of the force shall reside, and the particular services to be performed by them ; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them ; the collecting and communicating by them of intelligence and information ; and all such other orders and rules relative to the Police Force as the Inspector General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties."

17) The aforesaid provisions of Section 12, thus, authorize

Inspector General of Police to make rules with the approval of the

Government. Section 43 of the Police Act gives power to the

Government to amend, add or cancel the rules made under the Act. In

exercise of these powers, the Government has promulgated the Jammu

and Kashmir Police Rules, 1960, which, inter alia, lays down the

procedure for discipline and conduct of members of the Police Force,

appointment and enrolment of members of the Police Force, leave,

pay and allowances, travelling allowance, punishments, promotion,

rewards, training etc. of the members of Police Force. Thus, the

provisions contained in the Police Act and the rules framed there-

under ought to be treated as a complete Code by itself. It is a special

LPA No.241/2019 c/w LPA Nos.238/2019 Page 10 239/2019, 240/2019. & 267/2019 statute concerning the Police Force covering the appointment and

service conditions of the Police Force. Thus, there is no doubt in our

mind that the provisions contained in the Police Act and the rules

framed there-under are a special statute.

18) So far as the provisions contained in the Rules of 2015 are

concerned, these Rules are general in nature, inasmuch as Rule 3 of

the said Rules makes it clear that these Rules would apply to all non-

gazetted posts borne on the establishment of any department or

service of the Government. Admittedly, there is no provision in the

said Rules pertaining to repeal of any previous rules, either general or

special.

19) While testing the contention regarding implied repeal of the

Police Rules by the Rules of 2015, it has to be borne in mind that

there is a presumption against a repeal by implication. The Legislature

or a rule making authority while enacting a law or making a rule has

complete knowledge of the existing laws on the same subject matter

and when a repealing provision is not provided for, it has to be

inferred that there is no intention of repeal of the existing laws. We

are supported in our aforesaid view by the judgment of the Supreme

Court in Municipal Council Palai vs T.J. Joseph and Others, AIR

1963 SC 1561.

LPA No.241/2019 c/w LPA Nos.238/2019 Page 11 239/2019, 240/2019. & 267/2019

20) As already noted, the Jammu and Kashmir Police Rules is a

special law. The same cannot be readily held to be repealed by a later

general law i.e., the Rules of 2015. It would be apt to quote here the

following extracts set out in Maxwell's Interpretation of Statutes:

"A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act."

21) The Jammu and Kashmir Police Rules, particularly Rule 172 of

the said Rules, occupies the field of selection and appointment of non-

gazetted ranks of Police Department and there can be no dispute to the

fact that these Rules are statutory in nature. The question arises

whether these Rules can be held to be impliedly overshadowed by

general rules contained in the Rules of 2015 which have been framed

by the Governor in exercise of his powers under Article 309 of the

Constitution of India.

22) In order to understand the legal position on the aforesaid issue,

Article 309 of the Constitution of India is required to be noticed. It

reads as under:

LPA No.241/2019 c/w LPA Nos.238/2019 Page 12 239/2019, 240/2019. & 267/2019 "309. Recruitment and conditions of service of persons serving the Union or a State.--Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."

23) Proviso to the aforesaid Article gives power to the Governor to

make service rules but these rules are only transitory in nature,

inasmuch as the power to frame these rules can be exercised by the

Governor until provision in that behalf is made by or under an Act of

the appropriate Legislature and these rules shall have the effect

subject to the provisions of any such Act. Thus, the Rules of 2015,

which have been framed by the Governor in exercise of his power

under Article 309 of the Constitution of India, will occupy the field

which is not covered by any statute or rules framed under any statute.

24) Here it would be apt to refer to the ratio laid down by the

Supreme Court in the case of A. B. Krishna and others vs. State of

Karnataka and others, (1998) 3 SCC 495. In the said case, the LPA No.241/2019 c/w LPA Nos.238/2019 Page 13 239/2019, 240/2019. & 267/2019 question before the Court was whether Karnataka Civil Services

(General Recruitment) Rules, 1971( as amended in the year 1977),

made by the Governor under Article 309 of the Constitution of India,

shall be deemed to have superseded Mysore Fire Force (Cadre

Recruitment )Rules, 1971, made under Section 39 of the Mysore Fire

Force Act. The Supreme Court, after noticing the provisions contained

in Article 309 of the Constitution of India, held that on the principle of

"occupied field", the Rules under Article 309 cannot supersede the

Rules made by the legislature. Paras 7 to 9 of the said judgment are

relevant to the context and the same are reproduced as under:

"7. The rule-making function under the Proviso to Article 309 is a legislative function. Since Article 309 has to operate subject to other provisions of the Constitution, it is obvious that whether it is an Act made by the Parliament or the State Legislature which lays down the conditions of service or it is the Rule made by the President or the Governor under the Proviso to that Article, they have to be in conformity with the other provisions of the Constitution specially Article 14, 16, 310 and 311.

8. The Fire Services under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of Fire Service.

Since Fire Service had been specially established under an Act of the Legislature and the Government, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the special provisions validly made for Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a LPA No.241/2019 c/w LPA Nos.238/2019 Page 14 239/2019, 240/2019. & 267/2019 Legislature intervenes to enact a law regulating the conditions of service, the power of Executive, including the President or the Governor, as the case may be, is totally displaced on the principle or "Doctrine of Occupied Field". If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter.

9. It is no doubt true that the Rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309. It has also to be noticed that Rules made in exercise of the rule making power given under an Act constitute Delegated or Subordinate legislation, but the Rules under Article 309 cannot be treated to fall in that category and, therefore, on the principle of "occupied field", the Rules under Article 309 cannot supersede the Rules made by the legislature."

25) The Supreme Court again in Chandra Prakash Tiwari and others

v. Shakuntala Shukla and others, (2002) 6 SCC 127, while dealing

with a case relating to promotion from Sub Inspector to Inspector in

State of U. P, while relying upon the ratio laid down in A. B. Krishna

v. State of Karnataka (supra), concluded that unless there is a specific

repeal of the existing law, question of an implied repeal would not

arise. The observations of the Court in paras 36 and 37 of the

judgment are relevant to the context and the same are reproduced as

under:

LPA No.241/2019 c/w LPA Nos.238/2019 Page 15 239/2019, 240/2019. & 267/2019 "36.On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules. Admittedly, the guidelines as contained in the Government Order dated 5.11.1965 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of Rules dealt with more fully hereinbefore, which would prevail over any other Rule. Since no other rule stands formulated and the Government Order of 1965 being taken as the existing rule pertaining to the subject matter presently under consideration with recent guide-lines as noted above, its applicability cannot be doubted. Unless the General Rule specifically repeal the effectiveness of the special rules, question of the latter rule becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather an imaginary repeal. It is now a well settled principle of law for which no relation is further required that law Courts rather loath repeal by implication. The General Rule framed under Article 309 has been for all State Government officials on and since 1994. List II (State List) of the 7th Schedule specially refers to the powers of the State Legislature to frame Rules specially for the Police. In this context Item 2 thereof would be significant which reads as follows:

"List II-State List"

"2 Police (including railway and village police) subject to the provisions of entry 2A of List I."

37. Police force admittedly has a special significance in the administration of the State and the intent of the framers of our Constitution to empower the State Government to make rules therefor has its due significance rather than being governed under a general omnibus rule framed under the provisions under Article 309. When there is a specific provision unless there is a specific repeal of the existing law, question of an implied repeal would not arise. In any event, the

LPA No.241/2019 c/w LPA Nos.238/2019 Page 16 239/2019, 240/2019. & 267/2019 General Rules are only prospective in nature and as such could not have affected the selection process which commenced in the year 1993 and it is on this score the parties advanced quite a lengthy submission but in our view question of further consideration thereof would not arise by reason of the commencement of the selection process in 1993"

26) Applying the aforesaid ratio to the instant case, it is to be

noticed that the rules made by the Government under Section 12 of

the Police Act prescribe the method of selection/appointment

including the constitution of Selection Committee under Rule 172 of

the said Rules. These Rules have not been amended, altered or

modified, at least until the instant selection had taken place.

Therefore, the Rules of 2015 could not have been made applicable to

the field that was already occupied by the Police Rules. The intention

of the Government to exclude the Police Department from the

purview of the Rules of 2015, so far as the same pertains to the

selection process, is manifested from the fact that it was only on 1 st

July, 2021, that notification S.O. 214 came to be issued by the

Government of Jammu and Kashmir thereby amending Rule 172 of

the J&K Police Rules, paving the way for selection of non-gazetted

ranks of police officials by the Jammu and Kashmir Services

Selection Board. This means that until the issuance of S.O. 214 of 1st

July, 2021, the selection and appointment of non-gazetted ranks of

police officials was to be made in accordance with the un-amended

Rule 172, which provided for constitution of Selection Committee by

LPA No.241/2019 c/w LPA Nos.238/2019 Page 17 239/2019, 240/2019. & 267/2019 Director General of Police, on whose recommendations the

appointments were to be made.

27) It has been vehemently contended by the writ petitioners that

the advertisement notice dated 30th December, 2016, specifically

provided that conditions of employment as prescribed under the Rules

of 2015 would apply to the selections. The writ petitioners have also

placed reliance upon Circular No.09-GAD of 2016 dated 29.01.2016,

which clarifies that service conditions of all Government employees

including the Police Department would be governed by SRO 202 of

2015. On this basis, it has been contended that the selection was to be

made only in accordance with the Rules of 2015 and not in

accordance with the J&K Police Rules.

28) It is true that in the advertisement notice it is provided that the

conditions of employment as prescribed under the Rules of 2015

would apply but the conditions of employment in the context of

instant case will have reference to only those rules notified under SRO

202 which relate to nature of appointment, fixation of pay,

increments, dearness allowance and other allowances and other

conditions of service etc. and not to the process of selection. Even

Circular No.09-GAD of 2016 dated 29.01.2016, makes it amply clear

that in order to harmonize the service conditions of all Government

employees with respect to SRO 202 of 2015, the said SRO has been

LPA No.241/2019 c/w LPA Nos.238/2019 Page 18 239/2019, 240/2019. & 267/2019 made applicable to all the posts for which selection is made by J&K

Service Selection Board, Departmental Recruitment Boards etc.

relating to selection in Government departments. So, it is only with

regard to service conditions that SRO 202 of 2015 has been made

applicable in all kinds of selections in Government departments. The

fact that the said Circular bears reference to Departmental

Recruitment Boards makes it clear that the Rules of 2015 did not

obliterate or extinguish the possibility of selections being made by

Departmental Recruitment Boards constituted under special rules of a

particular department. Thus, it can be safely stated that the

Departmental Recruitment Board of the Police Department constituted

in terms of Rule 172 of the J&K Police Rules was never intended to

be replaced by Services Selection Board constituted in terms of the

Rules of 2015.

29) The writ petitioners have placed heavy reliance upon the ratio

laid down by the Supreme Court in S. Prakash and another vs. K. M.

Kurian and others (1999) 5 SCC 624, to contend that the Police Rules,

so far as the same pertain to recruitment of non-gazetted ranks, stand

impliedly repealed by the General Rules of 2015. The Supreme Court

in the said case, after noticing the inconsistency in the special rules

pertaining to the ratio or percentage fixed for different methods of

recruitment as contained in Kerala State Subordinate Services

(Amendment) Rules, 1992, and Kerala Agricultural Income Tax and

LPA No.241/2019 c/w LPA Nos.238/2019 Page 19 239/2019, 240/2019. & 267/2019 Sales Tax Rules, observed that if the intention of the rule-making

authority is to sweep away all the special rules and to establish a

uniform pattern for computation of the ratio or percentage of direct

recruits and by transfer, in such case, the special rules will give way.

30) The ratio laid down by the Supreme Court in the aforesaid case

has been rendered in the facts and circumstances of the said case and

may not be applicable to the facts of the instant case, inasmuch as in

the case before the Supreme Court, there was a specific mention of

special rules in Rule 5 of the General Rules which was subject matter

of discussion before the Court. Rule 5 of the General Rules provided

for method of recruitment prescribed under special rules and the said

Rule 5 was made specifically applicable to the special rules. In order

to make it more clear, it would be apt to refer to the provisions

contained in Rule 5 of the General Rules which were subject matter of

discussion before the Supreme Court. The same reads as under:

"5. Method of recruitment: - Where the normal method of recruitment to any service, class or category is neither solely by transfer but is both by direct recruitment and by transfer: -

(a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre;

(b) a person shall be recruited direct only against a substantive vacancy in such

LPA No.241/2019 c/w LPA Nos.238/2019 Page 20 239/2019, 240/2019. & 267/2019 permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in clause (a) and;

(c) recruitment to all other vacancies shall be made by transfer.

Note: (1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. (2) Leave vacancies and vacancies of less than 6 months duration shall be treated as vacancies of short duration.

(3) Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time."

31) In para 14 of the aforesaid judgment, the Supreme Court has

made it clear that the aforesaid General Rule applies to all Special

Rules whenever a ratio or percentage is prescribed in the rules. Paras

14 and 17 of the judgment are relevant to the context and the same

are reproduced as under:

"14. From the aforesaid discussion, it is clear that if the intention of the rule making authority was to establish a rule of universal application to all the services in the State of Kerala for which special rules are made, then special rules will give way to the general rules enacted for that purpose. This has to be found out from the language used in the rules which may be express or by implication. If the language is clear and unqualified, subsequent general rule would prevail despite repugnancy. If the intention of the rule-making authority is to sweep away all the special rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in LPA No.241/2019 c/w LPA Nos.238/2019 Page 21 239/2019, 240/2019. & 267/2019 such case, the special rules will give way. On the basis of the aforesaid settled principles, let us interpret rule 5 as well as Note (3) and the method of recruitment prescribed under the special rules. Rule 5 quoted above provides method of recruitment to any service, class or category where the method of recruitment is neither solely by direct recruitment nor by transfer but is both by direct recruitment and by transfer. It is made specifically applicable to the special rules. Clause

(a) provides that the proportion or order will be applicable only to substantive vacancies in permanent cadre; clause (b) provides that direct recruitment shall be only against substantive vacancy in permanent cadre; and recruitment to all other vacancies shall be made by transfer. Note (1) and (2) provide that all permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. Note (3) specifically provides that whenever a ratio or percentage is fixed (in special Rules) for different methods of recruitment to a post, the number of vacancies to be filled up by candidates from each method is to be decided by applying a fixed ratio or percentage to the cadre strength of the post to which the recruitment is made and not to the vacancies existing at that time. Therefore, the entire Rule 5 deals with the special rules which provide for filling up of the vacancies to any service, class or category by direct recruitment and by transfer. The language of Note (3) is crystal clear and is for removal of any ambiguity by using positive and negative terms. It applies to all special rules whenever a ratio or percentage is prescribed in the Rules. It also empathetically states that it has to be computed on the cadre strength of the post to which the recruitment is to be made and not on the basis of the vacancies existing at that time.

17. In our view, the aforesaid submission is without any substance. As discussed above, Rule 5 of the General Rule is enacted to govern special rules with regard to the method of recruitment in cases when appointments are by direct recruitment and by transfer in any substantive vacancies in permanent cadre. The language used in Rule 5 is LPA No.241/2019 c/w LPA Nos.238/2019 Page 22 239/2019, 240/2019. & 267/2019 clear and unqualified. The intention of the legislature of adding Note 3 is also clear and is added to fill in existing lacuna in the method of recruitment provided in special rules. As stated above, for appointment to category 3, i.e. to the post of Agricultural Income Tax Officers and others, method of appointments only provides that 20% of successive substantive vacancies shall be filled or reserved to be filled by direct recruitment and the remaining vacancies are to be filled or reserved to be filled by transfer. On what basis the substantive vacancies are to be determined was not provided and therefore that lacuna is filled up by the aforesaid Note (3) in Rule 5. In any case, even if there is repugnancy or inconsistency, the law is settled to the effect that general rule later in time prevails over earlier special rule if it clearly and directly supersedes the special rule. It is also well settled that special rule can be altered, abrogated or repealed by general rule by an express provision. In the present case, the language of Note (3) specifically makes it applicable to general rule stating whenever the ratio or percentage is fixed for different methods of recruitment, the method prescribed therein would apply. So, the word whenever would cover special rule prescribing ratio or percentage of appointment between direct recruit and by transfer and the Rule making authority has specifically provided that ratio or percentage for the vacancies is to be computed on the basis not to the vacancies existing at that time, but on the basis of the cadre strength. Hence, there is no question of repugnancy between Rule 5, Note (3) and the method of appointment provided in Special Rules."

(Emphasis supplied)

32) From the afore-quoted observations of the Supreme Court it is

clear that it was a case where General Rules specifically provided for

their application to Special Rules so far as method of recruitment is

concerned and it was in those circumstances that the Supreme Court

LPA No.241/2019 c/w LPA Nos.238/2019 Page 23 239/2019, 240/2019. & 267/2019 held that rules relating to method of recruitment contained in Kerala

Agricultural Income Tax and Sales Tax Rules would stand impliedly

repealed by Kerala State Subordinate Services (Amendment) Rules,

1992.

33) In the instant case, there is no provision in the Rules of 2015 to

even remotely suggest that the method of recruitment would even

apply to those cases where any Statutory Rules provides for special

method of recruitment. In fact, the clarification of 2016 and

amendment to Police Rules effected on 1st of July, 2021, suggest to

the contrary. Therefore, the ratio laid down by the Supreme Court in

S. Prakash and another vs. K. M. Kurian and others (supra) does not

apply to the facts of the instant case.

34) For the foregoing discussion, we are of the considered opinion

that the official respondents have not committed any illegality or

irregularity in undertaking the impugned selection process in

accordance with the J&K Police Rules. Thus, it cannot be said that

there has been any gross or glaring illegality in the process of

selection.

35) So far as the contention of the writ petitioners that at certain

centres biometric attendance was not resorted to and in certain other

centres, the recruitment process was not covered by CCTV cameras, is

concerned, the official respondents have clearly explained in their

LPA No.241/2019 c/w LPA Nos.238/2019 Page 24 239/2019, 240/2019. & 267/2019 counter affidavit(s) that it was only in one of the centres that CCTV

cameras could not be installed and even in that centre, the whole

process was properly videographed. It has also been explained that

due to heavy rush of candidates at certain centres, it was not possible

to resort to marking of attendance through biometric appliances.

However, the official respondents have stated on affidavit that it was

ensured that identity of the candidates is properly verified before

allowing them to sit in the examination. In any case, no material was

placed on record by the writ petitioners before the Writ Court to even

remotely suggest that on account of non-adherence of conditions

relating to biometric attendance of candidates or CCTV surveillance,

any case of cheating or impersonation or unfair means has taken

place. No specific instances in this regard have been brought to the

notice of the Court. Only general allegations in this regard have been

made which cannot persuade the Court to conclude that there has been

any unfairness or mala fides in the conduct of the

examination/selection process. The learned Writ Court has rightly

rejected the contention of the writ petitioners in this regard.

36) Lastly, it has been contended that as per Rule 172 of the J&K

Police Rules, the Selection Committee is to be constituted by the

Director General of Police but in the instant case, the same has been

constituted by the Government. According to the learned counsel for

LPA No.241/2019 c/w LPA Nos.238/2019 Page 25 239/2019, 240/2019. & 267/2019 the writ petitioners, this has resulted into a glaring irregularity thereby

vitiating the whole process of selection.

37) This ground has not been urged by the writ petitioners before

the Writ Court, therefore, the same cannot be considered by this Court

in appeal. Even otherwise, the Selection Committee in this case, as per

the writ petitioners, was constituted by the Government which is the

actual source of power. The said power stands delegated by the

Government to Director General of Police in terms of Rule 172 of the

J&K Police Rules. Merely by delegation of power, the delegator is not

divested of exercising his power. Delegation is defined in Black's

Law Dictionary as an act of entrusting another with authority or

empowering another to act as an agent or representative. As per P.

Ramanathan Iyers's "The Law Lexicon", delegation is the act of

making or commissioning a delegate. Delegation generally means

parting of powers by the persons who grants the delegation but it also

means conferring of an authority to do things which otherwise that

person would have to do himself.

38) The Supreme Court in the case of Gwalior Rayon Silk Mfg.

(Wvg.) Co. Ltd. v Asstt. Commissioner Of Sales Tax and others,

(1974) 4 SCC 98, while discussing the concept of "delegation" has

observed in para 37 of the judgment as under:

"37. In this context it is necessary to have a clear idea of the concept of delegation. Delegation is not

LPA No.241/2019 c/w LPA Nos.238/2019 Page 26 239/2019, 240/2019. & 267/2019 the complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much confusion of thought had unfortunately resulted from assuming that, (1) [1972] 2 S.C.R. 141, delegation involves, or may involve the complete abdication or abrogation of a power. This is precluded by the definition. Delegation often involves the granting of discretionary authority to another, but inch authority is purely derivative. The, ultimate power always remains in the delegator and is never renounced."

39) From the foregoing discussion, it is clear that even after the

delegation of power, the ultimate power always remains with the

delegator and is never renounced. In the instant case, the Selection

Committee, as contended by learned counsel for the writ petitioners,

has been constituted by the Government in terms of Government

Order No.289-Home of 2016 dated 28.05.2016. It bears reference to

the letter of Director General of Police. The Government being the

source of power, which it has delegated to Director General of Police

under Rule 172, was well within its power and jurisdiction to

constitute a Selection Committee and, as such, no fault can be found

with the procedure adopted by the Government in this regard.

40) For the foregoing discussion, we are of the considered opinion

that there has been no gross or glaring illegality or irregularity in the

LPA No.241/2019 c/w LPA Nos.238/2019 Page 27 239/2019, 240/2019. & 267/2019 process of selection of Sub Inspectors which is subject matter of these

appeals. Having said so, it was not open to the writ petitioners to

challenge the selection process after having participated in the same

simply because had failed to make the grade. The learned Writ Court

has rightly observed that estoppel by conduct would apply with full

force to the case of the writ petitioners and they are barred from

challenging the selection process in the facts and circumstances of the

case.

41) For what has been discussed hereinabove, we do not find any

merit in these intra court appeals and the same are, accordingly,

dismissed.

                           42)     Parties to bear their own costs.



                                              (SANJAY DHAR)                      (PANKAJ MITHAL)
                                                   JUDGE                          CHIEF JUSTICE
                           Srinagar
                           30.07.2021
                           "Bhat Altaf, PS"

                                              Whether the order is speaking:         Yes/No
                                              Whether the order is reportable:       Yes/No




                           LPA No.241/2019 c/w LPA Nos.238/2019                               Page 28
                           239/2019, 240/2019. & 267/2019
MOHAMMAD ALTAF BHAT
2021.07.30 10:51
I attest to the accuracy and
integrity of this document