Shailender Parihar vs Sarmad Hafeez
2022 Latest Caselaw 1468 j&K

    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT JAMMU

                                             Reserved on :     20.07.2022.

                                             Pronounced on : 18.10.2022.


                                             WP(C) No. 275/2020
                                             in
                                             CCP(S) No. 157/2020


Shailender Parihar                                             ..... Petitioner


                      Through: Mr. Achal Sharma, Advocate


                 Vs


Sarmad Hafeez,                                               ..... Respondents
Secretary Youth Services & Sports Department and
others.


                      Through: Mr. K. D. S. Kotwal, Dy. AG


Coram:    HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                              JUDGEMENT

Heard learned counsel for the parties in support of their

respective position in the case.

This case bears a recurring scenario engaging the time and

energy of the constitutional courts in dealing with cases of habitual

disposition of and on the part of administrative and public officials

/authorities in the matter of passing orders, bearing legal effects and civil

consequences, which more often than not fail to withstand scrutiny at first

sight of the Rules of Natural Justice and Rule of Law thereby leaving the

in CCP(S) No. 157/2020

real situation/ matter, meant to be dealt with by prudent decision, as an

actual loser in the ultimate analysis and in the process consuming the

time and energy and effort both on the part of aggrieved one and the

adjudicating one. Cancelling a proper selection based engagement of a

person to a public post and his consequent serving duty as well on the

pretext that said person had come to report his joining after delay of few

days of the period given for joining is the issue in the present writ petition

and the impugned decision is found offending the test of Rules of Natural

Justice

Pursuant to a government policy embodied in Govt. Order no.

141-Edu(YSS) of 2017 dated 27.10.2017, aiming to address the needs of

physical fitness of the school children in the government schools put into

effect and operation by the Govt. of the State of J&K, a selection

advertisement notice no. 01 of 2018 dated 10.01.2018 was issued by the

respondent no. 3 - Youth Services & Sports Officer, Doda as Member-

Secretary for Engagement of Rehbar-e-Khel. This advertisement notice

is annexed with the writ petition as annexure-III. Engagement of person/s

as Rehbar-e-Khel was to be on honorarium basis in the Department of

Youth Services & Sports, Govt. of J&K. This particular advertisement

was for Doda District in which ten Zones were identified for 196

positions of Rehbar-e-Khel.

The petitioner, holding requisite qualifications, competed for

his selection by facing the selection process and came to be selected as

Rehbar-e-Khel for Zone Gundanan, district Doda to find his name in the

in CCP(S) No. 157/2020

final provisional select list dated 30.01.2019 published in the Kashmir

Times, a local English daily newspaper of 04.02.2019. A fact begs to be

kept in mind that for the purpose of competing in the selection process,

the petitioner had come from Oman (Muscat) where he had been then

serving an employment as a Cashier in a Hotel since February, 2017 and

had gone back after competing in the selection while the selection list

came to be published on 04.02.2019.

A formal composite order of engagement of all the selectees

came to be issued by the respondent no. 1 - the Director General, Youth

Services & Sports Department, Govt. of J&K. In terms of this order the

production of documents as enlisted in the said order was required for the

purpose of joining of the selectees before the District Youth Services &

Sports Officer, Doda.

As the petitioner was outside India working for his livelihood

when the said order of engagement dated 27.02.2019 came into picture,

so upon knowing that from his father the petitioner had engaged himself

from that very moment in an exercise to get himself relieved from his

employment in Oman (Muscat), which surely was not to happen at the

drop of a hat. Thus the petitioner, acting through his father, had submitted

his joining related documents before the District Youth Services & Sports

Officer, Doda.

In terms of the requirements enlisted in the said composite

order of engagement, requirement no. 15 had required that the selected

in CCP(S) No. 157/2020

candidate shall join his/her duties within a period of 21 days. The

petitioner came to report for duty on 26.03.2019 after he had reached

back India on 25.03.2019. Thus, instead of joining duty within 21 days,

the petitioner had joined duty on 26th day from the day next to the date of

issuance of engagement order dated 27.02.2019. The petitioner's joining

was accepted and he had come to assume his engagement and discharge

duty as Rehbar-e-Khel at given place of his engagement.

The petitioner felt aggrieved of an Order no.

DG/YSS/Estt/11112-16 dated 01.01.2020 passed by the respondent no. 2

- the Director General, Youth Services & Sports Department, Jammu,

whereby the petitioner's engagement as Rehbar-e-Khel is ordered to be

cancelled.

As at the time of publication of appointment order, the

petitioner was out of UT of J&K, and in fact out of India, working in his

employment, so the petitioner was not to act for submission of joining

related documents, by coming first to India and losing time in doing so

but to act through someone, who in this case was his father, who was to

and had made available all the relevant documents required for the

joining report on 28.02.2019. In the meantime, the petitioner had set

himself on journey to come back to India so as to join his engagement as

Rehbar-e-Khel. The order of engagement dated 27.02.2019 was issued

pursuant to publication of selection list in local newspaper on 04.02.2019.

Since for the purpose of enabling him to report back to India from the

place of his work at Oman (Muscat), the petitioner had to undergo the

in CCP(S) No. 157/2020

due procedure as such the petitioner came to be in India on 25.03.2019

and on 26.03.2019 came to submit in person his joining report and

thereupon reported for his duties till 22.01.2020. Thus, on the basis of all

relevant documents required for the purpose of processing the joining

through his father, the petitioner had come to report for his duty within 25

days from the date of his engagement order dated 27.02.2019.

On the complaint of a person figuring in the wait list, against

the petitioner that his joining was illegal as he was physically not present

in India, as such, the petitioner's engagement was sought to be dislodged

by said wait list candidate by filing a writ petition WP(C) no. 2027/2019

before this Court.

Vide an order dated 03.06.2019 passed in said writ petition

WP(C) no. 2027/2019, this Court had directed the Deputy Commissioner,

Doda to conduct an enquiry and also file an enquiry report in that regard.

The enquiry was conducted by the Deputy Commissioner, Doda to the

effect that the petitioner was not in India and the submission of

documents related to joining was carried out by the petitioner through his

father on 28.02.2019. In the enquiry so conducted by the Deputy

Commissioner, Doda, the matter was referred to the respondent no. 2 -

the Director General, Youth Services & Sports Department, Jammu for

appropriate orders under rules. The enquiry conducted by the Deputy

Commissioner, Doda is dated 22.07.2019.

in CCP(S) No. 157/2020

Acting upon the said enquiry report, the respondent no. 2 - the

Director General, Youth Services & Sports Department, Jammu came to

pass the impugned order dated 01.01.2020 thereby holding the petitioner

being in default to join within 21 days from the date of issuance of the

engagement order and as such cancelled the engagement of the petitioner.

It is with respect to this order of cancellation of engagement the petitioner

has posed a challenged through the medium of the writ petition.

A perusal of the order of engagement in the context of

condition 15 would manifest that the joining period within a period of 21

days as a condition was not mandatory as it was not attended with any

further eventuality. Thus, the period of 21 days was to be reckoned as

extendable for any genuine contingency which could be there at any point

of time for any selectee to be not able to join within a period of 21 days,

which in the present case was with the petitioner as he was out of India

working on his occupation. For the petitioner to relieve himself from his

private employer in a foreign country and to come back to India could not

have been a matter of his own discretion but that of following the due

procedure in which he was to relieve himself from his employer, prepare

the documents for coming back to India and then only report himself for

joining which he did within a period of 24 days of issuance of order of

engagement and as such even if there was any delay beyond 21 days then

said delay was only of duration of three to four days and that delay by no

stretch of mandate could be said to be unwarranted delay on the part of

the petitioner.

in CCP(S) No. 157/2020

The petitioner came and reported himself for joining on

26.03.2019 and was allowed to join without any objection from the

Authorities and as such even if there was any delay in reporting joining

the same stood condoned by the Authorities themselves. There was, thus,

no scope for resorting to the extent of cancelling the engagement of the

petitioner simply on the pretext that submission of papers and relevant

documents related to his engagement were submitted by his father. In

law, nothing prevented the petitioner to submit his credential documents

relatable to his engagement through his father when the petitioner himself

was not available. The situation could be seen from this angle also, if the

petitioner would have been entangled in any unavoidable contingency

while being in India and was to carry out the exercise of submission of

documents before the Authorities concerned without himself being

physically present then also the same could have been done by him

through his family member. There was nothing illegal in such course of

action adopted by the petitioner as it was once in a life time opportunity

for him to have earned a public employment related engagement.

The respondent no. 2 - the Director General, Youth Services &

Sports Department, Jammu acted with a mechanical mindset least

sensitive to the factual and legal situation of the case. Legal situation was

that condition for joining did not carry a disqualification rider that in case

of non-joining within time given the selectee defaulting in joining within

time so given was to lose the engagement call and as such it was well

within the discretion of the authorities concerned to accept late joining

in CCP(S) No. 157/2020

also of a selectee backed by a genuine reason which in the present case

was always there. In fact out of the very same select list in the case of

three candidates namely Surinder Kumar, Pawan Kumar & Imran Assad

their delayed joining was condoned vide an order no.

DYSSO/D/RREK/21-24 dated 08.04.2019 of the respondent no. 3. So

when in case of said three selectees delayed joining was condonable so

even in the case of the petitioner the same yardstick ought to have been

kept in observance by the respondent no. 2 more particularly when on

fact side the petitioner could not be said to have defaulted in submission

of joining related documents through his father even if that included a

joining report submitted on his behalf. From where the respondent no. 2 -

the Director General, Youth Services & Sports Department, Jammu read

it as a condition in the present case that joining was to be done by

personal presence of the selectee and not otherwise is not at all gatherable

from the very response and record of the case from the respondents' end.

Indian Judicial System led by the Hon'ble Supreme Court and

followed by the High Courts, by exhausting efforts of its judgments, has

kept and is keeping its tryst with a cherished conviction to see sooner

than later the time of administration of justice in India when there will

hardly be a need and occasion to repeat and apply in a case a ruling/

finding as to the Rules of Natural Justice and Rule of Law being defeated

by the judgment/ decision given by the judgment/ decision maker, and till

that time comes the constitutional courts will keep on infusing the

jurisprudential wisdom into the psyche of the public institutions and its

in CCP(S) No. 157/2020

functionaries that expression "Application of Mind" is not meant as a

matter of usage for ritual sake but is a living principle of law out of which

only an administrative/ judicial/ quasi judicial decision, as the case may

be, must bear its natural delivery and not come by caesarean mode. The

legal principle of Application of Mind its operational level envisages the

full view, comprehension and understanding the facts of a given

situation/ case without any edit regarding which a decision in return is

warranted in law from the decision maker/ giver.

Any public official/authority, be it judicial, quasi judicial and/or

administrative one, who/which knows it as a fact that he/it is meant to

judge/decide matters being part of the very constitution of the

office/position held/occupied by him/it, must know and/or be made to

know it compulsively and consciously without any miss that there is and

will be an ever present institutional demand upon his/its understanding to

make a decision, which if and upon being questioned, by any aggrieved

person who is to suffer the effects of the given decision , is able to self

exhibit its factuality and legality so evidently and expressly so as to test

and tax the wit of the person in questioning the given decision. This is

what is and will be meant in real sense and spirit an act of application of

mind on the part of the maker of the judgment/decision. A

judgment/decision must commend itself for ready acceptance making

its rejection a demanding task for the person willing to question it and for

the person/authority meant to examine the question posed to challenge it.

in CCP(S) No. 157/2020

Facts are the building stuff of a decision to be taken or given

concerning the affairs of life, be it public or private. Reasoning operates

upon and through a medium which is only of facts to fetch a decision in a

given case. There can be a case wherein sufficiency and deficiency of

reasoning on the part of the decision maker can become debatable issue

for the courts to examine but before that if the facts have been left

unseen, unexplained, unheeded, unveiled and unattended by the

official/authority meant to decide by and upon facts then the decision of

said official/authority will be nothing better than a description by and

from blind person with respect to an object requiring visual description.

The Hon'ble Supreme Court of India is re-enforcing with

regularity a singular statement of law in its judgments following in series

that an order passed without application of mind deserves to be annulled

being an arbitrary exercise of power (Ref: Onkar Lal Bajaj and others V.

Union Of India and ors 2003 AIR SC 2562). The Hon'ble Supreme Court

of India in the case of the Province of Bombay V. Kusaldas S. Advani

and others 1950 AIR SC 222 has held that the word "a decision'' in

common parlance is more or less a neutral expression. However with

respect to the personality and potentiality of a decision being a judicial/

quasi judicial/ administrative one, the Hon'ble Supreme Court in A.K

Kraipak V. Union Of India 1970 AIR SC 150 has subjected the quasi

judicial and administrative decision to bear the scrutiny of Rules of

Natural Justice with an end purpose in view that the decision ought to be

a fair and just decision.

in CCP(S) No. 157/2020

In the present case, without taking pain and bearing patience to

see and examine the facts in complete frame of the situation, the

respondent no. 2 came to upset the employment of the petitioner which

was earned by him by mode of proper selection process and was earning

honorarium for the service being rendered by him only to suffer loss of

his employment by rush of impulse disguised as the impugned decision

on the part of the respondent no. 2 and the impugned decision is exhibit

of non application of mind.

In the face of the facts and circumstances so attending the case,

this Court holds and declares the impugned Order no. DG-

YSS/Estt/11112-16 dated 01.01.2020 as being arbitrary and unfair by all

standards and consequently sets it aside. The petitioner is held entitled

to continue with his engagement as Rehbar-e-Khel, without any break

having intervened, with all consequential engagement dues and benefits.

All other connected matter/applications in the case shall stand disposed

of.

Disposed of accordingly.

(Rahul Bharti) Judge Jammu 18.10.2022 Muneesh

Whether the order is speaking : Yes

Whether the order is reportable : Yes