Jammu & Kashmir High Court
Gourav Gupta Aged 36 Years Son Of vs Unknown on 12 October, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C ) No. 1512/2021
Reserved on 06.10.2023
Pronounced on 12 .10.2023
Gourav Gupta aged 36 years son of ..... petitioners (s)
Sh. Tarsem Gupta, resident of House No. 94,
Purani Mandi, Jammu
Through :- Mr. Pranav Kohli Sr. Advocate
with
Mr. Farhan Mirza Advocate
V/s
.....Respondent(s)
1. UT of Jammu and Kashmir through Commissioner cum Secretary to
Government, GAD, Civil Secretariat, Jammu
2.Commissioner cum Secretary to Government, Finance Department, Civil
Secretariat, Jammu
3. Commissioner/Secretary to Government, Technical Education Department,
Jammu
4. Director, Technical Education, Jammu
5. Commissioner cum Secretary to Government, Excise and Taxation
Department, Civil Secretariat, Jammu
6. Chairman, J&K SSB Sehkari Bhawan Panama Chowk Jammu
Through :- Mr. Raman Sharma AAG.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
Sanjeev Kumar, J.
1 This petition under Article 226 of the Constitution of India is
directed against judgment dated 08.03.2021 passed by the Central
Administrative Tribunal, Jammu Bench, Jammu ["the Tribunal"] in T.A No.
61/767/2020 titled „Gourav Gupta vs. State and others‟ whereby the Tribunal
has dismissed the petition of the petitioner registered as T.A.
2 Briefly stated the facts which emerge from pleading of the parties
are that the petitioner was considered along with other outstanding
sportspersons under SRO 376/2004 for appointment in Government service.
On the basis of recommendations made by the Committee constituted under
SRO 349/1998 read with SRO 376/2004, the petitioner was appointed as
Demonstrator in the pay scale of Rs.9300-34,800 with Grade Pay of Rs.4200 in
the Department of Technical Education vide Government Order No.1110-GAD
of 2014 dated 24.10.2014. The petitioner submitted his joining report before
respondent No.3 on 10.09.2014 and the same was accepted. On scrutiny of the
qualification documents of the petitioner, the Department of Technical
Education found that the petitioner did not hold the eligibility qualification for
the post of Demonstrator against which he stood appointed by the Government.
Consequently, respondent No.4 vide his communication dated 27.11.2014
intimated this fact to the General Administration Department ["GAD"].
3 When the matter was under examination of the GAD, the
petitioner filed an application on 30.10.2014 requesting therein that he may be
appointed against the post of Sub-Inspector in the Excise and Taxation
Department in the pay scale of Rs.5200-20,200 with grade pay of Rs.2400 with
an undertaking that he shall not make claim for higher or equivalent grade of
Demonstrator against which he was appointed vide Government order dated
24.10.2014. The application was considered by the GAD and after taking up
the matter with the Finance Department for locating a direct recruitment post of
Sub-Inspector in the Excise and Taxation Department, the petitioner was
appointed to the post of Sub-Inspector in the pay scale of Rs.5200-20,200 with
grade pay of Rs.2400 in Divisional Cadre, Jammu vide Government Order
dated 29.01.2015. This order was accepted by the petitioner without any protest
or demur. It was only after the petitioner had worked for more than 6 months, it
occurred to him to approach this Court to lay claim for the post of Inspector in
the Excise and Taxation Department which is in the pay scale of Rs.9300-
34,800/- with Grade Pay of Rs.4200.
4 With the coming into force of the Jammu and Kashmir
Reorganization Act, 2019 and the constitution of Central Administrative
Tribunal for UT of Jammu and Kashmir, the writ petition filed by the petitioner
came to be transferred to the Tribunal . On receipt of the said writ petition, the
Tribunal registered it as T.A No.61/767/2020 which has been disposed by the
Tribunal vide order and judgment impugned in this petition.
5 Heard learned counsel for the parties and perused the material on
record.
6 Admittedly, the petitioner is an outstanding sportsperson and,
therefore, eligible to be considered for appointment in Government service
under the Jammu and Kashmir (Appointment of Outstanding Sportspersons),
Rules 1998 ["the Rules of 1998"].
7 Rule 3 of the Rules of 1998 clearly indicates that the outstanding
sportspersons are entitled to be considered for appointment against any
vacancy in the non-gazetted cadre subject to the procedure laid down in the
said Rule. Sub-Rule (2) of Rule 3 of the Rules of 1998 provides for
constitution of a Committee headed by the Chief Secretary to make
recommendations for appointment of outstanding sportspersons. The
appointment of outstanding sportspersons against non-gazetted posts is, of
course, at the sole discretion of the Government. As is provided in Rule 3(i)
and 3(ii), a person possessing qualification of 10+2 may be considered for
appointment against a vacancy in the non-gazetted cadre; a person possessing
qualification less than 10+2 may be considered for appointment against
class-IV post; and a person possessing qualification of Graduation or above,
may be considered for appointment against a higher post in the non-gazetted
cadre of service. The appointment to be made under Rule 3 of the Rules of
1998 is subject to the candidates i.e the outstanding sportspersons fulfilling
other eligibility conditions under the relevant Recruitment Rules/Regulations
governing the said services. They are also supposed to produce certificate of
being outstanding sportspersons to be issued by the Secretary, J&K Sports
Council. A noteworthy feature of Rule 3 of the Rules of 1998 is that the
appointment of an outstanding sportspersons shall be made only against the
direct recruitment vacancies (non-gazetted) subject to availability of post with
a further stipulation that maximum number of appointments of outstanding
sportspersons against direct recruitment quota in all the services of the State
during a calendar year shall not exceed 25 in any case.
8 With a view to give effect to the provisions of the Rules of 1998,
the Government of Jammu and Kashmir constituted a Committee headed by
the Chief Secretary for making appointments of outstanding sportspersons
against the non-gazetted posts in the State services for the quota of calendar
year 2011. The Selection Committee, after considering the list of outstanding
sportspersons numbering 52 for the quota of calendar year 2011 furnished by
the J&K Sports Council, recommended 25 sportspersons for appointment
against suitable posts in the Government Departments. The petitioner was
amongst the 25 persons recommended for appointment and the
recommendation in respect of appointment of the petitioner was for the post
of Demonstrator in the Polytechnic/ITI in the Technical Education Department.
9 Indisputably, the post of Demonstrator carried the pay scale of
Rs.9300-34,800 with grade pay of Rs.4200 which is equivalent to the pay scale
of Sub-Inspector in the Police Department. Other than the petitioner, one more
candidate, namely Ashish Sharma was appointed in the same pay scale. He was
recommended to be appointed as S.I in the Police Department. The
recommendations were accepted by the Government and vide Government
order dated 24.10.2014, all the recommended candidates including the
petitioner came to be appointed against different posts.
10 As taken note of hereinabove, the petitioner having accepted the
appointment as Demonstrator submitted his joining report in the Technical
Education Department. Not only did the petitioner join in the Department of
Technical Education, but he worked there as Demonstrator for almost one year.
It was later on detected by the Technical Education Department that the
petitioner was not possessing the requisite qualification for holding the post of
Demonstrator, either in the Polytechnic or ITI of the Technical Education
Department. The matter was brought to the notice of the Director, Technical
Education who took up the matter with the GAD and sent back the case of the
petitioner to the GAD. We have already adverted to the communication of the
Director, Technical Education addressed to the GAD.
11 Ordinarily, and, as was normally expected of the GAD, the
petitioner who could not continue with his appointment as Demonstrator
should have been accommodated by the GAD by offering him some other
equivalent post in any other Department of the Government. This did not
happen immediately. The appellant, as is gatherable, did not want to wait for
the GAD to locate some equivalent post in some other Department of the
Government and offer it to the petitioner. He decided to accept the post of S.I
in the Excise and Taxation Department which post admittedly carried lesser
pay scale. The GAD was apprehensive that the petitioner, after accepting the
appointment as S.I in the Excise and Taxation Department will rake up the
issue of seeking a higher post carrying the pay scale of Rs.9300-34800 with
grade pay of Rs.4200, the pay scale attached to the post of Demonstrator
against which the petitioner stood appointed without verifying his eligibility
qualifications.
12 The GAD, as it appears, asked the petitioner to give an
undertaking in writing that if he is appointed against the post of S.I. in the
Excise and Taxation Department, he would not claim higher or equivalent
grade of Demonstrator against which he was appointed vide Government order
dated 24.10.2014. The petitioner readily agreed and submitted an application
on 30.12.2014. Accordingly, the matter was taken up by the GAD with the
Department of Finance for identifying a direct recruitment post of S.I in the
Excise and Taxation Department so that the same could be offered to the
petitioner. On request of the GAD, one post of S.I in the direct recruitment
quota was identified by the Finance Department and intimated to the GAD.
This paved the way for issuing appointment order of the petitioner as S.I. in the
Excise and Taxation Department. The order of appointment in favour of the
petitioner was issued vide Government order dated 29.01.2015. This order was
issued in partial modification of Government Order dated 24.10.2014(supra) so
far as it related to appointment of the petitioner appearing at S.No. 23 of the
said order. The order of appointment issued on 29.01.2015 was accepted by the
petitioner and he joined his services in the Department of Finance. It is only on
9.07.2015 almost after six months, the petitioner, as was apprehended by the
GAD, raked up the issue of his entitlement to appointment against the post of
Inspector in the Excise and Taxation Department carrying the pay scale of
Rs.9300-34800 with grade pay of Rs.4200. The petitioner prayed for his
appointment against the post of Inspector in the Excise and Department only
with a further relief of consequential benefits, such as, seniority etc. The
petitioner also sought a direction to the respondents not to fill up the post of
Excise Inspector notified vide Advertisement Notice dated 01.09.2015.
13 With regard to the undertaking submitted by him and giving his
consent to accept the post of S.I. in the Excise and Taxation Department, it was
pleaded by the petitioner that the GAD being in a dominant position, forced
the petitioner to submit an undertaking and, the circumstances which he was
placed in, had left him with no other option, but to give such undertaking. The
petitioner in paragraph (10) of the petition, however, submitted that he came to
know that the post of S.I. on which he had joined pursuant to an order of his
appointment carried the pay scale of Rs.5200-20200 with grade pay of
Rs.2400, whereas, the earlier post against which he was erroneously appointed
i.e. the post of Demonstrator carried the pay scale of Rs.93000-34800 with
grade pay of Rs.4200. The petitioner further submitted that pursuant to the
information supplied by the respondents in their response to his RTI
application, he came to know that various persons under the category of
outstanding sportspersons were appointed by the respondents in the grade of
Rs.9300-34800 before and after the petitioner.
14 The writ petition was contested by the respondents, who, in their
reply affidavit, refuted the claim of the petitioner for a higher pay scale on the
ground that it was in pursuance of the request made by the petitioner and an
undertaking submitted by him not to raise any dispute in future, the petitioner
was appointed as S.I in the Excise and Taxation Department in the year 2015.
It is submitted that it is only after the request was received from the petitioner,
the post of S.I. was identified in the Finance Department and appointment was
offered to the petitioner.
15 Regarding the claim of the petitioner for higher pay scale, it is
submitted that other than one Ashish Sharma, no other outstanding
sportsperson against the quota of 2011 was appointed against the post carrying
the higher pay scale.
16 The matter was considered by the Tribunal. The Tribunal,
however, did not agree with the contentions of learned counsel for the
petitioner and dismissed the petition on the ground that the entitlement of the
petitioner possessing qualification of Graduation and above was only of
consideration against a non-gazetted post and not against a non-gazetted post
carrying a particular pay scale.
17 Having given our anxious consideration to the rival contentions
and the material on record, we are of the considered opinion that the petitioner,
in view of his conduct, has lost his right to be appointed against any other post
in the Government, particularly a post carrying pay scale of Rs.9300-34800
with grade pay of Rs.4200. We, however, do not subscribe to the reasoning
given by the Tribunal in support of its judgment.
18 Rules of 1998 have been framed under proviso to Section 124 of
the Constitution of Jammu and Kashmir by the Governor to provide special
dispensation and confer benefit of appointment in Government service on the
outstanding sportspersons. These Rules are aimed at encouraging the students
to take up and excel in the sports so that the Country and the State is
represented at National and International level. With a view to conferring this
benefit, the Government earmarks certain non-gazetted posts in different
services of the State which shall not exceed 25 in a calendar year. Against
these identified posts, the outstanding sportspersons, as are certified as such by
the J&K Sports Council, are considered as per their qualifications and
proficiency in sports. The Committee headed by Chief Secretary considers all
the eligible candidates and makes recommendations for their appointments
against different posts. Against the quota of 2011, the Committee received the
cases of in as many as 52 eligible candidates from the Jammu and Kashmir
Sports Council. Accordingly, on the basis of their merit determined in
reference to proficiency in sports, 25 outstanding sportspersons in the order of
their merit were recommended for appointment against different posts in the
State services. The petitioner with qualification of MCA figuring at S.No. 5 of
the list was recommended to be appointed as Demonstrator in the Technical
Education Department, whereas another candidate, namely Ashish Sharma
with qualification of B.A, standing at S.No.7, was recommended as S.I in the
Police Department. The recommendations made by the Committee were
accepted and, accordingly, the appointment orders in favour of 25 candidates
were issued. The petitioner, who was appointed as Demonstrator joined in the
Technical Education Department, but, as explained above, he could not be
permitted to perform the duties of Demonstrator because of his ineligibility to
hold the said post. This is how the matter came back to the GAD on
27.11.2014.
19 The petitioner would have been well within his right to contend
that after his case was returned by the Technical Education Department to the
GAD, the GAD should have offered him the appointment carrying the pay
scale of Rs.9300-34800 as was the pay scale attached to the post of
Demonstrator against which he stood recommended by the Selection
Committee. He, however, himself abandoned that right when he moved an
application before GAD for his appointment against the post of S.I in the
Excise and Taxation Department. As was apprehended, the GAD accepted the
request of the petitioner for appointment as S.I in the Excise Department
subject to the petitioner submitting an undertaking that he will not raise any
dispute in future and claim higher pay scale equivalent to the pay scale carried
by the post of Demonstrator against which he was earlier appointed.
20 From a reading of application dated 30.12.2014 made by the
petitioner, it clearly transpires that the Department of GAD was apprehensive
that the petitioner may, after accepting the appointment involve the
Government in litigation and claim higher pay scale. It is because of this reason
that on the suggestion made by the GAD, the petitoner even undertook not to
claim any such right. It is not the case of the petitioner that after the case was
returned by the Technical Education Department to GAD, the GAD took
inordinate time to offer him fresh appointment which constrained him to accept
the appointment against the lower post. We cannot also accept the contention
of petitioner that he became aware of the lower pay scale attached to the post
of S.I only after he joined the post.
21 Apparently and clearly, the petition filed after six months was an
afterthought. We also could not find any material on record placed by the
petitioner to demonstrate that, at the time of acceptance of offer of the
Government for appointment as S.I or any time immediately thereafter, he
raised any objection to such appointment and claimed appointment against the
post of S.I. True it is that under Rule 3 of the Rules of 1998, the respondents
were not under any statutory obligation to offer to the petitioner a post carrying
a particular pay scale. Offering of post for appointment to the outstanding
sportsperson is at the sole discretion of the Government and so long as
exercise of such discretion is not hit by Articles 14 and 16 of the Constitution
of India, the same cannot be made justiciable in the Court of law, particularly
under Article 226 of the Constitution of India. We are aware that the person
similarly situated with him, rather lesser in merit in sports, namely Ashish
Sharma was appointed as S.I in higher pay scale However, we cannot brush
aside the fact that the petitioner too was treated on a par with him and offered
the appointment as Demonstrator which carried the same pay scale as that of
S.I in Police Department.
22 It is true that the petitioner could not perform his duties as
Demonstrator because of his ineligibility to hold the post. We do appreciate
the argument of learned Senior Counsel for the petitioner that it is because of
faux pas committed by the Selection Committee, the petitioner was appointed
against a wrong post for which he did not have the requisite qualification. Be
that as it may, the fact remains that the petitioner should have allowed the
GAD to explore the possibility for adjusting him on the equivalent post in
some other Department. However, acting impatiently, the petitioner
approached the GAD and offered to accept the appointment of S.I in the Excise
Department and it is in pursuance of this request made by the petitioner
through his letter dated 30.12.2014, a communication was addressed by the
GAD to the Finance Department to locate/identify one direct recruitment post
of S.I. to accommodate the petitioner. The Finance Department responded and
the petitioner was appointed. It is in these circumstances, we are not inclined
to accept the contention of the petitioner that he accepted the appointment as
S.I in the Excise and Taxation Department under duress and undue influence
of the GAD. The facts and circumstances obtaining in the case indicate
otherwise. The petitioner having accepted his appointment as S.I without any
protest or demur and having joined on the post cannot be permitted to turn
around and claim that he was entitled to be appointed as Inspector in the Excise
and Taxation Department which carries the higher pay scale, more particularly
when Rules do not envisage offering a post carrying a particular scale to an
outstanding sportsperson.
23 The appointments of outstanding sportspersons under the Rules of
1998 are at the sole discretion of the Government depending upon several
factors viz. qualification/eligibility of a candidate, his proficiency in sports and
availability of a suitable non-gazetted post in a particular calendar year. Such
discretionary benefit envisaged for outstanding sportsperson, though regulated
by statutory Rules, is nonetheless founded in equity and, therefore, capable of
being waived or acquiesced in.
24 For the foregoing reasons, we find no merit in this appeal and the
same is, accordingly, dismissed. The order and judgment passed by the
Tribunal is upheld, though for different reasons.
Record be returned to the concerned.
(MOHAN LAL) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
12.10.2023
Sanjeev Whether order is reportable: Yes
