Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K And Ors vs Abdul Ahad Palla on 17 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 19
Supplementary-1 Cause List
HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 45/2021 in
SWP No. 2244/2018
CM No. 1943/2021
Dated: 17th of October, 2024.
Union Territory of J&K and Ors.
... Appellant(s)
Through: -
Mr Mohsin-ul-Showkat Qadri, Sr. AAG with
Ms Maha Majeed, Assisting Counsel.
V/s
Abdul Ahad Palla
... Respondent(s)
Through: -
Mr S. R. Hussain, Advocate.
CORAM:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Hon'ble Mr Justice Rajesh Sekhri, Judge
(JUDGMENT)
Sanjeev Kumar-J:
01. The Appellants are in appeal against an Order and Judgment
dated 2nd of July, 2019 passed by the learned Single Judge of this Court
(hereinafter referred to as "the Writ Court") in the Writ Petition filed by the
Respondent herein, being SWP No. 2244/2018 titled 'Abdul Ahad Palla v.
State of J&K and Ors.', whereby the Writ Court has allowed the said
Petition of the Respondent herein and quashed the Order No. 4351 of 2018
dated 29th of August, 2018 issued by the Director General of Police, J&K.
02. Before we advert to the grounds of challenge urged by Mr
Mohsin-ul-Showkat Qadri, the learned Senior Additional Advocate
General, appearing on behalf of the Appellants, we deem it appropriate to
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jot down few facts which are germane to the disposal of the controversy
raised in this appeal.
03. Vide advertisement notification dated 7th of April, 2010, the
Director General of Police, J&K invited applications for selection/
appointment to the posts of Constables in the J&K Police (Executive). The
criteria of selection prescribed in the advertisement notification, inter alia,
included the additional six points earmarked for the candidates having the
prescribed additional qualifications. The two marks were earmarked for the
candidates possessing degree/ diploma qualification from ITI. However,
during the course of selection, the additional two marks reserved for degree/
diploma qualification were not given to various candidates possessing such
qualification. This led to filing of several Petitions in this Court. A learned
Single Bench of this Court disposed of all these Petitions by a common
Judgment dated 6th of December, 2012 passed in the lead case of SWP No.
1635/2010 titled 'Mohammad Maqbool Wani v. State of J&K and Ors.',
thereby directing the Appellants herein to consider the diploma certificates
of the Petitioners therein and award them two additional marks. A further
direction was issued to the Appellants herein that in case after adding two
marks for their diploma certificates, if the Petitioners therein come within
the zone of selection, the Appellants herein shall pass appropriate orders.
04. It is not in dispute that the Judgment dated 6 th of December,
2012 passed in SWP No. 1635/2010 and other clubbed matters came to be
implemented by the Appellants and those who were found to make the
mark in selection by awarding them the additional two marks were
ultimately appointed. It seems that the Respondent herein, along with few
other candidates who were similarly placed with the Petitioners in SWP No.
1635/2010 and other connected matters, filed SWP No. 2865/2015 titled
'Shabir Ahmad Baba & Ors v. State of J&K and Ors.' The aforesaid
Petition came to be disposed of on motion hearing date itself and a direction
was issued to the Appellants herein to consider the claim of the Petitioners
therein, which included the Respondent herein, having regard to the
Judgment delivered in SWP No. 1635/2010, provided the same was
LPA No. 45/2021 in
applicable to their case and, of course, in accordance with the Rules
governing the field.
05. When the Judgment passed in favour of the Petitioners dated
21st of January, 2016 was not complied with, a Contempt Petition was filed
by the Respondent herein. Before the Contempt Court, the Appellants
herein produced PHQ Order No. 2393 of 2017 dated 17 th of July, 2017
issued by the Director General of Police, J&K and apprised the Contempt
Court that the Judgment passed in favour of the Respondent herein had
been complied with.
06. With the issuance of Order dated 17th of July, 2017, the
Judgment dated 21st of January, 2016 passed by the learned Single Judge in
SWP No. 2865/2015 came to be complied with. The Respondent was not
only appointed, but he was also deputed for undergoing the requisite Police
training as well. It is only in the year 2018, the Director General of Police,
J&K, issued Order No. 4351 of 2018 dated 29th of August, 2018 and
withdrew, amongst others, the appointment of the Respondent herein ab
initio. It is this Order of the Director General of Police which was called in
question by the Respondent herein in SWP No. 2244/2018, which has been
allowed by the Writ Court in terms of the Order and Judgment impugned in
this appeal.
07. The impugned Order and Judgment of the Writ Court is
assailed by the Appellants herein, primarily, on the ground that after the
compliance of Judgment dated 6th of December, 2012 passed in SWP No.
1635/2010, the Appellants had taken a policy decision that henceforth no
person with additional qualification shall be considered for appointment.
08. Mr Qadri, the learned Senior Additional Advocate General,
representing the Appellants, submits that though the direction from the Writ
Court in the case of the Respondent herein was only to consider, yet the
Director General of Police, J&K, inadvertently offered him the
appointment, despite the fact that the case of the Respondent herein was not
LPA No. 45/2021 in
only barred by delay and laches, but also opposed to the policy decision so
taken by the Appellants.
09. Having heard the learned Counsel appearing for the parties and
perused the material on record, we are of the considered opinion that the
impugned Order and Judgment passed by the Writ Court is a well-reasoned
one and, therefore, does not call for any interference by us in this appeal.
10. Indisputably, the issue as to whether the candidates who had
participated in the selection process pursuant to advertisement notification
dated 7th of April, 2010 were entitled to be considered in terms of the
selection criteria which was notified in the advertisement notification stood
already determined. The criteria, admittedly, provided two additional marks
to the candidates possessing degree/ diploma from ITI. True it is that in the
year 2010, when the Writ Petitions challenging the denial of two additional
points to the candidates possessing qualification of degree/ diploma from
the ITI were filed, the Respondent herein did not join the Petitioners
therein, however, SWP No. 1635/2010 came to be disposed of by the
learned Single Judge of this Court vide Order and Judgment dated 6 th of
December, 2012, holding that the selection criteria which was notified in
the advertisement notification and which included granting of two
additional marks for the qualification of degree/ diploma from the ITI, if
any, possessed by the candidates would govern the selection process
initiated in terms of advertisement notification dated 7 th of April, 2010.
Accordingly, the Writ Court, while allowing the Writ Petition bearing SWP
No. 1635/2010, directed the Appellants herein to consider the Petitioners of
the said Petition in the light of selection criteria notified in the
advertisement notification and pass appropriate orders thereof. The matter
was, thereafter, taken by the Appellants herein before the Division Bench
by way of Letters Patent Appeal No. 213/2014. A Division Bench of this
Court, vide Judgment dated 8th of October, 2015, dismissed the Letters
Patent Appeal so filed by the Appellants herein. The SLP filed by the
Appellants herein also came to be dismissed by the Hon'ble Supreme
LPA No. 45/2021 in
Court. This paved the way for implementation of the Judgment passed by
the learned Single Judge dated 6th of December, 2012.
11. It is also not in dispute that the Respondent herein, who was
similarly situated with the Writ Petitioners of SWP No. 1635/2010, came to
this Court, along with few others, by way of SWP No. 2865/2015. The said
Writ Petition was disposed of by a learned Single Judge of this Court vide
Order dated 21st of January, 2016, directing the Respondents to consider the
case of the Petitioners therein, which included the Respondent herein, in the
following manner:
i. The case of the Petitioners therein shall be considered
having regard to the Judgment rendered in SWP No.
1635/2010;
ii. The consideration of the case of the Petitioners therein
shall be subject to the Appellants herein examining as
to whether the case of the Respondent herein and others
is governed by the said Judgment; and
iii. That the consideration shall be in accordance with the
Rules governing the field.
This Order of the learned Single Judge was accepted by the
Appellants herein, inasmuch as no further appeal was taken against the
same.
12. It is also not in dispute that when the aforesaid Order dated 21st
of January, 2016 passed by the learned Single Judge was not complied with
by the Appellants herein, the Respondent herein filed a Contempt Petition
bearing No. 137/2017, in which the Appellants herein appeared and placed
on record PHQ Order No. 2393 of 2017 dated 17th of July, 2017 and
apprised the Court that the Order passed by this Court stood implemented
and the Respondent herein appointed. This should have brought the entire
controversy to an end, however, as it appears, after the Respondent herein
was appointed and was put on probation as well as deputed for Police
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training, an Order came to be passed by the Director General of Police,
J&K, bearing PHQ Order No. 4351 of 2018 dated 28 th of August, 2018,
whereby the appointment of the Respondent herein was treated to have been
cancelled ab initio and the claim of the Respondent herein rejected, being
13. The justification given in the aforesaid Order dated 29th of
August, 2018, which was challenged by the Respondent herein before the
Writ Court, that the claim of the Respondent was time barred and, therefore,
ought not to have been considered cannot be accepted, particularly, when
the Order dated 21st of January, 2016 passed by the Writ Court was not only
accepted, but was implemented in letter and spirit by the Appellants. That
apart, even the Court hearing the Contempt Petition was apprised about the
compliance of the Order and, resultantly, the Contempt Petition got
disposed of in view of the stand taken by the Appellants herein.
14. The plea that the claim of the Respondent herein was hit by
delay and laches was not available to the Appellants herein for the reason
that the learned Single Judge, while disposing of the Writ Petition filed by
the Respondent herein, had not granted any liberty or option to the
Appellants herein to reject the claim on the ground of limitation. Not only
had the Writ Court entertained the Writ Petition filed by the Respondent
herein, but it had specifically directed the Appellants herein to consider the
claim of the Respondent herein in the light of Judgment passed in SWP No.
1635/2010, provided the Respondent herein was similarly situated with the
Petitioners of the aforesaid Writ Petition. It is not in dispute that the
Respondent herein was similarly situated with the Petitioners of SWP No.
1635/2010, as he, too, was entitled to two additional marks for his
qualification of diploma from ITI. There was no dissimilarity between the
Respondent herein and the Petitioners in SWP No. 1635/2010. The plea
which was taken by the Appellants herein to justify the Order impugned
before the Writ Court dated 29th of August, 2018 was totally an afterthought
and an act which cannot be countenanced in law. The appointment of the
Respondent herein was in compliance with the Judgment passed by this
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Court and, therefore, could not have been withdrawn on the ground that in
view of some policy decision taken by the Appellants herein, the Appellants
had the option of rejecting the claim of the Respondent herein, being barred
by limitation.
15. The Writ Court has considered all these aspects in right
perspective and has rightly concluded that the impugned Order dated 29 th of
August, 2018 passed by the Director General of Police, J&K was per se
illegal and unsustainable in the eye of law. We fully concur with the view
taken by the Writ Court.
16. For all the aforesaid reasons, we find no merit in the present
appeal. The same is, accordingly, dismissed, along with the connected
CM(s). Interim direction(s), if any subsisting as on date, shall stand vacated.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
SRINAGAR
October 17th, 2024
"TAHIR"
