JUDGMENT
V.K. Jhanji, A. C. J.
1. All these appeals are directed against order dated 31.3.1998 passed by the learned Single Judge, whereby appointment of respondent No. 4 Nauman Thakur as Deputy Superintendent of Police has not been disturbed, but the State has been directed to consider the case of the three writ petitioners on the same lines as was done in the case of respondent No. 4 Nauman Thakur. State appeal is limited only to the extent whereby the State has been directed to consider the case of the writ petitioners on the same line as was done in the case of respondent No. 4 Nauman Thakur. Other appeals have been preferred to challenge the order of the learned Single Judge whereby the appointment of respondent No. 4 has not been disturbed.
2. In brief the facts are that four writ petitions came to be filed calling in question the appointment of respondent No. 4 as Deputy Superintendent of Police on the basis of a report dated 1. 8. 1995 published in ‘Daily Kashmir Times’ under the caption “Return of Prodigal Son, Dons Uniform”. In the writ petitions allegations of favoritism, nepotism, arbitrariness were leveled by the writ petitioners against the respondents, especially the influence exerted the influence exerted by father of respondent No. 4, namely Mr. G. M. Thakur, who at the relevant time was stated to have held the post of Commissioner/Secretary to Government, General Administration Department, Jammu & Kashmir. Writ Petitioners further alleged that legal as well as administrative norms were thrown to wind for facilitating the appointment of respondent No. 4 as Deputy Superintendent of Police in the State Police Department and his appointment was through back – door entry because of the influence exercised by his father and that no examination or any selection process was initiated by the State Government in making the Recruitment of the Deputy Superintendent of Police. It was stated that last selection of the Deputy Superintendents of Ploice through Jammu & Kashmir Public Service Commission was made more than a decade ago. All the eligible candidates including the petitioners were waiting to participate in the selection process, but the State Government instead of making regular selection as per the law and statutes, has chosen to confer benefits on respondent No. 4 by pick and choose policy and for extraneous considerations. Further according to them, the alleged compassionate ground on the basis of which respondent No. 4 was appointed was very vague and no guidelines whatsoever were laid as to category to which respondent No. 4 alleged to have belonged.
3. The stand taken by the Government was that for over a decade the State could not make any selection of Dy. S. Ps through Public Service Commission as Jammu & Kashmir Police (Gazetted) Service Recruitment Rules, 1984 (sanctioned under Notification SRO dated 19.10.1984) were kept in abeyance vide Notification SRO No. 166 dated 22. 4. 1985. Further according to the State, the notification dated 22. 4. 1985 was issued in view of Union Government’s objection that the J & K Police (Gazetted) Service Recruitment Rules, 1984 would militate against the scheme of All India Police Services. State also took a stand that since the State of Jammu and Kashmir had been passing through the critical phase due to the militancy and its related activities and it was under these peculiar circumstances the State Government had to exercise its executive power conferred to it under the Jammu & Kashmir State Constitution for making emergent appointments so as to run the administration and to meet the growing challenges of militancy related activities. It was stated that the appointment of respondent No. 4 was one of such cases. State denied that the appointment of respondent No. 4 was due to any extraneous considerations or because of influence of his father.
4. Respondent No. 4 also defended his appointment by saying that it was prerogative of the Government to make appointment to the post of Dy. S. Ps. in the Police Department under its executive powers. He further stated that his appointment was made on account of immediate necessity of officers in the police department at the material time to combat the militancy in the State. He also stated that his two uncles namely, Sh Mir Mustaffa, Ex-MLA and Syed Ghulam Nabi, Ex-Joint Director, Information Department were killed by the militants. According to him under these circumstances he applied for being appointed as Dy. S. P in the Police Department so that he could serve the State and its people at the critical juncture, when the law and order situation in the State was dis-stabilized by the militants. In regard to his qualification he stated was dis-stablized by the militants. In regard to his qualification he stated that he is an Engineering Graduate having done Degree of Engineering in Electronic and Communication. He further stated that there was dearth of qualifies persons for manning the communication wing which was so essential for maintaining law and order and security in the State when the insurgents have been found to be fully trained and equipped with modern gadgets. He gave instances of certain appointments which were made by the Government without taking any resort to regular selection process. Further according to him the publication in newspaper was in a very bad taste. He also alleged that the writ petitions have been filed only to malign the name and reputation his father, who has served the State in various capacities with dedication and zeal and has not earned any adverse remark in his service career. He further stated that he Governor had approved his appointment after consideration of his case at various levels of the administration.
5. Learned Single Judge did not go in to the allegations made by the writ petitioners that the appointment of respondent No. 4 was made because of the influence of his father, who had been holding an important position in the Government when the appointment was made. Learned Single Judge did observe that the State did not follow the procedure which was required to be followed. Learned Single Judge also did not go into the stand of the Government that appointment of respondent No. 4 was make on account of situation prevailing in the State and the emergent steps were required to be taken. Learned Single Judge on the basis of the judgment of the Supreme Court of India in case H. C. Puttaswamy and Ors. v. The Hon’ble Chief Justice of Karnataka High Court and Ors., AIR 1991 SC 295 formed an opinion that it is possible to grant relief without upsetting the action of the State Government in appointing respondent No. 4. Accordingly the State was directed to consider the cases of the writ petitioners on the same lines as was done in the case of respondent No. 4.
6. As noticed above the State as well as the writ petitioners have come in appeal.
7. Learned counsel for the writ petitioners submitted that to their knowledge respondent No. 4 is not an Engineering Graduate. Learned Counsel submitted that the Magad University from where respondent No. 4 is alleged to have obtained the Degree in Engineering is not a University recognized by the State of Jammu and Kashmir. Further, according to the leaned counsel for the writ petitioners the counter affidavit filed by the State before the writ Court is conspicuously silent about the educational qualification of respondent No. 4, who has been picked up by the State Government to appoint him as Dy, S. P. without a competitive examination and without the approval of the Public Service Commission. Learned counsel further stated that the writ a petitioners are much more qualifies than respondent No. 4 and were/are always ready and willing to serve the State Police Department and to fight militancy, but they were not given any opportunity to compete. They submitted that the only qualification of respondent No. 4 was that he was the son of a Commissioner – cum Secretary to Government, General Administration Department.
8. Mr. J. P. Singh, learned counsel appearing on behalf of the State Government contended that the learned Single Judge has committed an error in law in directing the State Government to consider the case of the writ petitioners for their appointment as Deputy Superintendent of Police on the analogy of the appointment of respondent No. 4. He submitted that the appointment of respondent No 4 was in exercise of the State’s executive power, in view of the extra – ordinary situation prevailing in the State at the relevant time.
9. On the other hand, Mr. Z. A. Shah, learned counsel appearing on behalf of respondent No. 4 submitted that respondent No. 4 is an Engineering Graduate and has done B. E. (E&C) and his family and close relations have suffered at the hands of the militants and so the Government taking sympathetic view towards the children of the victims of the militant activities, decided to give Government jobs to them. Further according to the learned counsel, since the appellant was an Engineering Graduate in Electronics & Communications it was felt that his services could be used in the Tele-communication Wing of the Police Department and in these circumstances his appointment was made. He further contended that in case the appointment of respondent No. 4 is set aside it would be a complete wastage of the training which has been given to respondent No. 4, after his appointment. Learned counsel further submitted that since respondent No. 4 has joined police department, he has displayed highest degree of gallantry and professionalism in saving some precious lives of employees in the suicidal bomber attack on J & K Assembly on 1. 10. 2001 and in recognition of his sincerity and dedication he has been awarded certain cash awards and commendation certificates. Further submission of the learned counsel is that after eight years of his appointment, it would not be in the interest of justice to cancel his appointment.
10. We have heard the learned counsel for the parties and have gone through the entire record minutely.
11. The record of the writ Court shows that the first writ petition challenging the appointment of respondent No. 4 came to be filed on 15. 9. 1995 i. e. immediately after the news item in regard to the appointment of respondent No. 4 had appeared in the newspaper. The matter was listed before Single Judge on 25. 9. 1995 when the counsel for the State appeared and sought time to file objections and to produce the record relating to the appointment of respondent No. 4. Many adjournments were given to produce the record but the record was not produced. On 31. 1. 1996 on finding that the record relating to the appointment of respondent No. 4 was not being produced, despite a clear and un-equivocable direction to that effect as contained in order dated 21. 9. 1995 and 24.11.1995, learned single Judge was constrained to direct the Chief Secretary, Jammu & Kashmir Government to produce the record relating to the appointment of respondent No. 4, either personally or through and official duly authorized by him in this behalf. Record has further revealed that instead of making compliance of order dated 31. 1. 1996 the State came in appeal in L. P. A No. 34/96 and the same came to be disposed of on 17. 5. 1996. Original record in sealed cover was produce before the Division Bench. Accordingly. Letters Patent Bench disposed of the appeal and directed the learned Single Judge to reconsider the entire issue afresh with reference to the original record.
12. In the meantime three more writ petitions came to be filed and all the writ petitions have been disposed of upholding the appointment of respondent No. 4 and directing the State Government to consider the case of the writ petitioners on the same analogy as was done in the case of respondent No. 4. The order of the learned Single Judge does not indicate that the record relating to appointment of respondent No. 4 Nauman Thakur was seen as at the time of hearing of these appeals, the same was still lying in the sealed cover. On perusal of the record, We find that respondent No. 4 made an application on 9. 9. 1994 addressed to the Additional Chief Secretary, Home Department, J & K, Srinagar stating therein that his family/close relatives have suffered a lot. His two uncles, namely Mir Mustafa, Ex – MLA and Syed Ghulam Nabi, Ex – Joint Director, Information Department, were killed and attempts have been made to abduct him and his family is also a target. He further stated that he is a young man of 26 years and is an Engineering Graduate having done B. E in Electronics and Communication. He stated that he has an aptitude for police service and he would prove to be an asset to the Department as and when he is given a chance. He further stated that he has come to know that the Home Department has been appointing persons similarly situated as Dy, S. Ps. and so he requested his name be considered for the post of Dy. S. P in the Police Department. The application was put up before the Special Secretary and on the application there is a note of the Special Secretary for consideration of the application “Very early”. On 12. 9. 1994 special Secretary (Home) prepared a note on the basis of the application, which respondent No. 4 had submitted. In the note he re-produced what has been stated by respondent No, 4 in his application and in paras 6 & 7 he wrote that, “At present there are 10 vacancies in the Direct Recruitment Quota of Dy. S. P and the authorities may like to consider the representation of the individual”.
13. The note was put up before the Additional Chief Secretary (Home) on 13.9.1994 and in the file he recorded, “In view of what is stated above it would be in the interest of administration if Shri Nauman Thakur is considered for appointment as Dy. S. P against one of the 10 vacancies as noted at para 6”.
14. The matter was put up before H. E. Governor for approval and the initials of H. E. Governor below the note of Addl Chief Secretary (Home) indicate that the proposal was approved. The matter came up before the Addl Chief Secretary (Home) on 23.6.1995 and the note of the Addl Chief Secretary (Home) reads as under:
“Chief Secretary may kindly see before issuance of orders. As pointed out at para 6 the Police Department is in need of filling up 10 vacancies. One vacancy will be filled by the approval available at note para 10 and for the remaining 9 vacancies a committee can be constituted consisting of the DGP (Chairman) Commissioner/Secretary, GAD, Member Secretary and Addl DGP (CID) as Member, for filling up these vacancies on priority in view of the pressing law and order and security requirements and the inability of the PSC to hold a regular examination. ”
15. Accordingly the Addl Chief Secretary (Home) accorded sanction to the appointment of respondent No. 4 in the Police Department vide Govt. Order No. 207 – Home (P) of 1995 dated 6. 7. 1995. There – after the order was issued in favour of respondent No. 4 and he was appointed as Deputy Superintendent of Police in the Police Department.
16. It is not in dispute that when respondent No. 4 applied for being taken as Deputy Superintendent of Police, without under – going the process of selection his father Sh. G. M. Thakur was holding the rank of Commissioner/Secretary and on the date of appointment of respondent No. 4 he was holding the post of Commissioner/Secretary, General Administration Department in the State Government. The record shows that the Government had already started the process of direct recruitment to the various Gazetted Services including the Jammu & Kashmir Police (Gazetted) Services by holding a Competitive Examination to be held by the Jammu & Kashmir Public Service Commission in accordance with the Rules. It is in this regard the General Administration Department of the state Government issued Notification dated 17.7.1995 i. e. SRO 161 in exercise of the power conferred by the provisions of Section 124 of the Constitution of Jammu & Kashmir for holding the Combined Competitive Examination for various Services which included 36 posts in the J & K Police (Gazetted) Service. There is no explanation on the part of the Government that when the process for direct recruitment by holding a combined Competitive Examination by the J & K Public Service Commission had already been initiated, why respondent No. 4 was offered appointment without his undergoing process of selection. It is also not in dispute that immediately thereafter a request was made to the Public Service Commission vide communication No. GAD (Ser) KAS – 50/95 dated 17. 8. 1995, to hold Combined Competitive Examination for filling up the vacancies in various Gazetted Services. The record has further revealed that on 7. 9. 1995 the State Government informed the Public Service Commission that additional vacancies have also become available in various services and that may also be filled up on the basis of combined Competitive Examination. Forty – Two vacancies were indicated against J & K Police (Gazetted) Service. It is further not in dispute that Combined Services Examination was held and selection was made to the various services. As a result of the examination, the persons who came to be appointed as Deputy Superintendents of Police have been ranked junior to respondent No. 4, who has not under – gone process of selection.
17. It was projected before us by the learned counsel for the State and also by Mr. Z. A. Shah, learned counsel appearing on behalf of respondent No. 4 that the appointment of respondent No. 4 was in the nature of compassionate appointment as his family members had suffered in the militancy related actions. We however, find no merit in the contention of the learned counsel. The counter affidavit/ objections filed by the State in response to the notice of the writ petition does not indicate that the appointment of respondent No. 4 was on compassionate grounds because it was alleged by him that his two uncles were killed by the militants. Even in the application which he had submitted for his appointment, he had only stated that Mir Mustafa, Ex-MLA and Syed Ghulam, Nabi Ex-Joint Director, Information Department were his uncles, but had not indicated how closely they were related to them or whether respondent No. 4 was their dependant. We may also notice that for compassionate appointments, the Government has issued SRO 43 i. e. the Jammu & Kashmir (Compassionate Appointment ) Rules, 1994 with regard to the filling up the vacancies in the rank of non-gazetted or to class IV Post. The compassionate appointment is made available to a family, including family member of a Government employee who dies as a result of militancy related action and is not involved in a militancy related activities. The family is defined as ‘Spouse’, ‘son’, ‘daughter’, ‘adopted son’, ‘adopted daughter’, ‘sister’ or ‘brother’ wholly dependent on the deceased. The appointment of respondent No. 4 was not to the non-gazetted service but to the Gazetted service. Even if same criterion is applied to the appointment of respondent No. 4 he would not fall within the definition of a person, who is a family member of a Government employee, who died as a result of militancy related action. This clearly proves that the appointment of respondent No. 4 was solely because he happened to e the son of Mr. G. M. Thakur, who was holding the key post of Commissioner/Secretary, General Administration Department at the relevant time, and his appointment has to be dubbed as ‘back – door entry’ which he obtained in exerting pressure and influence. Respondent No. 4 may be a B. E. (E&C) and may have undergone Computer Course, but the writ Petitioners too were highly qualified. Sunil Kumar, writ petitioner in SWP No. 1125/95 was B.Sc, L.L.B and at the time of filing of the writ petition was pursuing M. B. A Course. Sameer Kumar Raina was a B.E. Mechanical and obtained the degree in distinction from Mysore University He had also obtained 1st Division in previous academic examinations from 1st Primary to 10+2. Along with the writ petition he annexed all the certificates showing that he was a brilliant student through out. Deepankar Singh, writ petitioner in SWP No. 503/1997, after completing his Graduation in Arts had done L. L. B and made a name in sports. He had participated in 29th National Schools Championship hold at Calcutta; All India Rural Sports 1985 – 86 held at Chittoor, Inter – University Kabaddi Tournament 1988 -89; 38th Senior National Development Championship Organized by Tamil Nadu State Kabbadi Association, in 1990; 39th National Kabbadi Championship held at Vijaywada in 1990; 40th National Kabbadi Championship held at Charu (Rajasthan) in 1992; and 41th, 42th, 43th and 44th National Kabaddi Championships held at different places. Parikshad Singh in writ petition SWP No. 915/98 was a Graduate and had done his M. B. A Course form the University of Jammu. He was a top sportsman for the years 1988 – 89 and 1989 – 90 and had won Gold Medal in 27th National Championships held at Chandigarh and two Gold, one Silver medal in All India Championship held at Mussuriee. He had also remained over – all Champion in 29th Junior and Senior National Roller Skating Championship. He represented India in World Cup at Barcellona in the event of Skating.
18. The record shows that along with the application respondent No. 4 had submitted his bio – data in which qualification mentioned was B. E (E&C) and additional qualification as Computer Course in D Base, Lotus, Wordstar from Apple Industries Ltd. However, neither copy of the B. E. Degree nor any certificate in regard to the computer course which he claimed to have under – gone was annexed. The only document was in the nature of a Certificate issued by M/s Ahuja Radios, 215 Okhla Industrial Estate, New Delhi certifying that respondent No. 4 had attended practical training for thirty – five days out of forty – two working days.
19. Writ Petitioners were similarly situated persons, and were more qualified than respondent No. 4 and had been waiting for years to compete and to secure the appointment in State police, but respondent No. 4 secured appointment without facing a fair selection process thereby adversely affecting the chances of other contenders. The writ petitioners were also not in a position to exercise and expert pressure because their father or any other relation was not holding an important position in the State Government, Whereas respondent No. 4 had the ability to exert pressure in full swing as his father at the relevant time was holding the key post of Commissioner/Secretary to Government, General Administration Department. The Constitution guarantees equality of opportunity to all the citizens. Every person fulfilling the qualification for a post has right to be considered. A person must get a chance to compete. Whatever be the nature of appointment, ad-hoc, temporary or regular, the guarantee of equality of opportunity has to be ensured. The fairest method an employer, especially the State Government, is expected to adopt is that the posts are advertised. Every eligible Candidate is given a reasonable chance to apply and the claim of all the eligible, persons is impartially and objectively considered by the competent authority by adopting a fair, just and reasonable criterion. The selection must be made in the order of merit. This is the scope and mandate of Articles 14 and 16 of the Constitution of India. In the case of respondent No. 4 mandate of Articles 14 and 16 was thrown to winds.
20. Faced with this situation, learned counsel appearing on behalf of respondent No. 4 contended that in various departments of the Government, many appointments were made without taking any resort to regular selection process. Reference in this behalf was made to the counter affidavit filed by respondent No. 4 wherein the names of as many as 20 persons were mentioned who had secured appointments without undergoing the process of selection. Learned counsel contended that if their appointment is valid then the appointment of respondent No. 4 too has to be declared to be valid in law. This contention is without any merit. This Court in the present appeals is considering the appointment of respondent No. 4 and the appointment of others is not in issue. The appointment of respondent No. 4 came to be challenged immediately on his appointment and in case he continued to hold the post of Deputy Superintendent of Police, and subsequently promoted to the post of Superintendent of Police, it is only because the matter remained pending in the court, firstly before the learned Single Judge and later in appeal before us. More so, simply because some persons got relief in violation of recruitment rules or in violation of Articles 14 and 16 of the Constitution of India, respondent No. 4 should also be granted the same relief, is an argument which cannot be accepted. The Supreme Court time and again has held that the guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of the Supreme Court that the same irregularity or illegality be committed by the State, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to direction to continuance and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. (See Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors., AIR 1996 SC 1175). Same view was reiterated by the Supreme Court of India in I.C.A.R and Anr. v. T. K. Suryanarayan and Ors., AIR 1997 SC 3108 and Union of India and Ors. v. Rakesh Kumar, AIR 2001 SC 1877.
21. It would not be fair, if we do not notice the judgment cities by the learned counsel for respondent No. 4. Learned counsel for respondent No. 4 cited the case H. C. Puttaswamy and Ors. v. The Hon’ble the Chief Justice of Karnataka High Court and Ors., AIR 1991 SC 295, wherein their Lordships of the Supreme Court did not quash the appointment in the peculiar circumstances of the case as the circumstances of the case justifies an humanitarian approach and the appellants therein deserved justice ruled by mercy. In Ashok Kumar Yadav and Ors. v. State of Haryana and Ors., AIR 1987 SC 857 the Apex Court held that the Government has the power to dispense with or to relax the requirement of any of the rules to the extent and with such condition as it may consider necessary for dealing with the case in a just and equitable manner. This judgment has no application to the facts of the present case because the object and purpose of conferring the power on the Government to the rule is to mitigate undue hardship in any particular case and to deal with a case in a just and equitable manner. If the Rule cause undue hardship, or operate in an inequitable manner only in that event the State Government has the power to dispense with or to relax the requirement of Rule. In Jacob M. puthuparambli v. Kerala Water Authority, AIR 1990 SC 2228 the appointments made were not quashed because they were made to serve the emergent situations which could not brook delay. However, such appointments were intended to be stop-gap temporary appointments and not long term ones as in the case of respondent No. 4 The appointment of respondent No. 4 was not a stop – gap temporary one but was a regular appointment and could have been kept vacant till regular selection was make through the Combined Competitive Examination which admittedly was held immediately after the appointment of respondent No. 4.
22. Lastly the learned counsel for respondent No. 4 submitted that the appointment of respondent No. 4 was in exercise of the executive Power of the State Government and is not liable to be quashed. In this regard we have only to cite the judgment of the Supreme Court in J&K Public Service Commission and Ors. v. Narinder Mohan and Ors., AIR 1994 SC 1808 wherein their Lordships of the Supreme Court were pleased to hold that in absence of statutory rules the State in exercise of Article 162 can create Civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution of India. In no circumstance the appointment of respondent No. 4 can stand the test of Articles 14 and 16 of the Constitution of India as neither the post was advertised nor similarly situated persons were given a reasonable opportunity to apply and compete with him.
23. In view of the above, We set aside the judgment of the learned Single Judge and allow the writ petitions out of which these appeals have arisen and quash Govt Order No. 207 – Home (P) of 1995 dated 6.7.1995 whereby the appointment of respondent No. 4 against the post of Deputy Superintendent of Police in the J&K Police Department was made. Since the appointment of respondent No. 4 has been quashed, the direction of the learned Single Judge to consider the claim of the writ petitioners on the analogy of respondent No. 4 having been appointed as Deputy Superintendent of Police, has been rendered infructuous. The appeals filed by the appellants are disposed of accordingly. No orders as to costs.