HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 346 OF 2005 Ankush Kohli Petitioners State & Ors Respondent !Mr. D.C. Raina,Senior Advocate with Mr. Vikas Mangotra, Adv ^Mr. Sanjay Kakar, GA Hon'ble MR. JUSTICE SUNIL HALI, JUDGE. Date: 31/07/2009 :J U D G M E N T :
Claiming to be an outstanding person for having participated in International
and National Sports Events in the Roller Skating and Roller Hockey, the
petitioner seeks his appointment in the category of outstanding sports person
under Jammu and Kashmir (Appointment of outstanding sports person) Rule, 1998.
The aforesaid rules contemplate appointment of persons in the category of sports
persons to be appointed against any vacancy in the state of Jammu and Kashmir.
Petitioner claims that having been recommended for appointment as Assistant
Manager, he has been offered the post of Receptionist in the Hospitality and
Protocol Department of which he is aggrieved and challenge the same in the
present writ petition.
After hearing the learned counsel for the parties, it transpires that
petitioner was recommended for the post of Assistant Manager in Hospitality and
Protocol Department by the committee constituted under the aforesaid Rules
headed by the Chief Secretary. This recommendation was made by the committee
after satisfying itself that the petitioner was an outstanding sports person as
defined in the definition clause of the aforesaid rules. The appointment of the
petitioner against the post of Assistant Manager could not fructify as a
consequence of which Government Order No. 157-GAD of 2005 dated 4-2-2005
appointing the petitioner as Receptionist in Hospital and Protocol Department in
the pay scale of Rs. 4000-6000 against the available vacancy was issued. There
is no dispute as contended by the petitioner that his case was recommended by
the committee for being appointed as Assistant Manager.
The respondents on the other hand, admit this position that the case of
petitioner was recommended by the committee for the post of Assistant Manager in
the Resident Commissioner’s Office, New Delhi. After the said recommendation,
the matter was taken up with the Hospitality and Protocol Department for
identification of the post. The information supplied by the department vide its
communication dated 9-11-2003 indicated that there was no post of Assistant
Manager available. The post of Receptionist was however available in the
Hospitality and Protocol Department. This fact was placed before the committee
vide decision dated 3-6-2004 that due to non-availability of post of Assistant
Manager, the petitioner be considered for appointment as Receptionist in the
Tourism Department. It is further averred that two more candidates namely Ankush
Soni and Tejinder Pal Singh having qualification of B.Com, Post Graduation
Diploma in Business Management and Diploma in Hotel Management and Degree in
Hotel Management and Diploma in Computer Application respectively have been
appointed as Receptionist in the Tourism Department. The petitioner can be
adjusted against the post of Receptionist as he was Degree holder in Hotel
Management, whereas Tejinder Pal Singh was a Degree holder in addition to
Diploma in Computer Application.
I have perused the record produced by the respondent which clearly reveals
that effort was made to identify the post of Assistant Manager in the
Hospitality and Protocol Department on the basis of recommendation made by the
committee, but due to non-availability of the post of Assistant Manager, the
said recommendation could not be carried out.
The question for consideration is whether the petitioner has a right to
seek appointment against the post of Assistant Manager as a matter of right. The
aforesaid Rules of 1998 are exception to the general rules of recruitment. The
appointment is made by the committee amongst the persons who are outstanding
person. Rule 3 of the aforesaid rules clearly envisages that appointment can be
made against any vacancy in non gazetted cadre. It does not envisage that a
person can be appointed on a post which is relatable to the qualification of the
person. Underlining object of granting this facility to an outstanding sports
person, is to encourage sports talent. A person has no right to claim a
particular post under the aforesaid rules. It is clearly revealed by the scheme
of the rules. The other features of the rule are that petitioner is not subject
to any test and the only qualification required for is that he should be
outstanding sports person.
Applying this test to the present case, it is clearly indicated that
respondents had recommended the appointment of the petitioner against the post
of Assistant Manager but due to non-availability of the said post, he has been
appointed as Receptionist. The other two outstanding persons named above who
have been appointed as Receptionist have the better qualification than the
petitioner and they stand appointed as Receptionist. So, on the face of it,
petitioner cannot claim any preference for being appointed as Assistant Manager,
when admittedly persons who have better academic qualification and are also
sports person have been appointed as Receptionist. Since there is no post of
Assistant Manager in the Hospitality and Protocol Department was available,
petitioner cannot claim any right to the said post. However, it is not disputed
by the respondents that the petitioner is entitled to be appointed as
Receptionist. A direction is required to be given to the respondents to appoint
the petitioner against the post of Receptionist to which he was found entitled
to by the committee vide its decision dated 3-6-2004.
Writ petition is disposed of with the direction to the respondents to
appoint the petitioner against the post of Receptionist. Let this exercise be
completed by the respondents within a period of two months from the date copy of
this order is received by them.
(Sunil Hali)
Judge
Jammu: 31-7-2009
RSB, Secy.