Jammu & Kashmir High Court
Mansoor Ahmed Lone vs State Of Jammu And Kashmir
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
. Hon?ble High Court of Jammu and Kashmir, Through Registrar general, Jammu/ Srinagar. 3. J&K Public Service Commissioner, Through its Secretary, Jammu/ Srinagar. 4. Sh. Abdul Rashid Malik, 5. Sh. Inder Singh. 6. Mr. Kishore Kumar, 7. Ms. Bala Jyoti, 8. Sh. Subash Chander Gupta, 9. Ms. Nighat Sultana, 2 10. Sh. Shujat Ali Khan, 11. Sh. Mohd Yousuf Wani, 12. Sh. Sanjay Parihar, 13. Sh. Mohd Ali Khan, 14. Sh. Pawan Dev Kotwal, 15. Sh. Syed Tawquuer Ahmed, 16. Sh. Yash Pal Bourney, 17. Sh. Jaffar Hussain Beg, 18. Sh. Ashok Kumar, 19. Sh. Sikandar Azam, 20. Mohan Singh Parihar, 21. Mohd Ibrahim, 22. Sham Lal Lalhal, 23. Mohd Ashraf Malik, 24. Kossar Ahmed Qureshi, 25. Ravinder Nath Watal, 26. Pervez Hussain Kachroo, 27. Mohd Kumar Sharma, 28. Zubair Ahmed Raza, 29. Madan Lal, 30. Yash Pal Kotwal, 31. Ms. Jeema Bashir, 32. Jawad Ahmed, 33. Sobha Ram Gandhi, 34. Mohd Yousuf Allie, 35. Jatinder Singh Jamwal, 36. Varinder Singh Bhau, 37. Khalil Ahmed Choudhary, 38. Rajiv Gupta, 39. Riaz-Ul-Haq Mirza, 40. Rupali Ratta, 41. Sunil Gupta, 42. Ranbir Singh Jasrotia, 43. Ritesh Kumar Dubay, 3 44. Mohd Ahmed Choudhary, 45. Kamlesh Pandita, 46. Kusum Lata Pandita, 47. Sarfaraz Hussain Shah, 48. Masrat Roohi, 49. Balbir Lal, 50. Ashwani Kumar Sharma, 51. Mohd Rafi Chak, 52. Ajaz Ahmed Khan, 53. Deepak Sethi, 54. Sunil Sangra, 55. Mohd Ashraf, 56. Abdul Nasir, 57. Mohd Anwar Al-Nasir, 58. Surinder Singh, 59. Sh. Mohd Amin Mir S/O Sh. Mohi-Ud-Din Mir R/O Donipawa Anantnag. 60. Sh. Ajay Kumar S/O Sh. Varinder Gupta R/O Plot No. 40, Sarwal Colony, Jammu. 61. Sh. Sudhir Kumar S/O Sh. Kirpa Ram Sharma R/O Miran Sahib, Jammu. 62. Sh. Gowher Majeed Dalal, S/O Abdul Majeed Dalal, R/O BOP Shangas, Anantnag. 63. Vishaish Kumar Parihar, S/O Gian Chand Parihar C/O Ram Nagar Chowk Ramlala Mandir Street, H. No. 159 W. No. 4 Udhampur. 64. Shiekh Javaid Alam, S/O Sh Shiekh Abdul Samad R/O Narsingh Garh, Srinagar. 65. Mehraj-ud-Din Sofi, S/O Gh. Ahmed Sofi, R/O Friends Colony, HMT Road, Srinagar. 66. Sh. Manjeet Singh Manhas S/O Sh. Ram Rattan Manhas, R/O H. No. 121, Subash Nagar Colony, Jammu. 67. Sh. Ab. Majeed Dar, 4 S/O Sh Gh Ahmed Dar R/O Jaggar Pora, Handwara, Kupwara. 68. Sh Om Parkash S/O Sh Badri Nath R/O H. No. 72 Maheshpura, Jammu. 69. Sh. Som Lal, S/O Jumma Ram Adelhar, R/O Bishnah, jammu. 70. Sh. Pardeep Kumar, S/O Sh. Kashmiru Ram R/O Village Sari Rakhwalan Bhadrore, Jammu. 71. Sh. Javeed Ahmed Geelani, S/o Sh Shamasu Din Geelani, c/o Court of Chief Judicial Magistrate, Handwara. 72. Sh. Om Parkash S.O Sh. Chuni Lal R/O Moti Lodge, Karan Nagar, Jammu. 73. Sh. Naushad Ahmed S/O Sh. Sharief Ahmed R/O Lawyers Chamber, Court Complex, Mubarak Mandi, Jammu. 74. Sh. Mohd Ashraf Bhat S/O Gh. Hassan Bhat, R/O Khanabal Mohalla Metoid, Anantnag, Kashmir. Respondents.. 75. Sh. Sanjay Dhar 76. Sh. Suresh Chander Katal S/O Sh. Swami Raj Katal, R/O 183- B Ramvihar, Janipur Jammu. Proforma Respondents.. LPASW No.S-205/2007 1. Mansoor Ahmed Lone S/o Muhammad Ramzan Lone, R/o Village Merchipora, Tangmarg, Distrrict Baramulla. 2. Imtiyaz Ahmed Lone, S/o Ghulam Nabi Lone, R/o Lone Cottage, 53- Mini Housing Colony Near Vila Mashid Chanapora, Srinagar. 3. Umi Kulsoom Mir D/o Ghulam Qadir Mir, R/o Teng Bagh Khayam Chowk, Srinagar. Appellants.. Vs. 1. State of Jammu and Kashmir through Commissioner/Secretary to Government, 5 Department of Law, Civil Secretariat Srinagar/Jammu. 2. Jammu and Kashmir High Court, Through its Registrar, Srinagar. 3. J&K Public Service Commission Polo View, Srinagar, Through its Chairman. Respondents.. N. Paul Vasanthakumar, CJ These writ appeals are preferred against the common order dated 10.11.2005 passed by the learned single Judge in SWP Nos.2430 of 2000 and 765 of 2002, wherein the appellants have prayed for issuing a writ of mandamus directing the respondents to treat 22.5.1996 and 1.10.1996 as dates of first appointment of 1st and 2nd appellants and appellants 3 to 6 respectively in LPASW No.7 of 2006 and 22.5.1996 as the date of first/temporary appointment of appellant in LPASW No.205 of 2007 as Munsif and consequently fix seniority and placement in the gradation list prepared by the High Court and for direction to consider the appellants for promotion as Sub Judge after fixing seniority as claimed above over and above the persons, who came to be appointed after 22.5.1996 and 1.10.1996 respectively. The said writ petitions are dismissed. 2. The brief facts necessary for disposal of these writ appeals are as follows: (a) The appellants and private respondents were directly recruited as Munsifs after being selected on the basis of selection process undertaken by J&K Public Service Commission in the year 2000, in accordance with the Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967. Before they were substantively appointed the appellants were appointed as Munsifs on ad hoc basis on the basis of the selection made by the High Court by order dated 22.5.1996 and 1.10.1996 respectively as some of the posts of Munsifs in the State lower judiciary were lying vacant. (b) Prior to their appointment on ad hoc basis, the High Court issued an advertisement inviting advertisement for filling up the post of Munsif on ad hoc basis. After receiving applications and conducting interview the appellants and others were selected and appointed on ad hoc basis. They were also directed to undergo basic training and after completion of training, posting orders were issued and they joined in the respective place of posting. The ad hoc service continued until the posts were advertised by the J&K Public Service Commission and selection and appointments were completed. (c) The appellants also applied for selection and appointment on substantive basis, pursuant to the advertisement issued by the J&K Public Service Commission vide notification dated 14.5.1998. The private respondents also participated in the selection conducted by the J&K Public Service Commission and they were also appointed on permanent/regular basis by order dated 20.4.2000. (d) The claim of the appellants is that their ad hoc service should also be counted along with the substantive/ regular service while reckoning seniority, as they have been appointed under Rule 42A of the J&K Civil Service (Judicial) Recruitment Rules, 1967; attended training; and therefore their selection and appointment on ad hoc basis was also in accordance with rules. 3. The said contention was opposed by the State, Public Service Commission, High Court, and by the private respondents by contending that the appellants having been appointed as Munsif on adhoc basis, which is a stop-gap arrangement in accordance with Rule 42A, they cannot claim any right based on the ad hoc appointment and the procedure for selection to the post of Munsif for filling up the substantive vacancy are entirely different, which are more rigorous in nature, and merely because the appellants were appointed on ad hoc basis and they were selected by the J&K Public Service Commission for substantive appointment, their earlier services cannot be reckoned for the purpose of seniority and prayed for dismissing the writ petition. 4. On the above pleadings, the learned single Judge considering the case of either parties, dismissed the writ petitions by common order dated 10.11.2005. Aggrieved by the said decision, the writ petitioners have preferred the present LP appeals. 5. Mr.K.S.Johal, learned Senior Counsel appearing for the appellants in LPASW No.7/2006 and Mr.Z.A.Shah, learned Senior Counsel appearing for the appellants in LPASW No.S-205/2007 contended that the appellants? appointment on ad hoc basis having been made in terms of the Recruitment Rules by following due procedures, and they having been subsequently appointed in substantive vacancies, their initial appointment on ad hoc basis cannot be treated as outside the purview of the rules. Hence, they are entitled to count their ad hoc service along with their substantive/regular appointment for the purpose of seniority, particularly when Recruitment Rule is silent about fixing of seniority. The learned Senior Counsels further submitted that the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956 which deals with seniority has no application, and even if it is applied, as per Rule 23 their past services/ad hoc service are bound to be counted for the purpose of seniority. The learned counsels relied on certain decisions in support of their contentions. 6. Mr.Gagan Basotra, learned Senior Additional Advocate General appearing for the State Government; Mr.A.V.Gupta, learned Senior Counsel appearing for the High Court; Mr.D.C.Raina, learned Senior Counsel appearing for J&K Public Service Commission; and Mr.Ashok Parihar and Mr.Rajnish Parihar, learned counsels appearing for the private respondents on the other hand contended that the ad hoc service rendered by the appellant pursuant to the selection made as a stop-gap arrangement will not confer any right either for seeking regularization or for claiming substantive appointment, and the appellant having participated in the selection conducted by the J&K Public Service Commission pursuant to the notification dated 14.5.1998, and having been selected and appointed in substantive vacancies based on the merit assessed by the Public Service Commission, they cannot claim to count their earlier service for the purpose of seniority, and if the same is allowed, it will upset the merit assessed by the Public Service Commission and seniority is to be granted only on the basis of the merit list drawn by the Public Service Commission and the said issue is no longer res integra. The learned counsels also submitted that the appellants having participated in the selection made by the J&K Public Service Commission and having been selected and assigned rank in the select list, it is not open to them to turn around and contend that they should be given seniority counting ad hoc service as the stand of the appellant is hit by the principle of estoppel. The learned counsels relied on several judgments in support of their contentions. 7. The point arises for consideration in these writ appeals is as to whether the appellants are justified in claiming to count the ad hoc service rendered by them along with substantive service, for the purpose of seniority? 8. The facts in these cases are not in dispute. The appellants were initially appointed as Munsifs on ad hoc basis as no reserve list candidate was available in previous selection list drawn for filling up the vacant posts, though they served as ad hoc Munsifs when applications were called for by the J&K Public Service Commission on 14.5.1998 for filling up the substantive vacancies, the appellants applied to appear for written test, viva-voce and were selected and appointed in substantive vacancies based on the merit determined by the Public Service Commission. 9. The appointment of the Munsifs in the State is governed by the Jammu & Kashmir Civil Service (Judicial) Recruitment Rules, 1967. Rule 4 deals with the method of recruitment, which states that recruitment to the service shall be made on the basis of competitive examination conducted by the Commission (Public Service Commission). Rule 7 prescribes age qualification, which states that the person to be recruited shall not be more than 35 years of age on the first day of January of the year in which advertisement notice for the post of Munsifs is issued. Procedure for conduct of examination is mentioned in Part IV i.e.,Rules 10 to 13. Rule 10 mandates conduct of written examination as per the syllabus mentioned in Rule 11 Appendix-A. Rule 13 states about the marks in the written examination and viva-voce. As per the said rule, examination will carry total of 1040 marks including 140 marks for viva-voce. Minimum qualifying marks subject-wise and in aggregate are to be fixed by the Public Service Commission after considering the results of the examination and number of vacancies to be filled. The candidates, who failed in two or more subjects according to the standard fixed by the Public Service Commission, shall not be eligible either for viva-voce or for selection. Based on the overall marks in the written examination as well as viva-voce, merit list is to be drawn by the Commission and recommendations for appointment are to be made by following the reservation rule. Under Rule 17, the written examination papers shall be set and marks awarded by the examiners, appointed by the Public Service Commission. 10. The object of the examination is to test the practical ability of the candidates rather than their theoretical knowledge. Each paper of written test shall be of three hours duration and after selection, appointment orders are to be issued after assessing physical fitness. The select list/final list will thus be drawn as per Rule 39. Practical training is to be arranged under Rule 40 and the list of candidates so selected shall remain in force for one year, or till it is exhausted by appointment of candidates mentioned in the list, whichever is earlier as per Rule 41. As per Rule 42, the High Court can recommend for appointment, in case of vacancy, from the list maintained. All such appointments are to be notified in the official gazettee. The appellants were appointed as ad hoc Munsifs in terms of Rule 42A. Rule 42A is an exception to the general rule, which reads as follows: 42A. (1) When there is no candidate left from the select list mentioned in rule 39 or such candidate, though available, declines or is unable to take up the appointment and the Court isof the opinion that a fresh list of select candidates cannot be procured under these rules without an amount of delay which is not desirable in public interest, the Government on the recommendation of the High Court, may, notwithstanding anything contained in these rules, sanction a list to be called an ad hoc list of candidates for appointment as Munsifs: Provided that no person shall be included in the ad hoc list who is more than 32 years of age on the first day of January of the year in which the list is sanctioned and does not fulfil other conditions laid down in rules 6, 8 and 9 of these rules: Provided further that, before drawing up the list of ad hoc candidates as aforesaid, the High Court shall cause a notice of not less than 15 days duration to be given in the Government Gazette or in a newspaper having wide circulation in the State, inviting applications for the purpose and interview the eligible applicants with a view to assessing their relative merit and ability. (2) The ad hoc list sanctioned under sub-rule (1) shall be in force until a select list is sanctioned under rule 39. For this purpose reference shall, if not already made, be made to the Commission, as soon as may be after the ad hoc list is sanctioned: Provided that if the select list falls short of the existing number of vacancies the ad hoc list shall continue to be operative, till another select list is sanctioned under rule 39 with effect from 28.12.1978. (3) Pending finalization of the select list aforesaid, appointments to be service shall be made by the Governor on the recommendation of the High Court from amongst persons included in the ad hoc list and every such appointment shall, unless sooner terminated, continue for a period of 2 years: Provided that the Governor in consultation with the High Court, and the Public Service Commission may for sufficient reasons extend the period of such appointment beyond two years. (Emphasis supplied) From the above rule viz., Rule 42A it is evident that the Munsifs in J&K can be appointed on ad hoc basis only if there is no candidate available in the select list prepared in terms of the recruitment rules, which was to be treated as the final list under Rule 39, and candidates can be appointed on ad hoc basis upto the age of 32 alone. The appointee can continue until a select list is drawn under Rule 39 and the ad hoc appointee can continue only upto two years and only in exceptional circumstances the said period of two years can be extended on the recommendations of the High Court by the Governor. 11. Admittedly the appellants were appointed as ad hoc Munsifs under Rule 42A on the following circumstances: (1) There was no candidate available in the select list drawn in accordance with Recruitment Rules by conducting rigorous written test, viva-voce, and other methods of recruitment. (2) Due to the availability of vacancies, considering the exigency as a stop-gap arrangement, the appellants were selected and appointed by the High Court only as ad hoc Munsifs, and in the appointment order itself the appointees were put on notice that their appointment is ad hoc for a limited period and they can continue till they are regularly selected by the Public Service Commission. The J & K Civil Service (Judicial) Recruitment Rules, 1967 do not deal with seniority of the persons appointed, and only in J&K Higher Judicial Service Rules, 1983 is having separate rule viz. Rule 17 for fixing seniority of the Officers of higher judicial service. 12. In the absence of specific provision under the J&K Civil Service (Judicial) Recruitment Rules, 1967, how to draw the seniority can be ascertained from the General Rule applicable to Civil Servants, which is called the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Under the said rules, Rule 2(i) defines Recruited direct? which states that a candidate recruited otherwise than by promotion or by transfer will be treated to be recruited direct?. Under Rule 3(2) the said rule shall apply to all services and to all persons appointed to any services, except to the extent expressly stated in the rules or expressly provided in any rule. Rule 23 deals with appointment of members. Insofar as appointment of Munsifs is concerned as already stated, the special rule is in force viz., Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967, which was notified with effect from 4.1.1968. Therefore for appointments, the general rule viz., Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 is not applicable and only for seniority the said rule is applicable. Rule 24 deals with seniority, which reads as follows: 24. Seniority (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category of the grade as the case may be.Note 1. The rule in this clause will not effect the seniority on the date on which these rules come into force of a member of an service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force. Interpretation.- The words date of first appointment occurring in the above rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and/or passing of any examination or examinations and or tests.The said rule clearly states that the date of appointment will mean the date of first substantive appointment, which otherwise known as permanent appointment. Thus, persons appointed on ad hoc basis having not been appointed permanently, cannot have a right to claim seniority from the date of ad hoc appointment. Meaning of the word ad hoc itself is clear that it is temporary/stop-gap or provisional. Thus, it is beyond doubt that a person appointed on ad hoc basis has no right to claim the services rendered on ad hoc basis, to be counted along with regular/permanent appointment. 13. The procedure to be followed for appointments is different for substantive appointment and for ad hoc appointment. The persons appointed on regular basis must undergo rigorous written test followed by viva-voce, and they must have secured minimum marks not only in the written test, but also in viva-voce, and merit list being drawn on the basis of the marks secured in both written and viva-voce test, they should be treated as regular appointees. The person selected on ad hoc basis by not following the above said process of selection cannot be allowed to have a march over the regular appointees, even though the ad hoc appointees were also selected regularly in subsequent selection. The seniority list having been drawn on the basis of the marks secured by each candidate in the regular process of selection, and the appellants having secured lesser marks when compared to seniors in the selection conducted by the Public Service Commission, they are not justified in contending that their earlier ad hoc service should also be counted for seniority along with their regular service rendered after selection by the Public Service Commission. The claim made for extending the ad hoc service along with substantive appointment for seniority is in contravention of Rule 42A itself. The temporary nature of appointment made without following the procedures prescribed under the rules for regular appointment will not confer any right to claim seniority. 14. The issue as to whether the ad hoc appointee can claim seniority over regularly selected person in any service, is no longer res integra. (a) In AIR 1988 SC 162 (State of U.P. v. Rafiquddin), the Hon?ble Supreme Court held that once an incumbent is appointed to the post as per the rule, his seniority shall be counted from the date of his appointment. If the initial appointment is only ad hoc and not according to rule and made as stop-gap arrangement, the officiation in such post cannot be taken into account for considering seniority. (b) In the decision reported in AIR 1992 SC 1823 (State of Tamil Nadu v. E.Paripoornam) the Hon?ble Supreme Court held that the list of approved candidates drawn by the Public Service Commission in the order of merit and accepted by the Government should be the basis for determining interse seniority and it is not open to the parties to claim that their temporary service should be counted for the purpose of determining the seniority in the cadre. (c) In (1993) 2 SCC 213 (Dr.M.A.Haque v. Union of India) similar issue arose wherein certain Medical Officers were recruited on ad hoc basis as Assistant Medical Officers between 1968 and 1984. The UPSC was recruiting from time to time candidates, but such direct recruits were not sufficient to fill up the posts and the vacant posts were always filled up by ad hoc appointees. The ad hoc appointees sought for regularization by filing writ petition. The Supreme Court had given guidelines for such regularization. The Supreme court held that only all those candidates who had gone through Public Service Commission in accordance with the rank given by the Public Service Commission be placed in the seniority list above the other candidates. (d) In AIR 1991 SC 284 (K.C.Joshi v. Union of India), it was held that the seniority is to be counted from the date on which the appointment is made to the post in accordance with the rules. The temporary service rendered prior to the appointment shall not be counted towards seniority or the temporary service even if counted towards probation, shall not be counted for the purpose of seniority. (e) In AIR 2009 SC 2809 : (2009) 6 SCC 428 (M.P.Palanisamy v. A. Krishnan) in respect of Post Graduate Teachers appointed on temporary basis under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, 1955, who were absorbed permanently later on, and the persons selected through TNPSC. The Honourable Supreme Court held that even if the temporarily appointed PG Assistants were regularized, they cannot get seniority over the candidates selected by TNPSC and they should be placed below the TNPSC candidates in the seniority list. In paragraph 47 (in SCC) the Supreme Court held thus, 47. In a recent decision in K. Madalaimuthu v. State of T.N. this Court again reiterated the principles of fixation of seniority in case of the persons, who were temporarily appointed under Rule 10(a)(i)(1). This Court relied on V. Sreenivasa Reddy v. Govt. of A.P., as also, State of T.N. v. E. Paripoornam. Both these cases dealt with Rule 10(a)(i)(1). Distinguishingly, relying upon the case law relied on by the respondents i.e. L. Chandrakishore Singh v. State of Manipur this Court came to the conclusion that the High Court had erred in holding that the temporary appointees under Rule 10(a)(i)(1) were entitled to the seniority right from the date of their first appointment and not from their regularisation. Though the controversy involved is slightly different, the general principles would undoubtedly apply. In the said case, the High Court held that the persons granted regularization, without being selected by TNPSC, must be placed below the candidates selected through Public Service Commission. The said view was upheld by the Honourable Supreme Court in paragraph 50 of the Judgment. (f) In (2011) 3 SC 267 (Pawan Pratap Singh v. Reevan Singh) the Hon?ble Supreme Court held that the date of substantive appointment is the safest criteria for fixing seniority. (g) In (2012) 8 SCC 633 (State of Haryana v. Viay Singh) it was held that a person appointed purely on ad hoc basis for a fixed period by an authority other than one who is competent to make regular appointment to the service, and such appointment is not made by the specified recruiting agency, is entitled to have his ad hoc service counted for fixation of seniority and the direction issued by the High Court to count the said service for seniority was set aside. (h) In AIR 2013 SC 234 (Bhupendra Nath Hazarika v. State of Assam) it is held that regular batch selectee will get seniority over special batch recruits and even relaxation of the rule for giving seniority to the special batch recruits was not approved, by holding that if a particular rule empowers the authority to throw all the rules over board, in all possibility it may not withstand close scrutiny of Article 14 of the Constitution of India. 15. Applying the above said proposition of law laid down by the Honourable Supreme Court to the facts of these cases, we are of the firm view that the learned single Judge was justified in rejecting the claim of the appellants. 16. Yet another point to be considered in these writ appeals is, whether the appellants are justified in claiming seniority contrary to the merit determined by the Public Service Commission and whether the appellants? conduct is opposed to the principle of estoppel? 17. It is not in dispute that the appellants while serving as ad hoc Munsifs, applied for substantive appointment in terms of the notification dated 14.5.1998 issued by the J&K Public Service Commission and they also participated in the competitive examination in terms of the Recruitment Rules. Based on the marks secured by the appellants in the competitive examination, they were called upon to attend viva-voce test along with other candidates and they also subjected themselves to oral test, for which marks were awarded. The merit list was prepared by the Public Service Commission based on the marks secured by all the candidates (written test as well as viva-voce) and selected the persons, including the appellants, based on the ranks secured by them in the said selection. They were also appointed substantively in the year 2000 based on the said select list and they have also joined in the substantive post, attended training, and thereafter the appellants have chosen to claim seniority by counting ad hoc service along with regular service rendered after substantive appointment. The said claim was rejected by the High Court vide order No.11032-36195 dated 15.12.2000. The said conduct of the appellants viz., submitting application to Public Service Commission, participating in the selection process without demur, accepting the merit list, and joining in the substantive posts, clearly demonstrate that the appellants? acquiescence for selection to the substantive appointment, and thereafter the appellants are turning around and claiming seniority to count their earlier temporary service along with regular service and the same is impermissible. It is well settled principle of law that a candidate having participated in the selection process is estopped from raising the plea contrary to the selection made. On this point, the decisions reported in (2008) 4 SCC 171 (Dhananjay Malik v. State of Uttaranchal) and (1995) 3 SCC 486 (Madan Lal v. State of J&K) can be relied on. 18. (i) In AIR 2010 SC 3714 (Ramesh Kumar v. High Court of Delhi) it is held that if the statutory rules prescribe a particular mode of selection it has to be given strict adherence and a person participated in the selection cannot be permitted to take U turn and challenge the selection process. (ii) In (2011) 1 SCC 150 (Vijendra Kumar Verma v. Public Service Commission) it is held that when all the candidates knew the requirement of selection process and were also fully aware that they must possess the basic knowledge of computer operation and having appeared in the interview, faced the questions and taken a chance without any protest at any stage, cannot turn back to state that the procedure adopted was wrong and without jurisdiction. In the said judgment the Supreme Court followed its earlier decisions reported in (1976) 3 SCC 585 (Dr.G.Sarana v. University of Lucknow) and (2008) 7 SCC 70 (P.S.Gopinathan v. State of Kerala). (iii) In (2008) 7 SCC 70 (P.S.Gopinathan v. State of Kerala), in paragraph 44 the Apex Court held thus, 44. Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being G. Sarana (Dr.) v. University of Lucknow. 19. From the principles laid down by the Honourable Supreme Court in the above referred decisions, it is evident that the learned counsel for the respondents are justified in raising the plea of estoppel against the appellants from claiming to count ad hoc service along with regular service for the purpose of fixing seniority merely because the appellants were also selected by the Public Service Commission during the regular selection. 20. In the light of the above findings we are not persuaded by the appellants to upset the orders of the learned single Judge, impugned in these LP appeals. There is no merit in the LP appeals and consequently the same are dismissed. No costs. (Bansi Lal Bhat) (N. Paul Vasanthakumar) Judge Chief Justice Jammu, 04.03.2015 Anil Raina, Secy ?HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 105 OF 2014 Rajesh Kumar Petitioners Union of IndiaThrough Secretary,Ministry of Personnel. P. G. & Pension, Department of Personal and Training, Govt. of India, Central Civil Secretariat, New Delhi. Respondent !Mr. N. Dubey, Advocate ^Mr. Ravinder Kumar Gupta, CGSC Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice, Honble Mr. Justice Dhiraj Singh Thakur, Judge, Date: 04.03.2015 :J U D G M E N T :
Rajesh Kumar , Age 26 years S/O Sh. Ashok Kumar, R/O Ward No. 16 Shiv Nagar, Kathua.
Appellant.
Vs.
1. Union of India Through Secretary, Ministry of Personnel. P. G. & Pension, Department of Personal and Training, Govt. of India, Central Civil Secretariat, New Delhi.
2. The Staff Selection Commission Through Regional Director (NR) Govt. of India Block No. 12, CGO Complex, Lodhi Road, New Delhi- 110504.
3. The Deputy Director Staff Selection Commission Block No. 3, Ground Floor, Kendriya Sadan, Sector-9, Chandigarh.
4. The Commanding Officer, FTR HQ BSF, Jammu PO BSF Paloura Camp Jammu, District Jammu- 181124.
Respondents..
N. Paul Vasanthakumar, CJ
1. This Letters Patent Appeal is filed challenging the order of the learned Single Judge made in SWP no. 1363/2013 dated 03.12.2013 wherein the learned Single Judge dismissed the writ petition filed by the appellant praying for a writ of mandamus directing the respondents to select/recruit and enroll the appellant as Constable ( General Duty) in any one of ITBPF, BSF, CISF, CRPF, SSB and Rifleman (GD) in Assam Rifles with effect from 31st September, 2011 with all consequential benefits.
2. The case of the appellant before the learned Single Judge was that he is a permanent resident of village Tridwal Tehsil and District Rajouri of Jammu and Kashmir State. He applied for recruitment in pursuance to the notification issued by respondent no.2, inviting applications in all States of India totaling 39574 posts for male candidates through Employment News dated 3-9 December, 2011, as Constable GD. The eligible candidates were to be recruited on the basis of competing in physical standard test, physical efficiency test, written examination and finally the medical examination. The appellant applied in un-reserved category and he was called upon to undergo the physical standard test and physical examination test at CRPF Camp, Bantalab, Jammu during February/March, 2012. The appellant was examined by the Recruiting Medical Officer of respondent no.3 and he was found to be fit. The height and chest measurement of the appellant was taken which was found to be of the prescribed physical standard. The appellant was made to run 5 kilometers which he completed within 24 minutes. The appellant was thereafter subjected to Biometric test and at that time also he was thoroughly examined by the officers of the Recruiting Commission deployed at CRPF Camp Bantalab, Jammu. After satisfying the physical standard test, respondent no.3 called upon the appellant to undergo the physical efficiency test. The appellant cleared the high jump and long jump and thereafter he was called to run one mile within 6.30 minutes besides undertaking high jump and long jump. According to the appellant he cleared the physical efficiency test to the utmost satisfaction of the respondents and thereafter he was called upon to appear in the written examination on 22.04.2012 at Dogra Higher Secondary School, Shastri Nagar, Jammu between 10 a.m to 12 noon under Ticket No. 1010109 and Roll no. 1004518819 and in the written examination also he was declared successful. Thereafter the appellant was called upon to appear in the medical examination against State wise vacancies in which the appellant figured at Record No. 2160 and 5377. He was ordered to appear for the medical examination at Medical Centre ( 008-005) FTR, HQ BSF, Jammu, P.O. BSF Paloura Camp, Jammu by respondent no.3 through his letter dated 07.07.2012 and the Medical Board diagnosed that the appellant is suffering from poor distant vision ( rt. Eye 6/9) and he was also diagnosed to be suffering from Knock-knee disability. The report was issued on 23.07.2012. The appellant filed an appeal before respondent nos. 2 and 3 based on which he was directed to appear before a Review Medical Board at C/H Jallandhar (Punjab) which was conducted on 28.05.2013. The Review Medical Board found that the appellant is not suffering from inferior eye vision of right eye, however, the disability of Knock-knee was reiterated.
3. According to the appellant, in order to remove the suspicion of suffering from disability of Knock-knee, he was assessed medically by Government Hospital at Kathua on 30.07.2012 and after assessment it was certified that appellant was not suffering from any Knock-knee disability. As the appellant was not selected due to the said disability preferred the writ petition which was dismissed by the learned Single Judge against which this appeal is filed.
4. Mr. N.Dubey, learned counsel appearing for the appellant contends that the appellant having been found fit in physical efficiency test and having come successful in the high jump, long jump and the running competition twice, the finding given by the Medical Board regarding his Knock-knee disability is erroneous and even the Government Hospital at Kathua assessed as to whether the appellant is suffering with any disability particularly Knock-knee and the said aspect assessed and certified on 30.07.2012 that the appellant was not suffering from any Knock-knee disability and, therefore, denial of selection and appointment to the appellant on the said ground of Knock-knee disability is illegal, arbitrary and the learned Single Judge dismissed the writ petition merely relying on the averments made in the counter affidavit filed by the respondents herein, the appellant is entitled to succeed.
5. Mr. Ravinder Kumar Gupta, learned counsel appearing for the respondents, on the other hand, submitted that the appellants medical fitness was assessed by the Medical Board initially which found two disabilities, namely, poor distant vision (Rt. Eye 6/9) and Knock-knee and the request having been made by the appellant to re-assess his medical fitness, the Review Medical Board again assessed the medical fitness of the appellant and it was certified that the appellant is having the disability of Knock-knee and, therefore, the appellant was not found medically fit for selection and appointment as Constable in BSF and the same was rightly appreciated by the learned Single Judge and the order needs no interference.
6. We have considered the rival submissions, perused the averments contained in the counter affidavit and other documents relied on.
7. The applications were called through Employment News dated 3-9 December, 2011 for the posts of Constable (GD), fixing the last date as 04.01.2012. In the advertisement notice itself the mode of selection, namely, scheme of examination, is mentioned. In clause 8 (I) the physical standards test, 8 (II), physical efficiency test, 8(III) written examination and 8(IV) medical examination are prescribed. The appellant has come out successfully in the physical standards test, physical efficiency test, written examination and also appeared for medical examination but due to the disability of Knock-knee he was found unfit by the selection Board. It is stated in Clause 8 (IV) that the selected candidates will be medically examined to answer their physical and medical fitness as prescribed in the eligibility conditions. Temporary Unfitness will not be allowed. However, candidates declared unfit may file an appeal/representation within 15 days of rejection by the medical Board . However, such candidates, if found fit by appeal panel in due course, will only be recruited against the wastage. Clause 8 (IV) (iii) fixes the medical standards, i.e. (a) Eye sight, the minimum distant vision should be 6/6 & 6/9 of 2 eyes without correction i.e. without wearing of glasses. The candidate should possess high COLOUR VISION; (b) the candidates must not have knock knee, flat foot, varicose vain or squint in eyes, bow legs, inability to close the left eye, inability to flex the fingers properly and any other obvious deformities. They must be in good mental and bodily health and free from any physical defect which is likely to interfere with the efficient performance of the duties.
8. On perusal of the above medical standards prescribed, it is evident that the candidates must not have Knock-knee. Here in this case the Medical Board appointed by the selection Board assessed the appellant which found on 23.07.2012 that the appellant is having the disability of Knock-knee and also found poor distant vision (Rt. Eye 6/9). The appellant being not satisfied with the said Medical Board report in terms of the conditions contained in the advertisement notice, appealed before the authority concerned and after considering the said appeal/representation the review was ordered by the Review Medical Board consisting of six Medical officers. The said medical Board, after assessment, gave a finding that the appellant is having the disability of Knock-knee and certified that the appellant is medically unfit on account of Knock-knee. The said assessment was made by the Review Medical Board on 28.05.2013. The appellant also signed the said report after he received a copy of the said report.
9. It is the contention of the appellant that he obtained a medical certificate from another Medical Officer on 30.07.2012, certifying that the appellant is medically fit for the post of Constable (GD). The said medical certificate will not give any support to the appellant in respect of his eligibility for selection/appointment in terms of the notification issued as the medical examination to assess the candidates physical and medical fitness must be by the Medical Board constituted by the selection authority and no other person. The said Medical Board found that the appellant is unfit. The grievance of the appellant to re-assess his medical fitness was also considered and the Review Medical Board also found that he is not eligible for selection due to disability of Knock-knee which is one of the disqualifications stated in the advertisement notice. It is very clearly stated in the advertisement notice itself that a candidate must not have Knock-knee. The appellant having applied, participated in the selection process and having been found by the Medical Board that he is having the disability of Knock-knee, the appellant is not entitled to turn around and say that inspite of the disability of Knock-knee as found by the Medical Board, he is entitled to get selection.
10. A similar issue was considered by a Division Bench of Delhi High Court in WP (C) no. 8940/2011 ( Prem Prakash v. Union of India and another) decided on 20.01.2012, wherein also the Medical Board found that the petitioner therein was having the disability of Knock-knee. In the said case also the petitioner therein obtained a medical certificate from the Medical Officer, General Hospital Rewari, stating that petitioner was medically fit for selection by stating a bald statement without any reason. In the said case also the medical fitness was re-assessed by the Review Medical Board and the said Board also found that the petitioner therein was having the disability of Knock-knee. The Division Bench dismissed the writ petition. Similar view was taken by a Division Bench of this Court (of which one of us- D.S.Thakur-J as a member) in LPASW no. D-9/2014 ( Shoket Hussain v. Union of India and ors, decided on 12.02.2014).
11. Here in this case also the appellant was assessed by a Medical Board, re-assessed by the Review Medical Board and was found unfit by the duly constituted Medical Board. The appellant has not alleged any mala fide against the Doctors of the Medical Boards. It is a well settled proposition of law that Court can go into the decision making process and the decision made is arbitrary or not. If the action of the public authority is not arbitrary or unreasonable or amounting to mala fide or improper power, the Courts are not expected to interfere with the said decision. The team of Doctors, who are experts in the assessment of the medical fitness of the candidates, having assessed the medical fitness of the appellant for the post of Constable (GD), the said decision cannot be held as unreasonable or arbitrary. It is also well settled proposition of law that Court has no expertise to review the decision made by the experts. The decision not to select a candidate with Knock-knee is a policy decision taken by the authorities and the said decision was taken, bearing in mind the nature of the duties to be performed by a B.S.F. Constable (GD) cannot be treated as arbitrary. Under our Constitution the executive has been accorded with primary responsibility for formulation of government policy and the Court does not interfere unless the policy is unconstitutional, arbitrary or irrational or contrary to the statutory provisions. In the decision reported in AIR 2012 Supreme Court, 1803 ( Bedanga Talukdar v. Saifudullah Khan and ors), it is held that selection procedure stipulated in the advertisement notice must be scrupulously followed and the Courts have no power to relax the conditions with regard to submission of certificate. If a particular scheme is mentioned in an advertisement, the same has to be scrupulously followed and there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically mentioned in the advertisement. Relaxation of any condition mentioned in the advertisement without due publication would be contrary to the mandate of equality enshrined in Article 14 and 16 of the Constitution of India. In the said case the High Court directed that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed. The said direction was found to be contrary to the advertisement and selection norms and, therefore, Honble the Supreme Court set aside the said direction issued by the High Court.
12. The learned Single Judge rightly dismissed the writ petition filed by the appellant and we are unable to find any reason to interfere with the said order and the appeal is dismissed. No costs. (Dhiraj Singh Thakur) (N. Paul Vasanthakumar) Judge Chief Justice Jammu, 04 .03.2015 Anil Raina,Secy.