Jammu & Kashmir High Court
Vijay Kumar And Others vs Union Of India And Others on 10 March, 2020
Equivalent citations: AIRONLINE 2020 J AND K 135
Author: Rajesh Bindal
Bench: Rajesh Bindal
Sr. No. 1
HIGH COURT OF JAMMU AND KASHMIR
ATJAMMU
LPA No. 36/2020
CM Nos. 9691/2019 &
1550/2020
Decided on:10.03.2020
Vijay Kumar and Others .....Appellant (s)/Applicant (s)
Through :- Mr. Sunil Sethi, Sr. Advocate with
Mr. Sumit Nayyar, Advocate.
V/s
Union of India and others .....Respondent(s)
Through :- Mr. Vishal Sharma, ASGI.
HON'BLE THE CHIEF JUSTICE
Coram:
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
JUDGMENT
GITA MITTAL, CJ
1. The appellants have laid a challenge to the judgment dated 3 rd July 2019 whereby SWP Nos.43/2018, & 1159/2018 and SWP No.536/2019 [WP(C) No.970/2019] have been rejected. After hearing learned counsel for the parties, by our order dated 10th March 2020, we have dismissed the challenge. We now record the reasons for this order.
2. These writ petitions were concerned with the appointments effected by the official respondents pursuant to an advertisement notification dated 17th February 2017 for recruitment of eligible male/female candidates for the post of Fireman (male only), Tele Optr Gde-II, Tradesman (Mate), Civilian Motor Driver, Safaiwala, LDC, Stenographer GDE-II and Material Assistant in different Depots and Units of the Northern Command of the Indian Army.
3. SWP Nos. 43/2018 and 536/2019 were filed assailing the very advertisement on the ground that it did not provide for preference to the petitioners who had served in the Indian Army as porters in 'Operation Vijay' 2 LPA No. 36/2020 conducted by the Indian Army in the year 1999. This challenge rested on the grievance of the writ petitioners that in term of the judgment of the Supreme Court reported at (2017) 3 SCC 272, Yash Pal and others vs. Union of India and others, the writ petitioners, who had served as porters during 'Operation Vijay' in the year 1999 were entitled to the preference in the matter of appointments to the post of Mazdoors. The grievance was that the advertisement dated 17th Feb. 2017 did not make any provision for preference to such porters; and that, instead a general advertisement was issued inviting applications from all inter alia two regular posts of Mazdoors in the different depots and units of the Northern Command of Indian Army.
4. So far as the third writ petition, i.e. SWP Nos. 1159/2018 was concerned, the writ petitioners had challenged the select list dated 24th May 2018 issued by the official respondents after selection process pursuant to the advertisement dated 17th February 2017. This writ petition was filed by persons other than that porters who had facilitated the Army in the operation Vijay on the same grounds as pressed in the other writ petitions.
5. For the reason that the three writ petitions were all emanating from the advertisement dated 17th February 2017, these were taken up together and decided by the impugned judgment dated 3rd July 2019.
6. The present appeal has been filed by the porters who had filed SWP No. 536/2019 assailing the dismissal of the writ petition by the judgment dated 3rd July 2019.
7. These appellants have claimed that in view of the exemplary service rendered by them to the Indian Army in the most difficult terrain of the world, they were commended for the good job done by them and were also 3 LPA No. 36/2020 recommended for being preferenced in any government/private Job. In this regard reliance is placed on the certificates issued by the Lt. Colonel who was the Officer Commanding No. 3, Porter Coy. The learned trial judge has considered this certificate and the impact thereof in great length.
8. Appearing for the appellant, Mr. Sunil Sethi, learned Senior Counsel has also drawn our attention to these certificates relied upon by the petitioners.
9. We find that these certificates commend the work done by the appellants with the recommendation they be given preference in any government/private jobs. These certificates do not contain any assurance, let alone any commitment or promise, to the appellants that their services in the 'Operation Vijay' would entitle them to preference in any recruitment process conducted by the Indian Army.
10. The learned Single Judge has held that pursuant to the advertisement dated 17th February 2017, the appellants applied for appointment to the advertised posts. We may note that the advertisement did not notify any preference to persons who had participated in the 'Operation Vijay'. The appellants had accepted this position and unreservedly participated in the selection process. Pursuant to the selection process, the respondents have not only appointed the selected candidates against different posts but those candidates had joined the service as well. In view thereof, the challenge to the denial of preference or the selection process was unwarranted.
11. The writ petitioners have failed to even implead the selected candidates in the writ petition and for this reason as well it stands held that writ petitions were not maintainable.
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12. The learned Single Judge has held that the certificates relied upon by the writ petitioners did not constitute any binding promise giving rise to promissory estoppel against the respondents entitling them to approach a court of law for enforcement thereof. In our view, this is the correct position in law.
13. We may now advert to the reliance placed by Mr. Sunil Sethi, learned Senior Counsel on the orders passed disposing of earlier writ petitions.
14. There is another important aspect of the matter, the advertisement dated 17thFebruary 2017 does not invite applications for selection to the posts of mazdoors. Before the learned Single judge, the writ petitioners had referred to the posts of Tradesmen (Mate). It has been observed by the learned Single Judge that the qualification prescribed for this post was 10th or equivalent from recognized University/Board. There is no pleading at all before this Court with regard to the eligibility of the appellants for the said posts.
15. Coming to the judgment relied upon by the appellants. The appellants have relied on the judgment dated 26th May 2017 passed in SWP No. 990/2017, Vijay Kumar and others vs. Union of India and others; order dated 1st April 2017 passed in SWP No. 801/2017, Ravi Kumar and others v. UOI and another; and the order dated 10th February 2016 disposing of LPASW No. 64/2014, Union of India and others vs. Ram Lal and others.
16. It is noteworthy that in the order dated 26 th May 2017 disposing of SWP No. 990/2017, Vijay Kumar and others v. Union of India and Others, the writ petitioners had sought a direction to the respondents to consider the cases of the petitioners for appointment as mazdoor giving them preference over others for the reason they had served in the Kargil War Zone and grant relaxation of age. This writ petition was opposed on behalf of the official 5 LPA No. 36/2020 respondents by the learned ASGI who had submitted that last date of submission of applications pursuant to the advertisement dated 11th February 2017 was over and that case of these persons would be considered in future advertisements. It was based on this concession by the respondents that the writ petition was disposed of with the direction that in case the respondents made appointments to the posts of mazdoors in future, the cases of the petitioners may be considered giving them preference over other candidates having rendered services in the Kargil War Zone.
17. In the order dated 1st April 2014, SWP No. 801/2017, Ravi Kumar & Others v. Union of India and another, we find that the learned Single Judge has noted that the writ petitioners had participated in the recruitment process and failed in the selection. It was also noted that appointment had been made pursuant to the advertisement dated 11th February 2017 after conducting the physical test and interview in which the petitioners could not make the grade and were not selected. The learned Single Judge has clearly held that there was no reason to believe that the selection had not been made in accordance with law. The learned Single Judge has also noted that the appellants could have best laid the claim to the post of safaiwala but there was nothing to show that that was a post equivalent to that of mazdoor.
18. We may note that while disposing of the writ petition, the learned Single Judge has taken a view that 'recommendation' had been made by the Lt. Col. Rajinder Singh, respondent No.2 that 'preference' should be given to the said persons while making appointments. Treating this communication as a binding recommendation, the learned Single Judge has held that 'it was incumbent upon the respondents to have given preference to the petitioners over other persons who have not been deputed in Kargil' or that 'the service 6 LPA No. 36/2020 rendered by the petitioners in the War Zone should have been essential qualification for the appointment which has not been done.'
19. We are unable to agree with this finding or the conclusion of the learned Single Judge in the order dated 1st of April, 2014. We have scrutinized the document given by the Lt. Col. Officer Commanding to the appellants and find that the same is merely in the nature of a commendation for the services which they had rendered. Any suggestion by an Officer Commanding that the persons be given preference is not in the nature of any binding promise.
20. So far as the order dated 10th February 2016 deciding LPASW No. 64/201, Union of India & Others v. Ram Lal & Others is concerned, the writ petitioners had filed SWP No. 2142/2011 challenging the qualification for the post of 'mazdoors' for which qualifications have been enhanced to matriculation. It was observed that the court had held that for the reason that the writ petitioners had served as mazdoors during the Kargil War Zone and had rendered service at the risk of their lives, the learned Single Judge was right in giving directions to the authorities to consider the claim of the writ petitioners giving them preference over the others. This order came to be passed in the writ petition which was filed in the year 2011 which was decided by an order dated 28th October, 2013.
21. Admittedly, 'Operation Vijay' was conducted in the year 1999. The present appellants were discharged immediately after the 'Operation Vijay' was over.
22. We have grave doubt that such order of granting preferential appointments could have been passed.
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23. Even otherwise, the instant appeal relates to a selection process which commenced on issuance of the advertisement dated 17 th February 2017, which is almost twenty years after the 'Operation Vijay' was over.
24. We are of the view that the challenge by the appellants premised on the order dated 10th February 2016 upholding the order passed by the learned Single Judge dated 28th October 2013 (passed in SWP No. 2142/2011) is completely misconceived.
25. In any case, the directions in the orders relied upon by the appellants certainly do not constitute binding precedents.
26. The learned Single Judge has made a reference to the observations of the Supreme Court in the judgment reported in (2017) 3 SCC 272, Yash Pal and others vs. Union of India and others, that the official respondents should frame an appropriate scheme for regularization of Porters who has been serving in the Indian Army along with LOC for a minimum period of 10 years. The appellants admittedly would not be entitled to the benefit of such scheme as well for the reason that they have served in Indian Army in the year 1999 in the 'Operation Vijay' only.
27. For all these reasons, there is no merit in this appeal.
28. The appeal is dismissed.
(RAJESH BINDAL) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Jammu
10.03.2020
Raj Kumar
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
RAJ KUMAR
2020.04.22 16:59
I attest to the accuracy and
integrity of this document