Sandeep Sharma vs State Of J&K & Ors on 15 July, 2014

[Cites 6, Cited by 1]

Jammu & Kashmir High Court

Sandeep Sharma vs State Of J&K & Ors on 15 July, 2014

Sandeep Sharma & ors Vs State of J&K & ors (04 Petitioners) SWP no.902/2012 Wajid Iqbal Malik & ors Vs State of J&K & ors (05Petitioners) SWP no.925/2012 Happy Singh Vs State of J&K & ors (01Petitioners) SWP no.985/2012 Rakesh Kumar Sharma & anr Vs State of J&K & ors (02Petitioners) SWP no.1177/2012 Sohan Lal & ors Vs State of J&K & ors (03Petitioners) SWP no.1578/2012 Sudershan Dev Singh & ors Vs State of J&K & ors (03Petitioners) SWP no.1178/2012 Sunil Razdan Vs State of J&K & ors (01Petitioners) SWP no.1180/2012 Gurpreet Singh & anr Vs State of J&K & ors (02Petitioners) SWP no.1060/2012 Arjun Kumar & ors Vs State of J&K & ors (05Petitioners) SWP no.1063/2012 Ashish Sharma & ors Vs State of J&K & ors (11 Petitioners) SWP no.980/2012 Sandeep Rana Vs State of J&K & ors (01 Petitioners) SWP no.75/2012 Anil Mangotra & ors Vs State of J&K & ors (04 Petitioners) SWP no.456/2013 Manoj Sharma Vs State of J&K & ors (01Petitioners) SWP no.395/2013 Lavan Raina Vs State of J&K & ors (01Petitioners)

1. State Police Headquarters (PHQ), vide Advertisement Notice dated 1st March 2011, invited applications from candidates, fulfilling eligibility criteria laid down in the notice, for posts of Constable in Photography Cadre in Pay Band-1 Rs.5200-20200+1800 Grade Pay plus allowance. Candidates, belonging to Leh/Kargil Districts and Gurkha community (State Subjects) were to get benefit of relaxation in physical standards. Applications were to be deposited in the office of respective Range Deputy Inspectors of General by 31st March 2011. Office of Range DIG was to check applications and original testimonials of each candidate, in particular date of birth, minimum education qualification, category certificate and make necessary entries in recruitment register, before their onward submission to Recruitment Board where recruitment process was to be initiated.

2. Petitioners and private respondents responded to advertisement notice. They participated in selection process i.e. physical standard test (PST), Physical Endurance Test (PET), Technical Test. On conclusion of selection process, Select List was issued by PHQ, Jammu under signatures of AIG(P) for DGP vide PHQ No.1344 of 2012 dated April 11, 2012.

3. Petitioners in writ petitions on hand did not find place in the Select List. They, aggrieved with their non-selection and private respondents selection, throw challenge to the Select List through medium of writ petitions on hand on the grounds set out in their respective petitions.

4. Petitioners main grievance, running through weft and warp of all petitions, is that official respondents unmindful of contents of Advertisement Notice, eligibility criteria laid down therein and in violation of rules and regulations, made District-wise selection on the basis of merit computed at district level, instead of selection at State level. It is pleaded that respondents deliberately did not mention number of posts advertised or their category-wise breakup, so as to leave scope for favouritism and compromise with merit. Petitioners insist that advertisement notice did not indicate that posts advertised were district cadre posts or that official respondents proposed to make selection at District level and that respondents changed criteria in the middle of selection process to the detriment of meritorious candidates. Change in selection criteria, according to petitioners, has worked harshly against them and converted merit into demerit and unjustifiably deprived meritorious candidates of an opportunity to get selected against advertised posts. Private respondents are said to have found place in Select List notwithstanding their lower merit as against petitioners. Selection process and Select List are also said to offend J&K Reservation Act, 2004, and J&K Reservation Rules, 2005.

5. Writ petitions are opposed by respondents on the grounds that as post of Constable is District cadre post, Superintendent of Police in terms of Rule 172, J&K Police Rules, 1960, is competent to make selection and appointment against the post. To reinforce their claim that posts advertised were District cadre posts, respondents seek to draw support from provisions of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010. It is stated that having regard to pay scale carried by post i.e. Constable Photography, it, in terms of Section 2(b) of the Act, is to be treated as District Cadre post. It is insisted that once post in question is held to be a District cadre post, selection made by respondents against advertised posts and appointments ordered on the basis of select list, cannot be faulted on the ground that selection was made District-wise, after allotment of advertised posts to the districts. Respondents plead that after 114 posts of Constable Photography Cadre were advertised, posts were distributed amongst 22 Districts on the basis of population of each District as per 2011 Census and posts allotted to a District filled up from amongst candidates hailing from such district. It is pleaded that petitioners participated in selection process and threw challenge to select list only after they failed to make the grade a course, according to respondents, not permissible under law. Writ petitions are said to be liable to be dismissed on this ground alone. It is pleaded that merit was not compromised while making selection inasmuch as District-wise select-lists were drawn purely on the basis of district-wise merit.

6. I have gone through pleadings as also selection record made available by learned Senior Additional Advocate General. I have heard learned counsel for parties at length.

7. Respondent no.2 admittedly invited applications from eligible candidates for advertised posts at State level. On finalisation of selection process, advertised posts were filled up District-wise on the basis of merit computed at District level. Petitioners case, as already stated, is that once posts were advertised at State Level, selection process was to be finalised at State level on the basis of merit computed at State levelunless respondent no.2 before selection process was finalised, informed aspirants for advertised posts that selection was proposed to be made at District level giving them liberty to apply in the District of their choice. In order to deal with controversy, we need to give a closer look at advertisement notice so as to have a better understanding of eligibility criteria notified and selection criteria proposed to be followed while finalising selection process. Advertisement notice reads as under:-

POLICE HEADQUARTERS JAMMU & KASHMIR JAMMU *** ADVERTISEMENT NOTICE Applications as per enclosed proforma are invited from the permanent residents of J&K State for their recruitment as Constable in pHotography Cadre of J&K Police in the Pay Band-1 Rs.5200-20200+1800 Grade Pay plus allowances as sanctioned by the State Government from time to time. 2- The educationalqualification, age and physical standardsprescribed for the above-mentioned post are specified as under:-

i) Educational Qualification:-

The candidate should have a minimum qualification of 10+2 with Science from any Government recognized Board

ii) Technical qualification

i) 06 months Computer course from an Institute, which has been duly registered/recognized by the State or Central Government to impart such courses

ii) 02 years experience in Photography/ Videography, Handling of digital camera from any repurted certified Company/Institute {Note:- In case it is brought to notice during the course of selection or at a subsequent stage that any candidate has obtained the course, diploma or experience certificate from an unauthorised Institute, he/she shall be liable for disqualification of his/her candidature/selection as the case may be}

iii) Age as on Jan, 1st 2011:

Candidates should not be less than 18 years and not more than 28 years of age. (The candidates born before 01.01.1983 and after 31.12.1992 shal not be eligible).

iv) Physical Standard:

Male Female Height:- 5-6 and above Chest:- (unexpanded) = 32 (Expanded) = 33 1/2 Height:- 5-2 and above For the candidates belonging to Leh/Kargil Districts and Gurkha community (State Subjects) the minimum height shall be 5-4 for male and 5 for female candidates.

3- Reservations Due representation will be given to the candidates belonging to reserved categories as provided under SRO-294/2008 dated 21.10.2005 read with SRO-144/2008 dated 28.05.2008 4- The application forms should be accompanied by attested copies of the following certificates.

a)      Date of Birth Certificate (Matriculation)
b)      Academic Qualification Certificate
c)      Technical qualification Certificates
d)      State Subject Certificate
e)      Reserved category certificate (if applicable)
f)      Four copies of recent passport size photograph

5-      Candidates will be subjected to following test.
    I.  Physical Standard Test (PST)
    II. Physical Endurance Test (PET)

Only those candidates who are found physically fit in physical measurement and possessing other prescribed standards will be allowed to compete in the endurance tests as mentioned below:

Male candidates Event Qualifyingtime (distance)

a) 100m Race 15 seconds or less.

b)      1500 Mtrs. Race                 06 Minutes or less.        
c)      High Jump                       03 = Feet (in three chances)
d)      Long Jump                       12 Feet (in three chances)
e)      Push ups                        (20)

    Female candidates
        Event                           Qualifyingtime (distance)
a)      100m race                       16.5 Seconds or less 
b)      200 Mtrs. Race                  36 Seconds or less.
c)      High Jump                       03 = Feet (in three chances)
d)      Long Jump                       12 Feet (in three chances)
e)      Push ups                        (20)

III) Technical Test:

The candidates who qualify the physical endurance test shall be eligible to appear in the following tests:

a) Proficiency test (both practical/theoretical) to evaluate skill/knowledge of the candidates in photography and other allied areas. - 100 marks

b) Computer Aptitude Test - 30 marks

c) Viva voce test - 20 marks 6- The application forms should be deposited in the office of respective Range DIsG of Police under proper receipt. Application forms incomplete in any manner or not filled up properly shall be rejected. The migrant candidates presently settled out of the Valley who intend to apply, shall deposit their application forms, indicating their original residential particulars, in the office of Range DIG where they are presently settled.

7- The last date for receipt of application forms at range DIsG is 31.03.2011. 8- Range DIsG will maintain record of all such applications received from the candidates in the prescribed registers for onward submission to the Recruitment Board before the recruitment process starts. While doing so, the Range DIsG shall ensure checking of original testimonials of each candidate particularly date of birth, minimum educational qualification and Category Certificate and reflect same distinctly in the same recruitment register. In case of migrant candidates separate records shall be maintained.

9- Candidates already in Government service and conforming to the above standards can also apply after obtaining NOC from their employers without which the application will not be entertained. If any candidate, being in Government service and found applying without NOC or without mentioning that he is a Govt. servant, if ascertained later-on, will deny him the right to appointment.

10- Candidates who have obtained any loan/stipend under the self-employment scheme or any other category will be allowed to join only in case they obtain a clearance certificate from the concerned department/bank to the effect that they have refunded the loan/cleared any other liability.

11- The candidates shall have to appear in the prescribed tests at their own expenses on the date and venue to be communicated by the Police Recruitment Board, through press and electronic media.

12- The application form can also be downloaded from J&K Police website www.jandkpolice.org. Sd/-

(Kuldeep Khoda) Director General Police J&K, Jammu

8. From perusal of Advertisement Notice, it transpires that it does not indicate number of posts of Constable in Photography Cadre proposed to be filled up or category-wise breakup of posts. However, candidates applying, belonging to any of reserved categories, are in terms of Advertisement Notice required to append Reserved Category Certificate with the application. The candidates belonging to Reserved Category are assured that they would be given due representation in terms of SRO 294 of 2005 dated 21st October 2005 read with SRO 144 of 2008 dated 28th May 2008. This indicates that of the posts proposed to be filled up, 43% were to go to Reserved Category candidates. Advertisement notice does not directly or indirectly indicate that selection and appointments were to be made on the basis of district-wise merit computed on finalisation of selection process. The Advertisement notice gave relaxation in physical standards to candidates from Ladakh region (Leh & Kargil) and Gurkha community. Had selection intended to be made at District level, there was no need to provide such relaxation in the notice as selection process at District level Leh and Kargil would be restricted to the candidates hailing from the respective districts.This leads to conclusion that selection was to be made at State level on the basis of merit computed at such level. The case projected by petitioners that district-wise selection was not permissible, therefore, finds support from advertisement notice.

9. In all 538 candidates applied for advertised posts (Kashmir Zone: 214; and Jammu Zone:

324).Respondent no.2, vide Order No.2063 of 2011 dated 15th June 2011, constituted Recruitment Board for conducting Physical Standard Test (PST) and Physical Endurance Test (PET) of candidates who responded to advertisement notice. Board comprised of six members with Shri T.Namgyal, IPS, Deputy Inspector General of Police, PHQ, as its Chairman. Board was constituted at State Level to finalise selection at State level. The order also prescribed physical standards for male as well as female candidates. Application forms with necessary registers were handed over to Board headed by DIG Armed as reflected in communications available on record. Board conducted PST and PET of candidates belonging to Jammu Region at Gulshan Ground, Jammu, from 23rd July 2011 to 27th July 2011 and candidates belonging to Kashmir Division at Government Degree College for Women, Moulana Azad Road, Srinagar from 14th July 2011 to 18th July 2011. Out of 216 candidates, belonging to Kashmir Division, 94 candidates did not turn up for PSTand PET while 54 candidates were disqualified.

Board, therefore, was left with 68 candidates from Kashmir Province. From Jammu Division out of 325 candidates, 131 candidates did not report for PST & PET, 86 candidates were disqualified and 108 candidates qualified the tests. Aforementioned details were reported to respondent no.2 vide No.AROK/Estt/20117654-55 dated 23rd August 2011.

10. Respondent no.2, on receipt of information regarding number of candidates who qualified PST & PET, vide Order No.3281 of 2011 dated 14th October 2011, constituted Central Board comprising of five members with Shri N.D.Wani, Deputy Inspector General of Police, CID, Kashmir, as its Chairman. Board was to subject candidates, who were found to have qualified PST & PET, to pre-selection tests having regard to selection criteria as detailed hereunder:

a) Proficiency test (both practical/ theoretical) to evaluate skill/ knowledge of the candidates in photography and other allied areas 100 Marks

b) Computer Aptitude test 30 Marks

c) Viva-voce 20 Marks

11. The record was collected by Central Board through Inspector (S) Farooq Ahmad No.3208/NGO, from PHQ 22.10.2011. Central Board conducted written/proficiency test/computer aptitude test of 68 candidates from Kashmir Division who had qualified PST & PET at Government Womens College, Maulana Azad Road, Srinagar on 21st December 2011 and their viva-voce on 22nd December 2011. Likewise written/proficiency test/computer aptitude test and viva-voce of 108 candidates, who qualified PST and PET from Jammu Division was also conducted.

12. Perusal of record would reveal that till 15th December 2011, Central Board was unaware of exact number of posts proposed to filled up though it proceeded with written test, proficiency test etc of 176 candidates. Shri N.D.Wani, DIG, CID, Kashmir (Chairman, Central Board) vide communication No.CID/DIGK/11/Rec/2848 dated 15th December 2011 requested respondent no.2 to convey exact number of posts of Constable in Photography Cadreproposed to be filled up so that selection process was taken to its logical end. The communication proved to be wakeup call for respondents. It appears that while in note para 138 of selection record, it was indicated that only 82 Constables of Photography Cadre posts were proposed to be filled up at the time advertisement notice on 1st March 2011 was issued, (though number of advertised posts was not given in the advertisement notice), Central Board was erroneously informed that 114 posts of Constables in Photography Cadre were to be filled up. The information given to Central Board as regards number of posts available was factually incorrect inasmuch as aforementioned number i.e. 114 posts included 01 vacancy of Inspector, 02 vacancies of Sub Inspectors, 29 vacancies of Head Constable. The number of posts to be filled up was, therefore, only 82 posts. This is only one aspect of the matter that calls for a probe. The fact, however, remains that till DIG, CID, Kashmir (Chairman, Central Board) requested respondent no.2 to convey exact number of posts to be filled up, it was at not point of time decided to make selection at district level on the basis of merit computed at district level. It is thus clear that selection and recruitment to advertised posts was intended from day one i.e. 1st March 2011 to be finalised at State level on the basis of merit worked out at State level and having regard to J&K Reservation Act, 2004 and J&K Reservation Rules, 2005, as amended by SRO 144 of 2008 dated 28th May 2008. This reinforces petitioners claim that selection and recruitment for advertised posts was illegally made at district level on the basis of merit computed district-wise at the cost of merit and in violation of mandate of Article 14 and 16 Constitution of India.

13. Respondents by their own showing were to adhere to J&K Reservation Act, 2004 and J&K Reservation Rules, 2005, as amended by SRO 144 of 2008 dated 28th May 2008, while making selection. Let us examine whether Reservation Rules have been followed and prescribed share of advertised posts given to each of the categories as laid down under Rules. Rule 4, J&K Reservation Rules 2005, prescribes following ratio for Reserved Categories in direct recruitment:-

(a) Scheduled Castes 8% 8/100 x 82 = 07

(b) Scheduled Tribes 10% 10/100 x 82 = 08

(c) Socially and Educationally Backward Classes (other than Scheduled Castes and Scheduled Tribes:-

(i) Weak and under privileged Classes (social caste) 2% 2/100 x 82 = 02

(ii) Residents of areas adjoining Line of Actual Control (ALC) 3% 3/100 x 82 = 02

(iii) Residents of backward areas 20% 20/100 x 82 = 16 This apart, Rule also prescribes 6% and 3% horizontal reservation for ex-servicemen and Physically Challenged Persons respectively.

14. In terms of Rule 4 of Reservation Rules, 20 out of 82 vacancies were to go to Socially and Educationally Backward Classes, with the break up Weak and underprivileged Classes (Social Caste):02; Residents of areas adjoining Line of Actual Control (ALC): 02; and Residents of backward areas (RBA): 16. Seven posts were to go to Scheduled Castes and eight posts to Scheduled Tribes. When we go to Select List, impugned in present petition, we find 11 as against 16 posts have been filled up from RBA Category, 05 as against 08 posts from ST Category and 01 as against 02 posts from Social Caste Category. The respondents, therefore, have not followed Reservation Rules while making selection. By evolving methodology not in tune with J&K Reservation Act and Rules made thereunder, respondents caused immense prejudice to marginalised, unattended, disempowered sections of society, by diverting their quota to General Category candidates. Respondents out of 82 posts, have filled up 57 posts from General Category as against 47 posts i.e. 69.6% as against 57%, and 25 posts from amongst Reserved Categories as against 35 posts in terms of Reservation Rules, with only 30.4% as against 43% required to be filled up from such Categories under Rules.

15. Respondents, while working out mechanism to take selection process to its logical end, have adopted methodology not permissible under law. They have, after selection process was almost complete, allotted 82 vacancies of Constable Photography Cadre to 22 Districts on the basis of population of each District. They have, thereafter, gone to population ratio of each Category,i.e. SC, ST and Socially and Educationally Backward Classes, and allotted vacancies to each Category out of vacancies earmarked for the District, having regard to such ratio. To illustrate, in case S.T. population in a District allotted 10 Constable Photography Cadre, was found to be 20% of total population, respondents have allotted 02 vacancies to said Category. This exercise has been done after DIG, CID (Chairman, Central Board) vide communication No.CID/DIGK/11/Rec/2848 dated 15th December 2011, requested for number of vacancies to be communicated and the breakup of such vacancies. Be that as it may, the methodology adopted is in direct conflict with letter and spirit of J&K Reservation Rules, 2004. It needs to be recalled that Rule 4 fixes category-wise ratio and the ratio fixed is not to exceed or decrease on the basis of population in a particular district.

16. Respondents by resorting to district-wise selection on the basis of merit worked out at District level have converted merit into demerit. To illustrate, last selected General Category candidate in District Ganderbal has secured 93.5 marks and in District Anantnag 91.88 marks whileas last selected candidate in General Category in District Srinagar has only 70.5 marks to his credit. The candidates from District Ganderbal or for that matter Anantnag District having merit higher to cut off merit fixed in case of District Srinagar (70.5 points), have not been able to find place in the Select List though they are more meritorious than candidates selected in District Srinagar. Same is true about District Budgam where last candidate in General Category has just 74.38 marks to his credit while last selected candidate in General Category in District Bandipora has 92 marks. In Jammu District last selected candidate in General Category has secured 103.62 marks while in Udhampur and Poonch, last selected candidate in General Category has secured 96.5 marks and 97.5 marks respectively. On the other hand candidate from District Doda in General Category with just 69.37 marks has been able to make it to the select list. Resultantly a number of meritorious candidates have been chased out from selection process only because they belonged to a particular District and were not considered for advertised vacancies in other Districts. We may recall that in terms of Advertisement Notice, scope was not left for district-wise selection on the basis of merit computed at district level. Methodology adopted, therefore, offends equality clause and leaves room for treating equals as un-equals.In case of District Srinagar, as per record available on file, only seven candidates qualified PST & PET. However, respondents selected eight candidates from District Srinagar with last candidate with just 70.5 marks. This aspect makes entire selection process doubtful and also calls for a probe. The candidate, who made it to select list, though he did not qualify PST/PET, is required to be identified and fraud unravelled.

17. Respondents have worked out allotment of vacancies to 22 Districts, assuming that 114 vacancies of Constable Photography Cadre were to be filled up. Proceeding on that assumption they have allotted 07 vacancies to District Budgam, 14 to Jammu District, 10 to Anantnag District, 09 to Baramulla District and so on and so forth, and proceeded to fill up the allotted vacancies district-wise. Same is the case about other Districts. Respondents failed to realise that only 82 vacancies were to be filled up and even if district-wise allocation for the vacancies on the basis of population was to be made (though not permissible under law), 07 vacancies would not go to District Budgam, 03 to Ganderbal, 14 to Jammu, and 12 to Srinagar etc. etc. Even if it is assumed though rules do not support such assumption that it was permissible to change selection criteria midstream and make district-wise selection instead of State-wise selection as was intended to be done at the time Advertisement Notice was issued, yet respondents have not adhered to their own decision while selecting 07 candidates from District Budgam, 11 from District Jammu, 03 from District Ganderbal, as number of vacancies due to Districts having regard to total number of vacancies i.e. 82, would be much less than allotted vacancies. As District Budgam has 5.86% of population of the State, only 05 posts were to go to District Budgam and 10 posts to District Jammu as against 14 posts allotted to the District. Likewise, District Baramulla would get only 07 posts as against 09 posts allotted. Same is true about other Districts. The mechanism adopted by respondents while making selection is, therefore, capricious, whimsical, arbitrary and in conflict with rule of law.

18. Respondents, as stated above, at the time of inviting applications from eligible candidates for advertised posts did not inform them that they propose to make district-wise selection on the basis of merit computed at district level. They were all along given to understand, be it by constituting Recruitment Board headed by Mr. T.Namgyal, IPS, DIG Armed, Kashmir, or Central Board headed by Mr.N.D.Wani, DIG, by conducting PST/PET for all the candidates from Kashmir and Jammu Provinces at Srinagar and Jammu and written/proficiency test and computer aptitude/viva voce test conducted of all qualified candidates at Srinagar and Jammu, that selection would be made at State level based on State level merit. Respondents without informing aspirants of advertised posts, changed selection criteria in middle of selection process and instead of merit computed at State level, resorted to districtlevel selection on the basis of merit worked out at district level. Petitioners and other aspirants, therefore, were deprived of their right to apply from the district of their choice. It needs no emphasis that an aspirant for advertised posts had complete freedom to choose district of his choice. He, irrespective of his place of birth would apply in a particular district, making enquiry at his own level and decide for himself regarding district, where he would feel he had better chance to get selected. Respondents, by changing selection criteria midstream, caused prejudice to petitioners and other aspirants for advertised posts.

19. Above discussion apart, it is highly doubtful whether population of a District could have been taken as basis for allotment of Constable in Photography Cadre.There appears to be no reasonable nexus between population of district and number of Constables Photography Cadre required in a district. Allotment could have been made on the basis of crime record of district i.e. number of occurrence reported, FIRs registered, charge-sheets filed, etc. A District with lesser population may need more Constables Photography Cadre as against District with larger population in case in former crime rate is much more than in latter. We need not emphasise that Constable Photography Cadre is primarily to assist investigation officer to take photographs of crime scene and different events and stages in the investigation, like disclosure statement made by accused, recoveries made at the instance of accused etc. The criteria for allotment of Constable Photography Cadre is, therefore, per se irrational, making methodology evolved to fill up advertised vacancies doubtful and open to challenge.

20. The argument that district-wise allocation of posts in question was permissible in terms of J&K Civil Services (Decentralization and Recruitment) Act, 2010 is far from convincing.True that basic pay carried by Constable Photography Cadre is less than basic pay for post of Senior Assistant and may, therefore, fall within definition of District Cadre as defined under Section 2 (b), J&K Civil Services Decentralization and Recruitment Act, 2010, however, respondents fail to realise that even post carrying basic pay of less than basic pay of Senior Assistant, may not be included in District Cadre but in Divisional cadre or State cadre. Definition of District Cadre in Section 2(b) of the Act itself leaves scope for a post carrying basic pay less than basic pay of Senior Assistant to be Divisional or State Cadre. Section 2(b) provides that only such posts carrying basic pay less than basic pay of Senior Assistant would be included in District Cadre as are not included in the posts falling under Divisional or State Cadre. The definition, therefore, is residuary in nature. In the present case, record available on the file like background in which Constable Photography Cadre posts and others posts in Photography Cadre were sanctioned, administrative control over the Cadre, overwhelmingly, lead to the conclusion that Constable Photography Cadre is State Cadre posts. The arguments, therefore, advanced is of no avail to respondents.

21. Plea that as Superintendent of Police of a District is competent in terms of Rules 172, J&K Police Rules 1960, to appoint a Constable, post of Constable in Photography Cadre, is to be taken as District Cadre post, justifying filling up of the posts at District level on the basis of merit computed at such level, is equally fallacious. Police Department comprises of different wings, like executive police, armed police, prosecution wing, auxiliary police, police telecommunication and Photography Cadre. The photography wing is not restricted to Constable Photography but comprises of Selection Grade Constable, Head Constable, Assistant Sub Inspector, Sub Inspector and Inspector, etc. This is thereason that in note para 138, out of 114 vacancies identified, one vacancy is that of Inspector Photography, two Sub Inspectors Photography, 29 Head Constables Photography. The Photography Cadre,as evident from note para 138, comprises of sanctioned strength of 05 Inspectors, 18 Sub Inspectors, 31 Assistant Sub Inspectors, 115 Head Constables, 33 Senior Grade Constables, 101 Constables. The Cadre is under control of Inspector General of Police, Crime and Railways. This is the reason that on the recommendation of Chairman Central Board, selection has been approved by respondent no. 2, vide Order No.1344 of 2012 dated 11th April 2012(and not Superintendent of Police of a District),and selected candidates directed to report to Senior Superintendent of Police, Crime Branch, Kashmir and Jammu respectively. Had selection been made in terms of Rule 172, J&K Police Rules, 1960, approval would have been accorded by Superintendent of Police of the concerned District and selected candidates directed to report to said office for further adjustment.The authority of Superintendent of Police of a District to appoint a Constable in Executive Police, under his command and control is not to be confused with selection and appointment of Constable in Photography Cadre. Constable Photography Cadre and other post in the Cadre are to be filled up at the central or PHQ level and thereafter deployed to different Districts on need basis.

22. The mode and manner adopted by PHQ in making selection and recruitment of Constable Photography Cadre in the present case also points to conclusion that selection and recruitment was to be made at State level on the basis of merit computed at such level. In the said background, respondents cannot draw support from law laid down in State versus Krishan Paul [2009(3) JKJ SC 341]. On the other hand, law laid down by Supreme Court in Radhey Shyam Singh and others versus Union of India and others [(1997) 1 SCC 60] extends support to petitioners case that district-wise distribution of vacancies restricting selection to candidates applying from district, on the basis of merit computed at district level would be violative of Article 14 and 16, Constitution of India. The Court held There exists no nexus between the process of zonewise selection and the object to be achieved, that is, the selection of the best candidates. Therefore, the process of selection envisaged in the advertisement in question would lead to discriminatory results because of adopting the said process of zonewise selection would resulted the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated Such a process would not only be against the principles enunciated in Articles 14 and 16 of the Constitution but it would also result in heartburning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of the constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised. In the reported case Subordinate Services Commission decided to make selection and recruitment at zonal basis. The object sought to be achieved by adopting this method of selection was to enable candidates from different Regions to be absorbed in the vacancies arising within respective regions. The Supreme Court set-aside selection process, holding it to be in conflict with mandate of Articles 14 and 16, Constitution of India. In the present case also, as highlighted above, more meritorious candidates were left out in the name of district-wise selection and candidates, who are far inferior in merit, were selected and appointed against advertised posts.

23. It may be pointed out that none of the candidates belonging to District Leh, Kupwara, Kishtwar, Ramban could qualify PST and PET. Therefore, none of the candidates from these districts finds place in the Select List. In case respondents stand that posts were rightly allocated to the districts, the posts allocated to such districts should have been left vacant and not filled up from other districts. Respondents, as already pointed out, have filled up all vacancies though none of the candidates qualified from aforementioned districts. The course open to respondents was to fill up 73 number of vacancies and leave 09 vacancies unfilled to be advertised afresh. This has not been done. This also belies respondents stand.

24. It needs to be made clear that district-wise recruitment of District cadre posts as provided under J&K Civil Services Decentralization and Recruitment Act, 2010, may not be per se objectionable provided posts are to be filled at district cadre level and secondly selection is to be made at district level and last but not least it is sufficiently made clear in the advertisement notice that posts sought to be filled are District cadre posts and selection is proposed to be made at the District level on the basis of merit computed at such level. In the present case none of the above conditions is satisfied. Selection of private respondents, therefore, is to be set-aside and official respondents directed to reframe Select List on the basis of merit computed at State level and thereafter select and appoint such of the candidates, found meritorious and re-advertise such of the vacancies as are left unfilled.

25. Respondents case that petitioners are stripped of any right to question Select List inasmuch as petitioners, after participating in selection process, cannot turnaround and question it, is bereft of any substance. The ground is urged unmindful of the fact that respondents did not, through advertisement notice dated 1st March 2011 or even thereafter, inform petitioners and other aspirants for advertised posts, that selection was to be made at district level. Respondents, as a matter fact, changed selection criteria midstream and after selection process i.e. physical test, written test, interview/viva-voce, was over, decided to make selection on the basis of district-wise merit. Petitioners, therefore, cannot be faulted for throwing challenge to Select List after participating in selection process. Petitioners, on other hand, are to be held to have right to throw challenge to Select List on the ground that they were taken unawares and respondents adopted a criteria not contemplated under advertisement notice or rules governing selection process.

26. Petitioners to question impugned selection approached the court without wasting any time and with due despatch. On 20th April 2012, select list was directed not to be operated upon till next date. However, order was modified vide order dated 4th February 2013 and selection/appointment of private respondents directed to remain subject to outcome of writ petition. Order dated 4th February 2013 was questioned in LPA (SW) No.30/2013. LPA Court on 2nd April 2013 directed not to give effect to selection list till further orders. The Appeals were disposed of vide order dated 1st July 2013 with a request to learned Single Judge to dispose of SWP No.875/2012 with all connected writ petitions by or before 31stJuly 2013. Ad-interim direction dated 2nd April 2013 was to remain in force. In the said background select list is yet to be acted upon. Resultantly, no appointment has been issued in favour of any of private respondents till date.

27. For the reasons discussed, writ petitions are allowed and Select List recommended by Deputy Inspector General of Police, CID, Kashmir (Chairman, Selection Board) vide No.DIG/CID(K)/2012/85 dated 14th January 2012 and Order No.1344 of 2012 dated 11th April 2012, according approval to Select List, are quashed. Respondents arecommanded to reframe Select List at State level on the basis of merit secured by candidates at State level, who participated in selection process having due regard to J&K Reservation Act, 2004, and J&K Reservation Rules, 2005, and thereafter consider candidates for appointment in order of merit against 82 posts of Constable in Photography Cadre, though not mentioned in advertisement notice, but admittedly proposed to be filled up on finalisation of selection process initiated vide advertisement notice dated 1st March 2011 and re-advertise such of the vacancies as are left unfilled. However, selection of such of private respondents, who find place in reframed select list and having regard to their place in the merit list and number of vacancies to be filled up, make grade for their appointment, shall remain intact and undisturbed.The exercise be completed as far as possible within four weeks from the date of receipt of copy of this judgment.

28. Record be returned to learned counsel for official respondents.

(Hasnain Massodi) Judge Jammu 15/07/2014 Ajaz Ahmad The Judgment is pronounced by me today in terms of Rule 138 (3) of the Jammu and Kashmir High Court Rules, 1999.

(Tashi Rabstan) Judge Jammu 15.07.2014.

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