Maharaj Krishan Bhatt & Anr vs State Of J.&K. & Ors

2

2. The facts of the case in short are

that under the Jammu & Kashmir Police Manual,

certain posts of Sub-Inspector of Police (`PSI'

for short) were to be filled in. The appellants

herein were Constables. They made a

representation on January 8, 1987 along with

Mohd. Abbas, Mohd. Amin and Hamidullah Dar. A

similar representation was also made on the

same day by one Abdul Rashid Rather to Hon'ble

the Chief Minister of the State of Jammu &

Kashmir. In both the representations, a request

was made to consider the cases of the

respective applicants for appointment to the

post of PSI by granting necessary relaxation in

Rules against 50% direct recruitment quota as

envisaged by Regulation 174 of Chapter VII of

Jammu & Kashmir Police Manual. The

representations made by the petitioners and

other persons were sent by the office of the

Hon'ble Chief Minister, Jammu & Kashmir for

comments to the Director General of Police,

Jammu & Kashmir by a forwarding letter dated 3

January 14, 1987. The then Director General of

Police, Jammu & Kashmir, vide his letter dated

January 23, 1987 recommended the name of

Hamidullah Dar only for his appointment to the

post of PSI under 50% direct recruitment quota.

Accordingly, Hamidullah Dar, Constable was

appointed as PSI vide order dated April 1,

1987. Remaining five persons including the

appellants herein as also Abdul Rashid Rather

were neither recommended for such appointment,

nor appointed to the post of PSI. The

appellants along with Mohd. Abbas and Mohd.

Amin, filed SWP No. 351 of 1987 in the High

Court of Jammu & Kashmir. The writ petition was

disposed of on September 13, 1991 and a

direction was issued to the Director General of

Police, Jammu & Kashmir to consider the cases

of the petitioners for appointment to the post

of PSI by relaxation of Rules. Abdul Rashid

Rather also filed a similar petition which was

registered as SWP No. 519 of 1987 in the High

Court of Jammu & Kashmir at Srinagar. The said 4

petition was also admitted and rule nisi was

issued.

3. Pursuant to the direction given by the

High Court of Jammu & Kashmir (Jammu Bench) in

SWP No. 351 of 1987, the Director General of

Police considered the cases of the appellants,

of Mohd. Abbas and of Mohd. Amin, but the

prayer was rejected vide order dated December

13, 1991 without any reason. They, therefore,

filed Contempt Petition No. 24 of 1992 before

the High Court and once again, the High Court

vide order dated September 16, 1992, issued

direction to consider the cases of the

applicants afresh. However, again the

applicants were not granted benefit. Another

Contempt Petition No. 162 of 1992 was filed in

December, 1992 which was also disposed of on

May 9, 1994. The appellants, in the

circumstances, filed Letters Patent Appeal No.

45 of 1994 against the order dated May 9, 1994.

The said appeal was disposed of on July 11,

1997. Pursuant to the observations made by the 5

Division Bench, the appellants filed fresh SWP

No. 3735 of 1997 before the High Court of Jammu

& Kashmir at Srinagar which was subsequently

transferred to Jammu Bench.

4. In the meanwhile, SWP No. 519 of 1987

filed by Abdul Rashid Rather, Constable came up

for hearing before a Single Judge and the

learned Single Judge allowed the said petition

by judgment and order dated September 24, 1998.

The appellants have annexed a copy of the said

judgment in the present proceedings. The State,

being aggrieved by the order of the Single

Judge, preferred Letters Patent Appeal No. 8 of

1999 before the Division Bench of the High

Court, but the Division Bench dismissed the

said appeal by judgment and order dated July

30, 1999. The decision in the Letters Patent

Appeal is also produced by the appellants. The

Government, thereafter, preferred Special Leave

Petition in this Court but it was also

dismissed by this Court and the order passed by

the High Court attained finality.

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5. In the light of the judgment delivered

in the case of Abdul Rashid Rather given by a

Single Judge and confirmed by the Division

Bench as also by this Court, Abdul Rashid

Rather had been appointed as PSI on December

16, 1999 and granted all consequential benefits

with effect from April 1, 1987. Even that order

has been produced by the appellants.

6. In view of the above decision and the

orders passed by the High Court and by this

Court when SWP No. 3735 of 1997 filed by the

present appellants came up for hearing before a

Single Judge, it was allowed by judgment and

order dated April 30, 2001 following the

earlier judgment wherein the learned Single

Judge, inter alia, observed that the cases of

the appellants-writ petitioners were similar to

the case of writ petitioner in Writ Petition

No. 519 of 1987. Accordingly, a direction was

issued to respondents to appoint the appellants

and to grant all benefits which had been 7

granted to writ petitioner in Writ Petition No.

519 of 1987 (Abdul Rashid Rather).

7. Being aggrieved by the judgment and

order passed by the learned Single Judge, the

Government of Jammu & Kashmir filed Letters

Patent Appeal No. 466 of 2001 and the said

appeal came to be allowed by the Division

Bench. The judgment and order passed by the

Single Judge was set aside and the Writ

Petition was ordered to be dismissed. A review

field against the said judgment was also

dismissed by the Division Bench. The said order

is challenged in the present appeals by the

appellants.

8. On April 28, 2003, this Court issued

notice to the respondents. Leave was granted on

October 27, 2003. As per the order passed by

the Bench presided over by Hon'ble the Chief

Justice of India, a direction was issued to the

Registry on April 11, 2008 to list the appeals

"during summer vacation". That is how the

matter has been placed before us.

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9. We have heard learned counsel for the

parties.

10. The learned counsel for the appellants

vehemently contended that the Division Bench of

the High Court was wholly in error in allowing

the appeal and in setting aside the order

passed by the learned Single Judge. It was

submitted that when in an identical case, a

petition was allowed by a Single Judge and the

said order was confirmed not only by the

Division Bench of the High Court but also by

this Court, the matter was finally concluded in

favour of the appellants and the Division Bench

ought not to have reversed the decision of the

Single Judge. It was also submitted that as per

settled law, one Division Bench of the High

Court cannot refuse to follow a judgment

rendered by another Division Bench of the same

Court and when in a similar case another

Division Bench has dismissed the Letters Patent

Appeal against the judgment rendered by a

Single Judge, in the instant case, the Division 9

Bench ought to have followed the said course

which has not been done. It was submitted that

even if the Division Bench felt or was of the

view that the judgment and order passed by the

Division Bench in a similar case did not lay

down correct law or the Court was not right in

granting the relief, only course available and

to be followed was to refer the matter to a

`larger' Bench. But the Division Bench failed

to do so. The Division Bench ought to have

considered the fact that in a similar matter,

the State of Jammu & Kashmir approached this

Court and even Special Leave Petition was

dismissed. Thus, there was no earthly reason on

the part of the Division Bench in not granting

the benefit to which they were otherwise

entitled, which had been granted in favour of

similarly situated employee and against which

proceedings had been initiated but the State

authorities failed upto this Court.

11. The learned counsel also submitted

that the impugned action was clearly violative 10

of Articles 14 and 16 of the Constitution. It

was submitted that initially such violation had

been committed by the State Authorities i.e.

Director General of Police and State Government

inasmuch as though cases of all the Constables

were similar and representations were made on

one and the same day, the Director General of

Police, Jammu & Kashmir recommended the name of

only Hamidullah Dar who was appointed as PSI

and cases of other similarly situated

applicants were rejected. The appellants and

other adversely affected Constables approached

the High Court and a Single Judge allowed the

petitions and directed the Government to

consider the cases of the writ petitioners. In

spite of such an order, the Government did not

appoint the applicants as PSIs without any

reason whatsoever. Contempt Petitions were

required to be filed but even those orders were

not complied with. In Letters Patent Appeal,

again direction was issued by the Division

Bench. In any case, after the decision in SWP 11

No. 519 of 1987 (Abdul Rashid Rather), the

Government ought to have granted benefits to

the appellants which was not done. The learned

Single Judge was, therefore, right in allowing

the petition. By setting aside the judgment and

order of the learned Single Judge and in

allowing Letters Patent Appeal as also in

dismissing Review Petition, the Division

Bench of the High Court had committed an error

of law as well as of jurisdiction and the

present appeals deserve to be allowed.

12. The learned counsel for the

respondents-State, on the other hand, supported

the judgment and order of the Division Bench of

the High Court. He submitted that the Division

Bench was right in setting aside the judgment

and order passed by the Single Judge as

according to the Bench, there was no reason to

grant benefit to the writ petitioners by

appointing them as PSIs by relaxing Regulation

174. It was stated that so far as Hamidullah

Dar is concerned, he was having Postgraduate 12

Degree and his case was totally different and

that is how his name was recommended by the

Director General of Police and accordingly he

was appointed as PSI. Other Constables did not

possess such qualification and hence the

Director General did not think it proper to

recommend their cases for appointment as PSI

and there was no illegality in taking such

action.

13. It was admitted by the learned counsel

for the respondents-State that the writ

petitions filed by the appellants-writ

petitioners came to be allowed and direction

was issued to the authorities to consider their

cases. But it was stated that the cases of the

writ petitioners were considered by the

authorities and it was not found fit to

recommend their appointments as PSIs and

accordingly the prayer was rejected. It was

also admitted that writ petition of Abdul

Rashid Rather was allowed and he was granted

benefit but it was stated that it was done 13

because of the issuance of writ by the learned

Single Judge which was confirmed by the

Division Bench as well as by this Court. Since

the writ petition was allowed and the said

decision was approved by the Division Bench as

also by this Court, the authorities had no

alternative but to implement the said order.

The said fact, therefore, cannot be construed

in favour of the appellants. When a similar

order was passed by a Single Judge in favour of

the appellants and directions were issued by

the Single Judge to give benefit similar to one

which had been granted to Abdul Rashid Rather,

the State Government approached the Division

Bench and the Division Bench allowed the intra-

Court appeal. In the circumstances, the action

of the State Authority cannot be termed as

illegal. It was, therefore, submitted that the

appeals deserve to be dismissed.

14. Having heard learned counsel for the

parties and having gone through the facts and

circumstances of the case, in our opinion, the 14

appeals deserve to be allowed. Firstly,

representations were made by several Constables

requesting the authority to appoint them to the

post of PSI. The office of the Hon'ble Chief

Minister sent all the applications to the

Director General of Police who recommended only

one name of Hamidullah Dar. It was stated that

the said Constable was having Postgraduate

qualification and the Director General thought

it proper to recommend his name for appointment

as PSI in relaxation of Regulations. Even if

it is assumed that educational qualification

was a relevant consideration, at the most it

would go to show that appointment of Hamidullah

Dar was proper. Nothing more than that.

15. But, once a similar case of Abdul

Rashid Rather came up for consideration before

a Single Judge and his writ petition was

allowed, a direction was issued to the

authorities to appoint him as PSI by granting

consequential benefits, the learned Single

Judge could not be said to have committed any 15

error of law in following the said decision, in

allowing the writ petition filed by the present

appellants-writ petitioners and in issuing

similar directions to the State Authorities.

This was particularly true because the judgment

and order of the learned Single Judge was

confirmed by the Division Bench and even by

this Court inasmuch as Special Leave Petition

was also dismissed.

16. In our considered opinion, in the

light of the facts and circumstances, the

Government ought to have accepted and respected

the decision of the learned Single Judge

without filing intra-Court appeal. No

distinguishing feature had been brought to the

notice of the Division Bench, nor the Division

Bench set aside the judgment and order passed

by the learned Single Judge holding or

observing that though Abdul Rashid Rather was

granted the benefit and the learned Single

Judge ordered extension of those benefits to

the writ petitioners, they were not entitled 16

because the case of Abdul Rashid Rather was

different. Even before us, nothing special or

extraordinary fact or circumstance was shown to

distinguish the case of Abdul Rashid Rather and

of the present appellants. In our opinion,

therefore, the learned Single Judge was wholly

justified in allowing the writ petition and the

Division Bench ought not to have interfered

with the said decision.

17. It was no doubt contended by the

learned counsel for the respondent-State that

Article 14 or 16 of the Constitution cannot be

invoked and pressed in service to perpetuate

illegality. It was submitted that if one

illegal action is taken, a person whose case is

similar, cannot invoke Article 14 or 16 and

demand similar relief illegally or against a

statute. There can be no two opinions about the

legal proposition as submitted by the learned

counsel for the State. But in the case on

hand, in our opinion, there was no illegality

on the part of the learned Single Judge in 17

allowing Writ petition No. 519 of 1997

instituted by Abdul Rashid Rather and in

issuing necessary directions. Since the action

was legal and in consonance with law, the

Division Bench confirmed it and this Court did

not think it proper to interfere with the said

order and dismissed Special Leave Petition. To

us, in the circumstances, the learned Single

Judge was wholly right and fully justified in

following the judgment and order in Writ

Petition No. 519 of 1987 in the case of present

writ petitioners also. In fairness and in view

of the fact that the decision in Abdul Rashid

Rather had attained finality, the State

Authorities ought to have gracefully accepted

the decision by granting similar benefits to

present writ-petitioners. It, however,

challenged the order passed by the Single

Judge. The Division Bench of the High Court

ought to have dismissed Letters Patent Appeal

by affirming the order of the Single Judge. The

Letters Patent Appeal, however, was allowed by 18

the Division Bench and the judgment and order

of the learned Single Judge was set aside. In

our considered view, the order passed by the

learned Single Judge was legal, proper and in

furtherance of justice, equity and fairness in

action. The said order, therefore, deserves to

be restored.

18. For the foregoing reasons, the present

appeals deserve to be allowed and are

accordingly allowed. The judgment passed by the

Division Bench in Letters Patent Appeal as well

as Review Petition are set aside and the order

passed by the learned Single Judge in SWP No.

3735 of 1997 is restored. The appellants are

held entitled to all the reliefs which had been

granted to Abdul Rashid Rather in pursuance of

the judgment and order dated September 24, 1998

in SWP No. 519 of 1987. The respondent-State of

Jammu & Kashmir will grant all the benefits as

have been granted to Abdul Rashid Rather within

a period of three months from today. 19

19. On the facts and in the circumstances,

the appeals are allowed with costs.

...............................................................J. (C.K. THAKKER)

NEW DELHI, ...............................................................J. August 01, 2008. (LOKESHWAR SINGH PANTA)