State Of J.& K. & Anr vs Ajay Dogra

State of J & K & Anr. .... Appellants

Versus

Ajay Dogra .... Respondent

WITH

CIVIL APPEAL NO. 3067 OF 2011

[Arising out of SLP (C) No. 24583 of 2002]

WITH

CIVIL APPEAL NO. 3068 OF 2011

[Arising out of SLP (C) No. 143 of 2003]

WITH

CIVIL APPEAL NO. 3069 OF 2011

[Arising out of SLP (C) No. 13522 of 2004]

WITH

CIVIL APPEAL NO. 3070 OF 2011

[Arising out of SLP (C) No. 13523 of 2004]

WITH

CIVIL APPEAL NO. 3071 OF 2011

[Arising out of SLP (C) No. 13524 of 2004]

WITH

CIVIL APPEAL NO. 3072 OF 2011

[Arising out of SLP (C) No. 13525 of 2004]

WITH

CIVIL APPEAL NO. 3073 OF 2011

[Arising out of SLP (C) No. 13526 of 2004]

WITH

CIVIL APPEAL NO. 3074 OF 2011

[Arising out of SLP (C) No. 13527 of 2004]

WITH

CIVIL APPEAL NO. 3075 OF 2011

[Arising out of SLP (C) No. 13528 of 2004]

WITH

CIVIL APPEAL NO. 3076 OF 2011

[Arising out of SLP (C) No. 13529 of 2004]

WITH

CIVIL APPEAL NO. 3077 OF 2011

[Arising out of SLP (C) No. 13530 of 2004]

WITH

CIVIL APPEAL NO. 3078 OF 2011

[Arising out of SLP (C) No. 13531 of 2004]

WITH

CIVIL APPEAL NO. 3079 OF 2011

[Arising out of SLP (C) No. 11661 of 2005]

WITH

CIVIL APPEAL NO. 3080 OF 2011

[Arising out of SLP (C) No. 11662 of 2005]

WITH

CIVIL APPEAL NO. 3081 OF 2011

[Arising out of SLP (C) No. 17556 of 2005]

2

WITH

CIVIL APPEAL NO. 3083 OF 2011

[Arising out of SLP (C) No. 17557 of 2005]

WITH

CIVIL APPEAL NO. 3084 OF 2011

[Arising out of SLP (C) No. 17558 of 2005]

WITH

CIVIL APPEAL NO. 3085 OF 2011

[Arising out of SLP (C) No. 17559 of 2005]

WITH

CIVIL APPEAL NO. 3087 OF 2011

[Arising out of SLP (C) No. 18422 of 2005]

WITH

CIVIL APPEAL NO. 3088 OF 2011

[Arising out of SLP (C) No. 18426 of 2005]

WITH

CIVIL APPEAL NO. 3089 OF 2011

[Arising out of SLP (C) No. 18425 of 2005]

WITH

CIVIL APPEAL NO. 3090 OF 2011

[Arising out of SLP (C) No. 18423 of 2005]

WITH

CIVIL APPEAL NO. 3091 OF 2011

[Arising out of SLP (C) No. 18427 of 2005]

WITH

CIVIL APPEAL NO. 3092 OF 2011

[Arising out of SLP (C) No. 18428 of 2005]

WITH

CIVIL APPEAL NO. 3093 OF 2011

3

[Arising out of SLP (C) No. 18429 of 2005]

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Since, all these appeals involve identical issues both on

facts and law, therefore, we have heard all these appeals in

one bunch. We also propose to dispose of all these petitions

by this common judgment and order, as the issues urged

before us are identical.

2. Delay condoned.

3. Leave granted.

4. The appellants herein issued an advertisement inviting

applications for making direct recruitment to the post of

Prosecuting Officers in Jammu & Kashmir Police, in the State

of Jammu & Kashmir. There are altogether two such

advertisement/notices, the one issued on 24.3.2000 and the

other dated 5.3.2003. In the aforesaid advertisment/notices,

various criterion were laid down as essential suitability

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conditions. One such condition was with regard to

age/physical qualifications to be possessed by the applicants.

In the said advertisement, it was clearly mentioned that

applications of only such candidates would be considered for

selection who conform to the following physical standard fixed

by the Government:-

"(i) Height - `5-6"

(ii) Chest

Unexpanded 32 =",

Expanded 33 ="

5. In the said advertisement/notices, it was specifically

indicated that Rule 176 of the Jammu & Kashmir Police Rules,

1960 (hereinafter referred as "the Police Rules") would be

applicable to the advertisement. The aforesaid

advertisement/notices also prescribed amongst other criteria,

the age/physical qualifications that must be possessed by the

applicants. It also stated that the applicants must possess

certain additional qualifications such as (i) A degree in law

from a recognised University and (ii) Minimum 2 years of

actual experience at the Bar.

5 6. Since the aforesaid advertisement refers to and

specifically states that the said Rule would be applicable to the

advertisement, the relevant part of the said Rules is required

to be stated at this stage.

7. The said Rule 176 of Police Rules prescribes amongst

other things, the physical and educational qualifications

required for direct appointment as Inspectors, sub-Inspectors

or Assistant Sub-Inspectors. It reads as follows:-

"176. Qualification for direct appointment as

Inspectors, Sub-Inspectors or Assistant Sub-

Inspectors

(1)******* ******** ******** ********

(2)******* ******** ******** ********

applications of only such candidates will be

considered for selection who conform to the

following physical standards fixed by the

Government:

(i) Height `5-6"

(ii) Chest

Unexpanded 32 ="

Expanded 33 =" "

8. The respondents herein submitted their applications

pursuant to the aforesaid advertisement. However, during the

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course of selection it was found that none of the respondents

possesses the necessary physical qualifications as they do not

fulfil the physical standards fixed by the Government either

with regard to height or with regard to chest. Since the

respondents were disqualified on the basis of aforesaid laid

down standard on physical qualifications, they filed writ

petitions in the High Court seeking for relaxation of the

aforesaid Rules regarding minimum physical

standards/qualification laid down in the advertisement as also

in Rule 176 of the Police Rules.

9. The aforesaid writ petitions filed by the respondents were

heard by a Single Judge of the Jammu & Kashmir High Court.

The learned Single Judge considered the contentions raised by

the respondents. On perusal of the respective contentions,

the High Court found that it is only the standard of physical

qualification which the respondents are lacking inasmuch as

either in the minimum width of the chest they are not fulfilling

the criteria or they do not possess the required and the

advertised height. It was also observed that Prosecuting

Officer has to appear in the Court and therefore, such officer

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would be required to exhibit mental ability rather than

physical strength and therefore, the physical qualifications are

not to stand in the way of such candidates. The High Court

further held that neither the height nor the chest or chest

expansion, being physical qualifications, could be the reason

for rejecting the applications of the respondents. It was also

held that the candidature of the respondents cannot be

rejected merely on the ground that they do not fulfill physical

criterion in view of the fact that the prescription of physical

standard cannot be said to be a criteria which has no nexus

with the object sought to be achieved. Consequently, it was

directed that the cases of all the respondents be considered for

their appointment as against the posts advertised and for

which they had submitted their applications.

10. Being aggrieved by the aforesaid orders passed by the

learned Single Judge, the appellants preferred appeals before

the Division Bench of the High Court. The said appeals were

registered as Letters Patent Appeals.

8 11. The Division Bench of the High Court held that the Single

Judge has not committed any error in concluding that

prescription of physical qualification in regard to width of the

chest or with regard to height has no nexus with the object

and therefore, no case of interference is made out.

12. Being aggrieved by the aforesaid judgments and orders

passed, the present appeals were filed on which we heard the

learned counsel appearing for the parties who have taken us

through the contents of the advertisement, Rule 176 of the

Police Rules, other relevant documents and various decisions

which were relied upon during the course of the arguments.

13. In the light of the same, we propose to dispose of all

these appeals by giving our reasons.

14. A perusal of the writ petitions would prove and establish

that the only prayer made in those writ petitions was to grant

relaxation to the criteria and standard of physical conditions

prescribed for and required to be fulfilled. In aforesaid writ

petitions, neither the validity of Rule 176 with regard to

physical conditions were challenged nor such conditions

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prescribed in the advertisement were challenged on the

ground of its validity contending inter alia that there is no

nexus of the said conditions with the object sought to be

achieved. We find that the physical conditions prescribed in

the advertisement are in consonance with Rule 176 of the

Police Rules which are statutory Rules. No where in the

pleadings, it is stated that such conditions prescribed are

illegal or invalid. Constitutional validity of the aforesaid Rule

was never challenged in any of the writ petitions.

15. The High Court, however, without there being any

pleading in that regard went beyond the pleadings and held

that such physical conditions laid down are bad and arbitrary

as what has been prescribed have no nexus with the object

sought to be achieved.

16. The aforesaid decision rendered by the High Court is

contrary to and inconsistent with the law laid down by this

Court in the case of V.K. Majotra Vs. Union of India & Ors.

reported in (2003) 8 SCC 40. In the said decision also what

was urged before this Court was neither raised in the

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pleadings nor it was urged before the High Court by any of the

parties to the writ petition. In the said case, the issue was as

to whether a person not having judicial experience could be

appointed as Vice Chairman of the Central Administrative

Tribunal. This Court found that the aforesaid issue was not

raised in the writ petition and similarly, vires of the section

was also not challenged. This Court in the aforesaid context,

held as follows:-

"8. .......It is also correct that vires of Sections 6(2)(b), (bb) and (c) of the Act were not challenged in the writ petition. The effect of the direction issued by the High Court that henceforth the appointment to the post of Vice-Chairman be made only from amongst the sitting or retired High Court judge or an advocate qualified to be appointed as a judge of the High Court would be that Sections 6(2)(b), (bb) and (c) of the Act providing for recruitment to the post of Vice- Chairman from amongst the administrative services have been put to naught/obliterated from the statute-book without striking them down as no appointment from amongst the categories mentioned in clauses (b), (bb) and (c) could now be made. So long as Sections 6(2)(b), (bb) and (c) remain on the statute-book such a direction could not be issued by the High Court.........."

In paragraph 9 of the said decision, this Court has discussed

the issues in the following terms:-

"9. We are also in agreement with the submissions made by the counsel for the

11

appellants that the High Court exceeded its jurisdiction in issuing further directions to the Secretary, Law Department, Union of India, the Secretary, Personnel and Appointment Department, Union of India, the Cabinet Secretary of the Union of India and to the Chief Secretary of the U.P. Government as also to the Chairman of CAT and other appropriate authorities that henceforth the appointment to the post of presiding officer of various other Tribunals such as CEGAT, Board of Revenue, Income Tax Appellate Tribunal etc. should be from amongst the judicial members alone. Such a finding could not be recorded without appropriate pleadings and notifying the concerned and affected parties."

17. Similarly, in the case of Secretary to Government and

Anr. Vs. M. Senthil Kumar reported in (2005) 3 SCC 451,

this Court in the context of there being no challenge to the

constitutional validity of the policy providing 10 per cent

special quota to the children/wards of

serving/retired/deceased personnel of Police and like forces

held that since there was no challenge to the policy decision

contained in the two government orders, it was not proper for

the High Court to uphold the challenge to the policy decision

and to hold that the policy decision was unconstitutional and

that also overlooking the fact that the applicants were seeking

relief under the policy decision.

12 18. In State of Maharashtra & Ors. Vs. Jalgaon Municipal

Council & Ors. reported in (2003) 9 SCC 731, this Court has

observed that in absence of any challenge, the constitutional

validity of the amendment cannot be gone into.

19. We may also appropriately refer to the decision of this

Court in Sanjay Kumar & Ors. Vs. Narinder Verma and Ors.

reported in (2006) 6 SCC 467, wherein also it was contended

before this Court that in absence of any challenge to the

relevant Rules, it was impermissible for the High Court to

depart from such recruitment rules. It was also submitted

that it is not open to the High Court to ignore the recruitment

rules and to introduce a criterion which is not even

contemplated by the applicable rules.

20. This Court while upholding the aforesaid contentions

held in paragraph 16 thus:-

"16. Having heard the learned counsel on both

sides for the different contending parties, we

are of the view that the impugned judgment of

the High Court needs to be interfered with. As

already observed, there was no challenge to the

Rules in the writ petition. The learned Single

Judge was, therefore, justified in applying the

Rules and upholding the selection process

13

made by the State authorities. It was wholly

unjustified on the part of the Division Bench to

have interfered with the selection process on

the basis of the criteria which were not laid

down in the Rules and that too on an erroneous

appreciation of the Rules. The High Court failed

to see that the Rules made no distinction,

whatsoever, between degree-holders and

diploma-holders at the stage of recruitment for

the purpose of minimum qualifications. In other

words, no distinction was made between the

two categories at the stage of recruitment, but a

greater weightage was given to the degree-

holders in the post-recruitment period in the

form of a higher starting pay and also lesser

number of years of service requirement for

qualifying for promotion to the higher post. We

agree with the contention expressed by the

learned counsel for the appellants that there

was sufficient inbuilt balance maintained

between the two categories of candidates and

the impugned judgment of the High Court

completely throws the Rules out of balance.

What the executive did not think fit to do by

prescription in the Rules, could not have been

done by a judicial fiat."

21. The qualifications to be possessed by the applicants have

been prescribed in the Rules and also in the advertisement for

the reason that some of them are required to be posted at high

altitude and therefore they are required to have proper

physique so as to be able to be posted to those places.

14 22. In our considered opinion, the ratio of the aforesaid

decisions of this Court are squarely applicable to the facts of

the present case. There was no challenge to the constitutional

validity of Rule 176 of the Police Rules so far as it relates to

prescribing physical conditions regarding the height and the

chest. The stipulations in the advertisement regarding

standard of physical condition was also not challenged in the

Writ Petition. The High Court was not justified in going into

the validity of the aforesaid criterion in absence of any such

challenge. The High Court also has not specifically declared

the Rule prescribing minimum height standard and chest

standard ultra vires and, therefore, so long as that Rule exists

in the statute book, no such direction as issued by the High

Court could be issued. Consequently, the directions issued by

the High Court in the present case are required to be set aside.

23. We, therefore, hold that the High Court was not justified

to decide the validity of the aforesaid Rule and the

advertisement without there being any challenge to the same.

We also hold that it was not appropriate for the High Court to

set aside the said conditions which are mandatory in nature.

15 24. Considering the aforesaid facts and circumstances of the

case and in the light of the settled principles of law of this

Court, we allow these appeals and set aside the judgments

and orders passed by the High Court both by the Division

Bench and by the Single Judge and dismiss the writ petitions.

............................................J

[Dr. Mukundakam Sharma ]

............................................J

[ Anil R. Dave ]

New Delhi,

April 7, 2011.

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