Appointment made bypassing recruitment procedure known to law, it is violation of Article 14: SC

(Para 24) It is a settled principle of service jurisprudence and has been consistently followed by this Court that the rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, will resulted in violation of Article 14 and 16 of the Constitution.

Pankjeshwar Sharma vs The State Of Jammu And Kashmir

CIVIL APPEAL NO(s).39043905 OF 2020(Arising out of SLP(C) No(s). 2055320554 of 2013)

DECEMBER 03, 2020.

The Hon’ble Supreme Court Justices L. Nageswara Rao, Hemant Gupta, Ajay Rastogi dismissed the appeal filed by the appellants who were aggrieved with the impugned judgment passed by the Division Bench of the High Court of Jammu & Kashmir.

The selection process for the post of Sub Inspector of Police (Executive) held pursuant to an advertisement on 25 th February, 1999 issued by the 2nd respondent, Director General of Police. The State of Jammu & Kashmir invited applications for the post. The post is included in the Schedule appended to the J&K Police (Executive) Rules which is to be filled by open selection in terms of the procedure prescribed under the Rules.

It is to be noted that, neither in the scheme of Rules nor in the advertisement notice it was mentioned that the merit list of the candidates should be based on the written and viva voce test and is to be prepared separately for the Provinces of Jammu & Kashmir. But, the 2nd respondent under its own assumption published the select list of total candidates of 252 Province wise The appellants challenged the selection process on manifold grounds inter alia that the select list which was prepared Province wise is not legally permissible and it ought to have been prepared as one select list for the whole of the State of Jammu & Kashmir. They also stated that the post of Sub Inspector is a State cadre post and therefore, the selection ought to have been made by treating the State as a unit and not on the basis of residence of the candidates of Jammu & Kashmir Provinces. The writ petitioners succeeded in persuading. The writ petitions filed by them on the same was allowed with the direction that the select list be prepared afresh of the State (J&K) and those who secured 50 or more marks in the revised select list be considered for appointment without disturbing the appointments already made. Later, State respondent filed LPAs before the Division Bench of the High Court and the Division Bench by its judgment dated modified the order of the with the direction to redraw the merit list state-wise and on redrawing the merit list, if the candidates who have already been selected/appointed and come within the merit zone, they should not be disturbed but their seniority would be determined in accordance with their placement in the order of merit which would be finally prepared. The above order of the Division Bench was the subject matter of challenge which came to be dismissed by the Hon’ble Supreme Court under order dated 10 th February, 2004. The ousted candidates approached the learned Single Judge of the High Court by filing a writ petition challenging the redrawn state-wise merit list.

The 2nd respondent appointed 22 candidates, apart from the 47 ousted candidates who were earlier in the order of merit but could not find place because of the merit list being redrawn. It reveals from the record that these 22 candidates were much lower in the redrawn merit list and their placement in the order of merit was not brought to the notice of this Court and that gave rise to a further litigation. It is to be noted that, of these 22 candidates of majority of them were lower in the order of merit qua the candidates/writ petitioners who were contesting their right claiming equal and fair opportunity for seeking appointment as per their placement in the order of redrawn merit.

It is contended by the counsel for the appellants that, as the order has been passed by this Court in exercise of its power under Article 142 of the Constitution to do complete justice, it is not open to question in the collateral proceedings and Division Bench of the High Court has completely misconstrued in holding that. He also submits that, the appointments made by the respondents of 22 persons as SubInspectors is not only in violation of the statutory recruitment rules but also in violation of Article 14 of the Constitution are unsustainable and dehors the rules. A further feeble attempt to justify that there are 26 appellants who are before this Court assailing the impugned judgment of the Division Bench of the High Court was also mentioned.

On the other hand, the learned counsel for the respondents submits that 47 ousted candidates whose services were terminated after the redrawn merit list was published, were initially allowed to continue on the strength of the interim order and during pendency of the litigation, such 47 ousted candidates have been continuously working in the department right from their appointment in the year 2000 and the department had incurred huge expenses on their training courses. He also contended that,

It is not the case of the appellants that they are the senior most 22 candidates in the order of redrawn merit list, who have been left over from consideration for appointment and also informed that there are good number of candidates who are higher in the order of merit qua the present appellants in the redrawn select list which was prepared pursuant to a direction of the High Court in the first round of litigation and the candidates with whom the present appellants had a lis have been appointed in the year 2008 and have served for more than 12 years.(Para.19).

The Court has made the following observations,

It is also not the case of the appellants that they are amongst 22 candidates in the order of merit published by the 2nd respondent awaiting appointment in reference to an advertisement dated 25th February, 1999 and if their submission is accepted at the face value as prayed for, atleast the present appellants may not get a march over 22 candidates waiting in the order of merit who in the ordinary course could claim appointment to the post of SubInspector and the action of the State in extending its concession which has been recorded under the order of this Court dated 10th May, 2007 is indeed the mistake being committed, still it cannot be forced by the person as alleged to be aggrieved to perpetuate the said mistake(Para.34).

Considering the judgments of Union of India and Another vs. Kartick Chandra Mondal and Others, Arup Das and Others vs. State of Assam and Others, the Court held that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the Staterespondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India.

To conclude, we do not approve the reasoning of the High Court that appointments of these 22 candidates have been made under Article 142 of the Constitution to do complete justice but after the matter has been dilated by us, we are not inclined to Buddhi Nath Chaudhary Vs Abahi Kuar (2001) 3 SCC 328 disturb the appointment of these 22 candidates against whom a grievance has been raised by the appellants in the present batch of appeals.(Para.41)

The appeals were accordingly dismissed.

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