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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)Allow the present OA; and may be pleased to
b)To quash and set aside the communication of Respondent no. 2 bearing no. Pers-M-1-2021-78306 dated 28-12-2021 addressed to the Respondent no. 3 whereby it has been conveyed to the Respondent no.3 that the case of the applicant for relaxation in the height for conversion as constable has been examined and since such natured cases were earlier rejected so, the case applicant cannot be considered for conversion as constable.
c)To consider the case of the applicant for conversion as constable from the post of follower with effect from 2003 after according sanction to the relaxation of the condition of height to the extent of 1/2 inches and may also direct the respondents to grant all consequential service and monetary benefits on the analogy of similarity situated other persons who were under height and the respondents have granted relaxation in the height in respect of those persons and the relaxation was granted upto 1 1/2 inch; and may also be pleased to grant
d)Any other appropriate order, direction and command which this Hon'ble Tribunal may deem just fit proper and expedient may kindly be issued in favour of applicant and against the respondents.”
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The case of the applicant, as projected in the Original Application, is that he initially served as a Special Police Officer (SPO) and, on account of his performance in anti-militancy operations and on the recommendations of the Superintendent of Police (Operations), Baramulla and the DIG, Baramulla, was appointed as a Follower in the Police Department vide Order No. 1327/1999 dated 26.11.1999. The applicant is stated to be a matriculate and belongs to the RBA category. He claims to have rendered an unblemished service and to have earned various commendation certificates, felicitations and cash rewards during the course of his service.
It is averred that in the year 2003, after serving as a Follower for the requisite period, the applicant sought his conversion from Follower to Constable. His case was processed by the departmental authorities but was returned by respondent No. 3 to respondent No. 4 vide communication dated 10.08.2004 on the ground that he did not fulfil the prescribed criteria for such conversion. The matter was thereafter repeatedly taken up by respondent No. 4 with respondent No. 3, including through communications dated 12.03.2005, 02.02.2009, 22.03.2010 and 20.06.2012, but according to the applicant, no final decision favourable to him was taken. The applicant maintains that the only impediment in his conversion was a marginal deficiency in the prescribed height.
The applicant further contends that his case remained pending for a considerable period despite repeated representations and inter-departmental correspondence. During the intervening period, according to him, a number of similarly situated SPOs/Followers who were deficient in height were granted relaxation and consequently appointed/converted as Constables. The applicant relies upon various orders stated to have been issued between the years 2000 and 2018 to contend that relaxation in the prescribed height had been granted in several comparable cases. He accordingly claims discriminatory treatment inasmuch as similar relaxation was not extended to him.
The applicant thereafter again represented his case before the competent authorities seeking relaxation in height and conversion as Constable on the analogy of similarly situated persons. His case was recommended by the subordinate authorities and ultimately forwarded by the Security Headquarters to the Police Headquarters vide communication No. SHQ/Estt/Foll-Conv/2021/15844-45 dated 30.10.2021 for consideration.
The grievance of the applicant arose when, upon examination of his case, Police Headquarters vide communication No. Pers-M-1-2021-78306 dated 28.12.2021 informed the Additional Director General of Police (Security), J&K that the applicant could not be considered for conversion as Constable. The said decision was based upon the position that cases involving relaxation in height had earlier been referred to the Government and rejected. Aggrieved thereof, the applicant has approached this Tribunal seeking quashing of the communication dated 28.12.2021 and a direction to the respondents to consider his conversion from Follower to Constable by granting the requisite relaxation in height, with consequential service and monetary benefits.
The respondents have filed their reply statement wherein they have averred as follows: -
On merits, the respondents admit that the applicant was appointed as a Follower in the J&K Police in the year 1999. It is further admitted that Security Headquarters, J&K forwarded his case for conversion as Constable vide communication dated 30.10.2021. The matter was examined at Police Headquarters and it was found that the applicant had crossed the prescribed age limit and did not conform to the prescribed height requirement for the constabulary. His date of birth is stated to be 19.04.1979. Accordingly, the ADGP Security, J&K was informed vide communication dated 28.12.2021 that the applicant could not be considered for conversion as Constable.
The respondents further contend that similar cases seeking relaxation in the prescribed height had earlier been referred to the Government but had not been accepted. Reference has specifically been made to the case of Kareeb/Areeb Akhter, whose case for relaxation on account of being under-height was referred to the Home Department. The Home Department vide communication dated 23.02.2004 held that the concerned candidate, being deficient in the prescribed height, was not eligible for appointment as Constable. The respondents acknowledge that there had been instances in the past where the Government relaxed the height requirement; however, they contend that, in view of the judgment of the Hon'ble Supreme Court in Suraj Prakash Gupta v. State & Ors., the Government stopped making appointments by relaxing the recruitment rules/eligibility criteria. The aforementioned comparable claim was ultimately rejected by the Home Department vide Order No. 131-Home of 2023 dated 14.03.2023. c) It is thus the stand of the respondents that the applicant neither satisfies the prescribed age criterion nor the physical standard relating to height and, therefore, cannot claim conversion as Constable as a matter of right. The respondents maintain that relaxation of recruitment standards is exceptional and cannot be demanded merely because relaxation may have been granted in certain other cases. They accordingly pray for dismissal of the Original Application as being devoid of merit.
In the rejoinder to the reply statement the petitioner has averred as follows: -
In the rejoinder, the applicant has controverted the stand taken by the respondents and reiterated that he had initially served as an SPO and was thereafter appointed as a Follower on the basis of his performance in anti-terrorist/anti-militancy operations. He submits that after rendering more than three years of service as a Follower, he sought conversion as Constable at a time when, according to him, he satisfied the relevant eligibility requirements except for a marginal deficiency in height. His case was repeatedly forwarded to the higher authorities in the years 2005, 2009, 2010 and 2012 but remained undecided.
The applicant specifically disputes the respondents' assertion that relaxation of the prescribed eligibility conditions had ceased after the judgment in Suraj Prakash Gupta. According to him, the departmental record itself demonstrates that relaxation continued to be granted subsequently. He relies upon instances between 2000 and 2018 and, in particular, refers to the case of Bashir Ahmed Sheikh, wherein relaxation in height is stated to have been granted in 2018. He has also placed reliance upon Government Order No. 339-Home of 2022 dated 19.09.2022, whereby, according to him, relaxation of one inch in height was granted in favour of SPO Rameez Raja to make him eligible for appointment as Constable in the J&K Police. The applicant contends that this subsequent order contradicts the respondents' plea that relaxation in the basic eligibility criteria had altogether been discontinued.
The applicant further relies upon communication No. Pers-M-475/2011/33797-99 dated 20.06.2022 issued by the DGP, pursuant to Government Order No. 155-Home-2022 dated 24.05.2022, under which sanction was allegedly accorded for appointment of ten SPOs as Constables by granting relaxation in age and educational qualification. On the strength of these instances, the applicant contends that the power of relaxation in respect of age, educational qualification and physical standards continued to be exercised by the respondents and, therefore, denial of similar consideration to him is arbitrary and discriminatory.
As regards the respondents' objection that the applicant has crossed the prescribed age limit, the applicant submits that the said circumstance cannot be put against him because he had sought conversion much earlier, when his case was initially processed by the department. According to him, the subsequent delay in deciding his claim was entirely attributable to the respondents, despite repeated processing and forwarding of his case at different levels. He, therefore, contends that he cannot be denied consideration merely because he became overage during the prolonged pendency of his claim before the departmental authorities.
The applicant accordingly reiterates that his claim deserves to be considered on the same footing as other similarly situated SPOs/Followers who were granted relaxation in the prescribed eligibility conditions and thereafter appointed/converted as Constables. He maintains that rejection of his claim, despite the repeated departmental processing of his case and the instances of relaxation relied upon by him, amounts to discriminatory treatment and warrants interference by this Tribunal.
We have heard learned counsel for the parties and carefully considered the pleadings and material placed on record. The short question requiring determination is whether the rejection of the applicant's claim vide communication dated 28.12.2021 can be sustained in the manner in which it has been made.
At the outset, it needs to be observed that appointment or conversion to a post carrying prescribed eligibility conditions cannot ordinarily be claimed as an absolute right merely because an employee desires such conversion. Equally, relaxation of an eligibility criterion cannot ordinarily be demanded as a matter of course. The authority competent under the applicable rules or policy must take a decision in accordance with the governing provisions.
Therefore, this Tribunal would not be justified in itself granting relaxation in the prescribed height or directing the respondents straightaway to convert the applicant as Constable. Such a direction would amount to the Tribunal substituting its own decision for that of the authority entrusted with consideration of relaxation under the applicable rules/policy.
Central Administrative Tribunal9. However, the matter does not end there. The respondents are public authorities and, while exercising discretionary power, are required to act fairly, consistently and without arbitrary discrimination. Where an applicant specifically relies upon comparable instances in which the competent authority has granted relaxation, those cases cannot simply be ignored. The competent authority must examine whether the cases relied upon are genuinely comparable and, if they are not, record the material distinction which warrants different treatment.
In the present case, the respondents themselves acknowledge that there have been instances in which the Government had relaxed the prescribed height standard. Their defence essentially is that such relaxation subsequently ceased. The applicant, however, has placed a specific subsequent instance on record, namely Government Order No. 339-Home of 2022 dated 19.09.2022, under which he asserts that one-inch relaxation in height was granted to SPO Rameez Raja for appointment as Constable.
Similarly, the applicant has relied upon Government Order No. 155-Home-2022 dated 24.05.2022 and the consequential communication dated 20.06.2022, whereby relaxation in age and educational qualification is stated to have been granted in favour of ten SPOs for appointment as Constables. Whether those persons were similarly situated to the applicant in all material respects is undoubtedly a matter for the competent authority to determine. Nevertheless, once such specific instances have been brought on record, they cannot be brushed aside by a general assertion that relaxation is no longer granted.
The objection regarding age also requires proper examination. The respondents rely upon the applicant’s date of birth as 19.04.1979 and contend that by the time his case was considered in 2021, he had crossed the prescribed age limit. The applicant, however, contends that he had sought conversion much earlier and that his case was repeatedly processed over the years but remained undecided for reasons not attributable to him. The record referred to in the rejoinder shows that his case was forwarded on several occasions over a prolonged period.
We are not expressing any final opinion as to whether the applicant was legally entitled to have his age reckoned with reference to the date on which he originally sought conversion. That question necessarily depends upon the relevant rules/policy governing conversion of Followers into Constables. Nevertheless, where the applicant’s case had admittedly been under departmental consideration much earlier, rejection solely with reference to his age at a substantially later point of time requires examination in the context of the applicable rules and the history of processing of his case.
The principle that emerges is that while the applicant cannot claim relaxation merely on the basis that it was granted to somebody else, he can legitimately claim fair and equal consideration. Equality does not require repetition of an illegality, if any; but, conversely, a competent authority cannot invoke a supposed absolute prohibition against relaxation in one case while continuing to exercise the very same power in genuinely comparable cases. The relevant question is therefore not simply whether relaxation was ever granted to others, but whether the relaxation relied upon by the applicant was granted under the same or comparable policy, by the competent authority, in materially similar circumstances.
Viewed in this background, the impugned communication dated 28.12.2021 does not satisfactorily address the complete controversy. It does not appear from the material placed before us that the applicant’s claim was examined with reference to the several earlier occasions on which his case had been processed, the effect of the intervening delay upon the age objection, the actual extent of his height deficiency, or the comparable cases of relaxation relied upon by him.
At the same time, we are unable to accept the applicant’s prayer for a direct direction to convert him as Constable with effect from the year 2003 and to grant all consequential monetary benefits. Neither the entitlement to relaxation nor the date from which any eventual conversion could operate can appropriately be determined without first examining the governing rules/policy and the factual comparability of the instances relied upon.
The ends of justice would, therefore, be adequately met by requiring the competent authority to reconsider the applicant’s claim comprehensively and objectively instead of this Tribunal itself directing relaxation or conversion.
In view of the foregoing discussion, the Original Application is partly allowed. Communication No. Pers-M-1-2021-78306 dated Central Administrative Tribunal28.12.2021, insofar as it rejects the applicant’s claim for conversion as Constable without a comprehensive examination of the aforesaid aspects, is hereby set aside.
The competent authority amongst the respondents is directed to reconsider the applicant’s case for conversion from Follower to Constable strictly in accordance with the rules/policy governing the field. While undertaking such reconsideration, the competent authority shall specifically examine:
the eligibility of the applicant with reference to the stage at which his case was originally taken up and processed for conversion;
the official record regarding the applicant’s height and the exact extent of deficiency, if any;
the effect, in accordance with the applicable rules/policy, of the time consumed in processing the applicant’s case upon the objection regarding his age;
the earlier communications through which the applicant’s case was processed/forwarded at different points of time; and
the cases specifically relied upon by the applicant, including the instances reflected in Government Order No. 339-Home of 2022 dated 19.09.2022, Government Order No. 155-Home-2022 dated 24.05.2022, and other orders placed on record whereby relaxation in the relevant eligibility conditions is stated to have been granted.
If, upon such examination, the persons relied upon by the applicant are found to be similarly situated in all material respects and their relaxation was granted under a policy/rule applicable to the applicant, the respondents shall accord equivalent consideration to the applicant.
It is made clear that this order shall not be construed as a direction to grant relaxation in height or age, nor as a direction for automatic conversion/appointment of the applicant as Constable. The competent authority shall exercise its jurisdiction independently and in accordance with the applicable rules and policy. What is directed is a lawful, fair and non-discriminatory reconsideration of the applicant’s case.
The aforesaid exercise shall be completed and a reasoned and speaking order shall be passed and communicated to the applicant within a period of 12 weeks from the date of receipt of a certified copy of this order.
In the event the applicant is ultimately found eligible and the competent authority decides to grant the requisite relaxation and conversion, it shall also determine, in accordance with the applicable rules and law, the date from which such conversion and consequential service benefits would be admissible. No direction for retrospective monetary benefits or back wages is being issued by this Tribunal at this stage.
The Original Application stands partly allowed and disposed of in the above terms. Pending M.A(s), if any, shall also stand disposed of.
No order as to costs.