Mukhtar Ahmad Dar vs State of J & K

Syed BashirudDin, J.—Petitioner's case is that on applying for the post of Constable in IVth Bn JKAP Srinagar on advertisement, petitioner appeared in the interview and was selected. Vide letter dated 6.7.1992 (annexureP), Commandant JKAP IVth Bn Srinagar intimated SSP Anantnag that among others petitioner was also selected and requested for verification of the petitioner's `character antecedents' for issuing formal appointment order in favour of petitioner. Pursuant to this requisition SSP Anantnag, informed the Commandant JKAP IVth Bn that nothing adverse is against petitioner and intimated him this position vide signal dated 15.7.1992 (annexurePI). Respondents failed to issue the formal orders, though other candidates selected with the petitioner, were given formal orders and allowed to join their duties. The father of the petitioner approached Inspector General of Police JKAPRespondent No. 3 and made a formal representation requesting for issuance of formal orders in favour of his sonpetitioner. Respondent No. 3 asked the Commandant of IVth Bn JKAPRespondent No. 4 to deal with the matter on merits (annexureP2). Petitioner's father approached Chief Secretary (annexureP3) in the matter. But all this failed to evoke any response. Petitioner has been left out, while other selectees have been taken, without any rhyme or reason. The action of the Commandant in not issuing the formal orders and maintaining stony silence in the matter, while pointing the other candidates who were selected with the petitioner, amounts to arbitrariness and is discriminatory. Petitioner has been deprived illegally of appointment to the post which he had earned and for which he got selected on merit.

Respondents have filed reply. It is contended that the petitioner was not selected, but while selection was under process, petitioner's character verification was sought. Petitioner has failed in the tests and therefore, has not been selected. It is also mentioned that as the short time was at the disposal of recruiting agency, therefore, process of selection as also process of verification of character antecedents were taken simultaneously.

Though the petitioner's character and antecedents were verified and there was nothing adverse against him, but he was not selected as he has not qualified the test. He was not selected as contended by the petitioner. It is also averred that in the order (AnnexureP1), it was inadvertently written that "they are being selected". While the fact is that the process of selection was on. The petitioner not having made to the selection grade is not entitled to any appointment.

The foundation on which petition has been based, has been subject of writ petition SWP No. 498/96 titled Ghulam Mohiuddin Shah v. State and others. Before the Single Bench, the argument that the words in the order `are being considered' has been inadvertently written and that `there has been no selection', has been turned down by the Court. The Court has interpreted annexure P1 as selection to be followed by the appointment

order. This view of the S.B. has been approved by the LPA Bench in LPA No. 242/96 titled State of J&K and other v. Ghulam Mohiuddin Shah.

The AAG while conceding that Ghulam Mohiuddin Shah figuring at S.No. 2 in annexureP1 has been appointed pursuant to the above judgment of the Court, contends that the petitioner has not been appointed because he was not selected. The reply and defence in this case is very much the same, as pleaded and put forth by respondents in SWP 498/96 (supra).

Petitioner's case is based on annexureP1 which not only says that the five candidates named therein including petitioner and said Ghulam Mohiuddin Shah are being appointed, but also mentions that after verification of character antecedents, formal appointment orders are to be issued. The Hon'ble Single Bench presided over by Hon'ble Bhawani Singh, J, as his Lordship then was, in the context of this order, observed :

..... Perusal of the material on record indicates that the petitioner was selected that is why character verification was undertaken, unless the candidate is selected, there is no question of character verification. Contention that words "selected for their appointment" was written inadvertently for words "are being considered" is untenable. There is marked difference between two expressions. Former is used when selection is complete which may not be true in the case of latter. Similarly, the contention that the petitioner failed in some tests is also belated besides being vague.

Communication (AnnexureP1) militates against this kind of defence against respondents to the hilt and, therefore, such a defence cannot be legitimately taken by the respondents at this stage"".

In appeal against the judgment, the D.B observed :

..... but the fact remains that the letter which has been issued by the Commandant, JKAP IV Bn, clearly shows that the petitioner/respondent herein is one of the persons who figured in the selection list and obviously on that count, communication came to be issued to the Address of Superintendent of Police for verification of character antecedents of the selected candidates including the writ petitioner. The plea taken by Mr. Sadiq that the person of the writ petitioner/respondent herein has not been selected is only an afterthought and is not well founded, as has been observed and held by the writ Court also.

In view of the interpretation of the order by the Hon'ble Single Bench and Hon'ble Division Bench, there is hardly any scope for any other interpretation or view to be taken of the matter, as the learned AAG urges this Court to take. The order has been held to be a selection list. If admittedly S.No. 2 (Ghulam Mohiuddin Shah) and may be others, in the list, have been appointed as Constable(s), there is no reason why the petitioner should not have been appointed after his character and antecedents were verified by SSP Anantnag. It is a case of discrimination and arbitrariness, which impinges on the foundation of equality before law and violates right of petitioner as enshrined in Articles 14 and 16 of the Constitution. Respondents have to be fair while dealing with the petitioner's case. The benefit of the judgment of S.B. and D.B. has also to flow to the petitioner. It is interesting to note that even as late as in October 1997, the Director General of Police asked the Commandant IVth Bnrespondent No. 4 to appoint the petitioner on analogy of Court orders in the case of Ghulam Mohiuddin Shah (supra), who has been appointed since (AnnexureR2). AnnexureR3 shows that even the medical report has been taken of the petitioner at Jammu on 30.6.98. In these telltale facts, failure of respondents to issue the appointment order smacks of malice in law and is vitiated by arbitrariness and discrimination.

In result, respondents are directed to appoint the petitioner against the post of Constable of JKAP IVth Bn and to issue formal orders thereto promptly. Petition is disposed of.