Sham Kumar vs State of J. and K. and Others

After the judgment was reserved, we felt that all informations pertaining to the matter are not available. We, accordingly, directed the State to

file an affidavit. The affidavit has been filed. From there, now it is clear that the post of Task Force Guards in Forest Department were created in

terms of Cabinet Decision dated December 2, 1996 implemented by Government order dated December 4, 1996. As has come on record, as on

that date, no recruitment rule was framed for recruiting those Guards. The Cabinet decision, as reflected in the Government order, directed that the

posts created thereby, except in the Police Department and Class IV posts, shall be referred to the Public Service Commission/Services Selection

Recruitment Board for recruitment. The posts of such Guards were not referred to the PSC/SSRB for recruitment; they were recruited by the

Police Department of the State. In the matter of recruitment of those Guards, rules, as are applicable for recruitment in Police Department and as

were then in vogue, were adopted. There is no dispute that the rules governing recruitment in Police Department do authorize out of turn promotion

to a recruit, who obtains the certificate of all-round best on conclusion of the training. The appellant was recruited as such Guard. He was sent for

training. Upon conclusion of his training, he obtained a certificate adjudging him as all-round best. He sought for out of turn promotion. That having

not been granted, he filed a writ petition, registered as SWP No. 137/2004. The writ petition was disposed of, directing the Government to

consider the case of appellant for out of turn promotion in accordance with rules and law governing the field. The Court also directed that, while

doing so, the case of Shri Parshutam Lal, recruited as one of such Guards and accorded such out of turn promotion, should also be considered. In

terms of the directions contained in the said order, case of appellant was considered. By an order dated 8th April, 2005, it was held out that no

recruitment rules have been framed and there is no provision for out of turn promotion. At the same time, it was stated that out of turn promotion

has been granted to Shri Parshutam Lal in relaxation of rules. Appellant filed another writ petition, being SWP No. 1112/2005,; challenging the

said order dated April 8, 2005. By the judgment and order under appeal, the writ petition has been rejected, holding that sufficient reasons have

been given while rejecting the claim of appellant. Appellant is aggrieved thus.

If there was no recruitment rule, how recruitment was made had not been indicated in the order dated April 8, 2005. At the same time, which

rule had been relaxed to give promotion to Shri Parshutam Lal had not been indicated in the order dated April 8, 2005. Further, what were the

reasons to relax such rule for Parshutam Lal and whether those reasons had any application to the case of appellant had also not been considered

while passing the order dated April 8, 2005. We are, therefore, unable to hold that the order dated April 8, 2005, impugned in the writ petition,

contained any reason, far less, suf -cient.

In the event no recruitment rules have been framed, option is either to frame the same or to adopt some other rule, though not directly relatable,

but existing. While adopting an existing rule, the whole thereof may be adopted or a part relevant to the context may be adopted. It is nobody's

case that any recruitment rule was framed at the time when recruitment of appellant was made. In opposition to the present appeal, though it has

been contended that draft recruitment rules have been made, but it is not the contention that on the basis thereof recruitment of appellant was

made. On the other hand, it is the Police Department which made recruitment of appellant, sent him to the training institution where Police

personnel are trained, and, in course of such training, appellant was imparted such training which is given to recruited police personnel. In such

situation, it would be deemed that at the time of recruitment of appellant, the State adopted the recruitment rules applicable to the Police

Department for recruitment of appellant and people similarly situate to that of him. Such rules, as aforesaid, no doubt authorize grant of out of turn

promotion to a person who has achieved the standard prescribed therefor. It is not the contention that a part of the recruitment rules applicable to

police department was adopted and the adopted part did not contain out of turn promotion.

Appellant having had achieved such prescribed standard thus became entitled to the benefit thereof, inasmuch as such rule had been adopted for

his recruitment and the rule so adopted became part of his conditions of service.

As aforesaid, though it is the contention that there is a draft rule, which do not suggest such out of turn promotion, but the fact remains, as

aforesaid, it is not the contention that the said draft rule was in existence at the time of recruitment of appellant or that the provisions contained

therein had been adopted while recruiting the appellant.

In the circumstances, we allow the appeal, set aside the judgment and order under appeal and, at the same time, allow the writ petition with a

direction upon the respondents to give to appellant what he is otherwise entitled to under law, i.e., out of turn promotion.