REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  3066   OF 2011 [Arising out of SLP (C) No. 23956 of 2002]

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

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[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 ½”,  Expanded 33 ½”  

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.

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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 ½”     Expanded    33 ½”      ”

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.   

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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   

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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.

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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   

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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.

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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.

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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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