STATE OF J.& K. Vs AJAY DOGRA
Bench: MUKUNDAKAM SHARMA,ANIL R. DAVE
Case number: C.A. No.-003066-003066 / 2011
Diary number: 22525 / 2002
Advocates: SUNIL FERNANDES Vs
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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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