STATE Vs. MAHARAJ KRISHAN BHAT

JUDGEMENT

(1.) THIS appeal by the state is directed against order dated 30.04.2001 passed by the learned Single Judge, whereby state has been directed to grant the same relief to the writ petitioners as was granted to the writ petitioner in SWP No. 519/87.

(2.) IN brief the facts are that one Hamidullah Dar, who had been enrolled in the police Department as a constable in the year 1978, possessing Masters, Degree (Previous) from Kashmir University applied for the post of Sub Inspector in relaxation of recruitment rules. He at that time was posted in the Office of Director General of Police J&K;, Jammu, On receipt of his application, DIGP for Director General of Police, J&K; recommended that sanction be granted to the appointment of Hamidullah Dar, Constable as Sub Inspector of Police in relaxation of recruitment rules. Government vide order dated 1.4.1897 granted sanction to the appointment of Hamidullah Dar as Sub Inspector of Police against direct quota vacancy in relaxation of recruitment rules. Writ petitioners, who were graduates, felt aggrieved of the appointment of Hamidullah Dar as sub Inspector, as according to them they were also fully qualified to be appointed as Sub Inspector being not only physically, educationally and morally fit but also had better merit and suitability than Hamidullah Dar. They represented to the Government to accord same treatment to then as has been given to Constable Hamidullah Dar, but since the Government did not act on the representation, the petitioners filed writ petition being SWP No. 351/87 before the High Court Wing at Jammu praying therein that they be treated at par with Hamidullah Dar in the matter of appointment as Sub Inspector. On 13.9.1991 writ petition was disposed of with a direction to the state that while making appointment to the post of ASI/SI, the writ petitioners be also considered against the direct recruitment quota as per rules. Director General of police, J&K; vide order No 1809 of 1991 dated 13.12.1991 rejected the representation of writ petitioners on the ground that they had appeared in the test but did not make the grade and thus are not entitled for appointment to the post of ASI/SI. The writ petitioners were not satisfied with the order whereby representation was rejected as they were under the impression that they were to be given the same treatment in the matter of appointment as Sub In -spector as it was done in the case of Hamidullah Dar. The petitioners thus filed contempt petition being COA No. 24/92 for initiation of contempt proceedings against Director General of Police. The contempt petition was disposed of on 23.7.1992 with a direction to Director General of Police to consider the case of writ petitioners in case they fall in the eligibility clause and also on the touch stone of the case of Hamidullah Dar for promotion/ appointment as Sub Inspector. The case of writ petitioners was reconsidered, but vide order dated 16.9.1992 the same was rejected. Being aggrieved of the order, writ petitioners filed another contempt petition being COA No 162/92. However, vide order dated 9.5.1994 the contempt petition was dismissed as the learned Judge deciding the contempt petition was of the view that the direction for consideration of writ petitioners case afresh did not imply that they had to be necessarily selected or appointment nor envisaged that all the rules should be given to bye for appointing them to the post of Sub Inspector. Since the court's order directing their consideration subject to eligibility had been carried out, the rule issued in the contempt petition was discharged. The writ petitioners took the matter in appeal, but appeal too was dismissed on 11.7.1997.

(3.) BEFORE the writ court the writ petitioners not only cited the case of Hamidulllah Dar for giving them out of turn promotion/ appointment, but also submitted that the appointment of Hamidullah Dar challenged by one Abdul Rashid in SWP No 519/87 and the said writ petition was allowed by the Srinagar Wing of High Court on 24.9.1998. Learned Single Judge relying on the order passed in the said writ petition, whereby appointment of Hamidulah Dar was not disturbed but Abdul Rashid was directed to be given the same treatment as was given to Hamidullah Dar, allowed the writ petition directing that the petitioners be given the same treatment. Learned Single Judge also took notice of fact that against the order passed in SWP No 519/87, letters patent appeal was preferred by the state, but the same was dismissed and the SLP was also dismissed by the Supreme Court. Hence the appeal by the State.