SANJEEV KHAJURIA Vs. STATE OF J&K

JUDGEMENT

(1.) EXERCISE of discretion vested with authority be it administrative, quasi judicial or judicial, is the soul searching question involved in the present petition. This petition proceeds on certain admitted facts. Petitioner and respondents 5 to 7, all claim to be sports persons possessing proficiency in sport though belonging to different fields of games. Petitioner is sports person associated with game of hand ball whereas respondent -5 is wrestler and respondents 6 and 7 are Athletics. Petitioner alongwith respondents 5 to 7 and one Bhupinder Singh were recommended for appointment under SRO82 of 1992 dated 7.4.1992 on being certified by the J&K Sports Council of their proficiency in sports vide GAD Communication dated 25.4.1994 to the Home Department. Their credentials were verified through CID Wing of the Police Department, who communicated clearance vide order dated 14.1.1995 in respect to the recommendees. They were subjected to medical examination and declared medically fit as communicated by the Medical Superintendent, Police Hospital, Jammu vide his letter dated 11.1.1995. Finally, the petitioner came to be appointed as Sub Inspector of Police ( Executive) in the Police Department vide Government Order No. 1069/GAD of 1994 dated 30.12.1994. Respondent -5 was appointed as Inspector of Police ( Executive) in the Police Department vide Government Order No. 1070/GAD of 1994 dated 30.12.1994, respondent -7 was appointed as Inspector of Sales Tax in the Sales Tax Department vide Government Order No. 782 -GAD of 1995 dated 28.9.1995 and respondent -6 was also appointed as Inspector in the Police Department. Petitioner joined Police Training School pursuant to his appointment and it is while under training that he came to know of appointment of respondents 5 and 6 as Inspectors in Police Department and respondent -7 as Inspector Sales Tax as claimed in the petition. Since the appointment of private respondents was against higher posts and petitioner was appointed on lower post, though recommended simultaneously, representation dated 14.7.1995 was made to the Commissioner/Secretary to Government, GAD seeking recommendation for his appointment on the parity of private respondents and some others. This representation was followed by some more representations, copies whereof have been placed on record. His representation was ultimately rejected vide impugned communication No. GAD(MTG) Sports/13/92 dated 18.6.1999. Consequently petitioner approached this court through the medium of present petition. Two fold prayer made in the petition is that: (i) quashment of order dated 18.6.1999 through the medium of which, his claim for higher post stands rejected; and (ii) quashment of appointments of respondents 5 to 7 against higher posts.

(2.) STATE Sports Council as also the private respondent -6 filed their separate disclaimers. Other private respondents i.e. 5 and 7 were set ex parte. As far respondent -6 is concerned, it has been urged on his behalf that though said respondent was appointed as Inspector Excise but the pay scale of Inspector Excise is equivalent to pay scale of Sub Inspector of Police Department. Therefore, the appointment of said respondent cannot be said to be against higher post notwithstanding the nomenclature of the post. I need not to go into this aspect, in view of the above position, as I found that respondent -6 cannot be equated with petitioner as far nomenclature is concerned, both being from different services though in the same pay scale. This should also satisfy the petitioner. Regarding the case of other respondents, said respondents through General Administration Department, have filed reply. Only defence projected in the reply, is repeal of SRO 82 of 1992 and the discretion exercised by the respondents in making appointment under SRO 82 of 1992. It is specifically stated that claim of petitioner cannot be considered for appointment against higher post. Firstly, said SRO stands repealed and replaced by another SRO. Secondly, appointment under sports category, is at the sole discretion of the government and the government having exercised discretion in making appointments of the petitioner and private respondents against different posts, same cannot be interfered with by the court. This is coupled with the plea that petitioner cannot seek appointment against a particular post. In respect to the impugned order dated 18.6.1999 rejecting prayer of petitioner for appointment against higher post, it is stated that the impugned order does not suffer from any error of law and the post of Inspector being a promotional post, petitioner cannot be considered for appointment against the said post. It is relevant to note here that there is absolutely nothing in the reply as to under what circumstances, respondents 5 and 7 were appointed as Inspectors Police and the petitioner as Sub Inspector in the same department.

(3.) I have heard learned counsel for the parties and perused the material on record.