STATE OF J&K Vs. ALI MOHD KHAN

JUDGEMENT

(1.) THIS appeal under Clause 12 of the Letters Patent is directed against a judgment passed on 19th July, 1994 in WP No. 758 of 1986 by a learned Single Judge of this Court (Honâ„¢ble Shri S.S. Ahmad, Chief Justice, as his lordship then was) whereby order No.489 of 1986 dated 29th May, 1986 passed by the Senior Superintendent of Police, Srinagar discharging the respondent No. 1 from service has been quashed and set -aside with directions that respondent No.1 shall be re -instated in service with all consequential benefits.

(2.) BRIEF facts relevant to adjudicating upon the controversy in this appeal are that respondent No.1 was appointed as a Constable in Jammu and Kashmir Police vide order No.541/OB dated 15 -7 -1983 issued by the Deputy Inspector General of Police, In charge District Srinagar. It shall be advantageous to reproduce the order of appointment, which reads as under: - " Order No.541/OB Dated: 15 -7 -1983 Sanction is accorded to the temporary appointment of following candidates recommended by Chairman Police Recruitment Board, J&K, Srinagar who have been found medically/physically fit as constables in pay scale of Rs.430 -625 w.e.f. the date they report for duty in Distt. Police Lines, Srinagar: 1. Ali Mohd S/o Aziz Khan Belt No. R/O Musi Keren Tangmarg. 130/S 2. Mohi -ud -din Sheikh. S/O Skinder Sheikh R/O Wusan Village 206/S. Tehsil Ganderbal. These constables shall be on probation for a period of three years and their appointment is subject of the verification of their character and antecedents and production of State Subject Certificate. In pursuance of J&K Apprentice (Requirement Rules of 1981) the above mentioned constables shall ordinarily be allowed 50% of pay and allowance, but in view of the directive of Honâ„¢ble High Court of J&K, Srinagar communicated through Finance Department Circular letter No.A/21 (SI) -1004 dated 26 -5 -1982. The operation of J&K Apprentice (Recruitment) Rules of 1981 shall be treated as in -operative. Therefore, the appointment of above mentioned constables and regulation of fixation of pay shall finally be dependent on the out -come of the writ petition. Sd/ - Dy. Inspector General of Police, In charge Distt. Srinagar." Even before the probation period of three years could be over, the order impugned in the petition dated 29 -5 -1986 was passed whereby respondent No.1 was discharged from service, this order reads as under: - " Order No,489 of 1986 Dated 29 -5 -1986 The case of constable Ali Mohd Khan son of Aziz Khan resident of Musi Keren, Tangmarg was examined. The constable was recruited as such vide order No.541/OB dated 15 -7 -1983. His case was recommended by the Chairman, Police Recruitment Board J&K. We wanted to prepare the Ch. roll of the Ct. for that, we required his educational Certificate which could indicate his age too. The Ct. has come forward with an affidavit that he is absolutely illiterate. The basic qualification for recruitment as Ct. in the Police Department is Middle standard. Since the Ct. is illiterate he cannot be retained in service as his recruitment seems to be against rules. As such he is discharged from service forthwith. Sd/ - (Jaswant Singh) IPS Sr. Superintendent of Police Srinagar."

(3.) EVEN though the learned Single Judge by a very exhaustive and detailed judgment has discussed various aspects of the case, in the present appeal filed before us by the State, we propose to confine ourselves only to one (question, viz. as to whether there was, in fact, any requirement of respondent No.1 possessing the academic qualification of Middle pass or not. It shall be on the determination of this question alone that the matter can proceed any further. If we hold and find out that there was no requirement in the recruitment process that respondent No.1 should hold the academic qualification of Middle pass, the production of the affidavit or his possessing this qualification or not etc., all pale into insignificance. For determining this question, we must take ourselves to the objections filed by the respondents in answer to the Show Cause Notice issued in the writ petition. It is worth while to mention here that after admission, the respondents in the writ petition (appellant before us) had chosen not to file any counter -affidavit. The objections filed also were not accompanied by any document, whatsoever. Para (ii) of the Preliminary objections part of their objections, reads as under: - " II. That basic qualification for appointment, as laid down in Police Rules, is prescribed Middle Pass. The petitioner lacking basic qualification has no right to hold the post and the order terminating him is quite justified. Therefore, the present petition is liable to be dismissed."