SHAM KUMAR Vs. STATE OF J&K

JUDGEMENT

(1.) AFTER the judgment was reserved, we felt that all informations pertaining to the matter are not available. We, accordingly, directed the State to file an affidavit. The affidavit has been filed. From there, now it is clear that the post of Task Force Guards in Forest Department were created in terms of Cabinet Decision dated December 2, 1996 implemented by Government order dated December 4, 1996. As has come on record, as on that date, no recruitment rule was framed for recruiting those Guards. The Cabinet decision, as reflected in the Government order, directed that the posts created thereby, except in the Police Department and Class IV posts, shall be referred to the Public Service Commission / Services Selection Recruitment Board for recruitment. The posts of such Guards were not referred to the PSC/SSRB for recruitment; they were recruited by the Police Department of the State. In the matter of recruitment of those Guards, rules, as are applicable for recruitment in Police Department and as were then in vogue, were adopted. There is no dispute that the rules governing recruitment in Police Department do authorize out of turn promotion to a recruit, who obtains the certificate of all -round best on conclusion of the training. The appellant was recruited as such Guard. He was sent for training. Upon conclusion of his training, he obtained a certificate adjudging him as all -round best. He sought for out of turn promotion. That having not been granted, he filed a writ petition, registered as SWP no. 137/2004. The writ petition was disposed of, directing the Government to consider the case of appellant for out of turn promotion in accordance with rules and law governing the field. The Court also directed that, while doing so, the case of Shri Parshutam Lal, recruited as one of such Guards and accorded such out of turn promotion, should also be considered. In terms of the directions contained in the said order, case of appellant was considered. By an order dated 8th April, 2005, it was held out that no recruitment rules have been framed and there is no provision for out of turn promotion. At the same time, it was stated that out of turn promotion has been granted to Shri Parshutam Lal in relaxation of rules. Appellant filed another writ petition, being SWP no. 1112/2005,; challenging the said order dated April 8, 2005. By the judgment and order under appeal, the writ petition has been rejected, holding that sufficient reasons have been given while rejecting the claim of appellant. Appellant is aggrieved thus.

(2.) IF there was no recruitment rule, how recruitment was made had not been indicated in the order dated April 8, 2005. At the same time, which rule had been relaxed to give promotion to Shri Parshutam Lal had not been indicated in the order dated April 8, 2005. Further, what were the reasons to relax such rule for Parshutam Lal and whether those reasons had any application to the case of appellant had also not been considered while passing the order dated April 8, 2005. We are, therefore, unable to hold that the order dated April 8, 2005, impugned in the writ petition, contained any reason, far less, sufficient.

(3.) IN the event no recruitment rules have been framed, option is either to frame the same or to adopt some other rule, though not directly relatable, but existing. While adopting an existing rule, the whole thereof may be adopted or a part relevant to the context may be adopted. It is nobodys case that any recruitment rule was framed at the time when recruitment of appellant was made. In opposition to the present appeal, though it has been contended that draft recruitment rules have been made, but it is not the contention that on the basis thereof recruitment of appellant was made. On the other hand, it is the Police Department which made recruitment of appellant, sent him to the training institution where Police personnel are trained, and, in course of such training, appellant was imparted such training which is given to recruited police personnel. In such situation, it would be deemed that at the time of recruitment of appellant, the State adopted the recruitment rules applicable to the Police Department for recruitment of appellant and people similarly situate to that of him. Such rules, as aforesaid, no doubt authorize grant of out of turn promotion to a person who has achieved the standard prescribed therefor. It is not the contention that a part of the recruitment rules applicable to police department was adopted and the adopted part did not contain out of turn promotion.