State of J & K
& ANR. Vs Ajay Dogra
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.
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 4conditions. 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 =", Expanded 33 ="
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.
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.
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 =" Expanded 33 =" "
respondents herein submitted their applications pursuant to the aforesaid
advertisement. However, during the course of selection it was found that none
of the respondents possesses the necessary physical qualifications as they do
not fulfill 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.
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 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 any
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.
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.
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.
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.
the light of the same, we propose to dispose of all these appeals by giving our
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 9prescribed 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
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
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 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:- ".
We are also in agreement with the submissions made by the counsel for the 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."
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
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.
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.
Court while upholding the aforesaid contentions held in paragraph 16 thus:- "
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 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."
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.
our considered opinion, the ratio of the aforesaid decisions of this Court is
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.
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.
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.
[Dr. Mukundakam Sharma ]
[ Anil R. Dave ]