Supreme Court of India
MAHARAJ KRISHAN BHATT AND ANR.versusSTATE OF J & K AND ORS.
- Citation
- 2008 INSC 889
- Decided
- 1 August 2008
- Disposal
- Appeal(s) allowed
- Bench
- C K THAKKER
Holding
The Supreme Court held that the Single Judge’s order granting the appellants appointment and benefits was lawful and that the Division Bench erred in setting it aside.
Summary
The appellants, constables in the Jammu & Kashmir Police, sought appointment as Sub‑Inspectors under the 50% direct recruitment quota by invoking Regulation 174 of the Police Manual. One constable, Abdul Rashid Rather, had earlier obtained such appointment through a Single Judge’s order, which was affirmed by the High Court Division Bench and the Supreme Court. The appellants obtained a similar order from a Single Judge, but the High Court Division Bench set aside that order and dismissed their letters‑patent appeal and review. The State argued that the appellants were not entitled to the same benefit because their qualifications differed and that no constitutional violation occurred. The Supreme Court examined whether the Division Bench was justified in overturning the Single Judge’s decision and whether the appellants’ cases were distinguishable from Abdul Rashid Rather’s. It held that there was no distinguishing factor, the Single Judge’s order was lawful, and the Division Bench erred, thereby restoring the appellants’ appointment and benefits.
Issues considered
- Whether the Division Bench of the High Court was justified in setting aside the Single Judge’s order granting appointment to the appellants.
- Whether the appellants’ cases are distinguishable from the earlier case of Abdul Rashid Rather under Regulation 174.
- Whether the State’s refusal to appoint the appellants violates Articles 14 and 16 of the Constitution of India.
- Whether Regulation 174 of the Jammu & Kashmir Police Manual can be relaxed for the appellants.
Subjects
service lawappointmentsub‑inspectorpoliceRegulation 174Article 14Article 16direct recruitmentwrit petitionletters‑patent appeal
Judgment
[2008] 11 S.C.R. 670
~
A MAHARAJ KRISHAN BHATT AND ANR.
~
v. ~
STATE OF J & K AND ORS.
(Civil "Appeal Nos. 8481-8482 of 2003)
AUGUST 1, 2008
B
)
[C.K. THAKKER AND LOKESHWAR SINGH PANTA,
JJ.]
Service Law - Appointment - To the post of Sub-lnspec- \
I
c tor of Police - Some Constables making representation seek- 1--
r
ing appointment through direct recruitment by relaxing the
Regulation of Police Manual - Writ petition before High Court
- In the Petition of one constable, relief granted and confirmed
..
I
upto Supreme Court- Relief granted to the present constables
by Single Judge of High Court relying on the decision passed
0
in the case of the other constable - Relief denied in writ ap-
peal as well as in Ieview - On appeal, held: Order of Single
Judge was legal, fair and in furtherance of Justice - He rightly
relied on .the case. of the other constable - Division Bench
wrongly denied the relief since the case of the other constable ,
t--
E was not distinguishable from that of the present constables - ;
Jammu and Kashmir Police Manual - Chapter VII Regula-
tion 174.
Appellants and three others, who were constables ~
F in Jammu & Kashmir Police made representations for con-
sidering their cases for appointment to the post of Sub- s
Inspector of Police under 50% direct recruitment quota,
by relaxing Regulation 174 of Chapter VII of Jammu &
Kashmir Police Manual. One constable was recom-
mended for the appointment while the representations of
G
others were rejected. The appellants as well as one of the
other constables filed separate writ petitions before High
~
Court. In the writ petition of the appellants, despite the
direction of the court, they were not considered. On the
H 670
MAHARAJ KRISHAN BHATT & ANR. v STATE OF 671
J & K & ORS.
-+
basis of observation made by Division Bench of High A
Court in LPA, they filed fresh writ petition.
In the meantime, the writ petition filed by the other
constable was allowed by High court and confirmed upto
this Court.
B
~
Single Judge of High Court allowed the writ petition
of the appellants, relying on the decision passed in the
case of the other constable. In writ appeal, Division Bench
of High court set aside the order of single Judge. Review
petition against the same was also dismissed. Hence the
present appeals. c
Allowing the appeals, the Court
HELD: 1.1 The order passed by the Single Judge of
the High Court was legal, proper and in furtherance of
justice, equity and fairness in action. Division Bench ought D
not to have interfered with the said decision. [Paras 16
and 16] [680-C; 679-D]
1.2 Single Judge of High Court could not be said to
have committed any error of law in following the decision
passed in case of the other constable and in issuing s.imi- E
tar directions to the State Authorities. This was particu-
larly true because the judgment and order of the Single
Judge passed in the case of the other constable was con-
firmed by the Division Bench of the High Court and even
by this Court. [Para 15] [678-G~; 679-A] F
:J. 1.3 In fairness and in view of the fact that the deci-
sion in the case of the other constable had attained final-
ity, the State Authorities ought to have gracefully accepted
the decision by granting similar benefits to present writ-
petitioners. [Para 17] (680-A-B] G
1.4 No distinguishing feature had been brought to
~ the notice of the Division Bench, nor the Division Bench
.... set aside the judgment and order passed by the Single
JJdge holding or observing that though another con-
H
672 SUPREME COURT REPORTS [2008] 11 S.C.R.
~
A stable was granted the benefit, the appellants were not
entitled because their case was different. Even before this
court nothing special or extraordinary fact or circum-
stance was shown to distinguish the case of another con-
stable and that of the appellants. [Para 16] [679-B-D]
. B. 1.5 It is correct that if one illegal action is taken, a
person whose case is similar, cannot invoke Article 14 or )o
16 of the Constitution of India and demand similar relief
.,
illegally or against a statute. But in the case on hand, there )-
was no illegality. on the part of the Single Judge in allow-
c ing writ petition instituted by the other constable and in
issuing necessary directions. Since the action was legal
and in consonance with law, the Division Bench con-
firmed it and this Court did not think it proper to interfere
with the said order and dismissed Special Leave Petition.
[Para 171 [679-F-G]
D
1.6. Necessary directions are issued to frant all ben-
efits to the appellant as per the order passed by the Single
Judge. (Para 18)
CIVIL APPELLATE JURISDICTION : Civil Appeal NOs.
E. 8481-8482 of 2003
From the final Judgment and Order dated 11/10/2002 and
11 /2/2003 of the High Court of Jammu and Kashmir at Jammu
in L.P.A. (SW) No.466 of 2001 and Review L.P.A. (SW) No. 42
of 2002 respectively
F
Dinesh Kumar Garg, B.S. Billworia, Mansoor Ali Khan and
Abhishek Garg for the Appellants.
Anjani Kumar Jha, S. Mehdi Imam and Anis Suhrawardy
for the Respondents.
G
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. The present appeals are directed
f
against the judgment and order passed by the Division Bench
~-
of the High Court of Jammu & Kashmir (Jammu Bench) on Oc- .,
H tober 11, 2002 in LPA (SW) No. 466 of 2001 and also against
MAHARAJ KRISHAN BHATT & ANR. v. STATE OF 673
J & K & ORS. [C.K. THAKKER, J.]
an order dated February 2, 2003 rejecting Review (LPASW) A
No. 42 of 2002.
2. The facts of the case in short are that under the Jammu
& Kashmir Police Manual, certain posts of Sub-Inspector of
Police ('PSI' for short) were to be filled in. The appellants herein
were Constables. They made a representation on January 8, B
1987 along with Mohd. Abbas, Mohd. Amin and Hamidullah Dar.
A similar representation was also made on the same day by
one Abdul Rashid Rather to Hon'ble the Chief Minister of the
State of Jammu & Kashmir. In both the representations, a re-
quest was made to consider the cases of the respective appli- c
cants for appointment to the post of PSI by granting necessary
relaxation in Rules against 50% direct recruitment quota as
envisaged by Regulation 174 of Chapter VII of Jammu & Kash-
mir Police Manual. The representations made by the petition-
ers and other persons were sent by the office of the Hon'ble D
Chief Minister, Jammu & Kashmir for comments to the Director
General of Police, Jammu & Kashmir by a forwarding letter
dated January 14, 1987. The then Director General of Police,
Jammu & Kashmir, vide his letter dated January 23, 1987 rec-
ommended the name of Hamidullah Dar only for his appoint- E
ment to the post of PSI under 50% direct recruitment quota.
Accordingly, Hamidullah Dar, Constable was appointed as PSI
vide order dated April 1, 1987. Remaining five persons includ-
ing the appellants herein as also Abdul Rashid Rather were
neither recommended for such appointment, nor appointed to F
~' the post of PSI. The appellants along with Mohd. Abbas and
Mohd. Amin, filed SWP No. 351 of 1987 in the High Court of
Jammu & Kashmir. The writ petition was disposed of on Sep-
tember 13, 1991 and a direction was issued to the Director
General of Police, Jammu & Kashmir to consider the cases of
G
the petitioners for appointment to the post of PSI by relaxation
of Rules. Abdul Rashid Rather also filed a similar petition which
~
was registered as SWP No. 519 of 1987 in the High Court of
I\
Jammu & Kashmir at Srinagar. The said petition was also ad-
mitted and rule nisi was issued.
H
674 SUPREME COURT REPORTS [2008] 11 S.C.R.
A 3. Pursuant to the direction given by the High Court of
Jammu & Kashmir (Jammu Bench) in SWP No. 351 of 1987,
the Director General of Police considered the cases of the ap-
pellants, of Mohd. Abbas and of Mohd. Amin, but the prayer
was rejected vide order dated December 13, 1991 without any
B reason. They, therefore, filed Contempt Petition No. 24of1992
before the High Court and once again, the High Court vide or-
der dated September 16, 1992, issued direction to consider
the cases of the applicants afresh. However, again the appli-
cants were not granted benefit. Another Contempt Petition No.
c 162 of 1992 was filed in December, 1992 which was also dis-
posed of on May 9, 1994. The appellants, in the circumstances,
filed Letters Patent Appeal No. 45 of 1994 against the order
dated May 9, 1994. The said appeal was disposed of on July
11, 1997. Pursuant to the observations made by the Division
Bench, the appellants filed fresh SWP No. 3735of1997 before
D
··the High Court ofJammu & Kashmir at Srinagar which was sub-
sequently transferred to Jammu Bench. t
4. In the meanwhile, SWP No. 519of1987 filed by Abdul
Rashid Rather, Constable came up for hearing before a Single
E Judge and the learned Single Judge allowed the said petition
by judgment and order dated September 24, 1998. The appeJ-
!ants have annexed a copy of the said judgment in the .present
proceedings. The State, being aggrieved by the order of the
Single Judge, preferred Letters Paten.t Appeal No. 8 of 1999
F before the Division Bench of the High Court, but the Division
Bench dismissed the said appeal byjudgment and order dated
July 30, 1999. The decision in the Letters Patent Appeal is also
produced by the appellants. The Government, thereafter, pre-
ferred Special Leave Petition in this Court but it was also dis-
missed by this Court and the order passed by the High Court
G
attained finality.
5. In the light of the judgment delivered in the case of Abdul "'(
Rashid Rather given by a Single Judge and confirmed by the
~
Division Bench as also by this Court, Abdul Rashid Rather had
H been appointed as PSI on DecP.mber 16, 1999 and granted all
MAHARAJ KRISHAN BHATT & ANR. v. STATE OF 675
J & K & ORS. [C.K. THAKKER, J.]
consequential benefits with effect from April 1, 1987. Even that A
order has been produced by the appellants.
6. In view of the above decision and the orders passed by
the High Court and by this Court when SWP No. 3735 of 1997
filed by the present appellants came up for hearing before a
Single Judge, it was allowed by judgment and order dated April · 8
30, 2001 following the earlier judgment wherein the learned
Single Judge, inter alia, observed that the cases of the appel-
lants-writ petitioners were similar to the case of writ petitioner
in Writ Petition No. 519 of 1987. Accordingly, a direction was
issued to respondents to appoint the appellants and to grant all C
benefits which had been granted to writ petitioner in Writ Peti-
tion No. 519 of 1987 (Abdul Rashid Rather).
7. Being aggrieved by the judgment and order passed by
the learned Single Judge, the Government of Jammu & Kash- D
mir filed Letters Patent Appeal No. 466 of 2001 and the said
appeal came to be allowed by the Division Bench. The judg-
ment and order passed by the Single Judge was set aside and
the Writ Petition was ordered to be dismissed. A review field
against the said judgment was also dismissed by the Division E
Bench. The said order is challenged in the present appeals by
the appellants.
8. On April 28, 2003, this Court issued notice to the re-
spondents. Leave was granted on October 27, 2003. As per
the order passed by the Bench presided over by Hon'ble the F
Chief Justice of India, a direction was issued to the Registry on
April 11, 2008 to list the appeals "during summer vacation". That
is how the matter has been placed before us.
9. We have heard learned counsel for the parties.
G
10. The learned counsel for the appellants vehemently con-
tended that the Division Bench of the High Court was wholly in
error in allowing the appeal and in setting aside the order passed
by the learned Single Judge. It was submitted that when in an
identical case, a petition was allowed by a Single Judge and H
676 SUPREME COURT REPORTS [2008] 11 S.C.R.
A the said order was confirmed not only by the Division Bench of
the High Court but also by this Court, the matter was finally con-
cluded in favour of the appellants and the Division Bench ought
not to have reversed the decision of the Single Judge. It was
also submitted that as per settled law, one Division Bench of
B the High Court cannot refuse to follow a judgment rendered by
another Division Bench of the same Court and when in a simi-
lar cas.e another Division Bench has dismissed the Letters
Patent Appeal against the judgment rendered by a Single Judge,
in the instant case, the Division Bench ought to have followed
c the said course which has not been done. It was submitted that
even if the Division Bench felt or was of the view that the judg-
ment and order passed by the Division Bench in a similar case
did not lay down correct law or the Court was not right in grant-
. ing the relief, only course available and to be followed was to
D refer the matter to a 'larger' Bench. But the Division Bench failed
to do so. The Division Bench ought to have considered the fact
th.at in a similar matter, the State of Jammu & Kashmir ap-
proached this Court and even Special Leave Petition was dis-
missed. Thus, .there was no earthly reason on the part of the
Division Bench in not granting the benefit to which they were
E otherwise entitled, which had been granted in favour of similarly
situated employee and against which proceedings had been
initiated but the State authorities failed upto this Court.
11. The learned counsel also submitted that the impugned
F · action was clearly violative of Articles 14 and 16 of the Consti-
tution. It was submitted that initially such violation had been com-
mitted by the State Authorities i.e. Director General of Police
and State Government inasmuch as though cases of all the
Constables were similar and representations were made on
G one and the same day, the Director General of Police, Jammu
& Kashmir recommended the name of only Hamidullah Dar who
was appointed as PSI and cases of other similarly situated
applicants were rejected. The appellants and other adversely
affected Constables approached the High Court and a Single
Judge allowed the petitions and directed the Government to
H
,, MAHARAJ KRISHAN BHATT & ANR. v. STATE OF 677
J & K & ORS. [C.K. THAKKER, J.]
~
consider the cases of the writ petitioners. In spite of such an A
order, the Government did not appoint the applicants as PSls
without any reason whatsoever. Contempt Petitions were re-
quired to be filed but even those orders were not complied with.
In Letters Patent Appeal, again direction was issued by the Di-
vision Bench. In any case, after the decision in SWP No. 519 of B
1987 (Abdul Rashid Rather), the Government ought to have
granted benefits to the appellants which was not done. The
learned Single Judge was, therefore, right in allowing the peti-
tion. By setting aside the judgment and order of the learned
Single Judge and in allowing Letters Patent Appeal as also in c
dismissing Review Petition, the Division Bench of the High Court
ha_d committed an error of law as well as of jurisdiction and the
present appeals deserve to be allowed.
12. The learned counsel for the respondents-State, on the
other hand, supported the judgment and order of the Division 0
Bench of the High Court. He submitted that the Division Bench
·• was right in setting aside the judgment and order passed by the
Single Judge as according to the Bench, there was no reason
to grant benefit to the writ petitioners by appointing them as
PS ls by relaxing Regulation 174. It was stated that so far as E
Hamidullah Oar is concerned, he was having Postgraduate De-
gree and his case was totally different and that is how his name
was recommended by the Director General of Police and ac-
cordingly he was appointed as PSI. Other Constables did not
possess such qualification and hence the Director General did F
not think it proper to recommend their cases for appointment
as PSI and there was no illegality in taking such acHon.
13. It was admitted by the learned counsel for the respon-
dents-State that the writ petitions filed by the appellants-writ
petitioners came to be allowed and direction was issued to the G
authorities to consider their cases. But it was stated that the
cases of the writ petitioners were considered by the authorities
and it was not found fit to recommend their appointments as
PSls and accordingly the prayer was rejected. It was also ad-
mitted that writ petition of Abdul Rashid Rather was allowed H
678 SUPREME COURT REPORTS [2008] 11 S.C.R.
A and he was granted benefit but it was stated that it was done
because of the issuance of writ by 'the learned Single Judge
which was confirmed by the Division Bench as weli as by this
Court. Since the writ petition was allowed and th~ said deci-
sion was approved by the Division Bench as also by this Court,
B the authorities had no alternative but to implement the said or-
der. The said fact, therefore, cannot be construed in favour of
the appellants. When a similar order was passed by a Single
Judge in favour of the appellants and directions were issued by
the Single Judge to give benefit similar to one which had been
c granted to Abdul Rashid Rather,· the State Government ap-
proached the Division Bench and the Division Bench allowed
the intra-Court appeal. In the circumstances, the action of the
State Authority cannot be termed as illegal. It was, therefore,
submitted that the appeals deserve to be dismissed.
D 14. Having heard learned counsel for the parties and hav-
ing gone through the facts and circumstances of the case, in
our opinion, the appeals deserve to be allowed. Firstly, repre-
sentations were made by several Constables requesting the
authority to appoint them to the post of PSI. The office of the
E Hon'ble Chief Minister sent all the applications to the Director
General of Police who recommended only one name of
Hamidullah Dar. It was stated that the said Constable was hav-
ing Postgraduate qualification and the Director General thought
it proper to recommend his name for appointment as PSI in
F relaxation of Regulations. Even if it is assumed that educational
qualification was a relevant consideration, at the most it would
go to show that appointment of Hamidullah Dar was proper.
Nothing more than that.
· 15. But, once a similar case of Abdul Rashid Rather came
G up for consideration before a Single Judge and his writ petition
was allowed, a direction was is~ued to the authorities to ap-
point him as PSI by granting consequential benefits, the learned
Single Judge could not be said to have committed any error of
law in following the said decision, in allowing the writ petition
H filed by the present appellants-writ petitioners and in issuing
... -'
MAHARAJ KRISHAN BHATT & ANR. v. STATE OF
J & K & ORS. [C.K. THAKKER, J.]
679
similar directions to the State Authorities. This was particularly A
true because the judgment and order of the learned Single
Judge was confirmed by the Division Bench and even by this
Court inasmuch as Special Leave Petition was also dismissed.
16. In our considered opinion, in the light of the facts and
circumstances, the Government ought to have accepted and B
respected the decision of the learned Single Judge without fil-·
ing intra-Court appeal. No distinguishing feature had been
brought to the notice of the Division Bench, nor the Division
Bench set aside the judgment and order passed by the learned
Single Judge holding or observing that though Abdul Ra_shid c
Rather was granted the benefit and the learned Single Judge
ordered extension of those benefits to the writ petitioners, they
were not entitled because the case of Abdul Rashid Rather was
different Even before us, nothing special or extraordinary fact
or circumstance was shown to distinguish the case of Abdul D
Rashid Rather and of the present appellants. In our opinion,
therefore, the learned Single Judge was wholly justified in al-
lowing the writ petition and the Division Bench ought not to have
interfered with the said decision.
~ 17. It was no doubt contended by the learned counsel for E
the respondent-State that Article 14 or 16 of the Constitution
cannot be invoked and pressed in service to perpetuate illegal-
ity. It was submitted that if one illegal action is taken, a person
whose case is similar, cannot invoke Article 14 or 16 and de-
mand similar relief illegally or against a statute. There can be F
'"' no two opinions about the legal proposition as submitted by the
learned counsel for the State. But in the case on hand, in our
opinion, there was no illegality on the part of the learned Single
Judge in allowing Writ petition No. 519 of 1997 instituted by
; Abdul Rashid Rather and in issuing necessary directions. Since G
the action was legal and in consonance with law, the Division
~
,.. Bench confirmed it and this Court did not think 'it proper to inter-
fere with the said order and dismissed Special Leave Petition.
To us, in the circumstances, the learned Single Judge was wholly
right and fully justified in following the judgment and order in H
380 SUPREME COURT REPORTS [2008] 11 S.C.R.
A 'Writ Petition No. 519 of 1987 in the case of present writ peti-
tioners also. In fairness and in view of the fact that the decision
in Abdul Rashid Rather had attained finality, the State Authori-
ties ought to have gracefully accepted the decision by granting
similar benefits to present writ-petitioners. It, however, chal-
B lenged the order passed by the Single Judge. The Division
Bench of the High Court ought to have dismissed Letters Patent
Appeal by affirming the order of the Single Judge. The Letters
Patent Appeal, however, was allowed by the Division Bench
and the judgment and order of the learned Single Judge was
c set aside. In our considered view, the order passed by the learned
Single Judge was legal, proper and in furtherance of justice,
equity and fairness in action. The said order, therefore, deserves
to be restored·.
18. For the foregoing reasons, the present appeals de-
D serve to be allowed and are accordingly allowed. The judgment
passed by the Division Bench in Letters Patent Appeal as well
as Review Petition are set aside and the order passed by the
learned Single Judge in SWP No. 3735. of 1997 is restored.
The appellants are held entitled to all the reliefs which had been
E granted to Abdul Rashid Rather in pursuance of the judgment
and order dated September 24, 1998 in SWP No. 519of1987.
The respondent-State of Jammu & Kashmir will grant all the
benefits as have been granted to Abdul Rashid Rather within a
period of three months from today.
F 19. On the facts and in the circumstances, the appeals
are allowed with costs.
K.K.T. Appeals allowed.
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