Sanjeev Kumar ORDER
Sanjeev Kumar, J.
1. In this batch of writ petitions, challenge has been thrown to the Advertisement Notification No. Pers-A400/2006/7503-403 dated 30.12.2016 issued by respondent No. 2 insofar as it provides maximum age of 28 years for direct recruitment and 30 years for in-service candidates as on 01.01.2016 for being eligible to seek consideration for selection to the post of Sub-Inspector (Executive/Armed) in J&K Police. It may be stated that some of the petitioners in the aforesaid writ petitions are candidates from the open market, whereas in some petitions, the petitioners are in-service candidates serving in the Police Department and other Departments of the State in different capacities. The issues of law and fact raised in all the petitions aforesaid are identical and pertain to the selection of Sub-Inspectors (Executive/Armed) in J&K Police initiated vide aforesaid Advertisement Notification, as such, all the petitions have been heard together and are being disposed of by this common judgment.
2. The facts, as narrated by the petitioners in these petitions, are not disputed. All the petitioners were candidates desirous of seeking consideration for selection to the post of Sub-Inspectors (Executive/Armed) in the J&K Police, but were not permitted to participate in the selection process on the ground that they were beyond the prescribed maximum age limit. The grounds of challenge taken in these petitions and urged by the learned counsel appearing for the petitioners are summed up as under:
'i. That prescription of maximum age limit of 28 years for the candidates from the open market and 30 years in the case of in-service candidates, is illegal, arbitrary and discriminatory, inasmuch as the same age limit has been prescribed both for the Constables and Sub-Inspectors when the minimum qualification for appointment of Constables is matriculation, whereas in the case of Sub-Inspectors, it is Graduation.
ii. That the last Advertisement for making direct recruitment to the posts of Sub-Inspector was issued by respondent No. 2 on 31.01.2009 and there was no recruitment made thereafter for almost 7 years and because of this inordinate delay in making the selection, the petitioners have been rendered overaged having crossed the prescribed maximum age limit.
iii. That in terms of J&K Civil Services (Reference of Vacancies and Holding of Meeting of DPC) Rules, 2005 (for short 'Rules of 2005'), a duty has been cast upon all the Departments including respondent No. 2 to refer the posts for direct recruitment to the selection agency at least once in a year, and had the respondents followed the mandate of aforesaid Rules, the available vacancies could have been notified in the year 2010, 2011, 2012 and thereafter and the petitioners would have competed for the same as during the aforesaid years, they were well within the maximum prescribed age.
iv. That in the year 2015, the Government promulgated J&K Special Recruitment Rules, 2015 (for short 'Recruitment Rules') vide SRO 202 of 2015 dated 30.06.2015 putting on all the respondents a mandatory duty to refer the existing vacancies that would accrue during the year to the concerned selection agency within a period of one month from the date of issuance of the Recruitment Rules. Failure on the part of the respondents to follow the mandate of Special Recruitment Rules has deprived the petitioners of the opportunity to apply for the posts when they were well within the prescribed age limit.
v. That the in-service candidates particularly those serving in the Police Department as Constables are required to be considered by the respondents by giving them relaxation in upper age by treating them a class apart
vi. That in the similar set of circumstances, the candidates, who were desirous of seeking consideration for selection to the post of Prosecuting Officers, were given the upper age relaxation and instead of prescribing the limit of 28 years, by way of subsequent relaxation, they were permitted to apply if their age was not exceeding 37 years.
3. The respondents have filed their objections in one of the petitions i.e. SWP No. 128/2017 which are taken as objections to the other writ petitions clubbed in the aforesaid batch of petitions and have resisted the challenge to the Advertisement Notification aforesaid, inter alia, on the following grounds:
'a). That the impugned notification has been issued by the respondents in strict compliance to the J&K Police Rules, 1960 (for short 'Rules of 1960') framed by the Government in exercise of power conferred by Section 8 and Section 12 of the J&K Police Act Samvat, 1983; and the Rules of 1960 are in supersession of all the Rules on the subject. The Rules of 1960 equivocally prescribe that a candidate, who is desirous to apply for the post of Inspector, Sub-Inspector and Assistant Sub-Inspector must be between 18 and 28 years of age, to be reckoned on the first day of January of the year in which the selection is to be made; The relevant Rule i.e. Rule 176 of Rules of 1960, however, is not challenged in any of the writ petitions and, therefore, the prescription of minimum and maximum age limit in the Advertisement Notification impugned herein which is in consonance with the aforesaid Rule is not liable to be challenged
b). That the prescription of maximum of 28 years of age for the post of Sub-Inspector which is same as is prescribed for the post of Constable does not, ipso facto, make the prescription with regard to the age as contained in the Advertisement Notification arbitrary or discriminatory, rather brings both the categories at par".
4. Regarding the delay in initiating the selection process, it is submitted by the respondents that the process of selection last initiated in the year 2009 was finalized in the year 2011 and thereafter the National Police Mission made certain recommendations with regard to the Transparent Recruitment Process (TRP) to have uniform standards for recruitment of police personnel throughout India. This was an initiative of Government of India and was conveyed to the respondents vide communication of Government of India dated 15.01.2010. As a follow up, it is stated, the State Government also constituted a Committee of Officers to examine the proposal of TRP, study the policy and suggest the area of implementation of TRP in the Police Department of the State. Recommendations were submitted on 04.10.2012 which were placed before the Police Establishment Board in its meeting held on 23.01-2013. In short, it is submitted that after the completion of procedures, respondent No. 1 vide his Order No. 322-Home of 2015 dated 31.07.2015 accorded sanction to the constitution of Police Recruitment Board for implementation of TRP for undertaking recruitment of various cadres of the police and subsequently, vide Order dated 28.05.2016, the Government accorded requisite sanction for recruitment of Sub-Inspectors. The delay in initiating the process of selection, it is contended, was neither deliberate nor intentional, but due to the reasons explained in the objections. It is further submitted that neither the Rules of 2005 nor the Special Recruitment Rules apply to the recruitment of Sub-Inspectors of Police and, therefore, the reliance put by the learned counsel for the petitioners on the aforesaid Rules to assail the validity of impugned Advertisement Notification is misplaced and grossly mis-conceived.
5. Having heard learned counsel for the parties and perused the record, it is found necessary to first take note of the provisions of the J&K Police Act, Samvat 1983 and the Rules framed thereunder. The Police Act, 1983 was sanctioned by the Highness the Maharaja Bahadur in Council, vide State Council Resolution No. CXII, dated 29th January, 1927 and was brought into force from 6th Baisakh, 1984. As is apparent from its preamble, the said Act was promulgated to re-organize the police and to make it a more efficient instrument for the prevention and detection of crime. Section 8 and Section 12 of the Police Act, 1983 confers power on the Inspector General of Police (now Director General of Police) and subject to approval of the Government, to frame such orders and rules as it deem expedient in relation to the organization, classification and distribution of the police force. The power given by Section 8 and 12 is wide enough to encompass within its sweep the power to lay down norms of recruitment, the mode and manner of recruitment as also the authority to make such recruitment in the Police. For facility of reference, Section 8 and Section 12 of the Act are reproduced hereunder:
'8. Appointment, dismissal, etc., of inferior officers:
Subject to the provisions of section 126 of the Constitution of Jammu and Kashmir and to such rules as the Government may from time to time make under this Act, the Inspector General, Deputy Inspectors General, Assistant Inspectors General and Superintendents of Police may at any time dismiss, suspend or reduce any Police Officers of subordinate rank whom they may think remiss or negligent in the discharge of his duty or unfit for the same; or may award any one or more of the following punishments to any Police Officer of the subordinate rank who is found to have discharged his duty in a careless or negligent manner or who by any act of his own renders himself unfit for the discharge thereof, namely:
a. Fine to any amount not exceeding one month's pay;
b. Confinement to quarters for a term not exceeding fifteen days, with or without punishment, drill, extra guard, fatigue or other duty;
c. Deprivation of good conduct pay; and
d. Removal from any office of distinction or special emolument.
12. Power of Inspector General to make rules:
The Inspector General of Police may, from time to time subject to the approval of the Government frame such orders and rules as it shall deem expedient relative to the organisation, classification and distribution of the Police force, the places at which the members of the force shall reside, and the' particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information; and all such other orders and rules relative to the Police force as the Inspector General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties".
6. Chapter VII of the Rules of 1960 deals with appointment and enrolment of police personnel. Rule 176 of Rules of 1960 is relevant and the same pertains to the qualification for direct recruitment as Inspectors, Sub-Inspectors or Assistant Sub-Inspectors and, therefore, needs to be noticed. Rule 176 reads thus:
'Qualifications for direct appointment as Inspectors, Sub-Inspectors or Assistant Sub Inspectors.
(1). Applications for direct appointment to the rank of Inspector, Sub-Inspectors or Assistant Sub Inspector shall at the discretion of the Inspector General be referred to the Superintendent of the District in which the applicant resides direct for report in Form 25
(2) The applications should be accompanied by the following certificates:
i. Education Certificate in original or a copy attested by a Magistrate or by any other gazette officer.
ii. Permanent residentship certificate.
iii Testimonial in support of the applicants having taken part in sports activities.
iv. Age according to the Matriculation Certificate. The applicant must be between 18 to 28 years of age. The age limit will be reckoned as on the first day of January of the year in which the competitive examination is held or the nomination is made in respect of the vacancy to which the direct recruitment is made.
Application 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 1/2"
Expanded 331/244
The minimum academic qualification for direct recruitment to the post of Sub Inspector/Inspector shall be bachelor's degree from any recognized University".
7. Reading of Rule 176 of Rules of 1960 would make it clear that for recruitment to the post of Inspector, Sub-Inspector or Assistant Sub-Inspector, the minimum and maximum age prescribed is 18 and 28 years, to be reckoned on the first day of January of the year in which the selection is held or the nomination is made in respect of the vacancy to be filled up by direct recruitment. It may also be noted that in none of the petitions, Rule 176 has been specifically challenged nor there is any question mark put by any of the petitioners on the power of the Government to frame the aforesaid Rule.
8. Rule 172(2) of Rules of 1960 is very categoric in terms and provides that all appointments to non-gazetted rank above that of constable shall be made by the appointing authority on the basis of recommendations of the selection board to be constituted under the orders of Inspector General of Police (now the Director General of Police).
9. It is not in dispute that since the re-organization of the Police Department and issuance of Police Rules, the selection to various ranks including Constable and Sub-Inspector is being made by the selection board constituted by the Government known as Police Recruitment Board. From perusal of relevant Section of the Police Act, 1983 and the Rules referred to above, it is evident that the Police Act and the Rules framed thereunder virtually constitute a complete code in itself and deal with the mode and manner of recruitment/appointment, dismissal, police discipline and other matters pertaining to the organization. The Police Rules framed under the Police Act are in supersession of all the Rules on the subject. The Police Rules are framed under the delegated legislative power and are, therefore, superior to and have overriding effect on the contrary rules framed under proviso to Section 124 of the Constitution of Jammu and Kashmir which is in pari materia with proviso to Article 309 of Constitution of India.
10. In this backdrop of Rule position, the submissions made by learned counsel appearing for the petitioners needs to be appreciated.
11. It is trite law that a candidate has no right to insist that the vacancy in the Government service should be filled up immediately on its becoming available. The employer is well within its right to decide the time when such vacancy(s) available with it is required to be filled up. The Government by way of a policy decision can even freeze the vacancy(s) and direct that no recruitment shall be made for a specified period.
12. The Supreme Court in the case titled 'Deepak Aggarwal & another v. State of U.P and others; MANU/SC/0273/2011 : 2011 (6) SCC 725 in paragraph Nos. 17 and 22 which are relevant in the context of controversy raised herein, held as under-
"17. The short question that arises for consideration is as to whether the appellants were entitled to be considered for promotion SWP No. 1589/2014 Page 8 of 13 on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 1983 Rules on 17th may, 1999. Under the unamended 1983 Rules, the petitioners would be eligible to be considered for promotion by virtue of Rule 5(2). Bye virtue of the Note to Rule 8, a combined eligibility list has to be prepared by arranging the names of Assistant Excise Commissioner and Technical Officers in order of seniority as amended by the date of their substantive appointment. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. There is no statutory duty cast upon the date to complete the selection process within a prescribed period. Nor is there a mandate to fill up the posts within a particular time. Rather the proviso to Rule 2 enables the State to leave a particular post unfilled."
22. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the 'rules in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment. The judgments cited by learned counsel for the appellants namely B.L. Gupta v. M.D. (supra), P. Ganeshwar Rao v. State of Andhra Pradesh (Supra) and N.T. Devin Katti and Ors. V. Karnataka Public Service Commission & Ors. (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra)."
13. The respondents in their objections have elaborately explained as to why the recruitment could not be made immediately after the selection process initiated in the year 2009 was finalized in the year 2011. The stand taken by the respondents in their objections has been briefly referred to hereinabove. Without reiterating what has been submitted by the respondents in their objections, suffice it to say that the respondents have tendered reasonable explanation for delay in filling up of the vacancy(s). Otherwise also, in none of the petitions, the petitioners have been able to point out as to when the posts of Sub Inspectors fell vacant in the respondents-Department. In the absence of specific pleading on the point, it is not possible for this Court to presume that the vacancies which are subject matter of impugned notification are those which became available in the years 2010, 2011, 2012 or thereafter. Be that as it may, the point which needs to be determined in these writ petitions is as to whether in view of mandate contained in the Rules of 2005 and the Special Recruitment Rules, it was obligatory on the part of the respondents to advertise the vacancies immediately when they became available i.e. twice in a year in terms of Rule 2 of Rules of 2005 and within one month from the date of coming into force of the Recruitment Rules?.
14. With a view to determine the aforesaid question, it would first be necessary to determine the applicability of the aforesaid Rule vis-à-vis the recruitment of Sub-Inspectors and other ranks in the Police. As already noticed, under the Police Act, 1983 and the rules framed thereunder, the respondents have been empowered to constitute its own Board of selection and prescribe qualifications and other conditions of recruitment of various ranks including Sub-Inspectors of the Police. The contention of the learned counsel for the petitioners that Rules of 2005 apply to all Government Departments including the Police Department is wholly unfounded and cannot be accepted as the Rules have been framed by the Government in exercise of power conferred by proviso to Section 124 of the Constitution of Jammu and Kashmir and these Rules by their very nature are subservient to law, if any made by the Legislature to regulate the recruitment and conditions of service of the persons appointed to public services and posts in connection with the affairs of the State. Section 124 of the Constitution of Jammu and Kashmir is relevant which reads thus:
"124. Recruitment and conditions of service of persons serving the State:
Subject to the provisions of this Constitution, the Legislature may by law regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State:
Provided that it shall be competent for the Governor or such person as he may direct, to make rules regulating the recruitment and the conditions of services of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of the Legislature under this section, and any rules so made shall effect subject to the provisions of any such Act".
15. From reading of Section 124 aforesaid, it is clear that the plenary power to regulate the recruitment and conditions of persons appointed to public services and posts in connection with the affairs of the State lies with the Legislature and the same is to be regulated by the Act of the Legislature. It is only in absence of such legislative enactment, the Government has been empowered by virtue of proviso to Section 124 aforesaid to make rules regulating the recruitment and conditions of service of such persons unless the provision in that behalf is made by or under an Act of Legislature. The expression used 'provision in that behalf is made by and under an Act of Legislature" are of great significance and unequivocally provide that the Rules regulating the recruitment and conditions of service of the government service made by the Governor under proviso to Section 124 aforesaid would occupy the field till provision in this behalf is made by the Act of Legislature or under an Act of Legislature.
16. In the instant case, the provision for making recruitment and laying down the conditions of service of the police personnel including Sub-Inspectors has been made by an Act of Legislature known as the J&K Police Act, 1983 and also under the Act of Legislature i.e. J&K Police Rules, 1960 framed under the Police Act, 1983. That being the categoric position obtaining from plain reading of Section 124 aforesaid, it cannot be said that Rules framed by the Governor under proviso to Section 124 i.e. the Rules of 2005 and Recruitment Rules can supplant the provisions of the Police Act and the Rules framed thereunder, particularly to the extent of contradictions. Neither the Police Act nor the Rules framed thereunder cast upon the respondent a duty to fill up the posts of Sub-Inspectors or other ranks periodically or within a specific time. In the absence of any mandatory prescription, it would always lie in the wisdom of the respondents to take a decision with regard to the filling up of the vacant posts and such wisdom and the prerogative of the police cannot be questioned in the extra-ordinary writ jurisdiction under Article 226 of the Constitution of India.
17. It is not the case of the petitioners that the delay in initiating process of selection in question was aimed at depriving the petitioners or any of them of the chance to apply for the posts. Without having elaborate discussion on the interpretation put by the learned counsel for the petitioners on the Rules of 2005 and the Special Recruitment Rules, suffice it to say that the aforesaid Rules insofar as the police force is concerned are not applicable. The recruitment to various ranks in the Police Department is governed by the special enactment i.e. the Police Act, 1983 and is regulated by the rules framed thereunder. This brings me to the contention of leaned counsel for the petitioners that prescribing the same minimum age limit for Constable in terms of Rule 182 of Police Rules, 1960 and for Sub-Inspectors under Rules 176 of Police Rules, 1960 is totally arbitrary and discriminatory as the two distinct categories have been treated equally. It is urged that the minimum qualification prescribed for the post of Constable is matriculation and he acquires the eligibility immediately on completion of 18 years of age, whereas the minimum qualification prescribed for the post of Sub-Inspector is graduation and the eligibility to apply for the post of Sub-Inspector can only be acquired after passing the graduation i.e. after a person attains the age of 21/22 years. On the parity of aforesaid reasoning, it is submitted that the candidates aspiring to apply for Sub-Inspector get less number of years for participation in the selection process as compared to Constable.
18. I am afraid that the argument put forth by the learned counsel for the petitioners sans logic keeping in view the nature of job to be performed by a Constable and Sub-Inspector in the Police. The respondents in their wisdom have fixed the minimum and maximum age as 18 years and 28 years which, by no stretch of reasoning, can be said to be irrational, arbitrary and resulting in hostile discrimination between a Constable and Sub-Inspector. The other points raised by learned counsel for the petitioners in these petitions particularly those representing in-service candidates have been elaborately dealt with by the Coordinate Bench of this Court while disposing of a batch of writ petitions at Srinagar. The Coordinate Bench, vide Judgment dated 31.5.2017 passed in SWP No. 107/2017 along with other clubbed matters, has already elaborately discussed the arguments raised before this Court and has set at rest the controversy raised with regard to the prescription of maximum age limit for in-service candidates. Taking note of Rule 176(2) (iv) and SRO 7 dated 7th January, 1076 incorporating proviso to aforesaid Rule, the Coordinate Bench while disposing of the aforesaid writ petitions concluded that the advertisement notification was in consonance with the statutory Rules and, therefore, the plea of the petitioners that there should be further relaxation was wholly untenable. The Coordinate Bench dismissed all the petitions raising the pleas which are sought to be agitated again in this batch of writ petitions. I respectfully agree with the view taken by the Coordinate Bench in its judgment dated 31.05.2017 passed in aforesaid writ petitions.
19. For the foregoing reasons and also following the judgment dated 31.05.2017 rendered by a Coordinate Bench of this Court in aforesaid writ petitions, I find no merit in these writ petitions and the same are, therefore, dismissed along with all connected IAs and contempt petition(s).
© Manupatra Information Solutions Pvt. Ltd.