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Vishal Vikram Singh Rathore and Ors. Vs. State and Ors. - (High Court of Jammu and Kashmir) (08 Aug 2018)

Candidate has no right to insist that, vacancy in the Government service should be filled up immediately on its becoming available



In present batch of writ petitions, challenge has been thrown to the Advertisement Notification No. Pers-A400/2006/7503-403 dated 30th December, 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 1st January, 2016 for being eligible to seek consideration for selection to the post of Sub-Inspector (Executive/Armed) in J&K Police. 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.

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.

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. As per Section 124 of the Constitution of Jammu and Kashmir, 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.

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. 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. Petitions dismissed.


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