Case: PANKJESHWAR SHARMA AND OTHERS Vs. STATE OF JAMMU &amp; KASHMIR AND OTHERS

2. The case has a chequered history and in order to appreciate the grievance of the appellants, it will be necessary to glance through the relevant background facts. It is the third round of litigation arising out of the selection process held pursuant to an advertisement (No.Pers/Rectt/SI/EX-99/A-405) dated 25 th February, 1999 issued by the 2nd respondent-Director General of Police, J&K State inviting applications for the post of Sub-Inspector of Police (Executive), the post which is included in the Schedule appended to the J&K Police (Executive) Rules to be filled by open selection in terms of the procedure prescribed under the Rules.3. Admittedly, it is neither provided in the scheme of Rules nor mentioned in the advertisement notice that the merit list of the candidates based on the written and viva-voce test is to be separately prepared for the Provinces of Jammu & Kashmir. It reveals from the record that the last selected candidate from Jammu Province secured 56 marks whereas, in Kashmir Province, the last selected candidate secured 50 marks. The 2nd respondent under its own assumption published the select list of total candidates of 252 Province-wise i.e. separately for Jammu & Srinagar on 23rd April, 2000.First round of litigation4. The unsuccessful candidates challenged the selection process by filing SWP No.567/2000(Surinder KumarSharma vs. State of Jammu and Kashmir and Ors.) on manifold grounds inter alia that the select list which was prepared Province-wise is not legally permissible and it ought to have been prepared as one select list for the whole of the State of Jammu & Kashmir as the post of Sub-Inspector is a State cadre post and therefore, the selection ought to have been made by treating the State as a unit and not on the basis of residence of the candidates of Jammu & Kashmir Provinces.5. The writ petitioners succeeded in persuading and the learned Single Judge by judgment and order dated 16 th October, 2000 allowed the writ petitions with the direction that the select list be prepared afresh of the State (J&K) and those who secured 50 or more marks in the revised select list be considered for appointment without disturbing the appointments already made. Against the order of the learned Single Judge, State-respondent filed LPAs before the Division Bench of the High Court and the Division Bench by its judgment dated 19 th August, 2002 modified the order of the learned Single Judge with the direction to redraw the merit list State-wise and on redrawing the merit list, if the candidates who have already been selected/appointed and come within the merit zone, they should not be disturbed but their seniority would be determined in accordance with their placement in the order of merit which would be finally prepared. The above order of the Division Bench dated 19 th August, 2002 was the subject matter of challenge in SLP(C) No.24798/2002 which came to be dismissed by this Court under order dated 10 th February, 2004.6. In compliance of the order of the Division Bench dated 19th August, 2002, a fresh redrawn State-wise merit list dated 19th May, 2004 came to be notified by the 2 nd respondent appointing 259 candidates and at the same time, cancelled the appointment of 47 candidates who were already in service since their names did not find place in the revised merit list at the State level.Second round of litigation7. That the ousted candidates approached the learned Single Judge of the High Court by filing a writ petition challenging the redrawn State-wise merit list dated 19 th May, 2004 and the Learned Single Judge by its order dated 24 th May, 2004 issued interim directions to allow such ousted candidates to continue in service until the next date of hearing. Meanwhile, contempt proceedings being COA(LPASW) No.22/2004 were also initiated against the 2nd respondent for non-compliance of the order of the Division Bench dated 19th August, 2002 and against the continuation of such 47 ousted candidates in the service. The Division Bench of the High Court by its order dated 03 rd December, 2004 disposed of the contempt petition with a direction that those who did not come within the merit zone in the re-drawn merit list cannot be allowed to continue and if any such person is being so continued, he will be removed as already directed by the order dated 19.05.2004.8. That came to be challenged in a SLP at the instance of the 44 ousted candidates who have been directed to be removed from service by the Division Bench by order dated 03 rd December, 2004. Various interlocutory applications by a total of 22 candidates were filed for their impleadment before this Court in the pending Special Leave Petition which was later converted into Civil Appeal No.4758/2006. This Court by its order dated 10 th May, 2007 without examining the inter se dispute of the litigant parties and taking note of the statement made by the learned Advocate General of the State on its face value that all the 47 ousted candidates who are likely to loose their job as a result of the order of the High Court dated 03rd December, 2004 passed in contempt petition and such of 22 impleaded candidates on filing of their interlocutory applications before this Court, will be accommodated on the post of Sub-Inspector, disposed of the appeal with the following order:-Mr. Altaf H. Nayak, learned Advocate General submits that all the 47 petitioners who are likely to go out of job as a result of the impugned order passed by the High Court and 22 respondents herein will be accommodated on the post of Sub- Inspector. He further submits that all the 47 petitioners who were selected on account of impugned selection and are presently working will be allowed to continue on their posts. In view of this statement made by learned Advocate General, we do not think we need to determine any legal question involved in this matter. Consequently the Appeal stands disposed of in view of the statement made by learned Advocate General.9. That apart from the 47 ousted candidates who were earlier in the order of merit but could not find place because of the merit list being redrawn in purported compliance of the directions made by the High Court in its order dated 19 th August, 2002, the 2nd respondent appointed 22 candidates vide its orders dated 23rd February, 2008 and 11th March, 2008. It reveals from the record that these 22 candidates were much lower in the redrawn merit list and their placement in the order of merit was not brought to the notice of this Court and that gave rise to a further litigation.Third round of litigation10. Some of the left out candidates who were higher in the order of merit qua these 22 candidates who were appointed by the 2nd respondent vide orders dated 23 rd February, 2008 and 11th March, 2008 under the so-called alleged compliance of the order of this Court dated 10th May, 2007, approached the High Court by filing of a writ petition being SWP No.1084/2008 and SWP No.1145/2008 on the premise that the writ petitioners were denied their legitimate right of fair consideration being higher in the redrawn merit list vis-a-viz, the 22 persons who were indisputedly less meritorious still appointed and action of the State is in violation of the statutory rules and is also a denial of equal opportunity in seeking appointment on the envil of Article 14 of the Constitution.11. It reveals from the record that such of the 22 candidates of whom reference has been made in the order of this Court dated 10th May, 2007, majority of them were lower in the order of merit qua the candidates/writ petitioners who were contesting their right claiming equal and fair opportunity for seeking appointment as per their placement in the order of redrawn merit. The learned Single Judge by order dated 26th August, 2010 allowed the writ petitions with the direction that any appointment made on the basis of concession made by the learned Advocate General of the State, would not deprive the legitimate claim of the writ petitioners being higher in the order of merit from seeking appointment to the post of Sub-Inspector qua these 22 candidates and they indeed have a right of fair consideration in seeking appointment based on their order of merit that gave rise to filing of LPA No.02/2011 and cognate appeals before the Division Bench of the High Court at the instance of the persons aggrieved.12. These batch of appeals were disposed of by the Division Bench by its judgment dated 12 th March, 2013 setting aside the judgment of the learned Single Judge dated 26 th August, 2010. Relying upon the said judgment of the Division Bench dated 12th March, 2013, other cognate appeals were at a later stage decided by the Division Bench and that became the subject matter of challenge in appeals before us.

Court's reasoning:
21. Unfortunately, the advertisement to the post of Sub- Inspector which was published by the 2 nd respondent way back on 25th February, 1999 with the condition that one has not crossed the age of 28 years as on 01 st January, 1999, after 21 years down the line, is still has not been finalised and we are pondering over the inter se dispute of the candidates who had participated in the selection process must have crossed the age of 43-47 years under the belief that they may still be considered for appointment.22. In the first round of litigation, when the controversy initially arose as to whether the merit list Province-wise in Jammu & Kashmir could have been prepared by the respondent and how far it can held to be in conformity with the scheme of rules, while examining the controversy, the learned Single Judge categorically observed that all those candidates who have secured less than 50 marks have no right to contend that they have been arbitrarily ignored on the basis of Province-wise selection and the claim of those candidates who have obtained 50 or more than 50 marks was left open to be considered by the learned Single Judge in the proceedings initially in the year 2000. The further dispute which was revisited/reviewed/re-examined by the Court at the later stage in the second round of litigation primarily confined to the candidates who obtained 50 or more than 50 marks under the zone of consideration for being considered for appointment on the post of Sub-Inspector pursuant to an advertisement dated 25th February, 1999.23. The indistputed facts which manifest from the record as noticed above is that the advertisement came to be notified by the 2nd respondent dated 25th February, 1999 holding selections for the post of Sub-Inspector and the present batch of appeals are preferred by the appellants/participants being higher in the order of merit qua those 22 candidates who were appointed by the 2 nd respondent vide orders 23rd February, 2008 and 11th March, 2008 on the basis of the concession made by the learned Advocate General of the State recorded under order dated 10 th May, 2007 of this Court, with the claim that they have been deprived from fair consideration in seeking appointment.24. It is a settled principle of service jurisprudence and has been consistently followed by this Court that the rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, will resulted in violation of Article 14 and 16 of the Constitution. This Court in State of U.P. and Others vs. Rajkumar Sharma and Others (State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330   ) and later in Arup Das and Others vs. State of Assam and Others(Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559   ) considered the question of filling up of vacancies over and above the number of vacancies advertised and held that the filling up of vacancies over and above the number of vacancies advertised would be violative of fundamental rights guaranteed under Article 14 and 16 of the Constitution and the selectees could not claim appointments as a matter of right. This Court further held that even if in some cases appointments had been made erroneously or by mistake, that did not confer any right of appointment to another person as Article 14 of the Constitution does not envisage negative equality and if the State or its authority had committed a mistake at any given stage, it cannot be forced to perpetuate the said mistake under the writ jurisdiction of the High Court under Article 226 of the Constitution. In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down.25. Initially when the selections were challenged in the year 2000, it was in reference to the policy decision taken by the State Government in preparing two separate merit lists of Jammu & Kashmir Provinces arising from a common advertisement dated 25th February, 1999 and it was indeed in clear contravention to the scheme of rules and the learned Single Judge of the High Court categorically observed that as the key of marks for Jammu & Kashmir Provinces are different and 50 marks being the lower among the two Provinces secured by the last candidate, the limited controversy examined by the learned Single Judge of the High Court was in the four corners confining it to the persons/candidates who obtained 50 or more marks in the selection process and still deprived from consideration for appointment.27. At the outset, those who secured less than 50 marks, their claim of consideration for appointment was eliminated by the learned Single Judge even in the first instance when the controversy initially raised by the candidates affected at a very threshold after the select list was notified by the 2 nd respondent in the year 2000 and if any person was aggrieved on account of his non-selection, secured 50 or more than 50 marks being deprived from fair consideration in seeking appointment, cause of action was accrued to him at such given point of time in the first place, when examined and decided by the learned Single Judge of the High Court by its judgment dated 16 th October, 2000 and directed the State authorities to consider all such candidates for appointment who have secured 50 or more than 50 marks if left out from being considered for appointment as their right of fair consideration is being seriously jeopardized which was although modified by the Division Bench at the later stage by its judgmentdated 19th August, 2002 as a consequence, 47 candidates were going to be affected in the first round of litigation. The later controversy remained confined to examine the fate of those 47 ousted candidates who could be over and above the candidates who are to be appointed in the redrawn merit list of the State of Jammu & Kashmir, to be adjusted despite being appointed and working for sufficient time deserve indulgence of the Court.28. That further litigation was raised at the behest of 47 ousted candidates, it has come on record that they were allowed to continue in the first instance under the interim order as they were already working for quite some time and finally their controversy reached to this Court in the second round of litigation and since much water has flown in the Ganges by that time and the alleged 47 ousted candidates were working right from the year 2000 and the department had incurred huge expenses on their training courses and they had taken part in anti-insurgency operations in the State and the State was concerned about them as there were apprehension of threat to their life, under these circumstances, the State has shown its intention to retain them in service.29. It reveals from the record that the Government intended to give quietus to the on-going litigation and in the second round of litigation in this Court as there were 22 interlocutory applications filed by the applicants in the pending proceedings, who were claiming their appointment, under the bonafide belief that certain vacancies are available with the State and if such 22 candidates who have filed their applications for impleadment in the pending proceedings in this Court if taken care of, atleast there will be a quietus to the on-going litigation and that appears to be the reason to which the learned Advocate General of the State made a statement before this Court that not only 47 ousted candidates who have been appointed and served for the last 7 years, such 22 candidates may also be accommodated on the post of Sub- Inspector and after recording the statement made by the learned Advocate General of the State, there left no legal issue to be examined in the pending civil appeal and on the basis of the alleged concession made by the learned Advocate General, this Court by order dated 10th May, 2007 disposed of the appeal.30. It is true that ordinarily in the open selection, appointments are to be made strictly in the order of merit in terms of the procedure prescribed under the relevant statutory recruitment rules or in absence under the guidelines if prescribed, still if appointments are made for exceptional reasons deviating from the merit list which ordinarily is not permissible but in unforeseen exigencies, if the State with a bonafide intention to give quietus to the on-going litigation pending for the last eight years extended its concession to adjust such 22 candidates who are under litigation for long time with no malafides or bias being imputed to the State action could have been possible only if those who are litigating and agitating their grievance reached upto this Court cannot be held to be faulted.We find substance in what being urged and hold that the order of this Court dated 10th May, 2007 was not under Article 142 of the Constitution and it was clearly reflected from the order itself that it was passed on the basis of the concession made by the learned Advocate General of the State and recorded by this Court in its order dated 10th May, 2007.The submission in the first blush appears to be attractive but it lacks foundation for the reason that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article 14 of the Constitution with a proviso that if any appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was on-going litigation and subsequent selection was also held to give quietus to the on-going litigation, still on principle cannot be approved by this Court, are irregular appointments and cannot be held to be illegal as claimed by the appellants.34. It is also not the case of the appellants that they are amongst 22 candidates in the order of merit published by the 2nd respondent awaiting appointment in reference to an advertisement dated 25th February, 1999 and if their submission is accepted at the face value as prayed for, atleast the present appellants may not get a march over 22 candidates waiting in the order of merit who in the ordinary course could claim appointment to the post of Sub-Inspector and the action of the State in extending its concession which has been recorded under the order of this Court dated 10th May, 2007 is indeed the mistake being committed, still it cannot be forced by the person as alleged to be aggrieved to perpetuate the said mistake.35. This Court in Union of India and Another vs. Kartick Chandra Mondal and Others (Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422   ) observed that if something is being done or acted upon erroneously that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court.37. It is indisputed that by the time we are called upon to decide the matter, the so-called 22 candidates against whom there is a lis raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field and the subsequent selection has also been held of the post of Sub-Inspector pursuant to an advertisement issued in February, 2001 and the concession which was recorded of the learned Advocate General of the State by this Court in its order dated 10th May, 2007 at a given point of time also appears to be bonafide, to give quietus to the on-going litigation pending in Courts for sufficient long time and no other litigation at that given point of time was pending in the court of law, in the given situation, this Court is not inclined to disturb the appointment of those 22 candidates which has been questioned by the appellants/candidates in the present batch of appeals.39. In Buddhi Nath Chaudhary vs. Abahi Kumar (Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328   ), this Court has observed that appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. We have extended equitable considerations to such selected candidates who have worked on the post for a long period.40. We are also of the view that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India.