Permod Kohli, J.@mdashBack-door entry into the Government service has again invited the attention of this Court through the medium of the
present petition.
2. Respondent No. 4 Owais Ahmed who is the son of the then Cabinet Minister of State came to be appointed as Assistant Tourist Officer in
relaxation of rules vide Order No. 1421-GAD of 1998 dated 29.10.1998. Petitioner Rajan Gupta (in SWP No. 1363/2000) who claims to be a
Post Graduate with Diploma in Management and Post Graduate in Marketing Management and knowledge of German language is highly qualified.
Similarly, petitioner Jugal Kishore Anand (in SWP No. 1235/2000) is B.Sc, LL.B, with Master of Business Administration (MBA); P.G. Diploma
in Tourism Administration with 18 months Post Graduation Course in Advance Computer applications and One year Accountancy Training from
Northern Zonal Accountancy Training Institution, J&K Govt, is highly qualified person. Both the petitioners have challenged the appointment of
respondent No. 4 Owais Ahmed on the grounds that the same is un-constitutional and violative of Articles 14 & 16 of the Constitution of India.
Respondent No. 4 has been appointed only on account of the influence of his father, who was a State Cabinet Minister at the relevant time. The
post in question has not been filled up through any process of selection nor the eligible candidates including the petitioners who were better
qualified and more suitable have been provided opportunity for seeking their consideration in such appointment.
3. Official respondents have filed the objections wherein the stand taken is that the appointment of respondent No. 4 has been made by the
Government in relaxation of rules to alleviate the sufferings of the State Subjects and in the interest of public and general administration. It is
averred that the appointment of respondent No. 4 in relaxation of rules is not actuated by any influence of his father. The State Government
considered various applications received from numerous persons affected by militancy in the State and the Competent Authority exercised the
jurisdiction and authority in several cases and made appointments in relaxation of rules.
4. Respondent No. 4 has filed separate counter wherein it is stated that he belongs to a far of border village on Actual Line of Control, namely,
Gharkote in Tehsil Uri. He has passed his B.A Part-I and has a good academic and extra curricular record. It is further stated that on account of
Militancy he could not complete is graduation. There was threat to his life being son of a State Cabinet Minister and thus he could not carry on his
studies. His academic career as well as of his brothers and sister has been adversely affected due to militancy in the Valley. On his request the
State Government has considered it expedient just and proper to appoint him in relaxation of rules to alleviate the miseries.
I have heard the learned counsel for the parties and have gone through the record on the file minutely.
5. Learned counsel for the petitioner has contended that the appointment of respondent No. 4 vide the impugned order is only on account of
influence of his father, who happened to be a Cabinet Minister at the time of his appointment. He does not possess any qualification much-less the
one required for appointment to the post. It is also urged that appointment of respondent No. 4 having been made without advertising the post and
providing opportunity to all eligible candidates including the petitioners is not sustainable. Petitioners referred to their own qualifications as stated
hereinabove and submitted that highly qualified persons to man the post were/are available, but they have been deprived of their constitutional right
to apply for the post and be considered for the same on their merit. The appointment of respondent No. 4 is stated to be against the mandate of
Articles 14 & 16 of the Constitution of India.
Mr. Salathia, AAG has defended the appointment on the basis of the pleadings filed by the State.
6. Mr. D.C. Raina, learned counsel appearing for respondent No. 4 has filed written submissions justifying the appointment. It is vehemently urged
that the State has the power to relax the recruitment rules or any other rules made under Article 309 of the Constitution of India, read with
corresponding provision contained in Section 124 of the Constitution of Jammu and Kashmir. Such relaxation is permissible to meet any emergent
situation where injustice might have been caused or likely to be caused to an individual or class of employees or where the working of the rule
might have become impossible under service jurisprudence as also the Administrative law, such a power has necessarily to be conceded to the
employer. He has further submitted that respondent No. 4 was appointed in the year 1999, whereas the present petition came to be filed in the
year 2000. Now the said respondent has worked for more than four years, therefore, equity must weigh in his favour. Reference is made to
Sections 5 & 124 of the Constitution of Jammu and Kashmir and Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control &
Appeal) Rules 1956 as also Rule 14 of the J&K Civil Services (Decentralization of Recruitment to Non-Gazetted cadres) Rules 1969, and
contended that the State has the power to relax the rules. He has also relied upon the judgment in cases H.C. Puttaswamy and others Vs. The
Hon'ble Chief Justice of Karnataka High Court, Bangalore and others, and Ashok Kumar Uppal v. State of J&K.
7. I have carefully gone through the written submissions and the arguments. The Executive power of the State extends in respect to all matters for
which it has legislative power as provided u/s 5 of the State Constitution cannot be disputed, but where the power is regulated by any statute or
law it has to be exercised in the manner provided in such statute/law. Similarly, the power to relax rules as provided under different rules framed
u/s 124 of the State Constitution cannot be disputed. However, as held in Ashok Kumar Uppal v. State of J&K, such powers can be exercised
under the situations indicated herein. What was held in the said case is quoted below:
26. Power to relax the Recruitment rules or any other rule made by the state Government, under Article 309 of the Constitution of India of which
the corresponding provision is contained in Section 124 of the Constitution of Jammu & Kashmir, is conferred upon the government to meet any
emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the
working of the Rule might have become impossible, under service jurisprudence as also the Administrative Law, such a power has necessarily to
be conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working
under them in different departments including the Central or the State secretariat.
8. It has not been indicated in the replies filed by the respondents as to under what circumstances the power has been exercised. What was the
emergent situation and what was in-justice which was required to be un-done. There is also no situation where the working of any rule has become
impossible. The judgment has no application to the facts of the present case. It is a pure and simple case of appointment dehors the rules.
Respondents have also not placed on record anything to show that rules have been relaxed in any manner. Merely saying that the appointment
made is in relaxation of rules does not mean that the State has actually exercised the power to relax the rules. Even if any rule has been relaxed the
appointment of respondent No. 4 is still not sustainable having been made in violation of Articles 14 & 16 of the Constitution of India. Reference to
other rules in the submissions has no relevance to the issue in question.
9. The issue of back-door appointments came up for judicial scrutiny a number of times. This Court and the Apex Court on examination has ruled
against the appointments made by the Executive in violation of the mandate of Articles 14 & 16 of the Constitution of India. The admitted facts in
the present case are that respondent No. 4 is under-graduate. His academic career does not appear to be bright. This is as per his own admission
made in the counter affidavit. It is no where stated in the reply that respondent No. 4 has all along stayed in his village alone and had no benefit of
having better education in the twin Capital Cities of the State. The stand taken by the official as well as private respondents that the appointment of
respondent No. 4 is only to alleviate his miseries is without any basis. What kind of miseries fell upon respondent No. 4 during his academic
career, particularly when he was a well protected person being son of a State Cabinet Minister has not been disclosed in the reply.
10. The question of exercising power of relaxation of rules to bestow favour to a particular individual came up for judicial scrutiny in number of
cases and the Courts of law have always deprecated such an approach of the Executive for obvious reason that the same is against the
constitutional mandate which provides equality before law and equal protection to all, who are similarly situated. In a similar case where son of a
bureaucrat came to be appointed as Dy Superintendent of Police in relaxation of rules, a Division Bench of this court on consideration of the law
laid down by the Apex Court has ruled against such back door appointment made in relaxation of rules. The judgment delivered in LPA (SW)
227/98 State of J&K and Ors. v. Sunil Gupta and Ors., is applicable to the facts of the present case from all corners. In view of the law laid down
by the Apex Court and the Hon'ble Division Bench in the afore-said case the appointment of respondent No. 4 is not sustainable in law being in
contravention to mandate of Articles 14 & 16 of the constitution of India. I accordingly allow this petition and quash the appointment of respondent
No. 4. It is further directed that the vacancy caused due to quashing of appointment of respondent No. 4 shall be advertised and filled up in
accordance with the procedure prescribed by providing opportunity to all eligible candidates. Let the necessary process for filling the vacancy be
initiated within a period of three months.
