REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 8481-8482 OF 2003

MAHARAJ KRISHAN BHATT & ANR. … APPELLANTS

VERSUS

STATE OF J&K & ORS. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. The  present  appeals  are  directed

against the judgment and order passed by the

Division Bench of the High Court of Jammu &

Kashmir (Jammu Bench) on October 11, 2002 in

LPA (SW) No. 466 of 2001 and also against an

order dated February 2, 2003 rejecting Review

(LPASW) 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, 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 request

was  made  to  consider  the  cases  of  the

respective  applicants 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  &  Kashmir  Police  Manual.  The

representations  made  by  the  petitioners  and

other persons were sent by the office of the

Hon’ble  Chief  Minister,  Jammu  &  Kashmir  for

comments  to  the  Director  General  of  Police,

Jammu & Kashmir by a forwarding letter dated

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January 14, 1987. The then Director General of

Police, Jammu & Kashmir, vide his letter dated

January  23,  1987  recommended  the  name  of

Hamidullah Dar only for his appointment 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  including  the

appellants herein as also Abdul Rashid Rather

were neither recommended for such appointment,

nor  appointed  to  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  September  13,  1991  and  a

direction was issued to the Director General of

Police, Jammu & Kashmir to consider the cases

of 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 Jammu & Kashmir at Srinagar. The said

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petition was also admitted and  rule nisi was

issued. 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 appellants,

of  Mohd.  Abbas  and  of  Mohd.  Amin,  but  the

prayer was rejected vide order dated December

13, 1991 without any reason. They, therefore,

filed Contempt Petition No. 24 of 1992 before

the High Court and once again, the High Court

vide  order  dated  September  16,  1992,  issued

direction  to  consider  the  cases  of  the

applicants  afresh.  However,  again  the

applicants  were not  granted benefit.  Another

Contempt Petition No. 162 of 1992 was filed in

December, 1992 which was also disposed 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

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Division Bench, the appellants filed fresh SWP

No. 3735 of 1997 before the High Court of Jammu

& Kashmir at Srinagar which was subsequently

transferred to Jammu Bench. 4. In the meanwhile, SWP No. 519 of 1987

filed by Abdul Rashid Rather, Constable came up

for  hearing  before  a  Single  Judge  and  the

learned Single Judge allowed the said petition

by judgment and order dated September 24, 1998.

The appellants 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 Patent Appeal No. 8 of

1999  before  the  Division  Bench  of  the  High

Court,  but  the  Division  Bench  dismissed  the

said appeal by judgment and order dated July

30, 1999. The decision in the Letters Patent

Appeal is also produced by the appellants. The

Government, thereafter, preferred Special Leave

Petition  in  this  Court  but  it  was  also

dismissed by this Court and the order passed by

the High Court attained finality.  

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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 been appointed as PSI on December

16, 1999 and granted all consequential benefits

with effect from April 1, 1987. Even that 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  30,  2001  following  the

earlier  judgment  wherein  the  learned  Single

Judge,  inter alia,  observed that the cases of

the appellants-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  benefits  which  had  been

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granted to writ petitioner in Writ Petition 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  &  Kashmir  filed  Letters

Patent  Appeal  No.  466  of  2001  and  the  said

appeal  came  to  be  allowed  by  the  Division

Bench. The judgment 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 Bench. The said order

is challenged in the present appeals by the

appellants. 8. On April 28, 2003, this Court issued

notice to the respondents. Leave was granted on

October 27, 2003. As per the order passed by

the Bench presided over by Hon’ble the 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.

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9. We have heard learned counsel for the

parties. 10. The learned counsel for the appellants

vehemently contended 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 the

said  order  was  confirmed  not  only  by  the

Division Bench of the High Court but also by

this Court, the matter was finally concluded 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 the High

Court  cannot  refuse  to  follow  a  judgment

rendered by another Division Bench of the same

Court  and  when  in  a  similar  case  another

Division Bench has dismissed the Letters Patent

Appeal  against  the  judgment  rendered  by  a

Single Judge, in the instant case, the Division

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Bench ought to have followed 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 judgment and order passed by the

Division Bench in a similar case did not lay

down correct law or the Court was not right in

granting the relief, only course available and

to be followed was to refer the matter to a

‘larger’ Bench. But the Division Bench failed

to  do  so.  The  Division  Bench  ought  to  have

considered the fact that in a similar matter,

the State of Jammu & Kashmir approached this

Court  and  even  Special  Leave  Petition  was

dismissed. Thus, there was no earthly reason on

the part of the Division Bench in not granting

the  benefit  to  which  they  were  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 action was clearly violative

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of Articles 14 and 16 of the Constitution. It

was submitted that initially such violation had

been committed 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

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

consider the cases of the writ petitioners. In

spite of such an order, the Government did not

appoint  the  applicants  as  PSIs  without  any

reason  whatsoever.  Contempt  Petitions  were

required to be filed but even those orders were

not complied with. In Letters Patent Appeal,

again  direction  was  issued  by  the  Division

Bench. In any case, after the decision in SWP

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No.  519  of  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 petition. By setting aside the judgment and

order  of  the  learned  Single  Judge  and  in

allowing  Letters  Patent  Appeal  as  also  in

dismissing Review Petition, the Division  

Bench of the High Court had 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 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 PSIs by relaxing Regulation

174. It was stated that so far as Hamidullah

Dar is concerned, he was having Postgraduate

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Degree and his case was totally different and

that is how his name was recommended by the

Director General of Police and accordingly he

was appointed as PSI. Other Constables did not

possess  such  qualification  and  hence  the

Director General did not think it proper to

recommend their cases for appointment as PSI

and  there  was  no  illegality  in  taking  such

action.  13. It was admitted by the learned counsel

for  the  respondents-State  that  the  writ

petitions  filed  by  the  appellants-writ

petitioners came to be allowed and direction

was issued to the 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  PSIs  and

accordingly  the  prayer  was  rejected.  It  was

also  admitted  that  writ  petition  of  Abdul

Rashid Rather was allowed and he was granted

benefit  but  it  was  stated  that  it  was  done

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because of the issuance of writ by the learned

Single  Judge  which  was  confirmed  by  the

Division Bench as well as by this Court. Since

the  writ  petition  was  allowed  and  the  said

decision was approved by the Division Bench as

also  by  this  Court,  the  authorities  had  no

alternative but to implement the said order.

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 granted to Abdul Rashid Rather,

the  State Government  approached 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. 14. Having heard learned counsel for the

parties and having gone through the facts and

circumstances of the case, in our opinion, the

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appeals  deserve  to  be  allowed.  Firstly,

representations were made by several Constables

requesting the authority to appoint them to the

post of PSI. The office of the 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  having  Postgraduate

qualification and the Director General thought

it proper to recommend his name for appointment

as PSI in 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 up for consideration before

a  Single  Judge  and  his  writ  petition  was

allowed,  a  direction  was  issued  to  the

authorities to appoint him as PSI by granting

consequential  benefits,  the  learned  Single

Judge could not be said to have committed any

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error of law in following the said decision, in

allowing the writ petition filed by the present

appellants-writ  petitioners  and  in  issuing

similar  directions to  the State  Authorities.

This was particularly 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 respected

the  decision  of  the  learned  Single  Judge

without  filing  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 Rashid Rather was

granted  the  benefit  and  the  learned  Single

Judge ordered extension of those benefits to

the writ petitioners, they were not entitled

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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 Rashid Rather and

of  the  present  appellants.  In  our  opinion,

therefore, the learned Single Judge was wholly

justified in allowing 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 the respondent-State that

Article 14 or 16 of the Constitution cannot be

invoked and pressed in service to perpetuate

illegality.  It  was  submitted  that  if  one

illegal action is taken, a person whose case is

similar, cannot invoke Article 14 or 16 and

demand similar relief illegally or against a

statute. There can be 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

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allowing  Writ  petition  No.  519  of  1997

instituted  by  Abdul  Rashid  Rather  and  in

issuing necessary directions. Since the action

was  legal  and  in  consonance  with  law,  the

Division Bench confirmed it and this Court did

not think it proper to interfere 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   Writ

Petition No. 519 of 1987 in the case of present

writ petitioners also. In fairness and in view

of the fact that the decision in Abdul Rashid

Rather  had  attained  finality,  the  State

Authorities ought to have gracefully accepted

the decision by granting similar benefits to

present  writ-petitioners.  It,  however,

challenged  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

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the Division Bench and the judgment and order

of the learned Single Judge was 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  deserve  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

granted to Abdul Rashid Rather in pursuance of

the judgment and order dated September 24, 1998

in SWP No. 519 of 1987. 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.

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19. On the facts and in the circumstances,

the appeals are allowed with costs.

………………………………………………………J. (C.K. THAKKER)

NEW DELHI,      ………………………………………………………J. August 01, 2008. (LOKESHWAR SINGH PANTA)

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