Excelsior Correspondent
JAMMU, Oct 13: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sanjeev Kumar and Justice Mohan Lal has held that the appointment of outstanding sportspersons under the Rules of 1998 is the sole discretion of the Government depending upon several factors like qualification/eligibility of a candidate, his proficiency in sports and availability of a suitable non-gazetted post in a particular calendar year.
The judgment has been passed in a LPA filed by one Gourav Gupta against judgment dated 08.03.2021 passed by the Central Administrative Tribunal, Jammu Bench in TA No. 61/767/2020 titled Gourav Gupta Versus State and Others whereby the Tribunal has dismissed the petition of the petitioner.
The petitioner was considered along with other outstanding sportspersons under SRO 376/2004 for appointment in Government service. On the basis of recommendations made by the committee constituted under SRO 349/1998 read with SRO 376/2004, the petitioner was appointed as Demonstrator in the pay scale of Rs.9300-34,800 with Grade Pay of Rs.4200 in the Department of Technical Education vide Government Order No.1110-GAD of 2014 dated 24.10.2014.
The petitioner submitted his joining report before respondent on 10.09.2014 and the same was accepted. On scrutiny of the qualification documents of the petitioner, the Department of Technical Education found that the petitioner did not hold the eligibility qualification for the post of Demonstrator against which he stood appointed by the Government.
Consequently, respondent vide his communication dated 27.11.2014 intimated this fact to the General Administration Department. When the matter was under examination of the GAD, the petitioner filed an application on 30.10.2014 requesting therein that he may be appointed against the post of Sub-Inspector in the Excise and Taxation Department in the pay scale of Rs.5200-20,200 with grade pay of Rs.2400 with an undertaking that he shall not make claim for higher or equivalent grade of Demonstrator against which he was appointed vide Government order dated 24.10.2014.
The application was considered by the GAD and after taking up the matter with the Finance Department for locating a direct recruitment post of Sub-Inspector in the Excise and Taxation Department, the petitioner was appointed to the post of Sub-Inspector in the pay scale of Rs.5200-20,200 with grade pay of Rs.2400 in Divisional Cadre, Jammu vide Government Order dated 29.01.2015. This order was accepted by the petitioner without any protest or demur.
It was only after the petitioner had worked for more than 6 months, he approach the court to lay claim for the post of Inspector in the Excise and Taxation Department which is in the pay scale of Rs.9300-34,800/- with Grade Pay of Rs.4200.
With the coming into force of the Jammu and Kashmir Reorganization Act, 2019 and the constitution of Central Administrative Tribunal for UT of Jammu and Kashmir, the writ petition filed by the petitioner came to be transferred to the Tribunal which dismissed the petition.
After hearing both the sides, the DB observed, “it is true that the petitioner could not perform his duties as Demonstrator because of his ineligibility to hold the post. We do appreciate the argument of Senior Counsel for the petitioner that it is because of faux pas committed by the Selection Committee, the petitioner was appointed against a wrong post for which he did not have the requisite qualification. Be that as it may, the fact remains that the petitioner should have allowed the GAD to explore the possibility for adjusting him on the equivalent post in some other Department. However, acting impatiently, the petitioner approached the GAD and offered to accept the appointment of SI in the Excise Department.
“We are not inclined to accept the contention of the petitioner that he accepted the appointment as SI in the Excise and Taxation Department under duress and undue influence of the GAD. The facts and circumstances obtaining in the case indicate otherwise. The petitioner having accepted his appointment as SI without any protest or demur and having joined on the post cannot be permitted to turn around and claim that he was entitled to be appointed as Inspector in the Excise and Taxation Department which carries the higher pay scale, more particularly when Rules do not envisage offering a post carrying a particular scale to an outstanding sportsperson”, the DB said.
“The appointment of outstanding sportspersons under the Rules of 1998 is at the sole discretion of the Government depending upon several factors viz. qualification/eligibility of a candidate, his proficiency in sports and availability of a suitable non-gazetted post in a particular calendar year. Such discretionary benefit envisaged for outstanding sportsperson, though regulated by Statutory Rules, is nonetheless founded in equity and, therefore, capable of being waived or acquiesced in”, the DB said while dismissing the appeal and upholding the judgment passed by the Tribunal.
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