STATE OF J & K & ANRversusAJAY DOGRA

                       [2011] 6 S.C.R. 57


                   STATE OF J & K & ANR.                                A
                                 v..,
                         AJAY DOGRA
                (Civil Appeal No.3066 of 2011)
                         APRIL 07, 2011
                                                                        B
            [DR. MUKUNDAKAM SHARMA AND
                   ANIL R. DAVE, JJ.]

     Service Law - Recruitment - Jammu and Kashmir
Police Rules, 1960 - Rule 176 - Direct recruitment of                   C
Prosecuting Officers in Jammu & Kashmir Police -
Advertisement issued - Essential suitability conditions laid
down - One such condition with regard to age/physical
qualifications to be possessed by the applicants - Rule 176
of the Jammu & Kashmir Police Rules stated to be applicable             D
to the advertisement - Respondents-applicants disqualified
on the grou'nd that they did not possess the necessary
physical qualifications - They filed writ petitions seeking for
relaxation regarding minimum physical standards!
qualification laid down in the advertisement as also in Rule            E
176 of the Police Rules - High Court held that Prosecuting
Officers are required to exhibit mental ability rather than
physical strength and that the candidature of the respondents
cannot be rejected merely on the ground that they did not fulfill
physical criterion - Consequently, it directed that the cases           F
of all the respondents be considered for appointment - On
appeal, held: The only prayer made in the writ petitions filed
by the respondents was to grant relaxation to the criteria and
standard of physical conditions prescribed for and required
to be fulfilled - In the writ petitions, neither the validity of Rule   G
176 with regard to physical conditions was challenged nor
such conditions prescribed in the advertisement were
challenged on the ground of validity- High Court went beyond
the pleadings in holding that the physical conditions laid down
                                 57                                     H
    58       SUPREME COURT REPORTS              [2011] 6 S.C.R.


A were bad and arbitrary - The Court was not justified to decide
    the validity of the aforesaid Rule and the advertisement
    without there being any challenge to the same - It was not
    appropriate for the High Court to set aside the said physical
    conditions which were mandatory in nature - Pleadings.
B
      The appellants issued an advertisement inviting
  applications for making direct recruitment to the post of
  Prosecuting Officers in Jammu & Kashmir Police, in the
  State of Jammu & Kashmir. In the advertisment, various
  criterion were laid down as essential suitability
C conditions. One such condition was with regard to age/
  physical qualifications to be possessed by the applicants.
  In the said advertisement, it was mentioned that
  applications of only such candidates would be
  considered for selection who conform to the physical
D standard fixed by the Government with regard to height
  and with regard to chest. It was further mentioned that
  Rule 176 of the Jammu & Kashmir Police Rules, 1960
  would be applicable to the advertisement.

E      The respondents submitted their applications
  pursuant to the aforesaid advertisement. However, during
  the course of selection it was found that none of the
  respondents possessed the necessary physical
  qualifications as they did not fulfil the physical standards
F fixed by the Government either with regard to height or
  with regard to chest and they were thus disqualified.
  Respondents filed writ petitions seeking for relaxation
  regarding minimum physical standards/qualification laid
  down in the advertisement as also in Rule 176 of the
G Police Rules.
        The High Court held that the Prosecuting Officers
    have to appear in the Court and therefore, such officers
    would be required to exhibit mental ability rather than
    physical strength and further that the candidature of the
H
      STATE OF J & K & ANR. v. AJAY DOGRA               59


respondents cannot be rejected merely on the ground A
that they did not fulfill physical criterion since the
prescription of physical standard cannot be .said to be a
criteria which has no nexus with the object sought tc;> be
achieved. Consequently, the High Court directed that the
cases of aH the respondents be considered fo~ the.ir· B
appointment as against the posts' advertised and for
which they had submitted their applications. Hence the
present appeals. ·

    Allowing the. appeals, the Court
                                                             c
     HELD:1. A perusal of .the writ petitions filed by the
respondents would prc;>ve and establish that the only
prayer made in those Y.Jrit petitions was to grant
relaxation to the criteria and standard of physical
conditions prescribed for and required to be fulfilled. In D
aforesaid writ petitions, neitherthe validity of Rule 176 of
the Jammu & Kashmir Police Rules, 1960 with regard to
physical conditions were challenged nor such conditions
prescribed in the advertisement were challenged on the
ground of its validity contending inter alia that there is no E
nexus of the said conditions with the object sought to be
achieved. The physical conditions prescribed in the
advertisement are in consonance with Rule 176 of the
Police Rules which are statutory Rules. Nowhere in the
pleadings, it is stated that such conditions prescribed are F
illegal or invalid. Constitutional validity of the aforesaid
Rule was never challenged in. any of the writ- petitions.
The High Court, however, without there being any
pleading in that regard went beyond the pleadings and
held that such physical conditions laid down are bad and G
arbitrary as what has been prescribed have no nexus
with the object sought to be achieved. [Paras 14, 15] (64-
H; 65-A-D]           -

    1.2. There was no challenge to the constitutional
                                                             H
                             -·
    60       SUPREME COURT REPORTS              (2011) 6 S.C.R.


A validity of Rule 176 of the Police Rules so far as it relates
  to prescribing physical conditions regarding the height
  and the chest. The stipulations In the advertisement
  regarding standard of physical condition was also not
  challenged In the Writ Petition. The High Court was not
B justified In going Into the validity of the aforesaid criterion
  In absence of any such challenge. The High Court also
  did not specifically declare the Rule prescribing minimum
  height standard· and chest standard ultra vlres and,
  therefore, so long as that Rule exists in the sta.tute book,
c no such direction as issued by the High Court could be
  Issued. Consequently, the directions Issued by the High
  Court In the present case are required to be set aside.
  Therefore, the High Court was not justified to decide the
  valldity of the aforesaid Rule and the advertisement
  without there being any challenge to the same. Also it was
0
  not appropriate for the High Court to set aside the said
  conditions which were mandatory In nature. [Paras 22,
  23) [68-E-H; 69-A)

       V.K. Majotra v. Union of India & Ors. (2003) 8 SCC 40:
E 2003 (3)Suppl. SCR 483; Secretary to Government and Anr.
  v. M. Senthi/Kumar (2005) 3 SCC 451: 2005 (2) SCR 436;
  State of Maharashtra &Ors. v. Jalgaon Municipal Council &
  Ors. (2003) 9 SCC 731: 2003(1) SCR 1112; Sanjay Kumar
  & Ors. v. Narinder Venna and Ors.(2006) 6 SCC 467: 2006
F (2) Suppl. SCR 59 - relied on.

                         Case Law Reference:
         2003 (3) Suppl. SCR 483 relied on            Para 16
         2005 (2) SCR 436           relied on         Para 17
G
         2003 (1) SCR 1112          relied on         Para 18
         2006 (2) Suppl. SCR 59 relied on             Para 19

H
          STATE OF J & K & ANR. v. AJAY DOGRA             . 61


     CIVIL APPELLATE JURISDICTION : Civil Appeal No. A
 3066 of 2011.     ·

     From the Judgment & Order dated 19.8.2002 of the High
 Court of Jammu & Kashmir at Jammu IN LPA (SW) No. 184 of
 2002 in OWP No. 533 of 2000.                              B
                             WITH
· C.A. Nos. 3067, 3068, 3069, 3070, 3071, 3072, 3073, 3074,
  3075,3076,3077,3078,3079,3080,3081,3083,3084,3085,
  3087 3088, 3089, 3090, 3091, 3092 & 3093 of 2011.
      I                                                          c
       Gaurav Pachnanda, AAG, Sunil Fernandes, Renu Gupta
 for the Appellants.
     Mohit Chaudhary, Puja Sharma, Nikita Kabre, N.M. Popli,
 K.B. Hina, Anindita Popli, B. Sunita Rao, Indra Makwana, D ··
 Dinesh Kumar Garg, B.S. Billowria Tripurai Rai, Vishwa. Pal
 Singh, Surya Kant for the Respondent.
     The Judgment of the Court was delivered by
      OR. MUKUNDAKAM SHARMA, J. 1. Since, all these E
 appeals involve identical issues both on facts and law,
 therefore, we have heard all these appeals in one bunch. We
 also propose to dispose of all these petitions by this common
 judgment and order, as the issues urged before us are identical.
                                                                  F
      2. Delay condoned.

     3. Leave granted.
      4. The appellants herein issued an advertisement inviting
 applications for making direc.t recruitment to the post of G
 Prosecuting Officers in Jammu & Kashmir Police, in the State
 of Jammu & Kashmir. There are altogether two such
 advertisement/notices, the one issued on 24.3.2000 and the
 other dated 5.3.2003. In the aforesaid advertisment/notices,
 various criterion were laid down as essential suitability H
    62        SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A   conditions. One such condition was with regard to age/physical
    qualifications to be possessed by the applicants. In the said
    advertisement, it was clearly mentioned that applications of only
    such candidates would be considered for selection who
    conform to the following physical standard fixed by the
B   Government:-

                "(i) Height - '5-6"

                (ii) Chest

c               Unexpanded 32 Yz",

                Expanded 33 Yz"

         5. In the said advertisement/notices, it was specifically
    indicated that Rule 176 of the Jammu & Kashmir Police Rules,
D   1960 (hereinafter referred as "the Police Rules") would be
    applicable to the advertisement. The aforesaid advertisement/
    notices also prescribed amongst other criteria, the age/
    physical qualifications that must be possessed by the applicants.
    It also stated that the applicants must possess certain
E   additional qualifications such as (i) A degree in law from a
    recognised University and (ii) Minimum 2 years of actual
    experience at the Bar.

         6. Since the aforesaid advertisement refers to and
F   specifically states that the said Rule would be· applicable to the
    advertisement, the relevant part of the said Rules is required
    to be stated at this stage.

         7. The said Rule 176 of Police Rules prescribes amongst
    other things, the physical and educational qualifications
G   required for direct appointment as Inspectors, sub-Inspectors
    or Assistant Sub-Inspectors. It reads as follows:-

         "176. Qualification for direct appointment as Inspectors,
         Sub-Inspectors or Assistant Sub-Inspectors
H
      STATE OF J & K & ANR. v. AJAY DOGRA                    63
         [DR. MUKUNDAKAM SHARMA, J.)
    (1)******* ********              ********     ********        A
    .(Z)~****** ********             ********     ********

    applications of only such candidates will be considered for
    selection who conform to the following physical standards
    fixed by the Government:                                      B

            (i) Height '5-6';

            (ii) Chest

      Unexpanded 32 %"                                            c
      Expanded 33 %" "

       8. The respondents herein submitted their applications
pursuant to the aforesaid advertisement. However, during the
                                                                  0
course of selection it was found that none of the respondents
possesses the necessary physical qualifications as they do not
fulfil the physical standards fixed by the Government either with
rega~d to height or with regard to chest. Since the respondents
were disqualified on the basis of aforesaid laid down standard
on physical qualifications, they filed writ petitions in the High E
Court seeking for relaxation of the aforesaid Rules regarding
minimum physical standards/qualification laid down in the
advertisement as also in Rule 176 of the Police Rules.

     9. The aforesaid writ petitions filed by the respondents F
were heard by a Single Judge of the Jammu & Kashmir High
Court. The learned Single Judge considered the contentions
raised by the respondents. On perusal of the respective
contentions, the High Court found that it is only the standard of
physical qualification which the respondents are lacking G
inasmuch as either in the minimum width of the chest they are
not fulfilling the criteria or they do not possess the required and
the advertised height. It was also observed that Prosecuting
Officer has to appear in the Court and therefore, such officer
would be required to exhibit mental ability rather than physical H
                                ·.
    64        SUPREME COURT REPORTS                  (2011] 6 S.C.R.


A strength and therefore, the physical qualifications are not to
  stand in the way of such candidates. The High Court further held
  that neither the height nor the chest or chest expansion, being
  physical qualifications, could be the reason for rejecting the
  applications of the respondents. It was also held that the
9 candidature of the respondents cannot be rejected merely on
  the ground that they do not fulfill physical criterion ir:i view of the
  fact that the prescription of physical standard cannot be said
  to be a criteria which has no nexus with the object sought to
  be achieved. Consequently, it was directed that the cases of
c all the respondents be considered for their appointment as
  against the posts advertised and for which they had submitted
  their applications.
       10. Being aggrieved by the aforesaid orders passed by
  the learned Single Judge, the appellants preferred appeals
D before the Division Bench of the High Court. The said appeals
  were registered as Letters Patent Appeals.
       11. The Division Bench of the High Court held that the
  Single Judge has not committed any error in concluding that
E prescription of physical qualification in regard to width of the
  chest or with regard to height has no nexus with the object and
  therefore, no case of interference is made out.

       12: Being aggrieved by the aforesaid judgments and
  orders passed, the present appeals were filed on which we
F heard the learned counsel appearing for the parties who have
  taken us through the contents of the advertisement, Rule 176
  of the Police Rules, other relevant documents and various
  decisions which were relied upon during the course of the
  arguments.
G
       13. In the light of the same, we propose to dispose of all
  these appeals by giving our reasons.
      14. A perusal of the writ petitions would prove and
H establish that the only prayer made in those writ petitions was
       STATE OF J & K & ANR. v. AJAY DOGRA                         65
          [DR. MUKUNDAKAM SHARMA, J.]
to grant relaxation to the criteria and standard of physical             A
conditions prescribed for and required to be fulfilled. In
aforesaid writ petitions, neither the validity of Rule 176 with
regard to physical conditions were challenged nor such
conditions prescribed in the advertisement were challenged on
the ground of its validity contending inter alia that there is no        B
nexus of the said conditions with the object sought to be
achieved. We find that the physical conditions prescribed in the
advertisement are in consonance with Rule 176 of the Police
Rules which are statutory Rules. No where in the pleadings, it
is stated that such conditions prescribed are illegal or invalid.       c
Constitutional validity of the aforesaid Rule was never
challenged in any of the writ petitions.
     15. The High Court, however, without there being any
pleading in that regard went beyond the pleadings and held that
such physical conditions laid down are bad and arbitrary as              0
what has been prescribed have no nexus with·the object sought
to be achieved.
      16. The aforesaid decision rendered by the High Court is
contrary to and inconsistent with the law laid down by this Court E
in the case of V.K. Majotra Vs. Union of India & Ors. reported
in (2003) 8 sec 40. In the said decision also what was urged
before this Court was neither raised in the pleadings nor It was
urged before the High Court by any of the parties to the writ
petition. In the said case, the issue was as to whether a person F
not having judicial experience could be appointed as Vice
Chairman of the Central Administrative Tribunal. This Court
found that the aforesaid issue was not raised in the writ petition
and similarly, vires of the section was also not challenged. This
Court in the aforesaid context, held as follows:-                         G
      "8 ........ It is also correct that vires of Sections 6(2)(b), (bb)
      and (c) of the Act were not challenged in the writ petition.
      The effect of the direction issued by the High Court that
      henceforth the appointment to the post of Vice-Chairman
                                                                          H
    66        SUPREME COURT REPORTS                 [2011) 6 S.C.R.


A        be made only from amongst the sitting or retired High
         Court judge or an advocate qualified to be appointed as
         a judge of the High Court would be that Sections 6(2)(b),
         (bb) and (c) of the Act providing for recruitment to the post
         of Vice-Chairman from amongst the administrative
B        services have been put to naught/obliterated from the
         statute-book without striking them down as no appointment
         from amongst the categories mentioned in clauses (b),
         (bb) and (c) could now be made. So long as Sections
         6(2)(b), (bb) and (c) remain on the statute-book such a
c        direction could not be issued by the High Court .......... "

         In paragraph 9 of the said decision, this Court has
    discussed the issues in the following terms:-

         "9. We are also in agreement with the submissions made
D        by the counsel for the appellants that the High Court
         exceeded its jurisdiction in issuing further directions to the
         Secretary, Law Department, Union of India, the Secretary,
         Personnel and Appointment Department, Union of India,
         the Cabinet Secretary of the Union of India and to the Chief
E        Secretary of the U.P. Government as also to the Chairman
         of CAT and other appropriate authorities that henceforth
         the appointment to the post of presiding officer of various
         other Tribunals such as CEGAT, Board of Revenue,
         Income Tax Appellate Tribunal etc. should be from amongst
F        the judicial members alone. Such a finding could not be
         recorded without appropriate pleadings and notifying the
         concerned and affected parties."

         17. Similarly, in the case of Secretary to Government and
    Anr. Vs. M. Senthil Kumar reported in (2005) 3 SCC 451, this
G Court in the context of there being no challenge to the
  constitutional validity of the policy providing 10 per cent special
  quota to the children/wards of serving/retired/deceased
  personnel of Police and like forces held that since there was
  no challenge to the policy decision contained in the two
H government orders, it was not proper for the High Court to
      STATE OF J & K & ANR. v. AJAY DOGRA                       67
         [DR. MUKUNDAKAM SHARMA, J.]
uphold the challenge to the policy decision and to hold that the      A
policy decision was unconstitutional ,and that also overlooking
the fact that the applicants were seeking relief under the policy
decision.

     18. In State of Maharashtra & Ors .. Vs. Jalgaon Municipal
                                                                      8
Council & Ors. reported in (2003) 9 SCC 731, this Court has
observed that in absence of any challenge, the constitutional
validity of the amendment cannot be gone into.

     19. We may also appropriately refer to th.e decision <;>f this
Court in Sanjay Kumar & Ors. Vs. Narinder Verma and Ors.              C
reported in (2006) 6 sec 467, wherein also it i.yas contended
before this Court that in absence of any challenge to the relevant
Rules, it was impermissible for the High Court to depart from
such recruitment rules. It was also submitted that it is not open
to the High Court to ignore the recruitment rules and to              D
introduce a criterion Which is not even contemplated by the
applicable rules.
     20. This Court while upholding the aforesaid contentions
held in paragraph 16 thus:-
                                                                      E
     "16. Having heard the learned counsel on both sides for
     the different contending parties, we are of the view that t~e
     impugned judgment of the High Court needs to be
     interfered with. As already observed, there was no
     challenge to the Rules in the writ petition. The learned F
     Single Judge was, therefore, justified in applying the Rules
     and upholding the selection process made by the State
     authorities .. It was wholly unjustified on the part of the
     Division Bench to have interfered with the selection
     process on the basis of the criteria which. were not laid G
     down in the Rules and that too on an erroneous
     appreciation of the Rules. The High Court failed to see that
     the Rules made no distinction, whatsoever, between
     degree-holders and diploma-holders at the stage of
     recruitment for the purpose of minimum qualifications. In H
           ...


                                ..•
    68        SUPREME COURT REPORTS                [2011) 6 S.C.R.

A        other words, no distinction was made between the two
         categories at the stage of recruitment, but a greater
         weightage was given to the degree-holders in the post-
         recruitment period in the form of a higher starting pay and
         also lesser number of years of service requirement for
B        qualifying for promotion to the higher post. We agree with
         the contention expressed by the learned counsel for the
         appellants that there was sufficient inbuilt balance
         maintained between the two categories of candidates and
         the impugned judgment of the High Court completely
c        throws the Rules out of balance. What the executive did
         not think fit to do by prescription in the Rules, could not
         have been done by a judicial fiat."
       21. The qualifications to be possessed by the applicants
  have been prescribed in the Rules and also in the
D advertisement for the reason that some of them are required
  to be posted at high altitude and therefore they are required to
  have proper physique so as to be able to be posted to those
  places.
E      22. In our considered opinion, the ratio of the aforesaid
  decisions of this Court are squarely applicable to the facts of
  the present case. There was no challenge to the constitutional
  validity of Rule 176 of the Police Rules so far as it relates to
  prescribing physical conditions regarding the height and the
F chest. The stipulations in the advertisement regarding standard
  of physical condition was also not challenged in the Writ
  Petition. The High Court was not justified in going into the
  validity of the aforesaid criterion in absence of any such
  challenge. The High Court also has not specifically declared the
G Rule prescribing minimum height standard and chest standard
  ultra vires and, therefore, so long as that Rule exists in the
  statute book, no such direction as issued by the High Court
  could be issued. Consequently, the directions issued by the
  High Court in the present case are required to be set aside.
H        23. We, therefore, hold that the High Court was not justified
      STATE OF J & K & ANR. v. AJAY DOGRA                      69
         [DR. MUKUNDAKAM SHARMA, J.J
to decide the validity of the aforesaid Rule and the                 A
advertisement without there being any challenge to the same.
We also hold that it was not appropriate for the High Court to
set aside the said conditions which are mandatory in nature.
     24. Considering the aforesaid facts and circumstahces of        8
the case and in the light of the settled principles of law of this
Court, we allow these appeals and set aside the judgments and
orders passed by the High Court both by the Division Bench
and by the Single Judge and dismiss the writ petitions.

B.B.B.                                         Appeals allowed.