Jammu & Kashmir High Court
Gobind Ram Sharma vs State Of J&K & Ors on 20 December, 2012
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 53 OF 2009 Gobind Ram Sharma. Petitioners State of J&K & Ors Respondent !Mr. K. S.Johal, Sr. Advocate with Mr. Amit Gupta, Advocate ^Mr. Ravinder Sharma, AAG Mr. S. K.Shukla, Advocate Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date: 20.12.2012 :J U D G M E N T :
M. M. Kumar,CJ
1. The instant appeal filed under Clause 12 of the Letters Patent is directed against judgment and order dated 19.03.2009 rendered by the learned Single Judge of this Court dismissing SWP No. 1606 of 2008. The primary reason for rejecting the claim made by the appellant-petitioner is that he could not be treated as Ex-serviceman so as to become ineligible for consideration under that category.
2. It is appropriate to mention that appellantpetitioner was a candidate for the post of teacher under reserved category of Ex-serviceman and the last date for receiving the applications was 28.02.2006 when he was still serving in the Army and he was discharged on 01.10.2006. On the basis of the definition expression Ex-serviceman, learned Single Judge ruled that the appellant-petitioner cannot be recorded as Exserviceman as he was still serving and thus ex-facie ineligible in terms of the rules.
3. The contention of the appellant-petitioner that he was permitted to appear in the interview and was kept in the waiting list at serial no.1 did not find favour with the learned Single Judge because selection Board put forward the reasons that it was error committed by them. The other contention that the persons like Ram Murti and Deepak Sharma were also similarly situated was not accepted for the reasons that there was no detailed particulars available and in any case negative discrimination under Article 14 and 16(1) was not permissible.
4. We have heard learned counsel for the parties at some length. It has been submitted that there are instructions issued by the Ministry of Personnel, P. G & Pensions, Government of India dated 3.4.1991 which provides that a person would be treated as exserviceman if he is likely to be discharged within a period of one year from the cut off date fixed in the advertisement notice. According to the learned counsel any personnel serving in the Army could apply if he is to be discharged within a year later after the cut off date.
5. We have thoughtfully considered the aforesaid submissions and are of the view that the Central Government instructions would not ex-facie apply to the employment to be provided by the State Government in the face of the rules 32 & 33 of the Jammu and Kashmir Reservation Rules 2005 unless and until they are specifically adopted by the State.
7. The appeal has thus no merit. Accordingly, the same is dismissed.
(Hasnain Massodi) (M. M. Kumar)
Judge Chief Justice
Jammu
20.12.2012
Vijay