Jammu & Kashmir High Court
Stanzin Itzes Chosket; Age 25 Years vs Union Territory Of Jammu And Kashmir on 6 June, 2024
Author: N. Kotiswar Singh
Bench: Chief Justice, Moksha Khajuria Kazmi
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IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
AT JAMMU
(THROUGH VIRTUAL MODE)
WP(C) No. 935/2024
CM No. 2287/2024
Reserved on: - 06.05.2024
Pronounced on: - 06.06.2024
Stanzin Itzes Chosket; age 25 years
D/o Nema Stanzin
R/o Besthang House Village Shey District Leh U.T. Ladakh
...Petitioner.
Through: Mr. Rahul Pant, Sr. Advocate, with
Mr. Dhruv Pant, Advocate,
Mr. Sahil Mushtaq, Advocate and
Mr. Anirudh Sharma, Advocates
Vs.
01. Union Territory of Jammu and Kashmir
Through Commissioner/Secretary to Government General
Administration Department
Jammu and Kashmir Government
Civil Secretariat, Jammu
02. Jammu & Kashmir Public Service Commission, Resham Ghar
Colony, Bakshi Nagar, Jammu
03. Hon'ble High Court of Jammu & Kashmir and Ladakh at
Jammu/Srinagar.
04. Secretary to Government
Law Department
Jammu and Kashmir Government
Civil Secretariat, Jammu
05. Ambir Khan
C/o Secretary
Jammu & Kashmir Public Service Commission
Resham Ghar Colony, Bakshi Nagar, Jammu
....Respondents.
Through:
Shameem Hamid Mir
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Mr. D.C. Raina, Advocate General, with
Mr. Aditya Gupta, Advocate
Ms. Monika Kohli, Sr. AAG
Mr. Sajjad Ashraf, GA
Mr. Aseem Kumar Sawhney, Advocate for R5
Mr. Tawseef Manzoor Bhat, Advocate &
Mr. Mudasir Shahid Tak, Advocate
Mr. F.A. Natnoo, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
(N. Kotiswar Singh, CJ)
1. The present petition has been filed under Article 226 of the Constitution of India seeking quashing of the result of the Jammu and Kashmir Civil Services (Judicial) Examination-2023 notified vide Notification No: PSC/Exam/2024/04 dated 03.04.2024, as far as the selection of the Respondent No.5 is concerned for appointment against the advertised posts of Civil Judge (Junior Division) in the ST and also seeking a direction for issuing a writ of mandamus commanding the Respondent No.2 to select and recommend the name of the petitioner for appointment against the said advertised posts of Civil Judge (Junior Division) in the ST category on the strength of her merit in the Jammu and Kashmir Civil Services (Judicial) Examination-2023; and in the alternative, seeking quashing of S.O.633 dated 27.12.2023 whereby "Explanation (D)" has been added to Rule 4 of the Jammu and Kashmir Reservation Rules, 2005 providing reservation for the STs of Leh and Kargil Districts within the ST category.
2. The core issue involved in this petition is about the nature of the reservation made, i.e., reservation within reservation provided for the Scheduled Tribes, which has led to certain controversies, resulting in the filing of the present writ petition, WP(C) No.935/2024.
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3. To appreciate the grievances of the petitioner and issues raised in this petition, it may be apposite to refer to the following relevant background facts.
4. The Respondent no.2, the Jammu and Kashmir Public Service Commission (hereinafter referred to as the Commission) issued the advertisement under Notification No.38-PSC(DR-P) of 2023 dated 27.08.2023, inviting applications from eligible candidates from the Union Territory of Jammu and Kashmir and Union Territory of Ladakh for filling up 69 (sixty-nine) posts of Civil Judge (Junior Division). Of the aforesaid 69 (sixty-nine) advertised posts, 10%, i.e., 07 (seven) are reserved for the ST category.
5. It was further mentioned in the advertisement that out of the posts reserved for the Scheduled Tribe category, a quota of 01% each is reserved for the residents of the Districts of Leh and Kargil of the Union Territory of Ladakh which would mean that of the 07 (seven) posts reserved for the STs, 1 (one) post each will be reserved for the STs of Leh District and Kargil Districts. Thus, out of the total 7 (seven) seats reserved for the STs, at least 2 (two) are reserved for the STs of Leh and Kargil Districts.
6. It may be apposite to mention at this stage that though the UT of Ladakh and UT of Jammu and Kashmir are now two separate UTs carved out of the erstwhile State of Jammu and Kashmir, as far as the District Judiciary in these two UTs is concerned, there is still a common Judicial cadre for both these UTs and consequently, recruitment to the judicial service is made under the common recruitment rules called the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967 and Jammu & Kashmir Public Service Commission (Conduct of Examination) Rules, 2022.
The reservation norms applied for the posts are governed by the Jammu and Kashmir Reservation Act, 2004 (hereinafter referred to as "Reservation Act"). Of these aspects, there is no dispute amongst the parties.
7. In terms of Section 23 of the Jammu and Kashmir Reservation Act, 2004, and Section 22 of the Jammu & Kashmir Persons with Disabilities Act, 1998, and other relevant provisions of the law in this behalf, Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document Page |4 reservation rules have been framed, under the nomenclature of the Jammu and Kashmir Reservation Rules, 2005 (hereinafter referred to as "Reservation Rules").
8. Rule 4 of the Reservation Rules, 2005 which deals with reservation in Direct Recruitment mentions the percentages of reservation in respect of various categories namely, Schedule Castes, Schedules Tribes, Socially and Educationally Backward Classes (other than Scheduled Castes and Schedules Tribes), Economically Weaker Sections, and the remaining under the nomenclature of Open Merit category under social reservations also called vertical reservations.
As far as Scheduled Tribe category is concerned, reservation to the extent of 10% of the advertised posts/vacancies is provided.
9. Rule 4 of the Reservation Rules also provides for horizontal reservations, namely, for the Ex-servicemen and Physically Challenged Persons. There is no other category for which horizontal reservation has been provided.
10. The aforesaid Rule 4 further contains four explanations namely Explanation (A), Explanation (B), Explanation (C) and Explanation (D) to clarify the method and nature of reservations.
We are primarily concerned with Explanation (D) to the aforesaid Rule 4 of the Reservation Rules, 2005, which was added and notified vide S.O. 633 dated 27.12.2023, which came into force with effect from 24.08.2023 i.e., prior to the advertisement notice issued by the Jammu and Kashmir Public Service Commission on 27.08.2023 by which reservations have been provided to the extent of minimum of 1% each for the STs of Leh District and Kargil District out of the total posts advertised for the STs under Clause (b) of Rule 4 of the Reservation Rules. As far as giving retrospective effect to the aforesaid S.O. is concerned, there is also no dispute.
11. For better appreciation, Rule 4 and the Explanations (A), (B), (C) and (D) to the aforesaid Rule are reproduced hereunder: -
" Rule 4:- Reservation in Direct Recruitment :-Except as otherwise provided in these rules, available vacancies shall be reserved for direct recruitment in each service, class, category and grade in favor of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document Page |5 possible, constitute the percentage of available vacancies shown against each:
(a) Scheduled Castes .....8%
(b) Scheduled Tribes .....10%
(c) Socially and Educationally Backward Classes (other than
Scheduled Castes and Scheduled Tribes: -
(i) Weak and under privileged classes (Social Caste) .....4%
(ii) Residents of areas adjoining Line of Actual Control (ALC)/International Border (IB) ......4%
(iii)Residents of backward areas ..... 10%
(iv) Pahari Speaking People .....4%
(c)(a) Economically Weaker Sections (EWS) .....10%
(d) Ex-servicemen - Horizontal Reservation .....6%
(e) Physically Challenged Persons- Horizontal Reservation .....4% Explanation (A):-The horizontal reservation to the extent of 6% of The available vacancies shall be provided to the Ex-servicemen against such posts only where the maximum of the pay scale does not exceed Rs.10,500/-.
Explanation (B):-For purposes of clause (d) and (e), the horizontal reservation means the reservations which would cut across the vertical reservation (what is called interlocking reservation) and the person selected against the physically challenged quota will have to be placed in the appropriate category viz if he/she belongs to the scheduled caste category, he/she will be placed in that quota by making the necessary adjustment and 4 similarly if he/she belongs to the open competition category, he/she will be placed in that category Explanation (C):- For the purposes of clause (e) reservations in recruitment shall be available for physically challenged persons for services and posts specified under section 22 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 to the extent specified therein, i.e.;
(a) Blindness or low vision ... 1%
(b) Deaf and Hard of hearing ... 1%
(c) Locomotor disability or Cerebral Palsy,
Leprosy Cured, Dwarfism, Acid attack victims
and muscular dystrophy ... 1%
Shameem Hamid Mir
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(d) Autism, intellectual disability, specific learning disability and mental illness ..... 1%
(e) Multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities.. 1% Explanation (D):- For the purpose of clause (b), reservation to the extent of minimum of 1% each, out of the total posts advertisement from time to time for recruitment to the common cadre of Jammu and Kashmir and Ladakh Judicial Service (other than Higher Judicial Service), shall be provided to the Schedules Tribes belonging to Districts of Leh and Kargil of the Union Territory of Ladakh till common cadre/Service is bifurcated".
12. The petitioner, the respondent no.5 and other eligible candidates applied for the aforesaid advertised posts. As far as the conduct of the examination is concerned, there is no dispute. Of those who had successfully qualified in the preliminary examination, one-third of the total number of candidates who appeared in the preliminary examination or twenty-five times the total number of vacancies to be filled in the service, which was lower, were eligible to appear in the written test, and from amongst the successful candidates in the written test, a number of candidates corresponding to three times the vacancies were called for the interview. Thereafter, candidates obtaining such minimum qualifying marks, subject-wise and in the aggregate, fixed by the Commission after considering the results of the examination and the number of candidates to be filled, were summoned for viva voce.
13. We may not go into detailed consideration of some of these aspects as there is no dispute up to the stage of declaration of marks of those candidates who were called for interview. Thus, there is no dispute about the passing of the petitioner and respondent No.5 in the written test and being called for the interview in this petition.
Suffice it to say that vide Notification No. PSC/Exam/2024/04 dated 03.04.2024, the result was declared in respect of 208 candidates who were called for interview by notifying the marks obtained by each of the Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document Page |7 candidates and categories under which the candidates applied (vide Annexure I to the aforesaid Notification dated 03.04.2024).
14. Based on the said result, the select list was prepared consisting of 69 (sixty-nine) candidates (vide Annexure II to the aforesaid Notification dated 03.04.2024), in which the name of the petitioner did not figure either under the Open Merit category or under the Scheduled Tribe category to which she belongs. Of the aforesaid select list of 69 (sixty nine) candidates, names of 07 (seven) Scheduled Tribe candidates were shown including 1(one) ST candidate each from the Leh District and Kargil District purportedly in terms of Explanation (D) to Rule 4 as referred to above. The names recommended by the respondent No. 2, Commission for appointment to the aforesaid advertised posts for the ST category are as follows:
Sl. No. in the Roll Number Name of the Candidate Category Merit Select List 49 9102384 Hina Parveen Goney ST (Leh) 483.00 54 9102058 Zirgham Hamid ST 472.50 56 9100430 Mehak Mehboob ST 471.00 58 9102783 Fazal-ul-Haq ST 465.50 60 9101575 Rahila Rashid ST 464.00 62 9103542 Ambir Khan (Respondent No.5) ST 459.50 63 9102295 Sadiq Ali Wazir ST (Kargil) 457.50 **178 9103740 Stanzin Itzes Chosket (Petitioner) ST (Leh) 461.50
15. On perusal of the overall merit of the candidates who were called for interview what is discernible is that the name of the petitioner figures at Serial No.178 under Roll number 9103740 and her marks are shown as 461.50 under the category of Scheduled Tribe. On the other hand, the name of the Respondent No. 5 figures at serial number 62 and he obtained 459.50 marks.
16. The grievance of the petitioner is that in the aforesaid list of 07 candidates belonging to the Scheduled Tribe category, though the Respondent No.5 had obtained less marks than the petitioner and thus less meritorious, he was included in the final merit list for the STs and not the petitioner. The petitioner obtained 461.15 marks and the said respondent Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document Page |8 No. 5 obtained 459.50. Thus, evidently, the petitioner is more meritorious than Respondent No.5 who was included in the final select list at the cost of the petitioner. That the petitioner is more meritorious than Respondent No. 5 is thus, not in dispute. The petitioner thus being aggrieved by the inclusion of Respondent No.5 in the final select list to the exclusion of the petitioner under the category of Scheduled Tribes filed the present writ petition and sought the reliefs referred to above.
17. The grounds on which the petitioner has challenged the inclusion of Respondent No.5 in the select list and seeking the aforesaid reliefs are as follows.
(i) The first plea is that the petitioner being more meritorious than the Respondent No.5 in the Scheduled Tribe category, could not have been ignored and the Respondent No.5 having lesser marks than the petitioner, thus less meritorious candidate could not have been given a place in the final select list.
(ii) According to the petitioner what "Explanation (D)" to Rule 4 of the Reservation Rules provides is that there has to be reservation to the extent of a minimum of 1% each out of the total posts advertised from time to time for the Judicial Service (other than the Higher Judicial Service) for the Scheduled Tribes belonging to Districts of Leh and Kargil of the Union Territory of Ladakh under Rule 4 (b) and as such, there is no bar in appointing more than 1% of the vacancies for candidates belonging to Scheduled Tribes hailing from the Districts of Leh and Kargil of UT of Ladakh.
(iii) It has been contended that one of the candidates who had been recommended against the posts of Scheduled Tribes for Leh District i.e., Hina Parveen Goney, ST (Leh) was the most meritorious candidate amongst all the Scheduled Tribe candidates irrespective of the Districts from which the ST candidates hail, having scored 483.00 marks and as such, she was not required to be adjusted against the said 1 (one) post reserved for the STs of Leh District, and on the strength of her own merit, she could have been adjusted against any of the reserved posts in the Scheduled Tribe category without resorting to Explanation (D), in which event, the petitioner could Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document Page |9 have been adjusted against the reserved post for the STs of Leh District in lieu of said Hina Parveen Goney (ST).
(iv) It has been further submitted that in any event, since the petitioner was more meritorious than Respondent No.5 in the Scheduled Tribe category, there was no reason why the petitioner's name was not included in the select list and Respondent No.5 who was less meritorious was included in the select list for the STs.
(v) It has been contended that if the interpretation of Rule 4 adopted by the official respondents qua the Explanation (D) brought in vide S.O.633 dated 27.12.2023 is held to be correct, the aforesaid "Explanation (D)" would be rendered unconstitutional and would be liable to be quashed as it would act to the disadvantage of more meritorious candidates in the Scheduled Tribe category.
18. This petition, however, has been resolutely contested by the Respondent No.2-Commission, and the Respondent No.5, the private respondent whose inclusion in the select list has been questioned by the petitioner. As far as the Respondent No.1-Union Territory of Jammu and Kashmir is concerned, it has been submitted that since the selection has been made by the Respondent No.2-Commission, it is for the Respondent No.2 to explain the position. Similarly, as far as the Respondent No.3-the High Court of Jammu and Kashmir and Ladakh is concerned, the similar stand taken is that since it is also not directly involved in conducting the competitive examination and preparing the select list of various categories which was done by the Respondent no.2, it is for the Respondent no.2 to explain the position.
19. Thus, this Court would primarily focus on the interpretation adopted by and application of various provisions of the Reservation Act and Rules by the Respondent No.2-Commission while preparing the select list. Of course, the contention of the Respondent No.5 whose right has been questioned by the petitioner also would be required to be properly considered.
20. The Respondent No.2-Commission and Respondent No.5-Ambir Khan, have filed their respective affidavits justifying the select list prepared.
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21. The Respondent No.2 has asserted that the Commission had committed no illegality or irregularity in preparing the select list. The Respondent no.5 apart from echoing the stand of the Respondent no. 2- Commission has also questioned the maintainability of the petition.
22. It has been submitted by the Respondent No. 2- Commission that it is the responsibility of the Cadre Controlling Authority as well as of the Appointing Authority to maintain the roster of reservations and to give reservations as per the percentage provided for each reserved category and the Commission had merely followed the instructions and requirements conveyed to the Commission by the Cadre Controlling Authority as well as by the Appointing Authority. In this regard, it has been contented that the Department of Law, Justice and Parliamentary Affairs, UT of Jammu and Kashmir vide communication dated 26-08-2023 had referred 69 (sixty- none) posts of Civil Judges (Junior Division) to the Jammu and Kashmir Public Service Commission for selection through competitive examination. In the said referral letter dated 26-08-2023, it was specifically mentioned that out of the total posts being advertised, a quota of 1% each may be reserved for the residents of Districts of Leh and Kargil, which may be allotted to them from amongst the posts reserved for the ST category. The aforesaid communication received from the Department of Law, Justice and Parliamentary Affairs was based on the communication of the Registrar General of the High Court of Jammu & Kashmir and Ladakh dated 25-08- 2023 by which the High Court had recommended 1% reservation each to the residents of Leh and Kargil Districts of UT of Ladakh out of the quota earmarked for the Scheduled Tribe category. Thus, the Commission proceeded to work out the respective quota for reservation under various categories and ultimately issued the final select list in terms of the instructions mentioned above so received from the Cadre Controlling Authority as well as the Appointing Authority and accordingly, out of the 07 (seven) posts for Scheduled Tribe category, 2 (two) posts were reserved, one each for the Districts of Leh and Kargil and the rest allotted to the STs of other districts.
23. It has been contended by the Respondent No.2-Commission that the Commission had effected the reservation by restricting the zone of Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 11 consideration of candidates belonging to the Scheduled Tribe category i.e., Scheduled Tribes of Leh District, Scheduled Tribes of Kargil District and Scheduled Tribes of UT of Jammu and Kashmir, as the reservation is area based and resultantly, one meritorious ST candidate each from Leh and Kargil Districts with 483.00 marks (Hina Parveen Goney) and 457.50 marks (Sadiq Ali Wazir) respectively were selected against the 1% quota each for the Districts of Leh and Kargil as mentioned in the referral letters received by the Respondent No.2-Commission from the Cadre Controlling Authority as well as the Appointing Authority.
24. It is the stand of the Respondent 2-Commission that the object and purpose underlying reservation for Leh and Kargil Districts have a direct nexus with the residence and that too with the category of Tribe.
25. It has been contended that though there may be a Scheduled Tribe category, an eligible person can only be the candidate in his respective area. Thus, a candidate belonging to Scheduled Tribe category of UT of Jammu and Kashmir cannot encroach upon the reservation meant for that particular tribe of the area of Leh and Kargil Districts.
26. According to the Respondent 2-Commission, the consideration has to be inter se candidates belonging to the respective areas with reference to the category of Schedule Tribe and any other method would be in derogation of the purpose, object, and the underlining principle for incorporating Explanation (D) to Rule 4.
27. The Respondent No.2-Commission also contended that none amongst the Scheduled Tribe candidates, particularly ST candidates of any of the aforesaid sub-categories has higher marks than the cut-off fixed under the Open Merit category. Further, as regards the plea taken by the petitioner about the S.O. 633 dated 27.12.2023 by which Explanation (D) was brought into Rule 4 of the Reservation Rules as being unconstitutional, it has been contended that it is also quite misplaced. In fact, what was required to be done by the Commission was to apply the said Explanation (D) by recommending one candidate each belonging to the Scheduled Tribes of Leh District and Kargil District in terms of the aforesaid Explanation (D) to which the petitioner cannot have any grievance as otherwise, inclusion of the petitioner who belongs to ST category from Leh District would be Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 12 dehors the aforesaid Explanation (D), as it would exceed the quota of 01% for the STs of Leh District.
28. The Respondent No.5 has also vehemently opposed the petition. It has been firstly contended that the writ petition is pre-mature and not maintainable for the reason that there could not be a challenge to the recommendation made by the Commission as it is merely at the stage of recommendation and no right has accrued to the petitioner or any other candidate.
Further, as regards the contention of the petitioner that the S.O. 633 dated 27.12.2023 is unconstitutional, it has been contended that the said amendment has a nexus with the population of Scheduled Tribes in the UT of Ladakh as well as Scheduled Tribes in the UT of Jammu and Kashmir. The said S.O. 633 carves out a sub-quota for the ST candidates hailing from the Union Territory of Ladakh, and as such, it does not suffer from any illegality.
29. It has been contended that what S.O. 633 aims to achieve is to provide 1% reservation each for the Scheduled Tribes belonging to Districts of Leh and Kargil of the Union Territory of Ladakh inhabiting there, out of the total posts advertised for the STs, so that in any eventuality, reservation of 1% each for the two Districts UT of Ladakh is not taken away by the STs hailing from the UT of Jammu and Kashmir and vice verse and the said S.O. 633 would ensure that Scheduled Tribes of Ladakh do not eat into the quota made for the Scheduled Tribes of the UT of Jammu and Kashmir on the basis of population in both the Union Territories.
30. Thus, the S.O. 633 which has a reasonable nexus with the population bifurcation of the Scheduled Tribes of Ladakh and Scheduled Tribes of Jammu and Kashmir cannot be questioned.
It has been, accordingly, contended that the aforesaid sub- classification of Scheduled Tribes is not baseless.
31. It has been also contended that the aforesaid provision of reservation for the Scheduled Tribes of Leh and Kargil Districts does not amount to sub-classification of Scheduled Tribe category but it is a quota for the UT of Ladakh for the two districts of Leh and Kargil which is to be ensured through representation by way of reserving the posts for the Scheduled Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 13 Tribes of Leh and Scheduled Tribes of Kargil and which has been properly applied by the Commission. It was contended that the Commission by selecting Hina Parveen Goney an ST from Leh District and Sadiq Ali Wazir, an ST from Kargil District it was ensured that the aforesaid reservation contemplated under Explanation (D) is fully complied with. Thus, the Commission having selected Hina Parveen Goney from Leh District, and Sadiq Ali Wazir from Kargil District had complied with the requirements of Explanation (D), if any other selection is to be made from amongst the candidates of Scheduled Tribes of Leh District as claimed by the petitioner, it would hurt the claims of the other Scheduled Tribes of the UT of Jammu and Kashmir and cause great injustice to them.
32. It has been contended that S.O. 633 intends to provide reservation for the Scheduled Tribes of Leh and Kargil Districts and should not adversely affect the interest of the Scheduled Tribes of the UT of Jammu and Kashmir and as such, the question of bringing merit for making such selection amongst the Scheduled Tribe category does not arise.
33. Accordingly, it has been submitted that any other interpretation would be contrary to the purpose and intent of S.O. 633, and in support of his contentions, learned counsel for the Respondent No.5 has relied upon the following decisions of the Hon'ble Supreme Court:-
1. Janhit Abhiyan versus Union of India, (2023)5 SCC 1.
2. Indra Sawhney versus Union of India, 1992 Supp (3) SCC 217.
34. Learned Advocate General for the Respondent no.1, Union Territory of Jammu and Kashmir has justified the aforesaid S.O. 633 as it provides reservation for the STs of Leh and Kargil Districts to ensure that despite meager population, ST candidates from these geographical areas are properly represented in the judicial service and as such, the STs of Leh and Kargil Districts are of different category from the rest of STs in Jammu and Kashmir and hence, there cannot be intermingling of STs of Leh and STs of Kargil of the UT of Ladakh with the STs of other areas in the UT of Jammu and Kashmir.
35. It has been submitted that the reservation has been made for the STs Leh and STs Kargil i.e., for the Union Territory of Ladakh and since the Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 14 reservation has been made for Union Territory of Ladakh sub-divided into ST Leh and ST Kargil, the reservation for the STs of Leh and STs of Kargil Districts has to be confined to the Union Territory of Ladakh and cannot be applied to the other UT of Jammu and Kashmir. In this regard, the learned Advocate General has relied on the decisions of the Hon'ble Supreme Court in Bir Singh vs. Delhi Jal Board, (2018) 10 SCC 312, in which it was held that SCs/STs in relation to a particular State/UT are not entitled to benefits allowed to SCs/STs in the matter of employment/education in any other State/UT upon migration to such other State/UT, as also held in Deepak Kumar & Ors. vs. District and Sessions Judge, Delhi &Ors. 2012 (132) DRJ 169 (FB).
36. It has been submitted that with the bifurcation of the erstwhile State of Jammu and Kashmir into two Union Territories, namely, Union Territory of Jammu and Kashmir and Union Territory of Ladakh, though judicial service is not yet bifurcated, the Rules contemplate two separate Union Territories and the aforesaid Explanation (D) is meant for the benefit of the ST candidates from Union Territory of Ladakh and as such, the same cannot adversely affect the interests of the candidates from the Union Territory of Jammu and Kashmir.
37. Further, it has been submitted that the petitioner having participated in the selection process fully knowing the application of the reservation laws and rules as provided under the Jammu and Kashmir Reservation Act, 2004 and Jammu and Kashmir Reservation Rules, 2005 cannot take a U- turn now and question the recruitment process and the select list after having not been found selected.
In this regard, the decision in Tajvir Singh Sodhi &Ors. vs. The State of Jammu and Kashmir &Ors. 2023, LiveLaw (SC) 253 has been relied on, to press home the contention that once a candidate had submitted herself to the interview process with no demur or protest, the same cannot be challenged subsequently.
38. It has been contended that since there are two Union Territories and Explanation (D) has been specifically incorporated to Rule 4 to ensure representation of the Scheduled Tribes of Leh and Kargil Districts belonging to Union Territory of Ladakh, and since there is a separate quota Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 15 meant for the inhabitants of said Union Territory of Ladakh, this cannot be clubbed with the Scheduled Tribes of Jammu and Kashmir, and this differentiation has been made by the rulemaking authorities consciously keeping in mind the population of Union Territory of Ladakh and there is a intelligible differentia in making the classification of the STs of Leh and Kargil belonging to Union Territory of Ladakh, from the STs of the remaining Districts of the UT of Jammu and Kashmir. Since separate reservations have already been provided for UT of Ladakh by reserving 1% each for the STs of Leh District and Kargil District, they cannot have a claim against the posts meant for the STs for the rest of the UT of Jammu and Kashmir.
39. The challenge to the constitutionality of S.O. 633 by the petitioner for the purpose of reservation for the STs of Leh and Kargil, has been opposed based on the decision in Janhit Abhiyan v. Union of India (EWS Reservation), (2023) 5 SCC 1 and Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.
40. The special provision for reservation to the extent of the minimum of 1% each, out of the total posts advertised from time to time for recruitment to the common cadre of Jammu and Kashmir and Ladakh Judicial Service for the STs belonging to Districts of Leh and Kargil of the Union Territory of Ladakh has been justified based on the decision in Kashmiri Sikh Community & Ors. Vs J&K and Others [OWP No. 2048 of 2017].
41. Per contra, it has been contended by Mr. Rahul Pant, learned Senior Counsel for the petitioner, that reliance placed by learned AG on the decisions of the Hon'ble Supreme Court in the case of Bir Singh (supra) is misplaced as the facts and laws discussed therein are entirely different, as the reservation for the STs of Leh and Kargil Districts by incorporating Explanation (D) to Rule 4 is not based on territory but is a sub- categorization of the Scheduled Tribe category. It has been further submitted that though based on territory, yet the rule making authority did not contemplate the division of ST quota for the Districts of Leh and Kargil with the Districts of Jammu and Kashmir as separate sub-categorization. Thus, it would not be correct to state that reservations for the STs Leh and Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 16 Kargil are based on population but is purely a sub-classification of the ST category.
42. In order to understand the issues in proper perspective, it would be necessary to first determine the nature of the reservation involved in the present case. It is now well settled that a reservation can be broadly of two kinds, namely, vertical and horizontal.
43. The reservations in favor of Scheduled Castes, Scheduled Tribes, and Other Backward Classes [under Article 16(4)] also known as social reservation may be called vertical reservations whereas reservations in favor of the physically handicapped or ex-servicemen [under clause (1) of Article 16] can be referred to as horizontal reservations.
44. Vertical reservations are normally compartmentalized, and there is no scope for intermixing of candidates amongst these compartments, except where any candidate belonging to any of the reserved categories can migrate or be adjusted against Open Merit category by virtue of merit. However, in respect of horizontal reservations, the reservation cuts across the vertical reservations in what is called interlocking reservations, which has been succinctly explained in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 in the following words, "812. We are also of the opinion that this rule of 50% applies only to reservations in favor of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as "vertical reservations" and "horizontal reservations". The reservations in favor of Scheduled Castes, Scheduled Tribes and Other Backward Classes [under Article 16(4)] may be called vertical reservations whereas reservations in favor of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations -- what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favor of physically handicapped persons; this would be a reservation relatable to clause (1) of Article
16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category, he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favor of backward class of citizens remains -- and should remain -- the Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 17 same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."
45. From the above, it is clear that different principles will apply to vertical reservation and horizontal reservation, and as such, it is important to understand first whether the reservation for the STs of Leh and Kargil Districts provided under Explanation (D) will be horizontal or vertical as the case may be, before we proceed to examine further the correctness of the application of the reservation rules by the Public Service Commission (Respondent No. 2).
46. In the present case, on consideration of the Explanation (D) to Rule 4 of the Reservation Rules, 2004, and the advertisement, it is quite apparent that the reservation of seats for the STs of Leh and STs of Kargil District cannot be considered to be horizontal reservation, but part of the vertical reservation for the STs.
47. Under the Jammu and Kashmir Reservation Rules, 2004, the vertical reservations provided are for the Scheduled Castes, Scheduled Tribes, Socially, Educationally Backward Classes and Economically Weaker Sections (EWSs) and Open Merit Category as mentioned under Rules 4 (a),
(b), (c)and (c)(a) respectively. On the other hand, horizontal reservations have been provided for Ex-servicemen and Physically Challenged Persons as provided under Rules 4 (d) and (e) of the Reservation Rules 2005. The same is made clearer by Explanations (A), (B), and (C) to Rule 4, as already reproduced above in paragraph 10.
48. As far as the reservation for the Scheduled Tribe category is concerned, there is no doubt that it is a vertical reservation for which 10% of the posts have been reserved for the STs as provided under Rule 4 (b). Since the reservation of 1% each for the STs of Districts of Leh and Kargil has been carved out from the overall 10% reservation for the STs, there should not be any confusion that this reservation for the STs of Districts of Leh and Kargil will be part of the vertical reservation, which will, in turn, determine the manner in which this reservation for the STs of Leh and Kargil Districts has to be applied.
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49. It may be also noted that horizontal reservation has been provided only for Ex-servicemen and Physically Challenged Persons, and for no other category. It is thus quite obvious that the reservation for the STs of the Districts of Leh and Kargil cannot be considered to be horizontal reservation. This reservation for the STs of Leh and Kargil Districts which is a reservation within a vertical reservation, is part of a vertical reservation without any attributes of horizontal reservation. Had it been a horizontal reservation, it would have cut across other categories of vertical reservation, which is not so. This reservation for the STs of Leh and Kargil Districts is confined only to the ST category a vertical reservation. It is a sub- categorization of the reserved category of the STs. The STs of the Districts of Leh and Kargil of the UT of Ladakh form a distinct group of reserved category within the reserved category of STs of both the UT of Jammu and Kashmir and UT of Ladakh.
50. It is, however, important to note that the lawmaking authorities have not categorized the STs of the UT of Jammu and Kashmir as another/separate category of STs as has been done in respect of STs of Leh and Kargil Districts within the overall category of STs under Rule 4 (b). Thus, it would be fallacious and erroneous to conceive of another category of STs of the rest of the districts other than the Districts of Leh and Kargil, i.e., STs of the UT of Jammu and Kashmir, as sought to be portrayed by the Respondent Nos. 2 and 5, and even by the learned Advocate General. The lawmakers have not provided any specific and separate quota of reservation for the STs of the remaining Districts of the UT of Jammu and Kashmir as in the case of STs of Leh and Kargil Districts, though at the first glance, it appears that there are two categories of ST with specific reference to geographical areas.
51. In our opinion, the consideration of reservation for the STs will be vis a vis firstly, the STs belonging to the Districts of Leh and Kargil as a distinct category for whom a minimum of 1% reservation has been provided for each of these two districts, and the other category is the STs of the combined UT of Jammu and Kashmir and UT of Ladakh, forming the second distinct category. There is no separate or distinct category of STs belonging to the remaining districts of UT of Jammu and Kashmir Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 19 mentioned under the rules. The reservation provided under Explanation (D) is thus part of the vertical reservation under Rule 4(b).
52. Thus, on consideration of the Explanation (D) to Rule 4 of the Reservation Rules, 2004, and the advertisement, it is quite apparent that the reservation of posts for the STs of Leh District and STs of Kargil District is not a horizontal reservation but vertical reservation.
53. Consequently, the principles applicable to horizontal reservation cannot be invoked in the present case and the principles applicable to vertical reservation have to be applied.
54. In this regard, one may refer to the decision in Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 explaining the difference in vertical and horizontal reservations as under:
"8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: "For SC: 30 posts, of which 9 posts are for women."
We find that many a time this is wrongly described thus: "For SC: 21 posts for men and 9 posts for women, in all 30 posts." Obviously, there is, and there can be, no reservation category of "male" or "men".
8. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favor of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favor of physically handicapped, women, etc. under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favor of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney1, R.K. Sabharwal v. State of Punjab3, Union of India v. Virpal Singh Chauhan4 and Ritesh R. Sah v. Y.L. Yamul5.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 20 Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women............................."
1:1992 SUPP (3) SCC 217 3:(1995) 2 SCC 745 4: (1995) 6 SCC 684 5: (1996) 3 SCC 253
55. From the above it is clear that as far as principles applicable to vertical reservation are concerned, it is well settled that by virtue of merit a person in a reserved category can be considered for inclusion in the Unreserved/Open category, which is sometimes explained as migration, and once adjusted in the Open category by migration, there will be a corresponding vacancy created in the reserved category and the ensuing vacancies in the reserved category will be filled up from amongst the reserved candidates based on their inter se merit. One of the reserved candidates in the merit list will be pushed up to occupy the vacancy caused by the "migration" of the reserved candidate to the Open Merit category. The "migrated" reserve candidate cannot be counted against the reserved quota as she will be counted as an Open Merit candidate. This principle is also reflected in Section 4 of the Reservation Act, read with Rule 7(8) of the Reservation Rules which are reproduced in a later paragraph.
56. This is the principle which has been well accepted and reiterated from time to time by various judicial pronouncements and thus attained the force of law starting from Indra Sawhney v. Union of India, (supra) wherein it was observed in para 811 as follows:
"811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 21 own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."
57. The said principle was reiterated in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745,wherein the Constitution Bench of the Supreme Court considered the question of appointment and promotion and roster points vis-à-vis reservation as follows:
"4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserved category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favor of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition."Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document
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58. We are conscious of the position obtained herein that this is not a case of migration of an ST candidate from the reserved category of STs to the Open Merit category. As discussed above, it is about reservation within reservation in the same category of vertical reservation of ST category. However, as discussed above, certainly the principles applicable to horizontal reservation will not be applicable in the present case, but the principle applicable to vertical reservation.
59. It is clear that the lawmakers intended to provide reservation for the STs of Leh and Kargil Districts from amongst the ST reserved category. It is also clear that apart from carving out a distinct category of STs of Leh and Kargil Districts within the overall ST category, the lawmakers have not made any other categorization in respect of any other area or District. As per Explanation (D), the lawmakers had intended to provide a minimum of 1% of reservation each for the Leh District and Kargil District out of the total posts advertised from time to time under Clause (b) of Rule 4 (i.e., ST Category) and since the overall reservation provided for STs under Rule 4(b) is 10%, the implication is clear that this reservation for STs of Leh and Kargil Districts has to be out of the said overall 10% reservation meant for the STs of both the UT of Jammu and Kashmir and UT of Ladakh.
60. Since the law makers have not made any further categorization of STs into STs of Jammu and Kashmir separately or any other District of the UT of Jammu and Kashmir, it is clear that only the STs of Leh and STs of Kargil as a distinct category will form part of the larger pool of STs belonging to both the UTs of Jammu and Kashmir and Ladakh. In other words, the STs of Leh and Kargil Districts are STs in the first place as contemplated under Rule 4(b), and thus would be entitled to all the benefits granted to any of the STs of both the UT of Jammu and Kashmir and the UT of Ladakh. However, by virtue of Explanation (D), the STs of Leh and Kargil Districts, in the second place, in addition, are specially categorized as STs of Leh and Kargil Districts for whom a minimum of 1% reservation each is provided, and thus, will get an additional benefit of reservation for themselves as STs of Leh and Kargil Districts, out of the 10% reserved for the STs under Clause (b) of Rule 4. This additional benefit of a minimum 1% reservation each out of the 10 % reservation for the STs of the Leh and Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 23 Kargil Districts does not mean that the STs of Leh and Kargil Districts cannot get the benefit of reservation under the remaining quota for the other STs, since they continue to remain as STs under Rule 4(b). The law-making authority has not provided that out of the 10% reservation for the STs under Rule 4 (b), the remaining posts (after deducting 1% each reserved for the STs of Leh and Kargil District)will be reserved for the STs of the UT of Jammu and Kashmir. Thus, what the rules provide is that out of the 10% reservation quota, at least 2% will be reserved for the candidates from Leh and Kargil (each enjoying 1%) and the rest will be open to all the STs, including the STs of Leh and Kargil Districts, who can be considered on the basis of merit for appointment to the other remaining posts reserved for the STs. Consequently, while there has to be at least one ST candidate each from the Leh and Kargil Districts, if there are more ST candidates from Leh and Kargil Districts who more meritorious than any other ST candidate hailing from any other part of the UT of Jammu and Kashmir, these ST candidates from Leh and Kargil Districts can still be selected by virtue of their merit under the overall ST category under Rule 4(b).
61. In the present case, there are 7 (seven) posts served for STs under Clause (b) of Rule 4 of the Reservation Rules. Out of the aforesaid 7 (seven) posts, 2 (two) posts will be reserved each for the STs of Leh and Kargil, leaving 5 (five) posts. Let us assume that all the first 5 (five) most meritorious candidates under the ST category also hail from Leh and Kargil Districts. In that event, can one say that since 2 (two) posts have been reserved for the STs of Leh and Kargil, these remaining 5 (five) posts cannot be filled up by these most meritorious ST candidates hailing from Leh and Kargil Districts? If such an interpretation is accepted it would mean that firstly, merit will be sacrificed and secondly, the STs of Leh and Kargil will be deemed not as STs, which is fallacious. Thirdly, by this interpretation, another category of STs will be created, namely STs of Jammu and Kashmir in contradistinction to the STs of Leh and Kargil District, when no such further classification or categorization is contemplated by the rules or the lawmakers. The only sub- categorization/sub-classification is that of STs of Leh and Kargil Districts Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 24 for the purpose of granting of reservation of 1% each out of the total seats/vacancies under Explanation (D) to Rule 4.
62. On the other hand, it cannot be disputed that the STs of Leh and Kargil Districts are also STs in the first place. The only difference is that for them there is an additional benefit granted to them by earmarking a minimum of 1% of the posts each exclusively for them out of the 10% of the posts reserved for the STs. Thus, apart from the benefit granted under Explanation (D) to Rule 4, the STs of Leh and Kargil Districts can still avail the benefit entitled to any other STs as members of the common cadre of District Judiciary of the UT of Jammu and Kashmir and UT of Ladakh.
63. Since STs of Leh and Kargil Districts have to be adjusted only within the category of ST, and not with any other vertical and social categories of SC, Socially and Educationally Backward Classes etc., thus, not being a horizontal reservation, but a vertical reservation being a sub-category within ST category, the principles applicable to vertical reservation will apply. Consequently, these 1% posts each within the ST category have to be filled up from the STs of Leh and Kargil Districts. Further, if they are meritorious enough, the STs of Leh and Kargil Districts can be appointed against the remaining ST posts. Since it is not a horizontal reservation, it cannot be said that once ST candidates from Leh and Kargil Districts have been appointed, there cannot be further appointment against the remaining ST posts, even if they are more meritorious than other STs hailing from other Districts of UT of Jammu and Kashmir. In other words, the principles applicable for vertical reservation will be applicable in this case also, even if it is a reservation within the reservation. Thus, the principles as enunciated in Indra Sawhney v. Union of India, (supra) and R.K. Sabharwal (supra) will be applicable which means that the STs of Leh and Kargil Districts can not only compete for these 1% each reservation but also compete for other ST posts. As a result, after STs from Leh and Kargil Districts are selected against the quota reserved for them, if they have better merit than other STs from other regions of Jammu and Kashmir, these STs from Leh and Kargil Districts can still be selected for appointment against the remaining posts reserved for the STs.
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64. This is for the reason that appointment to the remaining posts of STs has to be also based on merit and no meritorious candidate can be deprived of selection. The merit of the candidates for selection to the remaining ST posts is to be determined from amongst all the STs inclusive of the STs from Leh and Kargil Districts and other Districts of the UT of Jammu and Kashmir, since the remaining posts of STs have not been reserved exclusively for the STs of the remaining Districts of the UT of Jammu and Kashmir.
65. To illustrate, if there are 7 posts reserved for the ST community as provided under Rule 4 (b), out of these 7 posts, 2 (1+1) posts will be reserved for the ST candidates hailing from Leh and Kargil Districts each, in terms of Explanation (D) to Rule 4. Thus, 5 posts for STs will remain. Since the remaining 5 posts are not meant exclusively for the STs of the UT of Jammu and Kashmir, these 5 posts are to be filled up from amongst the most meritorious ST candidates hailing from both the UT of Jammu and Kashmir and UT of Ladakh. Thus, if any one or more ST candidates from the UT of Ladakh (Leh and Kargil Districts) are found to be more meritorious after adjusting against the 2 (1+1) posts reserved, they will find places in the 5 remaining posts, as otherwise, merit will be a casualty at the time of appointment to these 5 remaining ST posts.
66. Coming to the case at hand, we will examine the merit position of the ST candidates qua the vacancies.
As per the result declared of all the candidates who were called for interview (vide Annexure-I to the Notification dated 03.04.2024), it is seen that as many as 21 ST candidates hail from both the UT of Jammu and Kashmir and UT of Ladakh. These are as follows:
Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST) 483.00 (71)
2. Zirgham Hamid (ST) 472.50 (207)
3. Mehak Mehboob (ST) 471.00 (100)
4. Fazal Ul Haq (ST) 465.50 (64)
5. Rahila Rasheed (ST) 464.00 (139)
6. Stanzin Itzes Chosket (ST) 461.50 (178)
7. Ambir Khan (ST) 459.50 (23)
8. Sadiq Ali Wazir (ST) 457.50 (155)
9. Mohammed Zulfa Raz (ST) 455.50 (106)
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10. Nighat Mehr Ban (ST) 452.00 (121)
11. Amir Iqbal (ST) 448.00 (22)
12. Muhammad Sala Ud Din (ST) 443.00 (105)
13. Imtiaz Ahmed (ST) 435 (75)
14. Mudasir Fazil Dader (ST) 417 (110)
15. Stanzin Yangdol (ST) 411 (179)
16. Azhra Khari (ST) 409.50 (44)
17. Arif MoohdMapnoo (ST) 407.00 (34)
18. Khalida Jabeen Gorsi (ST) 406.00 (87)
19. ShabaazChudhary (ST) 402.00 (162)
20. Ghulam Mohd Hayderi (ST) 396.00 (66)
21. Khadim Hussain (ST) 367.50 (86)
67. A perusal of the aforesaid list in Annexure I would show that the list does not sub-categorize the ST candidates into the STs of Leh and Kargil Districts of UT of Ladakh, and STs of other Districts of UT of Jammu and Kashmir, but all are shown under the common generic classification of "ST" only, which clearly indicates that the Commission also treated all the STs in the same category in the first place, irrespective of whether they hail from the UT of Ladakh or UT of Jammu and Kashmir, which is the correct approach so far.
68. Under the circumstances, as the second step, the Commission ought to have first prepared the list of the 7 most meritorious ST candidates irrespective of the district from which they hail, and accordingly, the list would have read as follows.
Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST) 483.00 (71)
2. Zirgham Hamid (ST) 472.50 (207)
3. Mehak Mehboob (ST) 471.00 (100)
4. Fazal Ul Haq (ST) 465.50 (64)
5. Rahila Rasheed (ST) 464.00 (139)
6. Stanzin Itzes Chosket (ST) 461.50 (178)
7. Ambir Khan (ST) 459.50 (23)
Since, two candidates for two reserved posts, one each for the District of Leh and District of Kargil, have to be accommodated in the final list of 7 (seven) ST candidates on the strength of their merit, in terms of Explanation (D) to Rule 4, the last two candidates from the above list have to be removed, leaving 5 (five) ST candidates in the list irrespective of whether there are ST candidates from Leh or Kargil Districts in the first five Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 27 most meritorious list, as it is not a horizontal reservation. Thus, the last two candidates from the list of 7 (seven) ST candidates namely, Stanzin Itzes Chosket (ST) and Ambir Khan (ST) have to be removed. Thus, the list of 5 (five) ST candidates will be as follows:
Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST) 483.00 (71)
2. Zirgham Hamid (ST) 472.50 (207)
3. Mehak Mehboob (ST) 471.00 (100)
4. Fazal Ul Haq (ST) 465.50 (64)
5. Rahila Rasheed (ST) 464.00 (139)
After that, to select the two candidates for the two posts reserved, one for the District of Leh and one for the District of Kargil, in terms of Explanation (D) to Rule 4, a list of ST candidates exclusively from these two Districts is to be prepared in order of merit, which will be as follows:
Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST/Leh) 483.00 (71)
2. Sadiq Ali Wazir (ST/Kargil) 457.50 (63)
69. However, Hina Parveen Goney (ST/Leh) is already in the select list for the ST category by virtue of her own merit. In fact, she is the most meritorious candidate and the highest scorer amongst all the ST candidates. Thus, she has already found a place in the merit list of the ST candidates on her own merit and not on the basis of 1% reservation for the ST candidates from Leh as per Explanation (D) as it is not a horizontal reservation. Hence, in the list prepared for the reserved candidates for ST of Leh and Kargil Districts, she cannot be again shown and, in her place, the next most meritorious ST candidate from Leh District is to be picked up and that happens to be the petitioner, namely, Stanzin Itzes Chosket (ST). Thus, the redrawn list of the candidates against the 2 reserved posts for STs from Leh District and Kargil District would be as follows:
Name Marks Sl. No. in the list
1. Stanzin Itzes Chosket (ST/Leh) 461.50 (178)
2. Sadiq Ali Wazir (ST/Kargil) 457.50 (63)
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70. Thus, the final select list of 7 (seven) ST candidates including 2 (two) candidates from Leh and Kargil Districts would read as follows:
Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST) 483.00 (71)
2. Zirgham Hamid (ST) 472.50 (207)
3. Mehak Mehboob (ST) 471.00 (100)
4. Fazal Ul Haq (ST) 465.50 (64)
5. Rahila Rasheed (ST) 464.00 (139)
6. Stanzin Itzes Chosket (ST/Leh) 461.50 (178)
7. Sadiq Ali Wazir (ST/Kargil) 457.50 (63)
71. If we apply the principles engrained in Section 4 of the Reservation Act read and Rule 7(8) of the Reservation Rules, we will get similar results. Section 4 of the Reservation Act and Rule 7 of the Reservation Rules are accordingly, reproduced hereunder:
Section 4 of the Reservation Act "4. Reservation not to bar appointment in open merit Nothing contained in Section 3 shall prevent the appointment of any person belonging to any reserved category against unreserved vacancy on the basis of his merit and such appointment shall not result in reduction in the number of posts reserved for that category."
Rule 7 of the Reservation Rules "Rule 7. Preparation of the Select List (1). The selection authority shall draw up, in order of merit, a consolidated list of all the eligible candidates irrespective of class to which they belong. The list shall show classification of the candidates category-wise.
(2) The selection authority shall then prepare from out of the first list, a second list containing the names of candidates equal in number to the total number of un-reserved vacancies to be filled up, arranging them in order of merit, commencing with the first name in the first list (hereinafter called second list). If there are no reserved vacancies, then the second list shall constitute the select list subject only to the provisions of sub-rule (6) and (7).
Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this documentP a g e | 29 (3) If there are reserved vacancies as well, the selection authority shall next prepare from out of the portion of the first list remaining after excluding the portion corresponding to the second list, a third list containing the names separately of as many candidates, from each of the categories, as the number of vacancies respectively reserved for them arranging the candidates from each category in order of their inter se merit (hereinafter called third list). The said third list added to the said second list shall in such case constitute the select list, subject only to the provisions of sub-rule (6) and sub-rule (7).
(4) If in the case of any of the aforesaid categories, the number of candidates belonging to such category in the third list falls short of the number of vacancies reserved for it, the remaining reserved vacancies for such category shall be treated as backlog and the procedure as provided under section 5 of the reservation Act shall be followed.] (5) If, there are reserved vacancies alone against which selection is to be made, the selection authority shall invite applications from the members belonging only to that class for whom the said vacancies are meant. It shall then draw up a list of the candidates in order of merit, out of which shall be prepared another list containing names of the candidates equal in number to the number of the reserved vacancies arranged in order of merit commencing from the first name in the initial list mentioned above. The list so prepared shall constitute the select list for these reserved vacancies subject only to the provisions of sub-rule (6) and sub-rule (7).
(6) Notwithstanding anything to the contrary contained in sub- rules (1) to (5), the selection authority shall provide horizontal reservation to the extent specified under rule 4 to the candidates falling under the categories ex-servicemen and physically challenged persons while preparing the roster under the said sub- rules.
Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this documentP a g e | 30 (7) The list as finally settled by conforming to sub-rule (1) to (5) above shall constitute the list of candidates finally selected for appointment to any particular service, class, category or grade, as the case may be, for which such selection is made at a time.
(8) For purposes of services to which Combined Competitive Examination is conducted, the reserved category candidates if selected against open merit vacancies may also be considered for allotment of services allocable to their respective category as per their inter-se-merit/ own preference and the resultant left over vacancies in the services in open merit shall be allotted to those reserved category candidates only, as per merit-cum-preference, against whose vacancies the reserved category candidates qualifying in the open merit are considered:
Provided that physically challenged candidates shall be considered for selection in the services and against the posts identified for their respective categories in terms of Government Order No. 62-SW of 2001 dated 13.03.2001 and in accordance with their merit-cum-preference, if otherwise found suitable for selection.
72. Section 4 of the Reservation Act enables any reserved category to be appointed against unreserved vacancy on the basis of merit which is also known as "migration" and the same shall not result in reduction of number of posts reserved for that category.
Rule 7 of the Reservation Rules as mentioned above provides the method for preparing the select list. Rules 7(1) mandates the selection authority to draw up, in order of merit, the consolidated list of all eligible candidates irrespective of class or category to which they belong. Thus, it will contain candidates in order of merit of all categories. The list which is prepared under Rule 7(1) may be referred to as List A for our purpose.
Rule 7(2) further provides that thereafter the selection authority shall prepare out of the aforesaid first list (List A), a second list containing the names of candidates in equal number of total number of unreserved Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 31 vacancies to be filled up, arranged in order of merit, herein after referred to as List B for our purpose.
Rule 7(3) provides that if there are reserved vacancies, the selection authority shall prepare out of the first list after excluding the candidates contained in the second list (i.e., List A - List B), a third list containing the names separately of as many candidates, from each of the reserved categories in terms of merit hereinafter referred to as List C for our purpose.
Rule 7 (4) and Rule 7 (5) may not be relevant for our purpose.
Rule 7(6) provides for working out horizontal reservation.
Rule 7 (7) mentions that the final list will thereafter be prepared after following the aforesaid procedure.
Rule 7(8) provides the modality to be worked out in the event reserved category candidates are selected against open merit vacancies in the matter of allotment of services.
In the present case, since there is only one category of posts which has been advertised namely, Civil Judge (Junior Division) and no further classification or categories made, the necessity of allotment of services does not arise. Hence, Rule 7(8) may not be applicable as far as allotment of service is concerned, but one cannot lose sight of the principle contained in Rule 7(8) that a reserved category can be selected against open merit vacancy as also mentioned under Section 4 of the Reservation Act.
73. As can be seen from above, Rule 7 however does not specifically deal with the situation as to how the select list is to be prepared when it involves reservation within reservation in a vertical reservation as in the present case arising out of Explanation (D) of Rule 4. However, in our opinion, even if the same has not been clearly spelt out in the Rule 7, there will not be any difficulty in working out the modality if we apply the principles contained in the aforesaid Rule 7.
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74. To apply the principles contained under Section 4 of the Reservation Act and Rule 7 of the Reservation Rules in the present case, we proceed with the following assumptions.
It may be observed that there are 21 (twenty-one) ST candidates whose names are found in Annexure I to the Notification dated 03.04.2024. As discussed above, under Rule 7(1), the selection authority has to first prepare the consolidated list of all eligible candidates irrespective of class or category to which they belong, which was referred to as "List A". By drawing an analogy, for the purpose of our case, we also make a consolidated list of 21 ST candidates, by applying the norm contained in Rule 7(1) which we also call it "List A". Thus, our "List A" will consist of all the eligible 21 Scheduled Tribe candidates from both the UT of Ladakh and UT of Jammu and Kashmir in terms of merit:
List A Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST) 483.00 (71)
2. Zirgham Hamid (ST) 472.50 (207)
3. Mehak Mehboob (ST) 471.00 (100)
4. Fazal Ul Haq (ST) 465.50 (64)
5. Rahila Rasheed (ST) 464.00 (139)
6. Stanzin Itzes Chosket (ST) 461.50 (178)
7. Ambir Khan (ST) 459.50 (23)
8. Sadiq Ali Wazir (ST) 457.50 (155)
9. Mohammed Zulfa Raz (ST) 455.50 (106)
10.Nighat Mehr Ban (ST) 452.00 (121)
11.Amir Iqbal (ST) 448.00 (22)
12.Muhammad Sala Ud Din (ST) 443.00 (105)
13.Imtiaz Ahmed (ST) 435.00 (75)
14.Mudasir Fazil Dader (ST) 417.00 (110)
15.Stanzin Yangdol (ST) 411.00 (179)
16.Azhra Khari (ST) 409.50 (44)
17.Arif MoohdMapnoo (ST) 407.00 (34)
18.Khalida Jabeen Gorsi (ST) 406.00 (87)
19.ShabaazChudhary (ST) 402.00 (162)
20.Ghulam Mohd Hayderi (ST) 396.00 (66)
21.Khadim Hussain (ST) 367.50 (86) Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 33
75. Now by applying the norm laid down in Rule 7(2), we will now draw the second list which we call "List B". As per Rule 7(2), the second list will contain the names of candidates equal in number to the total number of unreserved vacancies/posts. For our purpose, since there are 7 (seven) posts reserved for STs, out of which 2 (two) posts are reserved for the STs of Leh and Kargil Districts, we will proceed with the assumption that the said 2 (two) posts are "reserved" posts within the meaning of Rule 7(3) and the remaining 5 (five) posts are "unreserved" within the meaning of Rule 7(2). Thus, by deeming the said 5 (five) posts as "unreserved" within the meaning of Rule 7(2) for our purpose, the list of the "unreserved" vacancies/posts which we call "List B" will be as follows:
List B Name Marks Sl. No. in the list
1. Zirgham Hamid (ST) 472.50 (207)
2. Mehak Mehboob (ST) 471.00 (100)
3. Fazal Ul Haq (ST) 465.50 (64)
4. Rahila Rasheed (ST) 464.00 (139)
5. Ambir Khan (ST) 459.50 (23) Thereafter, we will draw up the list of "reserved" candidates (STs of Leh and Kargil Districts) within the meaning of Rule 7(3) from the first list, "List A" and accordingly, the said list which we call "List C" will consist of following candidates: -
List C Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST/Leh) 483.00 (71)
2. Sadiq Ali Wazir (ST/Kargil) 457.50 (155) Accordingly, as per the aforesaid list, the select list of Scheduled Tribe candidates would be as follows: -
Name Marks Sl. No. in the list
1. Zirgham Hamid (ST) 472.50 (207)
2. Mehak Mehboob (ST) 471.00 (100)
3. Fazal Ul Haq (ST) 465.50 (64)
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4. Rahila Rasheed (ST) 464.00 (139)
5. Ambir Khan (ST) 459.50 (23)
6. Hina Parveen Goney (ST/Leh) 483.00 (71)
7. Sadiq Ali Wazir (ST/Kargil) 459.50 (23)
However, it is evident from the above that even though Hina Parveen Goney can be said to have been selected as a "reserved" candidate against the quota reserved for the STs of Leh District, it is clearly evident that she is the highest scorer amongst all these STs and has scored more than any of the candidates included in List B prepared above, which we assume to be "unreserved" candidate for our purpose.
Accordingly, by applying the principles contained in Section 4 of the Reservation Act and Rule 7(8) of the Reservation Rules, Hina Parveen Goney being more meritorious than any of the candidate in List B will migrate to the said List B meant for the "unreserved" ST candidates. However, since the number of "unreserved" posts cannot exceed 5 (five) posts, the last candidate from List B will be ousted, namely Ambir Khan and Hina Parveen Goney will be considered as an open merit candidate for our purpose. If that is so, by applying the principle contained in Section 4, since the number of reserved posts in the category of reserved STs of Leh and Kargil Districts cannot be reduced after "migration" of Hina Parveen Goney from the "reserved" category to the to the other larger pool of STs which we assume to be the "unreserved"/open merit category for our purpose, the next meritorious candidate amongst the deemed "reserved" category , i.e., STs hailing from Leh and Kargil Districts has to be given the slot earlier occupied by the Hina Parveen Goney. The said next most meritorious candidate from the "reserved" category happens to be the present petitioner-Stanzin Itzes Chosket.
Thus, after migration of Hina Parveen Goney to "List B", Stanzin Itzes Chosket will find place in "List C" in lieu of Hina Parveen Goney.
Thus, upon ouster of the last candidate in the original List B, namely Ambir Khan, the new final select list of 7 (seven) ST candidates under Rule 4(b) including 2 (two) ST candidates from Leh and Kargil Districts would read as follows:
Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this documentP a g e | 35 Name Marks Sl. No. in the list
1. Hina Parveen Goney (ST) 483.00 (71)
2. Zirgham Hamid (ST) 472.50 (207)
3. Mehak Mehboob (ST) 471.00 (100)
4. Fazal Ul Haq (ST) 465.50 (64)
5. Rahila Rasheed (ST) 464.00 (139)
6. Stanzin Itzes Chosket (ST/Leh) 461.50 (178)
7. Sadiq Ali Wazir (ST/Kargil) 457.50 (63) Thus, what we find is that with the aforesaid methodology by applying the principles/norms engrained in Section 4 of the Reservation Act and Rule 7(8) of the Reservation Rules, it leads to the same result.
76. However, it appears that the Commission felt that if the aforesaid methodology is adopted, there would be two ST candidates from Leh District namely Hina Parveen Goney and Stanzin Itzes Chosket, and since the reservation for the ST candidates for the Leh District is only one, it would exceed the reservation and accordingly, removed the petitioner, Stanzin Itzes Chosket and in her place, brought in Ambir Khan (ST) who does not hail from either the District of Leh or Kargil, and who was next in the overall merit list of ST candidates, after the last ST candidate namely, Rohilla Rashid, and accordingly prepared the final select list which is challenged in this writ petition.
77. The fallacy in the approach of the Commission is that the Commission had considered that with the selection of Hina Parveen Goney (ST) who hails from Leh, the 1% quota reserved for the STs of Leh District had been complied with ignoring the fact that she is the most meritorious candidate amongst the STs and she would get selected on her own merit without resorting to Explanation (D), and if the petitioner, Stanzin Itzes Chosket who is also an ST from Leh District is included in the final select list for the STs, there will be 2 (two) ST candidates from Leh District and thus, the said 1% quota for the STs of Leh will be exceeded, thus breaching the limit.
78. The Commission wrongly applied the principle of horizontal reservation in the instant case, though the reservation for the STs of Leh and Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 36 Kargil District is not a horizontal reservation, but a part of a vertical reservation.
The mistake committed by the Commission was that though Hina Parveen Goney was to be selected on her own merit being the most meritorious candidate amongst the ST candidates in terms of Section 4 of the Act, it was not done and she was considered as a candidate to be included based on 1% reservation for the STs of Leh District. She would have been included in the merit list of the STs even if the said Explanation (D) to Rule 4 had not been inserted in the Reservation Rules of 2005 providing reservation for the STs of Leh and Kargil Districts. Sadiq Ali Wazir, the ST candidate from Kargil District who otherwise would not have found a place in the merit list in the ST Category, however found a place in the final select list because of the reservation under Explanation D. Since, the reservation provided under Explanation (D) to Rule 4 is not horizontal but vertical, inclusion of Hina Parveen Goney cannot be counted towards the 1% reservation for the STs of Leh District. Since she on her own merit will find an assured place in the list of ST candidates without taking the benefit of Explanation D. Thus, Stanzin Itzes Chosket, the next most meritorious ST candidate from Leh District has to be included against the quota of 1% reservation for the STs of Leh District. The Commission had wrongly brought in Ambir Khan (ST) despite scoring less marks than the petitioner under the remaining 5 (five) posts reserved for the STs (after deducting 2 posts reserved for the STs of Leh and Kargil Districts). Thus, a less meritorious ST candidate was brought in by ignoring a more meritorious candidate, that is, the petitioner who also happens to hail from the District of Leh.
79. This issue may be viewed from another perspective. Even if we assume that Hina Parveen Goney is selected against the 1% reserved for the STs of Leh District, and thus the mandate of Explanation (D) is fulfilled, the said Stanzin Itzes Chosket, though may hail from Leh District, still is an ST candidate. The attribute of her candidature as belonging to ST category does not get wiped out merely because she hails from Leh District.
Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this documentP a g e | 37 She possesses two kinds of qualities:
The first attribute is that she is an ST candidate from the UT of Ladakh but enjoys the same benefits as any other ST from the UT of Jammu and Kashmir. Whatever benefit is given to any ST from the UT of Jammu and Kashmir, she can enjoy the same benefit, by virtue of being an ST, since the cadre is common and the posts are open to all the ST candidates hailing from all the districts of both the UT of Ladakh and UT of Jammu and Kashmir.
The second attribute is that, in addition to the aforesaid benefit enjoyed by any ST candidate to get selected and to be included in the select list by virtue of merit, she has the extra benefit of competing exclusively along with other ST candidates from Leh District for the 1% post reserved for the STs of Leh District. Thus, even if she does not get selected in the normal category of STs, she can get selected against the 1% post reserved for the STs of Leh District depending on her merit.
This is what happened to Sadiq Ali Wazir. He is an ST from Kargil District, but cannot find a place on the basis of merit in the remaining 5 (five) posts But by virtue of Explanation (D), even though he scored less than Ambir Khan, is to be selected as an ST from Kargil District for which 1 (one) post has been reserved.
80. Thus, even if Hina Parveen Goney is treated to be selected against the 1% reserved for the STs of Leh District as done by the Respondent no.2- Commission, and since one ST candidate from District Kargil has been already selected namely, Sadiq Ali Wazir, though he does not find place in the overall merit list of 7 most meritorious ST candidates, the petitioner by virtue of her merit is entitled to be considered for selection against the remaining 5 ST posts available. The said 5 ST posts are not reserved exclusively for STs of the UT of Jammu and Kashmir, as has been erroneously presumed by the Commission as well the respondent no. 5, but these are open to all the ST candidates hailing from both the UT of Ladakh and UT of Jammu and Kashmir. The petitioner on the basis of her merit can compete with all other ST candidates hailing from both the UTs of Ladakh Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 38 and Jammu and Kashmir for these 5 (five) ST posts. Thus, after not counting the said two candidates namely, Hina Parveen Goney (ST) from Leh and Sadiq Ali Wazir (ST) from Kargil, the 5 most meritorious ST candidates will be as follows:
Name Marks Sl. No. in the list
1. Zirgham Hamid (ST) 472.50 (207)
2. Mehak Mehboob (ST) 471.00 (100)
3. Fazal Ul Haq (ST) 465.50 (64)
4. Rahila Rasheed (ST) 464.00 (139)
5. Stanzin Itzes Chosket (ST) 461.50 (178)
Ambir Khan (Respondent No. 5) stands at the 6th position with 459.50 marks below the petitioner and hence his name cannot be included in the said list for 5 (five) posts.
81. Thus, seen from this perspective also, the petitioner finds a place in the select list for the ST candidates. Her name however, can be dropped only if the wrong principle is applied as has been done by the Commission. According to the Commission since, there is already one ST candidate from Leh District, inclusion of another candidate from Leh District will not be permissible, as it will exceed the quota of 1% reserved for the ST from Leh District which is not only erroneous but will cause serious prejudice to the meritorious candidate and thus arbitrary, discriminatory and contrary to well-settled principles governing vertical reservation and the statutory provisions under Explanation (D) to Rule 4.
82. There is yet another error committed by the Commission in interpreting Explanation (D) to Rule 4 by assuming that the upper limit of reservation provided each for the District of Leh and District of Kargil is 1%. What Explanation (D) provides is that reservation will be provided to the extent of a minimum of, and not a maximum of 1%each for recruitment to the common cadre of Jammu and Kashmir and Ladakh Judicial Service to the STs belonging to Districts of Leh and Kargil. In other words, there can be reservation for more than 1% percent, but the minimum would be 1%. Thus, in the actual application of the rules, if the reservation exceeds 1%, such an arrangement cannot be considered to be illegal. However, the Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 39 Commission erroneously proceeded with the assumption that in no case the reservation can exceed 1%. Be that as it may, we are not basing our conclusions on this interpretation. We are of the view that the petitioner would succeed on the basis of the analysis and conclusion arrived at by us in the preceding paragraphs.
83. We will now briefly refer to other submissions advanced by the Respondent no.2-Commission as well as the Respondent no.5.
84. As regards the contention of the Respondent no.2-Commiussion that the Commission acted on the basis of the requisition made by the Cadre Controlling Authority and the Appointing Authority, it is to be noted that these authorities had made the requisition to the Commission for filling up these 69 posts based on the reservation law and there was no stipulation that more than 1 candidate each from the Leh District and Kargil District cannot be appointed. What was mentioned is that reservations to the extent of 1% each, i.e., 1 (one) post each have to be earmarked for the candidates from Leh District and Kargil District. It was for the Respondent No.2, Commission to work out the reservation for the various categories as per the reservation law. The referral letter has to be read in conformity with the provisions of the Reservation Act and Rules framed thereunder and not contrary to the reservation law as applicable.
85. The respondent Commission appears to have committed an error by adopting the approach that the eligible ST candidates can be considered only in the respective areas. It is to be noted that while there is a specific reservation for the ST candidates hailing from Leh District and Kargil District which is area specific, there is no such reservation for other STs residing in other areas i.e., other districts of the UT of Jammu and Kashmir. The reservation for ST category under Rule 4 (b) is not area-specific except for the sub-category of reservation for the Districts of Leh and Kargil for which special provisions have been made as provided under Explanation D to Rule 4. Merely because area specific reservations have been made for the STs hailing from Leh and Kargil Districts, it does not necessarily mean that in respect of the remaining ST posts, these are also area specific for other Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 40 remaining Districts of UT Jammu and Kashmir. Had it been so, the rule makers would have clearly mentioned that the remaining ST posts would be reserved for the STs residing in the Districts of Jammu and Kashmir other than the residents of Leh and Kargil. Accordingly, it was wrong on the part of the Commission to confine the STs from other areas of the UT of Jammu and Kashmir as another category for the purpose of selection against the remaining 5 (five) posts out of the total 7 (seven) posts reserved for the STs.
While it is true that the reservation is area specific for the STs hailing from the districts of Leh and Kargil, yet, the converse is not true in as much as there is no other area-specific reservation for non-Leh and Kargil Districts. Thus, while there is reservation for the STs of the Districts of Leh and Kargil, there is no such reservation for the Scheduled Tribes of other Districts of Jammu and Kashmir in the common cadre.
86. The approach of the Commission that out of the total posts advertised for the Scheduled Tribes, one person each from these two districts has been reserved by ensuring that these posts are not taken away by the STs of the UT of Jammu and Kashmir and vice versa, is erroneous. As discussed above, there is no provision for reservation of STs for other Districts of the UT of Jammu and Kashmir as in the case of the STs of Leh and Kargil Districts. Consequently, for the remaining posts reserved for the STs under Rule 4 (b), the ST candidates hailing from Leh and Kargil Districts can be also considered along with ST candidates hailing from other remaining districts of Jammu and Kashmir based on merit, and STs of Leh and Kargil Districts can be also selected provided they are more meritorious than the other STs hailing from other Districts of Jammu and Kashmir, though the converse is not true. The STs from other districts of Jammu and Kashmir cannot be considered for appointment to posts reserved for the STs of Leh and Kargil Districts as discussed above.
Thus, the question of STs of Leh and Kargil Districts eating into the posts of STs of other Districts of Jammu and Kashmir does not arise, as there is no such area-specific reservation for the STs residing in other Districts of UT of Jammu and Kashmir.
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87. The Respondent nos. 2 and 5 have argued that there is a nexus with the population of Leh and Kargil Districts for the reservation made for them under Explanation (D) and as such once reservations have been provided to the STs of Leh and District, the remaining posts are to be provided for the STs from other Districts. However, as discussed above, while it is true that the reservation for the STs of Leh and Kargil may have a nexus with the population, yet, the said aspect does not apply to the remaining posts in the ST Category as no reservation has been provided exclusively for the STs of the remaining Districts of Jammu and Kashmir.
As a result, there is no question of the STs of Leh and Kargil eating into the quota for the STs of Jammu and Kashmir, as no such exclusive quota exists in favor of the STs of Jammu and Kashmir.
Consequently, the question of prejudicially affecting the rights of the STs of Jammu and Kashmir does not arise if more STs from Leh and Kargil Districts by virtue of merit are selected against the general pool of STs which are open to all the STs, hailing from both the UT of Ladakh and UT of Jammu and Kashmir.
It is to be noted that Explanation (D), while mentioning specifically the STs of Leh and Kargil Districts as a sub-category for the purpose of carving out a portion of the total quota for STs for exclusive reservation, does not mention the STs of the remaining of the Districts of Jammu and Kashmir as another category.
What the Respondents Nos. 2 and 5 are seeking to do is to add words and expressions pertaining to STs of Jammu and Kashmir to the Explanation (D) as another category of STs under the Reservation Rules, which is impermissible. The words found in the Explanation (D) have to be given their plain meaning without adding anything to create another category of STs of Jammu and Kashmir as opposed to the STs of Leh and Kargil Districts.
For the reasons discussed above, we are of the view that the submissions of the Respondent No.2-Commission as well the Respondent no.5 are devoid of merit.
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88. As regards the challenge to the constitutionality and vires of the S.O. No. 633 dated 27.12.2023 incorporating Explanation (D) to Rule 4, since the petitioner has not seriously pressed it, we do not consider it necessary to examine this issue extensively and leave it open to be decided in appropriate case.
89. Coming to the specific plea of the Respondent No. 5 that the present petition is premature as no enforceable right has accrued in favor of any one including the petitioner, the same cannot be accepted. Though it is correct that on being merely selected, no one can claim to have any enforceable right for appointment, yet even if it is an inchoate right, it is the foundation for the right to be appointed. Hence, once the select list is approved by the competent authority, that will be the basis for appointment. Further, without challenging the select list, any subsequent process for appointment cannot be challenged if there is defect in the select list.
90. In view of the above conclusions arrived at by us, we would like to briefly refer to the decisions/ judicial pronouncements relied upon by the respondents.
As far as the reliance on Janhit Abhiyan (supra) and Indra Sawhney (supra) as well as Kashmiri Sikh Community (supra) are concerned with reference to the constitutionality and vires of S.O. 633, since we have not dealt with the same and left it open to be decided in an appropriate case, we do not feel it necessary to dwell upon the aforesaid decisions.
91. Learned Advocate General has placed reliance on the decisions rendered in Bir Singh (supra) and Deepak Kumar (supra) to contend that once a candidate belonging to SC or ST category migrates to another State/UT, the benefits to which he is entitled to therein cannot be availed in the new State/ UT upon migration. In this regard we would like to clarify as already held by us, that it is not a question of STs of Leh and Kargil Districts being given a separate quota qua and in contradiction to STs of the UT of Jammu and Kashmir. As discussed above, the STs of Leh and Kargil Districts have been given a separate reservation after carving out from the overall posts reserved for the STs but no separate reservation quota has been Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 43 provided for STs of the UT of Jammu and Kashmir per-se. Moreover, the recruitment process is in respect of a common cadre, which does not make any distinction between the UT of Jammu and Kashmir and UT of Ladakh. Hence, the aforesaid decisions would be of no avail in the present case.
92. The Respondent no.5 by relying upon the decision in Tajvir Singh Sodhi (supra) submitted that once a candidate had submitted herself to the interview process with no demur or protest, the same cannot be challenged subsequently. However, the said submission cannot be applicable in the present case inasmuch as the petitioner is not questioning the recruitment process as such, but merely challenging the erroneous application of the Reservation Rules which can be effected only after the recruitment process in terms of examination or vice-voce are concluded and, as such, the question of estoppel would not be applicable in the present case.
93. Under the circumstances and for the reasons discussed above, we allow this petition by issuing the following directions:
(i) The result of the Jammu and Kashmir Civil Services (Judicial) Examination-2023 notified vide Annexure II to Notification No: PSC/Exam/2024/04 dated 03.04.2024, is quashed as far as the selection of the Respondent No.5 is concerned for appointment against the posts of Civil Judge (Junior Division) in the ST category.
(ii) We also issue a writ of mandamus directing the Respondent No.2-Commission to select and recommend the name of the petitioner for appointment against the said advertised posts of Civil Judge (Junior Division) in the ST category on the strength of her merit in the Jammu and Kashmir Civil Services (Judicial) Examination-2023 in place of the Respondent no.5 or as an ST candidate from Leh District, in terms of Explanation (D) to Rule 4, as the case may be.
(iii) Consequently, upon deletion of the name of the Respondent no. 5 from the select list for the ST candidates in Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 44 Annexure II to the Notification No: PSC/Exam/2024/04 dated 03.04.2024 and inclusion of the name of the petitioner in place of the Respondent no.5, the name of the petitioner shall be forwarded by the Respondent No. 2 to the Respondent Nos. 1, 3 and 4 and thereafter, the needful shall be done by the Respondent Nos. 1, 3 and 4 for revising/modifying all the subsequent orders/notifications issued in this regard as regards the candidatures of the petitioner and the Respondent no. 5 are concerned so that the recruitment process is brought to its logical/legal conclusion and no delay is caused to the recruitment process by selecting/appointing the petitioner under the ST Category.
We are conscious of the fact that in this petition, the subsequent orders passed by the authorities in respect of the Respondent No. 5 have not been brought on record or challenged. However, since the selection of the Respondent No. 5 by the Respondent No. 2 in the impugned select list notified under Annexure II vide Notification No. PSC/Exam/2024/04 dated 03.04.2024, is quashed, all the subsequent actions taken based on the aforesaid select list in respect of the Respondent No. 5 will be rendered null and void, since once the foundation goes, the superstructure built on it cannot be sustained in law and have to be also declared a nullity which we so declare.
The petitioner, accordingly, will be entitled to be selected and appointed in lieu of the Respondent No. 5 subject to fulfillment of other conditions as per law.
(iv) In spite of the directions issued as above, the Respondent no.5 can be considered against any resultant vacancy which may arise on account of non-joining of any ST candidate against the quota for STs, but not against the vacancy available Shameem Hamid Mir WP(C) No.935/2024 2024.06.10 11:40 I attest to the accuracy and CM No.2287/2024 integrity of this document P a g e | 45 in respect posts meant for the STs of Leh and Kargil Districts, in accordance with law.
(v) As regards the plea for quashing S.O.633 dated 27.12.2023 whereby "Explanation (D)" has been added to Rule 4 of the Jammu and Kashmir Reservation Rules, 2005 providing reservation for the STs of Leh and Kargil Districts within the ST category, is concerned, since the petitioner has not pressed, we do not consider it necessary to deal with the same and leave it open to be decided in appropriate case.
94. Records of the case be returned to learned counsel for the PSC.
(MOKSHA KHAJURIA KAZMI) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
SRINAGAR
06.06.2024
Shameem H
Whether the Judgment is reportable Yes.
Shameem Hamid Mir
WP(C) No.935/2024
2024.06.10 11:40
I attest to the accuracy and
CM No.2287/2024
integrity of this document