Jammu & Kashmir High Court - Srinagar Bench
Unknown vs Petitioner on 18 April, 2022
Bench: Ali Mohammad Magrey, Mohan Lal
1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No.2412/2019
c/w WP(C) No.3317/2019 & WP(C) No.2273/2021
Reserved on: 30.03.2022
Pronounced on: 18.04.2022
i) Mudasir Yousuf
... Petitioner
Through:
M/s Shuja-Ul-Haq & Tariq M. Shah,
Advocates
v
State of J&K & ors.
...Respondents
Through:
Mr. Azhar-ul-Amin, Advocate, for R1; Ms. Asifa Padroo, AAG, for R2; & Mr. R. A. Jan, Sr. Advocate, with Mr. Taha Khaleel & Advocate, and Ms. Masooda Jan, Advocate, for R3.
ii) Avnish Sardalia Sharma
... Petitioner
Through:
Mr. Koshal Parihar, Advocate.
v
State of J&K & ors.
...Respondents
Through:
Ms. Amit Gupta, AAG, for R1;
Mr. F. A. Natnu, Advocate, for R2;
Mr. Rahil Raja, Advocate, for R3; and
Mr. H A. Sidiqui, Advocate, for R4.
1|Page
2
iii) Khurshid Ahmad Dar
... Petitioner
Through:
Mr. Jehangir Iqbal Ganai, Sr. Advocate,
with Ms. Shah Faizan & Mr. Murfaad
Naseem, Advocates.
v
UT of J&K & ors.
...Respondents
Through:
Ms. Asifa Padroo, AAG, for R1;
Mr. Azhar-ul-Amin, Advocate, for R2;
Mr. R. A. Jan, Sr. Advocate, with
Mr. Taha Khaleel, Advocate, and
Ms. Masooda Jan, Advocate, for R4.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge Hon'ble Mr. Justice Mohan Lal, Judge Judgment Per Magrey, J:
1. These three clubbed writ petitions pertain to the grievance of the petitioners concerning the process of selection undertaken by the Jammu and Kashmir Public Service Commission for filling 42 vacancies of Civil Judge (Junior Level)/Munsiff, especially the list of candidates declared to have qualified for admission to viva voce vide Notification No.PSC/EXAM/44/2019 dated 20.06.2019 pursuant to the Advertisement Notification No.PSC/EXAM/2018/39 dated 30.05.2018.
2. Shortly put, the petitioner in the first of these three petitions, viz. WP(C) No.2412/2019, is aggrieved of his non- inclusion in the select list as an Open Merit candidate belonging to Physically Handicapped Category (OM/PHC). The petitioner in the second writ petition, WP(C) No.3317/2019, is aggrieved of
2|Page 3 the action of the Commission in releasing one post under RBA/PHC category and recommending respondent no.3's name (in that petition) against the said post under RBA category. The petitioner in the third of these three writ petitions, viz. WP(C) No.2273/2021, an OM candidate, seeks a mandamus to select and appoint him against the post in the OM earmarked for OM/ PHC category, claimed by petitioner in the first of these three writ petitions. The general background facts are narrated hereunder:
3. Respondent no.2, the Commission, by Notification No.PSC/EXAM/2018/39 dated 30.05.2018 notified 42 posts of Civil Judge (Junior Division) / Munsiff in the Department of Law, Justice and Parliamentary Affairs (for short, Law Department), giving the category-wise break up of vacancies as OM : 24; RBA :
08; SC : 04; ST : 04; ALC : 01; and OSC : 01. The aforesaid notification, inter alia, prescribed that 3% horizontal reservation for physically challenged candidates shall apply in accordance with relevant rules. In all 2943 candidates were provisionally allowed to appear in the Jammu and Kashmir Civil Services (Judicial) [Preliminary] Examination, 2018 (hereinafter, Preliminary Examination-2018), conducted on 28.10.2018. Record shows that only 2305 candidates appeared in full in the Preliminary Examination-2018. On the basis of the result thereof, Respondent no.2 issued Notification No.PSC/Exam/19/2018 dated 17.11.2018, notifying the Roll Numbers of the candidates declared to have qualified for admission to the Jammu and Kashmir Civil Services (Judicial) [Main] Examination, 2018 (hereinafter, the Main Examination- 2018). As per record, 793 candidates, including 03 physically challenged candidates, qualified for the Mains Examination-
2018. The Main Examination-2018 was conducted with effect from 23.03.2019 to 04.04.2019.
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4. It is pertinent to mention here that recruitment to the post of Civil Judge (Junior Division)/Munsiff is regulated by the Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967 (the Recruitment Rules) framed by the Governor of the State in exercise of the powers conferred by Section 110 of the erstwhile Constitution of Jammu and Kashmir State in consultation with the Commission and the High Court of Jammu and Kashmir. The Recruitment Rules did not specifically quantify reservation in favour of any of the categories, muchless the persons with disabilities; nonetheless, in terms of proviso to Rule 13(2) thereof, it has been provided that 'any candidate, belonging to a class regarding which provision for reservation of appointment or posts has been made, who though not qualified by the standard prescribed by the Commission is best in order of merit according to the results of the examination from that class, shall be recommended for appointment to vacancies reserved for members of such class in that service'. So, essentially, reservation in the Service is permitted by the Recruitment Rules and it becomes axiomatic that the power for accord of such reservation by the High Court stands conferred by the Rules framed under Section 110 of the erstwhile Constitution of Jammu and Kashmir.
5. In February, 1982 the High Court in its Full Court meeting held from 23.02.1982 to 26.02.1982, passed a Resolution that the general rules framed by the Government of Jammu and Kashmir regarding reservation of seats for the Scheduled Castes and the Scheduled Tribes shall also be applicable to the Judicial Service as also to the ministerial services of the Judicial Department, and such reservation was made accordingly in the Service. It was also decided to inform the Government accordingly. Obviously, the aforesaid Resolution has its basis in the proviso to Rule 13(2) of the Recruitment Rules.
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6. Furthermore, in 1998, the erstwhile State Legislature enacted the Jammu and Kashmir Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1998 (hereinafter, the Equal Opportunities Act, 1998) which held the field when the Advertisement Notification No.PSC/EXAM/2018/39 dated 30.05.2018 was issued. Section 21 of the Equal Opportunities Act, 1998, provided for identification of posts which could be reserved for persons with disabilities. It said that the Government shall identify posts in the establishments which can be reserved for persons with disabilities, and Section 22 thereof, providing for reservation of posts, said that the Government shall appoint in every establishment such percentage of vacancies not less than 03% for persons or class of persons with disabilities of which one percent each shall be reserved for persons suffering from: (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy; in the posts identified for each disability; provided that the Government may, having regard to the type of work carried on in any department or establishment, by notification, subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of the Section.
7. Besides, the erstwhile State Legislature also enacted the Jammu and Kashmir Reservation Act, 2004. Rule 4 of the Jammu and Kashmir Reservation Rules framed thereunder provided for reservation in direct recruitment. It also prescribed 3% Horizontal Reservation of available vacancies for direct recruitment in each service, class, category and grade for Physically Challenged Persons. Explanations (B) and (C) under aforesaid Rule 4 provide as under:
"Explanation (B).- For purposes of clause (d) [concerning Ex-servicemen] and (e) [concerning Physically Challenged Persons],
5|Page 6 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 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..."
8. Besides the above, in exercise of the powers conferred by Sub-Section (1) of Section 54 of the Equal Opportunities Act 1998, the Government framed the Jammu and Kashmir Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Rules, 2003. Rule 37 thereof, providing for computation of vacancies, said that the executive instructions for method of computation of vacancies shall be issued under this rule from time to time.
9. The post of Civil Judge (Junior Division)/Munsiff was identified by the Government in the Social Welfare Department in terms of Section 21 of the Equal Opportunities Act 1998 for the first time in 2014 vide Government Order No. 147-SW of 2014 dated 17.06.2014 read with the Annexure thereto, whereby the 'physical requirement' for the post were mentioned as 'sitting, standing, reading & writing, hearing', and 'categories of disabled suitable for the job' were mentioned as 'one arm, both legs, one leg, blind, low vision'. Thus, in terms of
6|Page 7 Government order No.147-SW of 2014 dated 17.06.2014 persons with blindness and low vision were included in the categories of disabled suitable for the post of Civil Judge (Junior Division)/Munsiff. However, the High Court was not consulted in that regard.
10. On the other hand, as mentioned above, in the advertisement notification No.PSC/EXAM/2018/39 dated 30.05.2018, the Commission had provided that 3% horizontal reservation for physically challenged candidates shall apply in accordance with relevant rules, though there was no mention of horizontal reservation for PHC candidates made in the indent of the Law Department (the Intending Department). Consequently, it is borne out from the record, the Commission vide letters dated 11.12.2018 and 15.01.2019 sought clarification from the Law Department regarding such reservation for the post in question. The Law Department, it appears, took up the matter with the High Court. In consequence thereof, the Full Court of the High Court in its meeting held on 05.02.2019 considered the issue of applicability of the provisions of the Equal Opportunities Act, 1998 etc., and resolved and recommended that the provisions of the Equal Opportunities Act, 1998 (wrongly mentioned therein as 1995), the Rules framed thereunder as also the Government orders issued by the Social Welfare Department under Section 21 of the said Act with necessary modifications, from time to time, be extended to the posts of Munsiff after prior consultation with the Commission. The Full Court, however, further resolved that for the post of Munsiff, the categories of disabled suitable for the said job as mentioned in Annexure to the Government order No.147-SW of 2014 dated 17.06.2014 shall not include blindness. The aforesaid decision and resolution passed by the High Court was conveyed by the Law Department to the Commission vide communication dated 05.03.9019. It appears that, thereafter, the Commission vide
7|Page 8 their communication dated 30.07.2019 sought clarification from the Law Department as to the number of posts to be earmarked for the PHC candidates which information, it appears, was never communicated to the Commission. The fact, however, remains that the prescribed %age was 3% and it could not be more than that. It also appears from the correspondence that has exchanged between the Commission and the Social Welfare Department that they were of the opinion that the benefit extended to the blind persons in pursuance of Government order No.147-SW of 2014 dated 17.06.2014 should continue.
11. Meanwhile, certain writ petitions were filed in the High Court and in one of such writ petitions, being WP(C) No.2451/2019 (CM No.4910/2019), filed by one of the physically disabled candidates, namely, Mohd Shahzad, the Court on 03.07.2019 passed an interim order directing that the Commission shall allow the petitioner to participate in the process of viva voce. In consequence of the said Court direction, the Commission approved that all the three PHC candidates who had appeared in the Mains Examination be summoned for viva voce pending clarification from the Law Department as to number of posts to be earmarked for the said category. Accordingly, the Commission passed Order No.46-PSC of 2019 dated 31.07.2019 informing the three candidates, namely, Mohd Shahzad, Roll No.9000453, OM/PHC candidate having 42% Locomotor disability; Mudasir Yousuf, Roll No.9001633, OM/PHC candidate, having 50% Locomotor disability; and Avinash Sardalia Sharma, Roll No.9002214, RBA/PHC, having 40% Visual disability, to appear before the Interview Board on their own risk and responsibility, on the date which was to be notified separately. It is mentioned in the order that the same was subject to clarification from the Law Department and outcome of the writ petition. The three candidates were
8|Page 9 formally invited for personality test / viva voce vide Notice dated 21.08.2019 at 09:00 am on 24.08.2019.
12. It appears that the Commission, thereafter, in its 26th Extra Ordinary Meeting held on 22.08.2019, decided to declare the result of all the candidates who had appeared in the interview and also to notify their aggregate marks while publishing the list of candidates to be summoned for medical examination in accordance with the relevant rules. It was also decided to keep two posts reserved for PHC candidates, one each from OM and RBA category. Accordingly, the Commission issued Notification No.PSC/Exam/64/2019 dated 22.08.2019 notifying the result of 161 candidates who had appeared in the interview, and consequent thereto, 40 candidates as per Annexure-II to the said notification, by order of their aggregate merit in the written Examination and interview, who were declared to have qualified for Medical Examination, were directed to report to the respective Medical Boards for conduct of their medical examination; thereby 23 candidates were selected from OM, 07 from RBA, 04 from SC, 04 from ST, 01 from SLC and 01 from ALC categories. Obviously, the result of the physically handicapped candidates was not declared. Subsequent thereto, pursuant to the Commission's decision taken in its meeting held on 06.09.2019 and in continuation to the above, the Commission issued Notification No.PSC/Exam/65/2019 dated 06.09.2019 releasing the post withheld under RBA PHC category and declared the selection of the RBA category candidate, namely, Karan Bijyal, who was shown to have secured a total of 556 marks and was figuring next in merit in the RBA category. He was directed to report for medical examination before the Medical Board constituted in GMC, Jammu. Furthermore, one of the candidates selected in OM, namely, Nitika Mahajan, did not join. In her place the candidate, namely, Mr. Mudasir Bashir, who figured next in
9|Page 10 order of merit in the waiting list and who had filed writ petition No. 3898/2019, was selected and appointed vide Government Order no.3474-JK(LD) of 2021 dated 20.05.2021. Thus, there remains one post, reserved for OM PHC, vacant.
13. Now, we come to the specific case of the petitioners in each of the three writ petitions.
WP(C) No.2412/2019:
14. The petitioner in WP(C) No.2412/2019, being a person with locomotor disability, had earlier offered his candidature pursuant to advertisement notification dated 24.12.2013, when 12 posts of Civil Judge (Junior Division)/Munsiff with the break up of 06 in OM, 01 in SC; 01 in ST; 03 in RBA and 01 in LAC categories had been notified. He had also been a candidate for the post pursuant to another advertisement notification dated 03.02.2017 when 11 posts with break up of 07 OM; 02 RBA; 01 SC and 01 ST had been advertised. There was no post available for PHC candidates in these two selection processes, nor was any reservation made by the High Court for such category, and the petitioner had failed to make the grade as an OM candidate. Even so, in the petition he has prayed for quashing of the result notification No.PSC/Exam/32/18 dated 19.05.2018 issued in consequence of the selection process conducted by the Commission pursuant to advertisement notice dated 03.02.2017 and the appointment orders of private respondents 4 to 14, and further sought a direction for his appointment against one vacancy of PHC category pursuant to the aforesaid two notifications dated 24.12.2013 and 03.02.2017. Respondents 4 to 14 in the petition have, however, been ordered to be deleted from the array of respondents on the basis of the statement made at the Bar by learned counsel for the petitioner in view of the subsequent developments. Obviously, therefore, the 10 | P a g e 11 aforesaid prayers made by the petitioner concerning the selections and appointments made pursuant to 2013 and 2017 selection processes have become redundant.
15. Insofar as the latest advertisement notification No.PSC/Exam/2018/31 dated 30.05.2018 is concerned, the petitioner again applied for the post as an OM PHC candidate. He appeared in the Preliminary Examination under Roll No.9000453 which was conducted on 28.10.2018 and the petitioner qualified the same. Thereafter, he appeared in the Main Examination result whereof was declared by respondent no.1 vide Notification No.PSC/Exam/44/2019 dated 20.06.2019 whereby 162 candidates in the ratio of 3.8:1 were declared qualified for interview. The petitioner, however, did not find his name amongst the aforesaid 162 candidates. He is stated to have made an application under Right to Information Act with a view, inter alia, to ascertaining the marks obtained by him. The marks seem to have not been disclosed to him. Aggrieved of his non-inclusion in the list of 162 candidates, the petitioner has filed this writ petition, praying for quashing of, inter alia, the notification dated 20.06.2019 as well as the final selection list and appointment orders issued pursuant thereto. He has further sought a direction to interview him and appoint him as Civil Judge (Junior Division)/Munsiff pursuant to the notification dated 30.05.2018 as per his own merit against the post reserved for OM PHC category and to protect his seniority accordingly.
16. The simple case of the petitioner is that since he belonged to the physically handicapped category as an OM candidate, having 3% horizontal reservation, the Commission was obliged to earmark, at least, one post for PHC candidate in OM and, therefore, he ought to have figured in the list of 162 candidates and ought to have been called for interview. The petitioner claims violation of his rights guaranteed under Articles 14 and 16 11 | P a g e 12 of the Constitution as well as violation of the provisions of the Equal Opportunities Act, 1998, and the essence of providing horizontal reservation.
17. The Commission has adopted the objections filed by it in WP(C) No.2273/2019 and so has the High Court, viz respondent no.3, adopted the objections filed by it therein for the purposes of the instant petition. Similarly, respondent no.2 has adopted the objections filed by it in WP(C) No.3317/2019 for purposes of this petition. The objections so adopted by the respondents shall be referred to later in this judgment.
18. It may be mentioned here that the writ petitioner in the second of these three writ petitions, namely, Khurshid Ahmad Dar, has on 14.03.2022 filed CMP no.1138/2022 for impleading him as party respondent in this petition. That CMP has remained undecided. However, since the three matters are clubbed together and the cases have been heard together, and the arguments advanced overlap the three cases, the Court is of the opinion that not impleading the said petitioner as respondent in the petition is not likely to cause any prejudice to him.
WP(C) No.3317/2019:
19. The petitioner in this petition states to be belonging to RBA category and physically disabled person, suffering from 40 % permanent visual disability. He had offered his candidature for the post of Civil Judge (Junior Division)/Munsiff pursuant to advertisement Notification No.PSC/Exam/2018/39 dated 30.05.2018. He is aggrieved of notification no.PSC/Exam/65/2019 dated 06.09.2019 whereby the Commission released the post earlier reserved by it in RBA category for PHC candidates and selected/recommended the RBA candidate, namely, Karan Bijyal, respondent no.3, for appointment against the post. The case of the petitioner is that 12 | P a g e 13 the impugned notification is non-speaking and that, being suffering from visual disability/low vision, and going by the order of chronology amongst the disabled persons prescribed in terms of Section 22 of the Equal Opportunities Act, 1998, he has a prior right to be considered for selection against the post in the RBA PHC category.
20. Reply/objections to the writ petition stand filed on behalf of Respondent no.1, 2 and 3. Mr. H. A. Siddiqui, learned counsel appearing for respondent no.4, i.e., the High Court, adopted the objections filed on behalf of the High Court in WP(C) No.2273/2019 which shall be referred to later at the appropriate place in the judgment.
21. In the reply filed on behalf of Respondent no.1, i.e., the Law Department, it is stated that the Full Court vide its resolution dated 05.02.2019, inter alia, resolved that the categories of disabled suitable for the post as mentioned in Annexure to Government Order No.147-SW dated 17.06.2014 shall not include blindness/visually impaired persons.
22. Respondent no.2, i.e., the Commission, in their reply have stated that on the basis of 3% horizontal reservation for physically disabled candidates, the total number of vacancies being 42, the number of posts allocable to the said category would work out to 1.26, rounding to one post. It is elaborated that the Hon'ble Court vide order dated 03.07.2019 passed in WP(C) No.2451/2019, CMP No.4910/2019, directed the Commission to allow the petitioner therein, at his own risk and responsibility, to participate in the process of viva voce. The result of the petitioner was not to be declared till further orders from the Court. It is submitted that since there were three candidates in the PHC category, the Commission approved that all the three PHC candidates who had appeared in the written 13 | P a g e 14 examination be summoned for viva voce which was conducted on 24.08.2019. It is stated that though there was only one post allocable to PHC candidates, yet, since the PHC candidates in the fray belonged to both OM (02 candidates) and RBA category (01 candidate), therefore, one candidate in each category, i.e. OM and RBA, was displaced from the general selection list and the resultant post was kept withheld/reserved for the PHC candidate in the OM and RBA category. However, after the interview, the merit position of the said candidates became clear, as such, the Commission, in its meeting held on 06.09.2019, approved to release the said post in RBA category as the PHC candidate who secured highest marks belonged to OM. However, the result of the PHC candidate in the OM has been withheld in terms of the Court orders. It is further stated that there is no mention of preference to low vision candidates in Reservation Rules over other PHC sub-categories; therefore, the candidate having the highest merit amongst the PHC candidates is to be selected.
23. Similarly, respondent no.3 in his reply to the writ petition has contested the claim of the petitioner, principally, on the ground that the petitioner had failed to make the grade in the RBA category.
WP(C) No. 2273/2021:
24. The petitioner in this petition had offered his candidature as an OM candidate pursuant to advertisement Notification dated 30.05.2018. He qualified the Preliminary Examination as well as the Main Examination and was, in fact, called for interview. He figured at serial no.25 of the aggregate merit list immediately after Mr. Mudasir Bashir, who was selected and appointed vide Government Order no.3474-JK(LD) of 2021 dated 20.05.2021 by reason of non-joining of Ms. Nitika Mahajan. The 14 | P a g e 15 petitioner in essence is aggrieved of reservation of the one post in OM for PHC by the Commission vide notification No.PSC/Exam/64/2019 dated 22.08.2019. His case is that he being the next OM candidate in order of merit after Mr. Mudasir Bashir, has a right to be considered for selection and appointment against the post. According to him, there is no horizontal reservation provided under the Recruitment Rules for physically handicapped candidates, therefore, the post could not have been kept reserved for such candidates. To buttress his stand and assertion, the petitioner has relied upon the judgment of a Coordinate Bench of this Court in Karan Sharma v State of J&K, SWP No.652/2014, decided on 03.09.2021. The petitioner, however, has not actually challenged the notification No.PSC/Exam/64/2019 dated 22.08.2019, but has only sought mandamus to select and appoint him against the said OM post.
25. Ms Asifa Padroo, learned AAG, appearing for respondent no.1, i.e., the Law Department, has adopted the objections filed on behalf of the Law Department in WP(C) No.3317/2019. The stand of the respondent taken therein has already been narrated in para 21 hereinabove.
26. So far as respondent No.2, i.e., the Commission, is concerned, in their reply it is stated that consequent upon reference by the Law Department vide its communication dated 21.05.2018, 42 posts of Civil Judge/Munsiff were notified vide advertisement notification dated 30.05.2018. The indent did not make any mention about horizontal reservation to be provided to PHC candidates. However, the advertisement notification, being in standard form, contained a reference that horizontal reservation @ 3% for PHC candidates shall be provided in accordance with relevant rules. Since the indent did not provide for such reservation, the matter was taken up with the Indenting Department vide communication dated 11.12.2018 followed by 15 | P a g e 16 letter dated 15.01.2019 seeking their clarification in this regard. The Indenting Department vide communication dated 05.03.2019 forwarded the Full Court resolution of the High Court extending reservation to the PHC category, except blindness. That there was a series of correspondence between the Commission, the Law Department and the Social Welfare Department on the point of reservation for blind persons as blindness has been identified as one of the sub-categories under PHC category by the Social Welfare Department in terms of Section 21 of the Equal Opportunities Act, 1998. The Commission has further referred to the facts and circumstances in which the Commission decided and called the three PHC candidates for viva voce in terms of order No.46-PSC of 2019 dated 31.07.2019, stating that the decision was also aimed at maintaining the ratio of 1:3, as provided in the rules. It is stated that though the reservation was to be allowed to the extent of only one post for PHC category, yet two posts - one in RBA category and one in OM were kept unfilled as one out of three PHC candidates belonged to RBA category and the other two candidates belonged to OM. The viva voce made situation clear and the candidate from OM PHC obtained higher merit; therefore, the Commission in its meeting held on 06.09.2019 approved to fill up the post in RBA category and leave one post unfilled in OM for PHC candidate. Accordingly, the RBA category candidate namely Karan Bijyal was recommended for appointment. It is stated in the reply of the Commission that the Division Bench judgment dated 03.09.2021 in SWP No.652/204, Karan Sharma v State of J&K, holding that reservation was not applicable to the Judicial Service, has been challenged by the petitioner therein in SLP(Civil) No.19590 of 2021 which is pending in the Supreme Court. It is also stated that the petitioner in the instant petition, being an open merit candidate and figuring at position next in order of merit in OM, has filed representation posterior to the judgment in Karan Sharma's 16 | P a g e 17 case. However, the decision on his representation has been deferred in view of pendency of the two clubbed writ petitions, viz WP(C) 2412/2019 and WP(C) No.3317/2019.
27. In the reply/objections filed on behalf of respondent no.3, i.e., the High Court of J&K, it is stated that the High Court has been extending the benefit of reservation to reserved categories in terms of the Full Court decision taken in the meeting held from 23.02.1982 to 26.02.1982 and that the provisions of the Equal Opportunities Act, 1998, for the first time were adopted pursuant to Fill Court decision dated 05.02.2019 to be extended to the post of Munsiff after prior consultation with the Commission, subject to the rules framed thereunder as also the Government orders issued by the Social Welfare Department under Section 21 thereof with necessary modifications from time to time, and that the Full Court further resolved that for the post of Munsiff the category of disabled persons suitable for the said job as mentioned in annexure to Government order No.147-SW of 2014 dated 17.06.2014 shall not include blindness. So far as the DB judgment dated 03.09.2021 passed in SWP No.652/2014 in the case of Karan Sharma v State of J&K is concerned, it is stated that on receipt of the judgment, with a view to addressing the Court observation made in para 23 thereof, the matter, under the orders of the competent authority, was referred to the Rules Committee for consideration. The Rules Committee, on consideration of the matter on 01.01.2022, inter alia, recommended amendment in the Recruitment Rules and insertion of Sub-Rule (a) under Rule 4 thereof, with the caption 'Reservation' and provides that reservation of posts in favour of SCs, STs, OBCs and other reserved categories including persons with disabilities shall be in the manner and to the extent as is provided for the Government services in the Union Territory subject to such alterations or modifications as the High Court may direct from time to time.
17 | P a g e 18 The recommendations of the Rules Committee were considered and accepted/approved by the Full Court on 25.02.2022. Consequent thereto, recommendation has been made to the Government vide letter No.5770/RG/GS dated 09.03.2022 for amendment to the Recruitment Rules so that the mandate of Article 234 of the Constitution of India was fully complied with. It is further stated by respondent no.3 that the judgment dated 03.09.2021 of the Division Bench in SWP No.652/2014 has been challenged before the Supreme Court and orders thereon are awaited.
28. It may be mentioned here that the petitioner in first of these three writ petitions, namely, Mudasir Yousuf, on 15.11.2021 filed CMP no.7544/2021 for arraying him as a respondent in writ petition, WP(C) No.2273/2021. That CMP stands allowed by order dated 16.11.2021, impleading him as respondent no.4 in the petition. He has not filed his response to the petition.
29. Heard learned counsel for the parties and considered the matter. The learned counsel for the petitioners argued their respective cases in light of the facts narrated above.
30. The background facts stand stated in detail hereinabove. It may be reiterated here that the petitioner in first of these petitions, viz. in WP(C) No.2412/2019, seeks his consideration as having been an OM candidate with locomotor disability in OM/PHC category; petitioner in 2nd of these petitions, viz. WP(C) No.3317/2019, claiming to be an RBA category disabled person (suffering from low vision), is aggrieved of release of the RBA post by the Commission, which had been earlier withheld for PHC candidate in the said category; and the petitioner in 3rd of these petitions, viz. WP(C) No.2273, being an OM candidate and having secured aggregate merit position next to the last selected 18 | P a g e 19 OM candidate, in essence is aggrieved of reservation of the one post in OM for PHC by the Commission and seeks consideration for appointment against the said post on the ground that there is no reservation provided for the said category. So, the question of reservation for PHC candidates is the pivot in all the three petitions. We deem it appropriate to first deal with the third of these writ petitions, namely, WP(C) No.2273/2021
31. The writ petition [WP(C) No.2273/2021] is essentially founded on the assertion that in terms of the Recruitment Rules, the Jammu and Kashmir Reservation Act, 2004 and the Equal Opportunities Act, 1998, are not applicable to the recruitment of Civil Judge (Junior Division)/Munsiff in the Jammu and Kashmir. To buttress this assertion, the petitioner relies on the judgment of a coordinate Bench of this Court in SWP 652/2014, Karan Sharma v. State of J&K, decided on 03.09.2021. In the said judgment, a Division Bench of the Court has, inter alia, held that in the absence of any specific provision in the Recruitment Rules made with regard to the reservation or any separate or special rules for reservation made by the Governor in consultation with the Commission and the High Court, no reservation for appointments of persons other than the District Judges to the judicial service of the State can be given effect to. At the very outset we express our consciousness about the fact that, according to the High Court and the Commission, the above judgment has been challenged in an SLP before the Supreme Court, and that the matter is subjudice there. And no order of stay against the judgment has been brought to the notice of the Court. We have minutely gone through the judgment and are of the opinion that important facts relevant to the point decided by the Division Bench in that case had not been brought to the notice of the Division Bench which has resulted in passing of the judgment in question, and the fundamental facts are also distinguishable. Therefore, strictly 19 | P a g e 20 speaking, the judgment may not be a binding precedent for the facts and circumstances of the present case. Let us proceed to seen as to what was the case before the Division Bench in Karan Sharma v State of J&K (supra) and what the Division Bench has, actually, held and laid down therein in that context, and that whether on facts the ruling is applicable herein.
32. Perusal of the judgment in Karan Sharma v. State of J&K (supra) reveals that the Commission issued notification No.PSC/Exam/2013/111 dated 24.12.2013 inviting applications for 12 posts of Civil Judge (Junior Division)/Munsiff with the break up of 06 vacancies in OM, 01 vacancy in SC, 01 vacancy in ST, 03 vacancies in RBA and 01 vacancy in LAC categories. There was no reservation notified for persons with disabilities and also no post was earmarked for them. The petitioner therein, a physically disabled person, suffering from 50% locomotor disability, offered his candidature as an Open Merit candidate. He had sought information under Right to Information Act which revealed that 164 persons had been selected and appointed as Munsiffs since 20.04.2000 after coming into force of the Equal Opportunity Act, 1998 till 14.11.2013, i.e, immediately before the issuance of the aforesaid advertisement notification. However, no person belonging to physically handicapped persons had been selected during all these years. The petition was filed before the Court while the process of selection was underway. His grievance before the Court was that he had a right to be considered as an OM candidate under PHC category. During the pendency of the petition, the selection process was completed and selectees were appointed. However, one post was kept unfilled under interim orders of the Court. The stand of the High Court before the Court was that the Equal Opportunities Act of 1998, which was in force then, was not, ipso facto, applicable to the appointments of Judicial Officers. The Commission, on its part, had stated that neither the 20 | P a g e 21 Recruitment Rules governing the Service, nor in any Government order issued in terms of the Equal Opportunities Act of 1998, the post of Civil Judge had been identified for giving reservation to disabled persons. Noting these facts and arguments based thereon, the Division Bench in paras 12 and 13 of the judgment observed and laid down as under:
"12... The Rules of 1967 do not make any provision for reservation in favour of reserved categories like SC, ST, RBA, ALC or Persons with disabilities etc. Interestingly, the Rules of 1967 do not even contain residuary rule which may provide that, with regard to the matters for which no provision is made in the Rules, the Rules applicable to the Civil Services of the State would be applied. In the absence of any specific provision in the Recruitment Rules made with regard to the reservation, or any separate or special rules for reservation made by the Governor in consultation with the PSC and the High Court, no reservation for appointments of persons other than the District Judges to the judicial service of the State can be given effect to.
13. Neither the PSC, nor the High Court could bring to our notice any provision in the Rules of 1967 or any rule or regulation made by the Governor in consultation with the PSC or the High Court which would legitimize the grant of benefit of reservation envisaged under the Act of 2004 and the rules framed thereunder read with the Act of 1998."
Again, in para 13 of the judgment, the following is held:
"15... As rightly contended on behalf of the High Court that neither the Act of 2004, nor the Act of 1998 per se apply to reservations in appointments to the State Judiciary, other than the District Judges, nor can it be argued that an Act of Legislature or an Act of Parliament can supersede the constitutional provisions i.e. Section 110 of the Constitution of Jammu and Kashmir / Article 234 of Constitution of India. Unless the mandate of Section 110 of Constitution
21 | P a g e 22 of Jammu and Kashmir/Article 234 of Constitution of India is followed and appropriate rules in this regard are made, it is not permissible to make reservations for appointments to judicial service relying upon the general law applicable to civil services of UT."
33. The Division Bench in the aforesaid judgment has also held that the judicial service of the State cannot, by any stretch of reasoning, be brought within the purview of the term 'establishment'. Therefore, the Equal Opportunities Act, 1998, does not apply to the judicial service as it is. Further, in para 23, the Division Bench has held that the Equal Opportunities Act of 1998 having not been adopted by following the procedure laid down in the Constitution and there being no independent or separate rules made by the Governor in this behalf after consultation with PSC and with the High Court of the State, there was no right vested in the petitioner to claim the reservation under the Act of 1998.
34. From a perusal of the aforesaid judgment, it is seen that the Division Bench had heard the arguments in the aforesaid case and reserved judgment therein on 21.08.2021. As mentioned in the factual narrations hereinabove, the High Court has vide the decision passed way back in 1982 pursuant to Full Court meetings held from 23.02.1982 to 26.02.1982, resolved to adopt the general rules framed by the Government of Jammu and Kashmir in regard to reservation of seats for the SC and ST candidates in judicial service and applied such reservation to the Service. The background facts and circumstances in which this resolution was passed and the decision was taken is fully detailed out in the Supreme Court Judgment in Jamaluddin v State of J&K, (2011) 14 SCC 725 (see paras 5, 6 and 7 thereof), though in context of a different point i.e., relaxation in age, involved in that case. The Supreme Court in para 17 of the 22 | P a g e 23 aforesaid judgment held that 'there was no age relaxation in favour of the candidates belonging to Scheduled Castes or the Scheduled Tribes, though there was a quantum of reservation provided for them. The earlier resolution of the Full Court of the High Court passed in February, 1982, will, therefore, have to be read as providing only for the quantum and not for any age relaxation'. It is thus seen that the Supreme Court has not only relied on the aforesaid Full Court resolution, but has held that it provided for the quantum of reservation and that the resolution has to be read as provided for that. The aforesaid resolution passed by the Full Court and the judgment of the Supreme Court in Jamaluddin v State of J&K (supra), obviously, had not been brought to the notice of the Division Bench in Karan Sharma v. State of J&K (supra). At least, there is no mention about the same made in the judgment.
,,
35. Furthermore, the Full Court of the High Court has also passed Resolution on 05.02.2019, i.e., much before the Division Bench had heard the case and reserved judgment in Karan Sharma v. State of J&K (supra) on 21.08.2021, recommending the extension of the provisions of the Jammu and Kashmir persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (should read 1998) and the Rules framed hereunder as also the Government orders issued by the Social Welfare Department under Section 21 of the said Act with necessary modifications from time to time to the post of Munsiff after consultation with the Commission, except, of course, excluding the disability of blindness. This resolution also seems not to have been brought to the notice of the Division Bench.
36. Again, it seems that the proviso to Rule 13(2) of the Recruitment Rules was also not brought to the notice of the Division Bench.
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37. Ignorance on the part of the concerned counsel to bring to the notice of the Court proviso to Rule 13(2) of the Recruitment Rules, the resolutions passed by the Full Court in 1982 and on 05.02.2019 and the Supreme Court judgment in Jamaluddin v State of J&K (supra), has resulted in pronouncement of the judgment by the Division Bench on the issue of application of social and special reservations in Judicial Service which, seemingly, is antithetic to the power vested in and exercised by the Full Court by virtue of the aforesaid resolutions. It may also be observed here that the judgment in State of Bihar v Bal Mukund Sah, (2000) 4 SCC 640, was passed by the Supreme Court in context of the fact that therein the proposal of the State of Bihar made to the Public Service Commission regarding making provision for reservation of posts in the Subordinate Judicial Service for the reserved category of candidates was not accepted by the High Court when it was placed before it. Even so, the Government of Bihar had passed the impugned Ordinances which ultimately were followed by the impugned enactment. In the present case, the High Court by virtue of its two Full Court resolutions, referred to above, has rather decided and resolved to adopt the social and special reservations.
38. Normally, when such is the case that important developments and facts, and judgments of the superior court(s), going to the root of the matter, are not brought to the notice of the Court, the decision of the Court loses its binding force and is rendered per incuriam or even sub silentio, and, thereby, incapable of being a precedent.
39. It is also relevant to state here that the post of Civil Judge/Munsiff had not been identified by the Government in the Social Welfare Department in terms of Section 21 of the 24 | P a g e 25 Equal Opportunities Act, 1998, as a post which could be reserved for persons with disabilities as on the date of issue of the advertisement notification therein viz 24.12.2013. That was done by the Government only pursuant to Government order No.147-SW-2014 dated 17.06.2014, i.e., much after the advertisement notification. So, the judgment in Karan Sharma v. State of J&K (supra) is wholly distinguishable on facts, too, as compared to the facts attendant to the present case.
40. It is seen that even in the present writ petition, the petitioner has shown his extreme obliviousness about the Resolution passed by the Full Court on 05.02.2019, referred to hereinabove, concerning application and adoption of the provisions of the Equal Opportunities Act, 1998, to the post in question. The petition, therefore, is founded wholly on ignorance of facts and law, if not suppression of the relevant fact(s). The resolution passed by the Full Court has, in fact, been followed by the Commission and accepted by the Government. It, therefore, is enforceable in law irrespective of the fact whether the Recruitment Rules were amended or not, moreso in view of the judgment of the Supreme Court in Jamaluddin v State of J&K (supra) as well as the decision of the Constitutional Bench of the Supreme Court in State of Bihar v Bal Mukund Sah, (2000) 4 SCC 640.
41. However, as mentioned hereinabove, the petitioner in Karan Sharma v. State of J&K (supra) has filed an SLP before the Supreme Court against the Division Bench Judgement, which is pending there. Therefore, the Apex Court being seized of the matter, this Court has no option but to wait for the decision of the Supreme Court in that SLP.
42. Now, coming to the writ petition, WP(C) No. 3317/2019, which challenges the release by the Commission of the post in 25 | P a g e 26 RBA category and selection and appointment of respondent no.3 against the said post, being the candidate falling next in merit in the said category, there is no denying the fact that, at best, there could be only 3% horizontal reservation prescribed under the Equal Opportunities Act, 1998, and the Reservation Rules for physically disabled persons. It is also the admitted case that there were only 42 posts notified. As rightly stated by the Commission in their reply, 3% of 42 comes to 1.26 posts which can by no mathematical standards be rounded to more than one post for PHC candidates. It is the specific case of the Commission that though there was only one post allocable to PHC candidates, yet, since 02 PHC candidates belonged to OM and 01 PHC candidate belonged to RBA category, therefore, till it was ascertained on the basis of final inter se merit amongst the PHC candidates whether the PHC post would go to the OM or the RBA category candidate, one candidate in each category, i.e. OM and RBA, was displaced from the general selection list and the resultant two posts were kept withheld for selection of the PHC candidate in the OM and RBA category. Obviously, this was a measure of abundant caution taken by the Commission. However, after the interview, the picture became clear, inasmuch as, according to the Commission, a PHC candidate in the OM was found to have secured the highest marks from amongst the three PHC candidates. Therefore, the Commission had no option but to release the post withheld in RBA category. Consequently, in its meeting held on 06.09.2019, the Commission approved to release the said post in RBA category, and the candidate in the RBA category who had been displaced was selected on the basis of his merit and appointed. Since the petitioner had failed to make the grade both in the RBA category against the vertical reservation as well as PHC category candidate against the horizontal reservation, he cannot have any grievance either against the Commission or against respondent No.3.
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43. It may further be motioned here that there is no provision contained in the Equal Opportunities Act, 1998, providing for the method of computation of the vacancies. Rule 37 of the Rules framed thereunder provides that the executive instructions for method of computation of vacancies shall be issued under this rule from time to time. It is seen that in exercise of the powers under the aforesaid Rule 37, the Government in the Social Welfare Department, way back in 2001, based on Cabinet Decision No.37/2 dated 08.02.2001, issued Government order No.62-SWD of 2001 dated 13.03.2001, according sanction, inter alia, to adoption of guidelines for the effective implementation of reservations in favour of physically handicapped persons as per Annexure-B thereto. Annexure-B to the said order, as quoted in a DB judgment of this Court in Ghulam Nabi Dar v State, 2012 (4) JKJ 249, captioned "calculation of the number of vacancies" is extracted below:
"Annexure-B Calculation of the number of vacancies 3.1 Although the recruitment of physically handicapped persons would be only against posts identified as suitable for them, while computing the vacancies to which the reservation would apply, the total number of vacancies occurring in the said Gazetted and Non-gazetted would be taken into account, i.e., the 3% shall have to be computed on the basis of vacancies occurring in both the identified and non- identified posts in Gazetted and Non- Gazetted.
3.2 All heads of department shall maintain a separate 100 point Register for this purpose, in which each cycle of 100 points shall be divided into three blocks, comprising the following points:
1st Block : Point No.1 to Point No.33 27 | P a g e 28 2nd Block : Point No.34 to Point No.67 3rd Block : Point No.68 to Point No.100 3.3 All the vacancies reported by different appointing authorities will be entered in this Register to each group of posts (Gazetted or Non-Gazetted). The account shall be maintained on year to year basis separately for Gazetted and Non-
Gazetted posts/Services and will be closed annually. For each block of vacancies, there shall be reserved one vacancy for the physically handicapped against posts/services identified as suitable for one or more of the categories of the physically handicapped, i.e., when there are 33 vacancies in a Group, one vacancy is to be reserved for the physically handicapped... Care should also be taken that 3% reservation for physically handicapped is, as far as possible, distributed equally among the three sub-categories i.e., the blind, the deaf and the Orthopaedically handicapped, consistent with the appropriate identification. If the number of vacancies is such as to cover only one block or two, discretion as to which category of the handicapped should be accommodated first shall vest in the head of the department. He will besides this on the basis of the nature of the post, the level of representation of the specified handicapped category in the concerned grade/post and the availability of candidate of a particular handicapped category insofar as that can be ascertained."
Even going by the aforesaid executive instructions, the 3% of the posts has to be computed of the total number of vacancies which, admittedly, were 42 posts. Again, since there were only 42 posts, as per clause 3.2 of the aforesaid executive instructions, it would not constitute more than the 1st block. Therefore, there was only one post allocable to the 1st block from Point No.1 to Point No.33, and the remaining vacancies would constitute less than half of the 2nd block. Obviously, less than half of the 2nd block would not be rounded to be equal to 28 | P a g e 29 the whole of the 2nd block. In that view of the matter also, it becomes axiomatic that there was only one post allocable to the PHC category. The Court does not know the actual result of the three PHC candidates. However, it is disclosed by the Commission that the candidate who amongst the three PHC candidates obtained the highest aggregate marks belongs to OM. Obviously, it turns out that the petitioner, belonging to the RBA category, is not the candidate who has obtained the highest merit. So, he has failed to make the grade. Therefore, he cannot have any grievance. It be also seen that annexure B to the aforesaid Government order No.62-SWD of 2001 dated 13.03.2001, in para 3.3 also provides that if the number of vacancies is such as to cover only one block or two, discretion as to which category of the handicapped - whether the blind, the deaf or the Orthopaedically handicapped - should be accommodated first shall vest in the head of the department; that means no preference amongst the sub-categories is provided.
44. Accordingly, none of the rights of the petitioner have been violated and the petitioner in the instant writ petition has no case. The writ petition filed by him is held to be without any merit, unnecessary and liable to be dismissed.
45. Now, coming to the writ petition, WP(C) No.2412/2019, in view of all what has been narrated, discussed and recorded hereinabove, and the stand taken by the Commission, but for pendency of the SLP against the DB judgment in Karan Sharma v. State of J&K (supra), this petition would succeed to the extent that the Commission would be liable to declare the result against the vacancy reserved for PHC candidates, inasmuch as it is the case of the Commission that one amongst the two OM PHC candidates has secured the highest marks amongst the PHC candidates. This Court would not be interested in knowing who 29 | P a g e 30 amongst the two OM/PHC candidates has actually secured the highest marks. However, given such fact situation, this petition could be allowed to the extent that the Commission would be obliged to declare the result of the PHC candidates and proceed with the finalization of the selection process. But, again, such a direction cannot be made at this stage in view of pendency of the aforesaid SLP before the Supreme Court which, in view of the decision rendered by the Division Bench of this Court on account of the ignorance of the concerned counsel in not bringing to the notice of the DB the material and relevant facts and judgment of the Supreme Court in Jamaluddin v State of J&K (supra), having a bearing on the outcome of the point at issue therein, essentially may involve the point of validity of resolutions passed by the High Court adopting the social and special reservations. This Court has to await the Supreme Court decision in the SLP.
46. In view of all what has been discussed above, the writ petition WP(C) No.3317/2019 is dismissed as being without any merit. Interim direction, if any, passed therein, shall stand vacated.
47. So far as the other two writ petitions, being WP(C) No. 2412/2019 and WP(C) No.2273/2021, are concerned the same will await the decision by the Supreme Court in the SLP(Civil) No.19590 of 2021 filed against the DB judgment dated 03.09.2021 in Karan Sharma v. State of J&K (supra) by the petitioner therein. Since one post of Civil Judge (Junior Division)/Munsiff remains unfilled, the High Court must have an interest in getting it filled immediately. Therefore, the Registrar General, High Court of J&K and Ladakh, being a party in the aforesaid SLP, should make an endeavour to immediately file its response before the Supreme Court bringing the relevant facts to the notice of the Apex Court so that the matter is settled 30 | P a g e 31 there. We would also leave the petitioner(s) herein, if they so desire, free to seek remedy from the Supreme Court, if any, available to them under law.
48. List again as and when the Supreme Court has decided the aforesaid SLP or has made any order enabling this Court to proceed to decide the two writ petitions.
(Mohan Lal) (Ali Mohammad Magrey)
Judge Judge
Srinagar,
18.04.2022
Syed Ayaz Hussain, Secy
Whether approved for Reporting: Yes
SYED AYAZ HUSSAIN
2022.04.19 02:20
I attest to the accuracy and
integrity of this document
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