Jammu & Kashmir High Court
Imran Khan And Others vs . on 16 May, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Page 1 of 6
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 521/2019,
IA No. 01/2019.
Reserved on :01.05.2019
Date of order :16.05.2019
Imran Khan and others
Vs.
State and others
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Appearance:
For the petitioner/appellant(s) : Mr.F.S.Butt, Advocate
For the respondent(s) : Mr.H.A.Siuddiqui, Sr.AAG vice Mr.Amit Gupta,
Dy.AG i/ Whether to be reported in Yes/No Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The petitioners are degree holders Assistant Executive Engineers (Mech) belonging to reserved category of Scheduled Caste and Scheduled Tribe. They are seeking a direction to the respondents to strictly adhere to the provisions of the Jammu and Kashmir Reservation Act, 2004 and the Rules made thereunder for according consideration to the claim of the petitioners for their promotion to the posts of Executive Engineers (Mech.) either on Incharge basis or on substantive basis.
2. The factual matrix as may be relevant for the disposal of the controversy may be noticed. Pursuant to a selection process initiated by the Jammu and Kashmir Public Service Commission, the petitioners 1 and 3 came to be selected under Scheduled Tribe category, whereas the petitioner No.2 was selected under the Scheduled Caste Category. All the three petitioners, were, Page 2 of 6 consequently appointed as Assistant Engineers (Mech). The petitioners got promotion as Incharge Assistant Executive Engineers after they became eligible for such promotion in terms of the Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978 (for short 'the Rules of 1978'). As per the Rules of 1978, the next promotion is to the post of Executive Engineer, which is a post indicated in Category-A of Class-III of the Schedule appended to the Rules and the same is required to be filled up 80% by promotion from Class-IV Category-A (Assistant Executive Engineer and equivalent) from amongst the person possessing Bachelor Degree of Engineering or AMIE Section (A&B) India with at least eight years of total gazetted service out of which at least four years should be as Assistant Executive Engineer. The petitioners claim that in terms of the Recruitment Rules in vogue, they were entitled for promotion to the next higher post of Executive Engineers (Mech.) as they had rendered 14 years in gazetted Cadre out of which more than nine years service had been rendered as Assistant Executive Engineers. The petitioners being members of reserved category of scheduled caste and scheduled tribe were entitled to accelerated promotion in terms of the provisions of the Jammu and Kashmir Reservation Act, 2004 and the rules framed thereunder, but, they were not given the benefit of reservation in promotion by the respondents on the plea that the relevant provisions of the Reservation Act and the Rules, i.e., Section 6 of the Reservation Act 2004 and Rules 9, 10, and 34 of the Reservation Rules, 2005 had been struck down as ultra vires the constitution by the Division Bench of this Court vide its judgment dated 09.10.2015 passed in SWP No. 1290/2014 titled Ashok Kumar and others v. State Page 3 of 6 of J&K and others and other clubbed matters. It may be noted that against the judgment of Division Bench holding that there could be no reservation in promotion in the Jammu and Kashmir State, the aggrieved candidates have approached the Hon'ble Supreme Court and two Special Leave Petitions, i.e., SLP(C) 32820/2015 titled Mohd Hanief Lone and others v. Ashok Kumar Sharma and others and SLP(C) No.34488-34489 of 2015 titled Gagan Jyoti and another v. State of J&K and others are subjudice in the Hon'ble Supreme Court. The Hon'ble Supreme Court vide its order dated 14.12.2015 has directed that status quo be maintained in the meanwhile. However, in another case, which was decided along with a batch of petitions by the Division Bench pertaining to the members of the District Judiciary, the Supreme Court has stayed the operation of the impugned judgment dated 09.10.2015 passed by the Division Bench of this Court. In view of the aforesaid orders passed by the Supreme Court in three different Special Leave Petitions, the Government of Jammu and Kashmir took a decision to keep the slots meant for the reserved category employees vacant/unfilled till 13.07.2016 when the matter was to come up for consideration of the Supreme Court. Accordingly, all the Administrative Secretaries were directed to do the needful. This decision was circulated amongst all the Administrative Secretaries by the GAD vide office memo No.GAD/MTG/RB-4/04/2016 dated 21.06.2016 which was implemented by all the Administrative Secretaries including the Administrative Secretary of Public Works Department. Pursuant to the directions issued aforesaid, the slots which were meant for the reserved categories of the Scheduled Caste Page 4 of 6 and Scheduled Tribe to which the petitioners also belong were also kept unfilled pending decision of the Supreme Court.
3. The grievance projected by the petitioners in this petition is that the reservation in promotion was declared ultra vires the constitution by the Division Bench of this Court on the ground that the Constitution (77th Amendment) Act, 1995 whereby clause IV(A) was introduced in Article 16 enabling the State from making any provision for reservation in the matter of promotion with consequential seniority was not extended to the State of Jammu and Kashmir in terms of Article 370 of the Constitution of India, however, with the promulgation of the Constitution (Application to Jammu and Kashmir) Amendment Order 2019 by the President in the exercise of powers conferred by Clause (i) of the Article 370 of the Constitution, the very basis of the judgment passed by the Division Bench has been knocked down. It is, thus, urged that with the issuance of the Constitution (Application to the Jammu and Kashmir) Amendment Order 2019 extending the Constitution (77th Amendment) Act, 1995, the reservation in promotion as provided under the Jammu and Kashmir Reservation Act, 2004 and the Rules framed thereunder has been legitimized. It is, in this background, the petitioners seek the writs prayed for in this petition.
4. Having heard Mr. Butt, learned counsel for the petitioners and Mr.Siddiqui, learned AAG representing the State and perused the record, I find enough substance in the submissions made by learned counsel for the petitioners. There is no denying the fact that the Division Bench judgment passed in the batch of writ petitions, lead case being SWP No.1290/2014 titled Ashok Kumar and others V. Page 5 of 6 State and others whereby Section (6) of the Reservation Act and Rules 9,10 and 34 of the Reservation Rules were struck down as ultra vires the constitution was on the sole ground that enabling provision, i.e., clause 4(A) of Article 16 of the Constitution of India, which was introduced by way of the Constitution (77th Amendment) Act, 1995 was not extended to the State of Jammu and Kashmir. As held by the Hon'ble Supreme Court in the case of Indira Sawhney and others Vs Union of India and others, AIR 1993 SCC 477, the reservation in promotion was not permissible under the Constitution of India as it stood prior to the introduction of Clause 4(A) to Article 16 of the Constitution of India. It is equally true and as is contended by Mr.Siddiqui, learned Sr. AAG appearing for the State that the matter with regard to the reservation in promotion in the State of Jammu and Kashmir is still subjudice before the Hon'ble Supreme Court wherein, in two SLPs, there is a direction to maintain the status quo and in one SLP judgment impugned has been stayed and therefore, the petitioners should be advised to approach the Hon'ble Supreme Court for appropriate directions in the matter due to the development that has taken place during the pendency of the SLP, i.e., extension of the Constitution (77th Amendment) 1995 to the State of Jammu and Kashmir. While I am in agreement with the submissions of learned counsel for the petitioners that with the promulgation of the Constitution (Application to the Jammu and Kashmir) Amendment Order 2019, the basis of the judgment of Division Bench declaring the reservation in promotion in the State of Jammu and Kashmir as unconstitutional has ceased to exist and w.e.f. 01.03.2019, i.e., date of issuance of Order of 2019, the reservation in promotion if provided by Page 6 of 6 the State of Jammu and Kashmir is now permissible. In that view of the matter, I would have straightway allowed this writ petition and called upon the respondents to follow the provisions of Section 6 of the Reservation Act and the Rules, 9, 10 and 34 of the Reservation Rules in view of the change of law, however, I refrain myself from doing so only for one reason that the matter is still subjudice before the Hon'ble Supreme Court. Anything said or held would amount to pre-empting the orders that may be passed by the Hon'ble Supreme Court in pending SLPs. In these circumstances, I deem it appropriate to leave it to the petitioners to approach the appropriate forum in the matter and seek remedy in the wake of the latest development, i.e., extension of Constitution (77th Amendment) Act, 1995 by issuance of the Constitution (Application to the Jammu and Kashmir) Amendment Order, 2019.
5. For the foregoing reasons, I am not inclined to entertain this petition only for the reason that the Hon'ble Supreme Court is still seized of the controversy and the issuance of any direction in this petition would have the effect of rendering the SLPs pending before the Supreme Court infructuous, which course is not permissible in law.
6. Accordingly, this petition is found to be not maintainable at this stage and is, accordingly, dismissed along with connected IA(s).
Jammu (Sanjeev Kumar)
16.05.2019 Judge
(Madan-PS)
MADAN LAL VERMA
2019.05.21 10:46
I attest to the accuracy and
integrity of this document