Jammu & Kashmir High Court
Imran Ahmed Chowan & Ors. vs State Of J&K; And Ors. on 8 November, 2017
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.976/2016, MP Nos.1/2016 & 1/2017
c/w
SWP No.1218/2016, MP No.1/2016.
Date of order: 08.11.2017
Imran Ahmed Chowan & Ors. V. State & Ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For Petitioner/appellant(s) : Mr. Sunil Sethi, Senior Advocate with
Mr. Waheed Choudhary, Advocate.
Mr. Abhinav Sharma, Advocate.
For respondent (s) : Mr. Vishal Bharti, Dy. AG.
Both the writ petitions were heard together and are being decided by this common order.
1. In SWP No.976/2016 the petitioners seek Writ of Certiorari for quashing communication dated 05.04.2016, sent by respondent No.1 to respondent No.2 wherein actual position with respect to the posts of Junior Engineers (Civil) under Scheduled Tribe Category referred to the J&K Service Selection Board, has been wrongly communicated as 20 instead of 24 being 10% of the quota prescribed under the J&K Reservation Rules, 2005 (herein-after to be referred as "the Rules") notified vide SRO 294 of 2005. The petitioners also seek Writ of Mandamus commanding the respondents to grant complete quota of 10% out of 235 posts of Junior Engineers (Civil) advertised vide Item No.134 of Advertisement Notification dated 30.12.2015 to the candidates belonging to Scheduled Tribe Category, i.e., 24 posts instead of 20 posts of Scheduled Tribe Category.
2. In SWP No.1218/2016, the petitioners seek Writ of Certiorari for quashment of Selection List issued by respondent No.2 for the posts of Junior Engineers (Civil), PW (R&B) Department, State Cadre, pursuant to Advertisement Notice No.02 of 2014 published on 12.05.2016 in a newspaper, to OWP No.976/2016 c/w SWP No.1218/2016 Page 1 of 8 the extent, it pertains to the placement of the petitioners in waiting list under Scheduled Caste Category after keeping unfilled four posts of Junior Engineers (Civil), in PW (R&B) Department. The petitioners also seek Writ of Mandamus by directing the respondent-Board to recommend the names of the petitioners to respondent No.1 for their appointment on the posts of Junior Engineers (Civil) in PW (R&B) Department. The petitioners further seek Writ of Prohibition by restraining the respondents from diverting the four posts of Scheduled Caste Category, (which were kept unfilled) to Scheduled Tribe Category by illegally applying 100 point roster.
3. The facts giving rise to the filing of these writ petitions briefly stated are that respondent Nos.2 & 3 on requisition being made by respondent No.1, advertised 235 posts of Junior Engineers (Civil) vide advertisement dated 30.12.2014. The break-up of these posts as indicated in the advertisement is reproduced as under:
OM RBA SC ST ALC OSC Total
133 47 23 20 07 05 235
It is the case of the petitioners in SWP No.976/2016 that under the Jammu and Kashmir Reservation Act and the Rules framed thereunder (herein-after to be referred as "the Act and the Rules"), specific percentage of posts is defined as under:-
(a) Scheduled Caste 8%
(b) Scheduled Tribe 10%
(c) Socially and Educationally Backward Classes (other
than Scheduled Castes and Scheduled Tribes):
(i) Weak and under privileged Classes (Social Caste) 2%
(ii) Residents of areas adjoining Line of Actual 3% Control (ALC)
(iii) Residents of Backward area 20%
(d) Ex-servicemen 6% Horizontal reservation
(e) Physically challenged persons 3% OWP No.976/2016 c/w SWP No.1218/2016 Page 2 of 8
4. The petitioners in both the writ petitions participated in the aforesaid process of recruitments. However, in the advertisement notice, a glaring discrepancy was observed to the extent that 10% of 235 posts advertised comes to 23.5 (24 posts) but total number of posts under Scheduled Tribe Category advertised were 20 instead of 24 and under SC Category 23 instead of 19. Thereupon a representation was received by Freed Ahmed Bajjad, father of one of the candidates, namely, Aqeel Ahmed Bajjad, who belongs to Scheduled Caste Category in which discrepancies in providing reservation under Scheduled Caste and Scheduled Tribe Categories were mentioned. On receipt of the aforesaid representation, the department thoroughly examined the same under the provisions of aforesaid Rules. During the course of examination and after revisiting the roster, the Deputy Secretary to Government, Public Works (R&B) Department, vide communication dated 05.04.2016 requested the Secretary, Service Selection Board, Jammu, to make the selection of Junior Engineers as per the number shown against Scheduled Caste Category and Scheduled Tribe Category, which is 19 posts and 20 posts respectively instead of 23 and 24 respectively, as previously the total number of posts earmarked for the Scheduled Caste and Scheduled Tribe Categories were inadvertently shown. The case of the petitioners in SWP No.976/2016 that in case the reservation is provided correctly as per the aforesaid Act and Rules, the petitioners would be selected for the posts in question.
5. Whereas the petitioners in SWP No.1218/2016 are the candidates who belong to Scheduled Caste Category and have been kept in the waiting list at serial No.20 to 23 and in case four posts under Scheduled Caste Category are filled up they would be selected.
6. Senior counsel for the petitioners while inviting attention of this Court to the stand taken by the State Government in the Objections filed in SWP No.1218/2016 has submitted that the State Government has rectified the mistake which was committed by it and has taken a decision which is in consonance with OWP No.976/2016 c/w SWP No.1218/2016 Page 3 of 8 the aforesaid Act and Rules framed thereunder. It is further submitted that the aforesaid decision has been taken to avoid any discrepancy. It is further submitted that as per the contention of the petitioners in SWP No.1218/2016, after filling up of 2152 posts of Junior Engineers (Civil) in the Public Works (R&B) Department, 431 posts have been created and the reservation is to be prescribed as per the roster. It is further submitted that even if the roster is running roster, the number of posts reserved for each category shall remain the same. It is further submitted that the decision has been taken by the respondents in consonance with the decision of the Supreme Court in the case of R. K. Sabharwal & others v. State of Punjab & others, AIR 1995 Supreme Court 1371. On the other hand, learned counsel for the petitioners in SWP No.1218/2016 has invited the attention of this Court to Paragraphs 5, 6 and 7 of the judgment and has submitted that the roster is a running roster and decision in the case of R. K. Sabharwal (supra) applies to the case of appointment as well as promotions and the roster is to be provided separately for direct recruitment. As per the provisions of the aforesaid Act and Rules framed thereunder, the concept of "vacancies' has no application. It is further submitted by the learned counsel for the petitioners in SWP No.1218/2016 that any vacancy after filling up of the entire cadre which has caused due to promotion/resignation of the Junior Engineer (Civil) Grade-II cannot be filled up by applying 100% roster as the same has no application in the instant case. It is submitted that after filling up the entire cadre, applying the running roster is not permissible.
7. Mr. Nirmal Kotwal, learned Additional Advocate General has supported the stand taken by the State Government in the Paragraph 5 of the objections filed by respondent No.1 and has submitted that the decision to re-fix the vacancies under Scheduled Caste and Scheduled Tribe Categories has been taken in accordance with Act and Rules and accordingly communication dated 05.04.2016 was sent to the Service Selection Board with the request to make the selection accordingly as per the revised decision with regard to number of posts belonging to Scheduled Caste and Scheduled Tribe Category candidates.
OWP No.976/2016 c/w SWP No.1218/2016 Page 4 of 88. I have considered the submissions of the learned counsel for the parties and have perused the record. Rule 4 of the J&K Reservation Rules, 2005 provided for reservation in direct recruitment, whereas Rule 5 deals with roster for direct recruitment. Relevant extract of Rule 5 (1) reads as under:
"Roster for direct recruitment.- (1) With a view to giving effect to the reservation here in before provided in this part, the appointing authority shall, in respect of each service, class, category and grade in the services and posts under the State, maintain a roster of 100 vacancies in the form given herein-after."
9. The Supreme Court in the case of R. K. Sabharwal (supra) was dealing with challenge to the reservation policy on the ground that the object of reservation is to provide adequate representation to the Scheduled Caste, Scheduled Tribe and Other Backward Classes once the post is earmarked for the Scheduled Caste, Scheduled Tribe and Other Backward Classes on the roster, it is to be filled from amongst the category to which the post belonged in the roster. In this context the Supreme Court made the following observation in Paragraph 7 of the judgment, which reads as under:
"When all the roster-points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong."
In the instance case, the State Government in Paragraph 5 of the objections filed in the SWP No.1218/2016 has taken the following stand, which is reproduced below for the facility of reference:
"As regards Para no.06 and 07 is submitted that the department vide letter no.PW(R&B)NG/145/2010 dated 26.12.2014, 235 vacancies of Junior Engineers OWP No.976/2016 c/w SWP No.1218/2016 Page 5 of 8 (Civil) were referred to SSB for making selection of suitable candidates as per following breakup:-
S. No. Category Number of Posts 1. Open Merit 133 2. RBA 47 3. ST 20 4. SC 23 5. ALC 07 6. Social Caste (OSC) 05 Total 235 Consequent upon the referring of the said vacancies to SSB, one Shri Aqeel Ahmad Bajjad through his father Freed Ahmad Bajjad belong to ST category has submitted a representation, and the copy of same was also endorsed to the Chairperson SSB, stating therein that while referring the above vacancies, the number of vacancies for the ST/SC categories have wrongly been worked out. He has pointed out that as per 10% and 8% reservation for ST and SC categories the number of posts should be referred as under:
ST 23
SC 19
It is further submitted that on receipt of the said representation, in order to avoid any discrepancy the number of posts earmarked for the above categories have been revisited as per J&K Reservation Rules 2005, which provides that available vacancies shall be reserved for direct recruitment in each service, class, category and grade in favour of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as possible, constitute the percentage of available vacancies shown against each:
(a) SC ...8%
(b) ST ...10%
(c) RBA ...20%
(d) Social Caste ...2%
(e) ALC ...3%
Rule 5(2) of J&K Reservation Rules 2005 also provides that the roster shall be maintained as a running account from year to year and will start at the commencement of a year at the point following the point which was utilized at the end of the previous year.OWP No.976/2016 c/w SWP No.1218/2016 Page 6 of 8
It is apt to state herein that during the year 2013 (upto Dec. 2013), 418 posts of JEs (Civil) were referred to SSB. The last roster point utilized was upto 81 and roster 82 started for the 235 vacancies referred to SSB in December, 2014. While revisiting the number of vacancies earmarked for selection, it reveals that the posts slated for the SC/ST categories are wrongly been calculated. The actual number of posts to reserve categories as per Reservation Rules should have been earmarked as under:
From Roster point SC ST RBA OSC ALC
82 to 100 01 02 04 01 -
101 to 200 08 10 20 02 03
201-300 08 10 20 02 03
301 to 316 02 02 03 - 01
Total 19 24 47 05 07
In view of the above position it has been found that the actual vacancies referred to the SSB vide letter no.PW(R&B)NG/145/2010 dated 26.12.2014 earmarked for SC and ST categories should be 19 and 24 respectively instead of 23 and 20 respectively. In order to avoid any discrepancy, the department after thoroughly examination of the case under the provisions of J&K Reservation Rules, 2005, requested the Secretary J&K SSB vide letter dated 05.04.2016 to make the selection of JEs as per the number shown against each in the table, as previously the total number of posts earmarked for these two categories have advertently shown different, as compared to the number of posts reserved against these two categories respectively. In view of the above position, the petitioner have no cause of action and locus to maintain the present writ petition, as such the same is liable to be dismissed."
10. As per the version of the petitioners in SWP No.1218/2016 the total cadre strength of 2152 posts of Junior Engineers (Civil) in the Public Works (R&B) Department has already been filled up. Thereafter 235 vacancies of Junior Engineers (Civil) were referred to the Service Selection Board for making selection. The aforesaid vacancies have been created in addition to the cadre strength of 2152 posts and therefore, the roster of reservation has to be applied in the instant case, which has rightly been applied.
OWP No.976/2016 c/w SWP No.1218/2016 Page 7 of 811. In the result, the communication dated 05.04.2016 sent by the Public Works (R&B) Department to the Secretary, J&K Service Selection Board-respondent No.2 is hereby quashed and the official respondents are directed to fill up the vacancies of Junior Engineers (Civil) and to issue an appointment orders to the petitioner in SWP No.976/2016 as they are the selected candidates.
Accordingly, SWP No.976/2016 is allowed, whereas SWP No.1218/2016 is hereby dismissed.
(Alok Aradhe) Judge Jammu 08.11.2017 Surinder OWP No.976/2016 c/w SWP No.1218/2016 Page 8 of 8