Jammu & Kashmir High Court
) Pinki Devi & Ors vs State Of J&K & Ors on 18 December, 2012
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 1471 OF 2010 AND SWP No. 27 OF 2012 1) Pinki Devi & ors 2) Anju Khajuria & ors Petitioners State of J&K & ors Respondent !Mr. K. S. Johal, Sr. Advocate with Mr. Amit Gupta, Advocate ^Mr. H.A. Siddiqui, AAG for R-1 and 5, Mr. Gagan Basotra, Sr. AAG for R-2, Mr. Ravinder Sharma, AAG for R-3, Mr. S.K. Shukla, Advocate for R-4, Mr. J.P. Gandhi, Advocate for R-6, Mr. G. S.Thakur, Advocate for R-7,8, 10 to 12. Mr. Kishore Kumar, Advocate for R-9 and Mr. P.N.Sadotra, Advocate for R-13 to 19 Mr. JUSTICE J. P. SINGH Date: 18.12.2012 :J U D G M E N T :
The petitioners-Pinki Devi, Anju Khajuria, Poonam Khajuria, Suman Lata, Rajni Kumari and Nisha Kumari, came to be settled in areas Notified as backward areas under the Jammu and Kashmir Reservation Act, 2004, after their marriage to persons who were already residing in these areas.
2Their request for issuance of Certificates of being the members of Socially and Educationally Backward class, to which their husbands belonged, was rejected by Tehsildar Akhnoor on the ground that they were not entitled to such Certificates because of having not been found residing in the Notified backward areas for requisite 15 years.
Aggrieved by the refusal, they approached this Court by their Writ Petition OWP No. 1471/2010 seeking following relief:-
Petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir for issuance of an appropriate writ, direction or order commanding the respondent No.2 to issue a certificate of the resident of Backward area in terms of SRO 294 of 2005 dated 21.10.2005; or in the alternative declare the said SRO as unconstitutional;
With Further writ, direction or order of an appropriate nature commanding the respondents to consider the petitioners as resident of the backward area for the purposes of grant of reservation benefit for any recruitment which may be made for any post advertised by the respondent No.3 to which the petitioners may be otherwise eligible; With Such other additional or alternate relief which this Honble Court may deem fit in the facts and circumstances of the case. To demonstrate their entitlement to the Relief abovementioned, it was pleaded that a woman gets domicile of the husband after her marriage and they were, therefore, required to be treated as residents of Backward Areas like their husbands.
It was further projected that similarly situated married women residing in other Backward Areas, 3 having been issued such Certificates, the petitioners cannot be discriminated against.
According to the petitioners, refusal of Certificates was unjustified and even otherwise unwarranted, in that, such refusal would defeat the social purpose, which the Reservation Act contemplated for those residing in Backward Areas. By way of alternate relief, they seek striking down of the Jammu and Kashmir Reservation Rules urging these, particularly Rule 21 of the Rules, as violative of the provisions of Articles 14 and 16 of the Constitution of India. Reason spelt out in support of their challenge to the Rules is that providing of minimum fifteen years period of residence in a Notified Backward Area to become entitled to Certificate, may not achieve the desired social purpose because persons with less than fifteen years of age, even though born in these Areas, would be deprived of such reservation until they completed fifteen years of age.
What persuaded the petitioners to seek Certificates of being the residents of Backward Area and approach the Court, was their intention to participate in selection against available posts of Teachers reserved for those residing in Backward Areas, published vide Jammu and Kashmir Services 4 Selection Boards Advertisement Notice No. 07 of 2010 dated 12.11.2010.
On Motion Hearing, the Services Selection Board was directed to accept the petitioners Application Forms, however, with a rider that neither the petitioners result be declared until further orders by the Court nor would acceptance of Application Forms confer equitable tilt in their favour, if ultimately they were not able to establish their case on merit. During the pendency of the Petition, the petitioners again moved the Court for issuance of further interim directions seeking permission to appear in interview. This Motion was allowed on 08.04.2011 issuing directions to the Board for their interview. The petitioners earlier Writ Petition was still pending when they moved this Court again by a fresh Writ Petition SWP No. 27/2012. This time, however, with a change in the Cause Title and joining another petitioner-Manjeet Kour with them, who too had filed a similar Petition, like the petitioners seeking issuance of Resident of Backward Area Certificate in her favour. She too had been permitted to appear in interview for the advertised posts at her own risk and responsibility.
The Relief sought in the second Writ Petition, SWP No. 27/2012, needs notice. It reads thus:5
Petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir for issue of an appropriate writ, direction or order in the nature of writ of certiorari quashing the selection of private respondents no. 6 to 12 for the posts of teacher in the District Cadre Jammu (School Education Department) advertised pursuant to Advertisement Notice No.07 of 2010 dated 12.11.2010 as published in the newspaper Daily Excelsior dated 15.11.2010. AND For issuance of further appropriate writ, direction or order in the nature of writ of mandamus/prohibition commanding/restraining the official respondents not to make the appointments of the private respondents no. 6 to 12 to the post against which they have provisionally been selected.
AND For issuance of further appropriate writ, direction or order in the nature of writ of mandamus for declaring the clarification/communication issued by the General Administration Department to all the Deputy Commissioners vide No. GAD (Adm) 18/2006-I dated 27.02.2006 whereby the Rule 21-A of the J&K Reservation Rules 2005 has been directed to be interpreted in a manner contrary to the mandate of Rule 21 itself as ultra-vires the Chapter-III of the Constitution of India and contrary to the rules of reservation.
AND For issuance of further appropriate writ, direction or order in the nature of writ of mandamus commanding the respondents to appoint the petitioners against the posts of teachers under RBA category advertised in pursuance to the Advertisement Notice No.07 of 2010 dated 12.11.2010. WITH Such other additional or alternative relief as this Honble Court deems fit and proper in the facts and circumstances of the case. Besides questioning the maintainability of the second Writ Petition, the respondents deny the entitlement of the petitioners to reservation and participation in selection for the reserved posts. Heard learned counsel for the parties and perused the Case Law cited at the Bar.
During consideration of the Petition, learned Senior Counsel, who had appeared in the earlier Writ Petition, i.e., Writ Petition OWP No. 1471/2010, 6 sought permission to withdraw from the case submitting that he may not be able to argue the matter because of the filing of second Writ Petition. Both the Writ Petitions were therefore argued by the learned Senior Counsel representing the petitioners in the second Writ Petition.
The star plea projected by the petitioners in the first Writ Petition that with the marriage of the petitioners, they stand transplanted in the family of their husbands and attain same status as that of their husbands, inter alia, of being the residents of Backward Area, sounds flimsy and otherwise irrational, in that, if the plea were to succeed, it would defeat the very purpose for which reservation was provided, to bring at par, those, who, because of their continuous living in a particular area, declared as Backward Area, were disabled to avail equal opportunity to compete in selection for entry to Professional Institutions and Government Services. This apart, the petitioners, who had the advantageous start of having been brought up in area having those facilities, which the persons residing in Notified Backward Area were deprived of, for one or the other reasons, cannot be provided additional advantage made available to those residing in Notified Backward Areas, because such a course would adversely affect the 7 reservation intended to be provided to those residing in Backward Areas, in that, the chances of entry into Professional Colleges and Government Services of those actually residing in backward areas may be adversely affected by permitting the benefit of reservation to transplanted persons as well. I am supported in taking the above view by what was held in Mrs. Valsamma Paul v. Cochin University and ors. with Kerala Public Service Commission v. Dr. Kanjamma Alex and anr, reported as AIR 1996 SC 1011 where while dealing with a similar issue, their Lordships of Honble Supreme Court of India, held as follows:
In Murlidhar Dayandeo Kesekar v. Vishwanath Panda Barde and R. Chandevarappa v. State of Karnataka this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3, 46 and 39) to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4 and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution. 8 The plea projected by the petitioners is, therefore, found without merit, hence rejected.
The next plea of the petitioners that period of fifteen years continuous residence provided in Rule 21
(iii) of the Jammu and Kashmir Reservation Rules, 2005, needs to be read down being unreasonable because if the restriction of 15 years were to continue, then even those born in the Backward Areas would be deprived of such reservation, too is found untenable being illusory, in that, the reservation provided by the Jammu and Kashmir Reservation Rules for recruitment to Government Services by Direct Recruitment and for reservation in Professional Institutions, cannot be contemplated in respect of persons residing in Notified Backward Area unless they would complete 16 or 18 years of age, for, a candidate with less than fifteen years of age may not be entitled either to employment in Government Service or entry into Professional Institutions.
This apart, the restriction of fifteen years has a definite nexus which the providers of reservation had conceived to achieve by providing reservation only to those who were bonafide residents of Notified Backward Area. There is no merit in the petitioners learned Senior counsels submission that the reservation provided to those residing in backward 9 areas offends Articles 14 & 16 of the Constitution of India. This is so because the provisions of the Reservation Act, which provide for such reservation, have not been questioned by the petitioners. The plea even otherwise, on the face of it, is found untenable in view of the provisions of Article 16(4) of the Constitution of India, which supports providing of reservation in favour of any backward class of citizens which, in State Governments opinion, was not adequately represented in the services under the State. For all what has been said above, there does not appear any merit in the petitioners claim to reservation, in that, their marriage with persons having the status of residents of Backward Area would not clothe them with any additional right to reservation, which their husbands possessed, in that, the right of reservation in such cases, would be purely personal, which may be availed of by only those, who had been actually residing in the backward areas. Now comes the question as to whether the petitioners second Writ Petition was maintainable during the pendency of their earlier Writ Petitions and whether they were entitled to question the selection of respondent Nos. 6 to 19 by their second Writ Petition. The facts and circumstances of the case detailed in earlier part of the judgment, eloquently demonstrate 10 that the petitioners claim of being the residents of Backward Area on the basis whereof they wanted to participate in selection against vacancies reserved for those belonging to Notified Backward Areas, being still subjudice in their earlier Writ Petitions and they had been permitted to participate in selection and that too with a rider that their results would not be declared without permission of the Court, they were estopped from filing fresh Petitions seeking essentially adjudication on same issues as raised in the earlier Writ Petition regarding their entitlement to the status of being the residents of backward areas. Addition of some or the other relief in the second Writ Petition, questioning the selection of those, who were otherwise entitled to seek selection against the vacancies reserved for persons residing in backward area, would not change the complexion of the actual cause of action as such, particularly when the challenge to selection of the respondents could not be examined unless the petitioners would succeed in their claim of being the residents of Backward Area. They had, therefore, no right of any type whatsoever to question the selection of those selected against reserved posts. Learned Senior Counsels plea that the selection of candidates against the reserved category during the pendency of the Writ Petition had given the petitioners 11 a fresh cause of action, is found without merit, in that, right to question the selection of respondents would accrue to them only when they were found entitled to the status of being the residents of backward area. During the determination of their plea as to the entitlement or otherwise of their projected claim, no fresh cause of action can be said to have arisen to them justifying filing of the second Writ Petition. The petitioners approach to the court by their second Writ Petition is, therefore, not only unwarranted and unjustified but abuse of the process of Court, in that, rather than following the course countenanced by law in approaching the Court already in seizin of the issue apprising it of the subsequent events to seek any such further relief to which they would have been entitled to under law, the petitioners resorted to vexatious litigation.
The petitioners learned Senior counsels plea that had the second Writ Petition been not filed, the selection of private respondents would not have been stayed by the court already seized of the matter, eloquently demonstrates the malafide intention with which the petitioners had approached the Court with Second Writ Petition to stall the selection process. The course adopted by the petitioners in filing the second Writ Petition is not bonafide. Such practice 12 cannot be encouraged additionally because it leads to multiplicity of litigation.
The petitioners having been found disentitled to reservation of being the residents of Backward Area, their challenge to the selection of respondent Nos. 6 to 19 cannot, therefore, be entertained. Because of the interim order issued on the petitioners second Writ Petition, the selection of respondent Nos. 6 to 19 could not be finalized. Respondent Nos. 6 to 19 have, therefore, been put to unnecessary inconvenience and disadvantageous position. In the circumstances, the petitioners Writ Petitions are required to be dismissed with costs.
Both these Writ Petitions are accordingly dismissed with costs quantified at Rs.20,000/- (Rupees Twenty Thousand only), which the petitioners would deposit with Registrar Judicial within four weeks for its payment to respondent Nos. 1 to 5 and 6 to 19 in equal shares.
(J. P. Singh) Judge JAMMU 18.12.2012 Pawan Chopra