Ashwani Kumar vs State and others

B.A. Khan, J.—Petitioners seek consideration for appointment to the post of Foresters in Jammu division in the reserved category of

Resident of Backward Areas"" (ROBA) and all that falls to be considered is: whether SRO126 of 1994 dated 28.6.1994 (J&K Reservation

Rules, 1994) can be given retrospective operation to bring within its fold all those posts and vacancies which have been advertised prior to its

promulgation ?

Petitioner responded to advertisement notice No. 4 of 1992 issued by respondent No. 2 inviting, amongst others, applications for the post of

Forester in Jammu Division. They come from village Goason in Akhnoor tehsil which stands admittedly declared as a backward area. After they

had submitted their applications, SRO126 of 1994 dated 28.6.1994 was brought into force providing reservations for appointment by direct

recruitment in each service, class, category and grade in favour of permanent residents of the State belonging to any of the categories mentioned in

rule 10 of the Rules. One of the categories mentioned therein is ""Residents of Backward Areas"" for which reservation to the extent of 20 per cent

of the available vacancies has been provided.

Prompted by this, the petitioners moved respondent No. 2 and sought consideration under the ROBA category. After they failed to elicit

favourable response from the Board functionaries they filed this petition seeking a direction to respondent No. 2 to finalise the select list for

appointment to the posts of Forester after granting them consideration under the ROBA category and for restraining the Board from finalising any

select list without acting upon the Reservation Rules of 1994. It appears that in the objections filed by the respondents to this petition it was

disclosed that SRO126 of 1994 had been subsequently amended by SRO255 of 1994 dated 28.11.1994 clarifying that the Reservation Rules of

1994 would not apply to such vacancies or the posts in respect of which the advertisement notice had been issued or selection process initiated by

the selection authority before coming into force of these rules. Upon this, petitioner sought amendment of the writ petition to challenge SRO255 of

1994 which was allowed. In the amended writ petition they now seek quashment of this SRO besides the reliefs sought by them in the original

petition.

Petitioners' case is that the Reservation Rules of 1994 are applicable to all available vacancies for which selection process was not finalised at

the time of coming into force of these rules. They rely on the expression ""available vacancies' occurring in rule 10 of the Rules for this purpose. It is

alternatively contended by them that SRO255 of 1994 dated 28.11.1994 which excludes the application of Reservation Rules to such vacancies

or posts in respect of which advertisement notice was already issued or selection process initiated before the promulgation of the rules, is

discriminatory in character and it cannot take away the rights vested in them by SRO126 of 1994 and was thus violative of their rights guaranteed

to them under Articles 15(iv) and 16(iv) of the Constitution. In other words, their case is that respondents were obliged to act upon the

Reservation Rules in all pending selections and their refusal to do so negated the constitutional mandate under Articles 15(iv) and 16(iv) of the

Constitution. The stand of the respondents, on the other hand, is short and simple. According to them physical tests for the posts of Forester had

been conducted in 1995 much after SRO225 of 1994 had clarified about the position of application of SRO126 of 1994. It is also submitted that

the SRO126 did not confer any right on the petitioners and the same was applicable to the vacancies and posts selection process for which was to

be initiated after the promulgation of this SRO. It is also urged that SRO 255/94 was validly issued and had amended SRO126 of 1994 only to

clarify the position about its application to the vacancies and posts in various services.

I first propose to deal with the petitioner's first limb of argument regarding the application of SRO126 of 1994 in their case. Their case seems to

be misdirected on the face of it. This is evident from a plain reading of the terms of rule 10 on which they have staked the first part of claim. The

relevant rule reads thus:

Except as otherwise provided in these rules, available vacancies shall be reserved for the 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) Scheduled Caste .. 8%

(b) Scheduled Tribes .. 10%

(c) Socially and educationally backward classes (other than scheduled castes and scheduled tribes:

(i) Weak and underprivileged classes (Social Castes) .. 2%

(ii) Residents of areas adjoining line of actual control ... 3%

(iii) Residents of backward areas .. 20%

The expression ""available vacancies"" occurring in this rule is referable to these vacancies which are available after the promulgation of these rules

and does not cover such vacancies and posts which had been advertised or for which selection process was initiated before these rules came into

force. No other interpretation or intention is gatherable from the terms of rule 10 and any contrary interpretation would lend retrospective effect to

these Rules which is neither intended nor provided. Thus, it cannot be held that Reservation Rules brought in force on 26.6.1994, would cover all

those vacancies/posts in different services for which selection process had been already initiated prior to such rules. Therefore, no right would flow

from these rules to such candidates who had offered to undergo selection in the open merit category. Nor could such a candidate be allowed to

cash on these rules midway.

The challenge to SRO255 of 1994 dated 28.11.1994 is equally untenable unbendable. This SRO neither creates any class nor does it meet out

any hostile discrimination to any one. All that it does is to clarify the position about the application of Reservation Rules and nothing more.

Therefore, there is no question of this SRO running in any conflict with SRO 126 of 1994. Viewed thus, petitioners have no case on both the

counts and their writ petition is devoid of any merits and is dismissed as such.