Dr. Koushal Kumar Khajuria vs State and Others

Mohammad Yaqoob Mir, Judge

Vide notification No. 09/PSC of 2010 dated 26th of August' 2010 applications have been invited from permanent residents of the State of

Jammu and Kashmir for various posts available in various disciplines respectively in Government Medical College, Jammu (G.M.C-J) and

Government Medical College, Srinagar (G.M.C-Sgr) which include four posts of Lecturer Paediatrics in G.M.C Jammu with the following

breakup:

CATEGORY

NUMBER OF POSTS.

OPEN MERIT (O.M)

02

RESIDENT OF BACKWARD AREA

(R.B.A)

01

SCHEDULED TRIBE (S.T)

01

TOTAL

04.

Petitioner belongs to the category Resident of actual Line of Control (for short 'A.L.C'). Since no post was advertised in the category A.L.C,

the petitioner applied as against the open merit category, but at the same time filed the instant writ petition with the following prayer:-

i) Writ, order or direction in the nature of Writ of Certiorari quashing Advertisement Notification No. 09-PSC of 2010 dated 26th of August'

2010 in so far as and to the extent it pertains to the making of selection for 04 posts of Lecturers in Paediatrics Department in Government

Medical College, Jammu;

ii) Writ, order or direction in the nature of Writ of Certiorari quashing the provisions of Government Order No. 123-HME of 2006 dated 3rd of

March' 2006 whereby the seniority of the Members of J&K Medical Education Gazetted Service, has been directed to be maintained separately

in respect of Government Medical College, Srinagar and Government Medical College, Jammu; Or in the alternative:

iii) Writ, order or direction in the nature of Writ of Mandamus declaring that the Government Order No. 123-HME of 2006 dated 3rd of March'

2006 does not have the affect of bifurcating the class, cadre or service constituted under the J&K Medical Education(Gazetted Service)

Recruitment Rules, 1979, which continues to be an integral one without being affected in any manner by the issuance of impugned Government

Order No. 123-HME of 2006 dated 3rd of March' 2006;

iv) Writ, order or direction in the nature of Writ of Mandamus commanding upon the respondents to earmark 01 of the 04 posts notified for

making selection to the posts of Lecturers in Paediatrics Department in Government Medical College, Jammu under A.L.C category and consider

the candidature of the petitioner under the aforesaid category;

v) Any other writ, order or direction which this Hon'ble Court may deed fit and proper in the facts and circumstances of the case, may also be

granted in favour of the petitioner and against the respondents along with cost.

It is pleaded that from 28th of June' 1994 when The Jammu and KashmirReservation Rules, 1994 came into force, the 14 posts of Lecturer in

Pediatric havebeen filled from time to time with the following breakup:

CATEGORY

NUMBER OF POSTS

OPEN MERIT (O.M)

09

PHYSICALLY HANDICAPPED

01

RESIDENT OF BACKWARD AREA

02

SCHEDULE CASTE

02

TOTAL

14

Which means the 10th slot has not been filled from amongst the A.L.C category.Whereas after the commencement of Reservation Rules of 2005,

09 posts of Lecturersin Paediatrics have been advertised for G.M.C, Jammu & Srinagar and filled, now fourposts are advertised. As per the

roster, even if the above position is to be calculatedfrom the year 2005, tenth slot will go to A.L.C category. Therefore, out of the four

postsadvertised one should have been advertised for A.L.C category.

What emerges from the above is that:

(a) In case vacancies/posts of Lecturer in Paediatrics are counted from theyear 1994, then till date 14 posts have been filled with no

representationto A.L.C category, therefore, out of the fresh advertised four posts, oneshould have been advertised for A.L.C category.

(b) If the position of vacancies is to be reckoned w.e.f: year 2005, then again09 posts have already been advertised and filled in G.M.C-Jammu

&Srinagar, so 10th slot will go to A.L.C category, then again out of the fouradvertised posts, one should have been advertised for A.L.C

category.

The respondent no.1 in detailed reply has stated that prior to the year 2006 the vacancies which would arise both in G.M.C, Jammu and

G.M.C, Srinagar were referred to the J&K Public Service Commission for selection at State level and accordingly roster was maintained at State

level. But in the year 2006, the Government has taken a policy decision, where-under bifurcation of seniority, of Lecturers posted in G.M.C,

Jammu and G.M.C, Srinagar was approved and in this connection, Government Order no. 123-HME of 2006 dated 3rd of March' 2006 has

been issued in pursuance whereof the seniority of cadre of Lecturers appear to have been bifurcated College wise and accordingly the posts are

being referred for selection to J&K Public Service Commission with College wise breakup and as such roster is maintained College wise. As such,

the seniority is maintained College wise, cadre is automatically deemed to be bifurcated-changed College wise. Further promotion to the next

higher post of an incumbent appointed Lecturer is again according to the vacancy position, College wise. In the said backdrop, it is stated that

from the year 2006, 08 posts were referred to J&K Public Service Commission for G.M.C, Jammu and 06 for G.M.C, Srinagar and according to

College wise roster as maintained 10th slot will go to category A.L.C in G.M.C, Jammu as well as in Srinagar respectively. Earlier 04 vacancies

have been filled in G.M.C, Jammu and now further four vacancies have been advertised, which means total 08 posts. Now when subsequently two

more posts will become vacant, it is only then the tenth slot will be advertised for A.L.C category. Therefore, the requisition for selection of four

posts with the breakup i.e. O.M=02; R.B.A= 01; S.T= 01 is correct.

In the reply respondent no.2-J&K Public Service Commission, has stated that Commission is a selecting body. Gazetted posts are referred to it

by the concerned departments and it is the administrative department, which maintains the roster of any service, cadre of the concerned

department and in accordance with the requisition, selection is made by the Commission.

Respondent no.3- Dr. Vikas Mahajan, who was not a party initially, but when the select list was notified, his name figured at serial no.2 in O.M

category, which should not have been done in view of the interim direction dated 5th of October' 2010 wherein one post of Lecturer Pediatric out

of the advertised four posts was directed not to be filled up. But however, in view of his selection, he was impleaded as party-respondent.

Subsequently, his selection has been withdrawn. The selection list was issued on 12th of January' 2011 but on 14th of January' 2011, the

Commission has issued a notice where-under selection of respondent no.3 has been withdrawn in view of the direction of this Court. Respondent

no.2 in its reply has specifically pleaded that Public Service Commission was not in know of the direction of the Court, but immediately on noticing

the same, they have acted with promptitude so have withdrawn the selection of respondent no.3.

Respondent no. 3 in his reply has stated that even though the Jammu and Kashmir Medical Education (Gazetted Service) Recruitment Rules,

1979 were not suitably amended/changed after the issuance of the Government Order no. 123-HME of 2006 dated 3rd of March' 2006, but

same impliedly is amended in terms of the said Government Order. In terms of J&K Civil Services (Classification, Control and Appeal) Rules,

1956, the said Government Order is required to be read as part and parcel of Jammu and Kashmir Medical Education (Gazetted Service)

Recruitment Rules, 1979 and same position has been followed till date from the year 2006. Now it is not possible to put the clock back to the year

2006 as the same will create chaos. The seniority/recruitment from the year 2006 till date maintained otherwise will get frustrated. It is also stated

that prior to issuance of the said Government Order of 2006, recruitment to both the Colleges jointly was governed as being the State cadre with

common seniority list. Now in pursuance of the Government Order, seniority and cadre have been separately established and now when in terms

of the roster maintained College wise from the year 2006, eight vacancies have become available in G.M.C, Jammu, four have already been filled

up and four have been advertised and it is only out of the next two vacancies, when available, one has to be notified for A.L.C category.

Following questions emerge for determination:

Whether the roster position will operate as against the vacancies, which have accrued from the year 1996, when the J&K Reservation Rules,

1994 came into force OR will operate from the date the J&K Reservation Rules of 2005 came into force?

Whether the roster was required to be maintained from the year 2006, College wise separately afresh in pursuance to the Government Order

no. 123-HME of 2006 dated 3rd of March' 2006?

Whether the State cadre of Lecturer could be bifurcated College wise.

Whether 10th vacancy has been advertised for the category A.L.C, if no, what is its effect?

Question No.1:

(a) The Jammu and Kashmir Reservation Rules, 1994 came into force w.e.f: 28th of June' 1996. The said Rules were framed while having resort

to the powers conferred by Section 124 and other relevant provisions of the Constitution of Jammu and Kashmir read with Article 15(4), 16(4)

and other relevant provision of the Constitution of India, as applicable to the State, by the Governor. Rule 14 of the said Rules would provide that

for giving effect to the reservation the selection/appointment authority has to maintain roster of 100 vacancies in respect of each, class, category or

grade in the services and posts. Rule 14 (1) (a) provides roster points for direct recruitment. As per the said roster the 10th vacancy in each

service, class, category or grade will go to the A.L.C category.

(b) Subsequent to the said Rules, in exercise of powers conferred by Section 124 of Constitution of Jammu and Kashmir, the Jammu and

Kashmir, Reservation Act, 2004 has been enacted by the State Legislature of the Jammu and Kashmir, which came into force w.e.f: 19th of

March' 2004. In terms of Section 24 of the Act, all the Rules, Notifications and orders corresponding to the provisions of the Act to the extent of

inconsistency were repealed, but with a saving clause i.e., 'anything done or any action or any order issued under the Rules, Notifications or

Orders so repealed are deemed to have been done, taken or issued under the corresponding provision of the Act.' Therefore, in exercise of

powers u/s 23 of the said Act, Section 22 of the Jammu and Kashmir Persons with disability Act, 1998 and all other relevant provisions of the law

in that behalf, Government framed the Rules i.e., The Jammu and Kashmir Reservation Rules, 2005, which came into force w.e.f 21st of October'

2005.

(c) Rule 5 of the said Rules provides for maintaining the roster for direct recruitment of 100 vacancies. Again in the roster 10th slot is for A.L.C

category. Rule 3 of the said Rules provides that all Rules, Notifications from the commencement of these Rules shall stand repealed but with a

proviso to the effect that, 'these Rules shall not apply to the vacancies or the posts in respect of which advertisement notices have been issued or

selection has been initiated by the selection authority.

(d) According to the roster for direct recruitment as envisaged by repealed Rules of 1994 as well as the present Rules of 2005, 10th slot in the

roster is meant for A.L.C category. It is in violation of the aforesaid Rules and roster position, the A.L.C category has not been given due

representation as the 10th vacancy has not been advertised for A.L.C category.

(e) In terms of the Jammu and Kashmir Medical Education (Gazetted Service) Rules, 1979 (hereinafter referred for short as 'R. Rules, 1979') the

service in terms of Rule 2 (e) is defined to mean the Jammu and Kashmir Medical Education (Gazetted Service). Admittedly, the position is that

the post of Lecturer falls within the gazetted service and admittedly is a State cadre post and accordingly prior to the year 2006 all vacancies which

had accrued were referred to the Public Service Commission for selection and the roster was accordingly maintained at State level.

(f) The vacancy position vis-`-vis Lecturer (discipline Paediatrics) for the purpose of operating roster, so as to provide proper representation to the

categories has to be counted w.e.f from the date the Jammu and Kashmir, Reservation Rules, 1994 came into force because operation of the

roster w.e.f year 1996 is saved by the provisions of 2004 Act and 2005 Rules as referred to hereinabove.

Question No.2:

The Government Order No. 123-HME of 2006 dated 3rd of March' 2006 in effect provides only for maintaining the seniority position College

wise, which has taken into its fold the position of bifurcation of the cadre which is not permissible, unless the R. Rules, 1979 by Act of Legislature

are not amended as a necessary corollary maintaining of roster afresh from the year 2006 College wise is untenable.

Question No. 3:

(a) Policy decision of the Government is not open for interference provided it does not offend the law passed by the Legislature, unless such law is

amended. That apart, to maintain the seniority-College wise may be permissible in tune with any policy decision but bifurcation of cadre without

suitably amending the R.Rules of 1979 is not permissible.

(b) The Government is required to have a re-look in the matter as the Government Order itself only provides for maintaining the Seniority, College

wise and it does not provide for bifurcation of the cadre. If the intent of the Government, in terms of the said Government Order, is to bifurcate the

cadre then the amendment of the R. Rules, 1979 shall be a pre-condition, otherwise it shall not be acted upon.

Question No. 4:

Admittedly 14 posts have been filled up. From amongst the 14 posts, no post is shown to have been advertised for the A.L.C category, when in

accordance with the roster, 10th vacancy should have been advertised for the category A.L.C. Rule 11 of the R. Rules, 1979 would provide that

while making the appointment, reservation has to be made in accordance with the Rules. Sub-Rule 2 provides that if candidates from category for

which the reservation has been made, are not available during the recruitment period, the reservation for the posts shall lapse and shall be filled up

as if no reservation therefor had been made. In case when 10th vacancy became available, would have been advertised for the category A.L.C

and no candidate would have appeared or would have been available, then after following due procedure in accordance with the Reservation

Rules, the post could be filled up from amongst the candidates from Open Merit (O.M) category. It is nowhere pleaded that such post was ever

advertised therefore, violation to the Rules.

The petitioner admittedly was not eligible when the earlier 14 posts were advertised from time to time. So no claim could be available to him, in

case such post would have been advertised and no candidate would have turned up or no candidate would have been adjusted, but for the

violation to the Reservation Rules vis-`-vis category A.L.C petitioner has a claim.

Now, very important situation i.e., four posts have been advertised. Selection process has been concluded. Petitioner has participated in the

selection process as against the O.M category. Three candidates on selection stand appointed, whereas respondent no.3, who though selected and

figures at serial no.2 in the O.M category but his selection has been withdrawn in view of the direction issued by this Court and in case said seat is

to be filled from amongst the category A.L.C, then same has to be re-advertised and every candidate belonging to the A.L.C category has a right

to compete. The concern of respondent no.3 to the effect that when the 10th post was available same position was not challenged and now when

as against 18th post, he is selected he cannot be deprived of getting the benefit of the same. Next vacancy as shall become available can be

advertised and filled from amongst the candidates belonging to category A.L.C.

The contention of the learned counsel for respondent nos. 1 & 3 that from the year 2006 only eight vacancies have accrued in Government

Medical College, Jammu, therefore, there is no question of any seat having become available for category A.L.C as it is the 10th seat which will go

to A.L.C category, is not acceptable because roster has started to operate from the date the Reservation Rules have come into force and the posts

being State cadre posts, there is no question of bifurcation and roster has to be maintained at State level and operate as such.

In the backdrop of the aforesaid position of the case, the intent of the Legislature in giving due representation to the reserved categories is to

be advanced. Since, the category A.L.C has not been given representation as was due to it at roster point ten, the post has not been advertised for

A.L.C when it became due to it, but now it be would appropriate to direct the respondents to give effect to the selection of respondent no.3.

However, next vacancy which will arise shall be advertised for the A.L.C Category wherein both the petitioner and other candidates from same

category shall be free to participate and compete.

Petition accordingly, disposed of.