Koushal Kumar Khajuria vs State of JandK

Hasnain Massodi, J.—Jammu and Kashmir Public Service Commission (hereinafter referred to as ""Commission"") issued Advertisement

notice, being No. 09/PSC of 2010 dated 26th August 2010, inviting applications from eligible candidates, amongst others, for four posts of

Lecturers, Pediatrics, in Government Medical College, Jammu, with the following breakup:

Dr. Koushal Kumar Khajuria - appellant herein, finding himself eligible for the advertised post in Open Merit Category, responded to

advertisement notice. He, however, was aggrieved that Commission, unmindful of J&K Reservation Act, 2004 (for short ""Act of 2004"")and Rules

made thereunder, omitted to earmark one of the four posts for ALC Category. Appellant hailed from Actual Line of Control and intended to

participate in the selection process under the said Category. He however did not take any chances, decided to apply under Open Merit Category

notwithstanding disregard shown by Commission to the mandate of Act of 2004 and Rules made thereunder. He nonetheless decided to call in

question Advertisement Notice on the ground that it violated mandate of Act of 2004, and accordingly filed writ petition, being SWP No.

2313/2010.

Appellant's case was that respondent Commission had not advertised a single vacancy under ALC Category since 20th June 1994, when J&K

Reservation Act, 1994 came into force. He insisted that as many as 14 posts of Lecturers in Paediatrics were advertised by Commission from time

to time till 26th August 2010 i.e. date of the Advertisement Notice in question and four more posts were being advertised vide aforesaid

Advertisement Notice making total number of posts of Lecturers, Paediatrics, advertised 18 and that one of the four posts advertised was,

therefore, to be set apart for ALC Category. It was pleaded that Lecturer in Paediatrics like other disciplines, was a State Cadre post in terms of

J&K Medical Education (Gazetted) Service Recruitment Rules, 1979, and for the purposes of Act of 2004 and Rules made thereunder, faculty in.

Government Medical College, Srinagar, and Government Medical College, Jammu, formed one cadre and share of different categories was to be

worked out accordingly. Appellant labeled Government Order No. 123-HME of 2006 dated 3rd March 2006, whereby cadre was bifurcated, as

violative of J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. Appellant on the strength of averments made in the petition,

sought quashment of Advertisement Notice No. 09/PSC of 2010 dated 26th August 2010 as also Government Order No. 123-HME of 2006

dated 3rd March 2006 and a writ of Mandamus, commanding respondents to earmark one of the four advertised posts of Lecturers in Paediatrics

for ALC Category and consider his candidature under said Category.

Respondents resisted writ petition on the grounds that in terms of Government Order No. 123-HME of 2006 dated 3rd March 2006, Lecturers

Cadre in various disciplines in two Government Medical Colleges of the State stood bifurcated and share of the Reserved Categories as also Open

Merit Category was to be worked out on the basis of cadre strength in respective Government Medical Colleges. It was pleaded that seniority and

roster of Lecturers in different disciplines was maintained separately for Government Medical College, Srinagar, and Government Medical College,

Jammu and 10th post would go to ALC Category in Government Medical College, Jammu, only after nine posts were filled up from other

categories in terms of Act of 2004 and Rules made thereunder.

Respondents pleaded that as only four posts of Lecturers in Paediatrics were advertised in Government Medical College, Jammu, prior to the

Advertisement Notice in question, the total number of posts of Lecturers, Paediatrics, advertised including four posts advertised vide aforesaid

advertisement notice, came to 08 and a post under ALC Category was only to be advertised after 9th post was advertised and filled up. The claim

made by appellant, therefore, was said to be premature and without merit. Respondents maintained that the Advertisement Notice in question did

not offend Act of 2004 and Rules made thereunder, and therefore, did not call for any interference. Appellant was said to have participated in

Open Merit Category and not made grade while one Dr. Vikas Mahajan, impleaded as party respondent vide order dated 28.02.2011, was found

to be meritorious, deserve to be selected against one of the advertised posts under Open Merit Category.

Writ Court did not find any merit in respondents' plea that Government Order No. 123-HME of 2006 dated 3rd March 2006, bifurcated the

cadre and that government order was to be read as amendment to J&K Medical education (Gazetted) Service Recruitment Rules 1979. It held

that any decision to bifurcate the cadre would necessitate amendment to Recruitment Rules and in absence of such amendment, impugned

government order, could not have the consequences suggested by respondents. Writ court further held that 10th post out of advertised posts of

Lecturer, Paediatrics, with effect from 28th June 1994 i.e. the date when J&K Reservation Act 1994, came into force, was required to be set

apart for ALC Category. It was, however, held that as appellant admittedly was not eligible on the date 10th post of Lecturer, Paediatrics, was

advertised in 2008, he was not to have any grievance regarding failure on part of respondents to advertise 10th post under ALC Category in the

year 2008.

Learned Single Judge upholding appellant's claim, however, did not grant any relief to appellant, pointing out that as selection process was

concluded, the post to be earmarked for ALC Category would require re-advertisement and fresh selection process. The writ Court observing

that respondent No. 3 had been meritorious and entitled to selection, directed respondents to advertise next Lecturer Paediatrics post under ALC

Category.

Appellant through medium of Letters Patent Appeal on hand, throws challenge to Writ Court judgment dated 29th July 2011. Appellant's case

is that writ court, after recording agreement with almost all the grounds urged in Writ petition, ought not to have declined relief sought in writ

petition and to have allowed respondents to go ahead with a course admittedly not permissible under J&K Medical Education (Gazetted) Service

Recruitment Rules 1979 and J&K Reservation Act, 2004 and Rules made thereunder.

We have gone through Writ Court judgment, memo of appeal and writ record. We have heard learned counsel for parties at length.

The case put forth by the appellant before the Writ Court was that the respondent - Commission in violation of the mandate of Jammu and

Kashmir Reservation Rules, 1994 and thereafter Jammu and Kashmir Reservation Act, 2004 and Rules made thereunder, failed to offer 10th

Lecturer Paediatric post to a candidate from Actual Line of Control (ALC) Category. The case set up was that the Actual Line of Control (ALC)

was recognized as one of the reserved categories under Socially Educationally Backward Classes and 3% of the available vacancies for direct

recruitment were required to be filled up by the residents of areas adjoining Line of Control; that in terms of Roster for direct recruitment

prescribed under Rule 3 of J&K Reservation Rules, 2005, 10th vacancy in each service, class, category and grade in service was to be filled up

by eligible candidate from ALC Category in accordance with Rules. It was pleaded that, as many as, 14 vacancies of Lecturers Paediatrics borne

on Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 were advertised from 28th June, 1994 - the date J&K

Reservation Rules, 1994 came into force, till 26th August, 2010 i.e., the elate of impugned Advertisement Notification, without a single post

advertised for ALC Category. The respondent-Commission was said to have repeated its disregard for the mandate of J&K Reservation Act,

2004 and Rules made thereunder by not earmarking one of the four vacancies advertised vide impugned Advertisement Notification for ALC

Category. The appellant anticipating that his claim may be opposed on the ground that as in wake of Government Order No. 123-HME of 2006

dated 03.03.2006, seniority of members of J&K Medical Education (Gazetted) Service was being maintained separately for Medical Government

Colleges, Jammu and Government Medical College, Srinagar, the number of Lecturer Paediatric filled up in two colleges when taken separately

was yet to reach the requisite number i.e., 10 as would require offering one post in Government Medical College, Jammu to a candidate of ALC

Category, assailed the aforesaid Government Order as violative of J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. The

averments made in the petition were controverted by the respondents and as anticipated by the appellant, his claim resisted on the ground that the

Government Order No. 123-HME of 2006 dated 03.03.2006, had the effect of bifurcating the service. Learned Single Judge alive to the nature of

controversy raised following questions 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 03rd 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?

The Writ Court taking an overview of J&K Reservation Rules, 1994 and J&K Reservation Act, 2004 with focus on Section 24 of the Act,

held that the Roster for Lecturer Paediatric is to be maintained from the date, J&K Reservation Rules, 1994 came into force. The Court further

held that Government Order No. 123-HME of 2006 dated 03.03.2006 did not bifurcate the cadre - a course, according to the Writ Court,

otherwise, impermissible J&K Medical Education (Gazetted) Service Recruitment Rules, 1979 unless amended and at the most the Order had the

effect of maintaining seniority at the college level i.e. Government Medical College, Jammu and Government Medical College, Srinagar. The Writ

Court made it clear that, in the event, Government proposed to take a policy decision to bifurcate J&K Medical Education (Gazetted) Service

Recruitment Rules, 1979, it could not press into service, the Government Order but was required to amend J&K Medical Education (Gazetted)

Service Recruitment Rules, 1979.

The appellant's plea that none of 14 Lecturers Paediatrics posts advertised from 1994 till 2008, was set apart for ALC Category, was

accepted by the learned Single Judge, opining that the prescribed procedure was not followed to fill up posts from Open Merit Category. The

Court pointed out that only, in case, the 10th vacancy was advertised for ALC Category, it failed to evoke any response, or a meritorious

candidate was not found and the vacancy was carried forward as required under Rules, but still remained unfilled that the vacancy could have been

filled up from an Open Merit Category candidate.

The Writ Court after accepting all the grounds set out in the petition, to question the Advertisement Notice and the selection process to the

extent of second candidate in Open Merit Category - respondent No. 3, still left the appellant without any relief on the ground that advertisement

of 10th Lecturer Paediatric vacancy in Open Merit Category instead of ALC Category, had gone without challenge, selection process pursuant to

the Advertisement Notification impugned in the petition, was complete and the respondent No. 3 stood selected against the second vacancy in the

Open Merit Category. The next vacancy of Lecturer Paediatric was, however, directed to be advertised for ALC Category, with liberty to the

appellant and other eligible candidates to participate in the selection process.

The finding returned by the Writ Court on all the issues raised in the writ petition has not been questioned by the respondents. It is admitted

that J&K Medical Education (Gazetted) Service is a single cadre and Government Order No. 123-HME of 2006 dated 03.03.2006 does not

bifurcate the cadre. It is also admitted that 10th vacancy was advertised together with three other vacancies, though not for ALC Category

candidate and one Dr. Tariq Ahmad Bukhari selected under RBA Category was given 10th slot in the 100 points Roster maintained in terms of

Jammu and Kashmir Reservation Act, 2004 and Rules made thereunder.

The omission on part of the respondents to advertise 10th Lecturer Paediatric vacancy for ALC Category would not absolve them of their

statutory duty to rectify the mistake and set right the grievance of ALC Category candidates. The respondents observed mandate of J&K

Reservation Act, 2004 and the Rules made thereunder in complete breach by advertising 4 vacancies vide Advertisement Notification No. 14-

PSC of 2009 dated 17.07.2009 again in violation of J&K Reservation Act, 2004 and the Rules made thereunder. The appellant approached the

Writ Court right in time i.e. when the impugned Advertisement Notification was issued and selection process had yet to start, with his grievance

that the respondents oblivious to mandate of J&K Reservation Act, 2004 and Rules made thereunder had omitted to earmark one of the

advertised vacancies for ALC Category. Failure on part of the respondents to advertise 10th Lecturer Paediatrics vacancy for ALC Category, or

omission, on part of an eligible candidate at the relevant time to question such failure, would not entitle the respondents to ignore the mandate of

J&K Reservation Act, 2004 and Rules made thereunder in future, with impunity. Once the Writ Court found merit in the appellant's case on the

strength of averments made, and rejected all the ground urged in opposition to the writ petition, it was not open to the Writ Court to deprive the

appellant of the fruits of litigation and instead allow respondent No. 3 to continue against the position, not meant for and due to an Open Merit

Category candidate. Failure on part of the respondents to advertise 10th Lecturer Paediatrics vacancy in the year 2008 for ALC Category cannot

be taken to have resulted in automatic conversion of ALC Category vacancy into Open Merit Category vacancy. Even in case, such a vacancy

was advertised and not filled up because of no response or non-availability of eligible and meritorious candidate, the vacancy would not go to the

Open Merit Category but was required to be carried forward and re-advertised and reverted to the Open Merit Category, if the advertisement did

not result in selection of an ALC Category candidate. The respondents as held by the Writ Court neither advertised 10th vacancy under ALC

Category nor adhered to mandate of J&K Reservation Rules, 2004.

The only course open to the Writ Court, in face of its clear finding recorded in favour of the appellant, was to set aside the Advertisement

Notification to the extent it advertised second Lecturer Paediatrics vacancy under Open Merit Category, set aside selection of respondent No. 3,

allow the respondents to finalise selection to the extent of three of four advertised vacancies i.e. one vacancy under Open Merit Category, one

under RBA Category and one vacancy under Scheduled Tribe Category and direct them to advertise the fourth vacancy under Actual Line of

Control Category.

The Writ Court instead allowed itself to be influenced by finalization of selection process, undertaken by the respondent - Commission ignoring

the challenge thrown to it by the appellant at its threshold and selection made from a category to which the vacancy was not due under J&K

Reservation Act, 2004 and Rules made thereunder. In the process, a premium was put on non-adherence to the Rules and respondent No. 3

rewarded with an appointment not due to him because of non-availability of vacancy to the category under which he applied.

The reservation as pointed out at the outset, is not in the nature of doles or alms distributed out of pity. It is a measure to set right the

disadvantage and disempowerment suffered by a section of the society not because the members thereof suffer from deficiency in ability or intellect

but because they have been pushed to the bottom of the barrel for historical or geographical reasons. It is a plan to provide level play field to

downtrodden, marginalized and unattended sections of society - a tool to realize the Constitutional mandate of justice to all, in all its manifestations.

The respondents are under statutory obligation to give flesh and blood to the Reservations Act and Rules by ensuring that the rules do not remain

paper rights but are followed without fail. The Courts as an arm of constitutional revolution are equally duty bound to ensure that the statutory

obligations are followed without breach and whatever is due to socially and educationally backward sections of the society is not usurped by those

outside the category.

For the reasons discussed, we find merit in the Letters Patent Appeal on hand. The appeal is, accordingly, allowed. Selection of respondent

No. 3 in Open Merit Category against a vacancy required under Rules to be advertised for ALC Category is set aside. The respondents are

directed to advertise the second vacancy advertised under Advertisement Notification No. 09/PSC of 2010 dated 26.08.2010 for Open Merit

Category, for ALC Category and finalize the selection process as far as possible by or before 31.03.2014. Allowed.