Ram Rakha vs State of J&K and Others

The petitioner, who is a member of the public and is not in service, is pleading the cause of the community to which he belongs .It is submitted

that the respondentstate is not observing the provision of SRO 126. It is submitted that in terms if the aforementioned SRO, if a person belonging

to a particular reserved category is not available then the vacancy is to be carried forward. For this reference is being made to Jammu & Kashmir

Reservation Rules, 1994. In particular reliance is being placed on Rule 13.For facility of reference this Rule is being quoted below:

Vacancies to be carried forward.

(i) Subject to the provision herein after contained in this Part. If a sufficient number of candidates form the Scheduled castes, Scheduled Tribes and

Backward Classes are not available on the occasion of any recruitment for filling all the vacancies reserved for them in direct recruitment, the

vacancies shall not be filled up from amongst the candidates who are not members of Scheduled Castes, Scheduled Tribes and Backward Classes,

(ii) If in the first attempt of recruitment, suitable candidates are not available, second attempt may be made in the same recruitment year and if even

then suitable candidates are not available, the vacancies shall be treated as backlog vacancies provided that the total number of reserved vacancies

shall not exceed 50% of total available vacancies,

(iii) In subsequent year, when recruitment is made for reserved vacancies, the backlog vacancies shall be announced, provided that total number of

reserved vacancies shall not exceed 50% of total available vacancies,

(iv) The reserved vacancies remaining vacant for a period exceeding three years despite recruitment drive shall be treated as dereserved,

If rule 13 as noticed above is taken into consideration then it becomes apparent that in terms of Rule 13(ii), if in the first attempt of recruitment

suitable candidates are not available, second attempt has to be made in the same recruitment year and if even then suitable candidates are not

available, the vacancies are to be treated as backlog vacancies. There is a proviso. This is to the effect that total numbers of reserved vacancies are

not to exceed 50% of the total available vacancies. As to what is happen in the subsequent years is dealt with subrule 13 (iii) & (iv). It has been

specifically laid down in Rule 13 (iv) that the reserved vacancies remaining vacant for subsequent three years despite recruitment drive shall be

treated as dereserved. A reading of the above rule does indicate that in case the candidates belonging to the reserved category is not available then

this vacancy is to be carried forward in the manner indicated in the Rule. This provision helps the argument put across by the learned counsel for

the petitioner. However, there is one impediment in accepting this argument. This is in the shape of Rule 11 as contained in the Jammu & Kashmir

Medical Education (Gazetted Service Recruitment Rules, 1979. Rule 11 of these rules, reads as

Reservation of appointment.

(1) While making appointment by selection or by direct recruitment, reservation shall be made in accordance with the rules and orders issued from

time to time for the members of the Scheduled Castes or any other category or class of permanent residents of the State for whom such

reservation may be made under the orders of the Government.

(2) It a sufficient number of candidates belonging to the classes for whom reservation has been made, are not available for filling up all or any of the

vacancy reserved for them during a recruitment period, reservation for the posts not so filled shall lapse and the posts shall be filled up as if no

reservation there for had been made.

So far as Rule 11(1) is concerned, it lays down that posts are to be reserved in terms of what is said in sub rule (1). However, subrule (2) is

specific. This is to the effect that if sufficient number of can didates belonging to the class for whom reservation is made are not available for filling

up vacancies reserved for them during a recruitment year, reservation of posts not so filled up shall lapse and the posts shall be filled up as if no

reservation has been made. It is accordingly submitted by the learned counsel for the state that in the face of this specific provisions dealing with the

service in question. It is not necessary to make reservation and if a candidate is not available in the reserved category then the posts are not to be

treated as reserved and these can be filled up otherwise.

Learned counsel for the petitioner places reliance on a decision given by me in SWP No.2800/99 'Dr. Bawa Ram Bhagat Vs. State of J&K and

others'. Where the rule 13(ii) was interpreted. What was ob served is being quoted below:

I am of the opinion that a writ of quowarranto can be issued at the instance of any citizen of India. The petitioner nodoubt applied for the post but

he in his capacity of citizen of this country, he is well within his right to seek a writ of QuoWarranto. A post meant for Scheduled Caste category

had been offered to General Category at the very first instance. This is clearly in breach of Rule 13 (ii). Respondent no.4 would thus be holding an

office in pursuance of an appointment order which came to be issued in breach of Rule 13 referred to above. This petition is accordingly allowed.

Appointment of respondent no.4 is set aside.

It be seen that in the aforementioned decision. Rules 1979 noticed above were not brought to my notice, therefore, the issue has been

considered afresh. The cardinal principle of interpretation of statutes is that the special provisions would override the general provision. The special

provisions in this case would be specific rules dealing with the service i.e. Rule of 1979. These Rule indicate as to how posts are to be filled. Thus

it is rule 11 of the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment rules. 1979 which will operate.

In view of the above, the posts are to be filled up in terms of Rule 1979. In this view of the matter, no case is made out for interference. This

petition is found to be with out any merit and is dismissed. OWP no: 321/2000.

This writ petition is also dismissed in the manner indicated above.