Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 348 (JK)

Vijay Sharma v. State Of J. &K.

2005-12-05

B.A.KHAN, J.P.SINGH

body2005
1. This Letters patent Appeal calls in question judgment dated 12-4-2005 of the Writ Court dismissing appellants writ petition. 2. Advertisement Notification No. 2 of 1993 dated 21-6-1993 was issued for selection against 70 posts of Naib Tehsildar. Appellant was one of the candidates for the post of Naib Tehsildar, under Ex-servicemen Category. Selection was made for 67 candidates only, because three posts were reserved on the basis of orders issued by the Courts. 3. Government Order No. 68-GR of 1976 dated 4-11-1976, issued pursuant to Cabinet decision No. 534 of 1976, prescribed 5% reservation for Ex-servicemen. 4. Aggrieved by his non-selection, appellant filed SWP No. 165/2000 seeking quashing of selection list dated 17th December, 1999 and for a direction to the State respondents to appoint him to the post of Naib Tehsildar. The appellants case before the writ Court was that 5% reservation as against 70 posts would require reservation of four posts against Ex-servicemen Category. 5. The Selection Board opposed this plea of the appellant and projected that 5% reservation would come to 3.5 posts, which would mean, three posts only and not four posts, because four posts would become available only if the ratio so determined would come to more than 3.5. 6. Another plea raised by the Selection Board was that as the select list was of 67 candidates, so the reservation was to be fixed keeping in view the number of candidates as 67 and not 70, as urged by the appellant. 7. Learned Single Judge of this Court accepted the plea of Selection Board and held it as settled proposition of law that benefit of rounding can be claimed only if the point percentage is more than o5. 8. Learned counsel for the parties have reiterated their respective stands, which they had taken before the writ Court. Shri Manhas has, however, referred to State of U.P and another V. Pawan Kumar Tiwari and others, reported as 2005 AIR Supreme Court Weekly 211, in support of this plea. 9. We have heard learned counsel for the parties and examined the issue. The first question, which falls for consideration, is as to whether ratio for Ex-servicemen Category has to be fixed keeping in view the number of posts as 70 or 67? 10. 9. We have heard learned counsel for the parties and examined the issue. The first question, which falls for consideration, is as to whether ratio for Ex-servicemen Category has to be fixed keeping in view the number of posts as 70 or 67? 10. There does not seem to be any logic in the plea of learned counsel for Selection Board, because a ratio has to be worked out on the basis of available posts and not on the basis of number of selected candidates. If one were to accept the plea of learned counsel for Selection Board, it would lead to absurd results, because in a given situation, the number of posts could be more and selected candidates far less, in which case the provisions of reservation would get defeated, on the face of it. 11. We, therefore, do not have any doubt in our mind that the percentage of reservation has to be worked out on the basis of number of posts advertised, which was 70, and then so determined the number of posts for reservation against Ex-servicemen Category would come to 3.5 posts. 12. In order to deal with the crucial question, which has arisen for consideration in this appeal, it would be apt to refer to the judgment of Honble Supreme Court of India (Supra) Paragraph 7 of the judgment reads thus: "7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for, selection in general category, the respondent was sure to find place in the list of selected meritorious candidates and hence entitled to appointment." 13. In view of the extracted paragraph of the judgment of Honble Supreme Court of India, we are not inclined to accept the proposition of law, which is treated to be settled by learned Single Judge. In view of the extracted paragraph of the judgment of Honble Supreme Court of India, we are not inclined to accept the proposition of law, which is treated to be settled by learned Single Judge. The rule of rounding off based on logic and common sense is, if part is one-half and more, its value shall be increased to one and if part is less than half then its value shall be ignored. Applying this accepted principle of arithmetic, as applied by Honble Supreme Court of India, to the facts of the present case, we find that number of posts against reserved Category of Ex-servicemen was required to be taken as four rather than three, as has been done by learned Single Judge. 14. The judgment passed by learned Single is, thus, unsustainable. We, accordingly, set aside the impugned writ Court judgment dated 12-4-2005. Writ Petition of the Petitioner succeeds and is, accordingly, allowed. 15. Selection Board is directed to forward the name of the writ petitioner/appellant to the Government for his appointment, in case his merit position warrants such appointment, being next candidate in the order of merit. This appeal is, accordingly, allowed.