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2008 DIGILAW 39 (JK)

Bishwa Nath v. State Of J. &K.

2008-02-12

K.S.RADHAKRISHNAN, NISAR AHMAD KAKRU

body2008
K.S. Radhakrishan, CJ. 1. Question that has come up for consideration in this case is whether Rule 20 of the Jammu & Kashmir Reservation Rules, 1994 prescribing relaxed standards for Scheduled Caste and Scheduled Tribe candidates for promotion would automatically apply in a case where criteria of selection has already been laid down in the Jammu & Kashmir Law Officers (Subordinate) Service Recruitment Rules, 1990? 2. Jammu and Kashmir Law Officers (Subordinate) Service Recruitment Rules, 1990 have been framed by the Government in exercise of the powers conferred under section 124 of the Constitution of J&K. Under Rule 5 of the Rules no person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he possesses the qualifications as laid down in Schedule II appended thereto and fulfills other requirement of recruitment as provided in the rules and orders for the time being in force. Appointment to the service has to be made by promotion; direct recruitment and partly by direct recruitment and partly by promotion and by deputation from other departments. Schedule II appended to the Rules prescribes the requisite qualifications for appointment to the Service. 3. We are concerned with promotion to the post of Senior Scale Stenographer. The method of recruitment for the above post, as laid down in Schedule II, is by promotion from Class II category (b) having not less than 8 years service in that category and on the basis of a test in shorthand and typewriting for which the minimum speed should be 80 words and 40-words per minute respectively. 4. There were four promotional vacancies of Senior Scale Stenographer. The State Government constituted a Departmental Promotion Committee for making selection of eligible candidates for filling up the promotional vacancies. The selection committee initiated process of selection and called all the eligible candidates for participation in shorthand and typewriting test. Petitioner (appellant herein) and private respondents participated in the selection process but petitioner did not qualify in the test, i.e., he should have the minimum 80 : 40 words per minute speed in shorthand and typewriting, which he did not have. Since he did not qualify in that standard, he was found ineligible and was not considered fit for promotion whereas the contesting respondents, who had passed the test, were given due promotion. Since he did not qualify in that standard, he was found ineligible and was not considered fit for promotion whereas the contesting respondents, who had passed the test, were given due promotion. Petitioner, who belongs to Schedule Caste category, aggrieved by non-selection, has approached this Court, seeking a direction to the official respondents to promote him to the post of Senior Scale Stenographer relaxing the standards prescribed in the Recruitment Rules of 1990, contending that the Government is bound to relax the standards in respect of Scheduled Caste and Scheduled Tribe candidates under Rule 20 of the J&K Reservation Rules, 1994. The learned Single Judge has declined the relief and dismissed the writ petition. 5. Mr. S.S. Leher, senior counsel, appearing for the petitioner referred to Article 16(4) of the Constitution of India and Rule 20 of the Reservation Rules, and submitted that selection committee is bound to give a special treatment to the Scheduled Caste and Scheduled Tribe candidates even in case of promotions. Reference was also made to the decisions of the Supreme Court in The Comptroller and Auditor General of India v K. S. Jagannathan, AIR 1987 SC 537; Ram Bhagat Singh v State of Haryana, (1997)11 SCC 417 and Haridass Parsetia v Urmilla Shakya, AIR 2000 SC 278. 6. Mr. Qazi, learned AAG, on the other hand contended that the relaxed standards, as mentioned in Rule 20 of the Reservation Rules, would not apply in case where J&K Law Officers (Subordinate) Service Recruitment Rules itself has prescribed the standards. The learned counsel submitted that promotion to the post of Senior Scale Stenographer is not automatic; it envisages an element of selection. Only those candidates who satisfy the standards set for selection can only be promoted. He further submitted that unless the Recruitment Rules specifically confer power on the selection committee to relax the rules in respect of Scheduled Caste and Scheduled Tribe candidates, the recruiting authority or selection committee has no jurisdiction to promote any candidate who has not satisfied the standards set by the Recruitment Rules. 7. Learned counsel also submitted that Article 16(4) of the Constitution of India would not automatically apply in the State of J&K. The Constitution of India was amended and by 77th Amendment and clause (4A) was inserted. 7. Learned counsel also submitted that Article 16(4) of the Constitution of India would not automatically apply in the State of J&K. The Constitution of India was amended and by 77th Amendment and clause (4A) was inserted. However, the said amended provision of the Constitution would not apply to the State automatically but would apply if mechanism indicated in Article 370 of the Constitution for applying provisions of Constitution of India to the State is followed in its entirety. Learned counsel further submitted that the contesting respondents had qualified the standards prescribed and were rightly selected and, therefore, no interference is called for. 8. Rule 5 of the J&K Law Officers (Subordinate) Service Recruitment Rules, 1990 envisages qualifications and method of recruitment which we have referred to earlier. Rule 9 of the Rules says that in regard to matters not specifically covered by these rules, the members of the service shall be governed by the rules, regulations and orders applicable to the State Civil Service in general. Rule 17 of the Reservation Rules enables the authorities to reserve vacancies for members of Schedule Caste and Scheduled Tribe candidates. Once a post has been reserved, in order to fill up the same by promotion, it is open to the selection authority to relax the standards. Therefore, such a relaxation of the standards can be made only when posts are reserved for Scheduled Cast and Scheduled Tribe candidates. Facts would clearly indicate that the Rules of 1990 do not reserve any post for the reserved categories. When posts have not been reserved for candidates belonging to the reserved categories, in such event the provisions of general category rules would apply and the members of reserved category would be governed by the same standard set by the J&K Law Officers (Subordinate) Service Recruitment Rules, 1990 for general category candidates. 9. We have already indicated that the reservation for promotion is not automatic. Candidates have to pass a test in shorthand and typewriting at the prescribed standards of 80 : 40 words per minute speed per minute respectively. Evidently, the object behind providing this condition of promotion is to select the best amongst the eligible candidates. The post of Stenographer is a responsible post and Stenographers are to be assigned the job of taking and typing of important matters. Evidently, the object behind providing this condition of promotion is to select the best amongst the eligible candidates. The post of Stenographer is a responsible post and Stenographers are to be assigned the job of taking and typing of important matters. A candidate who does not have the required speed would undermine efficiency and functioning of the department. It is in that view the rule making authority, in its wisdom, felt that all the candidates should undergo a test in shorthand and typewriting with same standard. The petitioner and the contesting candidates were put to the test by the selection committee and the petitioner failed in the test. In such circumstances, he was not promoted and in our view the learned Single Judge has rightly declined the relief. 10. In the aforesaid situation, we do not find any reason to interfere with the judgment of the learned Single Judge. 11. The appeal is dismissed.