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2015 DIGILAW 17 (JK)

Sanjib Kumar v. State

2015-02-06

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Writ petitioners, belong to reserved categories, have projected a grievance to the effect that in the process of regularization of 'Rehbar-e-Zirat', the Reservation Rules are not being followed. Earlier, a petition SWP No. 738/2014, titled, Sanjib Kumar & Ors. v. State & Ors. on similar grounds was filed, which stand disposed of on 18.03.2014 with a direction to the respondents to consider the claim of the petitioners for their regularization in pursuance to Government Order No. 235-Agri of 2011, dated 10.08.2011 having regard to SRO 294 of 2005 and also the J&K Reservation Act. 2. The matter appears to have been considered by the respondent-Authorities. The opinion of the Social Welfare Department suggests that the Reservation Rules cannot be applied to the proposed regularization of Rehbar-e-Zirat, as against specially newly created posts. Such regularization is a deviation from normal recruitment process. 3. To address the issue as to whether Reservation Act and Rules apply to the Policy adopted for regularization of Rehbar-e-Zirat, it shall be advantageous to precisely notice the factual position. 4. The respondent-Agriculture Production Department had conceived a plan to keep pace with revolutionary status of the agriculture sector in other States. For achieving the objective, it was felt that there is an urgent need to strengthen the present extension system in agriculture sector so as to reach to the farmers in every nook and corner of the State. 5. In pursuance to the Cabinet Decision No. 348/14, dated 23.10.2006, Government Order No. 20-Agri of 2007, dated 06.02.2007 has been issued, sanction has been accorded to the engagement of All Agriculture Graduates who were unemployed as on October, 2006 under the Rehbar-e-Zirat Scheme at a monthly stipend of Rs. 1500/-. Scheme was made effective from April, 2007 providing that:-- (a) All the unemployed Agriculture Graduates will register themselves with the Chief Agriculture Officers of their concerned district. (b) Candidates shall execute an agreement with Chief Agriculture Officer stating that they are not performing any government service whether on contract basis or ad hoc. (c) The engagement shall not confer any right to claim a regular appointment. 6. (b) Candidates shall execute an agreement with Chief Agriculture Officer stating that they are not performing any government service whether on contract basis or ad hoc. (c) The engagement shall not confer any right to claim a regular appointment. 6. All the Chief Agriculture Officers were to send a list of such registered candidates to their respective Directors by or before 28th February, 2007 so as to enable the Directors to clarify as to whether the candidates have received their Degrees from Institutions recognized by the ICAR. Thereafter they had to forward compiled list to the Administrative Department by the end of the 1st week of March, 2007. 7. As many as 2642 unemployed Agriculture Graduates were registered and engaged as Rehbar-e-Zirat so were paid Rs. 1500/- at the time of engagement as stipend. 8. Over the period of time, the respondent-Agriculture Production Department visualized that for strengthening the extension system in agriculture sector, the candidates engaged as Rehbar-e-Zirat are required to be regularized, as a sequel thereto, formulated a Policy for regularization of Rehbar-e-Zirat Agriculture Graduates. The mode of regularization prescribed therein is that out of 2642 Rehbar-e-Zirat candidates, regularization will be done in three phases on completion of 7 years of satisfactory and continuous service against the posts, in the pay band of Rs. 9300-34800 with applicable grade pay of Rs. 4200 and such number of posts have been deemed to be created for the said purpose. These posts be designated as Village Agriculture Extension Assistants, who would be appropriately integrated in the normal hierarchy of the department separately. It further provides that in the first phase, 881 registered candidates, who have completed 7 years of continuous and satisfactory service, effective from 1st April, 2014 against the equivalent number of posts to be created for the purpose, would be regularized. In the second phase, again 881 registered candidates, who have also completed 7 years of satisfactory and continuous service, would be regularized, with effect from 1st April, 2015 and similarly, in third phase, 880 candidates would be regularized, who have at least 7 years of satisfactory and continuous service, effective from 1st April, 2016. 9. The said Policy also provides that there shall be Divisional Selection Committee, who shall evaluate the candidates on the basis of qualification for which weightage is restricted to 100 points, that is: (a) B.Sc. Agriculture :75 Points. (b) Post Graduation :15 Points. 9. The said Policy also provides that there shall be Divisional Selection Committee, who shall evaluate the candidates on the basis of qualification for which weightage is restricted to 100 points, that is: (a) B.Sc. Agriculture :75 Points. (b) Post Graduation :15 Points. (c) Super Specialisation :10 Points. 10. The appointment and seniority shall be strictly in order of merit assigned by the Selection Committees in respect of selected/recommended candidates. The posts are Divisional Cadre posts. 11. The comprehensive policy as formulated has been accepted vide Cabinet Decision No. 139/18/2011, dated 04.08.2011. In pursuance whereof Government Order No. 235-Agri of 2011, dated 10.08.2011 has been issued sanctioning the adoption of the policy formulated by the respondent-Agriculture Production Department. 12. In the Policy, it is provided that the Scheme shall cease to exist automatically after the regularization of the last candidate registered as Rehbar-e-Zirat in pursuance of Cabinet Decision No. 248/14, dated 23.10.2006 and covered under the Scheme. 13. The only star question for determination in these writ petitions is as to whether Reservation Act and Rules are applicable. The Social Welfare Department vide U.O. No. SWE/BCC/33/2013, dated 30.09.2013 had opined that the Reservation Rules apply at different levels, viz. appointment, promotion etc. The regularization of services of Rehbar-e-Zirat does not fall within the meaning and scope of Reservation Rules as it is neither appointment nor promotion. 14. Subsequently in compliance to the directions dated 18.03.2014 issued while disposing of SWP No. 738/2014, the matter was reconsidered and again referred to the Social Welfare Department, who vide its U.O. No. SWE/BCC/33/2013, dated 21.05.2014 opined that the department has already conveyed its opinion on 30.09.2013 to the Agriculture Production Department and found no reason to modify as the regularization of Rehbar-e-Zirat is neither an appointment by Direct Recruitment nor an appointment by promotion but a regularization dispensing with the procedure provided for appointments in the Recruitment Rules. 15. Learned counsel for the writ petitioners would contend that it is the Constitutional obligation of the Respondent-Authorities to ensure proper representation to the reserved categories, therefore, they are obliged by law to apply Reservation Act and Rules while making appointment of newly created posts of Village Agriculture Extension Assistants. 16. Learned counsel for the respondents would contend that the Reservation Act, in the peculiar facts and circumstances, has no application to the regularization process as has been sanctioned. 16. Learned counsel for the respondents would contend that the Reservation Act, in the peculiar facts and circumstances, has no application to the regularization process as has been sanctioned. While referring to Section 2(d) of the Jammu and Kashmir Reservation Act, 2004 (for short, the Act), they would contend that when all the Agriculture Graduates who had completed their graduation on 23.10.2006 which was a cut-off date were given a chance of working as Rehbar-e-Zirat on stipendiary basis of the Scheme as was sanctioned by the Cabinet vide its decision No. 348/14, dated 23.10.2006 in pursuance whereof Government Order No. 20-Agri of 2007, dated 06.02.2007 was issued. In the said order, it is specifically mentioned that all the Agriculture Graduates, who were unemployed as on October, 2006, shall get registered and when engaged as Rehbar-e-Zirat shall not be entitled to any right to claim a regular appointment. In short, it is projected that when all the unemployed Agriculture Graduates were registered and engaged, no vacancies of Village Agriculture Extension Assistants existed, as such, unavailable. Section 2(d) of the Act clearly provides that the Act will apply to "available vacancies" which in the instant case were not available at the time all the unemployed Agriculture Graduates were registered as Rehbar-e-Zirat, therefore, the Act has no applicability. 17. The Constitutional mandate is that there shall be representation as against all the available vacancies to the reserved categories proportionately as permissible. "Available vacancies" as defined in Section 2(d) of the Act does not take into its sweep the posts as have been created only for the purpose of adjusting all those unemployed Agriculture Graduates who had completed their graduation up to October, 2006, were registered and engaged as Rehbar-e-Zirat. The words "all the unemployed Agriculture Graduates" would take into its sweep all available such candidates irrespective of caste, creed and colour, i.e., how the writ petitioners, who belong to categories and were eligible on the cut-off date, were also engaged as Rehbar-e-Zirat. 18. Cabinet has taken a decision for regularization of all the registered and engaged Rehbar-e-Zirat by creating 2642 posts of Village Agriculture Extension Assistants for them. All of them are to be appointed in a phased manner as indicated in the Policy and the Policy is to remain in operation till the last candidate is appointed. 18. Cabinet has taken a decision for regularization of all the registered and engaged Rehbar-e-Zirat by creating 2642 posts of Village Agriculture Extension Assistants for them. All of them are to be appointed in a phased manner as indicated in the Policy and the Policy is to remain in operation till the last candidate is appointed. The Policy so formulated is confined for safeguarding and protecting all the candidates who were registered and had completed their graduation up to the year 2006 and have been working as Rehbar-e-Zirat which infact is a special dispensation, no fresh recruitment or appointment is to be made of the candidates who are now available. It infact is confined only to those candidates who have been working as Rehbar-e-Zirat. 19. The Policy as has been adopted by the Government does not provide for any reservation even amongst the said candidates rightly so because there is no scope for any other candidate to enter into except those 2642 unemployed Agriculture Graduates who were engaged, as Rehbar-e-Zirat and have completed 7 years of satisfactory work. 20. Section 2 of the Act begins with the word "unless the context otherwise requires", which would mean that in case in the Policy something different would have been prescribed so as to mean that the said vacancies would be termed to be available vacancies in the year when the candidates were engaged as Rehbar-e-Zirat, which it is not. The position could be different. 21. Unnecessarily, writ petitions have been filed when the Policy formulated, adopted and sanctioned does not in any manner cause any prejudice to the rights of the writ petitioners, who have been engaged as Rehbar-e-Zirat and are to be regularised on their turn in terms of the Policy adopted by the Government. Both the writ petitions are without any merit, as such, dismissed.