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2017 DIGILAW 23 (JK)

Imtiaz Ahmed Khan v. State of J and K

2017-01-31

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2017
JUDGMENT : Tashi Rabstan, J. Both these Letters Patent Appeals are directed against the judgment and order dated 26.10.2016 passed by the learned Single Judge in SWP No. 603/2016, whereby it has been held that the candidates belonging to reserved categories, who had secured more marks than the Open Merit category candidates, ought to have been shifted to the Open Merit Category and consequent thereto candidates from the waiting list or beyond in their respective categories would consequently be pushed up in their respective categories. 2. Since common question of law and facts are involved in both the petitions, therefore, both are being disposed of by this common order. 3. Admittedly, Notification No. 02 of 2013 dated 16.02.2013 pertained to 18 backlog reserved category vacancies of Physical Education Teacher in District Poonch only meant for category candidates against which certainly no candidate from Open Merit Category could have applied. However, in Notification No. 09 of 2013 dated 21.06.2013, the break-up of advertised vacancies of Physical Education Teacher in District Poonch was Open Merit - 35; RBA 05; SC 04; ST 05; ALC 01 and OSC 01 (total 51 vacancies). 4. After hearing learned counsel appearing for the parties and going through the file, we are of the considered view that the Writ Court has rightly held that in view of the provisions of Section 4 of the Jammu & Kashmir Reservation Act, 2004, the candidates belonging to reserved categories, who had secured more marks than the Open Merit category candidates, ought to have been shifted to the Open Merit Category and consequent thereto candidates from the waiting list or beyond in their respective categories would be pushed up in their respective categories. 5. Admittedly, common screening test as well as common interview was conducted by the Service Selection Board in respect of both the notifications. 5. Admittedly, common screening test as well as common interview was conducted by the Service Selection Board in respect of both the notifications. Since writ respondents 5 & 6 had applied under RBA Category in both the notifications and have admittedly secured much higher marks than the last selected candidates in the Open Merit category in second Notification dated 21.06.2013, the Writ Court has rightly directed for re-framing/redrawing the select lists thereby pushing up writ respondents 5 & 6 to the Open Merit Category, only if they opt for appointment pursuant to second Notification No. 09 of 2013 dated 21.06.2013, and in such a situation the resultant vacancies were directed to be filled up either from the waiting list of RBA Category or in accordance with merit beyond that Category. 6. Since writ respondents 9, 10, 11 & 12 had admittedly applied only in respect to first Notification No. 02 of 2013 dated 16.02.2013 under ST Category, they cannot be directed to be pushed up to the Open Merit Category in respect to second Notification No. 09 of 2013 dated 21.06.2013, even if they have secured more marks than the last selected candidates in the Open Merit Category in respect of second Notification dated 21.06.2013, for the simple reason that they never applied pursuant to second notification nor the provisions of J&K Reservation Act say so. 7. In view of what has been held by us in the preceding paragraphs, both the appeals are, accordingly, disposed of. Connected miscellaneous petitions, if any, accordingly stand disposed of.