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2018 DIGILAW 307 (JK)

Gh. Rasool Harray v. State of JK

2018-05-16

M.K.HANJURA

body2018
JUDGMENT : 1. The petition of the petitioner is that being eligible under rules, he was appointed as a teacher vide Government Order dated 06.08.1996 and was subsequently promoted as Master vide Order No. 1167-DSEK of 2011 dated 16.06.2011. It is further stated that since the petitioner belonged to the ALC, category, he was entitled to be promoted to the post of Headmaster under Reservation Rules after completing five years of service out of which he should have worked as a master for three years. It is further contended that in terms of the roster 2% reservation is provided to the candidates belonging to the ALC category. However, vide order dated 14.06.2014, the respondents accorded sanction to the placement of 107 Masters as In-charge Head masters wherein the name of the petitioner did not figure at all nor was any candidate from ALC category promoted as such by the said order. It is also stated that the persons from other categories have been given representation in-excess of their entitlement under the Reservation Rules. The failure of the respondents to reserve two posts under the ALC category compelled the petitioner to file a representation before the Director School Education on 12.07.2014 followed by a subsequent representation but to his dismay these were not considered. Even if a candidate is not eligible for any reason, the vacancies under that category to which he/she belongs cannot be filled from the candidates belonging to other categories. The post has to be kept vacant till such time that the eligible candidate is available. The petitioner became eligible only after two days from the date of the issuance of the promotion order and, as such, he should have been considered for promotion only after two days from the date of the issuance of the order of promotion. Respondents for some oblique reasons and motives did not wait for two days to accord consideration to the promotion of the petitioner under the category of ALC, which in itself vitiates the selection and the promotion of ineligible persons and have thereby deprived the petitioner of a valuable right. 2. The respondents have failed to file the reply. However, they have filed the compliance report, in pursuance of the order dated 12.01.2016 of this Court by which they were directed to consider the representation of the petitioner for his promotion to the post of Head Master. 2. The respondents have failed to file the reply. However, they have filed the compliance report, in pursuance of the order dated 12.01.2016 of this Court by which they were directed to consider the representation of the petitioner for his promotion to the post of Head Master. In the compliance report, the respondents have stated that in compliance to the Court direction the claim of the petitioner was examined and it was found that the petitioner has been promoted as Master on 14.06.2011 vide Order No. 1167 DESK of 2011 and had not completed the required term of three years as on the date of the issuance of order No. 755- DESK of 2014 dated 14.06.2014 when the promotions of eligible Masters as I/c Headmaster were ordered. Hence the claim of petitioner is not well founded and is accordingly rejected vide Order No. 359 DESK of 2018 dated 16.03.2018. 3. Since the respondents have failed to file the reply, therefore, what can be said is that they have not joined any issue with the petitioner. It is the settled principle law of pleadings that the averments set up by the petitioner are expected to be specifically denied by the replying party. If there is not specific denial then such an averment is deemed have been admitted by the other side. In the present case, it is evidence that the averments set up in the writ petition which were relevant and material to the case have not been rebutted by the state. It was expected of the respondents to reply all the averments specifically and make a proper reference to the records relevant to the case. since the respondents have omitted to do so and have failed to specifically deny the averments made by the petitioner, therefore, the petitioner has been able to make out a case for interference. 4. Looking at the merits of the case, the respondents by placing 107 master as In-charge head Master’s have failed to comply with the terms of Rule 10 of the Reservation Rules 2005 which provides as follows :- 10. Roster for promotion. 4. Looking at the merits of the case, the respondents by placing 107 master as In-charge head Master’s have failed to comply with the terms of Rule 10 of the Reservation Rules 2005 which provides as follows :- 10. Roster for promotion. (1) With a view to giving effect to the reservation provided in rule 9 above, the appointing authority shall in respect of each service, class, category, or grade in which vacancies for appointment by promotion are to be filled, maintain a roster of 100 vacancies in the form indicated hereinafter: 1. Un-reserved. 2. Un-reserved. 3. Un-reserved 4. Backward Area 5. Un-reserved 6. Scheduled Caste. 7. Un-reserved. 8. Un-reserved. 9. Un-reserved. 10. Social Caste 11. Un-reserved. 12. Scheduled Tribe 13. Un-reserved. 14. Backward Area 15. Un-reserved. 16. Un-reserved. 17. Un-reserved. 18. Un-reserved. 19. Un-reserved. 20. ALC 21. Un-reserved. 22. Un-reserved. 23. Un-reserved. 24. Backward Area. 25. Un-reserved. 26. Un-reserved. 27. Un-reserved. 28. Un-reserved. 29. Un-reserved. 30. Scheduled Caste. 31. Un-reserved. 32. Scheduled Tribe. 33. Un-reserved. 34. Backward Area. 35. Un-reserved. 36. Un-reserved. 37. Un-reserved. 38. Un-reserved. 39. Un-reserved. 40. Un-reserved. 41. Un-reserved. 42. Un-reserved. 43. Un-reserved. 44. Backward Area. 45. Un-reserved. 46. Un-reserved. 47. Un-reserved. 48. Un-reserved. 49. Un-reserved. 50. Un-reserved. 51. Un-reserved. 52. Scheduled Tribe. 53. Un-reserved. 54. Scheduled Caste. 55. Un-reserved. 56. Backward Area. 57. Un-reserved. 58. Un-reserved. 59. Un-reserved. 60. Un-reserved. 61. Un-reserved. 62. Un-reserved. 63. Un-reserved. 64. Un-reserved. 65. Un-reserved. 66. Backward Area. 67. Un-reserved. 68. Un-reserved. 69. Un-reserved. 70. Un-reserved. 71. Un-reserved. 72. Scheduled Tribe. 73. Un-reserved. 74. Un-reserved. 75. Un-reserved. 76. Backward Area. 77. Un-reserved. 78. Scheduled Caste. 79. Un-reserved. 80. Un-reserved. 81. Un-reserved. 82. Un-reserved. 83. Un-reserved. 84. Un-reserved. 85. Un-reserved. 86. Backward Area. 87. Un-reserved. 88. Un-reserved. 89. Un-reserved. 90. ALC 91. Un-reserved. 92. Scheduled Tribe. 93. Un-reserved. 94. Un-reserved. 95. Un-reserved. 96. Backward Area 97. Un-reserved. 98. Un-reserved. 99. Un-reserved 100. Un-reserved. (2) The manner and procedure for preparation and maintenance of the roster and updating thereof shall be the same as prescribed in rule 6 and rule 7 of these rules. 5. On the face of the above rule, two posts had to be filled up under the ALC category out of 100 vacancies in the roster of such vacancies. The respondents have given a complete goby to this rule and have diverted these vacancies for being filed up by either the general category candidates or by other candidates. 5. On the face of the above rule, two posts had to be filled up under the ALC category out of 100 vacancies in the roster of such vacancies. The respondents have given a complete goby to this rule and have diverted these vacancies for being filed up by either the general category candidates or by other candidates. The order of promotion was passed on 14.06.2014, and the petitioner would complete three years of service as Master on 15.06.2014. He was thus entitled to be promoted on 16.06.2014. The respondents did not earmark any post under the ALC category which they were obliged to do in terms of the mandate of the Rule 10 of the Reservation Rules. The respondents had to implement the Reservation Rules by providing two posts to the ALC category which would have been in line and in tune with the constitutional scheme. Since the respondents have not followed the Reservation Rules, therefore, the petition of the petitioner is allowed as a corollary to which the order No. 755 DSK of 2014 dated 14.06.2014 issued by the Director School Education Kashmir, to the extent of non-inclusion of 2 % quota reserved for ALC candidates is quashed with a further direction to consider the petitioner for promotion to the post of In-charge Head Master under the ALC category retrospectively with effect from 16.06.2014, that is the day he became eligible for the post and to provide him all service benefits including seniority, pay and promotion to which he is entitled under rules. 6. Petition is disposed of along with connected MPs.