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2018 DIGILAW 405 (JK)

Chandan Singh v. State of J&K

2018-06-07

SANJEEV KUMAR

body2018
JUDGMENT : 1. In this petition, the petitioner has, inter alia, sought a writ of Certiorarifor quashing Notification No. 02 of 2016 dated 10.10.2016 issued by respondent No.3, whereby 35 candidates were shortlisted for viva voce for filling up 07 posts of Class-IV in the Open Merit Category. The petitioner has further prayed for a direction to respondent Nos. 2 & 3 to conduct his interview under Ex-servicemen category and recommend him for appointment to the post of Class-IV (Health and Family Welfare Department), District Cadre, Kathua. 2. Briefly stated, the facts leading to the filing of this petition, as narrated in this petition, are that petitioner is 10th pass and an Ex-servicemen having retired from Indian Army with effect from 31.10.2011. The respondent No.2 vide his Advertisement Notice No. 01 of 2015 dated 31.03.2015 invited applications to fill up 13 posts of Class-IV in the department of Health and Family Welfare in the District Cadre, Kathua with following break up:- Open Merit : 07 Scheduled Caste : 01 Scheduled Tribe : 01 RBA : 03 ALC : 01 Total : 13 3. As per the Advertisement Notification, the minimum qualification prescribed was matriculation. The petitioner being eligible and entitled to the benefit of horizontal reservation to the extent of 6% of the total posts submitted his candidature for consideration against the General Category post. After proper scrutiny of the applications received by respondent No.3, shortlist was issued by the respondent No.3 vide his Notification No. 01 of 2016-17 published in “Daily Excelsior” newspaper on 10.08.2016. In the aforesaid Notification, the criteria of short listing was also indicated. It was also provided that list of short listed candidates indicated in the Annexure-A of the Notification was purely provisional and subject to objections from the aggrieved candidates. As is apparent from the shortlist, there was no separate shortlist prepared for Ex-servicemen candidates though shortlist was prepared separately for other categories. The petitioner, however, did not file any objections to the short listing within the period of 14 days as stipulated in the Notice No. 01 of 2016-17 on the ground that he had taken ill and had been advised complete bed rest for four weeks w.e.f. 08.08.2016. The petitioner, however, claims that he approached the respondent No.2 with his objections/representation but the same was not entertained on the pretext that 14 days period prescribed in the Notification had expired. The petitioner, however, claims that he approached the respondent No.2 with his objections/representation but the same was not entertained on the pretext that 14 days period prescribed in the Notification had expired. It is claimed that when his representation was not entertained by respondent No.3, the petitioner approached him through the Zila Sainik Welfare Officer, Kathua.The Zila Sainik Welfare Officer, Kathua vide his Communication No. E-4/ZSWO/Kth/14/1129-31 dated 06.09.2016 took up the matter with the respondent No.3 and requested him to clarify the position as to why the eligible Ex-servicemen who had applied for the post were not short listed despite there being 6% horizontal reservation provided for the aforesaid category. It is the further case of the petitioner that in response to the communication of the Zila Sainik Welfare Officer, Kathua, respondent No.4 vide its communication No. DCK/Adm/2016-17/1599 dated 07.10.2016 informed the Zila Sainik Welfare Officer that in the Advertisement Notification No. 01 of 2015 issued by the respondent No.2, there was no post reserved for Ex-servicemen and therefore, no short listing for the aforesaid category was resorted to by the respondent No.3. 4. Be that as it is, the respondents did not consider the grievance of the petitioner and issued the shortlist on 10.08.2016. Feeling aggrieved, the petitioner filed the instant petition. 5. This petition came up for consideration, first, on 28.10.2016 when this Court, while issuing notice to the respondents also passed an interim direction in the following manner:- “After hearing learned counsel for the petitioner at length, it is directed that any appointment to the post in question, if made, shall be subject to the result of this writ petition.” The reference to the interim order dated 28.10.2016 assumes importance as during the pendency of this petition, the Provisional Select List has been operated and the selected candidates have been appointed. Respondent No.5 is a candidate last selected in the Open Merit Category and therefore, has been impleaded as respondent in this writ petition. 6. On being put on notice, respondent Nos. 1 to 4 have filed the reply. The stand taken in para (1) of the objections is that respondent No.3 had only notified 14 posts, out of which 07 were in the Open Merit Category. 6. On being put on notice, respondent Nos. 1 to 4 have filed the reply. The stand taken in para (1) of the objections is that respondent No.3 had only notified 14 posts, out of which 07 were in the Open Merit Category. The 6% reservation provided for Ex-servicemen, it is submitted, is required to be worked out for each category and 6% of the 07 posts would mean that no post was required to be reserved for horizontal reservation in favour of the Ex-servicemen. It is pleaded that the claim of the petitioner was required to be considered for Ex-servicemen category only for the vacancies in the Open Merit Category. Since the total posts in the Open Merit were 07 and therefore, no posts were to be reserved for Ex-servicemen category. This is total stand in sum and substance taken by the respondents. 7. Respondent No.5 has not filed separate objections. Learned counsel appearing for respondent No.5, however, made a statement that the objections filed by the official respondents be taken as objections filed by respondent No.5 as well. 8. Having heard learned counsel for the parties and perused the record, I am of the considered opinion that though there was some remissness on the part of the petitioner to raise grievance at the earliest, yet in the given facts and circumstances, the claim of the petitioner deserves to be allowed. 9. Admittedly, 13 posts of Class-IV in the District Cadre, Kathua were notified for selection in terms of the Advertisement Notification issued on 31.03.2015. The note appended at the bottom of the Advertisement Notification, clearly provided for working out the horizontal reservation meant for Ex-servicemen and physically challenged persons. Providing of the horizontal reservation for different categories including Ex-servicemen and physically challenged persons is a statutory requirement provided under the Jammu and Kashmir Reservation Act, 2004 (for short, the Reservation Act) and the Jammu and Kashmir Reservation Rules, 2005 (for short, the Reservation Rules). Such statutory requirements are required to be read into the Advertisement Notification wherever such requirements are not specifically provided. There is, thus, no escape from the obligation of the respondents to provide for reservation in favour of the Ex-servicemen which under the relevant rules is pegged at 6%. This 6% reservation has to be worked out on the basis of total posts advertised and is not to be worked out for each category. There is, thus, no escape from the obligation of the respondents to provide for reservation in favour of the Ex-servicemen which under the relevant rules is pegged at 6%. This 6% reservation has to be worked out on the basis of total posts advertised and is not to be worked out for each category. For example, in the instant case, 6% reservation was to be worked out from out of total 13 posts advertised and was not to be worked out for each category like, Open Merit, Scheduled Caste, Scheduled Tribe, RBA, ALC etc. as is the stand taken by the respondents in their objections. The 6% of 13 posts comes to 0.78 which is required to be rounded off to 01. That being so, out of 13 notified posts, one post was to be filled up from amongst the candidates belonging to Ex-servicemen category on the basis of merit inter se. This would have been possible if the candidates who had applied under Ex-servicemen category had been shortlisted. 10. As noted above, there was no separate shortlisting for the candidates belonging to Ex-servicemen Category and the reasons therefor are obvious. Respondents were of the view that 6% horizontal reservation meant for Ex-servicemen was required to be calculated for each category and therefore, since there were only 07 posts in the Open Merit and less post in other categories, as such, there was no requirement for making any reservation for the Ex-servicemen category. It is on this fallacious premise, no shortlisting was done by the respondents. 11. From the narration of events and facts given hereinabove, it is apparent that petitioner did not object to the short listing within the stipulated period of 14 days as was mentioned in the short listing Notification but the fact remains that he had approached the respondents by using the good offices of the Zila Sainik Welfare Officer, Kathua well before the issuance of the Provisional Select List. The Zila Sainik Welfare Officer, Kathua had written to the respondent No.3 on 06.09.2016 on the issue whereas the Provisional Select List was issued vide Notification No. 03 of 2016-17 published in the „Daily Excelsior? newspaper on 21.12.2016. 12. From the reply affidavit filed by respondent Nos. The Zila Sainik Welfare Officer, Kathua had written to the respondent No.3 on 06.09.2016 on the issue whereas the Provisional Select List was issued vide Notification No. 03 of 2016-17 published in the „Daily Excelsior? newspaper on 21.12.2016. 12. From the reply affidavit filed by respondent Nos. 1 to 4, it is abundantly clear that the claim of the petitioner for his consideration under the Ex-servicemen category was not declined on the ground that he had not been shortlisted but was declined on the ground that there was no necessity to issue separate shortlist for Ex-servicemen for the reason that there was no post available under the category of Ex-servicemen. The justification given by the respondent Nos. 1 to 4 to deny the claim of the petitioner is that 6% of the 07 posts would come to fraction even less than 0.5 and therefore, there was no requirement to earmark any post under the aforesaid category. The stand taken by the respondents is not only illegal but preposterous. Reference in this regard is invited to Rule 4 of the Reservation Rules, which provides for reservation of vacancies for direct recruitment in each service, class, category and grade in favour of the permanent residents of the State belonging to different categories. Amongst others, 6% horizontal reservation has been provided in favour of the Ex-servicemen, who are permanent residents of the State. For facility of reference, Rule 4 of the Reservation Rules is reproduced hereunder:- “4. Reservation in Direct Recruitment. – Except as otherwise provided in these rules, available vacancies shall be reserved for direct recruitment in each service, class, category and grade in favour of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as possible, constitute the percentage of available vacancies shown against each:- (a) Scheduled Castes 8% (b) Scheduled Tribes 10% (c) Socially and Educationally Backward Classes (other than Scheduled Castes and Scheduled Tribes:- (i) Weak and under privileged Classes (social caste) 2% (ii) Residents of areas adjoining Line of Actual Control (ALC) 3% (iii) Residents of backward areas 20% (d) Ex-servicemen 6% Horizontal Reservation (e) Physically Challenged Persons 3% Explanation (A):- The horizontal reservation to the extent of 6% of the available vacancies shall be provided to the Ex-servicemen against such posts only where the maximum of the pay scale does not exceed Rs.10,500/-. Explanation (b) :- For purposes of clause (d) and (e), the horizontal reservation means the reservations which would cut across the vertical reservation (what is called inter-locking reservation) and the person selected against the physically challenged quota will have to be placed in the appropriate category viz. if he/she belongs to the scheduled caste category, he/she will be placed in that quota by making the necessary adjustment and similarly if he/she belongs to the open competition category, he/she will be placed in that category. Explanation (c):- For the purposes of clause (e) reservations in recruitment shall be available for physically challenged persons for services and posts specified under section 22 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 to the extent specified therein, i.e. (i) Blindness or low vision 1% (ii) Hearing impairment 1% (iii) Locomotor disability or Cerebral Palsy 1%” 13. A plain reading of Rule 4 would indicate that reservation provided in favour of each category is to be calculated out of the total available vacancies, available in each service, class, category and grade. What is horizontal reservation and how it is to be given effect to is further explained in Explanation No. (b), reproduced above. Expression “6% of the available vacancies” used in explanation (a) of Rule 4 is significant to note and clarifies the doubt, if any, with regard to the manner in which the reservation provided in favour of the Ex-servicemen is to be worked out. The calculation of 6% has to be out of the total available vacancies, in each service, class, category and grade and not out of each category like SC, ST, RBA etc. The stand taken by the respondents is not only ill-logical but dehors the Rule 4 reproduced above. 14. In view of the foregoing discussion, the petition of the petitioner succeeds and the petitioner is held entitled to be considered against the post of Ex-servicemen. Since all the 13 posts advertised have been filled up, as such, the respondent No.5 being the candidate last in the Open Merit has to go and make place for the petitioner. Accordingly, this petition is allowed and selection/appointment of respondent No.5, which was kept subject to outcome of the writ petition vide order dated 28.10.2016 is quashed. Since all the 13 posts advertised have been filled up, as such, the respondent No.5 being the candidate last in the Open Merit has to go and make place for the petitioner. Accordingly, this petition is allowed and selection/appointment of respondent No.5, which was kept subject to outcome of the writ petition vide order dated 28.10.2016 is quashed. A direction shall go to the respondent No.3 to consider and appoint the petitioner in the Ex-servicemen category as Class-IV with effect from the date the 13 candidates selected in terms of the select list published on 21.12.2016 were appointed. Needless to say that the petitioner on his appointment shall be entitled to all consequential benefits minus monetary benefits. 15. Before parting with the judgment, I deem it my duty to remind the official respondents of their statutory obligation to carry out the reservations in letter and spirit as are provided under the Jammu and Kashmir Reservation Act and the Rules framed thereunder. In the instant case, respondent No.3 by ignoring the mandate of the Reservation Act and the Rules framed there under and by sheer misinterpretation of the provisions of Rule 4 of the Reservation Rules committed a glaring mistake of which brunt has fallen on the respondent No.5. I am sure that respondent No.5 was not contributory to the illegality committed by the official respondents, yet he became the beneficiary at the cost of the petitioner. It is because of these pressing reasons, I had no other option but to quash his appointment so as to make place for the appointment of the petitioner but nothing prevents the State to take a holistic view of the matter and consider the retention of respondent No.5 against any available post of Class-IV in the department. This would balance the equities in the matter and would save respondent No.5 from bearing the brunt of the illegality committed by the respondents. The fact that the respondent No. 5 is class-IV employee in the service of State for the last more than one year shall also be taken into consideration. I leave it to the official respondents to find ways and means to retain the services of the respondent No.5 against any available post, if possible.