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2019 DIGILAW 261 (JK)

Mehdi Ali v. State of J&K

2019-04-30

DHIRAJ SINGH THAKUR, SINDHU SHARMA

body2019
JUDGMENT : Dhiraj Singh Thakur, J. Caveat No. 1449/2019 in LPA No. 97/2019 Caveat stands discharged. LPA Nos. 89/2019 & 97/2019 1. These two LPAs' are preferred against the common judgment and order dated 02.04.2019. Since the issues involved in both the appeals are common, we propose to decide the same by way of a common judgment. 2. Two writ petitions came to be filed by the appellants herein, who belong to the Scheduled Caste & RBA category inter alia challenging SRO-49, dated 30.01.2018, whereby an amendment was incorporated to Rule 15 and Rule 17 of the J&K Reservation, Rules, 2005 framed under the Reservation Act, 2004 on the ground that the same was unconstitutional, arbitrary and illegal and ultra vires the J&K Reservation Act, 2005. 3. The appellants in LPA No. 97/2019 further sought a mandamus, directing the respondents to provide 8% reservation to SC category candidates and 20% to RBA category candidates as prescribed under Rule 13 of the J&K Reservation Rules, 2005. SCHEME OF THE ACT & THE RULES Rule 17: Pre-amendment and Post-amendment. 4. The first grievance of the petitioners is that by amending Rule 17 of the Reservations Reservation Rules of 2005 vide SRO-49, the whole fabric of Rule 17 (unamended) has been destroyed, causing serious detriment to the interests of candidates belonging to the two categories. It was urged that not only do the candidates who belong to the SC & RBA category get deprived of the best streams/discipline and college but it also results in a consequent reduction of the percentage of seats reserved for the two categories. 5. In response, the stand taken is that the amendment to Rule 17 was necessitated, inasmuch as, the unamended rule was resulting in a situation where discipline left by a category candidate, which was available to him in the general category on account of his merit; was being offered by way of 'swapping' to the less meritorious candidate in the reserved categories, thereby compromising and prejudicing the merit of the candidate in the General category. 6. Two issues arise for consideration at this stage – (a) does the amended Rule 17 reduce the percentage of reservation of seats for the reserved categories - the answer is in the negative, inasmuch as, the scheme of Rule 17 deals with only the allotment of discipline/stream and college does not even remotely touch the issue of seats. 6. Two issues arise for consideration at this stage – (a) does the amended Rule 17 reduce the percentage of reservation of seats for the reserved categories - the answer is in the negative, inasmuch as, the scheme of Rule 17 deals with only the allotment of discipline/stream and college does not even remotely touch the issue of seats. It is for that reason perhaps that the learned counsel for the appellants did not lay much emphasis on this issue, which is even otherwise answered in the negative and the plea, accordingly, rejected. 7. The second point that falls for our consideration is as to whether the amended provisions of Rule 17 in any manner can be said to be ultra vires the Reservation Act of 2005 or the constitution. To answer this, it becomes necessary to understand why in the first place Rule 17 was incorporated. 8. The provisions of the Act deal with among others the aspects of Reservation in appointment in Government Services [Section 3]. Section 4 envisages that reservation contained in Section 3 shall not bar appointment in Open merit and shall not result in reduction of posts reserved for that category. Section 6 & 9 reads as under:- "6. Reservation in promotions--Except as otherwise provided in the Act, available vacancies to the extent as may be notified by the Government from time to time, shall be reserved in any service, class, category or grade carrying a pay scale the maximum of which does not exceed the pay scale of the post of Deputy Secretary to Government, for promotion from amongst the persons belonging to the Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes: Provided that total percentage of reservation shall not exceed [50%] of the available vacancies: Provided further that the Government shall exclude the services and posts, which on account of their nature and skill are such as call for highest level of intelligence, skill and excellence, from the operation of the Act. 9. Reservation in professional institutions--(1) The Government shall reserve seats in the Professional Institutions for candidates belonging to reserved categories and such other classes and categories as may be notified from time to time: Provided that the total percentage of reservation shall in no case exceed 50%. 9. Reservation in professional institutions--(1) The Government shall reserve seats in the Professional Institutions for candidates belonging to reserved categories and such other classes and categories as may be notified from time to time: Provided that the total percentage of reservation shall in no case exceed 50%. (2) The Government shall prescribe the percentage for each category in admission in the Professional Institutions: Provided that different percentage may be prescribed for different courses: Provided further that 50% of the seats in each category including open category for admission to MBBS and BDS, shall be selected from amongst female candidates belonging to such category: Provided also that the seats in any reserved category, which can not be filled for want of candidates belonging to that category, shall be filled from amongst the candidates belonging to open merit category." 9. Both Section 3 and Section 9 vest in the Government the power to determine the extent of reservation. However, Section 3 envisages a cap i.e., the reservation in appointment shall not exceed the ratio and proportion, as the population of each such category bears to the total population of the State as per the latest census. On the analogy of Section 4, Section 10 envisages that reservation shall not be a bar to the members of the reserved categories to seek admission in the Open Merit based upon their merit other than or in addition to the seats reserved; Section 10 reads as under:- "10. Reservation not to bar admission in open merit-- Nothing contained in Section 9 shall bar admission of members of the reserved categories against seats other than, or in addition to, those reserved for them under the said section, if such members are found qualified for admission on merit as compared with candidates not belonging to any reserved category." 10. Rule 15 of the rules was framed in terms of Section 9(2) of the Act providing for the percentage of reservation for different categories and prescribes as under:- 15. Rule 15 of the rules was framed in terms of Section 9(2) of the Act providing for the percentage of reservation for different categories and prescribes as under:- 15. Distribution of seats-For the post-graduate courses in MD/MS/M.Tech, Engineering and Agricultural Sciences and similar other postgraduate courses, the seats shall be distributed as follows with the condition that the selection of candidates from the reserved categories for different streams shall be made strictly on the basis of their inter-se merit, treating them as a single class for purpose of allotment of streams:- (i) Open Merit Category 65% (ii) Reserved Categories: (a) Scheduled Caste 4% (b) Scheduled Tribe 5% (c) Socially and Educationally Backward Classess:- (i) Residents of Backward Areas 10% (ii) Residents of Area Adjoining Actual Line of Control 2% (iii) Weak and Under Privileged Classes (Social Castes) 1% (d) Children of Defence Personnel/Paramilitary Forces and State Police Personnel 2% (e) Canidates possessing Outstanding Proficiency in sports 1% (f) Open merit category candidates other than those selected under item (i) above who have served for a minimum period of 5 years in Rural Areas. 10% Explanation:- .................. .................. .................. 11. At this stage, it becomes necessary to reproduce the unamended Rule 17 as also the amendment incorporated vide SRO-49 to understand the difference it made to the rights of candidates especially those belonging to the reserved categories as the appellants. Before amendment- "17. Allotment of discipline etc.:- A reserved category candidate, if selected against the Open Merit seat, may be considered for allotment of discipline/stream/college allocable to him in his respective category on the basis of his merit and preference. The resultant discipline/stream/college in the Open Merit category shall be allotted to the reserved category candidate who gets selected consequent upon the reserved category candidate getting selected in the Open Merit Category." After amendment- "17. Allotment of Disciplines etc.:- A reserved category candidate if selected against the open merit seat may be considered for allotment of discipline/stream/college allocable to him in his respective category oh the basis of his merit and preference. The left over disciplines/stream/college in the open merit category shall be allotted to the reserved category candidates who get selected consequent upon the reserved category candidates getting selected in the open merit category. The left over disciplines/stream/college in the open merit category shall be allotted to the reserved category candidates who get selected consequent upon the reserved category candidates getting selected in the open merit category. Explanation:- The left over discipline shall mean such number of disciplines/stream/college becoming available after allotment of seat to the last open merit candidate as allocable under rules. Such seats shall be added to the pool of reserved category candidates in terms of Rule-15 and allotted on the basis of merit-cum-preference." 12. In the backdrop of the aforementioned provisions, it can be seen that while reservation is provided for various categories including MD/MS and other post graduate courses, in the ratio prescribed hereinabove, yet for purposes of selection of candidates for various streams from amongst reserved categories, they would be treated as a single class and allotment of stream would be on the basis of inter-se merit. 13. The purpose of the aforementioned provision of the Act and the Rules was not only to provide for reservation of seats in a particular proportion but also ensure that the reserved category candidates would also be entitled to be considered, in terms of Section 10, which is a beneficial provision enabling a candidate belonging to the reserved categories to compete even against the Open Merit seats notwithstanding the fact that such a candidate may belong to the reserved category. If such a candidate did secure a seat, on account of his high merit in the Open Merit category, even then the number of reserved seats would remain unaffected and the candidates next in the merit in the reserved category would be pushed up and could claim one of the reserved seats. 14. So far so good. Then comes the second stage where Rule 17 operates. According to the old rule, when a reserved category candidate finds a place in the open merit category then in an eventuality where such a candidate is not satisfied with the stream/discipline or college which might be allocable to him could opt the stream/discipline or college which he would otherwise get in the reserved category. This was done to give an additional benefit to such a candidate lest his merit placed him in a more disadvantageous position as regards the options available. The following example would explain the scenario. 15. 'A' applies in the reserved category of SC for the post of M.D. in gynaecology. This was done to give an additional benefit to such a candidate lest his merit placed him in a more disadvantageous position as regards the options available. The following example would explain the scenario. 15. 'A' applies in the reserved category of SC for the post of M.D. in gynaecology. He however, secures very high marks and thus finds a place in the open merit category where keeping in view the merit-cum-choice principle he would get an MD seat in the discipline of E.N.T., which he does not prefer. Then as per Rule 17 whether before or after amendment, he has the choice to opt for the discipline of gynaecology which he would otherwise have been entitled to had he not secured the high percentage of marks. 16. As per the unamended Rule 17 when such a candidate 'A' moved from the reserved category to the open merit category, the candidate from the reserved category would find a place in the select list under the SC category and would be entitled to the discipline of ENT. 17. By this principle, a more meritorious candidate in the open merit category was placed at a more disadvantageous position as against such a reserved category candidate who would secure the ENT discipline. 18. With the amendment of Rule 17 the scenario changes. Now the discipline of ENT would be offered first to the open merit candidates according to their merit and choice and in case it remains unfilled, it would then be added to the pool of reserved category candidates and then allotted on the basis of merit-cum preference. By amending Rule 17 the No. of reserved seats remains unaffected. The amendment seeks only to curtail the benefit to a reserved category candidate of a stream or discipline which a more meritorious candidate in the open merit would be entitled to opt for. In fact, a candidate who is pushed up to figure in the select list has to sacrifice his discipline to a more meritorious reserved category candidate figuring in, the open merit category if such a candidate so chose. The amendment thus, cannot be said to be irrational or ultra vires the Act or the constitution. 19. It was next contended that the impugned SRO 49 had also the effect of amending Rule 15 whereby the reservation of seats for SC & ST have been reduced. The amendment thus, cannot be said to be irrational or ultra vires the Act or the constitution. 19. It was next contended that the impugned SRO 49 had also the effect of amending Rule 15 whereby the reservation of seats for SC & ST have been reduced. It was contended that instead of reducing the percentage of reservation, the respondents ought to have increased it to 8% in case of SC candidates and 20% in case of RBA candidates. The writ court has rejected the prayer on the ground that the amendment affected by SRO 49 to Rule 15 did not in any manner change the reservation provided in case of SC & RBA candidates and that it remained at 4% and 10% in case of SC & RBA candidate respectively. It was held that the amendment had the effect of increasing the open merit seats from 65% to 75% which was necessitated by striking down of the 10% quota earmarked for the open merit category candidates who had served for a minimum of five years in rural areas. It was also held that the, petitioners had no right to claim a particular percentage of reservation having a correlation to the population in the state. It was held that Article 15(4) was an enabling provision giving discretion to the Govt. to fix the percentage of reservation in favour of socially and educationally backward classes of citizens or for SC & ST. 20. We are in agreement with the view expressed by the Learned Single Judge on both these issues. SRO 49 does not in any manner reduce the percentage of reservation made either in favour of the candidates belonging to SC or the RBA categories. The argument advanced to that extent is without any basis and is rejected. Equally untenable is the prayer for issuance of a mandamus to the respondents to increase the percentage of reservation. A Constitution Bench of the Supreme Court in M.R. Balaji and others v. State of Mysore & Ors., AIR 1963 SC 649 in para 37 held thus: "......In this connection it is necessary to emphasis that Art. 15(4) like Article 16(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary. 21. A similar view was taken by a Constitution Bench in Ajeet Singh & Ors. 21. A similar view was taken by a Constitution Bench in Ajeet Singh & Ors. v. State of Punjab & Ors., 1997 (7) SCC wherein in para 31 it was held: 22. In NTR University of Health Sciences, Vijaywada v. G. Babu Rajendra Prasad & Anr., (2003) 5 SCC 350 , the Apex Court held that proceedings for reservation under the enabling provisions of Article 15 and 16 was a matter of policy which would normally not be open to challenge. The learned Single Judge has rightly noticed and applied the ratio of the judgments (supra) to the facts and circumstances of the present case. We see no reason to take a different view in the matter. 23. For the reasons above, the appeals are found to be without any merit and are accordingly dismissed along with connected applications.