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2019 DIGILAW 460 (JK)

Junaid Nazir v. State of J&K

2019-10-22

ALI MOHAMMAD MAGREY

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JUDGMENT : 1. Heard learned counsel for the parties and considered the matter. 2. It may at the very outset be observed that the posts advertised vide the advertisement notifications impugned in this petition have been created for, and are meant to be filled in only from amongst, the eligible migrant candidates. Petitioners, admittedly, are not migrants. I feel that it becomes imperative to give a narration of the relevant rules. 3. The Government of Jammu and Kashmir, vide SRO 412 dated 30.12.2009 read with SRO 425 dated 10.10.2017, promulgated the Jammu and Kashmir Kashmiri Migrants or Kashmiri Pandits (Special Drive) Recruitment Rules, 2009 (the 2009 Rules). In terms of Rule 2(ca) ‘Kashmiri Pandit’ for the purpose of the said Rules is defined to mean a person who belongs to the Kashmiri Pandit family and has not migrated from Kashmir Valley after 1st of November, 1989 and is presently residing in the Kashmir Valley. Rule 2(d) defines ‘migrant’ as meaning a person: (i) who has migrated from Kashmir Valley after 1st November, 1989; and (ii) is registered as such with the Relief Commissioner or has not been so registered on the ground of his being in service of Government in any moving office, or having left the Valley or any other part of the State in pursuit of occupation or vocation or otherwise, and is possessed of immovable property at the place from where he has migrated but is unable to ordinarily reside there due to the disturbed conditions and includes an internally displaced person. In terms of Rule 2(e) the word ‘post’ has been defined to mean the posts under the Government specially created from time to time in the Valley under the Prime Minister’s Special Package for return and rehabilitation of Kashmiri Migrants to the Valley and rehabilitation of the Kashmiri Pandits who have stayed back in the Valley. These Rules thus made provisions for eligibility, selection and appointment of Kashmiri Pandits and Migrants against the posts created under the Prime Minister’s Special Package for return and rehabilitation of Kashmiri Migrants to the Valley and Kashmiri Pandits. 4. Lately the Government vide order no.58-DMRRR of 2017 dated 29.07.2017 created 3000 supernumerary posts of various categories in different departments for providing employment to the Kashmiri Migrants/Pandits. 4. Lately the Government vide order no.58-DMRRR of 2017 dated 29.07.2017 created 3000 supernumerary posts of various categories in different departments for providing employment to the Kashmiri Migrants/Pandits. These posts include 20 posts of Motor Vehicle Inspector (MVI), 10 posts of Sub MVI and 10 posts of Assistant MVI of Divisional Cadre in the Transport Department of the State. 5. Consequent to the above, the Requisitioning Authority nominated under Rule 6 of the 2009 Rules referred these vacancies to the J&K Services Selection Board, Srinagar (the Board). The experience columns in the indents so sent to the Board were left blank. The Board issued three advertisement notifications bearing nos. 4/2017/15 dated 28.11.2017, 4/2017/21 dated 28.11.2017 and 4/2017/22 dated 28.11.2017 inviting online applications from the candidates who are permanent residents of J&K State and who are eligible under the 2009 Rules as amended. The advertisement notices contain a specific clause, i.e., clause (1)(i)(a) clarifying that only the ‘Migrants’ as defined in SRO 412 of 2009 or the ‘Kashmiri Pandits’ as defined in SRO 425 of 2017 are eligible to apply for the said posts. Annexure ‘B’ to the said notifications mentioned the qualifications/eligibility and criteria for the posts so advertised. The qualifications so mentioned in Annexure ‘B’ to the advertisement notices do not speak of any experience. 6. The petitioners have challenged the aforesaid three advertisement notifications in this petition, fundamentally, on two grounds: first that for the post of MVI the Jammu and Kashmir Transport Controller’s (Subordinate) Service Recruitment Rules, 1974 (1974 Rules), apart from the requisite qualifications mentioned therein, prescribe a working experience at least of one year in a reputed automobile workshop and possession of a driving licence authorizing to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicles; second that as per the aforesaid 1974 Rules there is no post of Sub-MVI or Assistant MVI existing in the department. On these two counts, the petitioners have sought quashing of the advertisement notices. It is their further case that they possess the prescribed qualification and experience and, therefore, are entitled to be considered for appointment against the post of Motor Vehicle Inspector. 7. On these two counts, the petitioners have sought quashing of the advertisement notices. It is their further case that they possess the prescribed qualification and experience and, therefore, are entitled to be considered for appointment against the post of Motor Vehicle Inspector. 7. The respondents have filed their reply contesting the claim of the petitioners, firstly, on the ground that the petitioners have no cause of action or locus standi to file the present petition as the posts have been created under a special set of Rules, recruitment to which is governed under the said special Rules and meant to be filled in only from amongst the candidates belonging to Kashmiri Migrants/Pandits. 8. It may be mentioned here that during the course of arguments, the learned Advocate General submitted that, in fact, vis-à-vis the posts of Motor Vehicle Inspector, a revised indent was forwarded to the Board mentioning the working experience of at least one year in a reputed automobile workshop and the requirement of holding of a driving license. 9. In order to maintain this writ petition, the petitioners are required to show to the Court that they have a cause of action and locus standi to file this writ petition for the reliefs claimed by them in the writ petition; they have to demonstrate to the Court that their right to consideration guaranteed under Article 16 of the Constitution of India has been infringed or taken away or that they are equally placed with migrants as defined under the 2009 Rules. Having considered the matter, I am of the view that the petitioners have neither any cause nor the locus standi to file this writ petition. This is so for the simple reason that these posts have been specially created in the Valley under the Prime Minister’s Special Package for return and rehabilitation of Kashmiri Migrants to the Valley and rehabilitation of the Kashmiri Pandits. Under the 2009 Rules no other person is eligible to be appointed to such posts. This is so for the simple reason that these posts have been specially created in the Valley under the Prime Minister’s Special Package for return and rehabilitation of Kashmiri Migrants to the Valley and rehabilitation of the Kashmiri Pandits. Under the 2009 Rules no other person is eligible to be appointed to such posts. This becomes axiomatic from a plain reading of the definition of the word ‘post’ given in Rule 2(e) of the 2009 Rules which specifically defines the word to mean the posts under the Government specially created from time to time in the Valley under the Prime Minister’s Special Package for return and rehabilitation of Kashmiri Migrants to the Valley and rehabilitation of the Kashmiri Pandits who have stayed back in the Valley. It is, therefore, immaterial whether the post of Sub-MVI or Assistant MVI is or is not borne on the sanctioned strength of the Department in terms of the 1974 Rules. Under the 2009 Recruitment Rules, the Government is fully authorised to create such posts in different departments, as it may think appropriate, for achieving the objective specified therein. No person, muchless the petitioners, can have a grievance against creation of such posts as long as the 2009 Rules subsist. In that view of the matter, the petitioners cannot have a grievance against creation of such posts. Consequently, they neither have a cause nor a locus standi to challenge the advertisement notifications in question on that score. On the same analogy and ground, the petitioners also cannot voice any grievance on account of the fact that the advertisement notices do not prescribe requirement of any experience for the posts in question. It is a different thing, though, that by the revised indent sent to the Board, the experience clause has been added. 10. In view of the above, the petitioners, being not eligible for consideration against the posts in question, they being not migrants within the meaning of the word as defined in Rule 2(d) of the 2009 Rules, cannot claim any right to consideration for selection and appointment against the said posts. None of the rights of the petitioners is thus infringed or violated to entitle them to file this writ petition. The persons for whom these posts stand created constitute a class in themselves different from the petitioners. None of the rights of the petitioners is thus infringed or violated to entitle them to file this writ petition. The persons for whom these posts stand created constitute a class in themselves different from the petitioners. The petitioners cannot claim any equality with them by invoking the mandate of Articles 14 or 16 of the Constitution. This petition, therefore, deserves to be dismissed as being unnecessary and not maintainable by the petitioners. 11. The writ petition is, accordingly, dismissed. The connected MP is also dismissed, vacating the interim stay order, if any, subsisting. The respondents shall be free to proceed with and complete the selection process. 12. No order as to costs.