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2020 DIGILAW 179 (JK)

Sanjeev Verma v. State Of J&K

2020-03-19

SANJEEV KUMAR

body2020
JUDGMENT 1. The petitioner is an Assistant Surgeon in the Department of Health Services and possesses the post-graduation qualification in the discipline of 'Physiology'. He claims to have served as Demonstrator in the Department of Physiology, Govt. Medical College, Jammu from April, 2005 to April, 2008, i.e, for a period of three years. Pursuant to the selection process conducted by the Selection Committee constituted by the respondent No.1 vide Govt. Order No.70-HME of 2006 dated 03.02.2006 read with Govt. Order no.542-HME of 2006 dated 27.09.2006, for engagement of Lecturers in various disciplines in Govt. Medical College, Jammu on contractual basis, the petitioner came to be selected and appointed as such vide Govt. Order No.351-HME of 2008 dated 21.04.2008. The Jammu and Kashmir Public Service Commission (hereinafter referred to as 'the PSC') vide its Notification No.13-PSC of 2008 dated 31.12.2008 invited applications, inter alia for two posts of Lecturers in the discipline of Physiology in Govt. Medical College, Jammu; one under RBA category and another under Scheduled Caste category. The petitioner is a candidate belonging to General Category and possesses all the requisite qualification to be appointed as Lecturer in the Govt. Medical College, Jammu. He responded to the Advertisement Notification seeking his consideration in the event of non-availability of eligible reserved category candidates in view of Rule 11 of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (hereinafter referred to as 'the Rules of 1979'). The application form was though accepted by the PSC, but, the petitioner was not called for interview on the plea that two posts notified were meant for reserved categories of Resident of Backward Area (for short 'RBA') and Scheduled Caste (for short 'SC') and therefore, the petitioner being General Category candidate was not eligible. It is in this backdrop, the petitioner in SWP No. 2213 of 2009 sought Certiorari to quash the Notification No.13-PSC of 2008 dated 31.12.2008 in so far as it notified two posts of Lecturers in Physiology, Govt. Medical College, Jammu only for the reserved categories of RBA and SC respectively. The petitioner also sought a direction to the respondents to allow the petitioner to participate and compete in the process of selection as General Category candidate in view of Rule 11 of the Rules of 1979. 2. Medical College, Jammu only for the reserved categories of RBA and SC respectively. The petitioner also sought a direction to the respondents to allow the petitioner to participate and compete in the process of selection as General Category candidate in view of Rule 11 of the Rules of 1979. 2. While the aforesaid writ petition was pending adjudication in this Court, the selection process initiated in the year 2008 came to be concluded and on account of non-availability of the eligible candidates from the reserved categories of RBA and SC, two posts aforesaid were again notified as a first special derive vide Notification No.04-PSC of 2010 dated 04.06.2010. The petitioner feeling aggrieved of the Notification of 2010 as well, on the similar grounds filed another writ petition being SWP No. 1549/2010. The short grievance projected by the petitioner in both these writ petitions is that in terms of the Rule 11 of the Rules of 1979, if sufficient number of candidates belonging to the reserved categories are not available for filling of all or any of the vacancies reserved during the recruitment period, the reservation for the posts not so filled shall lapse and the posts shall be filled up as if no reservation thereof had been made. It is on the basis of this provision contained in Rule 11 (2) of Rules of 1979 , the petitioner contends that two posts of Lecturers Physiology in Govt. Medical College, Jammu, which were notified in terms of Notification 13- PSC of 2008 dated 31.12.2008, which could not be filled up due to non-availability of the eligible candidates belonging to reserved categories should have been declared 'unreserved' and notified, as such, in the impugned Notification of 2010. 3. The respondent No.1 has filed the reply and the stand taken is that as per reservation rules, if a sufficient number of candidates during the recruitment process, is not available, then the posts shall remain vacant and shall be carried forward to the next recruitment process. It is, thus, submitted that the respondents are well within their right to launch a special derive for filling up the 'carried forward vacancies' by inviting applications exclusively from the persons belonging to the reserved category. It is further stated that it is only if the reserved vacancies remain unfilled for a period exceeding three years, these can be and should be treated as 'de- reserved'. It is further stated that it is only if the reserved vacancies remain unfilled for a period exceeding three years, these can be and should be treated as 'de- reserved'. It is, thus, contended that in the instant case, first attempt was made in December, 2009 and since no response was received from the reserved category candidate, second process was set in motion in June, 2010, therefore, there is nothing wrong with the impugned Notification of 2010. The plea of the petitioner that he is entitled to the benefit of Rule 11 (2) of the Rules of 1979 has not specifically dealt with. To the similar extent is the stand of the PSC. 4. Mr. Sethi, learned Senior counsel urges that in view of the clear stipulation contained in Rule 11(2) of the Rules of 1979, there is no warrant to follow the principle of 'carried forward' of the reserved vacancies. It is urged that if in a particular selection process, sufficient number of candidates belonging to a particular reserved category is not available for filling up of all or any of the reserved vacancies notified during the recruitment period, the reservation for the posts not so filled up would lapse and the posts are required to be filled up as if no reservation thereof had been made. Learned Senior counsel, therefore, argues that the respondents having failed to fill up two posts of Lecturers Physiology notified vide Notification No.13-PSC of 2008 dated 31.12.2008 under the reserved categories of RBA and SC respectively were under obligation to de-reserve the aforesaid posts and throw them open to the General Category candidates. It is contended that the Rules of 1979 are special rules dealing with the Medical Education (Gazetted) Service and, therefore, would override and supersede the contrary provision, if any, made in any general legislation/rules. Learned counsel submits that Rule 11(2) of the Rules of 1979 has been framed to achieve a very laudable object. It is contended that the Rules of 1979 are special rules dealing with the Medical Education (Gazetted) Service and, therefore, would override and supersede the contrary provision, if any, made in any general legislation/rules. Learned counsel submits that Rule 11(2) of the Rules of 1979 has been framed to achieve a very laudable object. The positions in the Medical Colleges, particularly, of the teaching faculty cannot be kept unfilled for three years awaiting the availability of the eligible category candidates and it is in keeping with nature of the employment in the Medical Education Department, a provision has been introduced to provide that in case of non-availability of the reserved category candidates, the posts meant for them shall be de-reserved and shall not be carried forward to the next recruitment process. This is how learned Senior counsel meets the arguments of learned counsel appearing for the Department of the Medical Education and PSC. 5. Per contra, Mr. Syed Wajahat Ali, Assisting Counsel appearing vice Mr. H.A.Siddiqui, learned Sr. AAG for respondents 1, 4 and 5 and Mr. M.Y.Akhoon, learned counsel appearing vice Mr. F.A.Natnoo, Advocate for respondents 2 and 4 submit that the reservation in the Government services including in the Department of Medical Education are governed by the Jammu and Kashmir Reservation Act, 2004 (hereinafter referred to as 'the Act of 2004') and the rules framed thereunder, i.e., J&K Reservation Rules 2005 (hereinafter referred to as 'the Rules of 2005') and any rules and regulations contrary to and inconsistent with Reservation Act and the Rules shall be deemed to have been repealed. 6. Having heard learned counsel for the parties and perused the record, I am of the view that the sole question that begs determination in these two petitions is as follows:- (i) Whether Rule 11(2) of the Rules, 1979 stands repealed in view of the contrary provision of 'carrying forward of reserved vacancies' provided in Section 5 of the Reservation Act, 2004 or the Rule 11(2) of the Rules of 1979 would still operate, in so far as it pertains to the reservation in favour of the members of the J&K Medical Education (Gazetted) Service, the provisions of Section 5 of the Reservation Act, 2004, notwithstanding ?. 7. The recruitment to Medical Education (Gazetted) Service constituted vide SRO 517 dated 19.09.1979 is governed by the Rules of 1979. 7. The recruitment to Medical Education (Gazetted) Service constituted vide SRO 517 dated 19.09.1979 is governed by the Rules of 1979. These rules have been issued by the Governor in exercise of powers conferred by the proviso to Section 124 of the Constitution of Jammu and Kashmir . Rules 11 deals with reservation of appointment and reads thus:- 11. Reservation of appointment: (1) While making appointments either by promotion, by selection or by direct recruitment, reservation shall be made in accordance with the rules and orders issued from time to time for the members of the Scheduled Castes or any other category or class of permanent residents of the State for whom such reservation may be made under the orders of the Government. (2) If a sufficient number of candidates belonging to the classes, for whom reservation has been made, are not available for filling up all or any of the vacancy reserved for them during a recruitment period, reservations for the posts not so filled shall lapse and the posts shall be filled up as if no reservation therefor had been made. 8. Sub Rule (1) of Rule 11 of the Rules of 1979 only provides that the reservation for recruitment to the Medical Education(Gazetted) Services shall be made in accordance with the rules and orders issued from time to time by the Government for the members of the reserved categories. Sub Rule (2), however, makes a departure from general rules of reservation and provides that if in a particular recruitment process, sufficient number of candidates belonging to the reserved categories is not available for filling up all or any of the vacancies reserved for them, the reservation for the posts not so filled shall lapse and the posts shall be filled up as if no reservation thereof had been made. Sub-Rule (2) was, thus, inconsistent with the provision in J&K Reservation Rules, 1994 issued under SRO 126 of 1994, which provided for 'carrying forward of vacancies' to the next recruitment years and de-reserving the same only if the same remained unfilled for a period exceeding three years. The Jammu and Kashmir Reservation Rules, 1994 too were issued by the Governor in exercise of powers conferred by the proviso to Section 124 of the Constitution of Jammu and Kashmir. 9. The Jammu and Kashmir Reservation Rules, 1994 too were issued by the Governor in exercise of powers conferred by the proviso to Section 124 of the Constitution of Jammu and Kashmir. 9. The issue as to which of the Rules, i.e., the Rules of 1979 or the Reservation Rules of 1994 would prevail in the event of conflict between the two might have been debateable. However, with the enactment of Jammu and Kashmir Reservation Act, 2004, the issue raised by the learned Senior counsel for the petitioner is no longer res integra. It is trite law that the Rules framed by the Governor in exercise of powers conferred by proviso to Section 124 of the Constitution of Jammu and Kashmir to regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State are subject to the provisions in that behalf made by or under the Act of the Legislature. This is evident from bare reading of Section 124 of the Constitution of Jammu and Kashmir, which for facility of reference is reproduced as under:- 124. Subject to the provisions of this Constitution, the Legislature may by law regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State: Provided that it shall be competent for the Sadar--i-Riyasat or such person as he may direct, to make rules regulating the recruitment and the conditions of services of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of the Legislature under this section, and any rules so made shall effect subject to the provisions of any such Act. 10. In view of the clear and unequivocal provisions of Section 124 of the Constitution of Jammu and Kashmir, there should be no manner of doubt that in the event of conflict, the provisions made in the Act of Legislature, i.e., Reservation Act of 2004 would prevail over the contrary provision made in the Rules of 1979. 10. In view of the clear and unequivocal provisions of Section 124 of the Constitution of Jammu and Kashmir, there should be no manner of doubt that in the event of conflict, the provisions made in the Act of Legislature, i.e., Reservation Act of 2004 would prevail over the contrary provision made in the Rules of 1979. The Reservation Act, 2004 is a special Act on the subject of reservation in public services and for the posts in connection with the affairs of the State and therefore, would prevail over any contrary provision made elsewhere in the rules framed under proviso to Section 124 of the Constitution of Jammu and Kashmir. Much emphasis is laid by learned Senior Counsel on Section 24 of the Act of 2004 to buttress his submissions that Rule 11(2) of the Rules 1979 is intact and continues to operate, notwithstanding the contrary provision of Section 5 of the Reservation Act, 2004. The argument put forth by the learned Senior counsel based upon the interpretation of Section 24 in the first blush appears to be attractive, but, on close scrutiny of the provisions is found to be without any substance. Before I support my conclusion by reasons, it would be necessary to first set out Section 24 of the Reservation Act, 2004 herein below:- '24. Repeal and saving. - (1) All rules, notifications and orders corresponding to the previsions of the Act shall, in so far as they are inconsistent with any provision of the Act, stand repealed. (2) Notwithstanding such repeal - (i) anything done or any action or any order issued under the rules, notifications or orders, so repealed, shall be deemed to have been done, taken or issued under the corresponding provisions of the Act; (ii) the reservation in appointment or promotion against available Vacancies and for admission in Professional Institutions provided under the repealed rules, notifications and orders, shall continue to be in force till a notification under the provisions of the Act is issued. 11. 11. From bare reading of aforesaid Section, it clearly transpires that in terms of Sub Section (1), all rules, notifications and orders corresponding to the provisions of the Reservation Act in so far as they are inconsistent with any provision of the Act, stand repealed with the coming into force of Reservation Act, 2004, it would mean that any rule, notification or order in existence at the time of coming into force of the Reservation Act, 2004 which corresponds to the provisions of the Reservation Act, would stand repealed to the extent it is inconsistent with any provision of the Act. The Jammu and Kashmir Reservation Rules, 1994 corresponding to the provisions of the Reservation Act, in so far as they are inconsistent with the provision of the Act, stand repealed. So is the position with regard to the Rule 11(2) of the Rules of 1979. Rule 11(1) of the Rules of 1979 would stay as it is not inconsistent with any of the provision of the Reservation Act, 2004. However, Rule 11(2) which corresponds to Rule 5 and is, on the face of it, inconsistent with the aforesaid provision would also stand repealed. Sub Section 2 (ii) of Rule 24 of the Reservation Act, 2004 is a transitory provision and only provides that the reservation in appointment or promotion against the available vacancies and for admission in Professional Institutions provided under the repealed rules, notifications and orders, shall continue to be in force till a Notification under the provision of the Act is issued. It is pertinent to notice that the Notification as envisaged under the aforesaid provision was issued by the Government in the shape of Jammu and Kashmir Reservation Rules 2005. The argument of learned Senior counsel that the reservation in appointment or promotion and for admission in the Professional Institutions were provided to be regulated and governed under the repealed rules is not only bereft of any substance, but, is quite illogical also. The word 'and' between the expression 'available vacancies' and 'for admission' is of critical import. It is disjunctive and clearly segregates two different type's reservation, i.e., reservation in appointment or promotion against available vacancies and the reservation for admission in the Professional Institutions. The word 'and' between the expression 'available vacancies' and 'for admission' is of critical import. It is disjunctive and clearly segregates two different type's reservation, i.e., reservation in appointment or promotion against available vacancies and the reservation for admission in the Professional Institutions. The term 'available vacancies' has been defined in Section 2(d) of the Reservation Act, 2004 and reads as under:- 2(d) 'available vacancies' means the vacancies, permanents or temporary, in any service and includes other posts under the Government, statutory authorities, autonomous bodies and Public section Undertakings owned and managed by the Government' 12. 'Available vacancies' as is apparent from its definition would mean the vacancies in any service and includes other posts under the Government statutory authorities, autonomous bodies and Public Sector Undertakings owned and managed by the Government. To restrict the meaning of expression 'reservation in appointment or promotion against the available vacancies' only to the posts in Professional Institutions would be mutilating the plain language of the Section. 13. This Court well appreciates the fact that due to the application of principle of 'carrying forward' the Medical Education Services do suffer for non-availability of the eligible candidates to man faculty positions in the Govt. Medical Colleges, but, then this is a subject which falls in the domain of legislature or executive as the case may be. This Court is obliged to interpret the provisions as per their plain language. It is a golden principle of interpretation that if the language of statute is clear and unequivocal, the Courts must give full meaning to such provision without venturing any other form of interpretative process. 14. In the light of the preceding analysis and the discussion I am of the view that with the coming into force of the Jammu and Kashmir Reservation Act, 2004, particularly, Section 5 thereof, the provision of Rule 11(2) of the J&K Medical Education (Gazetted) Service Recruitment Rules 1979 stands repealed and cannot be given effect to. The posts meant for reserved categories remaining unfilled in any recruitment process due to non-availability of the eligible candidates shall be carried forward to the next recruitment process strictly in terms of Section 5 of the Reservation Act, 2004. It is, however, for the appropriate authority to consider as to whether in the matter of recruitment to faculty positions in the Govt. It is, however, for the appropriate authority to consider as to whether in the matter of recruitment to faculty positions in the Govt. Medical Colleges or supplying vacancies in the Departments engaged in emergency services, whether Rule of 'carrying forward' envisaged under Section 5 of the Reservation Act, 2004 is efficacious. So long as Section 5 as it stands today remains in force, the reservation in appointment and promotion in any service including Medical Education (Gazetted) Service shall be governed and regulated by said provision, notwithstanding contrary provision contained in Rule 11(2) of the Rules, 1979. 15. For the foregoing reasons, I find no merit in these petitions and the same are, accordingly, dismissed along with connected CM(s).