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2020 DIGILAW 276 (JK)

Ahjaz Ahmed v. State of J&K

2020-06-29

RAJESH BINDAL, SINDHU SHARMA

body2020
JUDGMENT Sindhu Sharma, J.—These Letters Patent Appeals are against the common judgment dated 29.12.2010 rendered by the writ Court in SWP No. 203/2010, SWP No. 206/2010 and SWP No. 532/2010 whereby the claim of the petitioners for reservation in promotion in the ALC category has been rejected. 2. Some of the facts which are relevant for the purpose of deciding these appeals, are as follows: Appellant-Javed Iqbal was promoted alongwith others as Incharge Deputy Superintendent of Police vide Government Order No. Home-123 (P) of 2010 dated 04.02.2010. Aggrieved by this, two writ petitions were filed; SWP No.203/2010 by Aijaz Ahmed and SWP No. 206/2010 by Manzoor Hussain. Both of them claimed that they being senior to respondent No. 6 and residents of Actual Line of Control (For short, ‘ALC’) were not considered despite having made representations for promotion. They challenged the promotion of Javed Iqbal-respondent No. 6 being arbitrary, unconstitutional and contrary to the basic law of service jurisprudence. 3. The respondents in their objections to the writ petitions filed by Ahjaz Ahmed and Manzoor Hussain admitted that Javed Iqbal was promoted erroneously since they both were senior to him and also belonged to the ALC category. 4. Javed Iqbal apprehending reversion of his order of promotion dated 04.02.2010 also filed SWP No. 532/2010 claiming that he alone was eligible for promotion under the ALC category as the ALC certificates of both Ahjaz Ahmed and Manzoor Hussain were stayed in the appeal by him. His prayer, thus, was that, his present status as Incharge Dy. S.P be maintained and vide order dated 15.03.2010, the respondents were directed to maintain status quo with respect to his present status. 5. The respondents/State have filed their reply in all three petitions and their stand as per the objections filed by them was as under:- 2. As per the seniority of Inspectors maintained by the PHQ Shri Manzoor Hussam, Mohammad Aziz Khan and Shri Ajaz Ahmad are senior to Javed Iqbal as they figure at Sr. No. 534, 555 and 663 whereas Shri Javid Iqbal figures at Sr. No. 726 of the seniority list of Inspectors issued by PHQ vide order No. 1980 of 2004 dated 06-07-2004. These Inspectors belong to the ALC category and it is admitted fact that they are senior to Shri Javed Iqbal in ALC category also. There may be other senior Inspectors belonging to ALC category. No. 726 of the seniority list of Inspectors issued by PHQ vide order No. 1980 of 2004 dated 06-07-2004. These Inspectors belong to the ALC category and it is admitted fact that they are senior to Shri Javed Iqbal in ALC category also. There may be other senior Inspectors belonging to ALC category. A grave error has been committed by placing Shri Javed Iqbal as Incharge Dy. SP against ALC reserved slot over and above the other senior ALC Inspectors. When all these facts were brought to the notice of two weeks. Meanwhile, the respondents are directed to maintain status quo with respect to the present status of the petitioner...” In view of the above facts, respondent No. 1 intends to withdraw the placement order of Shri Javed Iqbal as Incharge Dy, SP against the ALC slot and proposes to fill up the post by considering all the eligible Inspectors belonging to the ALC category including the petitioner keeping in view their seniority position and provisions of the J&K Reservation Rules 2004. 6. However, in the writ petition filed by Javed Iqbal, the respondents/State in their objections admitted, that a grave error had occurred while promoting him as Dy.SP in ALC category. As according to them, the officials, who have taken the benefit of promotion under one reserved category, are not allowed to take the benefit in another reserved category irrespective of the fact that they may belong to both the categories. As Javed Iqbal was appointed and promoted from Sub-Inspector to Inspector by availing the benefits of ST category, therefore, he could not shift to ALC category for seeking promotion as Incharge Dy.SP as the same is not permissible in terms of Section 19 of Jammu and Kashmir Reservation Act, 2004. 7. The learned Single Judge decided these petitions by holding as under:- “Considering the phraseology employed in the Section and the scheme of Reservation Act, providing benefit of reservation in one category alone, it is held that regardless of a candidate acquiring the status of belonging to another reserved category during his service career may not be entitled to claim service benefits under the newly acquired reserved category. For all what has been said above, Javed Iqbal-petitioner in SWP No. 532/2010, having taken benefit of the Reserved Category of Scheduled Tribe in securing employment as Sub-Inspector of Police and promotion as Inspector of Police, was not entitled to claim promotion/adjustment as Deputy Superintendent of Police under the Reserved category of ALC. Government Order No. Home-123(P) of 2010 dated 04.02.2010, in so far as it directs the adjustment of Javed Iqbal as I/C Deputy Superintendent of Police under ALC category, is, therefore, found illegal. On the same analogy, Manzoor Hussain and Ahjaz Ahmad who had got appointment as Sub-Inspector and promotion as Inspector of Police against the posts reserved for Scheduled Tribe category, cannot stake claim for promotion or adjustment as Deputy Superintendent of police against the Reserved category of ALC.” 8. Learned counsel for the appellants submitted that though all the appellants belong to the Scheduled Tribe category but they also are residents of areas adjoining to Actual Line of Control, and therefore, entitled to claim benefit of reservation for promotion as per their choice, in terms of Section 19 of the Jammu & Kashmir Reservation Act, 2004. It is submitted that reservation in promotion in ALC category became available so the appellants for the first time only in the year 2005, in terms of Reservation Rules i.e., SRO 294 of 2005, thus, they were entitled to make choice for taking benefit of one out of the two reserved categories. Since they belong to both Scheduled Tribe and ALC category, they made a choice and sought reservation in ALC category in Socially and Educationally Backward Classes. 9. Learned Additional Advocate General appearing on behalf of the respondents submitted that the benefit of employment and promotion under the J&K Reservation Act is available only against one category and once choice has been made by the candidate to opt for one of the reserved categories, that choice become final. According to him, Section 19 of the Jammu and Kashmir Reservation Act, 2004 does not permit an employee belonging to one category to shift to another reserved category. All the appellants, who were appointed and promoted in ST Category, cannot now be permitted to shift to another category of ALC for seeking further promotion in this category. 10. In support of their arguments, both sides rely on Section 19 of the Jammu & Kashmir Reservation Act, 2004. All the appellants, who were appointed and promoted in ST Category, cannot now be permitted to shift to another category of ALC for seeking further promotion in this category. 10. In support of their arguments, both sides rely on Section 19 of the Jammu & Kashmir Reservation Act, 2004. Section 19 of the Reservation Act reads as under:- “19. Choice - A candidate belonging to more than one category shall be entitled to claim the benefit of reservation in one category only, as per his choice, for appointment or promotion in Government Service or admission in professional institutions, as the case may be.” 11. A perusal of the aforesaid provision when considered with the Scheme contemplated by the Reservation Act clearly envisages that choice available to a candidate is to opt for only one of the two or more reservations available to him. No additional privilege is created for the candidate belonging to more than one reserved category to shift from one to the other category after availing the benefits of one while in service. 12. The provisions of the Reservation Act contemplate reservation in appointment or promotion in favour of backward classes, who are not adequately represented in the services of the State. Since the object of the Reservation Act is to provide to the members of the backward classes, equal opportunity in the matter of appointment in public service by reserving certain portion of appointment for them. The same, however, cannot be read to provide them benefit of reservation twice. 13. So far as the appellants are concerned, they have already received the benefit of reservation and were able to seek employment unhindered by the disability, for which, they have suffered. Now their shifting from one category to another would amount to confer additional benefit to the persons, who were brought at par with the others, besides affecting the rights of the persons, who are entitled to reservation under the Actual Line of Control category only. 14. In the statement of objects and reasons of the Jammu & Kashmir Reservation Act, 2004, it has been provided that these rules ought to provide for reservation in promotion in order to ensure the upliftment of the said category by providing proper and effective compliance of the Reservation Policy as the object of reservation is to see that persons with disability are brought at par with others. Therefore, allowing them to switch categories would give them additional benefit and resultantly, deny the same to others and thus, the same would be against the provisions of Article-14 of the Constitution. 15. Appellants admittedly have availed the benefit of reservation and in the absence of any compensatory disadvantage cannot seek promotion in shifting to ALC category as it appears to them more advantageous. This shift to another reserved category will result in upsetting the settled position of the seniority as well as promotion in service. 16. In view of the above discussions, we do not find any infirmity with the judgment of learned Single Judge. There is no merit in these appeals and the same are, accordingly, dismissed.