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2023 DIGILAW 503 (JK)

Meenakshi Sharma v. State of Jammu & Kashmir

2023-09-13

PUNEET GUPTA, SANJEEV KUMAR

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JUDGMENT : SANJEEV KUMAR, J. 1. This intra-court appeal by the appellant is directed against the judgment dated 14.11.2017 passed by the learned Single Judge of this Court [“Writ Court”] in SWP No.953/2013 titled “Meenakshi Sharma Vs. State of J&K and others”, whereby the writ Court has dismissed the petition of the appellant. 2. Before we advert to the grounds of challenge urged by Mr. Mazher Ali Khan, learned counsel appearing for the appellant, we deem it appropriate to give brief resume of the factual antecedents leading up to the filing of this appeal. 3. Vide advertisement notification No.10 of 2005 dated 29.12.2005, the J&K Service Selection Board (SSB) invited applications from eligible candidates for making selection inter-alia to 240 posts of Teacher borne on District Cadre, Kathua. The minimum qualification prescribed for the post was 10+2. The appellant being 10+2 pass and suffering from permanent deformity of the right eye to the extent of 50% submitted her application seeking her consideration under the reserved category of “physically challenged” category. The appellant participated in the selection process, which resulted in issuance of final select list. The appellant did not find place in the select list, and therefore, brought her grievance to this Court through the medium of SWP No.1067/2008. 4. The writ petition filed by the appellant was disposed of by a learned Single Judge of this Court vide order and judgment dated 10.12.2012 directing the respondents to consider the case of the appellant for her appointment against the post of Teacher, District Cadre Kathua, in the light of change of circumstances viz issuance of Government Order No.231-SW of 2011 dated 22.12.2011. In compliance with the judgment dated 10.12.2012, the matter was considered by SSB and vide its order No.39 of 2013 dated 12.02.2013, the claim of the appellant for appointment under the “Physically challenged” category was rejected. 5. This order of rejection was assailed by the appellant before the writ Court in SWP No.953/2013. The appellant, apart from seeking Certiorari for quashing order of consideration bearing No.39-SSB of 2013 dated 12.02.2013, also prayed for a Writ of Mandamus to direct the Service Selection Board to consider the appellant afresh in terms of Government Order of 2011 and in the light of order/judgment passed by the learned Single Judge in SWP No.1067/2008. The writ petition was contested by the Government as well as Service Selection Board. The writ petition was contested by the Government as well as Service Selection Board. In its reply affidavit filed by respondent-Board, a plea was taken that Government Order No.231-SW of 2011 dated 22.12.2011, whereunder the candidates falling under the category of “blind and blindness with low vision” was also identified for the benefit of reservation provided to Physically challenged category for the post of Teacher was prospective in nature and would not apply to the selections which stood concluded prior to the issuance of the aforesaid Government Order. The matter was considered by the writ Court at length and vide judgment and order impugned in this appeal, the writ petition filed by the appellant was dismissed. 6. The appellant has challenged the impugned order and judgment on numerous grounds. Amongst the other grounds, what was vehemently urged by the learned counsel for the appellant is that under the Jammu and Kashmir Reservation Act and the Rules framed thereunder, the State is under an obligation to allocate 3% of the posts for the category of “Physically challenged persons” with allocation of 1% share out of 3% to the category of blindness/low vision. It is vehemently contended by learned counsel for the appellant that the writ Court did not adjudicate the core issue whether the selection made by SSB under Government Order No.62-SW of 2001 was sustainable in view of contrary provisions of J&K Reservation Act and the Rules framed thereunder providing for 3% of reservation i.e. 1% each to the three type of disabilities which include “blindness/low vision”. 7. The submissions made by learned counsel for the appellant are opposed by Mr. Raman Sharma, learned AAG appearing for SSB who submits that issue raised by the appellant in this appeal is no longer res-intra in view of the consistent view of this Court in various judgments passed by various Division Benches of this Court. He submits that Government Order No.231-SW of 2011 dated 22.12.2011 is prospective in operation and cannot be made applicable to reopen the selections which stood concluded prior to the promulgation of the aforesaid government order. He argued that in the absence of challenge to Government Order No.62-SW of 2001 dated 13.03.2001 and without impleading the selected candidates/candidate as party respondent(s), the writ petition was not maintainable and the writ Court rightly appreciated this aspect and dismissed the same. 8. He argued that in the absence of challenge to Government Order No.62-SW of 2001 dated 13.03.2001 and without impleading the selected candidates/candidate as party respondent(s), the writ petition was not maintainable and the writ Court rightly appreciated this aspect and dismissed the same. 8. Having heard learned counsel for the parties and perused the material on record, the issue that begs determination in this case is two-fold. i) Whether under the Jammu and Kashmir Reservation Act, 2004 and the Rules framed thereunder it is obligatory on the part of respondents to earmark in each selection 1% reservation to each of the three types of disabilities i.e. Locomotor disability or Cerebral Palsy, Hearing impairment and Blindness or low vision, the provision of Government Order No.62-SW of 2001 dated 13.03.2001 notwithstanding; ii) Whether the Government Order No.231-SW of 2011 dated 22.12.2011 is prospective in operation and therefore would not apply to the selections already concluded prior to the issuance of said government order. 9. The reservations in appointment and promotion in the erstwhile State of Jammu and Kashmir were governed by the Jammu and Kashmir Reservation Act and the Rules framed thereunder. So far as the reservation in favour of “Physically Challenged persons” is concerned the same was governed by [“the Act of 1998”] the Jammu and Kashmir Persons with Disabilities Act, 1998. With a view to give effect to the reservations provided under the Reservation Act, 2004 and the Act of 1998, the Government in the exercise of powers conferred by Section 23 of the Act of 2004 and Section 22 of the Act of 1998 issued Jammu and Kashmir Reservation Rules 2005 [“Rules of 2005”]. As per rule 4, 3% of the available vacancies for direct recruitment are reserved for Physically Challenged Persons. 10. For a quick look Rule 4 is set out below: 4. As per rule 4, 3% of the available vacancies for direct recruitment are reserved for Physically Challenged Persons. 10. For a quick look Rule 4 is set out below: 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% 11. As is evident from reading of explanation (C) of Rule 4, the reservation in recruitment in favour of Physically Challenged Persons shall be for services and posts specified under Section 22 of the Act of 1998 to the extent specified below: i) blindness or low vision 1% ii) hearing impairment 1% iii) Locomotor disability or Cerebral Palsy 1%. 12. Needless to emphasis that in terms of Section of 22 the Government is put under an obligation to appoint in every establishment such percentage of vacancies not less than 3% for the persons or class of persons with benchmark disabilities of which 1% each shall be reserved for persons suffering from aforementioned three types of disabilities. Section 21 of the Act of 1998 obligates the Government to identify posts in the establishment which can be reserved for persons with disabilities. The Government is further mandated to review the list of posts identified at periodical intervals not exceeding three years and up-date the list taking into consideration the development in technology. 13. From conjoint reading of Sections 21 and 22 of the Act of 1998, it clearly transpires that though the reservation to the extent of 3% is envisaged i.e. 1% each for the categories of (i) Blindness or low vision (ii) Hearing impairment and (iii) Locomotor disability or Cerebral Palsy but it is only in respect of the posts identified for each disability in terms of Section 21 and 22 of the Act of 1998. With a view to give effect to this aspect, in the year 2001, the Government came up with an order bearing No.63-SW of 2001 dated 13.03.2001. Indisputably, the physically challenged category of “blindness or low vision” was not identified for the post of Teacher in the School Education Department. It was this Government order which was in vogue when the advertisement notification No.10 of 2005 dated 29.12.2005 was issued. The appellant participated in the selection and took calculated chance therein without challenging either advertisement notification or the Constitutional validity of Government order No.62-SW of 2001. It was only when the appellant did not find her name in the select list, she filed SWP No.1067/2008. As pleaded by the appellant, the Government Order No.62-SW of 2001 dated 13.03.2001 was assailed in the said petition but the writ petition was disposed of by Single Bench of this Court vide its order and judgment dated 10.12.2012 by taking note of the subsequent development i.e. the issuance of Government Order No.231-SW of 2011 dated 22.12.2011 whereunder the category of “blindness or low vision” came to be included for the first time for the benefit of the reservation to the post of Teacher in the School Education Department. 14. It seems that matter came up for consideration before the respondents pursuant to the directions issued by the learned Single Judge in its judgment dated 10.12.2012. The SSB rejected the claim of the appellant primarily on the ground that Government Order of 2011 was prospective in operation and therefore, could not be applied to the selections concluded prior to the issuance of the said Government order. This was done by the SSB vide an order bearing No.39-SSB of 2013 dated 12.02.2013, SSB which was called in question by the appellant in subsequent writ petition SWP No.953/2013. The writ petition has been decided by the writ Court in terms of the judgment and order impugned in this appeal. 15. The writ Court has accepted the contention of SSB that the Government order of 2011 was prospective in operation and could not have been applied to the pending selection. The writ Court also declined to apply the provisions of Government order of 2011 to the case of the appellant on the ground that doing so would be tantamount to reading into the Government order something which its plain language does not provide. The writ Court also declined to apply the provisions of Government order of 2011 to the case of the appellant on the ground that doing so would be tantamount to reading into the Government order something which its plain language does not provide. A great deal of case law has been discussed by the writ Court to arrive at a conclusion that Government Order of 2011 was prospective in operation and, therefore, was not applicable to the selection process initiated in the 2005 and concluded prior to the issuance of government order of 2011. 16. We have given our thoughtful consideration to the arguments made by learned counsel for the appellant, however, we regret our inability to accept and approve them for the reason in addition to the reasons which the writ Court has given in the impugned judgment. Indisputable, the provisions of Government Order No.62-SW of 2001 dated 13.03.2001 have not been assailed. In the absence of any challenge to Government order No.62-SW of 2001 dated 13.03.2001, it would not be permissible for us to comment upon its validity and otherwise. The provisions of the Government order, as these stood on the date of issuance of advertisement notification of 2005, did not provide any reservation in favour of “physically challenged persons” with the disability of “blindness or low vision”. Whether or not the aforesaid category was rightly excluded was not a subject matter of debate in the writ petition nor the same could be made so in this appeal. The Service Selection Board, as it is found, followed the provisions of Government order No.62-SW of 2001 scrupulously and did not commit any illegality or infirmity in framing the list in respect of category of physically challenged persons. The exclusion of the appellant from consideration under the category of “physically challenged persons” was, thus, in consonance with the provisions of Government order No.62-SW of 2001 dated 13.03.2001. 17. We are also not impressed by the arguments of learned counsel for the appellant that since under the Jammu and Kashmir Reservation Act and the Rules framed thereunder, 1% horizontal reservation is provided in favour of “physically challenged persons” with the disability of “blindness or low vision”, as such, the Government Order No.62-SW of 2001 dated 13.03.2001 could not have provided to the contrary. 18. 18. We are saying so because Section 22 of the Act of 1998, which is source of reservation for the persons with the disabilities itself provides that there shall reservation of 1% each in favour of persons with three different types of disability including the disability of “blindness or low vision” but this is subject to the government identifying the posts for each disability having regard to the type of work to be carried in the department or establishment. Aside, explanation (C) of Rule 4 of the Rules of 2005 clearly provides that reservation to the extent of 3% shall be available for physically challenged persons for services and posts specified under Section 22 of the Act of 1998. There is, thus, no contradiction between the Reservation Rules of 2005 and the Government order No.62-SW of 2001 issued under Section 22 of the Act of 1998. Rule 4 of the Rules of 2005 only embodies the spirit of Sections 21 & 22 of the Act of 1998. Similar is the mandate of Section 21 which puts the government under an obligation to identify the posts in the establishment which can be reserved for persons with disability. 19. It is in the exercise of this power conferred, the Government Order No.62-SW of 2001 has been issued. Rightly or wrongly the government did not identify the post of Teacher to be reserved for persons suffering from the disability of “blindness or low vision”. In the absence of any challenge to such decision of the government culminating into the issuance of Government Order No.62-SW of 2001 we cannot of our own enter in the arena discussing its constitutional validity. That apart, the appellant is though claiming right of consideration against the post of Teacher under the category of persons suffering from the disability of “blindness or low vision” yet has not impleaded any selected candidate to whom, she would displace if she were to be considered and offered the appointment. As is apparent from reading of Rule 4 of the Rules of 2005, the reservation provided to the persons with disabilities is horizontal and therefore, in order to accommodate the appellant, the candidate last selected in the open merit has to go. As is apparent from reading of Rule 4 of the Rules of 2005, the reservation provided to the persons with disabilities is horizontal and therefore, in order to accommodate the appellant, the candidate last selected in the open merit has to go. Since no such person is impleaded as party respondent, as such, even if we were to agree with learned counsel for the appellant, we will not be in a position to grant any relief to the appellant. 20. The argument of learned counsel for the appellant that the Government Order of 2011 should be applied retrospectively even to the selections concluded prior to its issuance on the ground that there has been failure on the part of government to periodical review the list of posts identified and to upgrade the same taking into consideration the technological advancement, is an argument which cannot be accepted for the reason that no such case has been set up by the appellant in the writ petition. 21. In the instant case, the posts were identified for the first time in the year 2001 and as per the mandate of Section 21, there should have been a review in the year 2004 and, possibly, before the issuance of advertisement notification in question. This, however, has not happened, however, in the absence of complaint made by the petitioner and response thereto by the State, it would be difficult for us to go into that question while hearing appeal under clause 12 of Letter Patent. 22. The Hon'ble Division Bench has dealt with an identical issue in case titled “Anita Verma Vs. State of J&K’ reported in 2014(2) JKJ(HC) 275. 23. For the foregoing reasons as also the reasons given by the writ Court in the judgment impugned, we are not inclined to interfere with the judgment impugned. The appeal is, thus, bereft of any merit and same is, accordingly, dismissed.