DB ask CS take appropriate measures to ensure that the reservation laws are correctly followed

04/09/2021

Jammu, Sept 3: A Division Bench of Jammu & Kashmir High Court Comprising Justice Sanjeev Kumar and Justice Puneet Gupta shown anguish and disappointment with the manner in which the respondents-Union Territory and its predecessor, the State of J&K has been carrying out the reservation. None of the departments have maintained Reservation Register as per the details contained in Appendix-E, appended with the Reservation Rules of 2005 nor have they clearly and correctly maintained the reservation roster. Each time the vacancies become available and are to be referred to the selecting body, the reservation roster is usually started from one and in doing so, the candidates belonging to some of the reservation categories are deprived of their full quota. This also gives ample opportunity to corrupt officials in the government to manipulate diversion of quota to either benefit or deprive somebody of the benefit of reservation. This is an area, which needs attention of the Chief Secretary of the Union Territory. There ought to a periodical audit/check of each department to find out as to whether the provisions of Jammu & Kashmir Reservation Act, 2004 and the Rules framed there under have been carried out in letter and spirit or not and also to ensure that each department maintains roster register to keep the running account of the vacancies from year to year. Wherever roster points in a cadre are exhausted and the quota prescribed by the Rules for reserved category is achieved, subsequent vacancies be filled up from the categories to which the position belonged in the roster. It is only in case of non-availability of reserved candidates at the roster point that point can be carried forward as provided in Rule 5 of the Jammu & Kashmir Reservation Rules of 2005.
DB the Chief Secretary would take note of the observations we have made herein above and take appropriate measures to ensure that the reservation laws are correctly followed and those for whom the benefit of reservation is envisaged are not deprived of the benefit.
This significant judgment has been passed in a LPA filed by Archana Baloria and another challenged judgment and order dated 08.11.2017 passed by the Single Judge petition titled Aneesh Bhagat and others v. State of J&K and others, whereby the Writ Court has dismissed the writ petition.
The Background facts necessary for disposal of this appeal are that vide advertisement notice No.02 of 2014 dated 30.12. 2014 issued by respondent No.2, 235 posts of Junior Engineer (Civil) with following breakup were notified for selection.
DB observed that the appellants along with others, being eligible in terms of the advertisement notification, applied for the posts in question under SC category. They were shortlisted and interviewed by respondent No.2. On conclusion of the selection process, respondent No.2 published select list in newspaper "Daily Excelsior" in its issue dated 12.05.2016 and instead of selecting 23 candidates under SC category, selection was indicated to be made only of 19 candidates leaving four posts of SC category unfilled for want of some clarification from respondent No.1. Feeling aggrieved by keeping four posts under SC category unfilled by respondent No.2, three candidates under SC category, namely, Aneesh Bhagat, Nipun Kumar and Gulshan Kumar, who were next in the order of merit after one Jatinder Kumar Sargotra placed at serial No.1 in the wait list of SC category, filed SWP No.1218/2016 before a Single Bench of this Court. In the writ petition, the aforesaid three candidates sought quashing of the select list to the extent it placed them in the wait list instead of select list of SC category. They also prayed for a direction to respondent No.2 not to divert four posts under SC category to the category of ST by illegally operating the roster. It was also highlighted in the writ petition that four posts out of 23 posts notified under SC category had been kept unfilled by respondent No.2 pursuant to a representation received by it from one Fareed Ahmed Bajjad, father of a candidate under ST category, who brought it to the notice of respondent No.2 that roster had not been applied properly. It was his grievance that ST category having been provided 10% reservation should have got 24 posts and SC category with reservation of 8% should have been given 19 posts. Respondent Nos. 5 to 7 herein (ST candidates), who had staked their claim on four posts of SC category, that had been kept unfilled, had already filed SWP No.976/2016 seeking, inter alia, a writ of certiorari for quashing communication dated 05.04.2016 sent by respondent No.1 to respondent No.2, whereby and wherein requisition for selection against ST category was made of 20 vacancies instead of 24. They, thus, claimed 10% quota of ST out of 235 posts notified for selection. Both the writ petitions were contested by respondent No.2. The Writ Court considered both the writ petitions together and while agreeing with the stand of the official respondents that there had been error in calculating the posts earmarked for SC and ST categories, allowed SWP No.976/2016 filed by respondent Nos. 5 to 7 herein, however, SWP No.1218/2016 filed by Aneesh Bhagat and two others was dismissed vide order and judgment dated 8.11.2017. It is this order of the Writ Court, which is assailed before us.
DB observed that we are sure, and at least nothing was brought to our notice,that no such register is maintained by respondent No.1. Had respondent No.1 maintained the roster register strictly as per the details given in appendix-E, perhaps there would not have been any controversy. It is, though, difficult to accept the stand of respondent No.1 that in the earlier selection when 418 posts were filled up through Services Selection Board, the last roster point utilized was 81 and, therefore, for 235 vacancies which have been filled up in the instant selection, the roster point was started from S.No.82, yet in the absence of any specific and definite pleadings made by the appellants herein or the writ petitioners in SWP No.1218/2016, it is difficult for us to hold a roving enquiry. There is a bald assertion supported by no material made by the writ petitioners of SWP No.1218/2016 in paragraphs 6 and 7 that 235 vacancies which were notified by respondent No.2 vide notification No.02 of 2014 were all such vacancies that had fallen vacant due to retirement/resignation or promotion etcetera of the incumbents belonging to different categories. Neither the appellants nor the writ petitioners in SWP No.1218/2016 are definite in stating that as a matter of fact, 23 posts notified for selection under SC category were such posts that had fallen vacant due to resignation/retirement or promotion etc. Though, it was expected from respondent No.1 to come clear on the stand, yet they, even after filing more than two affidavits in these proceedings, could not come clear on the issues raised. We are, however, not in agreement with the stand of the official respondents that R.K. Sabharwal's judgment was not attracted in this case in view of the contrary provision contained in Rule 5 of the Reservation Rules of 2005. It is true that Rule 5(2) of the Reservation Rules of 2005 provides that roster shall be maintained as a running account from year to year and will commence at the commencement of a year at the point following the point which was utilized at the end of the previous year. But, if following the aforesaid process, the entire cadre is exhausted and all the posts are filled up by operation of roster then the object of reservation in the said cadre is achieved and there is no justification to operate the roster thereafter. The "running account" is to operate only till quota provided under the Reservation Rules of 2005 is reached and not thereafter.
The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post, the same has to be filled up from amongst the category to which the post belonged in the roster. This is exactly, what is held by the Supreme Court in R.K.Sabharwal 's case. In the aforesaid case also, the Supreme Court was confronted with the similar provision made in the instructions providing reservation. We see no reason as to why the law laid down in R.K.Sabharwal's case (supra) cannot be made applicable to the employees in the Union Territory of Jammu and Kashmir, more so, when we could not find anything contrary contained either in the Jammu & Kashmir Reservation Act, 2004 or the Rules framed thereunder. DB observed that we are, however, not inclined to interfere with the judgment of the Writ Court because of deficient and incomplete pleadings in the case and also for the reason that the candidates, who were writ petitioners in SWP No.1218/2016, have accepted the judgment and have chosen not to assail the same. The appellants herein, who were not the writ petitioners cannot be permitted to plead for the first time in appeal and piggyback on the pleadings in the writ petition filed by the other candidates.

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