SWP No. 1290 of 2014, MP No. 1685 of 2014 c/w SWP No. 2777 of 2013, MP No. 4089 of 2013 etc. etc.. Case: Ashok Kumar and Ors. Vs State of J. and K. and Ors.. High Court of Jammu and Kashmir (India)

Case NumberSWP No. 1290 of 2014, MP No. 1685 of 2014 c/w SWP No. 2777 of 2013, MP No. 4089 of 2013 etc. etc.
CounselP. N. Raina, Sr. Adv., J. A. Hamal, S. K. Shukla, A. V. Gupta, Sr. Adv., with Aditya Gupta, S. S. Ahmad, Yasser Ejaz Tak, Sanjay Verma, S. K. Shukla, Rahul Pant, Advs. and For Respondent: Suni Sethi, Sr. Adv., Ankesh Chandel, Ms. Seema Shekhar, Sr. AAG., C. S. Azad, Mrs. Sindhu Sharma, ASGI, Ravi Dogra, F. A. Natnoo, Sudershan Sharma, Advs.
JudgesHasnain Massodi, J. And Janak Raj Kotwal , J.
IssueConstitution of India - Articles 16(4)(a), 370(1), 368(2); Jammu and Kashmir Reservation Act (14 of 2004) - Sections 6, 23
CitationAIR 2016 J&K 1
Judgement DateOctober 09, 2015
CourtHigh Court of Jammu and Kashmir (India)


Massodi, J.

  1. Controversy raised in writ petitions on hand stands crystallised by learned single Judge as under:

    "Whether in light of the Apex Court judgment in Indra Sawhney v. Union of India, 1992 Suppl (III) SCC 217: (AIR 1993 SC 477) which prohibits reservation in matters of promotion, provisions of the Jammu and Kashmir Reservation Act, 2004 and the rules framed thereunder can be enforced in the absence of the applicability of Art. 16 (4A) of the Constitution of India to the State of J.andK."

  2. Dispute, as bare look on the issue identified would reveal, relates to right of Reserved Category Government servants, to accelerated promotion provided under Section 6, J.andK. Reservation Act, 2004 read with Rules 9 and 34, J.andK. Reservation Rules, 2005 (for short "Reservation Act and Rules"). The facts fall in a narrow compass, though issue raised reflects an important question of law. It is pertinent to point out that all these petitions were considered by learned Writ Court. However, at the request of learned Single Judge (Hon'ble Mr Justice Dhiraj singh Thakur), the Hon'ble Chief Justice has been pleased to direct listing of batch of petitions before the Division Bench. Request to list writ petitions before larger Bench was made because of importance of question of law arising out of petitions. So much about backdrop against which petitions have been listed before this Bench. Now an overview of background facts.

  3. Petitioners in writ petitions - SWP Nos.1290/2014, 1006/2005, 1694/2006, 1497/2004, 1619/2006, 213/2001, 1816/2000, 2096/2014, 1583/2014, are members of J.andK. Engineering (Gazetted) Service Hydraulic Wing, J.andK. Law Officer (Subordinate) Service, J.andK. Engineering (Gazetted) Service, J.andK. Animal Husbandry (Gazetted) Service. They are aggrieved with different Government orders, whereby private respondents in writ petitions, though junior to them, have been promoted to next higher level ahead of them under Reservation Act and Rules, and thereby allowed to steal march over them. Petitioners' case is that private respondents have been promoted and their seniority fixed ahead of them on the ground that they belong to reserve category within meaning of J.andK. Reservation Act, 2004 (hereinafter "Reservation Act") and J.andK. Reservation Rules, 2005 (for short "Reservation Rules"). It is stated that official respondents while promoting private respondents, have pressed into service Section 6 of Reservation Act and Rules 9, 10 and 34 of Reservation Rules, whereunder reserved category Government employees are to appear at higher place in roster, and get promotion ahead of their General Category colleagues. The aforementioned provisions of Reservation Act and Reservation Rules, according to petitioners, would not be available to make promotions impugned in writ petitions, in wake of Supreme Court Judgement in Indra Sawhney v. Union of India, 1992 Suppl (III) SCC 210.

  4. Petitioners insist that in terms of authoritative judicial pronouncement in aforementioned reported judgment, reservation in case of promotion offends letter and spirit of Articles 14 and 16, Constitution of India and therefore, is not permissible under law. It is urged that Article 16(4A) added by 77th Constitutional Amendment Act, would not legitimise course followed by official respondents inasmuch as amendments made are not applicable to the State of Jammu and Kashmir. Petitioners' case is that Constitution (Application to Jammu and Kashmir) Order, 1954, made in exercise of powers conferred by Clause (1) of Article 370 of the Constitution, adds proviso to Clause (2) of Article 368 in its application to the State, providing that no amendment is to have effect in relation to State of Jammu and Kashmir unless applied by a Presidential Order. It is pleaded that as 77th Constitutional Amendment Act, 1995, adding Clause (4A) to Article 16, has not been extended to State of Jammu and Kashmir by Presidential order under Clause (1) of Article 370, clause (4A) of Article 16 would not be applicable to State.

  5. It is pleaded that even if Section 6, Reservation Act and Rules 9, 10 and 34, Reservation Rules, are assumed to have protection of Clause (4A), Article 16, Constitution of India, yet provision for reservation does not satisfy requirement of Clause (4A), Article 16, inasmuch as no background study has been made and satisfaction recorded regarding inadequate representation of reserved category in service under the State.

  6. Petitioners, on strength of averments made in petitions, seek appropriate writ, declaring Section 6 of Reservation Act and Rules 9 and 34 of Reservation Rules to be ultra vires Articles 16, Constitution of India and in conflict with law laid down by Supreme Court in Indra Sawhney's case (AIR 1993 SC 477) and therefore, liable to be quashed. Petitioners further seek quashment of Government order Nos. 151 PW(Hyd) of 2013 dated 3rd June 2013, 92-PW (Hyd) of 2014 dated 3rd March 2014, 95-PW(Hyd) of 2014 dated 4th March 2014; 379-PW (RandB) of 2006 dated 22nd September 2006; 228-PDD of 2002 dated 21st October 2003; 175-PDD of 2002 dated 12th June 2002; 228-PDD of 2001 dated 13th June 2001; 175-PDD of 2004 dated 24th June 2004; 7-PDD of 2002 dated 4th January 2002; 224-PDD of 2004 dated 30th July 2004; 178-PDD of 2001 dated 27th April 2001; 115-ASH of 2000 dated 29th December 2000; 265-HME of 2013 dated 16th April 2013; Corrigendum No.ME-GM-246/2011 dated 25th April 2013 to Government order No.380-HME of 2012 dated 25th May 2012; 619-HME of 2011 dated 25th November 2011; and 43-ASH of 2000 dated 12th June 2000, whereby private respondents in writ petitions have been promoted on stopgap/incharge as well as substantive basis as members of "Reserved Category", ahead of petitioners.

  7. Petitioners in SWP No.2777/2013 and no.1271/2014 support reservation in promotions. Petitioner in SWP No.2777/2013 is a member of J.andK. Medical Education (Gazetted) Service. Her case is that official respondents, ignoring Section 6, Reservation Act and Rules 9 and 34, Reservation Rules, have promoted private respondent as Assistant Professor on incharge basis. She seeks quashment of Government order No. 39-HME of 2013 dated 16th January, 2013, whereby private respondent has been so promoted on the ground that she belongs to "Reserved Category" (RBA) and therefore, had right to be considered for promotion ahead of private respondent. Petitioner maintains that Section 6, Reservation Act and Rules 9 and 34, Reservation Rules, are constitutionally valid and benefits available to members of Reserved Category in tune with Article 16, Constitution of India.

  8. Petitioners in SWP No. 1271/2014 are also members of J.andK. Medical Education (Gazetted) Service. They like petitioner in SWP No. 2777/2013 support reservation in promotion and seek quashment of proposal whereby private respondents are recommended for promotion/regularisation as Assistant Professors (Medicine) in Medical Education department.

  9. Respondents resist writ petition on the ground that Section 6, Reservation Act and Rules 9 and 34, Reservation Rules, are protected under Clause (4A), Article 16, Constitution of India, and therefore, Government orders impugned in writ petitions are valid and beyond challenge. It is pleaded that law laid down in Indra Sawhney's case (AIR 1993 SC 477) stands neutralised by 77th Constitutional Amendment Act, 1995, effective from 17th June, 1995. According to respondents, Clause (4A), Article 16, leaves room for reservation in matters of promotion with consequential seniority to any class or classes of posts in service under the State in favour of Scheduled Caste and Scheduled Tribes, which in the opinion of State are not adequately represented in the service under the State. Any provision for such reservation, it is insisted, is protected against challenge under Article 16 of the Constitution mandating equality in the matters of public employment. It is pointed out that challenge to Clause (4A) Article 16, Constitution of India, did not succeed and was rejected by Supreme Court in M. Nagraj and others v. Union of India and others (2006 (8) SCC 212): (AIR 2007 SC 71). It is denied that reservation in the matters of promotions contemplated under Section 6, Reservation Act and Rules 9 and 34, Reservation Rules, is excessive. Reservation, according to respondents, is restricted to 22% of total promotional vacancies and therefore, cannot be struck down on the ground of excessive reservation. It is next pleaded that as reservation in promotions is only up to Deputy Secretary Level, it is not to impact promotion to higher posts and dampen and discourage merit and efficiency. Respondents deny that there has been, no background study before providing for reservation in the matters of promotions under Reservation Act and Reservation Rules.

  10. Private respondents in all writ petitions toe the line followed by official respondents. The stand taken in opposition to writ petitions - SWP No. 2777/2013 and No. 1271/2014 is that positions meant for a particular reserved category have been de-reserved due to non-availability of officers from category, to which promotional slot was due and therefore, private respondent from general category considered for promotion on incharge basis. Respondents, however, agree that it is constitutionally permissible to follow reservations in the matters of promotions.

  11. We have gone through the pleadings and record available on file. We have heard learned counsel for parties at length.

  12. Mr P. N. Raina, learned Senior Advocate, advancing arguments in lead case, insists that State of Jammu and Kashmir under the Constitutional Scheme has status and powers, not available to any other State in the Union. Mr Raina argues that Jammu and Kashmir State while acceding to the Union of India did not merge with it but retained its distinct and special status. The State, it is pointed out, has surrendered some of powers...

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