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1995 Supreme(J&K) 35
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
V.K. Gupta, J.
Shabir Ahmed & Anr. - Appellant
Versus
Public Service Commission, J&K & Anr. - Respondent
OWP No. 1139/1992
Decided On : 29 March, 1995
Advocate For Appellant: Sakal Bhushan
Advocate For Respondent: D.C. Raina
Advocate For Respondent: Amrish Kapoor
Reservation policies come into effect immediately upon their issuance and are applicable to all selections and appointments made thereafter.
Headnote:
RESERVATION - SCHEDULED TRIBES - GUJJAR COMMUNITY - APPLICABILITY OF RESERVATION POLICY - INTERPRETATION OF NOTIFICATIONS - RIGHT TO CONSIDERATION FOR APPOINTMENT - WRIT OF MANDAMUS ISSUED.
Fact of the Case:
The petitioners, belonging to the Gujjar community, sought the benefit of reservations in government employment based on an ordinance that declared Gujjars as a Scheduled Tribe. The petitioners were denied the benefit despite the reservation being provided for their community. The selection process for the post of Assistant Engineers, for which the petitioners had applied, had not been completed till March 1992, even though the advertisement notification was issued in August 1987.
Finding of the Court:
The court held that the petitioners were entitled to the benefit of 10% reservation in direct recruitment on the post of Assistant Engineers. The notifications providing for reservation came into force with immediate effect and were applicable to all selections and appointments made after their issuance. The court found that the respondents had violated the court's earlier order directing them to consider the petitioners' certificates evidencing their Scheduled Tribe status.
Issues: 1. Whether the petitioners were entitled to the benefit of reservation of 10% in direct recruitment on the post of Assistant Engineers? 2. Whether the notifications providing for reservation were applicable to the selection process initiated prior to their issuance?
Ratio Decidendi: 1. The court interpreted the relevant notifications and held that the reservation policy was applicable to all selections and appointments made after their issuance, regardless of the date of the advertisement notification. 2. The court held that the petitioners had an absolute right to consideration for appointment on the basis of the reservation policy and that the denial of this right vitiated the selection process and the appointments made.
Final Decision: The court allowed the petition and issued a writ of mandamus directing the respondents to consider the cases of the petitioners for appointment based on the 10% reservation in their community. The court directed that the needful be done within six months.
The petitioners both belong to Gujjar community of Jammu and Kashmir State. The Constitution (J & K) Scheduled Tribes Order, 1989 (1989 Order) inter-alia categorised a number of communities as Scheduled Tribes (ST for short) in 1991, vide the Constitution (Scheduled Tribes) Orders (Amendment) Ordinance, 1991, the aforesaid 1989 Order was amended by the President in exercise of his ordinance issuing powers vested in him under Article 123 of Constitution of India. By this amendment ordinance, 1989 Order, was amended to include the tribes of Gujjars and Bakarwals as scheduled tribes by inserting items No. 9 and . 10, after item No. 8 in the 1989 Order. The effect of the issuance of aforesaid Ordinance, therefore, was that Gujjars aad Bakarwals in J&K State came to "be recognised as Scheduled Tribes for the purpose of 1989 Order. In the meantime, the government had issued a notification vide SRO 8 of 1991 dated 3rd January 1991 whereby Scheduled Tribes (Reservations in Services) Rules 1990 (1990 Rules for short) were promulgated by the State Government. Rules 1,2 and 3 of these Rules, in so far as these are relevant for this petition are reproduced as under:-
"1. Short title and commencement.- (i) These rules may be called Scheduled Tribes (Reservation in Service) Rules, 1990. (ii) These rules shall come into force with immediate effect.
2. (b) Scheduled Tribes means the tribes or tribal communities or part of or groups within tribes or tribal communities specified in the Schedule to the Constitution (Jammu and Kashmir) Scheduled Tribes Order, 1989.
3. Reservation of appointment and posts. For the permanent residents of the State belonging to the Scheduled Tribes, 2 (Two)% vacancies-shall be reserved in respect of each service, class, category and grade in the services and posts under the State for all direct recruitment vacancies."
On 2.7.1991, by another notification issued vide SRO 205 of the same date, 1990 Rules were amended to the extent that in Rule-2 (b) the words "as amended from time to time" came to be inserted and instead of the reservation of 2%, as provided originally in Rule-3 of 1990 Rules, reservation to the extent of 10% was prescribed. The effect of the amendment brought about by the notification SRO 205 of 1991 dated 2.7.1991 was that, the definition of "Scheduled Tribes" contained in Ruie-2 (b) was extended to include Scheduled Tribes finding mention in 1989 Order, as amended from time to time. Likewise the reservation for Scheduled Tribes in Government services was increased from 2% to 10% vide Government Order No. 1141-GAD of 1991 dated 22.11.1991, in pursuance to notification SRO 8 dated 3.1.1991, read with SRO 205 dated 2.7.1991, roster points for Scheduled Tribes for the reserved vacancies for direct recruitment in government service together with reservation for promotions was prescribed as under:-
"For 100 Vacancies
Direct Recruitment--- 10%--- 6, 16, 26, 36, 46, 56, 66, 76, 86 and 96.
Promotion--- 5%--- 5, 25, 45, 65 and 85 ".
In the backdrop of aforesaid rule position, let as take a look at some of the relevant dates, with reference to the material facts. Vide notification No. 10-PSC of 1987 dated 21.8.1987, applications on prescribed forms were invited by the J&K. Public Service Commission for appointment o
