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2019 Supreme(J&K) 497
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjeev Kumar, J.
Akash Razdan and Ors. - Appellants
Vs.
State of J&K and Ors. - Respondent
WP(C) 2572/2019 and CM 5171/2019
Decided On : 16-07-2019
For the Appellant :Ashish Sharma, Advocate
Headnote:
Jammu and Kashmir Kashmiri Migrants (Special Drive) Recruitment Rules, 2009 - J&K Reservation Rules, 2005 – Rule 21(iii) - J&K Reservation Act, 2004 – Section 5,5(1) and 2(o)(1) - Selection - De-reservation - Supernumerary posts - Petitioners, who claim to be registered migrants with Office of Relief & Rehabilitation Commissioner (Migrants), Jammu, have filed this petition to quash Order to the extent it operates retrospectively - Petitioners also challenge communication of Deputy Secretary to Government, Department of DMRRR issued vide whereby respondent has been requested to re-advertise unfilled RBA Category posts against which no application forms have been received so that candidates belonging to RBA Category can apply and get benefited under Hon'ble Prime Minister's Employment Package issued for facilitating return and rehabilitation of kashmiri migrants - Petitioners in this petition, are that respondent issued Advertisement Notification inviting applications for filling up supernumerary posts created under Hon'ble Prime Minister Package for Kashmiri Migrants for different district cadre and divisional cadre posts - Posts notified included posts of Junior Engineer (Mechanical), Junior Engineer (Electrical) and Statistical Assistant as well - Petitioners submit that as against 70 posts of Statistical Assistant, only 41 candidates were selected - Similarly, in the case of Junior Engineer (Mechanical), 15 were selected as against 27 posts and for Junior Engineer Electrical, 28 were selected against 50 posts advertised - All the candidates selected for the aforesaid posts were general category candidates – Held, in view of specific provisions of Section 5 of Act, plea of petitioners that RBA Category could not have been excluded from the purview of de-reservation and that impugned order which de-reserved unreserved category posts belonging to all other categories except RBA is discriminatory, cannot be accepted - Equally fallacious is plea of petitioners that Government Order should be held prospective in operation and should not be applied to selections made before issuance of aforesaid order - Selection was made but the posts earmarked for unreserved categories, i.e., SC, ST, OSC, ALC and RBA remained unfilled due to non-availability of candidates, in the light of provision of Section 5 of the Act - As already observed, neither Government nor the SAC could have acted contrary to mandate of law envisaged in Section 5 of the Act. Section 5, as noted above, clearly takes out RBA Category from the purview of de-reservation - Respondents have thus committed no illegality in not de-reserving the unfilled posts under the RBA Category nor any fault can be found with the impugned communication, whereby respondent-Board has been directed to re-notify the posts and invite fresh applications from the eligible RBA Category candidates - In view of the foregoing, court find no merit in this petition and same is accordingly dismissed along with connected CM – Petition dismissed.
JUDGMENT :
Sanjeev Kumar, J.
1. The petitioners, who claim to be registered migrants with the Office of Relief & Rehabilitation Commissioner (Migrants), Jammu, have filed this petition to quash Order No. 10-DMRRR of 2019, dated 06.03.2019 to the extent it operates retrospectively. The petitioners also challenge the communication of Deputy Secretary to Government, Department of DMRRR issued vide his No. DMRRR/MR/96/2019, dated 14.06.2019, whereby respondent No. 4 has been requested to re-advertise the unfilled RBA Category posts against which no application forms have been received so that the candidates belonging to RBA Category can apply and get benefited under the Hon'ble Prime Minister's Employment Package issued for facilitating the return and rehabilitation of kashmiri migrants.
2. Precisely stating the facts leading to the filing of this petition, as projected by the petitioners in this petition, are that respondent No. 4 issued Advertisement Notification No. SSBI/Sel/Secy/2017/12620-30, dated 28.11.2017 inviting applications for filling up supernumerary posts created under the Hon'ble Prime Minister Package for Kashmiri Migrants for different district cadre and divisional cadre posts. The posts notified included the posts of Junior Engineer (Mechanical), Junior Engineer (Electrical) and Statistical Assistant as well. As is apparent from advertisement notification, the total posts notified for selection were 1140. The petitioners claim that they being eligible applied online for the aforementioned posts. They participated in the selection under the general category but could not make it to the select list. The petitioners submit that as against 70 posts of Statistical Assistant, only 41 candidates were selected. Similarly, in the case of Junior Engineer (Mechanical), 15 were selected as against 27 posts and for Junior Engineer Electrical, 28 were selected against 50 posts advertised. All the candidates selected for the aforesaid posts were the general category candidates. The posts earmarked for reserved categories remained unfilled due to non-availability of the candidates. With a view to filling up the posts that remained unfilled due to non-availability of candidates belonging to reserved categories, the matter was taken to the State Administrative Council (SAC) and pursuant to the decision taken by the SAC, respondent No. 1 issued Government Order No. 10-DMRRR of 2019, dated 06.03.2019, whereby unfilled reserved category posts belonging to SC, ST, OSC and ALC referred to the recruiting agency under Prime Minister's Package for return and rehabilitation of kashmiri migrants created vide Government Order No. 58-DMRRR of 2017, dated 29.07.2017, were de-reserved and were treated as open merit posts to be filled up out of the merit list already prepared by the concerned recruiting agency under open merit category.
3. The grievance of petitioners is that though respondent No. 1, pursuant to the decision of SAC, rightly de-reserved unfilled reserved category posts under SC, ST, OSC and ALC Categories, yet there was apparently no reason or justification not to de-reserve the unfilled posts under RBA Category. The petitioners are primarily aggrieved of exclusion of unfilled reserved posts under RBA Category from de-reservation. The petitioners claim that had respondent No. 1 de-reserved unfilled vacancies belonging to RBA Category, the petitioners would have come in the selection zone and would have got benefited by the Prime Minister's package for employment of kashmiri migrants. The petitioners, as stated above, have also thrown challenge to the communication of Deputy Secretary to Government, Department of DMRRR dated 14.06.2019, whereby unfilled vacancies under RBA Category have been referred to the Service Selection Board for re-advertisement.
4. Learned counsel for the petitioners submits that during the year 2011 the Government, faced with similar situation where large number of vacancies under the reserved categories like
