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Jammu & Kashmir High Court
Deepali Dutta vs The University Of Jammu Through Its ... on 3 May, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No.605/2024
Reserved on : 28.03.2024
Pronounced on : 03.05.2024
Deepali Dutta, Age 31 years
D/o Sh. Pardeep Kumar Dutta,
R/o H.No.14/B, Hari Singh Nagar, Rehari Colony,
Jammu. ...Petitioner(s)
Through:- Mr. Najeeb Sheikh, Advocate
V/s
1. The University of Jammu through its Registrar,
Baba Saheb Ambedkar Marg, Jammu
2. The Deputy Commissioner, Jammu
3. The Tehsildar, Akhnoor.
4. Mr. Abhinandan,
S/o Sh. Dwarka Dass Sharma,
R/o H.No.56, Ward No.5, Raja Bazar, Akhnoor ...Respondent(s)
Through:- Mr. Ajay Abrol, Advocate for R-1
Mr. Abhinav Sharma, Sr. Advocate
with Mr. B.R.Manhas, Advocate for
R-4
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. An Advertisement Notification bearing No.Adm/TW/C&R/23/311 dated 09.06.2023 was issued by the Registrar of Jammu University inviting applications, complete in all respects, for making recruitment 2 to various faculty positions. The Advertisement Notification included one post of Assistant Professor Sociology earmarked for reserved category of Economical Weaker Section (EWS). The petitioner, claiming to be a member of EWS category, also applied for the said post. Amongst other applicants for the post, respondent No.4 had also sought consideration under EWS category.
2. The process of selection, conducted by the University, culminated into issuance of the Provisional Select List by the Registrar vide his No. Adm/TW/C&R/24/1743 dated 29th January, 2024. Respondent No.4 was shown as provisionally selected for the post in question under EWS category. Feeling aggrieved, the petitioner has approached this Court through the medium of instant petition filed under Article 226 of the Constitution of India to throw challenge to the selection of respondent No.4. Selection of respondent No.4 is challenged, inter alia, on the following grounds:-
i) Because respondent No.4, who does not possess „EWS‟ category certificate issued under the Jammu & Kashmir Reservation Act, 2004 and the Rules framed thereunder, is ineligible to be considered for the post in question notified under and meant for EWS category. The petitioner, it is submitted, possesses an EWS category certificate issued by the Tehsildar Akhnoor as per Annexure-I appended to Office Memo No. No.36039/1/2019-Estt (Res) dated 31.01.2019 issued by WP(C) NO.605/2024 2 3 the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, New Delhi and, thus, cannot be made use of for availing the benefit of reservation for recruitment for the posts notified by the University of Jammu.
ii) Because respondent No.4 being a candidate belonging to the category of resident of an area adjoining to the international border (educationally backward class) is otherwise ineligible to obtain „EWS‟ category certificate under the provisions of Jammu & Kashmir Reservation Act and the Rules framed thereunder.
3. Having regard to the fact that pure questions of law are involved for determination and that there is no dispute on facts, learned counsel appearing for respondent No.4 has chosen not to file written objections. The University has filed its reply affidavit and has explained the manner in which it has carried out reservations in respect of recruitment to various faculty positions in the University.
4. Having heard learned counsel for the parties and perused the material on record, following questions arise for determination in this case:-
i) Whether the University of Jammu established under the Kashmir and Jammu Universities Act, 1969 ["1969 Act"] is obliged in the matter of recruitment to teaching faculty positions in the University, to provide WP(C) NO.605/2024 3 4 reservation in terms of J&K Reservation Act, 2004 and the Rules framed thereunder?
ii) Whether University of Jammu, a UGC recognized University and being bound by UGC Regulations (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education), Regulations 2010 [" 2010 Regulations"], shall, in the matter of recruitment to Teaching Faculties (teachers and other academic staff), be governed by the Rules and Norms of reservation prescribed by the Government of India or by the provision for reservations made by the State or Union Territory within whose territorial jurisdiction it is situated.
iii) Whether respondent No.4, who possesses a valid „EWS‟ category certificate issued by the competent authority under the reservation norms of the Government of India but is ineligible to obtain similar certificate under the J&K Reservation Act, 2004 and the Rules framed thereunder, was eligible and entitled to be considered for the post of Assistant Professor Sociology in the University of Jammu?
WP(C) NO.605/2024 4 5
Broad Concept of Reservations in Public Employment
5. The concept of reservation in matters relating to employment and appointment to any office under the State owes its origin to Article 16 of the Constitution of India. Clause (1) of Article 16 guarantees to the citizens of this Country equal opportunity of employment or appointment to any office under the State. The term "State" used in Article 16 would be the „State‟ as defined under Article 12 of the Constitution of India. Under Clause (2) of Article 16, discrimination in the matter of any employment or office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, is prohibited. However, Clause (4) of Article 16 makes an exception to the general provisions in respect of equality of opportunities contained in Clause (1) and (2) and provides that notwithstanding the provisions of Clause (1) and (2) of Article 16, the State shall be competent to make any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
6. Prior to authoritative pronouncement of Hon‟ble the Supreme Court in the land mark judgment rendered in the case of Indra Sawhney v. Union of India AIR 1993 SC 477, Clause (4) of Article 16 was seen as an exception to clause (1). As per the majority opinion in the 9- Judge Bench judgment in Indra Sawhney, it was held that Clause (4) of Article 16 was not an exception to Clause (1) of Article 16. It is an WP(C) NO.605/2024 5 6 instance of classification implicit in and permitted by Clause (1). The judgment endorsed the reading of Clause (1) and Clause (4) in harmony with each other.
7. The expression "backward class of citizens" used in Clause (4) would within its meaning encompass a social class. The term „backward class‟ used in Clause (4) of Article 16, it was held, was wider in its scope and connotation to the expression "socially and educationally backward class" used under Article 15(4). It was, thus, held and qualified that the expression "backward classes of citizens"
used n Clause (4) takes within its sweep Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes. It is, thus, trite that sanction to provide reservations in favour of Scheduled Castes and Scheduled Tribes and other backward classes in the matter of employment or appointment to any office under the State is traceable to Clause (4) of Article 14 of the Constitution of India.
8. For better appreciating the issue, relevant extract of Article 16 of the Constitution of India is set out below:-
"16. Equality of opportunity in matters of public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of WP(C) NO.605/2024 6 7 them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3).................................................... (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
9. As is seen from a reading of Clause (4), the reservation relating to recruitment to the services under the State is permitted to be made by the State by making appropriate provision for such reservation. The expression "any provision" used in Clause (4) does not necessarily mean a legislative enactment. The reservation can very well be provided by the State by issuing requisite administrative/executive instructions. So far as Government of India is concerned, acting under the enabling provisions of Clause (4) of Article 16 of the Constitution, it has been providing reservation by issuing office memos through Ministry of Personnel, Public Grievances and Pensions. In the erstwhile State of Jammu and Kashmir and after the Jammu & Kashmir Reorganization Act 2019, in the Union Territory of J&K, reservation in matters relating to employment or appointment to any office under the State is governed by the Jammu & Kashmir Reservation Act, 2004 and the Rules framed thereunder.
10. The reservation made by the Government of India through its executive instructions issued by the Ministry of Personnel, Public WP(C) NO.605/2024 7 8 Grievances and Pensions, Government of India through various office memos is in respect of recruitment in civil posts and services in the Government of India. Obviously and without there being any doubt the recruitment to teaching and academic positions in State University cannot, by any stretch of reasoning, be treated as a recruitment in civil posts and service in the Government of India.
11. The Jammu & Kashmir Reservation Act, 2004 and the Rules framed thereunder make provisions for reservation in favour of various Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes in respect of employment or appointment to any office under the UT of J&K. Section 3 of the J&K Reservation Act, 2004, as is seen from its plain reading, speaks of making reservation in favour of Scheduled Castes, Scheduled Tribes, Other socially and educationally backward classes and economically weaker section in the matter of appointment by direct recruitment against the vacancies notified by the Government from time to time.
12. "Government" is defined under Section 2(h) to mean Government of Union Territory of Jammu & Kashmir. It is, thus, beyond any shadow of doubt that for the purposes of employment under the UT of Jammu & Kashmir reservation in favour of various categories identified as Scheduled Castes, Scheduled Tribes, Other Backward Classes and Economically Weaker Section is governed by the Jammu & Kashmir Reservation Act and the Rules framed WP(C) NO.605/2024 8 9 thereunder. Similarly, reservation for appointment to the Civil Services under the Government of India is governed by the Rules and Norms of reservation promulgated by the Government of India by way of various executive instructions issued from time to time. Reservation in favour of EWS
13. As is evident from reading of Article 16, as it stood prior to the Constitutional (One Hundred and Third Amendment) Act, 2019 ["Amendment Act of 2019"], the State was empowered to make provisions for reservation for appointment and posts in favour of backward classes of citizens i.e. Scheduled Castes, Scheduled Tribes and Other Socially and Educationally Backward Classes. There was no concept of reservation in favour of persons other than the aforesaid classes of citizens. With a view to providing benefit of reservation to economically weaker sections of the society, who were not covered under the Scheme of reservation for Scheduled Castes, Scheduled Tribes and OBCs, the Parliament in 69th year of Republic of India enacted Constitutional Amendment Act, 2019, whereby Class-6 was added to Article 15 and 16 of the Constitution of India. Clause which was added to Article 16 reads thus:-
"(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing WP(C) NO.605/2024 9 10 reservation and subject to a maximum of ten percent of the posts in each category."
14. Explanation appended to Clause-6 added to Article 15 of the Constitution is relevant and is, thus, set out below:-
"Explanation.--For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.‟.
15. Acting under the amended provisions of Article 16(6), the Jammu & Kashmir Reservation Act was suitably amended and „Category of Economically Weaker Sections‟ was introduced. Clause (ga) of Section 2 of the 2004 Act defines Economically Weaker Sections as under:-
"(ga) "economically weaker sections" means such categories as may be notified by the Government from time to time, on the basis of family income and other indicators of economic disadvantage, other than the classes or categories defined in clauses (m), (n) and (o)"
16. Pertinently, classes and categories defined under Clauses (m), (n) and (o) of Section 2 are Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes. Amongst various categories classified as socially and educationally backward classes in terms of Clause (o) of Section 2, a person residing in the area adjoining actual line of control and international border figures in Clause 2(o)(ii) of the J&K Reservation Act, 2004. WP(C) NO.605/2024 10 11
17. With a view to giving effect to reservation provided in favour of economically weaker sections of citizens, J&K Reservation Rules, 2005, too, have been appropriately amended vide SRO 518 dated 2nd September, 2019.
18. Clause (ixa) inserted in Rule 2 defines „economically weaker sections‟ in the following manner:-
(ixa) "Economically Weaker Sections(EWSs)" means persons:-
(i) Who are not covered under the scheme of reservation for SCs, STs, and Socially and Educationally Backward Classes as defined under clause (m), clause (n) and clause (o) of section 2 of the Act‟
(ii) Whose family has gross annual income below Rs.8.00 lakh (Rupees eight lakh only) and;
(iii) Whose family does not possess other assets as specified in proviso to clause (viii) of rule 21."
19. Similarly, there has been an amendment made in Sub-rule (1) of Rule 5 of the Reservation Rules, 2005 to allocate roster points to the newly added reserved category of EWS. The reservation provided in favour of „EWS‟ is to the extent of 10% for direct recruitment only. Consequential amendments in some other rules including Rule 21 laying down procedure for issuance of certificate have also been carried. Clause (viii) of Rule 21 lays down parameters required to be met by a person claiming benefit under EWS category. WP(C) NO.605/2024 11 12
20. Application for issuance of income and assets certificate to claim the benefit of reservation meant for EWSs is required to be made in Form-VII-A, whereas certificate to be issued by the competent authority must be in Form XIV-A. A careful reading of entire scheme of reservation provided for EWS under the Jammu & Kashmir Reservation Act, 2004 and the Rules framed thereunder, would clearly indicate that benefit of reservation in the category of „EWS‟ is meant to be and provided for the benefit of those economically disadvantaged sections of the society other than Scheduled Castes, Scheduled Tribes and other Socially and Educationally Backward Classes.
21. Viewed thus, obviously, the respondent No.4 who is a resident of an area notified to be an area near international border and possesses a valid certificate issued by the competent authority in this regard is not eligible under the Reservation Act and the Rules framed thereunder to claim benefit of EWS category in the matter of employment or appointment under the Union Territory of Jammu & Kashmir.
22. It is because of this reason, the respondent No.4 has not been issued any certificate in the Form XIV-A by the competent authority under the provisions of Jammu & Kashmir Reservation Act, 2004 and the Rules framed thereunder. Obviously, the respondent No.4 is not entitled to the benefit of reservation provided for EWSs in the matter WP(C) NO.605/2024 12 13 of employment and appointment to any civil posts and service under the Government of Jammu and Kashmir
23. Notwithstanding that the respondent No.4 is not eligible to take the benefit of reservation for „EWS‟ in direct recruitment for civil posts and services under the Government of Jammu & Kashmir, he is entitled to the benefit of such reservation provided by the Government of India in respect of direct recruitment for civil posts and services under the Government of India. Clause 2 of the office memo No.36039/1/2019-Estt(Res) dated 31.01.2019 provides thus:
"The persons belonging to EWSs who are not covered under the scheme of reservation for SCs, STs and OBCs shall get 10% reservation in direct recruitment in civil services in Government of India."
In view of above, the respondent No.4 is entitled to claim the benefit of reservation for EWS category provided he is not covered by the scheme of reservation framed by the Government of India for the benefit of Scheduled Castes, Scheduled Tribes and Other Socially and Educationally Backward Classes.
24. The petitioner is admittedly not a beneficiary of the scheme of reservation framed by the Government of India for Scheduled Castes, Scheduled Tribes and Other backward Classed. The category of socially and educationally backward class of citizens living in notified area near international border is alien to the scheme of reservation framed by Government of India and it is because of this WP(C) NO.605/2024 13 14 reason, the persons, who have the benefit of reservation in the Union Territory of J&K being the persons belonging to an area adjoining international border, are per se not disentitled to take the benefit of reservation provided for EWS category in respect of direct recruitment to civil posts and services under Government of India. The respondent No.4 has taken the benefit of this position and obtained an „Income and Assets Certificate‟ to take the benefit of EWS category issued by the competent authority as per Annexure-1 appended with the office memo dated 31.01.2019.
Conclusions:
25. From the above discussion, following indisputable position emerges:-
i) That the respondent No.4 is not entitled to claim the benefit of reservation meant for EWS in respect of direct recruitment for civil posts and services under the Government of Jammu & Kashmir.
ii) The J&K Reservation Act, 2004 and the Rules framed thereunder hold a person belonging to SC, ST and OBC including a person belonging to a notified area adjoining international border disentitled to claim the benefit of EWS category. A fortiori such person shall not be entitled to the issuance of Income and Assets Certificate in Form XVI-A to be issued by the competent authority under J&K Reservation Act and the Rules framed thereunder.WP(C) NO.605/2024 14
15
iii) Notwithstanding his disentitlement to take the benefit of reservation made for EWS in direct recruitment for civil posts and services under the Government of Jammu and Kashmir, the respondent No.4 is entitled to have the Income and Assets Certificate issued as per Annexure-1 of Office Memo dated 31.01.2019 for taking the benefit of reservation meant for EWS in respect of direct recruitment for civil posts and services under the Government of India.
26. In the light of the conclusion drawn and the clear position emerging in the discussion, it is to be seen as to whether the respondent No.4, on the strength of EWS certificate obtained by him as per Annexure- I of Office Memo dated 31.01.2019, is entitled to claim the benefit of EWS and participate as an eligible candidate for the post of Assistant Professor Sociology earmarked to be filled up from EWS category. This will take us to another question as to whether the University of Jammu in the matter of recruitment to its faculty positions is governed by the provisions of reservation enacted by the Union Territory of J&K or the scheme of reservation laid down by the Government of India through its executive instructions from time to time.
Reservation in Universities
27. The subject "education" is referable to Entry 25 of List-III (Concurrent List) of Schedule VII of the Constitution of India and, therefore, both the Parliament as well as the State Legislature are WP(C) NO.605/2024 15 16 competent to legislate on the subject. Entry 25 is, however, subject to the provisions of Entries 63, 64, 6 and 66 of List-I (Union List). Entry 66, in particular, deals with Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. It is, thus, evident that, though, the State is legislatively competent to enact a law establishing a University for imparting higher education, yet the coordination and determination of standards in such institution are within the legislative competence of the Union.
28. University of Jammu and University of Kashmir have been established by the 1969 Act enacted by the State legislature, however, with a view to lay down minimum standards of education in these institutions, the Parliament deriving its legislative competence from Entry-66 has enacted The University Grants Commission Act, 1956 ["the UGC Act"]. The UGC Act recognizes three types of universities:
i) Central University established or incorporated by or under the Central Act;
ii) State University established or incorporated by or under the State Act; and
iii) A Deemed to be University to be declared as such, by Central Government on the advice of UGC.
WP(C) NO.605/2024 16 17
29. The Central Universities are established or incorporated under the Central Universities Act, 2009 and are institutions of higher learning fully aided and funded by the Government of India. Similarly, there are numerous universities established or incorporated by the different States under the Act of their legislatures. The universities are funded by the States where these are situated in and also receive funds from UGC.
30. From a plain reading of Kashmir and Jammu Universities Act, 1969, it clearly transpires that University of Jammu is an autonomous body governed and administered by University Council, the supreme authority of the University. Simply, because the University of Jammu is mainly funded by the Government of Union Territory of J&K and also receives funds from UGC is not in itself sufficient to take away or mutilate its autonomous character. The Universities of Jammu and Kashmir have autonomy in the matter of recruitment of its teaching and non-teaching staff. However, in the matter of recruitment of teaching staff of the University, University of Jammu is under a statutory obligation to follow the directions and guidelines laid down by the UGC under the UGC Act and the Rules and Regulations framed thereunder.
31. The mode and manner of selection of the teaching faculty, laying down requisite qualification for different level of teaching posts and the reservation in appointment and promotion are the matters which directly touch upon the maintenance of standards of education WP(C) NO.605/2024 17 18 imparted by the Universities. The UGC Act per se does not make any specific provision enjoining the universities to carry out the mandate of reservation provided by the Central Government or the State Government. However, with a view to maintaining the standards of education and laying down minimum qualifications for the teaching faculties of the universities, the University Grants Commission (UGC) has issued UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 ["2010 Regulations"].
32. The 2010 Regulations lay down the minimum qualifications and method of recruitment to the posts of Assistant Professors, Associate Professors and Professors in the Universities and Colleges. The 2010 Regulations also provide for constitution of Selection Committees and guidelines for selection procedure. The Selection Committees to be constituted for filling of various teaching positions in the Universities must have an academician representing SC/ST/OBC /Minority/Women/ Differently-abled categories, to be nominated by the Vice Chancellor, if any of the candidates representing these categories is the applicant provided none of the members of the Selection Committee belongs to that category. However, neither the UGC Act nor 2010 Regulations make any specific provision for providing reservation in the matter of recruitment to faculty positions in the Universities and Colleges.
WP(C) NO.605/2024 18 19
33. At this stage, it would be pertinent to take note of Section 20(1) of the UGC Act, which for facility of reference is reproduced hereunder:-
"20. (1) In the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government."
34. The Central Government, having noticed that the UGC had failed to ensure effective implementation of reservation policy of the Government of India in Central Universities and Grantee Institutions, issued Order No.F.6-30/2005 U-5 dated 6th December, 2005 in the exercise of its powers under Section 20(1) of the UGC Act and issued following directions to the UGC:-
"WHEREAS Article 46 of the Constitution states that, "That State shall promote, with special care, the education and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of social exploitation.
AND WHEREAS, the policy of the Central Government is that in the Central Universities and Institutions which are Deemed to be Universities receiving grants-in-aid from the public exchequer, the percentage of reservation in admissions and recruitments in teaching and non-teaching posts is to be 15% for Scheduled Castes and 7.5% for Scheduled Tribes.
WP(C) NO.605/2024 19 20
AND WHEREAS, the University Grants Commission, New Delhi hereinafter referred to as UGC, is a statutory autonomous organization responsible for implementation of policy of the Central Government in the matter of admissions as well as recruitment to the teaching and non- teaching posts in the Central Universities and Institutions which are Deemed to be Universities; And WHEREAS, the UGC has failed to ensure effective implementation of the reservation policy in the Central Universities and grantee Institutions which are deemed to be Universities. NOW, THEREFORE, In exercise of the powers vested under Section 20(1) of the University Grants Commission Act, 1956 the Government hereby directs the UGC to ensure effective implementation of the reservation policy in the Central Universities and those of Institutions Deemed to be Universities receiving aid from the public funds except in minority institutions under Article 30(1) of the Constitution."
35. Acting swiftly on the directions of the Central Government, the UGC issued comprehensive guidelines for strict implementation of the reservation policy of the Government in Universities, Deemed to be Universities, Colleges and other Grant-in-Aid Institutions and Centres in the year 2006. The UGC brought within purview of the directions of the Central Government all Universities, Central, State and Deemed to be Universities and the Colleges and other Grant-in- WP(C) NO.605/2024 20 21 Aid Research Institutions and Centers. Para 7 of the Policy Guidelines, which is relevant for our purposes is set out below:-
"7. Extent of Reservation:
a) In all the educational Institutions referred to in Clause 6(a) above, the extent of reservation applicable is 15% for Scheduled Castes and 7.5% for Scheduled Tribes.
b) Without prejudice to the provisions contained in Clause (a) above, all the educational Institutions referred to in Clause (a) above, and functioning within any State shall follow the percentage of reservation prescribed by the respective State Government.
c) No restriction on percentage is applicable while filling-up of back-log and short-fall vacancies of SC/ST."
36. As is apparent from the comprehensive UGC Guidelines issued in the year 2006, all the Universities were mandated to carry out reservation in favour of Scheduled Castes and Scheduled Tribes only. So far as State Universities are concerned, they were directed to follow percentage of reservation prescribed by the respective State Governments. It is, thus, evident that the mandate of UGC for the State Universities is not to follow reservation provided by their respective States but is restricted only to follow the percentage of reservation prescribed by the respective Government, that too, in respect of only Scheduled Castes and Scheduled Tribes. WP(C) NO.605/2024 21 22
37. The Act of 1969 whereunder the University of Jammu has been established does not specifically deal with reservation in appointments and promotions. However, the Statutes framed Section 41 of the Act of 1969, insofar as these deal with the direct recruitment of teachers in the University, speak about reservation for SC and ST candidates. Clause 4(i) of Chapter III of the University Statutes makes such provisions in the following manner:-
"4(i) "Whenever there is a vacancy in the post of a University Professor, or of a University Associate Professor, or of a University Assistant Professor, the post shall be advertised and applications invited before the vacancy is filled:
Provided that the Vice-Chancellor shall have power to place before the Section Committee the names of suitable persons for their consideration alongwith the applications received in response to the advertisement, but such persons shall not be amongst those in the service of the University or those who have retired from its service. Provided that reservation for Scheduled Caste/Scheduled Tribe candidate shall be granted in the case of recruitment of University Assistant Professors in accordance with the guidelines of the University Grants Commission subject to the condition that the reservation percentage shall remain the same as may be prescribed by the J&K State Government. However, the Scheduled Caste/Scheduled Tribe candidates belonging to parts of the Country other than the J&K State shall also be entitled to apply."
38. It is abundantly clear that the University Statute reproduced herein above embodies the true spirit of the guidelines issued by the UGC from time to time in the matter of reservation. It is also evident that WP(C) NO.605/2024 22 23 the reservation for Scheduled Castes and Scheduled Tribes in accordance with the guidelines of the UGC and subject to the condition that reservation percentage shall remain the same as may be prescribed by the State Government is available to the teaching faculty only to the level of Assistant Professors.
39. In the instant case, nothing has been brought to my notice either by the counsel appearing for the petitioner and private respondents or counsel appearing for the University that the University has amended its statute to provide for reservation to other categories like OBC and EWS. It seems that with a view to implementing the reservation policy of the Government of India as endorsed by the UGC, the Government of Jammu and Kashmir in the Higher Education Department issued Office Memo No.HE-Coll/Uni-/2019 dated 31.01.2019 calling upon the Universities and the Colleges imparting higher education in the State of Jammu & Kashmir to implement the UGC guidelines on reservation in letter and spirit. Specific instructions were issued to the Universities to initiate action so as to effect necessary amendments to their statutes for statutory support for reservation in admission/appointment to teaching and non- teaching posts and representation of SC/ST in their bodies like Syndicate/Executive Council/Academic Council and Selection Committees etc.
40. There is nothing brought to my notice by the University that with a view to implementing the UGC guidelines on reservation issued in WP(C) NO.605/2024 23 24 the year 2006, any steps were taken to amend the statute and to specifically provide for reservation. However, it seems that pursuant to Office Memo dated 31.01.2019 issued by the Department of Higher Education, the University of Jammu considered the matter in the University Council in its 87th Meeting held on 21st January, 2023.
41. As is apparent from a reading of Notification of Registrar, University of Jammu bearing No.Adm/TW/C&R/23/310 dated 08.06.2023, University Council adopted Resolution No.87.27 and resolved that the reservation policy adopted by the University of Jammu in respect of its Teaching Faculty as per the Government of India be referred to the Principal Secretary to Government, Higher Education Department concerning to teaching positions of the University of Jammu for the considered opinion of the later.
42. The Higher Education Department, Government of Jammu and Kashmir, instead of rendering specific opinion on the University‟s request, issued Circular No.04 dated 24.02.2023 reiterating the position in respect of reservation obtaining from UGC guidelines issued in the year 2006. The Department of Higher Education impressed upon all the State Universities/Higher Education Institutions/Autonomous Institutions functioning within the UT of J&K to follow the percentage of reservation as enunciated in the J&K Reservation Rules, 2005, as amended from time to time with latest amendment issued vide SO 127 of 2020 dated 24.04.2020. As is further seen from Notification dated 08.06.2023, University of WP(C) NO.605/2024 24 25 Jammu constituted a Committee for preparation of Roster as per S.O. 127 of 2020 to comply with the instructions of the Government issued vide Circular No.04 dated 24.02.2023. The University, however, has not so for come clear on the issue of reservation for various categories other than SCs and STs.
43. Making provision of reservation for various categories like SC/ST/OBC including „Economical Weaker Sections‟ of the Society is one thing and providing of percentage of reservation in respect of categories for which University has provided reservation is another thing. There should be no dispute with regard to the fact that Jammu University being an autonomous statutory institution is governed by the Act of 1969, the Statutes and the Regulations framed thereunder. Neither the Act of 1969 nor any statute or regulation framed thereunder confer upon the Government of Jammu & Kashmir any power to issue directions including directions for implementation of its reservation policy. The University through its statutes is free to take appropriate measures for ensuring the benefit of reservation for the marginalized sections of the society.
44. As per the Statute, University of Jammu envisages reservation only in favour of SC/ST and that too only at the level of Assistant Professors insofar as teaching faculty is concerned. As already explained herein above, the University Grants Commission constituted under the UGC Act is enjoined to ensure co-ordination and maintenance of standards in the higher education and with a WP(C) NO.605/2024 25 26 view to maintaining such standards in higher education it has a role to play in the matter of implementation of policy of reservation and the extent thereof, required to be provided by the Institutions of Higher Education. The UGC Guidelines issued in the year 2006 by the UGC, which are, in turn, based upon the directions of the Central Government issued in terms of Section 20(1) of the UGC Act, mandate the State Universities to provide reservation in favour of SC/ST only.
45. In so far as Central Universities are concerned, percentage of reservation prescribed is 15% for SCs and 7.5% for STs. So far as State Universities are concerned, they have been directed to follow percentage of reservation for these categories prescribed by the respective State Governments. Neither the Central Government has so far issued any direction to the UGC nor has the UGC come up with any guidelines providing for reservation in the State Universities in respect of teaching positions in categories other than SC and ST.
46. As is mandated by the UGC Guidelines, 2006 (Guideline No.5), all Universities, Deemed to be Universities/ Colleges and other grant-in- aid or research institutions or centers are under an obligation to adopt these guidelines by appropriate resolutions by their governing bodies for effective implementation of these guidelines. Similarly as per guideline No.16, the Universities have been mandated to initiate action so as to effect necessary amendments to their Acts/Statutes for statutory support for reservation in admission, appointment to WP(C) NO.605/2024 26 27 teaching and non-teaching posts and representation of SC/ST in their bodies like syndicate executive council, academic council and selection committees etc.
47. As this Court has noticed above, nothing was brought to my notice to show any amendment made to the statute framed under the Act of 1969. Probably the University of Jammu did not feel any necessity to effect such amendments as the statutes of the University, as discussed above, do provide for reservation in favour of SC and ST only as per the UGC Guidelines. The only mandate of UGC Guidelines, 2006 is to follow the percentage of reservation as per the reservation Rules issued by the respective State of J&K in the instant case.
48. From the above discussion and the material brought to my notice, I have come to the conclusion that neither the UGC has so far issued any specific guidelines/instructions/directions to the State Universities to necessarily provide reservation for EWS category of citizens. Nor has the University of Jammu amended its statutes or passed any resolution in the University Council to give effect to reservation in favour of Economical Weaker Sections of the society. Although, in the scheme of things discussed above, Government of UT of J&K can only play an advisory role and is not competent authority to issue directions to University of Jammu to act in a particular manner particularly in the matter of providing reservation in recruitment to the teaching faculty of the University, yet I could WP(C) NO.605/2024 27 28 not find out any such direction issued by the Government of UT of J&K to implement reservation in favour of EWS.
49. With a view to find out as to how the issue of EWS reservation has been dealt with by UGC, I logged onto official website of UGC. It is seen that the Central Government, immediately after notification of Constitution amendment of 2019, issued F.No.12-4/2019-UI dated 17.01.2019 to call upon UGC, AICTE, NCTE etc to implement reservation for EWSs for admission in Central Education institutions in tune with Office Memo dated 17.01.2019 issued by it. In compliance thereto, UGC issued F.No.87-2/2019 (SU-I) calling upon all Central and State Universities to give effect to EWSs reservation in admissions from the academic session 2019-2020. A communication of UGC F.1-8/2014(SCT) dated 19.10.2020 indicates that UGC did issue instructions to all Central/State/Deemed to be Universities to implement reservation policy in Universities. However, a careful reading of communication would show it was meant for maintenance and display of roster. State Universities were only obligated to follow percentage of reservation for SCs, STs and OBCs as prescribed by concerned State Governments. 50 As a matter of fact, there is no material available in public domain or otherwise, which would suggest that the University of Jammu has so far, by passing any resolution in the University Council, effected amendments in the Statutes making provision for reservation for EWS category. Neither any regulations made by UGC nor any WP(C) NO.605/2024 28 29 directions issued to UGC by Central Government in terms of S.20(1) of UGC Act making provision for reservation in favour of EWSs in direct recruitment to Teaching posts in State Universities was brought to my notice. Despite my best efforts, I could not locate any such provision in official website of UGC or the Ministry of Education.
51. Viewed, thus, I have arrived at a definite conclusion that the advertisement notification issued for filling up one post of Assistant Professor in Sociology under EWS category is not sustainable in law unless the University, through proper channel and by following due process of law, lays down and prescribes reservation for such category.
52. At the cost of repetition, it may be stated that reservation in favour of Economical Weaker Sections of the Society was recognized for the first time only on 12th January, 2019 when the Parliament passed and promulgated the Amendment Act of 2019 inserting Clause 6 into Article 15 and 16 of the Constitution of India. Under the enabling powers conferred upon the State under Clause 6 of Article 16, Government of India issued Office Memo dated 31.01.2019 to provide 10% reservation in direct recruitment in civil posts and services under the Government of India to the persons belonging to economically weaker sections provided they are not covered under the scheme of reservation for SC/ST and OBC. Similarly, Government of Jammu and Kashmir amended the J&K Reservation WP(C) NO.605/2024 29 30 Rules, 2005 to provide similar reservation in favour of EWSs. I could not lay my hands either on the Jammu University Statutes framed under Section 40 of the Act of 1969 or on any UGC Guidelines on reservation, if any, issued in or after the year 2019 mandating the Universities across the country to implement the policy of the Government of India providing reservation for „Economically Weaker Sections‟.
53. For the foregoing reasons and the discussion made above, the advertisement notification notifying post of Assistant Professor in Jammu University under EWS is not sustainable. The view, which I have taken, has necessitated modifying the relief prayed for in this petition. Since the University of Jammu has not so far provided reservation for EWS nor it is so mandated by the UGC guidelines or Central Government, as such, posts of Assistant Professors in the State Universities including University of Jammu cannot be filled up under EWS category. The preparation of Roster in accordance with S.O.127 dated 20.04.2020 by a Committee constituted by the Jammu University cannot be taken as a mandate for providing reservation in favour of EWSs.
54. The writ petition is, accordingly, disposed of by providing as under:-
i) As on date there is no reservation for EWSs in the University of Jammu, therefore, the advertisement notification notifying the posts of Assistant Professor Sociology under EWS WP(C) NO.605/2024 30 31 category is without jurisdiction and authority of the University.
ii) The advertisement notification to the extent aforesaid and consequent selection process conducted for the post of Assistant Professor Sociology under EWS category is held bad and is hereby quashed.
iii) The University Authorities are directed to issue fresh advertisement notification for making selection to the post in question in accordance with law.
iv) The University shall, if so desire, provide reservation for EWS category and categories other than SC/ST by effecting amendments to the Statutes in terms of Section 40 and 41 of the Act of 1969 subject of course to the Rules, Regulations and Guidelines, if any, issued by UGC.
(Sanjeev Kumar) Judge JAMMU.
03.05.2024 Vinod.
Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 03.05.2024 16:12 WP(C) NO.605/2024 31