Khurshid Ahmad Dar vs Ut Of Jk And Ors
2021 Latest Caselaw 1397 j&K/2

                                                             Serial No. 42
                                                           Regular cause list


      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                    WP(C) No. 2273/2021
                                                      CM No. 7335/2021



Khurshid Ahmad Dar

                                                             ..... Petitioner(s)
                              Through: -
  Mr. Jahangir Iqbal Ganai, Advocate with Ms. Humaira Shafi, Advocate

                                     V/s
UT of JK and Ors.
                                                           ..... Respondent(s)

Through: -

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Sanjay Dhar, Judge Order 09.11.2021

Per Magrey, J (Oral)

Petitioner claims to have competed for selection/appointment against

the vacancies of Civil Judge (Junior Division) Munsiff in the subordinate

judiciary, advertised in terms of advertisement notice No.

PSC/EXAM/2018/39 dated 30.05.2018, and on declaration of result is next in

merit after the selected/appointed candidates in the Open Merit Category.

The respondent Public Service Commission on completion of the

process of selection, declared the result of the selected candidates of Jammu

and Kashmir Civil Services (Judicial|) Competitive Examination, 2018, in

terms of notification No. PSC/Exam/64/2019 dated 22.08.2019 and while

notifying the merit position of the selected candidates, published the list of candidates summoned for medical examination in accordance with the

relevant rules, reserved two posts for PHC candidates, one each from OM and

RBA category. This is evident from the notification dated 22.08.2019.

Mr. Jahangir Iqbal Ganai, learned senior counsel has invited the

attention of this Court to the notification No. PSC/Exam/65/2019 dated

06.09.2019, in terms whereof one of the reserved posts in RBA category

stands filled up by selection of RBA candidate namely Karan Bijyal S/o Mool

Raj. Learned senior counsel submits that the Public Service Commission

seemingly have reserved two posts of Civil Judge (Junior Division) Munsiff,

during the pendency of SWP No. 652/2014 titled Karan Sharma Vs. State of

Jammu and Kashmir and Ors., wherein the petitioner namely Mohammad

Shazad, had claimed reservation for selection and appointment of Civil Judge

(Junior Division) Munsiff, in the subordinate judiciary under handicapped

category.

Learned senior counsel has placed on record the copy of the Judgment

of Coordinate Bench of this Court passed in SWP No. 652/2014 dated

03.09.2021, in terms whereof the writ petition stands dismissed and holding

that there is no reservation available to the candidate against the post.

Paragraphs 23 and 29 of the said Judgment being relevant are taken note of:-

" 23. In view of the foregoing analysis, we are of the opinion that the Act of 1998 having not been adopted by following the procedure laid down in the Constitution discussed above and there being no independent or separate rules made by the Governor in this behalf after consultation with PSC and with the High Court of the State, there was no right vested in the petitioner to claim the reservation under the Act of 1998. We are further of the considered opinion that even as on date, there is no provision or rules made by the Governor in consultation with the PSC and with the High Court in this behalf. The reserving of posts of Munsiff for different categories under the Reservation Act of 2004 and the rules framed thereunder as also under the Act of 1998 was/is and continues to be unconstitutional. While we find no case made out by the petitioner to seek the benefit of reservation he claims, we leave it to the competent authority to take a call in this matter and in case it is desired or intended to provide the benefit of reservation for appointments in the judicial service of the erstwhile State now Union Territory, the mandatory procedure laid down in Article 234 of Constitution of India may be followed. It is only after a specific provision or rules in that behalf are made by the Lt. Governor after consultation with the PSC and with the High Court of the UT of Jammu and Kashmir and Ladakh, it would be permissible to provide reservation for appointments in judicial service in question.

29. We, however, make it clear that his judgment will have only a prospective effect and shall not be construed to disturb the appointments of Munsiff so fare made. All pending and future appointments to the post of Civil Judge (Junior Division) Munsiff shall only be in accordance with the rules including rules of reservation framed in terms of Article 234 of Constitution of India."

Mr. Jahangir Iqbal Ganai, learned senior counsel submits that after

finding of the Division Bench in case supra, there is no reason for the

respondent Public Service Commission to withhold the selection/appointment

in favour of the petitioner against one of the reserved posts in OM category,

being next in merit. It is submitted that the petitioner moved a detailed

representation before the respondent-Public Service Commission, supplying

all the sequence of events and the material, forming the basis for Public

Service Commission to release the withheld selection/recommendation of the

petitioner. This representation is made on 15.09.2021, but no decision is

taken, which formed the ground for the petitioner to approach the Court.

We have heard learned senior counsel appearing for the petitioner,

perused the records available on file and considered the matter.

Prima facie, we are of the opinion that there is no scope for the

respondent-Public Service Commission to withhold the selection of the

petitioner under law, being next in the merit in Open Merit Category, agasint

the reserved post out of 42 advertised vacancies, therefore, we are inclined to

issue notice to the respondents and pass interim orders.

Notice returnable within two weeks.

Notice in CM as well returnable within the same period.

In the meantime, the respondent-Public Service Commission shall take

decision on the representation of the petitioner expeditiously and not later than

next date of hearing for selection against the post of Civil Judge (Junior

Division) Munsiff, in light of the Judgment of the Division Bench Supra and

also the observations made by this Court. The decision on the representation

of the petitioner shall be taken within the notice period and the outcome of the

decision shall be placed before this Court on the next date of hearing.

List on 25.11.2021.

                                  (Sanjay Dhar)         (Ali Mohammad Magrey)
                                         Judge                         Judge
           SRINAGAR
           09.11.2021
           "Mohammad Yasin Dar"




MOHAMMAD YASIN DAR
2021.11.10 16:32
I attest to the accuracy and
integrity of this document