Karan Sharma vs State Of Jammu And Kashmir And Ors
2021 Latest Caselaw 1023 j&K

                                                                   Sr. No. 43

         HIGH COURT OF JAMMU & KASHMIR & LADAKH
                         AT JAMMU
                                  SWP 652/2014
                                  IA 919/2014,
                                  1/2016, 1/2017, 4/2017
                                  CM No. 7830/2019


                                                Reserved on 21.08.2021.
                                                Pronounced on 03 .09.2021


Karan Sharma                                                  ..... Petitioner (s)

                               Through :- Mr.Abhinav Sharma Sr. Advocate
                                          with
                                          Ms. Parkhi Parihar Advocate

                         V/s

State of Jammu and Kashmir and ors                           .....Respondent(s)

                               Through :- Mr.Aseem Sawhney AAG for R-
                                          1&2
                                          Mr. A.V.Gupta Sr. Advocate with
                                          Mr. Adityya Gupta Advocate for
                                          R-3
                                          Mr. F.A.Natnoo AAG for R-6&7
                                          Mr. Vikas Magotra Advocate for
                                          R-8

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                JUDGMENT

Sanjeev Kumar-J:

1 The petitioner, a Law Graduate of the year 2011 from Jammu

University, claims to be a person with permanent disability (Locomotor

disability) to the extent of 50%. He is aggrieved by the Notification issued by

the Jammu and Kashmir Public Service Commission [PSC] bearing

No. PSC/Exam/2013/111 dated 24.12.2013 for conducting Jammu and

Kashmir Civil Service (Judicial) Competitive Examination, 2013 insofar as it

does not provide for any reservation for persons with disabilities in terms of 2 SWP 652/2014

Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation), Act, 1998 [ „the Act of 1998‟]. The petitioner,

therefore, claims that PSC should have considered him under open merit

category against one of the total six posts and that the said post ought to have

been earmarked for persons with disabilities under the Act of 1998.

2 This petition is vehemently contested by the respondents including

respondent No.8 who is a candidate last in merit in the General Category.

3 Before we advert to the rival contentions raised by learned counsel

for the parties, we find it necessary to give brief resume of the material facts as

are necessary for disposal of this petition.

That PSC vide Advertisement Notification dated 24.12.2013 (supra)

invited applications from the eligible candidates for participating in J&K Civil

Service (Judicial) Competitive Examination, 2013. The break up of vacancies

was given as under:

There was, however, no vacancy earmarked for persons with

disabilities. The petitioner, who intended to seek the benefit of reservation

provided under the Act of 1998, filed an application under Right to

Information Act and in response whereof, he was given information that 164

persons had been selected/appointed as Munsiff from 20.04.2000 (after coming

into force the Act of 1998) up to 14.11.2013 i.e immediately before the

issuance of impugned Notification. From the information supplied, the 3 SWP 652/2014

petitioner also found that, out of 164 vacancies of Munisff, filled up by the

PSC from time to time, not even a single vacancy had been notified or offered

to the persons with disabilities. The petitioner has given the detail of the posts

in different categories filled up from 20.04.2000 to 14.11.2013. Feeling

aggrieved by the manner in which the mandate of Act of 1998 and the Jammu

and Kashmir Reservation Act, 2004 [„Act of 2004‟] read with Jammu and

Kashmir Reservation Rules, 2005 [„Rules of 2005‟] had been carried by the

PSC and the High Court, the petitioner, as it appears, submitted application

form in response to the Advertisement Notification obviously seeking

consideration as a general category candidate, but decided to assail the

impugned Notification while the process of selection was underway.

4 The instant petition was filed by the petitioner on 07.03.2014 i.e

after slightly more than two months. The selection in terms of the impugned

Notification was completed by the PSC and the candidates selected were

appointed as Munsiff. However, one post in the reserved category was not

filled up and kept reserved in compliance to the interim order dated

10.03.2014.

5 One Rekha Sharma, who has staked her claim against the post

reserved vide interim order aforesaid, because of her merit, was subsequently

arrayed as party respondent No.8 by this Court vide order dated 24.08.2017.

6 Respondent No.3 i.e the High Court of J&K has taken a stand that

the Act of 1998 which was in force when the impugned Notification was

issued, was not, ipso facto, applicable to the appointments of Judicial Officers,

other than the District Judges, unless the Governor of the State frames rules in

this behalf after consultation with the PSC and the High Court in terms of

Section 110 of the Constitution of Jammu and Kashmir. It is the further stand 4 SWP 652/2014

of the High Court that the reservation policy of the State is administered

through the Department of Social Welfare and the said Department performed

its statutory duty as enjoined by Section 21 and Section 22 of the Act of 1998

only in the year 2014 when the Government Order No. 147-SW-2014 dated

17.06.2014 was issued. It is, thus, submitted that in terms of the said

Government Order, the Social Welfare Department has identified the vacancies

including the posts of Munsiff for the purpose of giving reservation to the

persons with disabilities in terms of Act of 1998. The Government Order

aforesaid is prospective in nature and would not apply to the impugned

Notification.

7 Similarly, the PSC in its reply affidavit has sought to meet the

challenge of the petitioner to the impugned Notification on the ground that the

posts of Munsiff/Civil Judge (Junior Division) are referred by the Department

of Law, Justice and Parliamentary Affairs and, therefore, the PSC makes the

selection as per the break up for each category provided by the said

Department. It is submitted that neither in the Recruitment Rules governing the

service, nor, in any Government Order issued in terms of the Act of 1998, the

posts of Civil Judge (Junior Division)/Munsiff had been identified for giving

reservation to the persons with disabilities when the notification in question

was issued. The PSC, being a Selecting Body, made the selection as per the

requisition received from the Law Department following scrupulously the

break up indicated therein. This, in a nutshell is the stand of the High Court as

well as the PSC.

8 Respondent Nos. 4 and 5 have filed their objections and have

taken a stand that in terms of Section 21 of the Act of 1998, the Government,

pursuant to Cabinet decision No. 37/2 dated 09.02.2001 issued Government 5 SWP 652/2014

order No.62-SW of 2001 dated 13.03.2001 identifying various posts in various

Departments including the Department of Law for providing reservation to the

persons with disabilities. The updation of the list of identified posts was

reviewed in the year 2013 and vide Government Order dated 01.04.2013, some

more posts were included in the list, but the post of Munisff was not identified

for the purpose of giving reservation to the persons with disabilities under the

Act of 1998. The Cabinet met yet again in the year 2014 and took a decision to

include, inter alia, the post of Munisff also in the list of identified posts and

issued Government Order No. 147-SW of 2014 dated 17.06.2014. It is, thus,

urged that the Government Order dated 17.06.2014 (supra), whereby the post

of Munisff was, for the first time, identified for giving reservation under the

Act of 1998, was prospective in operation and, therefore, the reservation for the

persons with disabilities was not applicable to the selection process initiated in

the year 2013. It is the further plea of respondent Nos. 4 and 5 that under

Section 46 of the Act of 1998, the Director Social Welfare is designated as

Director under the Act of 1998 and is enjoined to look into the complaints with

respect to the matters relating to deprivation of right of persons with

disabilities. The Department had come up with a list of disabilities in terms of

Section 21 of the Act of 1998 from time to time, however, no complaint was

received from the complainant or any other person with regard to non-inclusion

of post of Munisff in the notified list.

9 The private respondent No.8 subsequently impleaded has also

filed separate objections.

10 Heard learned counsel for the parties and perused the record.

11 Section 110 of the Constitution of Jammu and Kashmir, which is

in pari materia with Article 234 of Constitution of India, unequivocally 6 SWP 652/2014

provides that the appointments of persons other than the District Judges to the

judicial service of a State shall be made by the Governor in accordance with

rules framed by him in that behalf after consultation with the PSC and with the

High Court exercising jurisdiction in that State. It is pertinent to mention here

that Article 234 of Constitution of India was not applicable to the State of

Jammu and Kashmir and the same was made applicable to the UT of Jammu

and Kashmir with the promulgation of the Constitution (Application to Jammu

and Kashmir) Order, 2019 on 5th August, 2019 and declaration made by the

President under Article 370 (3) of the Constitution on 6th August, 2019. Section

110 of Constitution of Jammu and Kashmir and Article 234 of Constitution of

India, for facility of reference, are reproduced hereunder:

"110. Recruitment of persons other than district judges to the judicial service.-Appointments of persons other than district judges to the judicial service of the State shall be made by the *Governor in accordance with rules made by him in that behalf after consultation with the Public Service Commission and with the High Court".

"234. Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State".

12 Indisputably, the reservation for different categories in the

recruitment process is an integral part of the appointments to be made pursuant

to such process and, therefore, for making reservation in the matter of

appointments of the persons other than District Judges to the judicial service

of the State, it is necessary for the Governor of the State to make rules after 7 SWP 652/2014

consultation with the PSC and with the High Court. The consultation with the

High Court in the matter of appointments to the judicial service of the State

other than the District Judges is necessitated to guard the independence of

Judiciary. In exercise of powers conferred by Section 110 of the Constitution

of Jammu and Kashmir and in consultation with the PSC and the High Court,

the Governor has made the Jammu and Kashmir Civil Service (Judicial)

Recruitment Rules, 1967 [Rules of 1967] for regulating the recruitment to the

posts of Munsiff. The Rules of 1967 elaborately provide for method of

recruitment, eligibility, procedure for recruitment, appointment, probation,

termination and confirmation etc. The Rules of 1967 do not make any

provision for reservation in favour of reserved categories like SC, ST, RBA,

ALC or Persons with disabilities etc. Interestingly, the Rules of 1967 do not

even contain residuary rule which may provide that, with regard to the matters

for which no provision is made in the said Rules, the Rules applicable to the

Civil Services of the State would be applied. In the absence of any specific

provision in the Recruitment Rules made with regard to the reservation, or any

separate or special rules for reservation made by the Governor in consultation

with the PSC and the High Court, no reservation for appointments of persons

other than the District Judges to the judicial service of the State can be given

effect to.

13 Neither the PSC, nor the High Court could bring to our notice any

provision in the Rules of 1967 or any rule or regulation made by the Governor

in consultation with the PSC or the High Court which would legitimize the

grant of benefit of reservation envisaged under the Act of 2004 and the rules

framed thereunder read with the Act of 1998.

                                  8                   SWP 652/2014


14           From preamble of the Act of 2004, it clearly transpires that the

State Legislature has enacted the law to provide for reservation in appointment,

and admission in professional institutions, for the members of Scheduled

Castes, Scheduled Tribes and other socially and educationally backward

classes and for matters connected therewith or incidental thereto. The preamble

of the Act of 2004, for facility of reference, is reproduced hereunder:

"An Act to provide for reservation in appointment, and admission in Professional Institutions, for the members of Scheduled Casts, Scheduled Tribes and other socially and educationally backward classes and for matters connected therewith or incidental thereto".

15 The Government, in exercise of powers conferred by Section 23 of

the Reservation Act, 2004 and Section 22 of the Act of 1998 has, vide SRO

294 dated 21.10.2005 made the Jammu and Kashmir Reservation Rules, 2005.

As rightly contended on behalf of the High Court that neither the Act of 2004,

nor the Act of 1998 per se apply to reservations in appointments to the State

Judiciary, other than the District Judges, nor can it be argued that an Act of

Legislature or an Act of Parliament can supersede the Constitutional provisions

i.e Section 110 of the Constitution of Jammu and Kashmir/ Article 234 of

Constitution of India. Unless the mandate of Section 110 of Constitution of

Jammu and Kashmir/Article 234 of Constitution of India is followed and

appropriate rules in this regard are made, it is not permissible to make

reservations for appointments to judicial service relying upon the general law

applicable to civil services of UT.

16 It is true that it is not necessary to frame separate set of rules for

providing reservation in appointments of persons other than the District Judges

to the judicial service of the State. It would suffice, if the Governor of the 9 SWP 652/2014

State, after consultation with PSC and the High Court exercising jurisdiction

relating to such State, makes the rules adopting or applying the reservation

rules as they apply to the Civil Services of the State or with modification as is

deemed just and proper.

17 The Act of 1998, as it is, also does not apply to the judicial

service. The Act of 1998 talks of providing reservation for persons with

disabilities in the establishments of the Government and the term

"establishment" is defined in Section 2(f) of the Act in the following manner:

"Establishment means a corporation established by or under a Central or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government Company as defined in Section 17 of the Companies Act, 1956 and includes departments of a Government"

18 The judicial service of the State cannot, by any stretch of

reasoning, be brought within the purview of term "establishment", for, it is

neither a Corporation established by or under a Central or State Act or an

authority or a body owned or controlled or aided by the Government or a local

authority, nor it is a Government company as defined under Section 17 of the

Companies Act, 1956. In any case, judicial service of the State is not amongst

the Departments of the Government. That being the position, the Act of 1998

does not apply to the judicial service as it is and if the benefit of reservation

envisaged under the Act of 1998 is to be extended to the judicial service of the

State as well, it is incumbent to follow the process and procedure laid down in

Section 110 of Constitution of Jammu and Kashmir/Article 234 of Constitution

of India which provides for making of rules in this behalf by the Governor after 10 SWP 652/2014

consultation with PSC and the High Court having jurisdiction in relation to the

said State.

19 Learned counsel appearing for the parties are ad idem that the

procedure mandated by the Constitutional provision i.e., Section 110 of Jammu

and Kashmir/Article 234 of Constitution of India has not been followed. There

is no formal or informal order issued by the Governor in consultation with the

PSC and the High Court extending the benefit of reservation to the judicial

service in question. That being the indisputable position, the benefit of

reservation given in the appointments of Munsiff in the State from time to time

is de hors the Constitution. The petitioner is not entitled in law to claim the

benefit of Act of 1998, unless the same is adopted or applied to the State

Judicial Service by following the procedure laid down in the Constitution of

Jammu and Kashmir. Even by an Act of Legislature or for that matter, an Act

of Parliament, the benefit of reservation for appointments in judicial service of

the State other than District Judges cannot be granted de hors the

Constitutional provision of Section 110 of Constitution of Jammu and

Kashmir/Article 235 of Constitution of India.

20 It is trite that an Act of Legislature or an Act of Parliament ought

to be in conformity with and not in derogation from the Constitutional

provisions.

21 We are a democracy which gives Constitution primacy and

supremacy over all organs of State and all the three organs, Legislature,

Executive and the Judiciary are enjoined to work within their domains and

strictly in consonance and conformity with the Constitution. Any Act of

Legislature or Parliament which is de hors any Constitutional provision is bad

in the eye of law and liable to be struck down being ultra vires the 11 SWP 652/2014

Constitution. That being the settled legal position, we have absolutely no

doubt in our mind that even by an Act of Legislature or by an Act of

Parliament, reservations cannot be applied or extended to the appointments to

the judicial service. In case, it is desired to give the benefit of reservation for

appointments in the judicial service under the Reservation Act of 2004 and the

rules framed thereunder as also under the Act of 1998, it is incumbent for the

Governor to make rules in this behalf after consultation with the PSC and with

the High Court. Unless such procedure is followed and appropriate rules

making provision for reservation are made or reservation already in vogue and

applicable to the State Civil Services is adopted, any reservation granted to any

category for appointments in judicial service would be unconstitutional.

22 In the case of Jyotsna Mengi vs. State and ors, 2012 (3) JKJ 463

the Division Bench of this proceeded on the assumption that the reservation for

appointment in judicial service was provided in law and, thus, deliberated on

the provisions of Section 21 and 22 of the Act of 1998. The Division Bench

concluded that it was due to inaction on the part of the Government to identify

the posts for the purpose of giving benefit of Act of 1998, the candidates

belonging to the category of "persons with disabilities" had been deprived. The

said judgment is beside the point and does not specifically deal with the

manner in which the reservation for appointments in judicial service is required

to be made having regard to Article 234 of Constitution.

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 12 SWP 652/2014

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.

24 The view which we have taken is fortified by the judgment of

Supreme Court in the case of Nawal Kishore Mishra and ors vs. High Court

of Judicature at Allahabad and ors, (2015) 5 SCC 479 . In the said case, the

Hon‟ble Supreme Court has elaborately discussed the issue of reservation for

appointment to the judicial service of the State. The Hon‟ble Supreme Court

relying upon its earlier Constitution Bench Judgment in the case of State of

Bihar and Another v. Bal Mukund Sah & Others, (2000) 4 SCC 640 in

paragraph 19 and 20, held thus:

"19. Since the Constitution Bench of this Court has dealt with the larger question as to how the constitutional mandate as provided under Article 16(1) and (4) qua Article 335 on the one hand and 13 SWP 652/2014

Articles 233 to 235 on the other is to be reconciled made it clear that while the scheme of Article 16(1) read with Article 16(4) may be treated to be forming part of the basic feature of the Constitution, by Articles 233 to 235 of the Constitution, full control of the judiciary having been entrusted with the High Court is also equally a basic feature of the Constitution and both can be reconciled only by way of a consultation of the Governor with the High Court and by making appropriate rules to provide for a scheme of reservation and unless such a provision is made by following the constitutional scheme under Articles 233 to 235, it would be well-neigh possible to thrust upon the rule of reservation by the State Legislature even by way of a legislation. Inasmuch as the Constitution Bench has dealt with this vital issue in an elaborate manner and laid down the principles relating to application of reservation in the matter of appointments to be made to the post of direct recruit District Judges, in fitness of things, it will be profitable for us to note the salient principles laid down therein as that would throw much light for us to resolve the question raised in these appeals".

20.Such principles can be culled out and stated as under:

20.1.Neither Article 233 nor Article 234 contain any provision of being subject to any enactment by the appropriate legislature as is provided in certain other Articles of the Constitution.

20.2 Articles 233 and 234 of the Constitution are not subject to the provisions of law made by the Parliament or the Legislature as no such provision is found in Articles 233 and 234 of the Constitution.

20.3. Articles 233 to 235 provide a complete code for regulating recruitment and appointment to the District Judiciary and the subordinate judiciary and thereby it gets insulated from interference of any other outside agency.

14 SWP 652/2014

20.4 The general sweep of Article 309 has to be read subject to the complete code regarding appointment of District Judges and Judges in the subordinate judiciary governed by Articles 233 and

234.

20.5. Even under Article 245, it is specifically provided that the same would be subject to other provisions of the Constitution which would include Articles 233 and 234.

20.6. As the twin Articles cover entire field regarding recruitment and appointment of District Judges and Judges in the subordinate judiciary at base level pro tanto the otherwise paramount legislative power of State Legislature to operate in this field clearly gets excluded by the constitutional scheme itself.

20.7. Both Articles 309 and 245 will have to be read subject to Articles 233 and 234 as provided in the former Articles themselves.

20.8. Though under Article 16 (4), the state is enabled to provide for reservations in services, insofar as judicial service is concerned such reservation can be made by the government in exercise of its rule making power only after consultation with the High Court.

20.9. The enactment of any statutory provision de hors consultation with the High Court for regulating the recruitment to the District Judiciary and the subordinate judiciary will clearly fly in the face of complete scheme of recruitment and appointment to the subordinate judiciary and the exclusive field earmarked in connection with such appointments under Articles 233; and

20.10. Realising the need for a scheme of reservation in appropriate cases by resorting to the enabling provision under Article 16(4), the High Court can be consulted by the Government for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is not 15 SWP 652/2014

done, the legislature cannot by an indirect method completely bypass the High Court and by exercising its legislative power circumvent and cut across the very scheme of recruitment and appointment to the District Judiciary as envisaged by the makers of the Constitution.

20.11.Any such attempt by the legislature would be forbidden by the constitutional scheme as that was found on the concept relating to separation of powers between the legislature, the executive and the judiciary as well as the fundamental concept of an independent judiciary as both the concepts having been elevated to the level of basic structure of the Constitution and are the very heart of the Constitution scheme.

20.12.Having regard to Article 16(4), the High Court being a high constitutional functionary would also be alive to its social obligations and the constitutional guideline for having a scheme of reservation to ameliorate the lot of deprived reserved categories like SC, ST and OBC. But for that the Governor in consultation with High Court should make appropriate rules and provide for a scheme of reservation for appointments at grass root level and even at the highest level of District Judiciary. If that was not done, the State Legislature cannot upset the entire apple cart and by bypassing the constitutional mandate of Articles 233 and 234 lay down a statutory scheme of reservation governing all state services including judiciary.

20.13.Even in that respect it is obvious that maintenance of efficiency of judicial administration is entirely within the control and jurisdiction of High Court as laid down by Article 235.

20.14.If the proper course of formulating the scheme in the form of a rule by the High Court to provide for reservation is not made, that would deprive of the right to suggest the consultative process by way of its own expertise that for maintenance of the efficiency of administration of judicial service controlled by it 50% 16 SWP 652/2014

reservation may not be required and/or and even lesser reservation may be required or even may not be required at all.

20.15.To give Article 335 its full play for enacting a scheme of reservation, the High Court entrusted with the full control of the subordinate judiciary as per Article 235 of the Constitution has got to be consulted and cannot be treated to be a stranger to the said service by trying to apply the whole of the Reservation Act".

(underlined by us)

25 Constitution Bench Judgment in Bal Mukund Sah (supra) and

subsequent judgment of Hon‟ble Supreme Court in Nawal Kishore Mishra

(supra) leave no manner of doubt that reservation in appointments to judicial

service of the State or Union Territory as the case may be, is not permissible

unless a provision in this regard is made in consonance with the Constitutional

scheme envisages under the trilogy of Article 233, 234 and 235 of Constitution

of India. In the instant case, we are concerned with appointments to the judicial

service other than the District Judge and, therefore, unless the Governor of

State frames rules in this behalf after consultation with JK PSC and with the

High Court, there could be no reservation for any reserved category including

persons with disability. Mind it the consultation with the High Court is not an

idle formality. It ought to be meaningful and effective. High Court alone is the

best judge of the requirements of judicial service.

26 Mr. Abhinav learned senior counsel vehemently argued that since

the respondents have been following the Reservation Act,2004 and the rules

framed thereunder to give effect to the reservation to various reserved

categories, they cannot be permitted to escape from their statutory and

constitutional obligation to give effect to the reservation meant for persons

with disabilities under the Act of 1998. Placing reliance upon the judgments of 17 SWP 652/2014

the Supreme Court in the case of Union of India vs. National Federation of

Blind and others, (2013) 10 SCC 772, Mr. Sharma submitted that the mandate

of identifying the posts in the establishment of Government under Section 21

of Act of 1998 is not left to the discretion of the Government. The benefit of

reservation envisaged under the Act of 1998 is not dependent upon the

discretion of the Government to identify or not to identify the posts for which

the reservation in favour of persons with disabilities is to be provided. He

submitted that the Act of 1998 casts a mandatory obligation on the State to give

effect to the provisions of the said Act and identification of posts under Section

21 of the Act of 1998 is a mandatory duty cast on the Government to perform.

In case of failure to identify the posts and to have periodical review of the list

of identified posts, the Constitutional Courts are well within their powers to

direct the Government to identify the posts or to hold periodical review

retrospectively from the date of promulgation of the Act of 1998.

27 There is no quarrel with the proposition propounded by Hon‟ble

the Supreme Court and canvassed by Mr. Sharma, learned senior counsel for

the petitioner. However, in view of our conclusion based on Constitutional

scheme which we have discussed hereinabove, we do not wish to delve into

this aspect any further.

28 Viewed thus, the claim put forth by the petitioner is not well

merited and entails dismissal of the writ petition. It is so ordered. The

respondents shall be free to fill up the reserved vacancy in accordance with

law.

29 We, however, make it clear that this judgment will have only a

prospective effect and shall not be construed to disturb the appointments of

Munsiff so far made. All pending and future appointments to the post of Civil 18 SWP 652/2014

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.

30 Before we part, we deem it necessary to observe that providing

reservations in favour of weaker sections of the Society including the persons

with disabilities is a constitutional mandate and each Department and

Establishment of the Government including the judicial service of the State

need to make adequate provisions to give effect to this social welfare measure

envisaged by the framers of the Constitution to bring have-nots and the weaker

sections of the Society on par with those better placed and privileged. We hope

and trust that the attention of the competent authorities would focus on the

issue which we have discussed and noticed above and appropriate measures in

consonance with Constitutional scheme shall be taken to make requisite

provision or rules with regard to reservation for appointments in judicial

service on par with those provided for the persons holding the civil posts in

connection with the affairs of the UT of Jammu and Kashmir. For the present,

we see no legal sanction to the reservations, if any, provided for the

appointments to the post of Civil Judge (Junior Division )/Munsiff in the twin

Union Territories of J&K and Ladakh.

Disposed of in the above terms.

                      (PUNEET GUPTA)               (SANJEEV KUMAR)
                          JUDGE                          JUDGE
Jammu
03 . 09.2021
Sanjeev
            Whether the order is speaking:           Yes

               Whether the order is reportable:      Yes