State Of Jammu And Kashmir And ... vs Dr. Dil Bhadur Singh
2023 Latest Caselaw 991 j&K

            HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

                                                        LPA No.264/2019
                                                        CM No.8001/2019

                                                        Reserved on 03.05.2023
                                                        Pronounced on 17.05.2023

State of Jammu and Kashmir and others                        ....Petitioner(s)/Appellant(s)

                    Through :- Mr. KDS Kotwal, Dy. AG.

         Versus


Dr. Dil Bhadur Singh                                                   ....Respondent(s)

                   Through :-    Mr. Abhinav Sharma, Sr. Advocate with
                                 Mr. Abhirash Sharma, Advocate.


Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
          HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                   JUDGMENT

TASHI RABSTAN, J:-

1. Instant appeal has been preferred by the appellants-State of Jammu and

Kashmir (now Union Territory of Jammu and Kashmir) against the judgment

dated 17.05.2017 passed in SWP No.55/2015 titled Dr. Dil Bhadur Singh vs.

The State of Jammu and Kashmir and others, by learned Single Judge. The

appellants, on the strength of grounds taken in this appeal are seeking setting

aside of the judgment dated 17.05.2017.

2. In nutshell, the factual matrix of the case is:

The respondent had applied for admission to B.V.Sc & AH course under

Scheduled Caste Category as well as Actual Line of Control Category and he

was selected for the said course at Sher-e-Kashmir University of Agricultural

Sciences and Technology, Kashmir in the year 1986. Vide Government Order

No.43-ASH of 1994 dated 08.03.1994, the respondent was appointed as

Veterinary Assistant Surgeon under Open Merit Category which is apparent

from the communication of Secretary, J&K Public Service Commission, Jammu

addressed to the Commissioner/Secretary to Government, Agricultural

Production, Animal Husbandry Department. The Government of Jammu and

Kashmir introduced the Jammu and Kashmir Reservation Act, 2004 and also

framed the Jammu and Kashmir Reservation Rules, 2005. In light of above Act

and Rules, the Director, Animal Husbandry issued a Circular dated 06.02.2006

requesting controlling officers to furnish list of all the employees who belong to

the reserved categories along with their original certificates. The respondent

gave an option under the ALC Category, however, his claim for promotion was

rejected on the ground that he was appointed as Veterinary Assistant Surgeon

under the Scheduled Caste Category, therefore, the respondent questioned Order

No.151-ASH of 2014 dated 31.12.2014 before the Writ Court issued by

appellant No.4 herein. After considering the matter, the learned Single Judge

quashed the order impugned and directed the appellants herein to treat the

service/career progression of the respondent under ALC category in terms of

Section 19 of the Jammu and Kashmir Reservation Act, 2004 as per the

choice/option exercised by the respondent.

3. The precise ground of challenge thrown by the appellants in this appeal is

that the learned Single Judge has not considered the facts and circumstances of

the case and had passed the judgment impugned without having regard to

provisions of the Jammu and Kashmir Reservation Act, 2004, particularly,

Section 19 of the Act.

4. Mr. KDS Kotwal, learned Dy. AG appearing for the appellants submitted

that the learned Single Judge has erroneously recorded the incorrect fact to the

extent that respondent herein has entered into service by availing the benefit of

Scheduled Caste Category, rather he has been selected under the open merit

category but as he has already taken the benefit of reservation under SC

Category while exercising his option in terms of Section 19 of the Reservation

Act while getting admission in the B.V. Sc & AH Course, therefore, he is not

entitled to the benefit of reservation again under SC category or ALC category or

any other category in appointment or promotion in terms of Section 19 of the

Reservation Act during his service tenure. It is the submission of learned Dy. AG

that the learned Single Judge has misdirected itself with regard to the provision

of J&K Reservation Act, 2004, particularly Section 19 of the Act and has passed

the impugned order which is bad in the eye of law and prays that the same may

be set-aside.

5. On the other hand, Mr. Abhinav Sharma, learned senior counsel appearing

for the respondent has staunchly supported the judgment passed by the learned

Single Judge and submitted that no fault can be found with the judgment passed

by the learned Single Judge as the learned Single Judge has appreciated the facts

and circumstances of the case in its true perspective. Refuting the interpretation

of Section 19 of the Reservation Act given by Mr. KDS Kotwal, learned Dy.

AG; Mr. Abhinav Sharma, senior counsel submitted that the intent of Section 19

of the Reservation Act is that one can exercise his option for availing the benefit

of reservation for admission in professional course only in one category if he

possesses more than one category; and, he can also exercise his option only once

by either seeking appointment and in case his appointment is under open merit

category then he can take benefit of reservation in promotion.

6. Heard learned counsel for the parties, considered their respective

submissions and perused the impugned judgment.

7. For putting the matter to quietus, reproduction of Section 19 of the

Reservation Act, 2004 is imperative and same reads thus:

"19. Choice A candidate belonging to more than one category shall be entitled to claim the benefit of reservation in one category only, as per his choice, for appointment or promotion in Government service or admission in Professional Institutions, as the case may be."

8. A quick gander of Section 19 of the Reservation Act, 2004 would make it

pellucid that the interpretation given by learned senior counsel appearing for the

respondent is the right one. What more is discernible from the perusal of the

record as well as impugned order is that the respondent, at the time of entry into

the service, has been appointed as Veterinary Assistant Surgeon in the year 1994

as candidate under 'open merit category' and not under SC category as is

inadvertently mentioned in the impugned order.

9. Section 2(j) of the Reservation Act, 2004 delineates 'Professional

Institutions' means the institutions notified from time to time, by the

Government and shall initially include Government Medical College,

Srinagar/Jammu, Government Dental College, Srinagar, Government

Polytechnics, both male and female, Government College of Education and

Government College of Engineering and Technology, Jammu.

10. Apparently, the admission of respondent/writ petitioner to B.V. Sc. & AH

Course under Schedule Caste category is in the institution i.e. Sher-e-Kashmir

University of Agricultural Sciences & Technology, Srinagar which is not

covered under the definition of 'professional institutions' as provided in Section

2(j) of the Reservation Act, 2004.

11. Learned counsel for the appellant/writ respondents has not produced any

notification showing incorporation of the above institution in the category of

professional institutions as provided in the Section 2(j) of the Reservation Act,

2004.

12. In absence of any notification/communication shown by learned counsel

for the appellant conclusively showing the above institute covered in the

category of professional institutions as provided under Section 2(j) of the Act,

the contention of the learned counsel for the appellant that the respondent/writ

petitioner has already availed the benefit of category of his choice as provided

under Section 19 of the Reservation Act, 2004 is therefore not tenable and is

accordingly rejected.

13. Having given our thoughtful consideration to the case and also to the

relevant provisions of the Reservation Act and barring the minor aberration on

the part of the learned Single Judge to the extent aforesaid, we are of the opinion

that the admission of the respondent to B.V. Sc & AH in Sher-e-Kashmir

University of Agricultural Sciences & Technology, Srinagar under SC Category

is in the institution which is not provided in Section 2(j) of the Reservation Act,

2004.

14. In view of the preceding analysis, we hold that the order impugned does

not suffer from any illegality or perversity warranting interference of this court.

The appeal sans any merit and is dismissed as such.

15. No order as to costs.

                                  (Puneet Gupta)        )         (Tashi Rabstan)
Jammu:                                    Judge                           Judge
 17.05.2023
Raj Kumar


                    Whether the order is reportable?:       Yes