Jammu & Kashmir High Court
Rohini Sharma; Age: 31 Years vs Union Territory Of Jammu And Kashmir on 19 February, 2024
Author: Tashi Rabstan
Bench: Tashi Rabstan, Puneet Gupta
Sr. No. 30
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 1065/2021
CM No. 4340/2021
CM No. 4341/2021
Rohini Sharma; age: 31 years ....Petitioner(s)/Appellant(s)
D/o Sh. Sansar Chand Sharma
R/o Ward No. 5, Chanara near Shiv Mandir,
Tehsil Mahanpur, District Kathua.
Through :- Mr. Rahul Pant, Sr. Advocate with
Mr. Aniruddh Sharma, Advocate
V/s
1. Union Territory of Jammu and Kashmir ....Respondent(s)
Through Financial Commissioner,
Finance Department, J&K,
Civil Secretariat, Jammu/Srinagar
2. Secretary
Planning Development and Monitoring Department,
Government of Jammu and Kashmir,
Civil Secretariat, Jammu/Srinagar.
3. Jammu and Kashmir Public Service Commission
Through its Secretary,
Resham Ghar Colony, Bakshi Nagar, Jammu/Solina,
Srinagar, Kashmir.
4. Director General,
Economic and Statistics,
Janipur, Jammu/Bemina (Srinagar), Kashmir
5. Pankaj Sharma
S/o Sh. Ganga Dutt Sharma
R/o Ward No. 15, Patel Nagar, Kathua.
6. Shakti Singh Manhas
S/o Sh. Hushiar Singh
R/o 9, Jungalwar, Tehsil & P/O Thathri,
District Doda.
Through :- Mr. D.C. Raina, Advocate General with
Mr. Ajay Bakshi, Assisting Counsel for R-1, 2 & 4
Mr. F.A. Natnoo, Advocate for R-3
Mr. Hamzah Hussaini, Advocate for R-6
None for R-5
CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
19.02.2024
Tashi Rabstan, J
1. As per note of the Registry dated 14.02.2024, notices issued to
respondent Nos. 5 and 6 through respondent No. 4 have been received back duly
served, however, despite service none has put in appearance on their behalf.
2. The case, as projected by the petitioner in this writ petition, is that
respondent No. 3-JKPSC vide Advertisement Notice dated 10.09.2013,
advertised the posts of Assistant Director (Statistics), in which 15 posts under
Open Merit category, 6 posts under RBA category, 2 posts under SC category, 3
posts under ST category, 1 post under LAC category and 1 post under OSC
category were advertised. The petitioner participated in the selection process
and the select list/merit list came to be issued on 04.03.2017, wherein the
petitioner figures at serial No. 8 in the RBA category with merit of 373.28.
3. It is contended that after the conclusion of selection process, the select
list was operated and 15 candidates were appointed under Open Merit category
and 6 candidates in the order of merit were appointed under the RBA category. It
is further contended that respondent No. 6 with merit of 406.61 marks figured at
serial No. 1 in the RBA category, whereas one candidate in the RBA category,
figuring in the first 6 candidates, did not offer himself for medical examination,
as such, was excluded from the selection process. Resultantly, the post was
offered to the candidate next in the order of merit, i.e., the candidate figuring in
the order of merit at serial No. 7. The further case of writ petitioner is that
against 2 candidates who did not join in the Open Merit category, a proposal was
mooted to appoint next two candidates in the order of merit from Open Merit
category including respondent No. 5 herein. It is contended that respondent No.
5, namely, Pankaj Sharma, having merit of 404.78 and the second candidate,
namely, Anjum Agha, having merit of 406.56, were offered the appointment
against the vacant posts in the Open Merit category. The further case of writ
petitioner is that respondent No.6, namely, Shakti Singh Manhas, who has been
selected and appointed under the RBA Category, was having merit of 406.61.
Thus, the grievance of writ petitioner is that since both Anjum Agha with merit
of 406.56 and Pankaj Sharma with merit of 404.78 were having lesser merit as
compared to respondent No. 6, as such respondent No.6, Shakti Singh Manhas,
was ought to have been considered and selected under the Open Merit Category,
and the post under the RBA Category ought to have been offered to the writ
petitioner herein as per her merit.
4. It is contended that the petitioner approached the High Court through
the medium of writ petition, which came to be transferred to the Central
Administrative Tribunal, Jammu Bench Jammu, registered as T.A. No.
7354/2020, in which the petitioner prayed that keeping in view the merit of
respondent No. 6, he was required to be treated in the Open Merit category and
the resultant post in the RBA Category ought to have been offered to the
petitioner herein. The further contention of writ petitioner is that the TA was
dismissed by the Central Administrative Tribunal vide its judgment dated
12.05.2021.
Feeling aggrieved, the petitioner has filed the present writ petition on
the grounds that the recommendation in favour of respondent No. 5, namely,
Pankaj Sharma in the Open Merit Category is in contravention of Section 4 of
the Jammu and Kashmir Reservation Act, 2004; Section 4 of the Act clearly
envisages that where a candidate belonging to the reserved category secures
more merit than the candidate belonging to the open merit category, in such
eventuality, if the reserved category candidate is able to make it the selection list
on the strength of his merit, then he is to be selected in the open merit category
and next candidate in order of merit in such reserved category is to be considered
for appointment in the reserved category. Therefore, the appointment of a
reserved category candidate in open merit on the strength of his merit does not
result in reduction in the number of posts reserved for that category.
5. It is further contended that applying the aforesaid position of law in the
present case, since respondent No. 6 was having more merit than respondent No.
5, as such respondent No. 6 was required to be treated as selected in the open
merit category instead of RBA category, thus making way for the next in the
order of merit in the RBA category, however, without appreciating the correct
position of law, respondent No. 3 recommended respondent No. 5 with lesser
merit than respondent No. 6 for appointment in the open merit category.
6. Admittedly, respondent No. 6 herein had secured 406.61 marks, thus,
he was eligible for short listing and consideration in the open merit category by
treating him to have been appointed in the open merit category and the resultant
vacancy was to be filled up by recommending a candidate belonging to the RBA
category in the order of merit. Admittedly, respondent No.5-Pankaj Sharma,
having a merit of 404.78 marks, and the second candidate, namely, Anjum Agha,
having a merit of 406.56 marks, were offered appointment against the vacant
posts in the Open Merit category. Both Anjum Agha and Pankaj Sharma were
lesser in merit as compared to respondent No. 6, who has been selected and
appointed in the RBA category with a merit of 406.61 marks, however, the
petitioner who is next in the order of merit in the RBA category has not been
recommended for appointment under RBA category and has been deprived for
selection and appointment under the said category.
7. The law is well settled by the Supreme Court in various
pronouncements, whereby it is reiterated that the reserved category candidates
securing higher marks than the last of the general category candidates are
entitled to get seat/post in unreserved categories. The Supreme Court also
observed in many judgments and held that even while applying horizontal
reservation, merit must be given precedence and if the candidates who belong to
reserved categories have secured higher marks or are more meritorious, they
must be considered against the seats meant for unreserved candidates.
8. Learned counsel for the appellant has produced the judgment dated
28.04.2022, passed by the Supreme Court in Civil Appeal No. 8717 of 2015
titled "Bharat Sanchar Nigam Limited & Anr. Vs. Sandeep Choudhary &
Ors.". Relevant para-9 is reproduced as under:-
9. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, it is noted that the
aforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr.
Dinesh Kumar, belonging to OBC category, were required to be
adjusted against the general category as admittedly they were more
meritorious than the last of the general category candidates
appointed and that their appointments could not have been
considered against the seats meant for reserved category. XXXXX
9. In view of the settled position of law, we deem it proper to allow the
writ petition. Accordingly, the writ petition is allowed and the judgment dated
12.05.2021, passed by the Central Administrative Tribunal Jammu, Bench
Jammu in T.A. No. 7354/2020 is set aside. Consequently, respondent No. 3 is
directed to recommend the appointment of petitioner for the post of Assistant
Director (Statistics) under RBA category. It is further directed that the writ
petitioner shall be entitled to all consequential benefits including seniority etc.
minus the monetary benefits. Let this exercise be completed within a period of
three months from today. However, the selection and appointment of respondent
No.5 under the Open Merit Category is left to be decided by the official
respondents. While, deciding his case, official respondents are expected to take a
sympathetic view in respect of respondent No. 5 as he has already been
appointed in the year 2017. Connected CMs, accordingly, stand disposed of.
(Puneet Gupta) ) (Tashi Rabstan)
Judge Judge
Jammu:
19.02.2024
Pawan Angotra
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes/No
