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
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
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
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?
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
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
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
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
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
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.
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.
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
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
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.
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.
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
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.
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
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.
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.
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-
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.
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
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
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
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
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
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
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
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
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
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
