Jammu & Kashmir High Court - Srinagar Bench
Syed Shaifta Arifeen Balkhi vs J&K Public Service Commission &Ors on 25 October, 2024
Bench: Rajnesh Oswal, Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on 24.09. 2024
Pronounced on 25.10.2024
WP(C) No. 981/2024
c/w
WP(C) No. 1172/2024
Syed Shaifta Arifeen Balkhi .....Appellant(s)/Petitioner(s)
Through: Mr. Jahangir Ganai, Sr. Advocate with
Ms. Mehnaz Rather, Advocate in WP(C) No.
981/2024.
Ms. Syed Saifta, Advocate (petitioner in person)
Mr. Showkat Ali Khan, Advocate in (WP(C)
No. 1172/2024)
Vs
J&K Public Service Commission &ors. ..... Respondent(s)
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Varut Gupta, Advocate and
Mr. Aswad Attar, Advocate
Mr. Vikram Sharma, Sr. Advocate with
Mr. Sachin Dev Singh, Advocate
Mr. Shah Aamir, Advocate
Ms. Shaila Shameem, Advocate vice
Mr. Furgan Sofi, GA
Mr. Aatir Javed Kawoosa, Advocate
Mr. Anirudh Sharma, Advocate
Coram: HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
PER OSWAL-J
1. In terms of Notification No. 38-PSC (DR-P) of 2023 dated 27.08.2023, 69
posts of Civil Judge (Junior Division) were advertised. The breakup of the
said posts is as under:
Sr. No. Category No. of Posts
c/w
5. Economically Weaker Section 6
6. Line of Actual Control/ 03
International Border
7. Pahari Speaking people (PSP 03
Grand Total 69 posts
(Including 03 posts
for physically
challenged persons
on Horizontal
reservation basis)
Further, 3 out of 69 vacancies were reserved for the persons having
benchmark disability as per Government order No. 59-JK (SWD) of 2021
dated 15.04.2021 (One Arm, Both Legs, One Leg, Blind and Low Vision).
The petitioner applied for the abovementioned post under the Open Merit
category and participated in the preliminary examination, main examination
and in the interview conducted by the respondent No. 3. On 03.04.2024, the
result of Jammu and Kashmir Civil Services (Judicial) Examination-2023
was notified. The petitioner obtained 541.50 marks, but she did not figure
in the list of selected candidates. Three candidates were selected under the
Open Merit/PHC including the respondent Nos. 4 & 5, who had obtained
438 and 406.50 marks respectively.
2. The petitioner through the medium of this petition has assailed the selection
of respondent Nos. 4 & 5 on the ground that the reservation provided to the
physically challenged persons was horizontal reservation and was to be
applied separately to each category under vertical reservation, but the
official respondents while selecting the respondent Nos. 4 & 5 have
converted the horizontal reservation into vertical reservation, meaning
c/w
thereby that they granted the benefit of reservation meant for physically
challenged persons to the candidates under open merit only and not to the
other categories of Scheduled Caste and Scheduled Tribe, RBA, EWS
LAC/IB Pahari Speaking People and Social Caste. In nutshell, the case
projected by the petitioner is that the horizontal reservation was to be
applied separately to the categories under vertical reservation and had the
respondent No. 3 done so, the respondent Nos. 4 & 5 would not have
figured in the list of selected candidates and the petitioner & one other
candidate would have replaced the respondent Nos. 4 & 5 in the list of
selected candidates.
3. The respondent No. 3-J&K Public Service Commission has filed the
response, stating therein that the selection of the private respondents has
been made strictly in accordance with the J&K Reservation Act, 2004 and
in terms of Explanation-B, appended to Rule-4 of the J&K Reservation
Rules, 2005. The respondent No. 3 has further stated that as per indent 3
posts out of 69 posts were reserved for physically challenged persons on
horizontal basis, therefore, the contention of the petitioner that one post was
to be reserved for PHC candidates against 35 Open Merit posts, is
misconceived. The private respondent Nos. 4 & 5 alongwith another
candidate were selected under the physically challenged persons quota on
the basis of their merit as per horizontal reservation Rules, who belong to
the open merit category. As per horizontal Reservation Rules, the candidate
having higher merit has to be placed in the category under vertical
reservation, to which he/she belongs to, which in the present case is open
merit. It is further stated that for filling up of the posts earmarked for
c/w
physically challenged persons, a merit list of all physically challenged
candidates was drawn, the candidates equal to the number of vacancies
were selected on merit and no recourse was taken to the category of the
candidates. The respondent No. 3 has objected to the writ petition by
submitting that the petitioner was aware of the fact that three posts reserved
for physically challenged persons, were to be filled on the basis of
horizontal reservation and despite knowing that fact, the petitioner
participated in the selection process without any demur and now when the
selection process has been concluded, the petitioner cannot be allowed to
challenge the same at this stage.
4. The respondent No. 4 has also objected to the writ petition on the similar
grounds as raised by the respondent No. 3.
5. The respondent No. 5 in his response has stated that the J&K Reservation
Rules as amended by S.O. No. 127 dated 20.04.2020 lays down the
procedure to provide horizontal reservation to the Ex-servicemen and
Physically Challenged Persons and in absence of challenge to the said
Rules, the present petition is not maintainable. It is further stated that a
perusal of the roster for direct recruitment as prescribed by S.O. 127 dated
20th April 2020 would show that in the roster points, only the categories for
which the vertical reservation has been provided are mentioned and the
roster points are applicable to only such categories. There is no vertical
reservation for Ex-serviceman and Physically Challenged Persons, in these
categories and candidates irrespective of their categories are selected as per
their own merit and thereafter they are adjusted in their respective
categories and that is why there are no separate points fixed for them in the
c/w
100 points roster maintained under the Rules. It is also urged by the
respondent No. 5 that the marks of the petitioner are 541.50 and one
candidate namely Durga Sandhya Shivam figuring at Sr. No. 63 is
possessed of a better merit than the petitioner, who has obtained 543 marks.
6. Mr. Jehangir Iqbal Ganie, learned Senior Counsel for the petitioner in
WP(C) No. 981/2024, has argued that 4% of the posts advertised, were
reserved for physically challenged candidates and as there were 35 posts
under the Open Merit category, therefore, only one post under the Open
Merit category was available for selection under physically challenged
persons quota and further the benefit of reservation to the candidates under
the physically challenged quota was also to be granted to other categories
on horizontal basis. Learned Senior Counsel has drawn the attention of this
Court to the Office Memorandum dated 15.01.2018 issued by the
Department of Personnel and Training, Ministry of Personnel, Public
Grievances & Pensions, Government of India to substantiate his submission
that point Nos. 1, 26, 51 and 76 of the 100 points‟ roster have been
earmarked for the persons with benchmark disabilities. He has placed
reliance upon the judgments of Hon‟ble Supreme Court of India in "Anil
Kumar Gupta vs. State of UP and others (1995) 5 SCC173", "Suraj
Yadav vs. State of UP,(2021) 4 SCC 542" and "Rajesh Kumar Daria vs.
Rajasthan Public Service Commission and others, 2007 (8) SCC 785".
7. Mr. Showkat Ali Khan, Advocate in WP(C) No. 1172/2024, has supported the
submissions made by the learned Senior Counsel in WP(C) No. 981/2024.
8. Per contra, Mr. Rahul Pant, learned Senior Counsel appearing for
respondent No. 5 has argued that in terms of Explanation-B to Rule 4 of
c/w
J&K Reservation Rules 2005, a candidate selected against the quota meant
for physically challenged persons has to be placed in his appropriate
category and the horizontal reservation cannot be compartmentalized
between the different categories under the vertical reservation. He has
further argued that Office Memorandum (OM) dated 15.01.2018 has only
been mentioned in the order dated 05.11.2021 issued by the Social Welfare
Department, UT of Jammu & Kashmir and the said order has not been
made applicable in the Union Territory of J&K. He has placed reliance
upon the judgment of Hon'ble Supreme Court of India in „Rekha Sharma
vs. Rajasthan High Court and Another‟, 2024 SCC Online SC 2109.
9. Mr. Vikram Sharma, Senior Advocate and Mr. Shah Ameer, Advocate have
reiterated the submissions made by Mr. Rahul Pant, learned senior
advocate.
10. Heard learned counsel for the parties and perused the record.
11. Before we proceed ahead to adjudicate the controversy involved in this
petition, it needs to be noted that horizontal reservation is of two types i.e.
(a) compartmentalised horizontal reservation and (b) overall horizontal
reservation. Both these reservations are permissible and in the ultimate
analysis, the rules only would determine as to which of these both species
of horizontal reservation would govern the selection process. In this context
it would be appropriate to take note of the various pronouncements of the
Hon‟ble Supreme Court of India.
12. In „Anil Kumar Gupta v. State of U.P.', (1995) 5 SCC 173, the Hon‟ble
Supreme court has explained as to how horizontal reservation is to be
c/w
applied in case of overall and compartmentalised horizontal reservation and
it has been held as under
"18. Now, coming to the correctness of the procedure prescribed
by the revised notification for filling up the seats, it was wrong to
direct the fifteen per cent special reservation seats to be filled up
first and then take up the OC (merit) quota (followed by filling of
OBC, SC and ST quotas). The proper and correct course is to
first fill up the OC quota (50%) on the basis of merit; then fill
up each of the social reservation quotas, i.e., SC, ST and BC;
the third step would be to find out how many candidates
belonging to special reservations have been selected on the
above basis. If the quota fixed for horizontal reservations is
already satisfied -- in case it is an overall horizontal
reservation -- no further question arises. But if it is not so
satisfied, the requisite number of special reservation
candidates shall have to be taken and adjusted/accommodated
against their respective social reservation categories by
deleting the corresponding number of candidates therefrom.
(If, however, it is a case of compartmentalised horizontal
reservation, then the process of verification and
adjustment/accommodation as stated above should be applied
separately to each of the vertical reservations. In such a case, the
reservation of fifteen per cent in favour of special categories,
overall, may be satisfied or may not be satisfied.) Because the
revised notification provided for a different method of filling the
seats, it has contributed partly to the unfortunate situation where
the entire special reservation quota has been allocated and
adjusted almost exclusively against the OC quota."
(emphasis added)
13. The same principle has been followed in "Rajesh Kumar Dardia vs.
Rajasthan Public Service Commission & Ors", (2007) 8 SCC 785.
14. In Rekha Sharma vs. the Rajasthan High Court, Jodhpur and Anr.
2024 SCC Online SC 2109, the Hon‟ble Supreme Court of India in
paragraphs 9 and 14 has held as under:
"9. It is quite well settled that the Horizontal Reservation is of two
types: -(i) Compartmentalized Horizontal Reservation, and (ii)
Overall Horizontal Reservation. The Compartmentalized
Horizontal Reservation is such wherein the proportionate
vacancies are reserved in each vertical reserved category.
However, in case of Overall Horizontal Reservation, the
Reservation is provided on the total post advertised i.e. such
reservation is not specific to each vertical category. As per the
advertisement dated 22.07.2021, the vacancies in case of women
candidates were classified/identified for each category i.e.
General, OBC, SC, ST, MBC whereas for the Persons with
benchmark disabilities, no such vacancies were mentioned in the
said categories. Further, in the three-tier process of the
c/w
Examination Scheme, the number of candidates to be admitted to
the Main Examination were fifteen times the total number of
vacancies (category wise) and the candidates had to qualify
themselves by securing the minimum percentage of marks fixed
for each of the categories in the Preliminary Examination.
Therefore, the Persons with benchmark disabilities falling under
the Overall Horizontal Reservation had to qualify for the Mains
Examination by securing minimum cut off marks fixed for the
concerned category in which he/she had applied.
14. The concept of Overall Reservations and Compartmentalised
Reservations is also aptly explained by this Court in Anil Kumar
Gupta and Others vs. State of U.P. and Others. It has been
observed therein that where the seats reserved for the Horizontal
Reservations are proportionately divided amongst the Vertical
(Social) Reservations and are not intertransferable, it would be a
case of Compartmentalised Reservations, whereas in the Overall
Reservation, while allocating the special reservation candidates to
their respective social reservation category, the Overall
Reservation in favour of special reservation categories has to be
honoured. Meaning thereby the special reservations cannot be
proportionately divided among the Vertical (Social) reservation
categories, and the candidates eligible for special reservation
categories have to be provided overall seats reserved for them,
either by adjusting them against any of the Social/Vertical
reservations or otherwise, and thus they are intertransferable."
(emphasis added)
15. The only issue which arises for consideration of this Court is as to whether
the reservation of 4% provided for physically challenged persons is a
compartmentalized horizontal reservation to the categories under the
vertical reservation or an overall horizontal reservation.
16. In order to address this issue, it is appropriate to extract relevant part of
Rule 4 of J&K Reservation Rules, 2005, as amended vide notification dated
20thApril, 2020, which is as under:
"4. Reservation in Direct Recruitment: Except as otherwise
provided in these rules, available vacancies shall be reserved for
direct recruitment in each service, class, category and grade
belonging to any of the below mentioned categories which shall,
as nearly as possible constitute the percentage of available
vacancies shown against each.
(a) Scheduled Caste 8%
(b) Scheduled Tribe 10%
(c) Socially and
Educationally
Backward Classes
(other than Scheduled
Caste and Scheduled
c/w
Tribe :
(i) Weaker and under
privileged Classes 4%
(Social Caste);
(ii) Residents of areas
adjoining line of 4%
Actual Control
(ALC)/International
Border (IB)
(iii) Residents of 10%
backward areas;
(iv) Pahari Speaking 4%
People
C(a) Economically Weaker 10%
Sections (EWS)
(d) Ex-servicemen 6%
(e) Physically Challenged 4% Horizontal
Reservation
Persons
Explanation(A) The horizontal reservation to the extent of 6%
of the available vacancies shall be provided to the Ex-servicemen
against such posts only where the maximum of pay scale does not
exceeds Rs. 10,500/-.
"Explanation (B): - For purposes of clause (d) and (e), the
horizontal reservation means the reservations which would cut
across the vertical reservation (what is called inter-locking
reservation) and the person selected against the physically
challenged quota will have to be placed in the appropriate
category viz. if he/she belongs to the scheduled caste category,
he/she will be placed in that quota by making the necessary
adjustment and similarly if he/she belongs to the open
competition category, he/she will be placed in that category."
17. Amended Rule 4 of J&K Reservation Rules 2005, provides for horizontal
reservation of 6% and 4% to the Ex-servicemen and Physically challenged
persons respectively. Explanation-B appended to Rule 4 explicitly provides
that horizontal reservation would cut across the vertical reservation and the
persons selected against the physically challenged quota would be placed in
the appropriate category. The architectural composition of the Explanation-
B appended to Rule 4 amplifies Rule 4, to the extent that the reservation
provided to the physically handicapped persons is an overall horizontal
reservation, when it states that if such a candidate belongs to Scheduled
Caste category, he/she will be placed in that category by making the
c/w
necessary adjustment and similarly, if he/she belongs to the Open Merit
category, he/she will be placed in that category. The vertical reservation
under Rule 4 (supra) has been provided for the candidates belonging to
Scheduled Caste, Scheduled Tribe, Socially and Educationally Backward
Classes i.e.Weaker and Under Privileged Classes, Residents of Area
adjoining ALC/International Border, Residents of Backward Areas, Pahari
Speaking Peoples and Economically Weaker Sections. Further the roster of
100 vacancies to be filled by direct recruitment provided by Rule 5(1) of
the Rules (supra) reveals that the points have been distributed amongst the
categories under the vertical reservation. There are no separate points for
physically challenged persons in this 100 points‟ roster. Office
Memorandum dated 15.01.2018 relied upon by the learned Senior Counsel
for the petitioner cannot come to the rescue of the petitioner, as the order
dated 05.11.2021 issued by Social Welfare Department, Government of UT
of Jammu & Kashmir, has only taken note of the same and thereafter the
guidelines have been issued for implementation of the Reservation Rules to
the persons with benchmark disabilities and as per the guidelines, the
persons selected under physically challenged persons quota have to be
placed in appropriate category, meaning thereby that if a candidate selected
under physically handicapped persons quota belongs to SC category, he/she
will be placed in that category and would occupy the SC roster point.
Likewise, if a person selected under physically challenged persons quota
belongs General Category, he/she will be placed in the said category and
would utilise a General Category roster point. Same would be the case
c/w
where a selected candidate under physically handicapped persons quota
belongs to other social caste or scheduled tribe category.
18. Thus, this court is of the considered view that the reservation of 4%
provided to the physically challenged persons under the Reservation Rules
of 2005, is an overall horizontal reservation and not compartmentalised
horizontal reservation. The judgment relied upon by the learned Senior
Counsel in case titled "Suraj Yadav vs. State of UP, (2021)" 4 SCC 542,
is not applicable in the present case, as the reservation in the said case was
compartmentalised horizontal reservation.
19. Ergo, the writ petition is dismissed being without any merit.
20. WP(C) No. 1172/2024 is also dismissed in the aforesaid terms.
(SANJAY DHAR) (RAJNESH OSWAL)
JUDGE JUDGE
Srinagar
25.10.2024
Rakesh P/S
Whether the order is speaking: Yes
Whether the order is reportable: Yes
