HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 532 OF 2010 AND SWP No. 206 OF 2010 AND SWP No. 203 OF 2010 1)Javed Iqbal 2)Manzoor Hussain 3)Ahjaz Ahmed Petitioners State & Ors. Respondent ! M/s A.V.Gupta, Sr.Advocate with K.M.Bhatti, Advocate. Mr.M.I.Sherkhan, Advocate. ^M/s Sunil Sethi, Sr. Advocate with Veenu Gupta, Advocate and Gagan Basotra,AAG. Honble Mr. Justice J.P.Singh, Judge. Date: 29.12.2010 :J U D G M E N T :
Government of Jammu and Kashmir in the Home
Department accorded sanction to the placement of
Eleven Inspectors of General Executive Cadre as I/C
Deputy Superintendent of Police, in their own pay and
grade with Charge Allowance, as admissible under
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rules, for a period of six months or till such time, the
posts were filled up on regular basis on the
recommendations of DPC/PSC whichever was earlier
vide Government Order No. Home-123(P) of 2010 dated
04.02.2010.
Javed Iqbal Naaz, Inspector of Police, figured at
Serial No.11 of the List of the Officers placed as I/C
Deputy Superintendent of Police indicating him to have
been adjusted against the post reserved for persons
belonging to the Reserved category of persons residing
in the area adjoining Actual Line of Control, ALC, for
short.
Aggrieved by the placement of Javed Iqbal as I/C
Deputy Superintendent of Police, Manzoor Hussain
and Ahjaz Ahmad, Inspectors of Police, approached
this Court by their Writ Petitions SWP Nos. 206 and
203 of 2010 respectively seeking quashing of the
Government Order, in so far as it adjusted Javed Iqbal
against the post reserved for candidates belong to ALC
category, besides a Command to the respondents to
promote them as I/C Deputy Superintendent of Police
under ALC category.
Vide Orders dated 10.02.2010 passed in their Writ
Petitions, Government Order No. Home-123(P) of 2010
dated 04.02.2010 was kept in abeyance.
Javed Iqbal too approached this Court by his Writ
Petition SWP No. 532/2010 seeking directions against
the State-respondents not to disturb his status as I/C
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Deputy Superintendent of Police ordered vide
Government Order of 04.02.2010.
Vide interim order dated 15.03.2010 passed in his
Writ Petition, the State-respondents were directed to
maintain status quo with respect to his status.
Manzoor Hussain, writ petitioner in SWP No.
206/2010, has filed CMP No. 1483/2010 for his
impleadment as party respondent to Javed Iqbals Writ
Petition.
Manzoor Hussains case in his Writ Petition
against the adjustment of Javed Iqbal as I/C Deputy
Superintendent of Police, in short, is that being junior
to him, as indicated in the Combined Seniority List of
Inspectors of Jammu and Kashmir Police, Javed Iqbal
could not be adjusted as such ignoring his superior
claim on the basis of seniority and belonging to the
Reserved category of ALC.
Ahjaz Ahmads grievance against the adjustment
of Javed Iqbal too is on the similar lines.
Projecting his entitlement to adjustment as I/C
Deputy Superintendent of Police, Zaffar Iqbalrespondent
No.4 in SWP No. 532/2010 contests Javed
Iqbals entitlement to adjustment as I/C Deputy
Superintendent of Police urging that having entered
the Police Department as Sub-Inspector of Police and
earned promotion as Inspector, taking benefit of the
Reserved category of Scheduled Tribe, Javed Iqbal was
not entitled to promotion as I/C Deputy
Superintendent of Police taking benefit of the Reserved
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category of ALC because such a course was
impermissible in view of the provisions of the Jammu
and Kashmir Reservation Act, 2004. Certificate
obtained by Javed Iqbal indicating him a candidate
belonging to the Reserved category of ALC too has been
disputed.
State Governments Response to Ahjaz Ahmad
and Javed Iqbals Writ Petitions reveals that Manzoor
Hussain and Ahjaz Ahmad figure at Serial Nos. 536
and 663 respectively of the Seniority List of Inspectors
issued by Police Headquarters vide Order No. 1980 of
2004 dated 06.07.2004 whereas Javed Iqbal would
figure at Serial No. 726 of the Seniority List.
On examining the Representations of some of the
Inspectors of Police including Zaffar Iqbal, the Staterespondents
are stated to have found the adjustment
of Javed Iqbal as I/C Deputy Superintendent of Police,
bad in law, because having entered the State service
taking benefit of the Reserved category of Scheduled
Tribe, he was not entitled to adjustment as I/C Deputy
Superintendent of Police against another Reserved
category of ALC, because shifting from one Reserved
category to another, was not countenanced by law.
The State-respondents have taken this decision
pursuant to the clarification received from the General
Administration Department of the State Government in
this behalf.
According to the State-respondents, the error
noticed in the adjustment of Javed Iqbal as I/C Deputy
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Superintendent of Police could not be corrected
because of the continuance of the interim order in his
Writ Petition SWP No. 532/2010.
To deal with the issue that arises for
consideration in these Petitions, as to whether or not
Javed Iqbals adjustment as I/C Deputy
Superintendent of Police against the Reserved category
of ALC was permissible, all these Petitions, were heard
together, with the consent of learned counsel for the
parties.
Appearing for Javed Iqbal, Mr. A.V. Gupta,
learned Senior Counsel, submitted that reservation of
ALC, having become available to the petitioner for the
first time in the year 2005 in terms of SRO 294 of
2005, the petitioner was entitled to make choice for
taking benefit of one of the two reservations to which
he belonged i.e. one belonging to the Scheduled Tribe
and the other to the Socially and Educationally
Backward Class-ALC. Reliance is placed on Section 19
of the Jammu and Kashmir Reservation Act, to support
the submission.
Mr. Sunil Sethi, learned Senior Counsel,
appearing for Zaffar Iqbal-respondent No.4 in Javed
Iqbals Writ Petition, on the other hand, submitted that
having taken benefit of the reservation under the
Scheduled Tribe Category at the time of his
appointment as Sub-Inspector of Police and promotion
as Inspector of Police, the petitioner was not entitled to
shift to the category of ALC because shifting from one
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Reserved category to another was not contemplated by
the provisions of Section 19 of the Jammu and
Kashmir Reservation Act.
Supporting the view projected by Mr. Sethi, Mr.
Gagan Basotra, learned Additional Advocate General,
submitted that Section 19 of the Reservation Act may
not permit an employee belonging to one Reserved
category to shift to another Reserved category, at his
option looking to the chances of promotion in a
particular category, because the Reservation Act
contemplates benefit of employment and promotions
only against one category, of course with choice to the
employee to opt for one of the Categories in case of his
belonging to more than one Reserved categories.
Considered the submissions of learned counsel for
the parties and perused the provisions of the Jammu
and Kashmir Reservation Act, 2004, hereinafter to be
referred as the Act.
To address the issue canvassed at the Bar, regard
needs to be had to the provisions of the Act and
particularly to Section 19 thereof, which for facility of
reference, is reproduced hereunder:-
Section 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.
Perusal of the Scheme of Reservation
contemplated by various provisions of the Act indicates
that shifting from one Reserved category to another, in
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appointment, by Direct Recruitment, and Promotion, in
Government Service, besides Entry into Professional
Institutions, was not contemplated by the legislature.
Section 19, when read, in the light of the Scheme
contemplated by the Act, demonstrates that choice
available to a candidate to opt for only one of the two
or more reservations available to him, does not create
any additional privilege in the candidate belonging to
the Reserved categories to shift from one to the other
category while in Government Service. The expression
for appointment or promotion in Government Service,
which appears as a separate Clause in Section 19,
clearly suggests that the legislature had intended
allowing option to a candidate seeking entry into
Government Service, to make choice for claiming
reservation in appointment and promotion(s) and also
to one or the other Reserved category, if he belonged to
more than one such categories. Option of claiming
reservation to a particular Reserved category, once
exercised, and benefits of appointment and promotion,
as the case may be, obtained thereunder, may not be
withdrawn, for shifting to another Reserved category
for further promotional benefits even if the employee
became entitled to another reservation subsequent to
his taking benefit of the earlier opted Reserved
category, during his Service. This is additionally so
because the intention behind providing reservation is
to encourage and give boost to those, who, because of
their suffering from one or the other disability, were
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not entitled to enjoy the right of equality in seeking
Employment, Promotion or Entry into Professional
Colleges, like others, because of the Caste, Area,
Backwardness or other factors on the basis whereof
they were allowed reservation in appointment,
promotion and entry to the Professional Colleges, so
that they were able to enjoy the right of equality,
untrammeled by the disability from which they
suffered and which was sought to be alleviated by
providing reservation. Such boost may not, however,
permit shifting from one Reserved category to another
because such a course would amount to conferring
additional benefit to a person who having already been
brought at par with others by providing him one
reservation, may not be entitled to another boost,
because such a course would be against the provisions
of Articles 14 and 16 of the Constitution of India.
Mr. Guptas plea that the use of expression as
per his choice appearing in the Section gives an option
to an employee belonging to more than one Reserved
categories, to opt for any one or the other categories at
the time of seeking appointment as also at the time of
seeking promotion, to shift from the opted Reserved
category to another, is devoid of any substance
because such a course would ascribe to discordant
construction of the Section, in that, the emphasis
which is intended to be supplied by the legislature by
the use of word only in the Section to convey that
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benefit of reservation would be available in one
category alone, may not be achieved.
Thus considering the phraseology employed in the
Section and the Scheme of the Reservation Act,
providing for benefit of reservation in one category
alone, it is held, that regardless of a candidates
acquiring the status of belonging to another Reserved
category during his service career, he may not be
entitled to claim Service benefits under the newly
acquired Reserved category.
The view taken by the State-respondents that a
candidate belonging to more than one category shall be
entitled to claim benefit of reservation in one category
only as per his choice and the option so exercised was
final, leaving no option to him to shift to another
category which appears to him more beneficial is,
therefore, found in line with the Scheme of the Jammu
and Kashmir Reservation Act, 2004, warranting no
interference therewith.
For all what has been said above, Javed Iqbalpetitioner
in SWP No. 532/2010, having taken benefit
of the Reserved category of Scheduled Tribe in securing
employment as Sub-Inspector of Police and promotion
as Inspector of Police, was not entitled to claim
promotion/adjustment as Deputy Superintendent of
Police under the Reserved category of ALC.
Government Order No. Home-123(P) of 2010 dated
04.02.2010, in so far as it directs the adjustment of
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Javed Iqbal as I/C Deputy Superintendent of Police
under ALC category, is, therefore, found illegal.
On the same analogy, Manzoor Hussain and Ahjaz
Ahmad who had got appointment as Sub-Inspector and
promotion as Inspector of Police against the posts
reserved for Scheduled Tribe category, cannot stake
claim for promotion or adjustment as Deputy
Superintendent of Police against the Reserved category
of ALC.
Resultantly, SWP No. 532/2010, is found to be
without merit, hence dismissed, lifting the interim
order dated 15.03.2010 and SWP Nos. 206 and 203 of
2010 are allowed quashing Government Order No.
Home-123(P) of 2010 dated 04.02.2010, in so far as it
pertains to the adjustment of Javed Iqbal-respondent
as I/C Deputy Superintendent of Police against ALC
category. The petitioners prayer in SWP Nos. 206 &
203 of 2010 for issuance of Command to the Staterespondents
to promote/adjust them as I/C Deputy
Superintendent of Police against the post reserved for
persons belonging to ALC category, is, however,
declined.
( J.P.Singh )
Judge
JAMMU:
29.12.2010
Pawan Chopra.