RAM RAKHA Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner who is a member of the public and is not in service, is pleading the cause of the community to which he belongs. It is submitted that the respondent -State is not observing the provisions of SRO 126. It is submitted that in terms of the aforementioned SRO, if a person belonging to a particular reserved category is not available then the vacancy is to be carried forward. For this reference is being made to Jammu & Kashmir Reservation Rules, 1994. In particular reliance is being placed on Rule 13. For facility of reference this Rule is being quoted below: - 13. Vacancies to be carried forward. - (i) Subject to the provisions hereinafter contained in this Part, if a sufficient number of candidates from the Scheduled Castes, Scheduled Tribes and Backward Classes are not available on the occasion of any recruitment for filling all the vacancies reserved for them in direct recruitment, the vacancies shall not be filled up from amongst the candidates who are not members of Scheduled Castes, scheduled Tribes and Backward Classes, (ii) If in the first attempt of recruitment, suitable candidates are not available, second attempt may be made in the same recruitment year and if even then suitable candidates are not available, the vacancies shall be treated as backlog vacancies provided that the total member of reserved vacancies shall not exceed 50% of total available vacancies, (iii) In subsequent year, when recruitment is made for reserved vacancies, the backing vacancies shall also be announced, provided that total number of reserved vacancies shall not exceed 50% of total available vacancies, (iv) The reserved vacancies remaining vacant for a period exceeding three years despite recruitment drive shall be treated as de -reserved. 

(2.) IF Rule 13 as noticed above is taken into consideration then it becomes apparent that in terms of Rule 13 (ii), if in the first attempt of recruitment suitable candidates are not available, second attempt has to be become in the same recruitment year and if even then suitable candidates are not available, the vacancies are to be treated as backlog vacancies. There is a proviso. This is the effect that total number of reserved vacancies are not to exceed 50% of the total available vacancies. As to what is to happen in the subsequent years is dealt with sub -rule (iii) & (iv). It has been specifically laid down in Rule 13(iv) that the reserved vacancies remaining vacant for subsequent three years despite recruitment drive shall be treated as de -reserved. A reading of the above Rule does indicate that in the case the candidate belonging to the reserved category is not available then this vacancy is to be carried forward in the manner indicated in the Rule. This provision helps the argument put across by the learned counsel for the petitioner. However, there is one impediment in accepting this argument. This is in the shape of Rule 11 as contained in the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. Rule 11 of these rules, reads 11. Reservation of appointment. (1) While making appointment either by promotion by selection or by direct recruitment, reservation shall be made in accordance with the rules and orders issued from time to time for the members of the Scheduled Castes or any other category or class of permanent residents of the State for whom such reservation maybe made under the orders of the Government. (2) It (sic) sufficient number of candidates belonging to the classes for whom reservation has been made, are not available for filling up all or any of the vacancy reserved for them during a recruitment period, reservations for the posts not so filled shall lapse and the posts shall be filled up as if no reservation thereof had been made.

(3.) SO far as Rule 11(1) is concerned, it lays down that posts are to be reserved in terms of what is said in sub -rule (1). However, sub -rule (2) is specific. This is to the effect that if sufficient number of candidates belonging to the class for whom reservation is made are not available for filling up vacancies reserved for them during a recruitment year, reservation of posts not so filled up shall lapse and the posts shall be filled up as if no reservation has been made. It is accordingly submitted by the learned counsel for the State that in the face of this specific provisions dealing with the service in question, it is not necessary to make reservation and if a candidate is not available in the reserved category then the posts are not to be treated as reserved and these can be filled up otherwise.