GARO DEVI Vs. STATE AND ORS.

JUDGEMENT

(1.) In this petition, the petitioner, inter alia, seeks writ of certiorari for quashment of Clause 3(A) of the Notification No. 323 dated 26.05.2017, so far it pertains to the candidates belonging to the Scheduled Caste Category, by which it is prescribed that "Only candidates belonging to the concerned Division (Jammu Division and Kashmir Division) can apply". The petitioner also seeks writ of mandamus commanding the respondents to alter, modify or issue fresh notification and allow the candidates of Scheduled Caste Category belonging to Jammu Division to apply for the posts advertised in Kashmir Division for the said category or in the alternative to direct the respondents to provide reservation to the candidates in the same ratio as the percentage of the population of the Scheduled Castes in the Jammu Division. The petitioner further seeks direction to the respondent No. 5 to ensure the proper implementation of reservation for the candidates belonging to Scheduled Caste Category being Nodal Officer for the enforcement of the Reservation Rules.

(2.) Facts giving rise to the filing of this petition briefly stated are that the petitioner has obtained degree in Bachelor in Arts from the Jammu University and has also obtained six months' Certificate Course in Computers and one year Diploma Course in Stenography. The petitioner belongs to Scheduled Caste Category and is permanent resident of the State of Jammu and Kashmir. The respondent No. 2 issued an advertisement Notification No. 323 dated 26.05.2017 inviting applications for the posts of Steno-Typists as well as Junior Assistants in both the Divisions of the State, i.e., Jammu Division and Kashmir Division in Jammu and Kashmir Subordinate Judiciary. In Clause 3(A) of the advertisement notification, it was mentioned that only candidates belonging to the concerned division can apply for the posts in question. It is the case of the petitioner that the petitioner belongs to the Scheduled Caste Category and in view of Section 13(3) of the Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010 (herein-after to be referred as "the Act of 2010"), the petitioner can apply for any post irrespective of her place of residence in the State and she is eligible for selection against the post reserved for the candidates belonging to Scheduled Caste Category. It is also averred in the writ petition that as per the Jammu and Kashmir Reservation Act, 2004 (herein-after to be referred as "the Act of 2004") and the Rules framed thereunder being the Jammu and Kashmir Reservation Rules, 2005 (herein-after to be referred as "the Rules of 2005") and in particular Rule 4, 8% of posts are required to be reserved for the candidates belonging to Scheduled Caste Category. It has also been averred that the place of residence and birth cannot be made a criteria for making appointments. In the aforesaid factual background the petitioner has sought the relief as stated supra.

(3.) Learned counsel for the petitioner while inviting the attention of this Court to the Act, particularly Section 13 of the Act of 2010, has submitted that since the petitioner belongs to Scheduled Caste Category, she can apply for any post which was advertised in the State of the Jammu and Kashmir and, therefore, Clause 3(A) of the advertisement Notification in question is contrary to Section 13(3) of the Act of 2010. Learned counsel for the petitioner further submitted that under the Act of 2010, all the posts in question are the Divisional Cadre posts, therefore, on the analogy contained in Section 7 of the Act of 2004, reservation has to be provided on the basis of population of the candidates belonging to Scheduled Caste Category in the Division. It is also submitted by the learned counsel for the petitioner that the population of Scheduled Caste in the Kashmir Division is 0.01%, whereas population of Scheduled Caste in Jammu Division is 24%. It is further submitted that the High Court has to adopt the procedure prescribed under the Act of 2010 and, therefore, it is bound by the provisions of the Act of 2010. It is also urged that in view of Section 3 of the Act of 2004 reservation in respect of all the posts has to be provided as per the percentage of population. Learned counsel for the petitioner lastly submitted that Clause 3(A) of the impugned advertisement notification is violative of Articles 14 and 16 of the Constitution of India. In support of his submissions learned counsel for the petitioner referred to the decision of this Court in the case of J&K Tribal United Forum and Ors. v. State and Ors., 2011 (4) J.K.J. 509 .