SWP/532/2010 of JAVED IQBAL Vs STATE TH. HOME DEPTT. AND ORS. on 29 December 2010

1. Javed Iqbal —V.State and ors.2. Manzoor HussainV.State and ors...3. Ahjaz AnmedV.State and ors...

Coram:

Mr. Justice J.P.Singh, Judge.

Appearing Counsel:

For the Petitioner(s) :M/s A.V.Gupta, Sr.Advocate with K.M.Bhatti,Advocate.Mr. M.I.Sherkhan, Advocate. |

For the Respondent(s) :M/s Sunil Sethi, Sr. Advocate with VeenuGupta, Advocate and Gagan Basotra, AAG

1) Whether approved for reporting

in Press/Journal/ Media 2Yes

11) Whether to be reported

in Digest/JournalYes

Government of Jammu and Kashmir in the Home|Department accorded sanction to the placement ofEleven Inspectors of General Executive Cadre as I[/CDeputy Superintendent of Police, in their own pay anderade with Charge Allowance, as admissible under rules, for a period of six months or till such time, theposts were filled up on regular basis on therecommendations of DPC/PSC whichever was earliervide Government Order No. Home-123(P) of 2010 dated04.02 2010.

Javed Iqbal Naaz, Inspector of Police, figured atserial No.11 of the List of the Officers placed as I/CDeputy Superintendent of Police indicating him to havebeen adjusted against the post reserved for personsbelonging to the Reserved category of persons residingin the area adjoining Actual Line of Control, ‘ALC’, forshort.

Aggrieved by the placement of Javed Iqbal as I/CDeputy Superintendent of Police, Manzoor Hussainand Ahjaz Ahmad, Inspectors of Police, approachedthis Court by their Writ Petitions SWP Nos. 206 and203 of 2010 respectively seeking quashing of theGovernment Order, in so far as it adjusted Javed Iqbalagainst the post reserved for candidates belong toALCcategory, besides a Command to the respondents to.promote them as I/C Deputy Superintendent of PoliceunderALC category Vide Orders dated 10.02.2010 passed in their WritPetitions, Government Order No. Home-123(P) of 2010dated 04.02.2010 was kept in abeyance.

Javed Iqbal too approached this Court by his WritPetition SWP No. 5932/2010 seeking directions againstthe State-respondents not to disturb his status as I/C

DeputySuperintendent.otPoliceordered|videGovernment Order of 04.02.2010.

Vide interim order dated 15.03.2010 passed in his)Writ Petition, the State-respondents were directed tomaintain status quo with respect to his status.

Manzoor Hussain, writ petitioner 1n SWP No.206/2010, has filed CMP No. 1483/2010 for hisimpleadment as party respondent to Javed Iqbal’s WritPetition.

Manzoor Hussain’s case in his Writ Petitionagainst the adjustment of Javed Iqbal as I/C DeputySuperintendent of Police, in short, is that being juniorto him, as indicated in the Combined Seniority List ofInspectors of Jammu and Kashmir Police, Javed Iqbalcould not be adjusted as such ignoring his superiorclaim on the basis of seniority and belonging to theReserved category ofALO

Ahjaz Ahmad’s grievance against the adjustment,of Javed Iqbal too is on the similar lines. ©

Projecting his entitlkement to adjustment as I/CDeputySuperintendentotPolice,ZattarIqbal-respondent No.4 in SWP No. 532/2010 contests JavedIqbal’s entitlement to adjustment as I/C Deputy.Superintendent of Police urging that having enteredthe Police Department as Sub-Inspector of Police andearned promotion as Inspector, taking benefit of theReserved category ofScheduled Tribe, Javed Iqbal wasNOTentitledTOaS|promotionI/C]Deputy|Superintendent of Police taking benefit of the Reserved categoryotALObecausesuchaCOUT SEWa Simpermissible in view of the provisions of the JammuandKashmirReservationAct,2OOS4.Certificateobtained by Javed Iqbal indicating him a candidatebelonging to the Reserved category ofALCtoo has beendisputed.

state Government’s Response to Ahjaz Ahmad)and Javed Iqbal’s Writ Petitions reveals that ManzoorHussain and Ahjaz Ahmad figure at Serial Nos. 536and 663 respectively of the Seniority List of Inspectorsissued by Police Headquarters vide Order No. 1980 of2004 dated 06.07.2004 whereas Javed Iqbal wouldfigure at Serial No. 726 of the Seniority List.

On examining the Representations of some of theInspectors of Police including Zaffar Iqbal, the State-respondents are stated to have found the adjustmentof Javed Iqbal as I/C Deputy Superintendent of Police,bad in law, because having entered the State servicetaking benefit of the Reserved category of ScheduledTribe, he was not entitled to adjustment as I/C Deputy|Superintendent of Police against another Reservedcategory ofALC, because shifting from one Reservedcategory to another, was not countenanced by law.

The State-respondents have taken this decisionpursuant to the clarification received from the GeneralAdministration Department of the State Government inthis behalf.

According to the State-respondents, the error)noticed in the adjustment of Javed Iqbal as I/C Deputy superintendent of Police could not be _ correctebecause of the continuance ot the interim order in hisWrit Petition SWP No. 5932/2010.

TO|dealwith theissuethat.ATISESforconsideration in these Petitions, as to whether or notJavedaS|Iqbal’sadjustment I/CDeputy|Superintendent of Police against the Reserved categoryotALC‘was permissible, all these Petitions, were heardtogether, with the consent of learned counsel for theparties.

Appearing for Javed Iqbal, Mr. A.V. Gupta,learned Senior Counsel, submitted that reservation ofALO, having become available to the petitioner for thefirst time in the year 2005 in terms of SRO 294 of.2005, the petitioner was entitled to make choice fortaking benefit of one of the two reservations to whichhe belonged i.e. one belonging to the|Scheduled Tribeand the other to the.Socially and EducationallyBackward Class-ALC. Reliance is placed on Section 19of the Jammu and Kashmir Reservation Act, to supportthe submission.

Mr.Sunilsethi,learned|Senior|Counsel,|appearing for Zalfar Iqbal-respondent No.4 in JavedIqbal’s Writ Petition, on the other hand, submitted thathaving taken benefit of the reservation under theScheduledTribeCategoryaT|the|timeothis|appointment as Sub-Inspector of Police and promotionas Inspector of Police, the petitioner was not entitled toshift to the category ofALO‘because shifting from one Reserved category to another was not contemplated bythe provisions of Section 19 of the Jammu andKashmir Reservation Act.

Supporting the view projected by Mr. Sethi, Mr.Gagan Basotra, learned Additional Advocate General,submitted that Section 19 of the Reservation Act maynot permit an employee belonging to one Reservedcategory to shift to another Reserved category, at hisoption looking to the chances of promotion in aparticular category, because the Reservation Actcontemplates benefit of employment and promotionsonly against one category, of course with choice to theemployee to opt for one of the Categories in case of hisbelonging to more than one Reserved categories.

Considered the submissions of learned counsel for|the parties and perused the provisions of the Jammuand Kashmir Reservation Act, 2004, hereinafter to bereferred as “the Act’.

To address the issue canvassed at the Bar, regardneeds to be had to the provisions of the Act andparticularly to Section 19 thereof, which for facility ofreference, is reproduced hereunder:- FSection 19-Choice A candidate belonging to more than onecategory shall be entitled to claim the benefit ofreservation in one category only, as per hischoice,forappointmentOT|promotioninGovernmentServiceOT|admissioninprofessional institutions, as the case may bea Perusal otthe|SchemeotReservation|contemplated by various provisions of the Act indicatesthat shifting from one Reserved category to another, in appointment, by Direct Recruitment, and Promotion, inGovernment Service, besides Entry into ProfessionalInstitutions, was not contemplated by the legislature.section 19, when read, in the light of the Scheme.contemplated by the Act, demonstrates that choiceavailable to a candidate to opt for only one of the twoor more reservations available to him, does not createany additional privilege in the candidate belonging tothe Reserved categories to shift from one to the othercategory 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 intendedallowing option to a candidate seeking entry into.Government Service, to make choice for claiming.reservation in appointment and promotion(s) and alsoto one or the other Reserved category, if he belonged tomore than one such categories. Option of claiming.reservation to a particular Reserved category, onceexercised, and benefits of appointment and promotion,as the case may be, obtained thereunder, may not bewithdrawn, for shifting to another Reserved categoryfor further promotional benefits even if the employeebecame entitled to another reservation subsequent tohis taking benefit of the earlier opted Reserved.category, during his Service. This is additionally sobecause the intention behind providing reservation isto encourage and give boost to those, who, because oftheir suffering from one or the other disability, were not entitled to enjoy the right of equality in seekingEmployment, Promotion or Entry into ProfessionalColleges, like others, because of the Caste, Area,Backwardness or other ftactors on the basis whereottheyWeTECallowedreservation1nappointment,promotion and entry to the Professional Colleges, sothat they were able to enjoy the right of equality,untrammeled by the disability from which theysuffered and which was sought to be alleviated byproviding reservation. Such boost may not, however,permit shifting from one Reserved category to anotherbecause such a course would amount to conferringadditional benefit to a person who having already beenbrought at par with others by providing him onereservation, may not be entitled to another boost,because such a course would be against the provisionsot Articles 14 and 16 of the Constitution of India. —

Mr. Gupta’s plea that the use of expression “asper his choice” appearing in the Section gives an optionto an employee belonging to more than one Reservedcategories, to opt for any one or the other categories atthe time of seeking appointment as also at the time ofseeking promotion, to shift from the opted Reservedcategory to another, is devoid of any substancebecause such a course would ascribe to discordantconstruction of the Section, in that, the emphasiswhich is intended to be supplied by the legislature bythe use of word ‘only’ in the Section to convey that 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 categoryalone, it is held, that regardless of a candidate’sacquiring the status of belonging to another Reservedcategory during his service career, he may not beentitled 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 beentitled to claim benefit of reservation in one categoryonly as per his choice and the option so exercised wasfinal, leaving no option to him to shiit to anothercategory which appears to him more beneficial is,therefore, found in line with the Scheme of the Jammuand Kashmir Reservation Act, 2004, warranting nointerference therewith.

For all what has been said above, Javed Iqbal-petitioner in SWP No. 5332/2010, having taken benefitof the Reserved category ofScheduled Tribein securing.employment as Sub-Inspector of Police and promotionas Inspector of Police, was not entitled to claim.promotion/adjustment as Deputy Superintendent ofPolice under the Reserved category ofALO

Government Order No. Home-123(P) of 2010 dated04.02.2010, in so far as it directs the adjustment of Javed Iqbal as I/C Deputy Superintendent of PoliceunderALCcategory, 1s, therefore, found illegal.

On the same analogy, Manzoor Hussain and Ahjaz_Ahmad who had got appointment as Sub-Inspector andpromotion as Inspector of Police against the postsreserved forscheduled Tribe category, cannot stake)claimforOT—aS|promotionadjustment,DeputySuperintendent of Police against the Reserved categoryotALC

Resultantly, SWP No. 5932/2010, is found to bewithout merit, hence dismissed, liting the interimorder dated 15.03.2010 and SWP Nos. 206 and 203 oft2010 are allowed quashing Government Order No.Home-123(P) of 2010 dated 04.02.2010, in so far as itpertains to the adjustment of Javed Iqbal-respondentas I/C Deputy Superintendent of Police againstALCcategory. The petitioners’ prayer in SWP Nos. 206 &29203 of 2010 tor issuance of Command to the Statrespondents to promote/adjust them as I/C DeputySuperintendent of Police against the post reserved forpersons belonging toALC category, 1S, however,declined.

(J.P.Singh)

Judge