Decided on March 19,2020



Sanjeev Kumar,J. - (1.)The petitioner is an Assistant Surgeon in the Department of Health Services and possesses the post-graduation qualification in the discipline of 'Physiology'. He claims to have served as Demonstrator in the Department of Physiology, Govt. Medical College, Jammu from April, 2005 to April, 2008, i.e, for a period of three years. Pursuant to the selection process conducted by the Selection Committee constituted by the respondent No.1 vide Govt. Order No.70-HME of 2006 dated 03.02.2006 read with Govt. Order no.542-HME of 2006 dated 27.09.2006, for engagement of Lecturers in various disciplines in Govt. Medical College, Jammu on contractual basis, the petitioner came to be selected and appointed as such vide Govt. Order No.351-HME of 2008 dated 21.04.2008. The Jammu and Kashmir Public Service Commission (hereinafter referred to as 'the PSC') vide its Notification No.13-PSC of 2008 dated 31.12.2008 invited applications, inter alia for two posts of Lecturers in the discipline of Physiology in Govt. Medical College, Jammu; one under RBA category and another under Scheduled Caste category. The petitioner is a candidate belonging to General Category and possesses all the requisite qualification to be appointed as Lecturer in the Govt. Medical College, Jammu. He responded to the Advertisement Notification seeking his consideration in the event of non-availability of eligible reserved category candidates in view of Rule 11 of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (hereinafter referred to as 'the Rules of 1979'). The application form was though accepted by the PSC, but, the petitioner was not called for interview on the plea that two posts notified were meant for reserved categories of Resident of Backward Area (for short 'RBA') and Scheduled Caste (for short 'SC') and therefore, the petitioner being General Category candidate was not eligible. It is in this backdrop, the petitioner in SWP No. 2213 of 2009 sought Certiorari to quash the Notification No.13-PSC of 2008 dated 31.12.2008 in so far as it notified two posts of Lecturers in Physiology, Govt. Medical College, Jammu only for the reserved categories of RBA and SC respectively. The petitioner also sought a direction to the respondents to allow the petitioner to participate and compete in the process of selection as General Category candidate in view of Rule 11 of the Rules of 1979.
(2.)While the aforesaid writ petition was pending adjudication in this Court, the selection process initiated in the year 2008 came to be concluded and on account of non-availability of the eligible candidates from the reserved categories of RBA and SC, two posts aforesaid were again notified as a first special derive vide Notification No.04-PSC of 2010 dated 04.06.2010. The petitioner feeling aggrieved of the Notification of 2010 as well, on the similar grounds filed another writ petition being SWP No. 1549/2010. The short grievance projected by the petitioner in both these writ petitions is that in terms of the Rule 11 of the Rules of 1979, if sufficient number of candidates belonging to the reserved categories are not available for filling of all or any of the vacancies reserved during the recruitment period, the reservation for the posts not so filled shall lapse and the posts shall be filled up as if no reservation thereof had been made. It is on the basis of this provision contained in Rule 11 (2) of Rules of 1979, the petitioner contends that two posts of Lecturers Physiology in Govt. Medical College, Jammu, which were notified in terms of Notification 13- PSC of 2008 dated 31.12.2008, which could not be filled up due to non-availability of the eligible candidates belonging to reserved categories should have been declared 'unreserved' and notified, as such, in the impugned Notification of 2010.
(3.)The respondent No.1 has filed the reply and the stand taken is that as per reservation rules, if a sufficient number of candidates during the recruitment process, is not available, then the posts shall remain vacant and shall be carried forward to the next recruitment process. It is, thus, submitted that the respondents are well within their right to launch a special derive for filling up the 'carried forward vacancies' by inviting applications exclusively from the persons belonging to the reserved category. It is further stated that it is only if the reserved vacancies remain unfilled for a period exceeding three years, these can be and should be treated as 'de- reserved'. It is, thus, contended that in the instant case, first attempt was made in December, 2009 and since no response was received from the reserved category candidate, second process was set in motion in June, 2010, therefore, there is nothing wrong with the impugned Notification of 2010. The plea of the petitioner that he is entitled to the benefit of Rule 11 (2) of the Rules of 1979 has not specifically dealt with. To the similar extent is the stand of the PSC.

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