- (1.)PETITIONER after passing his MBBS and completing internship was selected as Surgeon Lt in Indian Navy on 26 -8 -1994 and secured voluntary discharge in the year 1999. Pursuant to advertisement notice No. 10 -PSC of 1999 dated 14 -11 -1999 issued by the J&K Public Service commission for selection of Assistant Surgeons in the Department of Health and Family Welfare, J&K Government. Petitioner applied for his selection to the post. This Notification provided reservation for reserved categories of Scheduled Caste/Scheduled Tribe and Socially Backward Class as defined under SRO 126 dated 28 -6 -1994. In addition to this, it was also provided that if a person possesses an additional qualification like experience/ improvement in the qualification/ marks, additional qualification, distinction in sports/NCC, if any, the certificates be annexed alongwith the application. Notice also stipulated different age for different classes of the persons. Petitioner claimed to be an ex -serviceman for which category the maximum age was prescribed as 40 years. Petitioner participated in the selection process. On completion of the selection process, the Public Service Commission recommended the names to the Government for appointment. Vide Government order No. 702 H&ME of 2001 dated 4 -10 -2001, the selected candidates were appointed against Open and reserved categories. Petitioner did not find berth in the list of appointees. However, supplementary waiting list was issued, where the petitioners name figured at S.No. 140 in the open merit category. Before the petitioner participated in the selection process he was engaged as Assistant Surgeon on adhoc basis vide Govt. order No. 646 -HME of 1999 dated 13 -12 -1999 for a period of 89 days and was continuing under the same arrangement till the appointments were made. After his non -selection, he filed the present writ petition, which was subsequently amended claiming following reliefs: -
"(a) issue writ of mandamus directing the respondent No. 1 to consider and induct the name of the petitioner in the list of appointees as temporary Asstt. Surgeon with effect from the same date thereby deleting the name of the petitioner from the waiting list shown at S.No. 140 ;

(b) Issue writ of mandamus to respondent No. 3 to produce the record of selection to enable the Honble Court to ascertain the merit of the petitioner;

(c) To issue any other writ, order or direction which the Honble Court may deem fit in the facts and circumstances of the case."

(2.)RESPONDENTS No. 1 and 2 filed the reply wherein it is stated that though the petitioner was engaged on adhoc basis vide Govt Order No. 646 - HME of 1999 dated 13 -12 -1999 and posted in District Hospital, Kathua, however, the said post being a Gazetted post was required to be filled up by selection through Public Service Commission. Petitioner participated in the selection process and his name figured at S.No. 140 of the waiting list. Petitioner has no right for appointment as he has not been selected by the Public Service Commission.
(3.)LEARNED counsel for the petitioner submitted at the bar that the petitioner being an ex -serviceman had a preferential right for appointment. The right of the petitioner for appointment is contested on two counts: -
(i) that he is an ex -serviceman ;

(ii) that he has vast experience to his credit as he has served in the Indian Navy and on adhoc basis.

It is further contended that there is a reservation of 68% under SRO No. 126 of 1994 for the ex -servicemen. I have examined SRO 126 and reservations for different categories as provided therein. There is absolutely no reservation for the ex -servicemen. However, Rule 11 of the said SRO provided that ex -servicemen and children of Defence Personnel shall get preferential treatment to the extent of 5% for selection in each service class, category and grade. Rule 10 and 11 of SRO 126 are re -produced:

"10.Except as otherwise provided in these rules, available vacancies shall be reserved for the direct recruitment in each service, class, category and grade in favour of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as possible constitute the percentage of available vacancies shown against each ; -

@Z_TBL_BEG = COLUMNS(3), DIMENSION(IN), COLWIDTHS(.5000,E1,1.0000), ABOVE(.1000), BELOW(.1000), HGUTTER(.0555), VGUTTER(.0555), BOX(Z_DOUBLE), VGRID(Z_SINGLE), KEEP(OFF)

@Z_TBL_BODY = TBLCN, TABLE TEXT, TBLCN

(a), Scheduled Castes, ..8%

(b), Scheduled Tribes, ..10%

(c), Socially and educationally backawrd classes (Other than Scheduled Castes and Scheduled Tribes).,

@Z_TBL_BODY = TABLE TEXT, TABLE TEXT, TBLCN

, (i) Weak and under privileged Classes (Social Castes)., ..2%

, (ii) Residents of areas adjoining Line of Actual Control., ..3%

, (iii) Residents of Backward areas, ..20%

@Z_TBL_END =

11. Concessions (1) Notwithstanding anything contained in rule 10 and subject to the provisions of sub -rule (2) of this rule, out of the total number of available vacancies (reserved as well as unreserved), handicapped persons to the extent of 2% and ex -servicemen and children of Defence Personnel to the extent of 5% shall get preferential treatment for selection in each service class, category, and grade."