JAVED IQBAL BALWAN Vs. STATE OF J&K
LAWS(J&K)-1999-6-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 02,1999

Javed Iqbal Balwan Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

DOABIA, J. - (1.) FOR more than four decades, the courts in this country have been resolving the seemingly perpetual rivalry  between the direct recruits and promotees. This dispute has been not only visa -a -vis their quota but also regarding the place which they are to be accorded while fixing their seniority among the promotees. It is this dispute which stands reflected in the present petitions.
(2.) APPLICATIONS were invited for filling the vacancies to the various gazetted posts. Resort was had to the J&K Combined Competitive Examination Rules of 1975. The number of posts which were to be filled were not indicated in the notification. In response to the notification so issued, 1500 candidates are said to have applied. Their application forms were duly screened. Thereafter, examination was held. The result of the examination was declared in the year 1981. As many as 529 candidates were sent for medical examination. As all the candidates were not given actual letters of appointment, they felt aggrieved. Some of them preferred petitions directly before the Supreme Court of India. The basic argument which was urged in these writ petitions was that in the various services to which the appointments were to be made, 50% of the posts were reserved for direct recruits. The remaining vacancies were to go to these candidates who seeking appointment by way of promotion. As this quota of 50% was not adhered to and some candidates who were otherwise eligible were left out, they as indicated above, approached this court and also the Supreme Court of India.
(3.) SO for as this court is concerned, the judgment was delivered by the learned Single judge of this Court. This came to be delivered in SWP NO. 680/84. This happened on 27.6.1984. An appeal was preferred against the said judgment. This appeal came to be decided by a Division Bench of this Court and an agreed order was passed. The further fact is that when some of the writ petitions filed by various petitioners came for consideration before the Division Bench of this Court at Jammu, an order came to be passed on these writ petitions. The State was directed to place on record the position regarding the number of vacancies which become available with the State Government in various services between September, 1979to September, 1984. Ultimately a decision was given. Against the judgment given by the Division Bench, the matter was taken before the Supreme Court of India. The Supreme Court of India gave its decision in Civil Appeal NO. 3485/92 on 27th August, 1992. The Supreme Court of India was of the opinion that the view expressed by this court was in consonance with the rule in question. Some suggestions were made by the State. These were to the effect that the actual vacancies were not 260 by 181. This aspect of the matter was taken not of. Ultimately it was found that it is not necessary to go into the question as to whether the existing vacancies were 181 or 260. This was because the Supreme Court of India was of the view that the relief is to be granted only to those petitioners who had approached and sought relief from the courts. As the number of such candidates was less than 181, the dispute as to the number of deficient vacancies was treated as purely academic. The net result was that the view expressed by the Court was up -held. The appeal preferred by the State of Jammu & Kashmir was disposed of by making the following observations: It may be mentioned that all the petitioners before the High Court and before this court belong to the category of direct recruits. On the above findings the High Court by its judgment dated August 23, 1991 allowed the writ petition in the following terms  In the result the writ petitions succeed and are allowed. The respondents are directed that they shall appoint the petitioners and others out of 529 candidates selected by the Public Service Commission and rectify the imbalance between the departmental promotees and the direct recruits. Since 260 promotees have been appointed during the relevant period. 260 more candidates out of 529 candidates selected by the Public Service Commission shall be appointed to the seventeen aforementioned gazetted services in accordance with the merit. Even some or any of these candidates have become overage during the pendency of these writ petitions. They shall also be appointed because those candidates had become overage for no fault of their own but because of the unjustified refusal to the respondents to appoint them despite their selection. Since the matter has already been delayed the appointments shall be made within two months. This appeal by way of special leave is against the above quoted Judgment of the High Court. We have heard learned counsel for the parties. The finding of fact reached by the High Court is based on the appreciation of detailed interpretation supplied by the State Government at the hearing of the petition. We find no infirmity in the reasoning and the conclusions reached by the High Court. Mr. D.P Gupta, learned Solicitor General appearing for the State of Jammu & Kashmir has contended that the latest affidavit containing complete information regarding the vacancies was filed by Mr. R.C. Gupta, Deputy Secretary to Govt. General Administration Department. According to him the Division Bench of the High Court did not take the said affidavit into consideration. Mr. D.D. Thakaur, learned counsel appearing for the respondents writ petitioners has very fairly conceded that the is a discrepancy while counting the deficient number of vacancies in the quota of direct recruits. According to him the number of deficient vacancies comes to 181 and not 260 as found by the High Court the view we are taking it is not necessary for us to go into this question. The selection in this case was completed in the year 1982. Most of the writ petitions were filed in the High Court and in this court during the year 1984. Some of the petitions before the High Court were also filed during the period 1985 to 1989. We are of the view that only the candidates who filed the writ petitions are entitled to the relief granted by the High Court. We, therefore, modify the relief granted by the High Court to the extent that only the candidates who filed writ petitions in the High Court or in this court are entitled to be appointed in terms of the High Court Judgment. We grant two months time from today to the State Government to make the necessary appointment in terms of the High Court Judgment as modified by us. ;


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