Excelsior Correspondent
JAMMU, Sept 3: Division Bench of High Court comprising Justice Sanjeev Kumar and Justice Puneet Gupta, in a landmark judgment, has impressed upon the Union Territory administration to focus on reservation in Judicial Service.
The judgment was passed in a petition filed by Karan Sharma, who claims to be a person with permanent disability to the extent of 50% and is aggrieved by the Notification issued by the Jammu and Kashmir Public Service Commission bearing No. PSC/Exam/2013/111 dated 24.12.2013 for conducting Jammu and Kashmir Civil Service (Judicial) Competitive Examination, 2013 insofar as it does not provide for any reservation for persons with disabilities in terms of Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act.
The petitioner, therefore, claims that PSC should have considered him under open merit category against one of the total six posts and that the said post ought to have been earmarked for persons with disabilities under the Act of 1998.
While disposing of the petition, the DB observed, “providing reservations in favour of weaker sections of the society including the persons with disabilities is a constitutional mandate and each Department and Establishment of the Government including the judicial service need to make adequate provisions to give effect to this social welfare measure envisaged by the framers of the Constitution to bring have-nots and the weaker sections of the society at par with those better placed and privileged”.
“We hope and trust that the attention of the competent authorities would focus on the issue and appropriate measures in consonance with constitutional scheme shall be taken to make requisite provision or rules with regard to reservation for appointments in judicial service on par with those provided for the persons holding the civil posts in connection with the affairs of the UT of Jammu and Kashmir”, the DB said, adding “for the present, we see no legal sanction to the reservations, if any, provided for the appointments to the post of Civil Judge (Junior Division )/Munsiff in the twin Union Territories of J&K and Ladakh”.
After hearing Senior Advocate Abhinav Sharma for the petitioner whereas AAG Aseem Sawhney for the Law Department, the DB observed, “the Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967 elaborately provide for method of recruitment, eligibility, procedure for recruitment, appointment, probation, termination and confirmation etc. However, the Rules do not make any provision for reservation in favour of reserved categories like SC, ST, RBA, ALC or Persons with Disabilities etc”, adding “interestingly, the Rules of 1967 do not even contain residuary rule which may provide that, with regard to the matters for which no provision is made in the said Rules, the Rules applicable to the Civil Services of the State would be applied”.
“Neither the Act of 2004, nor the Act of 1998 per se apply to reservations in appointments to the State Judiciary, other than the District Judges, nor can it be argued that an Act of Legislature or an Act of Parliament can supersede Section 110 of the Constitution of Jammu and Kashmir/ Article 234 of Constitution of India”, the DB said, adding “unless the mandate of Section 110 of Constitution of Jammu and Kashmir/Article 234 of Constitution of India is followed and appropriate rules in this regard are made, it is not permissible to make reservations for appointments to judicial service relying upon the general law applicable to civil services of UT”.
“It would suffice, if the Governor of the State, after consultation with PSC and the High Court makes the rules adopting or applying the reservation rules as they apply to the Civil Services of the State or with modification as is deemed just and proper”, the DB further said, adding “we are a democracy which gives Constitution primacy and supremacy over all organs of State and all the three organs, Legislature, Executive and the Judiciary are enjoined to work within their domains and strictly in consonance and conformity with the Constitution”.
“Any Act of Legislature or Parliament which is de hors any Constitutional provision is bad in the eye of law and liable to be struck down being ultra vires the Constitution. That being the settled legal position, we have absolutely no doubt in our mind that even by an Act of Legislature or by an Act of Parliament, reservations cannot be applied or extended to the appointments to the judicial service”, the DB said.
Accordingly, DB dismissed the petition and ordered that the respondents shall be free to fill up the reserved vacancy in accordance with law. However, the DB made it clear that this judgment will have only a prospective effect and shall not be construed to disturb the appointments of Munsiff so far made.
“All pending and future appointments to the post of Civil Judge (Junior Division)/Munsiff shall only be in accordance with the rules including rules of reservation framed in terms of Article 234 of Constitution of India”, the DB added.
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