Stanzin Itzes Chosket v. Union Territory of Jammu and Kashmir

Judgment

#1. The present petition has been filed under Article 226 of the Constitution of India seeking quashing of the result of the Jammu and Kashmir Civil Services (Judicial) Examination-2023 notified vide Notification No: PSC/Exam/2024/04 dated 03.04.2024, as far as the selection of the Respondent No.5 is concerned for appointment against the advertised posts of Civil Judge (Junior Division) in the ST and also seeking a direction for issuing a writ of mandamus commanding the Respondent No.2 to select and recommend the name of the petitioner for appointment against the said advertised posts of Civil Judge (Junior Division) in the ST category on the strength of her merit in the Jammu and Kashmir Civil Services (Judicial) Examination-2023; and in the alternative, seeking quashing of S.O.633 dated 27.12.2023 whereby “Explanation (D)” has been added to Rule 4 of the Jammu and Kashmir Reservation Rules, 2005 providing reservation for the STs of Leh and Kargil Districts within the ST category. 2. The core issue involved in this petition is about the nature of the reservation made, i.e., reservation within reservation provided for the Scheduled Tribes, which has led to certain controversies, resulting in the filing of the present writ petition, WP(C) No.935/2024. Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 3

#3. To appreciate the grievances of the petitioner and issues raised in this petition, it may be apposite to refer to the following relevant background facts.

#4. The Respondent no.2, the Jammu and Kashmir Public Service Commission (hereinafter referred to as the Commission) issued the advertisement under Notification No.38-PSC(DR-P) of 2023 dated

27.08.2023, inviting applications from eligible candidates from the Union Territory of Jammu and Kashmir and Union Territory of Ladakh for filling up 69 (sixty-nine) posts of Civil Judge (Junior Division). Of the aforesaid 69 (sixty-nine) advertised posts, 10%, i.e., 07 (seven) are reserved for the ST category.

#5. It was further mentioned in the advertisement that out of the posts reserved for the Scheduled Tribe category, a quota of 01% each is reserved for the residents of the Districts of Leh and Kargil of the Union Territory of Ladakh which would mean that of the 07 (seven) posts reserved for the STs, 1 (one) post each will be reserved for the STs of Leh District and Kargil Districts. Thus, out of the total 7 (seven) seats reserved for the STs, at least 2 (two) are reserved for the STs of Leh and Kargil Districts. 6. It may be apposite to mention at this stage that though the UT of Ladakh and UT of Jammu and Kashmir are now two separate UTs carved out of the erstwhile State of Jammu and Kashmir, as far as the District Judiciary in these two UTs is concerned, there is still a common Judicial cadre for both these UTs and consequently, recruitment to the judicial service is made under the common recruitment rules called the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967 and Jammu & Kashmir Public Service Commission (Conduct of Examination) Rules,

#2022. The reservation norms applied for the posts are governed by the Jammu and Kashmir Reservation Act, 2004 (hereinafter referred to as “Reservation Act”). Of these aspects, there is no dispute amongst the parties. 7. In terms of Section 23 of the Jammu and Kashmir Reservation Act, 2004, and Section 22 of the Jammu & Kashmir Persons with Disabilities Act, 1998, and other relevant provisions of the law in this behalf, Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 4 reservation rules have been framed, under the nomenclature of the Jammu and Kashmir Reservation Rules, 2005 (hereinafter referred to as “Reservation Rules”).

#8. Rule 4 of the Reservation Rules, 2005 which deals with reservation in Direct Recruitment mentions the percentages of reservation in respect of various categories namely, Schedule Castes, Schedules Tribes, Socially and Educationally Backward Classes (other than Scheduled Castes and Schedules Tribes), Economically Weaker Sections, and the remaining under the nomenclature of Open Merit category under social reservations also called vertical reservations. As far as Scheduled Tribe category is concerned, reservation to the extent of 10% of the advertised posts/vacancies is provided.

#9. Rule 4 of the Reservation Rules also provides for horizontal reservations, namely, for the Ex-servicemen and Physically Challenged Persons. There is no other category for which horizontal reservation has been provided.

#10. The aforesaid Rule 4 further contains four explanations namely Explanation (A), Explanation (B), Explanation (C) and Explanation (D) to clarify the method and nature of reservations. We are primarily concerned with Explanation (D) to the aforesaid Rule 4 of the Reservation Rules, 2005, which was added and notified vide S.O. 633 dated 27.12.2023, which came into force with effect from 24.08.2023 i.e., prior to the advertisement notice issued by the Jammu and Kashmir Public Service Commission on 27.08.2023 by which reservations have been provided to the extent of minimum of 1% each for the STs of Leh District and Kargil District out of the total posts advertised for the STs under Clause (b) of Rule 4 of the Reservation Rules. As far as giving retrospective effect to the aforesaid S.O. is concerned, there is also no dispute.

#11. For better appreciation, Rule 4 and the Explanations (A), (B), (C) and (D) to the aforesaid Rule are reproduced hereunder: - “ Rule 4:- Reservation in Direct Recruitment :-Except as otherwise provided in these rules, available vacancies shall be reserved for direct recruitment in each service, class, category and grade in favor of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 5 possible, constitute the percentage of available vacancies shown against each: (a) (b) (c) …..8% …..10% Scheduled Castes Scheduled Tribes Socially and Educationally Backward Classes (other than Scheduled Castes and Scheduled Tribes: - (i) Weak and under privileged classes (Social Caste) …..4% (ii) Residents of areas adjoining Line of Actual Control (ALC)/International Border (IB) (iii)Residents of backward areas (iv) Pahari Speaking People ..….4% ..… 10% …..4%

…..10% (c)(a) Economically Weaker Sections (EWS) (d) Ex-servicemen - Horizontal Reservation .….6% (e) Physically Challenged Persons- Horizontal Reservation …..4% Explanation (A):-The horizontal reservation to the extent of 6% of The available vacancies shall be provided to the Ex-servicemen against such posts only where the maximum of the pay scale does not exceed Rs.10,500/-. Explanation (B):-For purposes of clause (d) and (e), the horizontal reservation means the reservations which would cut across the vertical reservation (what is called interlocking reservation) and the person selected against the physically challenged quota will have to be placed in the appropriate category viz if he/she belongs to the scheduled caste category, he/she will be placed in that quota by making the necessary adjustment and 4 similarly if he/she belongs to the open competition category, he/she will be placed in that category Explanation (C):- For the purposes of clause (e) reservations in recruitment shall be available for physically challenged persons for services and posts specified under section 22 of the Jammu and (Equal Kashmir Persons with Disabilities Opportunities, Protection of Rights and Full Participation) Act, 1998 to the extent specified therein, i.e.; (a) Blindness or low vision (b) Deaf and Hard of hearing (c) Locomotor disability or Cerebral Palsy, Leprosy Cured, Dwarfism, Acid attack victims and muscular dystrophy … 1% … 1% … 1% Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 6 intellectual disability, specific (d) Autism, learning disability and mental illness ..... 1% (e) Multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities.. 1% Explanation (D):- For the purpose of clause (b), reservation to the extent of minimum of 1% each, out of the total time for posts advertisement from recruitment to the common cadre of Jammu and Kashmir and Ladakh Judicial Service (other than Higher Judicial Service), shall be provided to the Schedules Tribes belonging to Districts of Leh and Kargil of the Union Territory of Ladakh till common cadre/Service is bifurcated”.

#12. The petitioner, the respondent no.5 and other eligible candidates applied for the aforesaid advertised posts. As far as the conduct of the examination is concerned, there is no dispute. Of those who had successfully qualified in the preliminary examination, one-third of the total number of candidates who appeared in the preliminary examination or twenty-five times the total number of vacancies to be filled in the service, which was lower, were eligible to appear in the written test, and from amongst the successful candidates in the written test, a number of candidates corresponding to three times the vacancies were called for the interview. Thereafter, candidates obtaining such minimum qualifying marks, subject-wise and in the aggregate, fixed by the Commission after considering the results of the examination and the number of candidates to be filled, were summoned for viva voce.

#13. We may not go into detailed consideration of some of these aspects as there is no dispute up to the stage of declaration of marks of those candidates who were called for interview. Thus, there is no dispute about the passing of the petitioner and respondent No.5 in the written test and being called for the interview in this petition. Suffice it to say that vide Notification No. PSC/Exam/2024/04 dated

03.04.2024, the result was declared in respect of 208 candidates who were called for interview by notifying the marks obtained by each of the Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 7 candidates and categories under which the candidates applied (vide Annexure I to the aforesaid Notification dated 03.04.2024).

#14. Based on the said result, the select list was prepared consisting of 69 (sixty-nine) candidates (vide Annexure II to the aforesaid Notification dated

03.04.2024), in which the name of the petitioner did not figure either under the Open Merit category or under the Scheduled Tribe category to which she belongs. Of the aforesaid select list of 69 (sixty nine) candidates, names of 07 (seven) Scheduled Tribe candidates were shown including 1(one) ST candidate each from the Leh District and Kargil District purportedly in terms of Explanation (D) to Rule 4 as referred to above. The names recommended by the respondent No. 2, Commission for appointment to the aforesaid advertised posts for the ST category are as follows: Sl. No. in the Select List Roll Number Name of the Candidate Category Merit 49 54 56 58 60 62 63 9102384 Hina Parveen Goney ST (Leh)

483.00 9102058 Zirgham Hamid 9100430 Mehak Mehboob 9102783 Fazal-ul-Haq 9101575 Rahila Rashid 9103542 Ambir Khan (Respondent No.5) ST ST ST ST ST

472.50

471.00

465.50

464.00

459.50 9102295 Sadiq Ali Wazir ST (Kargil) 457.50 **178 9103740 Stanzin Itzes Chosket (Petitioner) ST (Leh) 461.50

#15. On perusal of the overall merit of the candidates who were called for interview what is discernible is that the name of the petitioner figures at Serial No.178 under Roll number 9103740 and her marks are shown as

461.50 under the category of Scheduled Tribe. On the other hand, the name of the Respondent No. 5 figures at serial number 62 and he obtained 459.50 marks.

#16. The grievance of the petitioner is that in the aforesaid list of 07 candidates belonging to the Scheduled Tribe category, though the Respondent No.5 had obtained less marks than the petitioner and thus less meritorious, he was included in the final merit list for the STs and not the petitioner. The petitioner obtained 461.15 marks and the said respondent Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 8 No. 5 obtained 459.50. Thus, evidently, the petitioner is more meritorious than Respondent No.5 who was included in the final select list at the cost of the petitioner. That the petitioner is more meritorious than Respondent No. 5 is thus, not in dispute. The petitioner thus being aggrieved by the inclusion of Respondent No.5 in the final select list to the exclusion of the petitioner under the category of Scheduled Tribes filed the present writ petition and sought the reliefs referred to above.

#17. The grounds on which the petitioner has challenged the inclusion of Respondent No.5 in the select list and seeking the aforesaid reliefs are as follows. (i) The first plea is that the petitioner being more meritorious than the Respondent No.5 in the Scheduled Tribe category, could not have been ignored and the Respondent No.5 having lesser marks than the petitioner, thus less meritorious candidate could not have been given a place in the final select list. (ii) According to the petitioner what “Explanation (D)” to Rule 4 of the Reservation Rules provides is that there has to be reservation to the extent of a minimum of 1% each out of the total posts advertised from time to time for the Judicial Service (other than the Higher Judicial Service) for the Scheduled Tribes belonging to Districts of Leh and Kargil of the Union Territory of Ladakh under Rule 4 (b) and as such, there is no bar in appointing more than 1% of the vacancies for candidates belonging to Scheduled Tribes hailing from the Districts of Leh and Kargil of UT of Ladakh. (iii) It has been contended that one of the candidates who had been recommended against the posts of Scheduled Tribes for Leh District i.e., Hina Parveen Goney, ST (Leh) was the most meritorious candidate amongst all the Scheduled Tribe candidates irrespective of the Districts from which the ST candidates hail, having scored 483.00 marks and as such, she was not required to be adjusted against the said 1 (one) post reserved for the STs of Leh District, and on the strength of her own merit, she could have been adjusted against any of the reserved posts in the Scheduled Tribe category without resorting to Explanation (D), in which event, the petitioner could Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 9 have been adjusted against the reserved post for the STs of Leh District in lieu of said Hina Parveen Goney (ST). (iv) It has been further submitted that in any event, since the petitioner was more meritorious than Respondent No.5 in the Scheduled Tribe category, there was no reason why the petitioner’s name was not included in the select list and Respondent No.5 who was less meritorious was included in the select list for the STs. (v) It has been contended that if the interpretation of Rule 4 adopted by the official respondents qua the Explanation (D) brought in vide S.O.633 dated 27.12.2023 is held to be correct, the aforesaid “Explanation (D)” would be rendered unconstitutional and would be liable to be quashed as it would act to the disadvantage of more meritorious candidates in the Scheduled Tribe category.

#18. This petition, however, has been resolutely contested by the Respondent No.2-Commission, and the Respondent No.5, the private respondent whose inclusion in the select list has been questioned by the petitioner. As far as the Respondent No.1-Union Territory of Jammu and Kashmir is concerned, it has been submitted that since the selection has been made by the Respondent No.2-Commission, it is for the Respondent No.2 to explain the position. Similarly, as far as the Respondent No.3-the High Court of Jammu and Kashmir and Ladakh is concerned, the similar stand taken is that since it is also not directly involved in conducting the competitive examination and preparing the select list of various categories which was done by the Respondent no.2, it is for the Respondent no.2 to explain the position.

#19. Thus, this Court would primarily focus on the interpretation adopted by and application of various provisions of the Reservation Act and Rules by the Respondent No.2-Commission while preparing the select list. Of course, the contention of the Respondent No.5 whose right has been questioned by the petitioner also would be required to be properly considered.

#20. The Respondent No.2-Commission and Respondent No.5-Ambir Khan, have filed their respective affidavits justifying the select list prepared. Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 10

#21. The Respondent No.2 has asserted that the Commission had committed no illegality or irregularity in preparing the select list. The Respondent no.5 apart from echoing the stand of the Respondent no. 2- Commission has also questioned the maintainability of the petition.

#22. It has been submitted by the Respondent No. 2- Commission that it is the responsibility of the Cadre Controlling Authority as well as of the Appointing Authority to maintain the roster of reservations and to give reservations as per the percentage provided for each reserved category and the Commission had merely followed the instructions and requirements conveyed to the Commission by the Cadre Controlling Authority as well as by the Appointing Authority. In this regard, it has been contented that the Department of Law, Justice and Parliamentary Affairs, UT of Jammu and Kashmir vide communication dated 26-08-2023 had referred 69 (sixty- none) posts of Civil Judges (Junior Division) to the Jammu and Kashmir Public Service Commission for selection through competitive examination. In the said referral letter dated 26-08-2023, it was specifically mentioned that out of the total posts being advertised, a quota of 1% each may be reserved for the residents of Districts of Leh and Kargil, which may be allotted to them from amongst the posts reserved for the ST category. The aforesaid communication received from the Department of Law, Justice and Parliamentary Affairs was based on the communication of the Registrar General of the High Court of Jammu & Kashmir and Ladakh dated 25-08- 2023 by which the High Court had recommended 1% reservation each to the residents of Leh and Kargil Districts of UT of Ladakh out of the quota earmarked for the Scheduled Tribe category. Thus, the Commission proceeded to work out the respective quota for reservation under various categories and ultimately issued the final select list in terms of the instructions mentioned above so received from the Cadre Controlling Authority as well as the Appointing Authority and accordingly, out of the 07 (seven) posts for Scheduled Tribe category, 2 (two) posts were reserved, one each for the Districts of Leh and Kargil and the rest allotted to the STs of other districts.

#23. It has been contended by the Respondent No.2-Commission that the Commission had effected the reservation by restricting the zone of Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 11 consideration of candidates belonging to the Scheduled Tribe category i.e., Scheduled Tribes of Leh District, Scheduled Tribes of Kargil District and Scheduled Tribes of UT of Jammu and Kashmir, as the reservation is area based and resultantly, one meritorious ST candidate each from Leh and Kargil Districts with 483.00 marks (Hina Parveen Goney) and 457.50 marks (Sadiq Ali Wazir) respectively were selected against the 1% quota each for the Districts of Leh and Kargil as mentioned in the referral letters received by the Respondent No.2-Commission from the Cadre Controlling Authority as well as the Appointing Authority.

#24. It is the stand of the Respondent 2-Commission that the object and purpose underlying reservation for Leh and Kargil Districts have a direct nexus with the residence and that too with the category of Tribe.

#25. It has been contended that though there may be a Scheduled Tribe category, an eligible person can only be the candidate in his respective area. Thus, a candidate belonging to Scheduled Tribe category of UT of Jammu and Kashmir cannot encroach upon the reservation meant for that particular tribe of the area of Leh and Kargil Districts.

#26. According to the Respondent 2-Commission, the consideration has to be inter se candidates belonging to the respective areas with reference to the category of Schedule Tribe and any other method would be in derogation of the purpose, object, and the underlining principle for incorporating Explanation (D) to Rule 4.

#27. The Respondent No.2-Commission also contended that none amongst the Scheduled Tribe candidates, particularly ST candidates of any of the aforesaid sub-categories has higher marks than the cut-off fixed under the Open Merit category. Further, as regards the plea taken by the petitioner about the S.O. 633 dated 27.12.2023 by which Explanation (D) was brought into Rule 4 of the Reservation Rules as being unconstitutional, it has been contended that it is also quite misplaced. In fact, what was required to be done by the Commission was to apply the said Explanation (D) by recommending one candidate each belonging to the Scheduled Tribes of Leh District and Kargil District in terms of the aforesaid Explanation (D) to which the petitioner cannot have any grievance as otherwise, inclusion of the petitioner who belongs to ST category from Leh District would be Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 12 dehors the aforesaid Explanation (D), as it would exceed the quota of 01% for the STs of Leh District.

#28. The Respondent No.5 has also vehemently opposed the petition. It has been firstly contended that the writ petition is pre-mature and not maintainable for the reason that there could not be a challenge to the recommendation made by the Commission as it is merely at the stage of recommendation and no right has accrued to the petitioner or any other candidate. Further, as regards the contention of the petitioner that the S.O. 633 dated 27.12.2023 is unconstitutional, it has been contended that the said amendment has a nexus with the population of Scheduled Tribes in the UT of Ladakh as well as Scheduled Tribes in the UT of Jammu and Kashmir. The said S.O. 633 carves out a sub-quota for the ST candidates hailing from the Union Territory of Ladakh, and as such, it does not suffer from any illegality.

#29. It has been contended that what S.O. 633 aims to achieve is to provide 1% reservation each for the Scheduled Tribes belonging to Districts of Leh and Kargil of the Union Territory of Ladakh inhabiting there, out of the total posts advertised for the STs, so that in any eventuality, reservation of 1% each for the two Districts UT of Ladakh is not taken away by the STs hailing from the UT of Jammu and Kashmir and vice verse and the said S.O. 633 would ensure that Scheduled Tribes of Ladakh do not eat into the quota made for the Scheduled Tribes of the UT of Jammu and Kashmir on the basis of population in both the Union Territories.

#30. Thus, the S.O. 633 which has a reasonable nexus with the population bifurcation of the Scheduled Tribes of Ladakh and Scheduled Tribes of Jammu and Kashmir cannot be questioned. It has been, accordingly, contended the aforesaid sub- classification of Scheduled Tribes is not baseless.

#31. It has been also contended that the aforesaid provision of reservation for the Scheduled Tribes of Leh and Kargil Districts does not amount to sub-classification of Scheduled Tribe category but it is a quota for the UT of Ladakh for the two districts of Leh and Kargil which is to be ensured through representation by way of reserving the posts for the Scheduled Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 13 Tribes of Leh and Scheduled Tribes of Kargil and which has been properly applied by the Commission. It was contended that the Commission by selecting Hina Parveen Goney an ST from Leh District and Sadiq Ali Wazir, an ST from Kargil District it was ensured that the aforesaid reservation contemplated under Explanation (D) is fully complied with. Thus, the Commission having selected Hina Parveen Goney from Leh District, and Sadiq Ali Wazir from Kargil District had complied with the requirements of Explanation (D), if any other selection is to be made from amongst the candidates of Scheduled Tribes of Leh District as claimed by the petitioner, it would hurt the claims of the other Scheduled Tribes of the UT of Jammu and Kashmir and cause great injustice to them.

#32. It has been contended that S.O. 633 intends to provide reservation for the Scheduled Tribes of Leh and Kargil Districts and should not adversely affect the interest of the Scheduled Tribes of the UT of Jammu and Kashmir and as such, the question of bringing merit for making such selection amongst the Scheduled Tribe category does not arise.

#33. Accordingly, it has been submitted that any other interpretation would be contrary to the purpose and intent of S.O. 633, and in support of his contentions, learned counsel for the Respondent No.5 has relied upon the following decisions of the Hon’ble Supreme Court:-

#1. Janhit Abhiyan versus Union of India, (2023)5 SCC 1. 2. Indra Sawhney versus Union of India, 1992 Supp (3) SCC 217.

#34. Learned Advocate General for the Respondent no.1, Union Territory of Jammu and Kashmir has justified the aforesaid S.O. 633 as it provides reservation for the STs of Leh and Kargil Districts to ensure that despite meager population, ST candidates from these geographical areas are properly represented in the judicial service and as such, the STs of Leh and Kargil Districts are of different category from the rest of STs in Jammu and Kashmir and hence, there cannot be intermingling of STs of Leh and STs of Kargil of the UT of Ladakh with the STs of other areas in the UT of Jammu and Kashmir.

#35. It has been submitted that the reservation has been made for the STs Leh and STs Kargil i.e., for the Union Territory of Ladakh and since the Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 14 reservation has been made for Union Territory of Ladakh sub-divided into ST Leh and ST Kargil, the reservation for the STs of Leh and STs of Kargil Districts has to be confined to the Union Territory of Ladakh and cannot be applied to the other UT of Jammu and Kashmir. In this regard, the learned Advocate General has relied on the decisions of the Hon’ble Supreme Court in Bir Singh vs. Delhi Jal Board, (2018) 10 SCC 312, in which it was held that SCs/STs in relation to a particular State/UT are not entitled to benefits allowed to SCs/STs in the matter of employment/education in any other State/UT upon migration to such other State/UT, as also held in Deepak Kumar & Ors. vs. District and Sessions Judge, Delhi &Ors. 2012 (132) DRJ 169 (FB).

#36. It has been submitted that with the bifurcation of the erstwhile State of Jammu and Kashmir into two Union Territories, namely, Union Territory of Jammu and Kashmir and Union Territory of Ladakh, though judicial service is not yet bifurcated, the Rules contemplate two separate Union Territories and the aforesaid Explanation (D) is meant for the benefit of the ST candidates from Union Territory of Ladakh and as such, the same cannot adversely affect the interests of the candidates from the Union Territory of Jammu and Kashmir.

#37. Further, it has been submitted that the petitioner having participated in the selection process fully knowing the application of the reservation laws and rules as provided under the Jammu and Kashmir Reservation Act, 2004 and Jammu and Kashmir Reservation Rules, 2005 cannot take a U- turn now and question the recruitment process and the select list after having not been found selected. In this regard, the decision in Tajvir Singh Sodhi &Ors. vs. The State of Jammu and Kashmir &Ors. 2023, LiveLaw (SC) 253 has been relied on, to press home the contention that once a candidate had submitted herself to the interview process with no demur or protest, the same cannot be challenged subsequently.

#38. It has been contended that since there are two Union Territories and Explanation (D) has been specifically incorporated to Rule 4 to ensure representation of the Scheduled Tribes of Leh and Kargil Districts belonging to Union Territory of Ladakh, and since there is a separate quota Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 15 meant for the inhabitants of said Union Territory of Ladakh, this cannot be clubbed with the Scheduled Tribes of Jammu and Kashmir, and this differentiation has been made by the rulemaking authorities consciously keeping in mind the population of Union Territory of Ladakh and there is a intelligible differentia in making the classification of the STs of Leh and Kargil belonging to Union Territory of Ladakh, from the STs of the remaining Districts of the UT of Jammu and Kashmir. Since separate reservations have already been provided for UT of Ladakh by reserving 1% each for the STs of Leh District and Kargil District, they cannot have a claim against the posts meant for the STs for the rest of the UT of Jammu and Kashmir.

#39. The challenge to the constitutionality of S.O. 633 by the petitioner for the purpose of reservation for the STs of Leh and Kargil, has been opposed based on the decision in Janhit Abhiyan v. Union of India (EWS Reservation), (2023) 5 SCC 1 and Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.

#40. The special provision for reservation to the extent of the minimum of 1% each, out of the total posts advertised from time to time for recruitment to the common cadre of Jammu and Kashmir and Ladakh Judicial Service for the STs belonging to Districts of Leh and Kargil of the Union Territory of Ladakh has been justified based on the decision in Kashmiri Sikh Community & Ors. Vs J&K and Others [OWP No. 2048 of 2017].

#41. Per contra, it has been contended by Mr. Rahul Pant, learned Senior Counsel for the petitioner, that reliance placed by learned AG on the decisions of the Hon’ble Supreme Court in the case of Bir Singh (supra) is misplaced as the facts and laws discussed therein are entirely different, as the reservation for the STs of Leh and Kargil Districts by incorporating Explanation (D) to Rule 4 is not based on territory but is a sub- categorization of the Scheduled Tribe category. It has been further submitted that though based on territory, yet the rule making authority did not contemplate the division of ST quota for the Districts of Leh and Kargil with the Districts of Jammu and Kashmir as separate sub-categorization. Thus, it would not be correct to state that reservations for the STs Leh and Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 16 Kargil are based on population but is purely a sub-classification of the ST category.

#42. In order to understand the issues in proper perspective, it would be necessary to first determine the nature of the reservation involved in the present case. It is now well settled that a reservation can be broadly of two kinds, namely, vertical and horizontal.

#43. The reservations in favor of Scheduled Castes, Scheduled Tribes, and Other Backward Classes [under Article 16(4)] also known as social reservation may be called vertical reservations whereas reservations in favor of the physically handicapped or ex-servicemen [under clause (1) of Article 16] can be referred to as horizontal reservations.

#44. Vertical reservations are normally compartmentalized, and there is no scope for intermixing of candidates amongst these compartments, except where any candidate belonging to any of the reserved categories can migrate or be adjusted against Open Merit category by virtue of merit. However, in respect of horizontal reservations, the reservation cuts across the vertical reservations in what is called interlocking reservations, which has been succinctly explained in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 in the following words, “812. We are also of the opinion that this rule of 50% applies only to reservations in favor of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as “vertical reservations” and “horizontal reservations”. The reservations in favor of Scheduled Castes, Scheduled Tribes and Other Backward Classes [under Article 16(4)] may be called vertical reservations whereas reservations in favor of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations — what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favor of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category, he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favor of backward class of citizens remains — and should remain — the Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 17 same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.”

#45. From the above, it is clear that different principles will apply to vertical reservation and horizontal reservation, and as such, it is important to understand first whether the reservation for the STs of Leh and Kargil Districts provided under Explanation (D) will be horizontal or vertical as the case may be, before we proceed to examine further the correctness of the application of the reservation rules by the Public Service Commission (Respondent No. 2).

#46. In the present case, on consideration of the Explanation (D) to Rule 4 of the Reservation Rules, 2004, and the advertisement, it is quite apparent that the reservation of seats for the STs of Leh and STs of Kargil District cannot be considered to be horizontal reservation, but part of the vertical reservation for the STs.

#47. Under the Jammu and Kashmir Reservation Rules, 2004, the vertical reservations provided are for the Scheduled Castes, Scheduled Tribes, Socially, Educationally Backward Classes and Economically Weaker Sections (EWSs) and Open Merit Category as mentioned under Rules 4 (a), (b), (c)and (c)(a) respectively. On the other hand, horizontal reservations have been provided for Ex-servicemen and Physically Challenged Persons as provided under Rules 4 (d) and (e) of the Reservation Rules 2005. The same is made clearer by Explanations (A), (B), and (C) to Rule 4, as already reproduced above in paragraph 10.

#48. As far as the reservation for the Scheduled Tribe category is concerned, there is no doubt that it is a vertical reservation for which 10% of the posts have been reserved for the STs as provided under Rule 4 (b). Since the reservation of 1% each for the STs of Districts of Leh and Kargil has been carved out from the overall 10% reservation for the STs, there should not be any confusion that this reservation for the STs of Districts of Leh and Kargil will be part of the vertical reservation, which will, in turn, determine the manner in which this reservation for the STs of Leh and Kargil Districts has to be applied. Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 18

#49. It may be also noted that horizontal reservation has been provided only for Ex-servicemen and Physically Challenged Persons, and for no other category. It is thus quite obvious that the reservation for the STs of the Districts of Leh and Kargil cannot be considered to be horizontal reservation. This reservation for the STs of Leh and Kargil Districts which is a reservation within a vertical reservation, is part of a vertical reservation without any attributes of horizontal reservation. Had it been a horizontal reservation, it would have cut across other categories of vertical reservation, which is not so. This reservation for the STs of Leh and Kargil Districts is confined only to the ST category a vertical reservation. It is a sub- categorization of the reserved category of the STs. The STs of the Districts of Leh and Kargil of the UT of Ladakh form a distinct group of reserved category within the reserved category of STs of both the UT of Jammu and Kashmir and UT of Ladakh.

#50. It is, however, important to note that the lawmaking authorities have not categorized the STs of the UT of Jammu and Kashmir as another/separate category of STs as has been done in respect of STs of Leh and Kargil Districts within the overall category of STs under Rule 4 (b). Thus, it would be fallacious and erroneous to conceive of another category of STs of the rest of the districts other than the Districts of Leh and Kargil, i.e., STs of the UT of Jammu and Kashmir, as sought to be portrayed by the Respondent Nos. 2 and 5, and even by the learned Advocate General. The lawmakers have not provided any specific and separate quota of reservation for the STs of the remaining Districts of the UT of Jammu and Kashmir as in the case of STs of Leh and Kargil Districts, though at the first glance, it appears that there are two categories of ST with specific reference to geographical areas.

#51. In our opinion, the consideration of reservation for the STs will be vis a vis firstly, the STs belonging to the Districts of Leh and Kargil as a distinct category for whom a minimum of 1% reservation has been provided for each of these two districts, and the other category is the STs of the combined UT of Jammu and Kashmir and UT of Ladakh, forming the second distinct category. There is no separate or distinct category of STs belonging to the remaining districts of UT of Jammu and Kashmir Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 19 mentioned under the rules. The reservation provided under Explanation (D) is thus part of the vertical reservation under Rule 4(b).

#52. Thus, on consideration of the Explanation (D) to Rule 4 of the Reservation Rules, 2004, and the advertisement, it is quite apparent that the reservation of posts for the STs of Leh District and STs of Kargil District is not a horizontal reservation but vertical reservation.

#53. Consequently, the principles applicable to horizontal reservation cannot be invoked in the present case and the principles applicable to vertical reservation have to be applied.

#54. In this regard, one may refer to the decision in Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 explaining the difference in vertical and horizontal reservations as under: reservations “8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: “For SC: 30 posts, of which 9 posts are for women.” We find that many a time this is wrongly described thus: “For SC: 21 posts for men and 9 posts for women, in all 30 posts.” Obviously, there is, and there can be, no reservation category of “male” or “men”. 8. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favor of SC, ST and OBC under Article 16(4) are “vertical favor of physically reservations”. Special handicapped, women, etc. under Articles 16(1) or 15(3) are “horizontal reservations”. Where a vertical reservation is made in favor of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney1, R.K. Sabharwal v. State of Punjab3, Union of India v. Virpal Singh Chauhan4 and Ritesh R. Sah v. Y.L. Yamul5.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Shameem Hamid Mir 2024.06.10 11:40 I attest to the accuracy and integrity of this document WP(C) No.935/2024 CM No.2287/2024 P a g e | 20 Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste women”. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical the horizontal reservation quota will be counted against reservation for women………………………..”