Jammu & Kashmir High Court
Mamit Kumar vs Ut Of Jammu And Kashmir Through … on 22 August, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
WP (C) No. 2771/2024
CM no. 6745/2024
Reserved on: 31.07.2025
Pronounced on: 22.08.2025
Mamit Kumar
S/o Sh. Hans Raj,
R/o Village Khour Deonia Tehsil R. S. Pura, District Jammu
.........Petitioner(s)
Through:
Mr. Rahul Pant Sr. Advocate with
Mr Dhruv Pant, Advocate
Mr Ayush Sharma, Advocate
Versus
1. UT of Jammu and Kashmir through Commissioner/ Secretary to
Government, Health and Medical Education Department J&K, Government,
Civil Secretariat, Jammu.
2. Jammu and Kashmir Public Service Commission,
Reshamghar Colony, Bakshi Nagar, Jammu, through its Secretary
3. Commissioner/Secretary to Government
General Administration Department,
Jammu and Kashmir Government, Civil Secretariat, Jammu.
......Respondent(s)
Through:
Mr Monika Kohli, Sr. AAG
Mr P. N. Raina, Sr. Advocate with
Ms Diksha Handoo, Advocate
Mr Raman Sharma, AAG
Mr F. A. Natnoo, Advocate
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
HON'BLE MR JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT
Per Moksha, J
1. The petitioner is assailing the order dated 13/11/2024, hereinafter to be
referred as impugned order, passed by the Central Administrative
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 1 of 15
Tribunal Jammu Bench, for short as Tribunal, in OA Nos. 474/2022 and
827/2022 titled Mamit Kumar v. Union Territory of J&K and others,
whereby the two petitions preferred by the petitioner to challenge the
O.M. No. GAD-MTGORBIV/200/2021-09-GAD-I dated 30.03.2022 and
communication No. ME-GZTED/56/2022 (e-office) dated 06.04.2022,
have been dismissed.
BRIEF FACTS
2. The petitioner is stated to be a post graduate in Oral Surgery and in his
capacity as such had applied for appointment against the post of
lecturer in the Government Dental College Srinagar in the year 2018
as a Scheduled Caste category candidate pursuant to the advertisement
issued by the respondents advertising various posts including the post
of lecturer in Oral Surgery. The said post, however, could not be filled
up as the petitioner was declared ineligible and no other candidate in
such category had applied.
3. The respondents subsequently issued an advertisement Notice No. 13-
PSC(DR-P) of 2021 dated 15.12.2021 wherein the post of lecturer in the
department of Oral Surgery was sought to be filled up as a second
special drive in the Scheduled Caste category. The petitioner applied for
the post again and his application form was duly entertained by the
Jammu and Kashmir Public Service Commission (JKPSC).
4. Thereafter, a notification dated 03.02.2022 was issued by the
respondents, by virtue of which, all the posts which had been referred
prior to 31.10.2019, in which selection had not been finalized, were
withdrawn.
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 2 of 15
5. The General Administration Department in terms of its decision bearing
O.M. No. GAD-MTGORBIV/200/2021-09-GAD-I dated 30.03.2022
directed the respondent-Department to restart roster from point No.1.
The General Administration Department (GAD) subsequently re-referred
the posts on 06.04.2022 including the post of lecturer in Oral Surgery
mentioning the post in question as Open Merit category post. The
respondent No. 2, thereafter, issued an advertisement notification bearing
No. 16-PSC (DR-P) of 2020 dated 12.07.2022 mentioning the post in
question in the Open Merit Category. The petitioner enquired as to how
the Schedule Caste post was changed into the Open Merit category post
and he was told that since S.O 127 dated 20.04.2020, has been issued
and the Jammu and Kashmir Reservation Rules, 2005, have been
amended as such the roster has been operated from Point No. 01.
6. Feeling aggrieved of the OM dated 30.03.2022, and the subsequent
advertisement dated 12.07.2022, the petitioner challenged the same by
filing two separate OA’s before the Tribunal to seek its quashment. The
respondents appeared and filed their objections to the OA’s. The tribunal
after considering the matter dismissed both OA’s.
7. It would be profitable to reproduce para 17 of the impugned judgment
herein:
“It is also seen that Reservation Rules have been amended
and the reservation roster has been substituted by virtue of
S.O. 127 of 2020. There cannot be any justification for
continuing with the roster points prescribed by the
unamended roster and since respondents have taken a
conscious decision for carrying out amendment in
Reservation Rules and has substituted the earlier
prescribed roster with the new roster. It is to be noted that
the applicant has applied for the post of Lecturer in the
Department of Oral Surgery in response to notification
dated 15.12.2021 which was published in the newspaperMohammad Yaseen Dar
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authenticity of this
document WP (C) No. 2771/2024 Page 3 of 15
after the said SO 127 of 2020 dated 20.04.2020. Therefore,
the applicant having applied for the post wherein the
position of SC in the roster point would be determined
based on the extant of SO 127 of 2020, cannot now claim
that he should be considered under SC roster point which
was prevailing prior to 15.12.2021 by virtue of the
unamended J&K Reservation Rules, 2005.
8. The petitioner being dissatisfied with the decision of the tribunal, filed
the present petition to seek setting aside of the order of the tribunal as
also the decision of the respondents dated 30.03.2022 and the
advertisement notification dated 12.07.2022 primarily on the ground that
the tribunal failed to appreciate that the vacancy in respect of the post of
lecturer in Oral Surgery was a backlog vacancy and was required to be
filled up as per the mandate of Section 5 of the Jammu and Kashmir
Reservation Act, 2004.
9. Upon notice respondents appeared and filed their objections resisting
the claim of the petitioner inter-alia on the grounds that none of the
constitutional, fundamental or statutory right of the petitioner has been
infringed by any of the acts of the respondent that may give a cause to
the petitioner to file the petition in hand; that the petitioner has not
approached this court with clean hands and has raised disputed
questions of fact which cannot be gone into by this court in its writ
jurisdiction; the respondent Health and Medical Education
Department, pursuant to communication of the General
Administration Department bearing No. GAD-
MTRGORBIV/200/2021-09-GAD-I dated 30.03.2022 had re-referred
118 vacancies of medical education to the Jammu and Kashmir Public
Service Commission vide letter dated 06.04.2022, which included the
01 post of lecturer in the department of Oral Surgery in Government
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 4 of 15
Dental College Srinagar under roster point 01 (OM) in terms of SO
127 of 2020; the writ petition suffers from suppressio-veri and
suggestio-falsi which renders it liable to be dismissed in limine.
10. We have heard learned counsel for the parties.
11. The learned Senior Counsel for the petitioner, while reiterating the
grounds taken in the writ petition, has laid much stress on the point
that the tribunal has erred in law by holding that the action taken by
the respondents in the instant matter for filling up the post in question
was justified, in that the tribunal has lost sight of the fact that the post
in question was indeed a backlog vacancy meant for the candidate
belonging to the Scheduled Caste category falling at serial No. 15 of
the roster point. The learned Senior Counsel while elaborating the
point further submitted that a backlog vacancy, in terms of the J&K
Reservation Rules, 2004, had to be filled up in terms of section 5 of
the Reservation Rules Act 2005, and not in terms of SO 127 of 2020.
The learned Senior Counsel in support of his submissions has referred
to and relied upon the judgement of the Supreme Court delivered in
case titled R.K Sabharwal and Ors VS State of Punjab and Ors
reported as 1995 SCC (2) 745.
12. The vacancy has to be operated in terms of SRO 126-Reservation Act
& Rules. Section 5 & Rule 5(2) (3) have neither been amended nor
been substituted as such respondents could not have substituted roster
point as per SO 127. It had to start from S. No 15 vacancy of SC.
5. Roster for direct recruitment
[(1) With a view to giving effect to the reservation herein
before provided in this part, the appointing authority shall,
in respect of each service, class, category and grade in the
Mohammad Yaseen Dar
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authenticity of this
document WP (C) No. 2771/2024 Page 5 of 15
services and posts under the State, maintain a roster of 100
vacancies in the form given herein after:
1. Open Competition
2. Backward Area
3. Scheduled Caste
4. Open Competition
5. Open Competition
6. Scheduled Tribe
7. Open Competition
8. Open Competition
9. Economically Weaker Section
Line of Actual Control/International
10.
Border
11. Open Competition
12. Backward Area
*[Pahari Ethnic People] * Substituted
for “Pahari Speaking People
13.
(PSP)” by S.O 537 of 2022
dated 19.10.2022
14. Open Competition
15. Scheduled Caste
16. Scheduled Tribe
17. Social Caste
18. Open Competition
19. Economically Weaker Section
20. Open Competition
21. Open Competition
22. Backward Area
23. Open Competition
24. Open Competition
25. Open Competition
26. Scheduled Tribe
27. Scheduled Caste
28. Open Competition
29. Economically Weaker Section
30. Open Competition
31. Open Competition
32. Open Competition
33. Backward Area
34. Open Competition
*[Pahari Ethnic People] * Substituted
for “Pahari Speaking People
35.
(PSP)” by S.O 537 of 2022
dated 19.10.2022Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 6 of 15
36. Scheduled Tribe
37. Open Competition
Line of Actual Contro/International
38.
Border
39. Scheduled Caste
40. Economically Weaker Section
41. Open Competition
42. Social Caste
43. Backward Area
44. Open Competition
45. Open Competition
46. Scheduled Tribe
47. Open Competition
48. Open Competition
49. Open Competition
50. Economically Weaker Section
51. Scheduled Caste
52. Open Competition
53. Backward Area
54. Open Competition
55. Open Competition
56. Scheduled Tribe
57. Open Competition
58. Open Competition
59. Open Competition
60. Economically Weaker Section
61. Open Competition
*[Pahari Ethnic People] * Substituted
for “Pahari Speaking People
62.
(PSP)” by S.O 537 of 2022
dated 19.10.2022
63. Scheduled Caste
64. Backward Area
65. Open Competition
66. Scheduled Tribe
Line of Actual Contro/International
67.
Border
68. Open Competition
69. Open Competition
70. Economically Weaker Section
71. Social Caste
72. Open Competition
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 7 of 15
73. Open Competition
74. Backward Area
75. Scheduled Caste
76. Scheduled Tribe
77. Open Competition
78. Open Competition
79. Open Competition
80. Open Competition
81. Economically Weaker Section
82. Open Competition
83. Open Competition
84. Backward Area
85. Open Competition
86. Scheduled Tribe
87. Open Competition
*[Pahari Ethnic People] * Substituted
for “Pahari Speaking People
88.
(PSP)” by S.O 537 of 2022
dated 19.10.2022
89. Scheduled Caste
90. Open Competition
91. Economically Weaker Section
92. Open Competition
93. Social Caste
94. Open Competition
95. Backward Area
96. Scheduled Tribe
Line of Actual Control/International
97.
Border
98. Open Competition
99. Economically Weaker Section
100. Open Competition
(2) The roster shall be maintained as a running account from year
to year and will start at the commencement of a year at the point
following the point which was utilized at the end of the previous
year.
Provided that where the last point utilized in the preceding
year was a reserved point and was treated as un-reserved for
want of a suitable candidate from the reserved class, the first
point to be started as aforesaid shall be the reserved point:
Provided further that where, on any occasion of selection
in any year, a reserved vacancy is treated as un-reserved for
want of a suitable candidate from the reserved category, theMohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 8 of 15
succeeding un-reserved vacancy shall on the next occasion of
selection in that year be treated reserved.
(3) The roster register shall be maintained as per the details given
in Annexure-“E”.
13. Per contra, the learned senior counsel for the respondents, submitted
that the impugned judgement is quite reasoned as the process for the
vacancy in question was not finalised by the time SO 127 of 2020
came into effect, therefore, the respondents were bound to follow the
purport of the said SO and restart the roster from point No. 1 as the
said SO substituted the earlier rule governing the subject.
14. Learned senior counsel for respondent No. 4 Mr. P. N Raina, has
stated that after Reorganization in 2019 pursuant to abrogation of
Article 370, State of J&K was divided into UT of J&K and Ladakh, as
such, it had become necessary for the Government of UT of J&K to
substitute/amend Reservation Rule 5. Petitioner has neither questioned
policy decision i.e., SO 127 nor withdrawal of the posts by the
Government. Learned senior counsel further submits that the
Executive has the power to frame rules. Learned counsel has relied
upon judgment of the Apex Court delivered in case titled Indira
Sawhney and others v. Union of India, reported as 1992 Supp 3
SCC 217.
15. We have given our thoughtful consideration to the submissions
advanced by the learned counsel for the parties and perused the
impugned order as also the allied material made available.
16. It is an admitted position that the petitioner in response to the
advertisement issued by the respondents for filling up the vacancy in
Oral Surgery, had offered his candidature in Scheduled Caste
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 9 of 15
category, however, he was adjudged ineligible and post remained
unfilled as there was no other eligible candidate in the said category to
be selected and appointed for the post in question. The contention of
the petitioner that the post was again advertised after having remained
unfilled because of his ineligibility and that the petitioner again
responded to the advertisement is also not denied by the respondents,
however, at the same time, the petitioner on his own showing has
projected that during the currency of the advertisement issued by the
respondents in the year 2021 the respondents instructed the
departments in terms of notification dated 03.02.2022 to recall the
indents made in respect of various posts which had been referred prior
to 31.10.2019 for an obvious reason that the same are required to be
resubmitted and filled up in terms of the SO 127 of 2020, accordingly,
all those posts where the selection had not been finalized were
recalled. These posts include the one i.e., the subject matter of the
present writ petition.
17. The controversy projected in the OA’s before the tribunal as also in
the instant petition is only in respect of the mechanism adopted by the
respondents thereby following the roster point for filling up the
vacancy in question, while the petitioner contends that the vacancy
belongs to the scheduled caste category being a backlog vacancy, the
respondents take the same as a fresh vacancy to be placed at point 1 of
the roster in pursuance to the SO 127 of 2020.
18. The roster comparison prior to and after the commencement of the SO
127 of 2020, for facility of reference, is taken note of herein, thus:
Previous Roster New Roster Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document WP (C) No. 2771/2024 Page 10 of 15 1 Open competition 1 Open competition 2 Backward Area 2 Backward Area 3 Scheduled Caste 3 Scheduled Caste 4 Open competition 4 Open competition 5 Open competition 5 Open competition 6 Scheduled Tribe 6 Scheduled Tribe 7 Backward area 7 Open competition 8 Open competition 8 Open competition 9 Open competition 9 Economically Weaker Section 10 Line of actual control 10 Line of Actual Control/ International Border 11 Open competition 11 Open competition 12 Backward area 12 Backward Area 13 Open competition 13 Pahari Speaking People (PSP) 14 Open competition 14 Open competition 15 Scheduled Caste 15 Scheduled Caste
In terms of SO 127 of 2020, Sub-rule (1) of Rule 5 has been
substituted for maintaining a roster of 100 vacancies.
19. The post in question has admittedly been advertised twice before the
posts were withdrawn and the petitioner has got an opportunity to
respond to both the advertisement notices, however, the subsequent
withdrawal of the posts and its re-submission with the different
methods to the recruiting agency has constrained the petitioner to
challenge the action before the court of law. Essentially, it is the
withdrawal of the posts including the post in question that has started
the rigmarole and the subsequent re-submission as also the issuance
of the advertisement notices are only an offshoot of such an exercise.
One can very conveniently find that the withdrawal of the posts
including the post in question was not ipso facto an action in vacuum
but had a very well founded origin in SO 127 of 2020. The OM dated
Mohammad Yaseen Dar
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authenticity of this
document WP (C) No. 2771/2024 Page 11 of 15
13.03.2022 which mandated fresh reservation roster for future
vacancies and the communication dated 06.04.2022 by virtue of
which the post of lecturer in the discipline of Oral Surgery in the
Government Medical College Srinagar was mentioned in the Open
Merit category had emanated from SO 127 of 2020. Therefore, the
petitioner having questioned the OM dated 13.03.2022 and the
communication dated 06.04.2022 ought to have challenged the SO
127 of 2020 as well because it is the said SO the womb of which has
given birth to the OM dated 13.03.2022 and the communication dated
06.04.2022.
20. As per above table, it is pertinent to note that roster point at No. 7(OM
has been substituted as Backward Area) No. 9 (OM- substituted as
Economically Weaker Section) No. 13 (OM-substituted as Pahari
Speaking People, PSP) so on & so forth till roster point 15. The roster
points have been allotted after proper scrutiny of posts, designations,
number of vacancies, eligibility criteria with respect to the
Recruitment Rules of the concerned department, so as to ensure that
the posts which have been re-referred are under relevant categories as
per percentage of reservation fixed under relevant categories.
21. After substitution of new roster, respondents have rightly stated that
after re-referral of 175 gazetted posts, roster was followed afresh in
terms of OM dated 30.03.2022. It would be relevant to extract the
concluding paragraph of the OM dated 30.03.2022, herein, thus:
“Besides, while referring the posts to the recruiting
agency, the department shall maintain the roster points as
per S.O 127 of 2020 and also maintain fresh reservation
roster register for reference and referral of vacancies in
future.”
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 12 of 15
22. The perusal of the above referred text would make it clear that the
respondents have re-framed/substituted roster strictly on the basis of
reservation fixed as per Act.
23. The tribunal in terms of the impugned order has observed that the S.O.
127 of 2020, has substituted the reservation rules meaning thereby that
the rule the petitioner is seeking application of to the instant case is
unfounded as the SO 127 of 2020, had completely replaced the said
rule and it was SO 127 of 2020, that governed the field, as such,
dismissed the OA’s of the petitioner. This is, in essence, the only
finding that the tribunal has returned in respect of the controversy and
of which the petitioner is aggrieved of, however, we do not see any
infirmity attached with the observation of the Tribunal as the finding
is well reasoned and logical too, in that, the SO 127 of 2020 had
actually amended/substituted the Reservation Rules, & the roster
points, thus, was to be made applicable to every vacancy that had not
been filled up till the time the said SO came into effect. The
respondents appear to have acted quite fairly in the matter by adhering
to the instructions conveyed in pursuance to the issuance of SO 127 of
2020. This mechanism was not followed in isolation particularly for
this post but for all such posts which were not finalised by the time the
SO 127 of 2020 came into effect.
24. The contention of the learned Senior Counsel for the petitioner that
the post in question was a backlog vacancy for having been put to
advertisement twice before the issuance of SO 127 of 2020 and as
such ought to have been placed in the Scheduled Caste category only
Mohammad Yaseen Dar
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authenticity of this
document WP (C) No. 2771/2024 Page 13 of 15
at roster point 15 does not carry weight in absence of the challenge
thrown to SO 127 of 2020, dated 20.04.2020. Once roster was
substituted in terms of SO 127 of 2020, it was incumbent upon the
petitioner to challenge SO 127 of 2020 as rightly contended by
learned counsel for the respondent. Moreover, almost all selections
have already been made by the Government in terms of SO 127 of
2020, the candidates have been selected and appointed except in this
case. The SO 127 of 2020 has admittedly introduced reservation for
certain new categories also as indicated in the table supra, therefore,
the new mechanism was necessarily to be followed, in absence of any
challenge to it, from the start so as to ensure that the benefit of
reservation is extended in favour of the candidates of such categories
at the earliest and that was possible only when the roster was followed
from the starting point rather than allowing it to operate from the point
where it had reached prior to commencement of SO 127 of 2020.
Having said that, the respondents, do not appear to have acted
arbitrarily in any way while following the reservation roster from the
start in terms of SO 127 of 2020.
25. The ratio laid down by the Apex Court in case titled Indira Sawhney
and others v. Union of India, reported as 1992 Supp 3 SCC 217 is
clear that the Executive can provide for the measure of the nature
contemplated by Article 16 (4), therefore, on that count also the
petitioner does not have a case in his favour. Relevant portion of
paragraph no. 735 of the judgment supra is taken note of herein:
“735. The words “order”, “bye-law”, “rule” and “regulation” in this
definition are significant. Reading the definition of “State” in Article
12 and of “Law” in Article 13(3)(a), it becomes clear that a measureMohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 14 of 15
of the nature contemplated by Article 16(4) can be provided not only
by the Parliament/Legislature but also by the executive in respect of
Central/State services and by the local bodies and “other authorities”
contemplated by Article 12, in respect of their respective services.”
26. For all what has been stated hereinbefore, we do not see any
perversity attached with the impugned order. Accordingly, the writ
petition is dismissed being devoid of any merit. The impugned order
as a consequence thereto is maintained.
(MOHD. YOUSUF WANI) (MOKSHA KHAJURIA KAZMI)
JUDGE JUDGE
Srinagar
22.08.2025
"Mohammad Yasin Dar"
Whether the Judgment is reportable: Yes/No.
Whether the Judgment is speaking: Yes/No
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document WP (C) No. 2771/2024 Page 15 of 15