The Supreme Court on Wednesday refused to entertain a petition challenging 100 percent reservation in public employment for J&K domiciles in the UT.
Taking it up through video conferencing, a three judge bench comprising Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat refused to entertain the plea though it asked Ladakh-based lawyer Najum Ul Huda to move the Jammu and Kashmir High Court with his plea.
Lawyers, Najum ul Huda of Kargil and Nishant Khatri of Bhadurgarh, Haryana, in their petition to the SC had challenged sections 3A, 5A, 6, 7 & 8 of the J&K Civil Services (Decentralization and Recruitment) Act, 2010, terming them as "violative of Articles 14, 16, 19 & 21 of the constitution".
The petitioners contend that after the abrogation of Article 370, all laws and judgments of the SC "applicable to rest of the country are applicable to J&K also as it does not enjoy the special status."
If any reservation has to be granted in the UT on the basis of residence, "it may be done in consonance with article 16 (3) of the constitution," the petitioners contend.
"As per Article 16 (2) of the constitution no citizen shall be discriminated on the grounds of residence and if any special privilege or reservation is to be given to local residents of the state or UT . . . only (the) parliament under article 16 (3) is competent to enact a law which gives domicile or resident-based reservation," the petitioners submit.
The petitioners pleaded that by amending Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 by two executive orders dated 31-03-2020 and 03-04-2020, the "Union Ministry of Home Affairs has blocked the jobs in J&K for outsiders who are not domiciles of J&K as per these orders (sic)."
The union Ministry of Home Affairs under section 96 of J&K Reorganization Act had amended Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act whereby the term Permanent Resident of J&K was replaced with domiciles of UT of J&K.
The amendment under section 3A underlines that children of the central government employees who have served in the erstwhile state of J&K for a period of 10 years were included as domiciles of the UT.
The move, they submit, has "closed" doors for the residents of 28 states and 8 UTs for public employment in J&K.
The petitioners submit that section 5A of the Act which stipulates that no person shall be eligible for appointment to any post unless he is a domicile of Jammu and Kashmir, would render the guarantee of equal opportunity under Article 16(3) "meaningless" and "illusory".
Notably this provision was inserted in the Act by an executive order passed by the Union Ministry of Home Affairs on March 31, 2020, in exercise of powers to modify under Section 96 of the Act.
The parliament, the petitioners submit, has never delegated law making power of Article 16(3) of Constitution to the central government under Section-96 of J&K reorganization Act, 2019.
They contend that power "delegated under section 96 should not be in any manner construed as delegation of parliamentary power of Article 16 (3) A of constitution".
"Power delegated under Section-96 was only for the purpose of facilitating the application of already prevailing law in erstwhile state of J&K or to make laws which were applicable in rest of India applicable to new UTs of J&K and Ladakh." Every modification or adaption of any law, the petition said, shall be done in that reference only and not beyond.
The petitioners further submit that the reservation should not exceed 50 percent in keeping with Article 16 of the Constriction and judgments of Supreme Court.
"100 percent reservation on the basis of domicile or residence is . . . in violation of the law as it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) meaningless and illusory" the petitioners plead. They submit that 100 percent reservation for domicile of J&K was "clear cut violation of law laid down by Supreme Court".
The petitioners submit: "It is quite bizarre that IAS and IPS officers who have served in erstwhile state of J&K for 10 years and are now living in any part of the world, their children will be treated as domicile of J&K and will be benefited by the amendments, but the child of a Ladakhi who has served health department in J&K for 10 years will not be treated as domicile of J&K." Pertinently, father of one of the petitioners has served in J&K as medical officer for ten years.
It may be mentioned that in March, the Jammu and Kashmir Reorganization (Adaptation of State Laws) Order 2020 was issued, which notified changes in the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act. Section 5A of the Act stated that Level 4 posts will be reserved for domiciles.
In August last year, parliament abolished Article 370, which had provided special status to Jammu and Kashmir, and then divided the state into two UTs which were Jammu and Kashmir and Ladakh.