The Jammu and Kashmir High Court today issued notice in a writ petition challenging the policy of “100% domicile reservation” in public employment in force throughout the Union Territories of Jammu and Kashmir and Ladakh.
The single bench of Justice Tashi Rabstan has issued notice to the Union Ministry of Home Affairs and UT Administration.
The plea has been filed challenging Sections 3A, 5A, 6, 7,& 8 of the Jammu and Kashmir Civil Services( Decentralisation and Recruitment) Act, 2010, as violative of Article 14, 16, 19 and 21 of the Constitution.
The plea was earlier not entertained by the Supreme Court, which granted the petitioners the liberty last month to move the High Court “and exhaust that option” first.
The challenged provisions were inserted by the Ministry for Home Affairs (MHA) invoking the powers conferred upon it by Section 96 of the Jammu and Kashmir Reorganisation Act, 2019 (enacted after the abrogation of Article 370 of the Indian Constitution).
The petitioners have contended that since abrogation of Article 370, the UT is equally subject to all laws and Supreme Court judgements that are applicable to the rest of the country. Therefore, if any reservation has to be granted in the UT, on the basis of residence, the same may be done according to Article 16(3) of the Constitution.
These provisions enforce a total reservation in public employment for “domiciles” of the Union Territories, the petition states.
Invoking Section 96, the MHA made “substantial amendments” in the Jammu and Kashmir (Decentralisation and Recruitment) Act, 2010, the petitioners aver.
It is asserted that, Section 5A of the Act which stipulates that no person shall be eligible for appointment to any post unless he is domicile of the Union Territory of J&K would render the guarantee of equal opportunity under Article 16(3) “meaningless” and “illusory”.
Emphasizing that only Parliament could enact laws that give domicile or residence-based reservation, petitioner state:
“Power Delegated under Section-96 was only for the purpose of facilitating the application of already prevailing law in former state of J&K or to make laws (which were applicable in rest of India) applicable to new Union territories of J&K and Ladakh. Every modification or adaption of any law shall be done in that reference only and not beyond.”
The petitioners illustrate their case with a narration of their own disadvantage under the new rules. Stating that the father of one of the petitioners served the state government at Kargil for more than a decade, it is pointed out that he is precluded him from public employment in the Union Territory because of the domicile rule.
The petitioners claim locus standi to file the petition on the ground that the reservations “violate their right to public employment” in the Union Territories.
The matter is now listed for hearing on September 3, 2020.