All Hindus Living In Kashmir Valley Cannot Claim Benefits Meant For Kashmiri Pandits: J&K High Court

The Jammu and Kashmir High Court has held that all Hindus residing in the Valley cannot be said to be a Kashmiri Pandit, thereby allowing them to avail the benefits of the schemes meant exclusively for the Pandits. While disposing of the plea seeking benefit to the petitioners, under the package for return and rehabilitation of Kashmiri migrants, Justice Sanjeev Kumar held that,

"In the absence of a specific definition of the term "Kashmiri Pandit family," the only way to find out the true meaning of the term is to apply the common parlance principle. There is no denying the fact that in common parlance, Kashmiri Pandit is a community of Kashmiri-speaking Brahmins living in the Valley for generations and are distinctly identified by their dress, customs, and traditions, etc. "Kashmiri Pandits" is a separately identifiable community distinct from other Hindus residing in the Valley like Rajputs, Brahmins other than Kashmiri Pandits, Scheduled Castes, Scheduled Tribes, and many others."

Background

In the year 2009, the Government of India issued Prime Minister's Package for return and rehabilitation to Kashmiri migrants in Kashmir Valley. The said package was later extended to non-migrant Kashmiri Pandits as well.

In December 2020, the State issued an advertisement for filling up 1997 posts while carrying a recruitment drive. The advertisement was also open for the Kashmiri Pandits who had not migrated. However, these categories of people were required to produce bonafide documents certifying that such candidates had not migrated and were, accordingly, not registered with the Commissioner (Relief). The Deputy Commissioners were also to certify that the candidates, seeking the benefit of special recruitment drive carried under Prime Minister's package, belonged to the community described as "Kashmiri Pandits."

The Deputy Commissioners chose not to grant such certificates in respect of a group of non-migrant Kashmiri Hindus, on the analogy that they did not belong to the community of "Kashmiri Pandits."

After that, the present petition was filed, and by way of an interim measure, the Court allowed them to participate in the selection process. The petitioner now contends that the selection process has been almost concluded and the selection list framed. However, the respondents have withheld the selection of the petitioners on the ground that they do not meet the requirement of production of the "Kashmiri Pandit" certificate issued by the competent authority.

Advocate Altaf Mehraj, appearing for the petitioners, argued that the benefit of the Prime Minister's Package cannot be restricted to only one community, i.e., "Kashmiri Pandits," and ignoring other Hindu castes, communities,, and clans who have similarly suffered due to the onslaught in 1990. It was submitted that all Hindus residing in the Valley and have not migrated constitute one class. Their further classification based on their identities is not permissible in law. It is alleged that the State has refused to issue certificates in bonafide cases in favor of candidates who are similarly situated with the petitioners and carry the surname of "Singh."

It is further argued that the term "Kashmiri Pandits" is wide enough to include all non-migrant castes and communities of Hindus residing in the Valley and have similarly suffered as non-migrant Kashmiri Pandits.

Assistant Solicitor General of India, T.M. Shamsi, along with Government Advocates Usmani Gani and Sajad Ashraf, opposed the petition by submitting that various posts were created for Kashmiri migrants on a supernumerary basis across various departments. In terms of Rule 2 of the Jammu & Kashmir Migrants (Special Drive) Recruitment Rules, 2009, entitling the following category of people as eligible for the said posts:

(i) a person who has migrated from Kashmir Valley after 1st of November, 1989 and is registered as such with the Relief Commissioner;

(ii) a person who has migrated from Kashmir Valley after 1st of November, 1989, but has not been so registered with the Relief Commissioner on the ground of his being in service of Government in any moving officer or having left the Valley or any other part of the State in pursuit of occupation or vocation or otherwise and is possessed of immovable property at the place from where he has migrated but is unable to ordinarily reside there due to the disturbed conditions;

(iii) an internally displaced person who has migrated within Valley from his original place of residence in Kashmir Valley for security reasons and is registered as such with the Relief and Rehabilitation Commissioner, Migrants; and

(iv) a person who belongs to the Kashmiri Pandit Family and has not migrated from Kashmir Valley after 1st of November 1989 and is presently residing in the Kashmir Valley.

Referring to the said classification, it was submitted that category (i), (ii), and (iii), the Relief and Rehabilitation Commissioner for Migrants is the designated authority for authentication of the migrant status of the applicants. He has to ensure that the applicant is a bonafide migrant. At the same time, as for the category of persons mentioned at (iv) above, the Deputy Commissioner concerned is the designated authority for authentication of the applicant's status through the issue of the certificate.

It was argued that there was no separate quota within the quota available for any migrant or non-migrant community regarding these posts. It is, thus, submitted that in the absence of challenge to the Recruitment Rules of 2009 by the petitioners, the full effect to the rules is required to be given. Justifying the rejection, they argued that the petitioners who are neither migrants falling in categories (i), (ii), and (iii) nor do they belong to the Kashmiri Pandit family are not eligible to participate in the selection process.

The respondents also brought attention to a 2019 judgment of the Jammu & Kashmir High Court, where the Sikh community living in the Valley approached, submitting that they have similarly suffered like non-migrant Kashmiri Pandits were entitled to have the benefit of Prime Minister's Special Package. They claimed to be considered for 500 posts earmarked for non-migrant Kashmiri Pandits residing in Kashmir Valley. However, the Court has not found a non-migrant Sikh community, which too had stayed back in the Valley and had not migrated during 1990 like the non-migrant Kashmiri Pandits, similarly situated and on par with non-migrant Kashmiri Pandits.

Findings

The Court held that the issue raised by the petitioners is no longer res Integra referring to Kashmiri Sikh Community and Ors. v. State of J&K and Ors. (2019). It remarked,

"The parity sought by the Sikhs residing in the Valley who had not migrated in the wake of 1990 turmoil, with the non-migrant Kashmiri Pandits for the purposes of implementation of Prime Minister's Special Package of employment and rehabilitation has not been accepted by this Court, and the classification made by SRO 425 of 2017 has been held to be valid, there is hardly any scope for the petitioners to raise the similar contention yet again."

The Court observed that the argument raised is preposterous and cannot be accepted in the face of the clear language of the relevant rule. It needs to be noticed that the petitioners have not challenged SRO 425, whereby the Rules of 2009 have been amended to provide the category of non-migrant Kashmiri Pandits for admitting them to the benefit of a revised package of Prime Minister for employment and rehabilitation.

The Court noted that in the absence of such challenge, the only question that remains to be determined in this petition is whether the petitioners, who are, admittedly, not Kashmiri Pandits but belong to different castes of Hindus, can be brought within the definition of "Kashmiri Pandits."

Refusing to accept the broad definition proposed by the petitioners, the Court noted that in Rule 2(ca) is the term 'Kashmiri Pandit' means a person belonging to 'Kashmiri Pandit Family' who has not migrated from Kashmir Valley after 1st of November, 1989 and is presently residing in Kashmir Valley.

Applying the common parlance principle, the Court defined Kashmiri Pandit as members of a Kashmiri community speaking Brahmins living in the Valley from generations and are distinctly identified by their dress, customs, traditions, etc. It was held to be a separately identifiable community distinct from other Hindus residing in the Valley like Rajputs, Brahmins other than Kashmiri Pandits, Scheduled Castes, Scheduled Tribes,, and many others.

"It is, thus, difficult to accept the contention of learned counsel for the petitioners that the petitioners, who are mostly Kshatriyas, Rajputs, Scheduled Caste non- Kashmiri Brahmins, etc. should be treated as Kashmiri," the Court added.

Title: Rajeshwar Singh & Ors v. Union of India & Ors.

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