Benefit Of Reservation In Promotion Available To All Under Article 16(4A), J&K Citizens Cannot Be Treated Differently: High Court

The court said, “It is not comprehensible as to how the said directions can be passed in utter disregard to the constitutional provisions applicable to the UT of J&K with the application of the constitutional provisions in the year 2019.”

A bench of Justice M.A. Chowdhary stated that the benefits of reservation in promotion are in accordance with Article 16(4A) of the Constitution of India. The court held that denying reservation to all the members of the service would amount to depriving them of their constitutional rights.

The court observed that “denying benefits of reservation in promotion in the UT of J&K amounts to treating reserved category employees of the UT of J&K differently than the reserved category employees/candidates of the rest of the country, which amounts to class legislation, which is antithetical to the concept of equality laid down in the Constitution of India.”

The court took note of the affidavit filed by the UT of Jammu and Kashmir in SLP(C) No. 3786/2016 in which, the court said, the respondent-UT of Jammu and Kashmir had taken a stand before the Apex Court expressing its intention to implement reservations in promotions.

The court restrained the respondent from making any promotions unless candidates belonging to the SC/ST reserved categories, entitled to consideration for reservation in promotions, are considered.

BACKGROUND:

The petitioners filed a writ petition under Article 226 of the Constitution challenging the circular directing administrative secretaries to keep reserved category promotion slots vacant/unfilled. These reserved categories include Scheduled Castes, Scheduled Tribes, Residents of Backward Areas, Actual Line of Control, and Other Social Castes, who work in various power corporations of J&K.

The petitioners argued that this circular violates Article 16(4A) of the Constitution and the Jammu & Kashmir Reservation Act, 2004, which provides 8% reservation for SCs and 10% for STs in promotions. The petitioners relied on the Supreme Court's stay order in Nasib Singh & Ors vs. State of J&K, which allowed promotions under reservation until the case was decided. The Central Administrative Tribunal (CAT), Jammu Bench, had already quashed the circular in Satish Chander vs. UT of J&K & Ors.

The court directed the respondents to collect quantifiable data within a period of six weeks from the date of this judgment and then accord consideration to the reservation in promotions to the petitioners.

The court also directed that in absence of collecting any quantifiable data, the respondents shall proceed to consider the petitioners for reservation in promotions against the reserved slots in view of Jammu and Kashmir Reservation Act, 2004 and rules framed thereunder till the exercise for collection of quantifiable data is made by the Administrative Departments.

APPEARANCE:

Areeb Javed Kawoosa, Advocate FOR Petitioners

Furkan Yaqub, GA. For Respondents

CASE-TITLE: Mohammad Jamal Sheikh vs Union Territory of Jammu & Kashmir, 2015, LiveLaw, (JKL)