Kashmiri Pandit Woman Continues To Retain Migrant Status Despite Marriage To Non-Migrant: J&K High Court
LIVELAW NEWS NETWORK
30 Nov 2024 3:04 PM IST
The Jammu and Kashmir and Ladakh High Court has ruled that a Kashmiri Pandit woman does not lose her "migrant status" upon marrying a non-migrant.
A bench of Justices Atul Sreedharan and Mohammad Yousuf Wani clarified,
“.. to hold that the woman would lose her status as a migrant only because she, out of the natural urge of forming a family, had to marry a non-migrant on account of existing circumstances, would be grossly discriminatory and militates against the very concept of justice. This discrimination becomes even more brazen where a male migrant continues to remain a migrant notwithstanding the fact that he has married a non-migrant”
These observations came in a plea The case stemming from a challenge to an order issued by the Central Administrative Tribunal (CAT), Jammu Bench, in favor of Seema Koul and Vishalni Koul.
The respondents, both Kashmiri Pandits, were provisionally selected for the post of Legal Assistant under the PM Package for Kashmiri Migrants, pursuant to an advertisement. However, their final selection was contested on the ground that they had lost their migrant status by marrying non-migrants.
The Tribunal's decision to direct the government to issue appointment orders was appealed by the UT of J&K, asserting that the respondents' marriages to non-migrants disqualified them from claiming migrant status under SRO 412 of 2009.
The appellants argued that the respondents were ineligible due to their marriage to non-migrants, asserting that SRO 412 disqualifies such women from migrant benefits. Conversely, the respondents contended that their migrant status is irrevocable, emphasizing that denying them employment would violate Articles 14 and 16 of the Constitution, which guarantee equality and non-discrimination in public employment.
Court's Observations:
After considering the rival contentions the Court upheld the Tribunal's ruling, stating that SRO 412 defines "migrant" status but does not provide for its revocation upon marriage.
"It is also reasonable to presume that because of the exodus, not every migrant woman would be in a position to find a match who himself was a migrant. In such a situation, to hold that the woman would lose her status as a migrant only because she, out of the natural urge of forming a family, had to marry a non-migrant on account of existing circumstances, would be grossly discriminatory and militates against the very concept of justice," the Court stated.
It added, “This discrimination becomes even more brazen where a male migrant continues to remain a migrant notwithstanding the fact that he has married a non-migrant. Such a situation has arisen only on account of patriarchy that prevails in the human race. However, in matters relating to employment under the State/UT, such discrimination cannot be countenanced”
Rejecting the appellants' argument of non-disclosure of marital status, the Court observed that no rule justified disqualification based on this factor. The Court thus ordered the issuance of appointment letters to Seema Koul and Vishalni Koul within four weeks.
Case Title: UT Of J&K Vs Seema Koul & Anr
Citation: 2024 LiveLaw (JKL) 322
