Jammu & Kashmir HC Issues Notice To Center In Plea Against 100% Domicile Reservation In Public Employment In The UT [Read Order]

The single-bench of Justice Tashi Rabstan has issued notice to the Union Ministry of Home Affairs and the UT Administration, returnable within four weeks.

The plea has been filed by Ladakh based lawyer Najm Ul Huda, Advocate Nishant Khatri and Sachin Miglani, challenging Sections 3A, 5A, 6, 7 & 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, as violative of Article 14, 16, 19 & 21 of the Constitution.

The Petitioners have contended that since abrogation of Article 370, the UT is equally subject to all laws and Supreme Court judgments 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 only in consonance with Article 16(3) of the Constitution.

In this backdrop it is asserted, Section 5A of the Act which stipulates that no person shall be eligible for appointment to any post unless he is a domicile of the Union Territory of Jammu and Kashmir, would render the guarantee of equal opportunity under Article 16(3) "meaningless" and "illusory".

Significantly, this provision was inserted in the Act by way of 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 Petitioners have contended that,

"Parliament 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. 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 plea further points out that reservations contemplated in Article 16 should not exceed 50%.

"100% reservation on the basis of domicile or residence is unambiguous violation of the law as it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. Supreme Court has time and again made it clear that the reservations contemplated in Article 16 should not exceed 50%. Hence, 100% reservation for domicile of Union territory of J&K is clear cut violation of law laid down by Supreme court," the plea states.

Significantly, the Petitioners had earlier approached the Supreme Court seeking relief on the abovementioned grounds however, they were directed to approach the High Court.

The matter is now listed for hearing on September 3, 2020.

Case Details:

Case Title: Nishant Khatri & Ors. v. Union of India & Anr.

Case No.: WP(C) No. 1111/2020

Quorum: Justice Tashi Rabstan

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