J&K HC Issues Notice On Plea Challenging Reservation For Pahari Speaking People In Medical Post Graduate Courses In UT [Read Order]

The bench of Justice Ali Mohammad Magrey has issued notice to the J&K Govt. and has posted the matter for hearing on July 27.

Excessive reservation quota

The petition has been filed by certain MBBS graduates who wish to apply for post-graduate medical courses, through Advocate Gagan Basotra. They are primarily aggrieved by the fact that the 4% quota, granted in favour of "pahari speaking people" by amending Rule 15 of the J&K Reservation Rules, 2005, results in 53% cumulative reservation, thereby leaving only 47% seats for the open category.

This, "excessive reservation quota" as per the Petitioners, is constitutionally impermissible and is ultra-vires Section 9 of the Jammu and Kashmir Reservation Act.

Section 9 of the J&K Reservation Act clearly provides that total percentage of reservation shall, in no case, exceed 50%. Similarly, as per the Constitutional mandate and various judicial precedents including Indra Sawhney v. Union Of India & Ors., AIR 1993 SC 477, the total number of reserved seats cannot exceed 50% of the total seats.

Less Reservation in Higher Education

The Petitioner has relied on the principle "higher the learning in specialized fields, lesser the reservation", evolved by the Supreme Court in Dr. Preeti Srivastava v. State of MP. (1999) 7 SCC 120.

He has submitted,

"Reservation for post graduate medical courses should be less taking into view the high grade skill, talent, technical, scientific and research involved in these medical courses, as it would be dangerous to deprecate merit and excellence at higher levels . The higher you go in the letter of education, the lesser should be reservation."

It is accordingly contended that the impugned amended rule provides for a very high and excessive reservation and that too for reserved categories which are not traceable to the Indian Constitution and is thereby liable to be quashed.

Language cannot be the sole criteria for determining backwardness

The Petitioner has contended that the Government has provided 4% reservation for Pahari speaking people by designating them as socially and educationally backward community on linguistic basis, which cannot be the sole basis for being socially and educationally backward in terms of Articles 15(1), 15(4) and 15(5) of the Constitution of India.

It is argued,

"The Respondent No. 1 has though designated Pahari speaking people as socially & educationally backward, but the same is constitutionally impermissible as a language/ linguistic community cannot be the sole basis for being socially and educationally backward. The Hon'ble Court in Indra Sawhney's and in subsequent cases have delineated the criteria and the basis of any community being educationally and socially backward."

They added,

"In every case where the states decides to provide for reservation there should exist two circumstances, namely, "Backwardness" and "Inadequacy of representation'. The backwardness has to be based on objective factor whereas inadequacy has to factually exist. The Respondent No 1 without having determined any intelligent, objective and fair criteria that pahari speaking people are socially and educationally backward have prescribed 4% Reservation for a linguistic community."

The Petitioners have further contended that the identifiable criteria for determining any person belonging to a pahari speaking would be vague as is clearly evident by the amended Rule 21 of the J&K Reservation Rules which govern the procedure and authority for granting the certificate.

Keeping in view that an important question of law has been raised in the petition, the Court has asked the Advocate General to remain present on the next date of hearing and assist the court in the matter.

Case Details:

Case Title: Gokul Sharma & Ors. v. Union Territory of JK & Ors

Case No.: WP(C) No.1107/2020

Quorum: Justice Ali Mohammad Magrey

Appearance: Advocate Gagan Basotra (for Petitioners)

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Click Here To Download Petition