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JAMMU & KASHMIR HIGH COURT AT JAMMU
Hasnain Massodi, Janak Raj Kotwal, JJ.
Ashok Kumar and others - Appellant
Versus
State of J&K and others - Resopndent
SWP No. 1290 of 2014, MP No. 1685 of 2014 c/w SWP No. 2777 of 2013, MP No. 4089 of 2013, SWP No. 1694 of 2006, MP No. 4023 of 2010, 2119 of 2006, APSWP No. 131-E of 2004, SWP No. 1006 of 2005, MP No. 1114 of 2005, SWP No. 1639 of 2003, MP No. 1746 of 2003, SWP No. 1497 of 2004, SWP No. 1854 of 2004, MP No. 1942 of 2004, SWP No. 1619 of 2006, MP No. 2010 of 2006, SWP No. 213 of 2001, MP No. 254 of 2001, SWP No. 1583 of 2014, MP No. 2093 of 2014, SWP No. 1271 of 2014, MP No. 1655 of 2014, SWP No. 1816 of 2000, SWP No. 2096 of 2014, MP No. 2822 of 2014
Decided On : 09-10-2015
The Jammu and Kashmir Reservation Act, 2004, and the rules framed thereunder, which provide for reservation in promotions in favor of certain categories of candidates, are unconstitutional and violative of Article 16 of the Constitution of India. The reservation scheme offends the fundamental right to equality of opportunity in matters of public employment and is not permissible under the unamended Article 16 of the Constitution. The amendment to Article 16, adding Clause (4A), which allows for reservation in promotions, is not applicable to the State of Jammu and Kashmir as it has not been extended to the State through the mechanism provided under Article 370(1) of the Constitution.
Fact of the Case:
The petitioners, members of the Jammu and Kashmir Engineering (Gazetted) Service, challenged the constitutionality of Section 6 of the Jammu and Kashmir Reservation Act, 2004, and Rules 9, 10, and 34 of the Jammu and Kashmir Reservation Rules, 2005, which provide for reservation in promotions in favor of certain categories of candidates. The petitioners argued that the reservation scheme violated their right to equality of opportunity in matters of public employment guaranteed under Article 16 of the Constitution of India. The respondents, including the State of Jammu and Kashmir, defended the reservation scheme, arguing that it was necessary to ensure adequate representation of certain disadvantaged groups in government employment and that it was permissible under Article 16(4A) of the Constitution, which allows for reservation in promotions.
Finding of the Court:
The court held that the reservation scheme provided under Section 6 of the Jammu and Kashmir Reservation Act, 2004, and Rules 9, 10, and 34 of the Jammu and Kashmir Reservation Rules, 2005, is unconstitutional and violative of Article 16 of the Constitution of India. The court found that the reservation scheme offends the fundamental right to equality of opportunity in matters of public employment and is not permissible under the unamended Article 16 of the Constitution. The court further held that the amendment to Article 16, adding Clause (4A), which allows for reservation in promotions, is not applicable to the State of Jammu and Kashmir as it has not been extended to the State through the mechanism provided under Article 370(1) of the Constitution.
Issues: 1. Whether the reservation scheme provided under Section 6 of the Jammu and Kashmir Reservation Act, 2004, and Rules 9, 10, and 34 of the Jammu and Kashmir Reservation Rules, 2005, is constitutional and permissible under Article 16 of the Constitution of India? 2. Whether the amendment to Article 16, adding Clause (4A), which allows for reservation in promotions, is applicable to the State of Jammu and Kashmir?
Ratio Decidendi: 1. The court held that the reservation scheme provided under Section 6 of the Jammu and Kashmir Reservation Act, 2004, and Rules 9, 10, and 34 of the Jammu and Kashmir Reservation Rules, 2005, is unconstitutional and violative of Article 16 of the Constitution of India. The court found that the reservation scheme offends the fundamental right to equality of opportunity in matters of public employment and is not permissible under the unamended Article 16 of the Constitution. 2. The court further held that the amendment to Article 16, adding Clause (4A), which allows for reservation in promotions, is not applicable to the State of Jammu and Kashmir as it has not been extended to the State through the mechanism provided under Article 370(1) of the Constitution.
Final Decision: The court allowed the petitions and struck down Section 6 of the Jammu and Kashmir Reservation Act, 2004, and Rules 9, 10, and 34 of the Jammu and Kashmir Reservation Rules, 2005, as unconstitutional. The court also set aside the government orders impugned in the petitions, which had granted promotions to certain candidates under the reservation scheme.
Massodi J.:-
1. Controversy raised in writ petitions on hand stands crystallised by learned Single Judge as under:
“Whether in light of the Apex Court judgment in Indra Sawhney v. Union of India, 1992 Suppl (III) SCC 217 which prohibits reservation in matters of promotion, provisions of the Jammu & Kashmir Reservation Act, 2004 and the rules framed thereunder can be enforced in the absence of the applicability of Art. 16 (4A) of the Constitution of India to the State of J&K.”
2. Dispute, as bare look on the issue identified would reveal, relates to right of Reserved Category Government servants, to accelerated promotion provided under Section 6, J&K Reservation Act, 2004 read with Rule 9 and 34, J&K Reservation Rules, 2005 (for short “Reservation Act and Rules”). The facts fall in a narrow compass, though issue raised reflects an important question of law. It is pertinent to point out that all these petitions were considered by learned Writ Court. However, at the request of learned Single Judge (Hon’ble Mr Justice Dhiraj Singh Thakur), the Hon’ble Chief Justice has been pleased to direct listing of batch of petitions before the Division Bench. Request to list writ petitions before larger Bench was made because of importance of question of law arising out of petitions. So much about backdrop against which petitions have been listed before this Bench. Now an overview of background facts.
3. Petitioners in writ petitions – SWP Nos. 1290/2014, 1006/2005, 1694/2006, 1497/2004, 1619/2006, 213/2001, 1816/2000, 2096/2014, 1583/2014, are members of J&K Engineering (Gazetted) Service Hydraulic Wing, J&K Law Officer (Subordinate) Service, J&K Engineering (Gazetted) Service, J&K Animal Husbandry (Gazetted) Service. They are aggrieved with different Government orders, whereby private respondents in writ petitions, though junior to them, have been promoted to next higher level ahead of them under Reservation Act and Rules, and thereby allowed to steal march over them. Petitioners’ case is that private respondents have been promoted and their seniority fixed ahead of them on the ground that they belong to reserve category within meaning of J&K Reservation Act, 2004 (hereinafter “Reservation Act”) and J&K Reservation Rules, 2005 (for short “Reservation Rules”). It is stated that official respondents while promoting private respondents, have pressed into service Section 6 of Reservation Act and Rules 9, 10 and 34 of Reservation Rules, whereunder reserved category government employees are to appear at higher place in roster, and get promotion ahead of their General Category colleagues. The aforementioned provisions of Reservation Act and Reservation Rules, according to petitioners, would not be available to make promotions impugned in writ petitions, in wake of Supreme Court Judgement in Indra Sawhney v. Union of India, 1992 Suppl (III) SCC 210.
4. Petitioners insist that in terms of authoritative judicial pronouncement in aforementioned reported judgement, reservation in case of promotion offends letter and spirit of Articles 14 and 16, Constitution of India and therefore, is not permissible under law. It is urged that Article 16(4A) added by 77th Constitutional Amendment Act, would not legitimise course followed by official respondents inasmuch as amendments made are not applicable to the State of Jammu and Kashmir. Petitioners’ case is that Constitution (Application to Jammu and Kashmir) Order, 1954, made in exercise of powers conferred by Clause 1 of Article 370 of the Constitution, adds proviso to Clause (2) of Article 368 in its application to the State, providing that no amendment is to have effect in relation to State of Jammu and Kashmir unless applied by a Presidential Order. It is pleaded that as 77th Constitutional Amendment Act, 1995, adding Clause (4A) to Article 16, has not been extended to State of Jammu and Kashmir by Presidential order under Clause (1) of Article 370, clause (4A) of Article 16 would not be applicable to
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