Violation Of Article 16: J&K&L High Court Strikes Down Residence-Based Reservation

“where the selection process has been conducted as per the rules or stipulations in the advertisement notification which bring about discriminatory consequences therefrom is not immune from challenge at the behest of a candidate who has partaken in it.”

These observations came in a writ petition filed by Balwinder Kumar, a Scheduled Caste candidate from District Samba, who had applied for the post of Orderly (Class-IV) in District Baramulla pursuant to Advertisement Notification issued by the High Court of Jammu and Kashmir.

Background of the case:

In the instant case the petitioner, possessing the prescribed qualification of matriculation and belonging to the SC category, applied for the post against the SC vacancy. In his application, he disclosed that he was a permanent resident of District Samba.

Despite this, his application was accepted, he was shortlisted for viva voce. He appeared before the Principal District and Sessions Judge, Baramulla, who was also the Chairman of the Interview Committee. However, at the stage of scrutiny of testimonials, the petitioner was not permitted to participate in the interview on the ground that he was not a resident of District Baramulla and therefore ineligible under Clause 1(i)(a) of the advertisement, which confined district cadre posts to candidates of the same district.

Aggrieved by this rejection at the interview stage, the petitioner approached the High Court challenging the said clause and seeking a direction to allow his participation and appointment against the SC post.

The respondents contended that since the petitioner had participated in the selection process with full knowledge of the residence restriction, he was estopped from challenging the validity of the clause after facing rejection.

Court Observations:

Rejecting this contention, the Division Bench observed that the facts of the case did not attract the doctrine of estoppel. The Court noted that the petitioner did not suppress his residence, his application was accepted despite ineligibility, and he was shortlisted for viva voce. Importantly, the Bench held that this was not a case where a candidate, after failing in selection, sought to challenge the process.

In a pointed observation the Court held,

“It is not a case where the petitioner being aware of the offending clause in the advertisement notification participated with his eyes wide open and took chance in the selection.”

The Bench undertook an elaborate discussion on the law governing estoppel in service jurisprudence and relied upon Supreme Court decisions including Ashok Kumar v. State of Bihar and Dr. (Major) Meeta Sahai v. State of Bihar.

Quoting extensively from Meeta Sahai, the Court emphasized,

“A candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible.”

Reaffirming this principle, the Bench authoritatively held,

“Where the selection process has been conducted as per the rules or stipulations in the advertisement notification which bring about discriminatory consequences therefrom is not immune from challenge at the behest of a candidate who has partaken in it.”

Residence-based discrimination violates Article 16

Turning to the constitutional validity of Clause 1(i)(a), the Court found that the restriction barring candidates from other districts directly violated Article 16(1) and 16(2) of the Constitution, which prohibit discrimination in public employment on grounds including place of birth and residence.

Relying on the earlier Division Bench judgment in Mulakh Raj v. State of J&K, the Court reiterated that no authority, including the High Court, could impose a residence requirement unless such a condition was backed by a law enacted by Parliament under Article 16(3).

Quoting the earlier ruling, the Bench observed,

“No citizen should be discriminated against for the purpose of employment to any office under the State or Union. The prohibited grounds of discrimination under Article 16(2), inter alia, are religion, race, caste, place of birth and residence.”

It further emphasized that since Parliament had enacted no law prescribing residence as a condition of employment in the Union Territory of Jammu and Kashmir, such a restriction in the advertisement was constitutionally impermissible.

Concluding that the impugned clause “clearly brought about discrimination” by excluding the petitioner solely on the basis of residence, the Court declared Clause 1(i)(a) of Advertisement Notification as ultra vires the Constitution of India.

Allowing the writ petition, the Bench directed the respondents to interview the petitioner and consider him for the post of Orderly under the SC category in District Baramulla. The Court clarified that if the petitioner was found to be the most meritorious candidate, an order of appointment shall be issued in his favour, with the appointment being prospective in nature.

“… The entire process shall be completed by the respondents 3 to 5 within a period of two months from the date a copy of this judgment is served upon them”, the court concluded.

APPEARANCES:

For Petitioners: Mr. Mohammad Ashraf Wani, Adv.

For Respondents: Mr Atir Javed Kawoosa

Case Title: Balwinder Kumar Vs UT Of J&K

Citation: 2025 LiveLaw (JKL)

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