The Jammu and Kashmir High Court turned down the plea challenging special dispensation in the matter of employment given in favour of Kashmiri Pandits, living in Kashmir Valley.
Kashmiri Sikh Community, a body of Kashmiri Sikhs, and two unemployed Kashmiri Sikh youth, had approached the High court seeking to treat them at par with Kashmiri Pandits, staying in Valley, for the purposes of providing the employment pursuant to the Prime Minister's Package of Return and Rehabilitation. They contended that the equality clause was violated by treating the Sikh Community staying in Kashmir Valley differently than the similarly placed Kashmiri Pandits, for the purposes of extending the Prime Minister's Employment Package. Special dispensation was given to Kashmiri Pandits, living in the valley, by amending J&K Migrants (Special Drive) Recruitment Rules 2009.
About the Scheme
"The Government of India as also the Governments of various States came up with different measures of rehabilitation and provided relief and succour to these families by all possible means. Despite all efforts made by the Government of India at its level, there was no discernible improvement in the living standard of this migrant community. This led the Government of India to come up with a comprehensive package and policy of relief and rehabilitation in the year 2008. This package/policy was first announced by the then Prime Minister during his visit to the State on April 25-26, 2008. The package was meant to ameliorate the lot of Kashmiri Pandit Community, who had been forced to migrate from Kashmir Valley and to facilitate their return and rehabilitation. Apart from other incentives contained in the package formally announced in June 2008, it was also decided to provide the jobs to the educated among migrant youth in the State Government services and financial assistance (grant of loans to unemployed to help them engage in self-employment through vocational training). Accordingly, 3000 supernumerary posts were created in various Departments for providing employment to migrant youth who were willing to return and serve in Kashmir Valley. With a view to filling up these posts and providing employment exclusively to the unemployed youth from amongst the migrants, the Government came up with the Rules of 2009, which were notified by the Government vide SRO 412 dated 30th December 2009".
Justice Sanjeev Kumar noted that the amendment has introduced a class of Kashmiri Pandits, who have not migrated from Kashmir Valley after 1st of November 1989, and are presently residing in Kashmir Valley. Upholding the said classification, the court said:
"The class identified under the impugned SRO is a community of Kashmiri Pandits, who did not migrate in the wake of turmoil in the Valley and stayed back despite adverse conditions perceivably prevailing for their community. This classification has been necessitated pursuant to the several representations received for and on behalf of this community, which was living in a very pitiable and pathetic condition in the Valley. The Government of India also took note of the fact that these handful families had not migrated due to reasons of their poverty, economic conditions, a sense of security instilled in them by their supporting neighbourhood, etcetera, etcetera. They stayed back and braved the adverse conditions in the Valley, which seriously impacted growth of their families educationally and economically."
The court also observed that the Sikh Community is not similarly placed with the Kashmiri Pandits and the classification is based on intelligible differentia. The court added that the said amendment was meant to ameliorate the lot of Kashmiri Pandits who preferred to stay back and did not flee despite unsavoury security conditions in the Valley in the year 1989-90. Upholding the amendment, the court added:
"The target killings of members of their community instilled sense of fear and insecurity in their minds, which made their living in the Valley possible only at the cost of their lives. This sense of insecurity was all pervasive. In the milieu, there were certain families who decided not to migrate either because they were poverty ridden or did not have resources to move out or that they were assured by the community in their neighbourhood not to be afraid of. Whatever be the reasons, they decided to stay back but suffered due to unsavoury and not too good conditions in the Valley for the community."
The bench, however observed that, without effecting appropriate amendment in the Rules and providing for a separate allocation of posts for Kashmiri Pandits, the state could not have set apart 500 posts to be filled up in the manner provided in the Government order. The bench then set aside the said Government order to set apart 500 posts for Kashmiri Pandit families to be filled up by a different committee.