The Supreme Court on Wednesday declined to entertain a plea challenging 100% domicile reservation in public employment, prevalent in the UT of Jammu and Kashmir.
A bench of Justices L Nageswara Rao, Hemant Gupta & Ravindra Bhat granted liberty to the Petitioner lawyer to approach the High Court of Jammu & Kashmir instead.
The plea had been filed by Ladakh based lawyer Najmul Huda through Advocate Nishant Khatri (also a Petitioner), challenging Sections 3A, 5A, 6, 7 & 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2020, as violative of Article 14, 16, 19 & 21 of the Constitution.
The Petitioners 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 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 pointed 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.
On March 31, the Ministry issued the Jammu and Kashmir Reorganization (Adaptation of State Laws) Order 2020 which notified changes in the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act
Section 5A of the Act stated that Level 4 posts will be reserved for domiciles.
This was later modified on April 3, vide the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Second Order, 2020, which amended above said Section 5A to substitute "a post carrying a pay scale of not more than Level-4 (25500)" with "any post". As a result, Section 5A now reads as :
"Subject to the provisions of this Act, no person shall be eligible for appointment to any post unless he is a domicile of the Union territory of Jammu and Kashmir"