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Reservation in promotions: Applicability of Article 16(4A) To Jammu And Kashmir: Supreme Court To Consider After Constitution Bench Decision On Validity of Article 370 Abrogation
Mehal Jain
17 Nov 2021 4:22 PM GMT
The Supreme Court on Wednesday posted the issue of the right of Reserved Category Government servants in the Union Territories of Jammu and Kashmir to accelerated promotion for after the decision of the Constitution Bench on the validity of the abrogation of Article 370.The bench of Justices DY Chandrachud, Surya Kant and Vikram Nath was hearing SLPs against the 2015 decision of the Jammu...
The Supreme Court on Wednesday posted the issue of the right of Reserved Category Government servants in the Union Territories of Jammu and Kashmir to accelerated promotion for after the decision of the Constitution Bench on the validity of the abrogation of Article 370.
The bench of Justices DY Chandrachud, Surya Kant and Vikram Nath was hearing SLPs against the 2015 decision of the Jammu and Kashmir High Court striking down Section 6 Jammu and Kashmir Reservation Act 2004 and Rules 9, 10 and 34 Jammu and Kashmir Reservation Rules 2005 as ultra-vires Article 16 and in conflict with law laid down by Supreme Court in Indra Sawhney 's case. In the impugned judgment, the High Court had held, "Article 370, notwithstanding its title showing it a "temporary provision" is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available. Furthermore, Article 368 cannot be pressed into service in this regard, inasmuch as it does not control Article 370 - a self contained provision of the Constitution...The President, therefore, has while adding proviso to Clause (2) Article 368, in effect, provided that amendment to any Constitutional provision, though earlier applied to the State, would not apply to the State except by an order issued in accordance with mechanism devised under Article 370, acted within his powers under Article 370(1). Resultantly amendment to Article 16, of the Constitution, made by 77th Amendment Act adding clause (4A) to it, is not applicable to the State, inasmuch as, the amendment has not been applied to the State by President as provided under Clause (1) Article 370 read with proviso to Clause (2) Article 368."
On Wednesday, Senior Advocate A. K. Ganguli, for the petitioners, told the bench, "The High court said that Article 16(4A), when introduced, was not applied to J & K originally...the impact of abrogation of 370 is that all amendments to the Constitution are deemed to be extended to Jammu and Kashmir. You have to proceed on the footing that these laws are valid and if these are valid, then the decision of the High Court has to be reversed on the simple ground that the finding of the High Court is recorded on the scope of 370 and the interplay between 370 and 368 which no longer survives."
Justice Chandrachud observed, "The validity of 2 Presidential Orders is pending before the constitutional bench, and therefore, it would be appropriate for us to wait for the judgment of the Constitution bench. At least one of the principal grounds of the decision of the High Court is that this provision has not been incorporated into the Constitution of J and K and that to that extent, you cannot have a fall back on 16(4A). But the validity of the provision by which these provisions are brought in is in question before the constitutional bench."
For the respondents, Senior Advocate V. Giri told the bench, "The Constitution bench will have to decide whether the abrogation is right or not. If it is not valid, then the situation will be that which was prevailing before the High Court had decided the matter. Assuming that the Constitution bench decides the opposite, then the question which was decided by the High Court was whether these impugned rules were violative and ultra vires of article 16 4A. In so far as 16 (4) is concerned, it was held by the court that since there is no presidential order by which the 77th amendment was made applicable to the state of J & K, Indira Sawhney holds the field and therefore these rules providing for reservation for accelerated promotion were found to be bad. Now it is contended by the state that in view of the development which happened in 2019, this judgment is wrong. But there is no question of resurrecting anything at this point of time. The correctness of the judgment will obviously be looked into by your lordships on the basis of what was the law which was prevailing when the issue was taken up for consideration by the High Court and because there was a frontal challenge to the actual accelerated promotions which was granted to a category of persons. It should be decided with reference to what happened prior to 2014. The Constitution bench judgment itself may not have an impact in so far as the limited matters which would fall for your consideration are concerned."
"Because the abrogation is not retrospective?", asked Justice Chandrachud.
"Expressively, the abrogation is not retrospective", responded Mr. Giri.
SG Tushar Mehta, in his turn, told the bench, "I am just wondering, would it not be proper for this matter to go with the main batch (on the challenge to the abrogation of Article 370)? That will have an impact here."
Justice Chandrachud noted, "I think we will await the Constitution bench. There will definitely be (unclear)...We cannot ignore that here also there are observations in the judgment (of the High Court)..."
"With due respect, the High Court is wrong according to us...very wide-ranging views are expressed on the validity of the abrogation- that 370 could not have been abrogated- which the High Court was not even called upon to adjudicate", submitted the SG. He suggested that the bench may tag the instant petitions with those before the Constitutional bench.
"Why would we tag it? There is no need for that. We would not refer these to the constitution bench. Let these remain as a stand-alone matter. Let us wait for the constitution bench judgment, let us see what impact it has on these cases, including the observations of the High Court. We have to now construe the High Court observations in context of the judgment of the constitution bench", said Justice Chandrachud.
The bench then proceeded to dictate the order- "In Dr. Shah Faesal v. UOI [(2020) 4 SCC1; Article 370 reference to larger Bench denied], the Constitution bench has declined to make a reference in regard to the validity of the presidential orders of the Constitution orders, namely, Constitutional Order 272 of 2019 and Constitutional Order 273 of 2019, to a larger bench. Some of the observations of the High Court in the judgment under appeal would precisely form the subject matter of the overall assessment by the Constitution bench, of the true position in relation to Article 370 of the Constitution. In this view of the matter, we are of the considered view that it would be appropriate for the three-judge bench to await the decision of the Constitution bench in the pending proceedings."
Case Title: MOHAMMAD HANEEF LONE AND ORS. v. ASHOK KUMAR SHARMA AND ORS.
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