After revoking the special status of Jammu and Kashmir under Article 370 on
5th August last year, Ministry of Home Affairs (MHA) amended 2010
legislation- The Jammu and Kashmir Civil Services (Decentralisation and
Recruitment) Act on March 31 by substituting the term domiciles of J&K
Also, it was notified that reservation in employment
is only limited to the posts carrying a pay scale of not more than Level-4
(25500). In other words, Group A, Group B & Group C jobs of Union Territory
of J&K were made available to all citizens of India but Ministry of Home
Affairs (MHA), in a bizarre move on 04/04/2020, also amended this
notification and reserved all jobs irrespective of the pay scale or level
only for the domicile of J&K Union Territory.
This notification defines the
domicile of Union Territory of J&K as:
- Who has resided for a period of 15 years in the UT of Jammu and
Kashmir or has studied for a period of 7 years and appeared in Class
10th /12th examination in an educational institution located in the UT
of Jammu and Kashmir; or their children.
- Who is registered as a migrant by the Relief and Rehabilitation
Commissioner (Migrants) in the UT of Jammu and Kashmir or their children.
- Children of those Central Government officials who have served in
Jammu and Kashmir for a total period of 10 years; or
- Children of such residents of UT of Jammu and Kashmir as
reside outside UT of Jammu and Kashmir in connection with their
employment or business or other professional or vocational reasons but
their parents fulfil any of the conditions provided in condition 1 or 2.
After collecting the gist, it is now time to analyze the constitutional
permissibility of these amendments in the J & K Civil Services (Decentralisation
and Recruitment) Act:
As per article 16(3) of the Constitution of India, only Parliament is
competent to enact any law which gives domicile or residence-based
reservation. This power has not been given to even the State Assemblies.
However, Parliament has previously delegated this power to states or UT by
enacting a law The Pubic Employment (Requirement as to Residence) Act,
1957 but this power under 16(3) was never delegated to state of J&K.
Also, it is evident that UT of J&K is not governed by a state assembly at
present so only Parliament is competent to make any law related to
domicile-based reservation in UT of J&K. In addition to this, the amendment
in discussion was carried out by an executive notification by MHA which is
also not permissible under constitutional scheme as article 16(3) makes it
quite clear that any domicile or residence-based reservation is only
permissible by way of a law made by the Parliament. This leads to the
conclusion that the executive notification by MHA is blatant violation of
constitutional provisions and the notification cannot be, in any manner,
considered a law for the purpose of article 16(3) of the Constitution.
Children of the central government officials who have served in state of J&K
for 10 years are also considered as domicile of Union Territory of J&K. The
extant classification has left a part of the local demographic population
unattended. This unprivileged subset includes the children of residents of
current UT of Ladakh who have served the former state government of J & K
for a period of 10 years.
In other words, the children of any central government official who have
served in the former state of J & K for a period of 10 years will be
considered domicile of the UT of J & K but the children of any state
government official who have served in the former state of J & K for a
period of 10 years will not be considered domicile of the UT of J & K. Now,
it may be argued that this classification is based on the reasoning that all
state government officials of the former state of J & K are already covered
in other domicile related conditions of notification dated 31st March, 2020
but MHA did not take note of the fact that officials of state government
who were resident of Ladakh region were also permanent resident of former
state of J&K and now they are part of UT of Ladakh they will not be part of
any of the other domicile related conditions.
Hence, Ladakhi s who were part of former state of J & K and served state
government for 10 years, their children will not get the benefit of
employment in UT of J & K as they will not be considered as domicile of UT
of J & K. For instance ,an MLA from Ladakh region being part of state
assembly for 10-15 years or school teacher or College lecturer or a Doctor
from Ladakh region they may have served the former state of J&K for 10 years
but now they won't be treated as domicile of Union Territory of J&K because
they served for state government not for central government.
This is quite bizarre that children of a IAS/IPS officer who have served in
Ladakh region will be treated as domicile of Union Territory of J&K and will
be benefitted by provisions of this amendment but children of a Ladakhi who
have served 10-15 year in a hospital, school or college which was located in
Ladakh region will be not be treated as domicile of Union Territory of J&K
mere on the basis of the fact that they had served for state government not
for central government. This unfair and biased classification lacks
intelligible differentia and is totally devoid of reasonability which is the
mandate of article 14 of the constitution of the India.
Blanket Ban For Outsiders
Even if the constitutional propriety of the notification and flaws in
classification to determine the domicile of UT of J&K be neglected for a
moment, then also, 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 times and again made it clear that the
reservations contemplated in Article 16 should not exceed 50%.
While 50% shall be the rule, the court also made it clear that it is
necessary not to put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the people. It might
happen that in far-flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of national
life and in view of the conditions peculiar to end characteristic of them
need to be treated in a different way, some relaxation in this strict rule
may become imperative.
In doing so, extreme caution is to be exercised and a special case has to be
made out. But this is not the case with the Union Territory of J&K because
it not far-flung and remote like Arunachal Pradesh or Nagaland ,it is well
connected by train, bus or Air and even if we give this benefit to the Union
Territory of the J&K then also this reservation cannot be in any case put
blanket ban for the outsiders.
the central government should have resorted to a law under article 16(3) of
the constitution while amending such provisions and should have also
considered that 100% residence-based reservation is always against the
welfare of state or UT along with the constitutional mandate. It is implied
by the notification that MHA & hence Centre Government has amended these
provisions in a very casual manner without paying much heed to the
constitutional provisions and the legal route which may result in
more burden on the already overburdened constitutional courts.