The Supreme Court today (July 25) asked a petitioner, who challenged the 100 percent domicile reservation in public employment in the Union Territory of Jammu and Kashmir, to move the high court instead.
The bench, comprising Justices L Nageswara Rao, Hemant Gupta and Ravindra Bhat, was hearing a plea filed by Ladakh-based lawyer Najmul Huda and advocate Nishant Khatri, 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 petition said: “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 the already prevailing law in the 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 petition also referred to Article 16, which provides that reservations shall not exceed 50 percent and said: “100% reservation on the basis of domicile or residence is (an) 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 percent, hence 100 percent reservation for domicile of Union territory of J&K is a clear-cut violation of law laid down by Supreme court.”
The petitioner has contended that after the abrogation of Article 370, the Union Territory of Jammu and Kashmir is subject to all the laws that are applicable to the rest of the country. Hence, Section 5 A of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2020 which provides that no person shall be eligible for appointment to any post unless he is a domicile of the UT of Jammu and Kashmir, would be in breach of Article 16 (3) of the Constitution.
-India Legal Bureau
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