Plea against 100% domicile reservation for public employment in Jammu & Kashmir: HC issues notice

The Jammu and Kashmir High Court today issued notice in a writ petition challenging the policy of “100% domicile reservation” in public employment in force throughout the Union Territories of Jammu and Kashmir and Ladakh..A Single-Judge Bench of Justice Tashi Rabstan issued notice today in the plea moved by Advocates Nishant Khatri, Najum Ul-Huda, and Sachin Miglani..The plea was earlier not entertained by the Supreme Court, which granted the petitioners the liberty last month to move the High Court "and exhaust that option” first..Supreme Court refuses to hear challenge to J&K Reorganization Act amendment providing for 100% domicile reservation in public employment.The petitioners assail Sections 3A, 5A, 6, 7, and 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 as being violative of the constitutional principles of equality, equality of opportunity in public employment, freedom of movement and residence, life and liberty..The challenged provisions were inserted by the Ministry for Home Affairs (MHA) invoking the powers conferred upon it by Section 96 of the Jammu and Kashmir Reorganisation Act, 2019 (enacted after the abrogation of Article 370 of the Indian Constitution). .These provisions enforce a total reservation in public employment for “domiciles” of the Union Territories, the petition states..Invoking Section 96, the MHA made “substantial amendments” in the Jammu and Kashmir (Decentralisation and Recruitment) Act, 2010, the petitioners aver..The assailed amendments to the Act.The petitioners challenge the following changes introduced by way of two executive orders issued by the MHA in March and April this year..The definition of “Permanent Resident of Jammu and Kashmir” being substituted with “domiciles” of the Union Territory of Jammu and Kashmir, The insertion of Section 3A. The Section defines the term “domicile of the Union Territory of J&K” as inclusive of children of central government officials who served in the erstwhile state of Jammu and Kashmir for a decade or more. The other conditions to be considered a domicile of the Union Territory is residence within the territory, completion of secondary and senior secondary examination in the Territory after studying for seven years in the Territory, or registered migrants. Children of persons in these categories are also considered domiciles of the Union Territory, The express bar on persons who are not domiciles of the Union Territory from eligibility for appointment per Section 5-A..The petitioners challenge these changes with the argument that the power to make class/residence requirements for employment or appointment was never delegated to the MHA by Section 96..Emphasizing that only Parliament could enact laws that give domicile or residence-based reservation, they state:.“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.”Petitioners.Amendments a violation of the Right to Equality.Apart from this, the classification based upon parents’ employment with the central government does not pass the intelligible differentia and reasonable classification tests under Article 14, the petitioners argue in their plea..The petitioners illustrate their case with a narration of their own disadvantage under the new rules. Stating that the father of one of the petitioners served the state government at Kargil for more than a decade, it is pointed out that he is precluded him from public employment in the Union Territory because of the domicile rule. .On the contrary, a child of a central government employee who now lives “anywhere in the world” is allowed to benefit from the same rule that disqualifies the class occupied by the petitioner. Such a distinction is “devoid of reasonability” and “biased”, the petitioners contend..“..this classification (expansion of domicile to include children of Central Government Employees) has left a part of the local demographic population unattended … This unprivileged subset includes the children of residents of current Union Territory of Ladakh who have served the former state government…This unfair and biased classification lacks intelligible differentia", the plea states..The petitioners claim locus standi to file the petition on the ground that the reservations "violate their right to public employment" in the Union Territories..The plea is expected to be taken up on Thursday, September 3, 2020..Read today's High Court Order here: