‘Gender-based bias constitutionally impermissible’
Excelsior Correspondent
JAMMU, May 16: Noticing violation of Articles 14 and 16 of the Constitution of India, Central Administrative Tribunal (CAT) Jammu Bench comprising B Anand (Administrative Member) and Sanjeev Gupta (Judicial Member) has quashed and set aside the communication of Relief and Rehabilitation Commissioner (M) whereby J&K Service Selection Board had not included the names of applicants in the final selection list of Legal Assistant, Divisional Cadre Kashmir.
Moreover, the CAT has directed the Secretary Service Selection Board to recommend the names of the applicants to the Director, Department of Disaster Management, Relief, Rehabilitation and Reconstruction for their appointment to the post of Legal Assistant against the vacant slots.
The applicants-Seema Koul and Vishalni Koul belonging to Kashmir Pandit community were issued Migrant Certificates on 22.12.2010 and 05.02.2010 respectively by Relief and Rehabilitation Commissioner (M), Jammu. The Government vide notification SRO 412 of 2009 dated 30.12.2009 formulated the Jammu & Kashmir Migrants (Special Drive) Recruitment Rules, 2009 by virtue of which the persons who were covered within the definition of ‘Migrants’ were to be considered for appointment to the posts created in Kashmir Valley.
The grievance projected by the applicants was that, though their names figured in the provisional select list of the candidates issued by J&K Service Selection Board for the post of Legal Assistant in Department of Disaster Management Relief, Rehabilitation and Reconstruction under PM Package for Kashmiri Migrants in pursuance of Advertisement Notice No. 04/2017/149 dated 01.12.2017, yet in terms of the impugned communication No. RRCM/Legal/18-19/633 dated 21.07.2018 of Relief & Rehabilitation Commissioner (M), Jammu and Kashmir addressed to Chairman Service Selection Board, the names of the applicants were ousted from the final selection list on the ground that applicants had lost their migrant status being married to non migrant persons.
On the basis of the verification report dated 21.08.2018, the Service Selection Board did not recommend the name of the applicants to the Government for issuance of formal appointment orders in the favour of the applicants.
After hearing Senior Advocate Bimal Roy Jad with Advocate Meenakshi Slathia for the applicants and Deputy AG Hunar Gupta for the respondents, CAT observed, “from a close look at Rule 2(d) of Recruitment Rules 2009 and Advertisement Notice dated 01.12.2017, it is clear that neither in the SRO 412 nor in the Advertisement Notice dated 01.12.2007, it has been provided that a migrant having got married with a non migrant will lose her status as migrant and will not be considered for post falling under the Recruitment Rules of 2009”.
Pointing towards the judgments of Supreme Court in “Anuj Garg and others Vs Hotel Association of India and others” and “Union of India and others Vs Ex. Lt. Selina John”, the CAT said, “individual rights of women in the matter of employment shall not be discriminated. Thus, the denial to the post of Legal Assistant by the Jammu & Kashmir Service Selection Board to the applicants on the ground that they had married with a person out of her own community is a classic case of gender discrimination and inequality in the eyes of law being violative of Article 14 and 16 of Constitution of India”.
Accordingly, CAT quashed and set aside the communication No. RRCM/legal/18-19/663 dated 21.08.2018 of Relief and Rehabilitation Commissioner (M) whereby the Jammu & Kashmir Service Selection Board had not included the names of the applicants in the final selection list of Legal Assistant, Divisional Cadre, Kashmir in terms of Advertisement Notice No. 04/2017/149 dated 01.12.2017.
Moreover, the CAT has directed the Secretary, Service Selection Board to recommend the names of the applicants to the Director, Department of Disaster Management, Relief, Rehabilitation and Reconstruction for their appointment to the post of Legal Assistant in the Divisional Cadre Kashmir against the vacant slots. However, it has been made clear that the appointment of applicants will be prospective in nature.
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