Excelsior Correspondent
JAMMU, Oct 9: In a landmark judgment, Division Bench of State High Court comprising Justice Hasnain Masoodi and Justice Janak Raj Kotwal today held that there shall be no benefit of reservation in promotions in Jammu and Kashmir. The DB also struck down Section 6 of Jammu and Kashmir Reservation Act, 2004 and Rules 9, 10 and 34 of Jammu and Kashmir Reservation Rules 2005.
The judgment has been passed in a bunch of petitions challenging the promotions of AEs to AEEs and AEEs to Executive Engineers.
After hearing battery of lawyers appearing for both the sides, the DB struck down the Section 6 of Reservation 2004 which authorizes the State Government for providing reservation in promotion by framing rules, Rule 9 which provides percentage of reservation to various categories for the promotion and Rule 10 which provides roaster points for reserved category while making promotions. The DB also struck down Rule 34 which obligates the Government to consider reserved categories also while making temporary/stop-gap/officiating promotions.
While striking down the Section and Rules, Division Bench set-aside the Government Order Nos. 151 PW(Hyd) of 2013 dated 3rd June 2013; 92-PW (Hyd) of 2014 dated 3rd March 2014; 95-PW(Hyd) of 2014 dated 4th March 2014; 379-PW (R&B) of 2006 dated 22nd September 2006; 228-PDD of 2002 dated 21st October 2003; 175-PDD of 2002 dated 12th June 2002; 228-PDD of 2001 dated 13th June 2001; 175-PDD of 2004 dated 24th June 2004; 7-PDD of 2002 dated 4th January 2002; 224-PDD of 2004 dated 30th July 2004; 178-PDD of 2001 dated 27th April 2001; 115-ASH of 2000 dated 29th December 2000; 265-HME of 2013 dated 16th April 2013; Corrigendum No.ME-GM-246/2011 dated 25th April 2013 to Government Order No.380-HME of 2012 dated 25th May 2012; 619-HME of 2011 dated 25th November 2011; and 43-ASH of 2000 dated 12th June 2000, 338-PDD of 2004 dated 29.10.2004 & 315-PDD of 2004 dated 18.10.2004 impugned in the writ petition.
“The dispute, as bare look on the issue identified would reveal, relates to right of Reserved Category Government servants, to accelerated promotion provided under Section 6, J&K Reservation Act, 2004 read with Rule 9 and 34, J&K Reservation Rules, 2005. The facts fall in a narrow compass, though issue raised reflects an important question of law”, the DB observed.
It is pertinent to mention here that all these petitions were considered by Writ Court. However, at the request of Single Judge (Justice Dhiraj Singh Thakur), the Chief Justice had directed listing of batch of petitions before the Division Bench. Request to list writ petitions before Larger Bench was made because of importance of question of law arising out of petitions.
“The petitioners are members of J&K Engineering (Gazetted) Service Hydraulic Wing, J&K Law Officer (Subordinate) Service, J&K Engineering (Gazetted) Service, J&K Animal Husbandry (Gazetted) Service. They are aggrieved with different Government Orders whereby private respondents in writ petitions, though junior to them, have been promoted to next higher level ahead of them under Reservation Act and Rules thereby allowed to steal march over them”, the DB observed, adding “petitioners’ case is that private respondents have been promoted and their seniority fixed ahead of them on the ground that they belong to Reserved Category within meaning of J&K Reservation Act, 2004 and J&K Reservation Rules, 2005″.
“It is stated that official respondents while promoting private respondents, have pressed into service Section 6 of Reservation Act and Rules 9, 10 and 34 of Reservation Rules, where under reserved category Government employees are to appear at higher place in roster and get promotion ahead of their General Category colleagues”, the DB further said, adding “these provisions of Reservation Act and Reservation Rules, according to petitioners, would not be available to make promotions impugned in writ petitions, in wake of Supreme Court Judgment in Indra Sawhney Versus Union of India”.
The Division Bench further observed, “petitioners insist that in terms of authoritative judicial pronouncement in this judgment, reservation in case of promotion offends letter and spirit of Articles 14 and 16 of Constitution of India and therefore is not permissible under law”, adding “it is urged that Article 16(4A) added by 77th Constitutional Amendment Act, would not legitimize course followed by official respondents inasmuch as amendments made are not applicable to the State of Jammu and Kashmir”.
“Petitioners’ case is that Constitution (Application to Jammu and Kashmir) Order, 1954, made in exercise of powers conferred by Clause 1 of Article 370 of the Constitution, adds proviso to Clause (2) of Article 368 in its application to the State, providing that no amendment is to have effect in relation to State of Jammu and Kashmir unless applied by a Presidential Order. It is pleaded that as 77th Constitutional Amendment Act, 1995 adding Clause (4A) to Article 16, has not been extended to State of Jammu and Kashmir by Presidential Order under Clause (1) of Article 370, clause (4A) of Article 16 would not be applicable to State”, the DB said.
“It is pleaded that even if Section 6 of Reservation Act and Rules 9, 10 and 34 of Reservation Rules, are assumed to have protection of Clause (4A), Article 16, Constitution of India, yet provision for reservation does not satisfy requirement of Clause (4A), Article 16, inasmuch as no background study has been made and satisfaction recorded regarding inadequate representation of Reserved Category in service under the State”, the DB said, adding “petitioners, on strength of averments made in petitions, seek appropriate writ, declaring Section 6 of Reservation Act and Rules 9 and 34 of Reservation Rules to be ultra vires Articles 16 of Constitution of India and in conflict with law laid down by Supreme Court in Indra Sawhney’s case”.
The DB further observed: The controversy involved in writ petitions is multi-dimensional. It raises a number of questions, required to be dealt with to settle the controversy that why was Constituent Assembly convened and separate Constitution framed for the State, when none of the Princely States that acceded to Dominion of India, did go for such exercise. Why are not all the provisions of Constitution, like other States, applicable to the State and so are the amendments made to the Constitution from time to time. Whether after accession of the State to Dominion of India and after the State in terms of Article 1 of the Constitution, became part of India and was included in 1st Schedule to the Constitution, amendment to a provisions of the Constitution applied to the State, is to ipso facto apply to the State?
Whether Article 370, being a temporary provision, lost its force once Constitution of the State was framed by its Constituent Assembly and therefore, can no more be used by the President to modify a provision of the Constitution in its application to the State? Whether expressions “exceptions and modifications” in Sub clause (d) Clause (1) of Article 370 of the Constitution, limit power of the President to minor changes or alterations in the provision of Constitution on their application to the State and not to “amend” such provision- add to, omit or abrogate such provision and like questions are intertwined with the controversy and required to be answered for just disposal of the writ petitions on hand, the DB further said.
“The duty, to deal with the matter in detail and consider all the aspects of controversy, assumes importance because of reference of the matter to a Larger Bench”, the DB said, adding “while the court may not assume role of an appellate authority to look into and examine sufficiency of the material/data collected by the State to justify reservation, there nonetheless must be material available to indicate that such exercise was undertaken”.
“In the present case, respondents have not produced any material to indicate that any exercise was ever undertaken by them to identify the classes inadequately represented in the services of Government employment or for that matter to identify section of the society as a backward class, so as to warrant reservation in promotions”, the DB observed, adding “reservation made in terms of Section 6 of Reservation Act and Rules 9, 10 and 34 of the Reservation Rules is invidious and unconstitutional on this ground as well. The argument that as reservation in promotions in terms of Section 6 Reservation Act read with Rules 9, 10 and 34 Reservation Rules is restricted to the level of Deputy Secretary or equivalent grade, and therefore would not tell upon efficiency in administrative machinery deserves to be allowed, is not to save the Reservation Scheme envisaged under aforesaid provisions, when it is held ultra vires Article 16 of the Constitution”.
With these observations, Division Bench allowed the petitions and struck down Section 6 Jammu and Kashmir Reservation Act 2004 and Rules 9, 10 and 34 of Jammu and Kashmir Reservation Rules 2005 and set-aside several Government orders.
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