Excelsior Correspondent
SRINAGAR, Dec 4: The High Court today directed that any appointment made under Reservation Rules shall be subject to the outcome of the petition seeking declaration of the rules null and void.
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The Court before issuing notice to the Government on the plea challenging validity of amendments in J&K Reservation Rules has sought assistance of Advocate General in the matter on next date of hearing.
The amendments made in the JK Reservation Rules have been challenged by five persons. They have called in question the validity of amendments made in the rules. It is contended by them that due to the amendments in the Reservation Rules of 2005 by authorities, there is a decrease in the percentage in Jammu and Kashmir Government Recruitment posts and seats in educational institutions for open merit from 57 percent to 33 percent, Residents of Backward Area (RBA) from 20 percent to 10 percent while there is an increase in reservation in the Scheduled Tribe (ST) from 10 percent to 20 percent, Social Caste from 2 percent to 8 percent, and ALC from 3 percent to 4 percent and PHC from 3 percent to 4 percent.
The aggrieved persons are seeking to declare Rule 4, Rule 5, Rule 13, Rule 15, Rule 18, Rule 21 and Rule 23 of the J&K Reservation Rules, 2005 as amended through various SOs as ultra vires the constitution as the amendment in the rules has added new categories like Children of Defence Personnel and kept 3 percent reservation for them, Children of Police Personnel by keeping 1 percent and 2 percent for candidates possessing performance in sports.
The Division Bench of Justice Atul Sreedharan and Justice Moksha Kazmi after hearing the senior counsel M Y Bhat for the petitioners for a while directed that the appointments made under the amendment of rules shall remain subject outcome of the plea. The court declined to issue notice to the Government and said the court wants the assistance of AG in the matter before the notice is issued and kept the matter for further consideration on December 27.
They also sought direction to the authorities to issue fresh recruitment notifications in tune with the Jammu and Kashmir Reservation Rules of 2005 (un-amended).
The appointment of a Commission headed by a Retired Judge of the High Court with members of each community and category to recommend and provide the reservation based on population percentage in J&K is being sought before the court, so that the reservation policy is framed on a rational basis.
“The reservation is granted under Articles 14, 15, 16 and 21 of the Constitution but it has to be given to justify the reasonable differentia and not at the cost of the general category candidates and reservation should not be meant to discriminate against the open merit category whose population is more than 70 percent in Jammu and Kashmir,” the petitioners plead.
The J&K Reservation Act, 2OO4, which is the parent act providing the Government with the power to frame rules for providing reservation, provides in express terms in Section 3 therein, that the total percentage of the reservation shall in no case exceed 50 percent and the aggrieved petitioners contend that it is a settled principle of law that every rule framed by the executive under an act has to necessarily conform to the provisions of the act itself and no rule can be framed in derogation of the parent act.
They have sought intervention to direct the authorities to apply rationality in the reservation to maintain a 50 percent ceiling for open merit and general category. “The reservation is granted under Articles 14, 15, 16 and 21 of the Constitution but it has to be given to justify the reasonable differentia and not at the cost of the general category candidates,” the plea read.
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