Excelsior Correspondent
JAMMU, Apr 22: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sanjeev Kumar and Justice Rajesh Sekhri today observed that no citizen should be discriminated against for the purpose of employment to any office under the State or Union.
The prohibited grounds of discrimination under Article 16(2) of the Constitution of India, inter alia, are religion, race, caste, place of birth and residence. The only exception that is carved out by clause (3) of Article 16 of the Constitution is in relation to requirement as to residence within a State or Union Territory prior to employment or appointment of a candidate to an office under the State or Union Territory or any local or other authority within such State or Union Territory etc and this exception can be made only by law made by the Parliament prescribing such requirement as to residence.
“The Parliament has not made any such law prescribing any requirement as to residence within a State or Union Territory in regard to any class or classes of employment or appointment under the Union Territory of Jammu and Kashmir. That being the position, neither the Union Territory of Jammu and Kashmir, nor the High Court can prescribe any such requirement as to residence in regard to any class or classes of employment or appointment under it”, the DB said.
“Clause 3(A) of the Advertisement Notification therefore, flies on the face of Clauses 1 and 2 of Article 16 of Constitution of India. Clause 3 (A) of the Advertisement Notification impugned in this petition is declared ultra vires the Constitution and, therefore, shall not be given effect to”, the DB further said.
With these observations, Division Bench allowed the petition and directed respondent to declare the result of the petitioners and subject them to the process of interview. Since the petitioners, who have participated in the selection process pursuant to the interim directions passed by court are less than the posts of Junior Assistant earmarked/reserved for SC category, as such, it is expected that all the petitioners must have qualified the written test.
“Be that as it may, let the candidature of the petitioners be considered ignoring their ineligibility in terms of Clause 3(A) of the Advertisement Notification and the selection process for 18 posts of Junior Assistants earmarked for SC category in Kashmir Division be finalized within a period of two months”, the DB directed, adding “petitioners or any of them make it to the selection, their appointments shall be retrospective from the date the candidates who had participated along with the petitioners have been appointed”. However, the retrospective appointment of the petitioners shall be notional and without any monetary benefits.
In another petition, DB observed, “there is a dispute as to whether the petitioner has applied for the post of Junior Assistant Kashmir Division. It is the specific averment made by the petitioner that he had submitted his application form for the post of Junior Assistant both in Jammu Division as well as the Kashmir Division, whereas, in the reply affidavit filed by the High Court, this factual assertion of the petitioner is denied”.
“It is submitted that the High Court has not received any application from the petitioner for the post in question in the Kashmir Division. Without going into the disputed question of fact, we leave it to the High Court to find out as to whether the petitioner has applied for the post of Junior Assistant in Kashmir Division either of his own or through the intervention of this court and participated in the written test”, the DB said.
This significant judgment has been passed in a petition filed by Mulakh Raj & others who are residents of and belong to Jammu Division. They all belong to the Scheduled Caste category and have applied for the posts in questions.
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