JAMMU AND KASHMIR CIVIL SERVICES (DECENTRALIZATION AND RECRUITMENT) ACT, 2010 NOT IN CONSONANCE WITH ARTICLE 16(3) OF THE CONSTITUTION

A writ petition has been filed by Najmul Huda through Advocate Nishant Khatri challenging Sections 3A, 5A, 6, 7 & 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 before the Supreme Court challenging 100% domicile reservation in public employment, prevalent in the Union Territory of Jammu and Kashmir. All the above mentioned sections are considered to be violative of Article 14, 16, 19 & 21 of the Constitution.

They have argued that since abrogation of Article 370, J&K is equally subject to all laws and Supreme Court judgements that are applicable to the rest of the country. Therefore, to grant any reservation on the basis of residence, Article 16(3) of the Constitution must be in consonance.

It is also contended that Section 5A of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 which says that no person shall be eligible for appointment to any post unless he is a domicile of the Union Territory of Jammu and Kashmir, would violate the guarantee of equal opportunity under Article 16(3) “meaningless” and “illusory”.

The Petitioners have argued that, “Parliament has never delegated law making power of Article 16(3) of Constitution to the central government under Section-96 of J&K reorganization Act, 2019. Power Delegated under Section-96 as 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.”

The petition further points out that reservations considered in Article 16 should not exceed 50%. “100% reservation on the basis of domicile or residence is unambiguous violation of the law as it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. Supreme Court has time and again made it clear that the reservations contemplated in Article 16 should not exceed 50%. Hence, 100% reservation for domicile of Union territory of J&K is clear cut violation of law laid down by Supreme court.,”

The petition is listed for consideration on July 15, 2020.

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