Srinagar, Aug 5 : The J&K High Court on Tuesday issued a notice to government on a plea challenging legal provisions which provide 100 percent reservation to domicile of the Jammu and Kashmir in public employment.
A bench of Justice Tashi Rabstan issued the notice returnable within four weeks on the plea filed by two residents of Haryana and one from Ladakh.
The petitioners have challenged Sections 3A, 5A, 6, 7 and 8 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, on the ground that the same are “violative of Article 14, 16, 19 and 21 of the Constitution of India.”
They said that section 5A of the law which says that only domicile of the J&K shall be eligible for appointment to any post was violative of Article 16 (3) of the Constitution which guarantees equal opportunity in employment.
The plea further said that the reservations contemplated in Article 16 should not exceed 50 per cent.
The petitioners have also contended that the Parliament has never delegated the law making power of Article 16(3) of Constitution to the Central Government under Section 96 of Jammu and Kashmir Reorganization Act, 2019.
“The power delegated under Section 96 was only for the purpose of facilitating the applications of already prevailing law in former State of Jammu and Kashmir or to make laws applicable to new Union
Territories of J and K and Ladakh,” they said, adding, “Every modification or adaptation of any law shall be done in that reference only and not beyond. Petitioners further contend that the power delegated under Section 96 shall not be in any manner construed as delegation of parliamentary power of Article 16(3) of Constitution of India.”
On July 15, the Supreme Court had asked petitioners to move the J&K High Court with the plea.
“Therefore, if any reservation has to be granted in the UT on the basis of residence, the same may be done only in consonance with Article 16(3) of the Constitution,” the plea said.
In March, the government issued the J&K Reorganization (Adaptation of State Laws) Order 2020 which notified changes in the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act.
Section 5A of the Act stated that Level 4 posts will be reserved for domiciles.