Jammu & Kashmir & Ladakh High Court: Denying Reservation In Promotions In J&K Amounts To Treating Reserved Category Employees Of The UT Differently From The Rest Of The Country
The Jammu & Kashmir and Ladakh High Court issued directions for the implementation of reservation in promotions in the UT.
The Jammu & Kashmir and Ladakh High Court held that denying reservation in promotions in the UT of J&K amounts to treating the reserved category employees of the UT differently from those in the rest of the country, which constitutes class legislation.
The Court issued directions for the implementation of reservation in promotions for Scheduled Castes (SCs), Scheduled Tribes (STs), and other reserved categories in the Union Territory (UT) of Jammu and Kashmir. The Petitioners challenged the impugned Circular issued by the General Administration Department which instructed administrative secretaries to keep reserved category promotion slots vacant, which the Petitioners argued violated Article 16(4A) of the Constitution and the Jammu and Kashmir Reservation Act, 2004 (the Act) and its accompanying rules.
A Single Bench of Justice MA Chowdhary held, “The benefit of reservation in promotions is stated to be accorded all across India in accordance with Article 16(4A) of the Constitution of India and applying the directions issued in terms of Circular dated 05.03.2021 in denying benefits of reservation in promotion in UT of J&K amounts to denying/treating reserved category employees/candidates of the UT of J&K differently than the reserved category employees/candidates of the rest of the Country, which amounts to class legislation, which is antithetical to the concept of equality laid down in the Constitution of India.”
Advocate Areeb Javed Kawoosa represented the Petitioners, while Advocate Furkan Yaqub appeared for the Respondents.
Brief Facts
The Petitioners sought:
- Quashing of the circular.
- Directions for promotions under the reserved category roster slots.
- Regularization of reserved category employees in accordance with the Act and J&K Reservation Rules, 2005.
Court’s Reasoning
The High Court noted the Supreme Court’s decision in Indra Sawhney v. Union of India (1993) wherein it was held that the reservation in promotions in favour of backward classes was unconstitutional as the reservations only at the entry level i.e., at the time of recruitment into public service was permissible and not thereafter.
However, the Parliament, after Indra Sawhney, enacted 77th Amendment Act, 1995, which introduced Article 16(4A) conferring power on the States to reserve seats in favour of Scheduled Castes and Scheduled Tribes communities in the process of promotion in public service if the communities are not adequately represented in public employment.
A three Judge Bench of the Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta held that the State should justify reservation in promotions with respect to the cadre to which promotion is made having regard to the quantifiable data to assess representation of SCs and STs for the purposes of providing reservation in promotions, cadre, which is a part of a group is the unit and data has to be collected with respect to each cadre.
The Bench held, “Be that as it may, since in its affidavit referred hereinabove, the respondent-UT of Jammu and Kashmir has taken a stand before the Apex Court with regard to its intentions to implement the reservation in promotions, therefore, denying reservation to all the members of the service, who are entitled to such reservation in promotions, amounts to denying them of their constitutional rights.”
Consequently, the Court issued the following directions:
“The respondents shall collect quantifiable data having regard to the „cadre‟ as „unit‟ for consideration of collection of quantifiable data within a period of six weeks from the date of this judgment and then accord consideration to the reservation in promotions to the petitioners as and when promotions to the next cadres are considered;
In absence of collecting any quantifiable data as directed vide direction No. (i), the respondents shall proceed to consider the petitioners for reservation in promotions against the reserved slots in view of Jammu and Kashmir Reservation Act, 2004 and rules framed thereunder till the exercise for collection of quantifiable data is made by the Administrative Departments; and
The respondents are restrained from making any promotions unless candidates belonging to the SC/ST reserved categories entitled for consideration for reservation in promotions are considered.”
Cause Title: Mohammad Jamal Sheikh & Anr. v. Union Territory of Jammu & Kashmir & Ors. (WP(C) No. 336/2023)
