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| DB strikes down benefit of reservation in promotions | | | Early Times Report
Jammu, Oct 9: In a landmark judgment, Division Bench of State High Court Comprising Justice Hasnain Massodi and Justice Janak Raj Kotwal today in bunch petitions, held that there shall be no benefit of reservation in promotions in the state of J&K and struck down Section 6 Jammu and Kashmir Reservation Act 2004, and Rules 9, 10 and 34 Jammu and Kashmir Reservation Rules 2005 as ultra vires.
This landmark judgment has been passed in a bunch of petitions challenging the promotions AE to AEE and AEE to XEns.
Division Bench after hearing battery of lawyers appearing from both the sides struck down the section 6 of Reservation 2004 which authorizes the state Govt for providing reservation in promotion by framing rules and consequently High Court struck down the Rule 9 of Reservation Rules 2005 which provides percenetage of reservation to various categories for the promotion and also struck down Rule 10 Reservation Rules 2005 which provides roaster points for reserved category while making promotions and and High Court also struck down Rule 34 of reservation 2005 which obligates the govt to consider reserved categories also while making temporary/ stop-gap/ officiating promotions.
Division Bench observed that dispute, as bare look on the issue identified would reveal, relates to right of Reserved Category Government servants, to accelerated promotion provided under Section 6, J&K Reservation Act, 2004 read with Rule 9 and 34, J&K Reservation Rules, 2005 (for short "Reservation Act and Rules"). The facts fall in a narrow compass, though issue raised reflects an important question of law. It is pertinent to point out that all these petitions were considered by learned Writ Court. However, at the request of learned Single Judge (Justice Dhiraj Singh Thakur), the Chief Justice has been pleased to direct listing of batch of petitions before the Division Bench. Request to list writ petitions before larger Bench was made because of importance of question of law arising out of petitions.
Division Bench further observed that petitioners are members of J&K Engineering (Gazetted) Service Hydraulic Wing, J&K Law Officer (Subordinate) Service, J&K Engineering (Gazetted) Service, J&K Animal Husbandry (Gazetted) Service. They are aggrieved with different Government orders, whereby private respondents in writ petitions, though junior to them, have been promoted to next higher level ahead of them under Reservation Act and Rules, and thereby allowed to steal march over them.
Division Bench further observed that petitioners insist that in terms of authoritative judicial pronouncement in aforementioned reported judgement, reservation in case of promotion offends letter and spirit of Articles 14 and 16, Constitution of India and therefore, is not permissible under law. It is urged that Article 16(4A) added by 77th Constitutional Amendment Act, would not legitimise course followed by official respondents inasmuch as amendments made are not applicable to the State of Jammu and Kashmir. Division Bench observed that controversy involved in writ petitions is multi-dimensional. It raises a number of questions, required to be dealt with to settle the controversy that Why was Constituent Assembly convened and separate Constitution framed for the State, when none of the Princely States that acceded to Dominion of India, did go for such exercise. Why are not all the provisions of Constitution, like other States, applicable to the State and so are the amendments made to the Constitution from time to time. Division Bench observed that while the Court may not assume role of an appellate authority to look into and examine sufficiency of the material/data collected by the State to justify reservation, there nonetheless must be material available to indicate that such exercise was undertaken. In the present case, respondents have not produced any material to indicate that any exercise was ever undertaken by them to identify the classes inadequately represented in the services of Government employment or for that matter to identify section of the society as a backward class, so as to warrant reservation in promotions. With these observations, Division Bench allowed the petitions and holds that Section 6 Jammu and Kashmir Reservation Act 2004, and Rules 9, 10 and 34 Jammu and Kashmir Reservation Rules 2005 are held to be ultra-vires Article 16 Constitution of India and accordingly struck down and set-aside the Government order published in this regard. |
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