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| Reservation in Promotions & Article 370 | | | Ajatshatru
Once again article 370 is responsible for political
unrest & atmosphere of confusion among peoples of Jammu & Kashmir especially SC/ST's & other reserved category persons. The J&K High Court gave its ruling regarding reservations in promotions in its recent verdict in the case titled Ashok Kumar & Others Vs State Of J&K & Others dated 09.10.2015. In its judgment, the High Court held section 6 of Jammu and Kashmir Reservation Act 2004, and Rules 9, 10 and 34 Jammu and Kashmir Reservation Rules 2005 held to be ultra-vires of Article 16(4) Constitution of India and accordingly struck down. In the similar judgment titiled Indra Sawhney Vs Union Of India, 9 Judges Bench of the Hon'ble Supreme Court of India in the year 1992 also declared the reservations in promotions to be ultra vires of article 16(4) of constitution of India and held unconstitutional. In order to remove the said anomaly, the Parliament of India made amendment in the Constitution of India popularly known as 77th Constitutional Amendment Act and added new clause 4-A in the Article 16 which is to be effect from 17.06.1995 making provision for reservation in promotions for SCs/STs. While in another case of Veerpal Singh Chauhan, Hon'ble Supreme Court of India by 2 Judges Bench on dated 10.10.1995, 3 Judges Bench on 01.03.1996 and 5 Judges Bench on 16.09.1999 introduced the 'Catch up Rule' to enable general candidates to regain their seniority immediately on promotion over SCs/STs who had been promoted earlier through reservation and had gained seniority over general candidates. Finally the remaining anomalies had been removed when Parliament through constitutional amendments named as 81st & 85th Constitutional Amendment Act and added another clause 4-B with certain more modification & clarifications in the same Article 16 which is to be effect from 17.06.1995 for giving consequential seniority to SCs & STs in matters of reservation in promotions. In another Constitutional amendment which is known as 82nd Constitutional Amendment Act which inserted the proviso in the Article 335 to give further benefits of reservations in promotions & other related matters for SCs & STs. The General Category employees challenged the above Constitutional amendments before Hon'ble Supreme Court of India in the M. Nagraj's case and 5 Judge Bench of Supreme Court of India held these amendments to be constitutionally valid with certain modifications and conditions like ceiling limit of 50% and the concept of creamy layer etc. But due to the special provision related to the State of J&K the above Constitutional amendments are not extended to the J&K State in terms of the procedure laid down in Clause (1) of Article 370, read with Clause (2) of Article 368 of Constitution of India which clearly states that the amendment was to be applied by Presidential order issued, in accordance with procedure laid down as stated above. The Constitutional position of J&K State with respect to Union of India is not at par with other states of Indian union. The Constitutional amendments are ipso facto applicable in respect of other states of Indian Union but those amendments are not applicable ipso facto to the State of J&K unless made applicable by special procedure as mentioned above. Fortunately or unfortunately the present judgment of Hon'ble J&K High Court came in the time when 77th, 81st, 82nd and 85th Constitutional amendments are not extended to the State of J&K till date. During the hearing, the Respondents took different pleas that these above said constitutional amendments ipso facto made applicable in J&K State. They further resisted the Petitioner's claim by taking another plea that reservation in the matters of promotions contemplated under Section 6, Reservation Act and Rules 9 and 34, Reservation Rules, is not excessive & is restricted to 22% of total promotional vacancies and therefore, cannot be struck down on the ground of excessive reservation. Also the reservation in promotions is only up to Deputy Secretary Level, it is not to impact promotion to higher posts and dampen and discourage merit and efficiency. Therefore the reservations in promotions in J&K State are constitutionally permissible. But in the said writ petition J&K High Court expressed its inability to accept all the pleas of Respondents in the present constitutional position of J&K State. The High Court clearly observed that Promotions in reservations are held to be ultra vires with respect to the un-amended provision of Article 16(4) of Constitution of India which only applicable to the State of J&K and not the subsequent constitutional amendments as amended provisions like 16 (4-A) & 16(4-B) of Constitution of India. So protective umbrella under Clause 4(A) & 4(B) Article 16 of Constitution of India to law/rules/regulations, providing for reservation in promotions, is not available to Section 6 of Jammu and Kashmir Reservation Act and Rules 9, 10 and 34 of Reservation Rules. The reason being that amendment to Article 16, adding Clause 4(A) & 4(B) has not been applied to the State of J&K in the present circumstances, the High Court observed. Now the questions comes that blaming the present PDP-BJP State Govt. by those deprived SCs, STs & other reserved category persons how far is justified ? Is not the Article 370 is the real obstacle which forced the J&K High Court to interpret the present constitutional status of J&K in respect of reservations in promotions by which reserved category persons deprived from enjoying the fruits of reservations in promotions ? What we call the recent protests of All J&K General Category Employees to force the State PDP-BJP Govt. to implement J&K High Court's above said order ? Answer to all these questions lead to the same conclusion that this time also the cause of real controversy is article 370 the Special Status of J&K and not the failure of State Govt. in pleading the cause of the reserved category permanent residents of J&K. Is it possible in the one country of Mahatama Gandhi and Late Sh. Shyma Parad Mukhrjee that same persons treated differently ? Can anybody digests that benefits of reservations to SCs & STs available to all rest of Indians except SCs & STs peoples living in J&K State ? These questions has to be answered before speaking in favour of the Judgment or speaking against the Judgment. Article 370 once again proved to be a big impediment in the development of J&K State. There are many laws made by the Parliament of India are not applicable to the State of J&K till date from years together due to its special constitutional position. This special constitutional position is a main hurdle in the pace of development in the whole State. It causes more harm than to give fruits to the people of J&K particularly for the people Jammu & Ladakh Province. Also, All J&K General Category Employees must understand that they must not confuse themselves by mis-interpreting the Judgment of Hon'ble J&K High Court. The High Court nowhere said that the legislature could not make special provisions for reservation in promotions and all reservations should be revoked ? The High Court only interprets the present constitutional position of J&K State in respect of reservations in promotions. The All J&K General category Employees & other General caste leaders also must stop playing in the hands of few opportunist & vested interest persons who wanted Mandal Commission like situation of 1990 by misquoting and misinterpreting the Judgment of J&K High Court for their cheap political gains. That situation would create enmity and atmosphere of intolerance among the peace loving people of J&K particularly in Jammu Province. The SC & ST leaders & other general category social leaders of J&K must stop blaming the PDP-BJP State Govt. for none of their fault over the issue. BSP leaders of J&K also trying to polarize the situation by exploiting SC & ST vote banks by misquoting and misinterpreting the above said Judgment of J&K High Court. The recent tug of war between reserved category employees and general category employees including some other social & political leaders will ultimately lead to division in the society which in no way healthy sign for the future of J&K State. Solution to any problem only evolved through debates & discussions not by organizing protest demonstrations or rallies against the State Govt. from both sides or by creating division between reserved and General Category persons of the State. It will interesting to knew that how the Hon'ble Supreme Court of India would react over the Judgment in the near future. Jai Hind!
--The writer is a socio-political activist and can be reached at [email protected] & 09419377491. |
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