Appointments hinge on petition’s outcome: HC

Srinagar, Dec 4: The High Court of Jammu and Kashmir Wednesday held that any appointment made under amended reservation Rules 2005 would be subject to the outcome of the plea challenging the validity of these rules before it.

A Division Bench comprising Justice Atul Sreedharan and Justice Moksha Khajuria Kazmi sought assistance of the Advocate General after observing that given the nature of the case, it would be essential to hear the top law officer.

The court listed the plea for further consideration on December 27.

Five aspirants Zahoor Ahmad Bhat, Ishrat Nabi, Ishfaq Ahmad Dar, Shahid Bashir Wani, and Amir Hamid Lone have challenged through senior Advocate M Y Bhat the amended reservation rules with the contention that the new rules violate the constitution and are out of keeping with the Supreme Court decisions.

The petitioners contend that due to the amendments in the Reservation Rules of 2005 by authorities, there is a decrease in the percentage in the J&K government recruitment posts and seats in educational institutions for the Open Merit (OM) category from 57 percent to 33 percent, Residents of Backward Area (RBA) from 20 percent to 10 percent while there is an increase in reservation in the Scheduled Tribe (ST) from 10 percent to 20 percent, Social Castes (SC) from 2 percent to 8 percent, ALC from 3 percent to 4 percent, and PHC from 3 percent to 4 percent.

Their further contention is that the amendment in the rules has added new categories like Children of Defence Personnel and kept 3 percent reservation for them, Children of Police Personnel by keeping 1 percent, and 2 percent for candidates possessing performance in sports.

The aggrieved candidates have sought the court’s intervention to declare Rule 4, Rule 5, Rule 13, Rule 15, Rule 18, Rule 21, and Rule 23 of the J&K Reservation Rules, 2005, as amended through various SOs as ultra vires the constitution.

They also seek direction to the authorities to issue fresh recruitment notifications in tune with the Jammu and Kashmir Reservation Rules of 2005 (un-amended).

Besides, they seek direction for appointing a commission headed by a Retired Judge of the High Court with members of each community and category to recommend and provide the reservation based on population percentage in J&K, so that the reservation policy is framed on a rational basis.

They have sought intervention to direct the authorities to apply rationality in the reservation to maintain a 50 percent ceiling for open merit and general category.

“The reservation is granted under Articles 14, 15, 16, and 21 of the constitution but it has to be given to justify the reasonable differentia and not at the cost of the general category candidates,” the petitioners plead.

The plea underscores that reservation should not be meant to discriminate against the Open Merit category whose population is more than 70 percent in Jammu and Kashmir.

“Even the creamy layer candidates from the reserved category also fall in the Open Merit category and the candidates of reserved categories who get more merit also occupy seats and posts of the open merit category only,” it says.

The plea underlines that the J&K Reservation Act, 2OO4, which is the parent act providing the government with the power to frame rules for providing reservation, provides in express terms in Section 3 therein, that the total percentage of the reservation should in no case exceed 50 percent.

“The rules impugned are framed in exercise of powers conferred by Section 23 of the act,” it says.

The petitioners contend that it is a settled principle of law that every rule framed by the executive under an act has to necessarily conform to the provisions of the act itself and no rule can be framed in derogation of the parent act.

“The act provides clearly that the total reservation should in no case exceed 50 percent, but the respondents have provided for reservation of 7O percent in appointments which is not only violative of the Constitution of India and judgments of the Supreme Court, but of the J&K Reservation Act itself,” they argue.

The petition points out that the percentage of OM in J&K is 7O percent population and RBA area is more than 20 percent.

“So the Reservation Act, 2005, has kept 57 percent seats for OM category, 2O percent for RBA, and 23 for other three categories which holds logic,” the petition says. “The policy of the reservation aims to uplift the unprivileged classes as per their percentage in the overall population but it should not be at the cost of the merit and percentage of OM and RBA category candidates who constitute near about 83 percent population of Jammu and Kashmir.”

The petitioners submit that the Supreme Court in a landmark judgment Indra-Sawhny versus the Union of India, 1992 Supp (3) SCC 277, has held that the percentage of reservation should never exceed 50 percent, saying the amended reservation rules are in violation to the apex court’s judgment.

They plead that the amended reservation rules were issued in a hurry for “political mileage hence these lack the procedural process” and deserve to be set aside.

“Framing of reservation policy is a vital function which can only be done after thorough and proper research of the population and statistics, and cannot be framed at the whim and caprice of the government,” they say.