Govt defends Reservation Policy in High Court

Srinagar, Apr 5: In its objections before the High Court of J&K and Ladakh to a batch of pleas calling into question the validity of amendments to Jammu and Kashmir Reservation Rules, the government has defended its reservation policy.

The government’s affidavit filed in the court attests to the government's stand that “the State must give equal opportunities to all the sections of the social order and to take the downtrodden out of their disadvantageous and unfavourable position by doing away with their disabilities, be it social, economic, educational or political”.

While the affidavit underscores that “no particular section of the society has the indefeasible, inalienable and absolute right to reservation in perpetuity”, it says, “The 50 percent ceiling is not an inviolable rule and may be breached in exceptional circumstances as held in Indra Sawhney judgment.”

“It is the government which has to maintain equilibrium in the society and has to see that all such sections of the society that need special measures for their advancement and progress are provided so and also the duration to continue the same, thus empowering and enabling them to contribute in nation building,” the government said.

“Accordingly, as per the constitutional mandate, the appropriate Government is entitled to include or exclude any particular section to be dealt with under the provision of the reservation and to make the country a 'Socialist' one in its true spirit,” it said, adding, “where the basic facts are disputed and complicated questions of law and fact, depending on the evidence, are involved, the writ court is not the proper forum for seeking relief”.

In the objections, the government said that the plea challenging the reservation policy is “enthused with an ambition of intervention in the separation of powers so much so that the petitioners want to control the legislative powers of the Government by misusing the power of judicial review”.

The court referred to the Supreme Court Judgment Indra Sawhney the government said in the verdict it has been held that whether a backward class is inadequately represented or not is purely a matter of subjective satisfaction of the State.

“It has been held that not only should a class be a backward class for meriting reservations, it should also be inadequately represented in the services under the State,” the government said.

The language of clause (4), it said, makes it clear that the question of whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State.

“This is evident from the fact that the said requirement is preceded by the words in the opinion of the State,” the government said. “This opinion can be formed by the State on its own, that is based on the material it has in its possession already or it may gather such material through a Commission or Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed.”

The government said the writ petitioners before the Court have not challenged the reservations up to 50 percent and have only challenged the enhancement of reservation. As per Article 16(4), it said, the State may make reservations for backward classes only if they are inadequately represented.

“By not challenging the reservation granted to these communities within the upper limit of 50 percent, the petitioner affirmed that these classes are inadequately represented,” it said.

The government said subject to the fulfilment of the social test for the breach of the 50 percent ceiling, it is for the State to decide the requisite reservation to cure the inadequate representation of these classes.

While the government indicated that the test for breaching the 50 percent ceiling is not a 'Geographical Test' but a ‘Social Test’, it said: “The petitioners have failed to appreciate that the 50% ceiling is not an inviolable rule and may be breached in exceptional circumstances as held in Indra Sawhney judgment.”

The government said the petitioners have failed to appreciate that the rules envisage “adequate representation' and not 'proportionate representation”.

“The adequate representation cannot be read as proportionate representation but can be applied as such. The petitioner has further failed to appreciate that the norm under Article 16(4) is of adequate representation and not proportional representation,” it said.

“The Constitution of India is the ultimate authority for it to take such initiative to achieve the objective and ideology of the republic in making it a welfare state and distributing the resources of the country to sub-serve the common good,” the government said. “In doing so, if the scope of the reservation is widened, there is no reason for the individuals having enjoyed the benefits of reservations for decades, to challenge the decision of the government, especially when none of the rights have been taken away or curtailed. As such, the writ petition failed the test of having any legality, entailing the same to be dismissed with cost.”

The government said that the “newly inserted provisions of Article 15(6) and Article 16 (6) are enabling provisions for the advancement of the economically weaker sections and are in fact, in conformity with the principle of Reservation and Affirmative action, which are the touchstones of protection of equality of citizens and also the basis under Article 15 (1), Article 15(2, Article 16(1) and 16(2).

“Therefore, the impugned rules are in conformity with the constitutional principles and do not violate the basic structure doctrine,” it said.

In the petitions before the High Court, the petitioners contend that due to the amendments in the Reservation Rules of 2005 by authorities, there is a decrease in the percentage in Jammu and Kashmir Government Recruitment posts and seats in educational institutions for open merit 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 Caste from 2 percent to 8 percent, and ALC from 3 percent to 4 percent, 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).