HC seeks Govt’s, others’ response on plea

Srinagar, Dec 30: The High Court of J&K and Ladakh sought by March 6 next year the government’s response to a plea challenging the validity of amendments to Jammu and Kashmir Reservation Rules.

A Division Bench of Justice Rajnesh Oswal and Justice Muhammad Yousuf Wani sought the objections from the respondents – the J&K government through its Chief Secretary, Commissioner Secretary General Administration Department, Commissioner Secretary Social Welfare Department, Chairman of J&K Public Service Commission, Chairman of J&K Service Selection Board, University of Kashmir through its Register Registrar, besides Jammu and Kashmir and Ladakh High Court through its Registrar Recruitment.

Besides these, the court sought a response from the Pahari Cultural Development Society after it allowed the society as an “intervener” in the matter.

It also allowed another application by the Pahari community seeking similar directions.

This followed after senior advocate M Y Bhat representing the petitioners did not object to the community being arrayed as a “party”.

“All the respondents including the newly impleaded respondents shall file a response positively in the present petition as well as the connected petitions (sic),” the bench said and listed the matter for further consideration on March 6, 2025.

The court on December 4 held that any appointment made under amended Reservation Rules 2005 would be subject to the outcome of the plea challenging the validity of the rules before it.

Five aspirants Zahoor Ahmad Bhat, Ishrat Nabi, Ishfaq Ahmad Dar, Shahid Bashir Wani, and Amir Hamid Lone have challenged 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 of J&K government recruitment posts and seats in educational institutions for the Open Merit 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 Caste from 2 percent to 8 percent, and 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 sought direction to the authorities to issue fresh recruitment notifications in tune with the Jammu and Kashmir Reservation Rules of 2005 (un-amended).

Besides, they sought 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 the 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 J&K.

“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, 2004, 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 shall in no case exceeds 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 could be framed in derogation of the parent act.

“The act provides clearly that the total reservation shall 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 argued.