by Ahmed Ziya Siddiqui
Jammu and Kashmir’s deviation from this practice deepens the disadvantage faced by open merit candidates. Already limited to 40 per cent of seats, they find even that share further eroded as vacated open merit seats are reabsorbed into the reserved quota.
The Jammu and Kashmir Reservation Rules of 2005, framed to advance social justice, contain a clause that unsettles the balance between merit and affirmative action. Rule 7(8), which governs the preparation of select lists for the Combined Competitive Examination, permits reserved category candidates who qualify in the open merit pool to opt for reserved seats, while reallocating the vacated open merit seats exclusively to other reserved category candidates.
The rule states:
“(8) For purposes of services to which Combined Competitive Examination is conducted, the reserved category candidates if selected against open merit vacancies may also be considered for allotment of services allocable to their respective category as per their inter-se-merit/ own preference and the resultant left over vacancies in the services in open merit shall be allotted to those reserved category candidates only, as per merit-cum-preference, against whose vacancies the reserved category candidates qualifying in the open merit are considered:
Provided that physically challenged candidates shall be considered for selection in the services and against the posts identified for their respective categories in terms of Government Order No. 62-SW of 2001 dated 13.03.2001 and in accordance with their merit-cum-preference, if otherwise found suitable for selection.”
Although procedural in appearance, this mechanism broadens the scope of reservations beyond their constitutional limits. It reduces the share of open merit candidates and raises questions of arbitrariness under the Indian Constitution.
The Mechanics of Rule 7(8)
Rule 7(8) allows a reserved category candidate who secures an open merit seat through a higher rank to shift into their reserved quota to obtain a preferred service or cadre, such as the Kashmir Administrative Service. Once the candidate migrates, the vacated open merit seat is not given to the next general candidate on the list. Instead, it is reassigned to another reserved category candidate according to their merit and preference within that category.
This creates a cascading effect. Open merit seats diminish while reserved seats expand beyond the intended quota.
Consider a scenario of 10 seats, with 6 for open merit and 4 for Scheduled Caste candidates. If a Scheduled Caste candidate ranks among the top 6 but chooses to occupy a reserved seat, the vacated open merit seat does not go to Rank 7, who belongs to the general category. It is reassigned to another Scheduled Caste candidate, such as Rank 8. The quota effectively shifts to 5 reserved and 5 open merit seats, even though the general candidate had higher marks. This disturbs the balance between affirmative action and merit.
Disproportionate Outcomes
Notifications issued by the Jammu and Kashmir Public Service Commission for recent examinations show that nearly 60 per cent of seats are earmarked for reserved categories, leaving only 40 per cent for open merit candidates. When vacant open merit seats are transferred to reserved categories, the proportion climbs higher than the prescribed limit. Open merit seats earned based on performance are given away, while better-scoring general candidates remain excluded.
For example, if a Scheduled Caste candidate in the open merit list shifts to the Scheduled Caste quota, the vacated open merit seat goes to another Scheduled Caste candidate rather than the next general candidate. This can reduce the open merit quota from 40 per cent to 30 per cent or lower, restricting opportunities for general candidates without justification.
Constitutional Questions
The state may argue that Rule 7(8) operates under Article 16(4) of the Constitution, which permits reservations to secure adequate representation for disadvantaged groups. Reallocating open merit seats to reserved categories could be defended as a way to ensure that these groups do not lose their share.
However, this reasoning is weak. Reserved seats in Jammu and Kashmir rarely remain vacant because of the high demand for government posts and the intensity of competition. More importantly, the policy grants dual advantages to reserved category candidates: they can compete in the open merit pool and also migrate to their reserved quota, while their vacated seats remain within the reserved pool. This amounts to an expansion of reservations by indirect means. It undermines the principle of reasonable classification under Article 16(4), which demands that affirmative action remain proportionate and not inflict excessive harm on other groups.
Equality and Arbitrariness
The rule also raises concerns under Article 14 of the Constitution, which guarantees equality before the law. By denying a meritorious general candidate, such as Rank 7, a seat in favour of a lower-ranked reserved candidate, such as Rank 8, the policy elevates category over merit without any rational link to the purpose of uplifting disadvantaged groups. This subtle dilution of open merit shifts the principle of equality, turning reservation from a measure of protection into an instrument of excess preference.
Reservations were originally designed to provide opportunities to socially and educationally disadvantaged classes. Yet by denying seats to higher-ranked candidates, the policy appears to exceed that objective. Instead of safeguarding fairness, it begins to invert equality by favouring one section even when not supported by merit.
UPSC’s Model
The Union Public Service Commission offers a striking contrast. In UPSC examinations, reserved category candidates who qualify in the open merit pool may choose to occupy reserved seats to obtain their preferred services. However, the vacated open merit seat is then filled by the next general candidate on the merit list. This preserves the open merit quota in full and maintains the balance between affirmative action and merit.
Jammu and Kashmir’s deviation from this practice deepens the disadvantage faced by open merit candidates. Already limited to 40 per cent of seats, they find even that share further eroded as vacated open merit seats are reabsorbed into the reserved quota.
Social and Legal Ramifications
In Jammu and Kashmir, government employment remains one of the few reliable avenues to economic stability. The reservation rule, therefore, fuels resentment among open merit aspirants. With 60 per cent of seats already reserved, the additional diversion of open merit vacancies to the reserved pool leaves general candidates with shrinking prospects despite their performance. Trust in the examination process is weakened, particularly among young aspirants who view their efforts as obstructed by structural inequities.
The contrast with Janhit Abhiyan v Union of India (2022) is instructive. In that case, the Supreme Court upheld the 10 per cent reservation for economically weaker sections, but only with the safeguard of an income ceiling, or creamy layer, to prevent the better-off from monopolising benefits. In Jammu and Kashmir, no such ceiling exists for the Scheduled Caste or Scheduled Tribe categories. As a result, affluent reserved candidates may secure both open merit and reserved seats. A small segment of already advantaged individuals thus dominates opportunities, leaving the truly disadvantaged behind. This outcome is arbitrary and undermines the stated aim of social justice.
From a legal standpoint, the rule stretches the constitutional framework. The Supreme Court has consistently stressed that reservation policies must not erode efficiency in administration or impose disproportionate burdens on general candidates. By inflating the reserved share at the cost of open merit, Jammu and Kashmir’s approach risks failing that standard.
Towards Reform
Correcting this imbalance requires amending Rule 7(8) so that any vacated open merit seat passes to the next general candidate on the merit list. Reserved category candidates should continue to enjoy the right to move to their quota for preferred services, but the open merit quota must remain intact. Returning to the earlier example, this would retain four seats for Scheduled Castes and six for open merit candidates. General candidates would then not be deprived of places they have earned.
Aligning Jammu and Kashmir’s policy with the constitutional scheme and with UPSC’s practice would restore equilibrium between affirmative action and merit.
The current arrangement, though intended to promote representation, gradually erodes open merit by reallocating vacated seats to reserved candidates. It expands quotas beyond constitutional limits, undermines higher-ranked general candidates, and risks violating Articles 14 and 16. Unless reformed, the policy will continue to diminish confidence in the system, with merit overshadowed by procedural distortion.
(The writer is an advocate at the High Court of Jammu and Kashmir and Ladakh. Views are personal.)
