SC refuses to hear plea challenging 100% domicile reservation provided by J&K Reorganisation Act

SRINAGAR: The Supreme Court on Wednesday refused to hear a petition challenging the 100% domicile reservation in public employment brought in by the Jammu & Kashmir Reorganisation Act, 2019 post the abrogation of Article 370, a media report said.

The Bench of Justices L Nageswara Rao, Hemant Gupta, and S Ravindra Bhat took up the plea for hearing today via video conferencing. However, it refused to entertain the same, reported Bar and Bench..

The Apex Court granted liberty to the petitioner to move the Jammu & Kashmir High Court and exhaust that option first before approaching the Supreme Court.

The plea states that Parliament never delegated law-making powers to the Centre under Article 16(3) of the Constitution.

The petition filed by Ladakh-based advocate Najmul Huda through lawyer Nishant Khatri, also a co-petitioner, has assailed Sections 3A, 5A, 6, 7 & 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, as being violative of Articles 14, 16, 19 & 21 of the Constitution.

The Union Ministry of Home Affairs, under Section 96 of the J&K Reorganization Act, had amended Jammu and Kashmir Civil Services (Decentralisation and Recruitment) Act whereby the term “permanent resident of J&K” was replaced with “domiciles of UT of J&K”.

Furthermore, the amendment included a Section 3A, by which children of those Central government officials who have served in the erstwhile state of Jammu & Kashmir for a total period of 10 years were included as domiciles of the new UT. Another Section 5A stated that no person shall be eligible for appointment to any post unless he is a domicile of J&K.

Citing Section 5A, the petitioners state that the new amendment would render guarantee of equal opportunity under Article 16(3) “meaningless” and “illusory”.

The petition avers that since all laws and Supreme Court judgments applicable to India are now extended to the UT of J&K, and since as per Article 16(2) of the Constitution, no citizen shall be discriminated on the basis of residence, the amendment made by the Centre under Article 16(3) which allows domicile or residence-based reservation, was beyond its authority.

“Parliament has never delegated law-making power of Article 16(3) of Constitution to the central government under Section-96 of J&K reorganization Act, 2019. Power Delegated under Section-96 was only for the purpose of facilitating the application of already prevailing law in the former state of J&K or to make laws (which were applicable in rest of India) applicable to new Union territories of J&K and Ladakh. Every modification or adaption of any law shall be done in that reference only and not beyond,” reported Bar and Bench.


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