New Delhi: The Supreme Court on Wednesday declined to entertain a plea challenging the 100 per cent domicile reservation in public employment through the Jammu and Kashmir Reorganization Act 2019 after the revocation of Article 370 that accorded J&K the special status.
A Bench, comprising Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, after a brief hearing through video link declined to entertain the plea and asked the petitioner to move the J&K High Court.
The plea, filed by Ladakh-based lawyer Najmul Hoda, challenged Sections 3A, 5A, 6, 7 & 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act 2020. The petitioner claimed it violated Article 14, 16, 19 and 21 of the Constitution.
The Ministry of Home Affairs, under Section 96 of the J&K Reorganization Act, had amended the civil services law replacing "permanent resident of J&K" with "domiciles of UT of J&K".
The petitioner said since all laws and the Supreme Court judgments applicable to India had been extended to the UT of J&K then as per Article 16(2) of the Constitution no citizen should be discriminated on the basis of residence.
The amendment introduced in the Act the Section 3A under which children of the central government officials, who had served in J&K for 10 years, were included as domiciles of the new UT. Also, Section 5A stated that no person should be eligible for appointment to any post unless he/she was a domicile of J&K.
The plea, citing the Section 5A, argued this amendment would make guarantee of equal opportunity under Article 16(3) "meaningless" and "illusory".
The petitioner argued the amendment through Article 16(3), which allowed domicile or residence-based reservation, was not in its authority.
"Parliament has never delegated law making power of Article 16(3) of the Constitution to the central government under Section 96 of the J&K Reorganization Act 2019. Power delegated under Section 96 was only for facilitating application of prevailing law in former state of J&K or to make laws (which were applicable in rest of India) applicable to the new UTs of J&K and Ladakh. Every modification or adaption of any law shall be done in that reference only and not beyond", said the plea.