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Plea against 100% domicile reservation for public employment in J&K: HC issues notice

The Srinagar Bench of the Jammu and Kashmir High Court has issued notices on a petition challenging 100% domicile reservation in public employment, prevalent in the UT.

The Jammu and Kashmir High Court today issued a notice in a writ petition challenging the policy of “100% domicile reservation” in public employment in force throughout the Union Territories of Jammu and Kashmir and Ladakh.

A Single-Judge Bench of Justice Tashi Rabstan issued a notice today in the plea moved by Advocates Nishant Khatri, Najum Ul-Huda, and Sachin Miglani.

The plea was earlier not entertained by the Supreme Court, which granted the petitioners the liberty last month to move the High Court “and exhaust that option” first.

The petitioners assail Sections 3A, 5A, 6, 7, and 8 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 as being violative of the constitutional principles of equality, equality of opportunity in public employment, freedom of movement and residence, life and liberty.

The challenged provisions were inserted by the Ministry for Home Affairs (MHA) invoking the powers conferred upon it by Section 96 of the Jammu and Kashmir Reorganisation Act, 2019 (enacted after the abrogation of Article 370 of the Indian Constitution).

These provisions enforce a total reservation in public employment for “domiciles” of the Union Territories, the petition states.

Invoking Section 96, the MHA made “substantial amendments” in the Jammu and Kashmir (Decentralisation and Recruitment) Act, 2010, the petitioners aver.

“The power delegated under Section 96 was only for the purpose of facilitating the applications of the already prevailing law in the former state of Jammu and Kashmir or to make laws applicable to the new Union Territory. Every modification or adaptation of any law shall be done in that reference only and not beyond,” the petition states.

“The petitioners further contend that the power delegated under Section 96 shall not be in any manner construed as a delegation of parliamentary power of Article 16(3) of Constitution of India.”

The assailed amendments to the Act

The petitioners challenge the following changes introduced by way of two executive orders issued by the MHA in March and April this year.

The definition of “Permanent Resident of Jammu and Kashmir” being substituted with “domiciles” of the Union Territory of Jammu and Kashmir,

The insertion of Section 3A. The Section defines the term “domicile of the Union Territory of J&K” as inclusive of children of central government officials who served in the erstwhile state of Jammu and Kashmir for a decade or more.

The other conditions to be considered a domicile of the Union Territory is residence within the territory, completion of a secondary and senior secondary examination in the Territory after studying for seven years in the Territory, or registered migrants. Children of persons in these categories are also considered domiciles of the Union Territory.

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