Legal and Policy Impasse on Reservation in Promotions in J&K: A Detailed Analysis
||Black and White Digital News ||
||Parvinder Singh January 12,2025 ||
JAMMU/ KASHMIR: The issue of reservation in promotions in Jammu and Kashmir (J&K) has become a contentious subject following judicial interventions, legislative changes, and administrative decisions. The debate intensified after the Hon’ble High Court of J&K and Ladakh quashed key provisions of the J&K Reservation Act, 2004, and the J&K Reservation Rules, 2005, in Ashok Kumar and others vs. State of J&K and others (2015). Despite a stay on the High Court’s judgment by the Hon’ble Supreme Court in Nasib Singh and Ors. vs. State of J&K and Ors. (2016), the Government of J&K issued a controversial circular in 2021 barring the application of reservation in promotions, further complicating the situation.
Judicial Context and Developments:
High Court Judgment (2015)
The Hon’ble High Court of J&K and Ladakh struck down:
1. Section 6 of the J&K Reservation Act, 2004: Enabled provisions for reservation in promotions.
2. Rules 9, 10, and 34 of the J&K Reservation Rules, 2005: Governed the implementation of reservation in promotions.
The Court deemed these provisions ultra vires of Article 16 of the Constitution of India, which mandates equality of opportunity in public employment.
Supreme Court Stay (2016):
The judgment was challenged through multiple Special Leave Petitions (SLPs), including Nasib Singh and Ors. vs. State of J&K and Ors. The Hon’ble Supreme Court stayed the operation of the High Court’s order on 18.03.2016, allowing the High Court to consider eligible candidates for promotion where vacancies existed.
Administrative Actions and Controversy:
Circular No. 10-JK(GAD) of 2021
Despite the Supreme Court’s stay, the J&K General Administration Department (GAD) issued a circular on 05.03.2021 directing all administrative secretaries to:
1. Keep slots for reserved category employees vacant/unfilled.
2. Bar reservation in promotions.
This action contradicted the Apex Court’s directives and further marginalized reserved category employees by denying them promotions in adherence to the quashed provisions.
Impact on Reserved Category Employees:
1. Career Stagnation: Reserved category employees have been stuck in the same posts for over 10-15 years due to the non-implementation of reservation in promotions.
2. Disparate Treatment: While the rest of India benefits from reservation in promotions under Article 16(4A), employees in J&K are being denied similar rights, leading to claims of class legislation and constitutional violations.
Constitutional and Legislative Dynamics:
Post-2019 Developments
After the abrogation of Article 370 in 2019, the 77th Constitutional Amendment—which allows reservation in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs)—was extended to J&K. Despite this, the benefits have not been uniformly implemented in the Union Territory due to the pending litigation and administrative hurdles.
Key Considerations:
1. Quantifiable Data Requirement: As per Supreme Court jurisprudence, reservations in promotions require demonstrable data on backwardness and inadequate representation.
2. Administrative Efficiency: Policies must ensure no compromise on public administration’s efficiency.
3. Judicial Scrutiny: Any policy must align with constitutional provisions and judicial precedents.
Criticism of the Government’s Approach:
1. Violation of Supreme Court Orders: The 2021 circular disregards the Apex Court’s stay on the High Court judgment.
2. Inconsistent Policy: While challenging the High Court judgment in the Supreme Court, the Government simultaneously enforces its directives, creating legal and administrative ambiguities.
3. Erosion of Equality: The denial of reservation in promotions undermines the principles of social justice and equality enshrined in the Constitution.
Way Forward:
1. Compliance with Supreme Court Directives: The J&K administration must align its actions with the Apex Court’s orders to avoid contempt and ensure fair treatment of reserved category employees.
2. Data Collection: The Government should gather quantifiable data to justify reservation in promotions and address judicial concerns.
3. Stakeholder Engagement: Involving employee associations and legal experts can help craft a balanced policy ensuring social justice without compromising administrative efficiency.
4. Expedited Resolution: The Supreme Court should prioritize resolving the pending SLPs to provide clarity and justice to affected employees.
The issue of reservation in promotions in J&K is a microcosm of the broader debate on balancing social justice and constitutional equality. The Government’s contradictory stance, coupled with prolonged judicial delays, has left reserved category employees in limbo. Resolving this impasse requires adherence to constitutional principles, compliance with judicial orders, and proactive governance.
