Court bars promotions unless petitioners are promoted
Excelsior Correspondent
Srinagar, Mar 7: High Court has directed the Government to accord consideration to the reservation in promotions for the reserved category engineers working in various departments of Jammu and Kashmir within six weeks and restrained it from making any promotions unless reserved category candidates are promoted.
The petitioner-Engineers serving in J&K Power Transmission Corporation Limited, Jammu Power Distribution Corporation Limited and Kashmir Power Distribution Corporation Limited filed a joint plea on the basis that they belonging to various reserved categories like Scheduled Castes (SCs), Scheduled Tribes (STs), Residents of Backward Area (RBA), Actual Line of Control (ALC) and Other Social Castes (OSCs), have been denied reservation in promotions to which they are entitled to in terms of Article 16(4A) of the Constitution of India in the Union Territory of Jammu and Kashmir.
Their counsel-Areeb Javed contended before the court that the denial of promotion is due to Circular No. 10-JK (GAD) of 2021 dated 05.03.2021 issued by the Commissioner Secretary to Government General Administration Department which is under challenge in the instant petition, whereby all the Administrative Secretaries have been asked to keep the slots meant for reserved employees vacant and unfilled.
“The respondents shall collect quantifiable data having regard to the ‘cadre’ as ‘unit’ for consideration of collection of quantifiable data within a period of six weeks from the date of this judgment and then accord consideration to the reservation in promotions to the petitioners as and when promotions to the next cadres are considered”, Justice M A Chowdhary directed.
The court while further directing the authorities for next higher promotion to these engineers made in clear that in absence of collecting any quantifiable data as directed, the respondent-authorities then shall proceed to consider the petitioners for reservation in promotions against the reserved slots in view of Jammu and Kashmir Reservation Act, 2004 and rules framed till the exercise for collection of quantifiable data is made by the Administrative Departments.
Justice Chowdhary said that after the constitutional developments made in the year 2019 with regard to erstwhile State of Jammu and Kashmir whereby all the provisions of the Constitution of India lock, stock and barrel were applied to the Jammu and Kashmir including Article 16(4A) of the Constitution of India, providing for promotion in reservation.
The court said that the quashing of Section 6 of the Reservation Act by the court had been decided on the plank that the 77th Amendment of the Constitution of India made in the year 1995 had not been specifically extended to the erstwhile State of Jammu and Kashmir, therefore, in view of the changed constitutional scheme vis-à-vis applicability of the Constitution of India to the Jammu and Kashmir, the provision with regard to reservation in promotion now stands applied to the State of Jammu and Kashmir since 2019.
Justice Chowdhary said, the benefit of reservation in promotions is stated to be accorded all across India in accordance with Article 16(4A) of the Constitution of India and applying the directions issued in terms of Circular dated 05.03.2021 in denying benefits of reservation in promotion in UT of J&K amounts to denying/treating reserved category employees/candidates of the UT of J&K differently than the reserved category employees/candidates of the rest of the Country, which amounts to class legislation, which is antithetical to the concept of equality laid down in the Constitution of India.
The Court further ordered that the authorities do not make any promotions unless candidates belonging to the SC/ST reserved categories entitled for consideration for reservation in promotions are considered.
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