After revoking the special status of Jammu and Kashmir under Article 370 on 5th August last year, Ministry of Home Affairs (MHA) amended 2010 legislation- The Jammu and Kashmir Civil Services (Decentralisation and Recruitment) Act on March 31 by substituting the term domiciles of J&K for permanent residents.

Also, it was notified that reservation in employment is only limited to the posts carrying a pay scale of not more than Level-4 (25500). In other words, Group A, Group B & Group C jobs of Union Territory of J&K were made available to all citizens of India but Ministry of Home Affairs (MHA), in a bizarre move on 04/04/2020, also amended this notification and reserved all jobs irrespective of the pay scale or level only for the domicile of J&K Union Territory.

This notification defines the domicile of Union Territory of J&K as:

1. Who has resided for a period of 15 years in the UT of Jammu and Kashmir or has studied for a period of 7 years and appeared in Class 10th /12th examination in an educational institution located in the UT of Jammu and Kashmir; or their children.
    
2. Who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) in the UT of Jammu and Kashmir or their children.
    
3. Children of those Central Government officials who have served in Jammu and Kashmir for a total period of 10 years; or
    
4. Children of such residents of UT of Jammu and Kashmir as reside outside UT of Jammu and Kashmir in connection with their employment or business or other professional or vocational reasons but their parents fulfil any of the conditions provided in condition 1 or 2.

After collecting the gist, it is now time to analyze the constitutional permissibility of these amendments in the J & K Civil Services (Decentralisation and Recruitment) Act:

Constitutional Impropriety

As per article 16(3) of the Constitution of India, only Parliament is competent to enact any law which gives domicile or residence-based reservation. This power has not been given to even the State Assemblies. However, Parliament has previously delegated this power to states or UT by enacting a law €œThe Pubic Employment (Requirement as to Residence) Act, 1957 € but this power under 16(3) was never delegated to state of J&K.

Also, it is evident that UT of J&K is not governed by a state assembly at present so only Parliament is competent to make any law related to domicile-based reservation in UT of J&K. In addition to this, the amendment in discussion was carried out by an executive notification by MHA which is also not permissible under constitutional scheme as article 16(3) makes it quite clear that any domicile or residence-based reservation is only permissible by way of a law made by the Parliament. This leads to the conclusion that the executive notification by MHA is blatant violation of constitutional provisions and the notification cannot be, in any manner, considered a law for the purpose of article 16(3) of the Constitution.

Biased Classification

Children of the central government officials who have served in state of J&K for 10 years are also considered as domicile of Union Territory of J&K. The extant classification has left a part of the local demographic population unattended. This unprivileged subset includes the children of residents of current UT of Ladakh who have served the former state government of J & K for a period of 10 years.

In other words, the children of any central government official who have served in the former state of J & K for a period of 10 years will be considered domicile of the UT of J & K but the children of any state government official who have served in the former state of J & K for a period of 10 years will not be considered domicile of the UT of J & K. Now, it may be argued that this classification is based on the reasoning that all state government officials of the former state of J & K are already covered in other domicile related conditions of notification dated 31st March, 2020 but MHA did not take note of the fact that officials of state government who were resident of Ladakh region were also permanent resident of former state of J&K and now they are part of UT of Ladakh they will not be part of any of the other domicile related conditions.

Hence, Ladakhi €™s who were part of former state of J & K and served state government for 10 years, their children will not get the benefit of employment in UT of J & K as they will not be considered as domicile of UT of J & K. For instance ,an MLA from Ladakh region being part of state assembly for 10-15 years or school teacher or College lecturer or a Doctor from Ladakh region they may have served the former state of J&K for 10 years but now they won't be treated as domicile of Union Territory of J&K because they served for state government not for central government.

This is quite bizarre that children of a IAS/IPS officer who have served in Ladakh region will be treated as domicile of Union Territory of J&K and will be benefitted by provisions of this amendment but children of a Ladakhi who have served 10-15 year in a hospital, school or college which was located in Ladakh region will be not be treated as domicile of Union Territory of J&K mere on the basis of the fact that they had served for state government not for central government. This unfair and biased classification lacks intelligible differentia and is totally devoid of reasonability which is the mandate of article 14 of the constitution of the India.

Blanket Ban For Outsiders

Even if the constitutional propriety of the notification and flaws in classification to determine the domicile of UT of J&K be neglected for a moment, then also, 100% reservation on the basis of domicile or residence is unambiguous violation of the law as it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. Supreme Court has times and again made it clear that the reservations contemplated in Article 16 should not exceed 50%.

While 50% shall be the rule, the court also made it clear that it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to end characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative.

In doing so, extreme caution is to be exercised and a special case has to be made out. But this is not the case with the Union Territory of J&K because it not far-flung and remote like Arunachal Pradesh or Nagaland ,it is well connected by train, bus or Air and even if we give this benefit to the Union Territory of the J&K then also this reservation cannot be in any case put blanket ban for the outsiders.

Conclusion:
the central government should have resorted to a law under article 16(3) of the constitution while amending such provisions and should have also considered that 100% residence-based reservation is always against the welfare of state or UT along with the constitutional mandate. It is implied by the notification that MHA & hence Centre Government has amended these provisions in a very casual manner without paying much heed to the constitutional provisions and the legal route which may result in more burden on the already overburdened constitutional courts.