Mohd Latif Malik
In the State of Jammu & Kashmir, the people belonging to the OBC category are still deprived of their right of 27 percent reservation and the historic judgment passed by a bench of nine Judges of the Hon’ble Apex Court in the case titled Indra Sawhney V/s UOI and others has not been implemented so far in the State of Jammu and Kashmir. It is strange that in a democratic country which is governed by rule of law, the State was failed to implement the judgment of the Hon’ble Supreme Court of the country till date passed about 27 years back.
In 1931, a Commission headed by Mr Bertrand J Galancy was constituted in our State to enquire into, among others, on the question of employment in the Public Services. The Commission found that generally Muslims and certain minority communities are not adequately represented in Public Services and the Commissions made certain recommendations. Finding the recommendations of Galancy Commission as not a final solution to the problem, later on a committee presided over by PC Mogha, the then Revenue Minister was constituted to formulate an agreeable proposal in the matter of recruitments and training for the services. The report of the Committee was published in 1939 for Gazetted Services and in 1941 for non-gazetted services.
The Govt of J&K in the year 1967 appointed the Jammu & Kashmir Commission of Enquiry under the Chairmanship of Dr P B Gajendragadkar. Its report was submitted in November 1968 and one of the recommendations of the Commission was to appoint a high powered committee to draw up a list of backward classes in the State of J&K. Accordingly, the Backward Classes committee was appointed under the Chairmanship of J N Wazir, retired Chief Justice of J&K High Court on February, 1969. The committee made its report in November 1969 recommending several classes of citizens who deserve to be described as socially and educationally backward. Acting substantially on the recommendations of the committee, the State Govt issued Jammu & Kashmir Scheduled Castes and Backward Classes (Reservation) Rules, 1970. These rules purported to make provisions for reservation of appointments and posts in favour of certain classes of permanent residents of the State who were backward and were not adequately represented in such services and posts.
Thereafter, on August 8, 1970, a further order was passed by the State Govt known as Jammu and Kashmir Scheduled Castes and Backward Classes (Reservation of Appointments by Promotion) Rules 1970. By these rules, the principles laid down for appointments under earlier rules were made applicable mutatis mutandis to promotions also. The net result of the recommendations of the committee as accepted by the State was to make reservations in appointments and promotions to the extent of 8 percent of the posts for Scheduled castes and 42 percent in favour of the Backward Classes. The Jammu and Kashmir Scheduled Castes and Backward Classes (Reservation) Rules, 1970 comprised of 5 parts. Part 1 contains 6 chapters and rule 3 says that the permanent residents of the State belonging to the categories of persons in these six chapters are declared as socially and educationally backward classes of citizens. Chapter 1 enumerates occupations, which were regarded as traditional occupations, and Rule 4 says that every person whose traditional occupation is one of the 62 mentioned therein must be regarded as a person belonging to the backward classes. Chapter 2 mentions 23 social castes and persons belonging to these social castes. These are regarded as backward. Chapter 3 and 4 describes small cultivators and low paid pensioners as backward respectively. Chapter 5 and 6 puts residents in an area adjoining the ceasefire line and persons living in “bad pockets” are to be regarded as belonging to backward classes. The Hon’ble Apex Court in the case titled Janki Prasad Parimoo and others V/s State of J&K and others, held that these rules suffer from material defects and direct that till the defects are cured, the rules are not capable of being given effect to.
In order to remove the defects in the aforesaid rules as pointed out by the Hon’ble Supreme Court in Janki Prasad Parimoo’s case, the State Govt. vide Government Order No. 540-GR of 1976 dated 24.08.1976, constituted a Committee headed by Justice Dr A S Anand as Chairman inter alia, with the following terms of reference:-
(a) To examine the criteria relating to social, educational and economic backwardness which may be adopted for determining as to which class and/or sections thereof should be treated as Backward;
(b) To identify such classes and sections thereof and prepare lists after applying the criteria as are adopted for the purpose;
(c) To categories backward classes and examine the safeguards that should be provided to ensure balanced and orderly development of all sections and classes of the State;
Justice Dr A S Adarsh Sen Anand committee submitted its report in the year 1977 to the Government and acting on the basis of the recommendations of the Justice Anand Committee, the Government issued SRO No. 272 dated 03.07.1982 providing following reservations :-
(1) Scheduled Castes – 8 percent
(2) Socially and Educationally Backward Classes.
a) Weak and Under Privileged Classes
(i) Gujjar & Bakerwals – 4 percent
(ii) Other Social Castes- 2 percent
b) Resident of Backward Areas
(i) District Leh – 2 percent
(ii) District Kargil- 2 percent
(iii) Other Backward Areas excluding Leh and Kargil district 20 percent
(iv) Areas near Actual Line of Control- 3 percent
(3) Children of Freedom Fighters- 2 percent
(4) Children of Permanent Residents Defence Personnel- 3 percent
(5) Candidates possessing outstanding proficiency in sports- 3 percent
Not only this, on the persistent demand of the socially and educationally backward classes for reservation, the Government of India appointed First Backward Classes Commission known as Kakasaheb Kalelkar Commission on 29.01.1953 and the Commission submitted its report to the Government on 30.03.1955 listing 2399 castes as Socially and Educationally Backward classes in the country. Acting on the report of this Commission, our State Govt then appointed a committee for identification of Backward Castes/Classes vide order No. 826-C of 1956.
That for the betterment and upliftment of the downtrodden and weaker sections of the society, specific provisions were incorporated in the Constitution of India and also in the Constitution of J&K, but these constitutional provisions have not been implemented so far in letter and spirit in our State which pertains for the upliftment and betterment of the Other Backward Classes. The Govt of India in the year 1979 by an order of the President of India, in exercise of its Power under Article 340 of the Constitution, a Backward Classes Commission was appointed to “investigate the conditions of socially and educationally backward classes within the territory of India, which commission is popularly known as Mandal Commission.” The Mandal Commission is the Second Commission appointed for Backward Classes. Prior to this Commission, the Govt of India on 29th of January, 1953, popularly known as Kaka Kalelkar Commission but on one account or the other, the recommendations made by the First Commission were never implemented.
The Report of the Mandal Commission was laid before each House of Parliament and discussed on two occasions-one in 1982 and again in the year 1983. During the discussion on both the occasions, almost each House of Parliament supported the recommendations of the Mandal Commission. Again on third occasion, the report made by the Mandal Commission was also discussed in the year 1983 and the Govt decided that although this Commission had been appointed by our predecessor Government, we now desire to continue with this Commission and implement its recommendations. Finally, vide Office Memorandum Dated 13th of August, 1990, the recommendations were ordered to be implemented but subsequently, the Memorandum was stayed by the Hon’ble Supreme Court.
Thereafter, General Elections were held and the Govt at the Centre changed and another Office Memorandum was issued by the Union Govt vide dated 25th of September, 1991. Some peoples, who have filed writ petitions challenging the Office Memorandum Dated 13th of August, 1990 amended their writ petitions and also gave a challenge to the 2nd Office Memorandum dated 25th of September, 1991.
Finally, the Hon’ble Supreme Court of India delivered historic judgment in the case titled Indra Sawhney and Ors V/s UOI and others decided on 16.11.1992 and thus 27 percent reservation to the persons belonging from other Backward Classes granted by the VP Singh led Janta Dal Government on the basis of the recommendations of the Mandal Commission report became legal and constitutionally valid. Since 1992 till date, the Government of J&K has not granted 27 percent reservation to the OBC’s of the State and thus the persons belonging from the OBC’s are the victim of the discriminatory treatment given by the successive Government who ruled the State since 1992. Pertinent to mention here that the BP Mandal Commission had not recommended any reservation for “Residents of Backwad Area or Area adjoining the Actual Line of Control” in J&K State or in any other part of India.
Once the Government of India accepted the recommendation of a National Commission appointed by the Government of India and the recommendation implemented in letter and spirit and the recommendations and implementation orders (office memorandums) came to be challenged before the Constitutional Bench of the Hon’ble Supreme Court and the Supreme Court upheld the recommendations of the Commission and implementations orders of the Government thereby providing 27 percent reservation to the persons belonging from Other Backward Classes and the Commission itself identified the Castes/communities which constitutes other backward classes, then it is obligatory on part of the Government of the Jammu and Kashmir to grant reservation to the OBC’s strictly in the State at par with Government of India and derogation from the same amounts to arbitrary exercise of power, unreasonableness as well as against public policy.
It is great injustice with the OBC’s of the State of Jammu and Kashmir as even after lapse of 68 year of Independence, they are still deprived of their Fundamental Rights of 27 percent reservation inspite of the fact that our counterparts are getting the same in all other States in view of the recommendations of BP Mandal Commission and in compliance to the historical judgment passed by the Constitutional Bench of the highest Court of the Country i.e Supreme Court in Indira Sawhney’s case delivered on 16.11.1992.
After acceptance of the recommendations of the Mandal Commission by the Government of India and after Indira Sawhney’s case judgment by the Apex Court, the Act of the State Government issuing SRO-126 of 1994 dated 28.06.1994 in the light of the Anand Committee’s Report and Gupta Commission Report is highly deplorable. Again in the year 2005, the Ghulam Nabi led Government from whom the OBC’s had great expectations in view of the commitments made by him and his party colleague Prof. Saif-ud-Din Soz with the OBC’s, enacted the J&K Reservation Act and Rules repealing SRO-126 of 1994, but at that time also, the then Government also again deprived the OBC’s of their due share of reservation and similar provisions have been made in respect of reservation for OBC’s as were contained in SRO 126. This all shows that the OBC’s of the State of J&K are the victims of such acts and policies of the State Government and are till date deprived of their Fundamental Rights.
(The author is an Advocate, J&K High Court at Jammu)
feedbackexcelsior@gmail.com
Trending Now
E-Paper
Follow our WhatsApp channel