On 4th August 2020, Justice Tashi Rabstan heard the case of Nishant Khatri and others v. Union of India and another. The Court issued a notice to the Centre after the hearing.
Facts of the Case
Petitioner Nos. 1 and 3 are domiciles of the State of Haryana. Petitioner No. 2 is a permanent resident of the erstwhile State of Jammu and Kashmir. He is now a resident of the Union Territory of Ladakh.
The petitioners are advocates by profession. One of the petitioners’ father was a State Government employee at Kargil for more than ten years. The domicile rule has precluded the petitioner from public employment in the Union Territory. In contradiction, a Central Government employee’s child can benefit from the same rule even if he/she now lives ‘anywhere in the world’.
Aggrieved by this unfair treatment, the petitioners approached the Supreme Court. The Supreme Court did not entertain their plea. Instead, asked them to move the plea in the High Court first. Thus, they filed a Writ Petition challenging 100% domicile reservation in public employment.
Contentions of the Petitioners
The petitioners challenged Sections 3A, 5A, 6, 7, and 8 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010. This challenge is on the ground that the same is violative of Article 14, 16, 19, and 21 of the Constitution of India.
The Ministry of Home Affairs (MHA) inserted certain provisions by drawing power under Section 96 of the Jammu and Kashmir Reorganisation Act, 2019. The petitioners challenge these provisions. The petitioners challenge the following amendments made by the MHA:
1. ‘Domiciles’ of the Union Territory of Jammu and Kashmir substituted the definition of ‘Permanent Resident of Jammu and Kashmir’.
2. The MHA inserted Section 3A. This Section defined the term ‘Domiciles of Union Territory of J&K’. It included the children of Central Government officials who served in the former state of Jammu and Kashmir for 10 years or more.
The other conditions for consideration as a domicile of the Union Territory are as follows:
- Residence within the territory or,
- Completion of secondary and senior secondary examination in the Territory after studying for seven years in the Territory or
- Registered migrants.
- Children of people under these categories are domiciles of the Union Territory.
3. That the people who are not domiciles are barred from public employment.
Further, they contended that the Parliament did not delegate the law-making power of Article 16(3) of Constitution to the Central Government under Section 96 of Jammu and Kashmir Reorganization Act, 2019.
Delegation of power under Section 96 was only for the facilitation of applications of already prevailing law in the former State of J&K. Otherwise, to make laws applicable to new Union Territories of Jammu and Kashmir and Ladakh. Furthermore, any modification of any law will be done in that reference alone. It will not be done beyond that. Therefore, the power delegated under Section 96 should not be considered as a delegation of Parliamentary power.
The Court issued a notice to the Respondents i.e. the Centre. The Court listed the hearing to be taken up on 3rd September 2020.
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