Article 370 of the Constitution cannot be abrogated, repealed or even amended

Jammu and Kashmir High Court: Deciding on an interesting issue as to whether Section 6 of J&K Reservation Act, 2004 (Act) and Rules 9 and 34 of J&K Reservation Rules, 2005 (Rules) are ultra vires Article 16 of the Constitution of India and in conflict with law laid down by Supreme Court in Indra Sawhney’s case, the division bench of J.R. Kotwal and Hasnain Masoodi held that protective umbrella under Article 16 (4A) providing for reservation in promotion is not available to Section 6 of the Act and Rules 9, 10 and 34 of the Rules as the amendment to Article 16, adding Clause (4A) has not been applied to the State and are therefore, liable to be quashed.

The instant case relates to right of Reserved Category Government servants, to accelerated promotion provided under Section 6 of the Act read with Rule 9 and 34 of the Rules. The petitioners contended that private respondents have been promoted and their seniority fixed ahead of them on the ground that they belong to reserve category within meaning of the Act and as 77th Constitutional Amendment Act, 1995, adding Clause (4A) to Article 16, has not been extended to State of J&K by Presidential order under Clause (1) of Article 370, Article 16 (4A) would not be applicable to State. Petitioners further pleaded that provision for reservation herein does not satisfy requirement of Article 16 (4A), as no background study has been made regarding inadequate representation of reserved category in service under the State. On the Other hand the respondents pleaded that law laid down in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 stands neutralised by 77th Constitutional Amendment Act, 1995 and denied that reservation in the matters of promotions contemplated under the aforesaid provisions is excessive.

The Court also observed that Article 370 of the Constitution, notwithstanding its title, a “temporary provision” is a permanent provision of the Constitution which cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available. Section 6 Act and Rules 9, 10 and 34 Rules are held to be ultra-vires Article 16 Constitution of India and accordingly struck down. The Court further held that the respondents have not produced any material to indicate that any exercise was ever undertaken by them to identify the classes inadequately represented in the services of Government employment or to identify section of the society as a backward class, so as to warrant reservation in promotions. [Ashok Kumar v. State of J&K, 2015 SCC OnLine J&K 210, decided on 9.10.2015]

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