Jammu & Kashmir High Court: ‘Reservation in Promotions Must Be Implemented Across J&K; Citizens Cannot Be Treated Differently Under Article 16(4A)
Kiran Raj
The Jammu & Kashmir High Court, Single Bench of Justice Mohammed Akram Chowdhary, has directed the Union Territory administration to take immediate steps to implement reservation in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs) in government services. The court mandated the collection of quantifiable data within six weeks and restrained authorities from proceeding with any promotions unless reserved category candidates are considered. The decision came in response to a petition challenging the 2021 circular that instructed administrative secretaries to keep reserved category promotion slots vacant.
The petition was filed under Article 226 of the Constitution of India by two individuals representing engineers working in various power corporations in Jammu and Kashmir. The petitioners, belonging to reserved categories such as Scheduled Castes, Scheduled Tribes, Residents of Backward Area (RBA), Actual Line of Control (ALC), and Other Social Castes (OSCs), contended that the administration had denied them reservation in promotions in violation of Article 16(4A) of the Constitution.
The dispute stemmed from Circular No. 10-JK(GAD) of 2021, issued on March 5, 2021, by the General Administration Department (GAD), which directed that all slots meant for reserved category employees in promotions be kept vacant and unfilled. The petitioners argued that this action was ultra vires to Articles 14 and 16(4A) of the Constitution, as well as the Jammu and Kashmir Reservation Act, 2004, and the Jammu and Kashmir Reservation Rules, 2005.
The petitioners further alleged that despite statutory provisions ensuring reservation in promotions, they had been denied such benefits for over a decade. They referenced the judgment in Ashok Kumar & Ors. v. State of J&K & Ors., where the Jammu & Kashmir High Court had quashed Section 6 of the Jammu and Kashmir Reservation Act, 2004, and certain provisions of the 2005 Rules, citing the non-applicability of Article 16(4A) to the erstwhile state of Jammu & Kashmir.
The petitioners argued that this judgment had been challenged before the Supreme Court, which granted interim relief and stayed its operation. Despite this, the administration issued the impugned circular, thereby continuing to deny promotions to reserved category candidates.
The respondents, representing the Jammu and Kashmir Power Transmission Corporation Limited, Jammu Power Distribution Corporation Limited, and Kashmir Power Distribution Corporation Limited, contended that they could not grant reservation in promotions until the Supreme Court delivered its final decision on the pending appeals in Ashok Kumar and related cases.
The High Court examined the legislative history and judicial precedents concerning reservation in promotions. It noted that the Supreme Court in Indra Sawhney v. Union of India (1993) had originally held that reservations could not be granted in promotions. However, through the 77th Amendment to the Constitution in 1995, Article 16(4A) was introduced, enabling states to provide reservation in promotions for SCs and STs if they were inadequately represented in public employment. The constitutional validity of this provision was upheld by the Supreme Court in M. Nagaraj & Ors. v. Union of India & Ors. (2007).
The court observed:
"With the application of the whole of the Constitution of India including the relevant provision of Clause (4A) of Article 16 in the year 2019, the Government of Jammu and Kashmir is under a legal obligation to provide reservation in promotions in accordance with the provisions made in the Jammu and Kashmir Reservation Act, 2004 and Jammu and Kashmir Reservation Rules, 2005."
It recorded that while other states across India had implemented reservation in promotions, the Union Territory of Jammu & Kashmir continued to deny the same. The court stated:
"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."
Addressing the argument that the pending Supreme Court appeal prevented the implementation of reservation, the court referred to the government’s own affidavit in SLP(C) No. 3786/2016, wherein it had accepted that constitutional amendments now enabled reservation in promotions. The court noted:
"It is strange that on the one hand, the Union Territory of J&K has prayed before the Apex Court for quashment of the judgment of this Court quashing provisions relating to reservation in promotion, whereas on the other hand the Respondent No. 3-General Administration Department has come up with the impugned Circular No. 10-JK(GAD) of 2021 dated 05.03.2021 directing all the Administrative Secretaries to keep the slots meant for reserved category employees vacant/unfilled."
The High Court issued the following directives to the respondents:
"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."
"In absence of collecting any quantifiable data as directed vide direction No. (i), the respondents 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 thereunder till the exercise for collection of quantifiable data is made by the Administrative Departments."
"The respondents are restrained from making any promotions unless candidates belonging to the SC/ST reserved categories entitled for consideration for reservation in promotions are considered."
This petition, along with any connected applications, was accordingly disposed of.
Advocates Representing the Parties
- For the Petitioners: Mr. Areeb Javed Kawoosa
- For the Respondents: Mr. Furkan Yaqub, Government Advocate
Case Title: Mohammad Jamal Sheikh & Anr. v. Union Territory of Jammu & Kashmir & Ors.
Neutral Citation: 2025:JKLHC-SGR:38
Case Number: WP(C) No. 336/2023
Bench: Justice Mohammed Akram Chowdhary
[Read/Download order]
