Professional Documents
Culture Documents
AT JAMMU
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SWP no.1290/2014, MP no.1685/2014
c/w SWP no.2777/2013, MP no.4089/2013
SWP no.1694/2006, MP no.4023/2010, 2119/2006
APSWP no.131-E/2004
SWP no.1006/2005, MP no.1114/2005
SWP no.1639/2003, MP no.1746/2003
SWP no.1497/2004
SWP no.1854/2004, MP no.1942/2004
SWP no.1619/2006, MP no.2010/2006
SWP No.213/2001, MP no.254/2001
SWP no.1583/2014 MP no.2093/2014
SWP no.1271/2014, MP no.1655/2014
SWP no.1816/2000,
SWP no.2096/2014, MP no.2822/2014
Date of order: 09 .10.2015
Ashok Kumar and others
Versus
State of J&K and others
Coram:
Hon’ble Mr Justice Hasnain Massodi, Judge
Hon’ble Mr Justice Janak Raj Kotwal, Judge
Appearing Counsel:
For Appellant(s): Mr. P.N.Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate.
Mr. S.K.Shukla, Advocate
Mr. A. V. Gupta, Senior Advocate with Mr Aditya Gupta
Mr. S.S.Ahmad, Advocate
Mr. Yasser Ejaz Tak, Advocate
Mr. Sanjay Verma, Advocate
Mr. S.K.Shukla, Advocate
Mr. Rahul Pant, Advocate
For Respondent(s): Mr. Sunil Sethi, Senior Adv. with Mr Ankesh Chandel, Adv.
Ms. Seema Shekhar, Sr. AAG.
Mr. C.S.Azad, Advocate
Mrs. Sindhu Sharma, ASGI
Mr. Ravi Dogra, Advocate
Mr. F.A.Natnoo, Advocate
Mr. Sudershan Sharma, Advocate
i) Whether approved for
reporting in Press/Media? Yes/No/Optional
ii) Whether to be reported in
Digest/Journal? Yes/No
Per Massodi J.
1. Controversy raised in writ petitions on hand stands
facts.
Reservation Rules.
length.
Constitution.
of the Constitution.
time.
iii) Whether after accession of the State to Dominion of
India and after the State in terms of Article 1 of the
Constitution, became part of India and was included
in 1st Schedule to the Constitution, amendment to a
provisions of the Constitution applied to the State,
is to ipso facto apply to the State?
iv) Whether Article 370, being a temporary provision,
lost its force once Constitution of the State was
framed by its Constituent Assembly and therefore,
can no more be used by the President to modify a
provision of the Constitution in its application to
the State?
v) Whether expressions ―exceptions and modifications‖
in Sub clause (d) Clause (1) of Article 370 of the
Constitution, limit power of the President to minor
changes or alterations in the provision of
Constitution on their application to the State and
not to ―amend‖ such provision- add to, omit or
abrogate such provision?
1950.
18. Though almost all the Princely States with few exceptions
accession:-
(ii) That the Dominion of India and the State at the time
Instrument of Accession was signed by Ruler and
accepted by Dominion of India had decided to work
out a Constitutional framework, whereunder the
State was to retain sovereignty to a limited extent,
is also reinforced by the fact that while the
Constituent Assemblies/Rulers/Raj Parmukas of all
the Princely States, that acceded to Dominion of
India, in November 1949 (before November 26th
18
He further remarked:
much discussion.
reads as under:
of India and the State reflected in Article 370 has its roots
therein, to the State. The Order did not only modify text
State.
observed:
Article 253, Clause (2) Article 256, Clause (6) Article 352,
367, Proviso Clause (2) Article 368, Clause (4) Article 368
Clause (5) Article 31, Sub Clause (a) of Clause (2) Article
said so, let us now give closer look to core issue raised in
State.
read. While Clause (1) Article 16 has implicit in, scope for
State.
46
"859..............................................................................................
―860………………......................................................................
promotions. It reads:-
selection process.
Constitution.
Article 16, adding Clause (4A) has not been applied to the
therefore unconstitutional.
55
achieved.
―798.
Not only should a class be a backward class for
meriting reservations, it should also be
inadequately represented in the services under the
State. The language of Clause (4) makes it clear that
the question whether a backward class of citizens is
not adequately represented in the services under
the State is a matter within the subjective
satisfaction of the State. This is evident from the
fact that the said requirement is preceded by the
words "in the opinion of the State". This opinion can
be formed by the State on its own, i.e., on the basis
of the material it has in its possession already or it
may gather such material through a
Commission/Committee, person or authority. All
that is required is, there must be some material
upon which the opinion is formed. Indeed, in this
matter the court should show due deference to the
opinion of the State, which in the present context
means the executive. The executive is supposed to
know the existing conditions in the society, drawn
as it is from among the representatives of the
people in Parliament/Legislature. It does not,
however, mean that the opinion formed is beyond
judicial scrutiny altogether. The scope and reach of
judicial scrutiny in matters within subjective
satisfaction of the executive are well and
extensively stated in Barium Chemicals v. Company
Law Board , which need not be repeated here.
Suffice it to mention that the said principles apply
equally in the case of a constitutional provision
like Article 16(4) which expressly places the
particular fact (inadequate representation) within
57
859 ..............................................................................
(3) ................................................................................
(b) Neither the Constitution nor the law prescribe the
procedure or method of identification of backward
classes. Nor is it possible or advisable for the court to
lay down any such procedure or method. It must be
left to the authority appointed to identify. If can adopt
such method/procedure as it thinks convenient and
so long as its survey covers the entire populace, no
objection can be taken to it. Identification of the
backward classes can certainly be down with reference
to castes among, and along with, other groups, classes
and sections of people. One can start the process with
the castes, wherever they are found, apply the criteria
(evolved for determining backwardness) and find out
whether it satisfies the criteria. If it does - what
emerges is a "backward class of citizens" within the
meaning of and for the purposes of Article
16(4). Similar process can be adopted in the case of
other occupational groups, communities and classes,
so as to cover the entire populace. The central idea
and overall objective should be to consider all
available groups, sections and classes in society. Since
caste represents an existing, identifiable social
group/class encompassing an overwhelming majority
of the country's population, one can well begin with it
and then go to other groups, sections and classes.
57. It follows that while the Court may not assume role of an
Constitution.
58. For the reasons discussed, the writ petitions SWP Nos.
MP No. 2/2015
accordingly.
Sd/- Sd/-
(Janak Raj Kotwal) (Hasnain Massodi)
Judge Judge
Jammu
09.10.2015
Parshant Sharma