The 103rd amendment to the constitution of India granted reservation to economically weaker sections (EWS) of the society, but for Jammu and Kashmir the case is different. Here a vast majority of backward communities cannot apply for EWS certificate because people are getting a certificate named RBA (which is applicable only at J&K level and not at Central level). Despite their extreme backwardness in economic sphere people are left out due to wrong policies of government.
Jammu and Kashmir Reservation Act 2004 provides reservation to three type of communities viz; STs, SCs and OBCs (centrally listed OBCs+ State listed Other Backward Classes viz; ALC, RBA etc). The list of other Backward classes of J&K is for more extensive than the central list. The J&K Reservation Act 2004 declares certain areas as Socially and Educationally Backward, to which it provides Resident of Backward Area (RBA) certificate and similarly other backward categories of state are too awarded with respective category certificate for reservation in state quota. The Jammu & Kashmir Reorganisation Act 2019, brought to reorganise the state into two Union Territories, upheld the continuity of J&K Reservation Act 2004 along with several other acts which were previously in vogue in the erstwhile state.
The bone of contention is that there are several people living in Socially and Educationally Backward areas (declared by J&K Reservation Act) which were recognised at UT level only and not at central level. For example a person X satisfying all the criteria of EWS category and living in Marwah (an administrative Tehsil in District Kishtwar) will not get EWS reservation at national level because he is living in socially and educationally backward area declared under J&K Reservation Act 2004 and possessing RBA, but his RBA category is not acceptable to any central recruiting agency because the category Mr. X is not recognised at central level, and hence he is not able to claim even a single reservation at central level. In this way lakhs of people are being deprived of EWS reservation at central level despite they qualifying for the same.
An order issued by Tehsildar Marwah of District Kishtwar read:
“As per SRO 518, amendments Jammu and Kashmir Reservation Rules 2005.
Economically Weaker Sections (EWS) mean person who are not covered under the scheme of reservation for SCs, STs and Socially and Educationally Backward Classes as defined under clause(M) Clause(N) and Clause (O) of Sec 2 of Jammu and Kashmir Reservation act 2004.
As per Reservation Act 2004 whole Tehsil Marwah has been declared as Socially and Educationally Backward hence does not come under the scheme of EWS. The Certificates issued by this office under category till date are here by cancelled. No application for issuance of (EWS) will be entertained in the office.”
He said that as per SRO 518, amendment to J&K Reservation Act 2005 he cannot issue such a certificate on the basis of definition provided by said SRO. One should argue with him whether the definition of EWS provided under 103rd amendment and its extension to J&K under The Jammu and Kashmir Reservation (second amendment) Act 2019 has no meaning to him? or whether one is claiming EWS under SRO 518 or under J&K Reservation (second amendment) Act 2019?. The administrator didn`t bother to give any further explanation, except adding “there are legal hurdles to provide justice to you, You can challenge SRO 518 in court”.
On not getting any satisfactory explanation people approached District Administration where a senior official stated that, “EWS is only meant for general category and it will not be issued to any other categories”. Nobody knows what does general category mean to official. Whether it is the general category as per centre or it is the general category as per state. But in Kashmir if you further argue with a government official, you will either be harassed or you will hear an angry taunt “Talk to Modi!”. God knows whether Modi is some clerk in adjacent office or honourable prime minister of the country.
DO PEOPLE NEED RESERVATION?
Take the case of Marwah, a geographically isolated area having only one outlet, the Margan Pass, connecting main Valley with outside world. It remains closed or disrupted for almost nine months. Suppose a person X having AAY status in this area is competing with person Y having AAY status in Jammu. Despite of their same status in law, there is a huge difference between the AAY of Marwah and Jammu. A person living in Jammu has access to almost all kinds of modern facilities whereas a person living in Marwah has no access to even daily newspaper, mobile communication, internet and not even a good quality radio transmission. On top of that a Jammu poor is easily enjoying EWS reservation while same is denied to a poor of Marwah. Their backwardness shows that backward communities of J&K (covered only under J&K Reservation Act) which are not covered under any central list of reservation should be included in ambit of EWS.
On similar grounds the central reservation is denied to a vast community in Jammu & Kashmir. The people will have to suffer till some judicial intervention or if ever politicians bother to turn their attention towards this issue. Denial of reservation to a deserving community on the basis of ambiguity in law is against the spirit of constitution. It is violation of their fundamental right. Higher authorities should sincerely look into the matter. The Jammu and Kashmir Reservation Act 2004 should be amended immediately so that deserving communities get justice. Any new initiative or amendment to law should be properly communicated to lower strata of administration.
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