A Tale of Two Polar Legislations: New J&K Domicile Law Explained

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Abrar Reyaz 

Difference between Article 35A and 3A of J&K Reorganisation (Adaptation of State Laws) Order 2020: Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir’s state legislature to define “permanent residents” of the erstwhile state and provided employment opportunities only to those permanent residents.

On the other hand, Section 3A of the J&K Reorganisation (Adaptation of State Laws) Order 2020, under the J&K civil services (decentralisation and recruitment) Act, defines “Domicile” for the purpose of appointment to the post carrying a pay scale not more than Level-4 (25500) and provides employment opportunities in Level 4 only to domiciles of Union Territory of J&K. (S. 5A read with S. 3A)

DIFFERENCE BETWEEN DOMICILE AND RESIDENCE:

Domicile is where one lives with the intent to stay; it refers particularly to a state, county, and city.

Residence is, broadly, where one’s home is, or the building itself. One may have many residences but only one domicile.

WHAT NEW ACT DOES?

1. It provides employment on the basis of domicile and not on the basis of residence, as it used to be earlier.

2. According to the new law, jobs up to lowest level of non-gazetted rank are reserved for Jammu and Kashmir domiciles.

3. The level 4 includes posts like Junior Assistant, Constable, which is considered as the lowest category of non-gazetted posts.

4. This indicates domiciles of J&K UT would have exclusive right on class-4th and non-gazetted posts to be advertised by the Services Selection Board from now on wards. All Indian citizens, including J&K domiciles, would be eligible for remaining non-gazetted and gazetted posts, reported Outlook.

5. This further implies, the new law only protects class 4th jobs. In other words, reservation to people of J&K is only with respect to class 4th jobs.

6. The non-gazetted as well as gazetted posts are available to all Indian citizens.

7. Before August 5, all jobs in erstwhile state of J&K were exclusively reserved for permanent residents of the State.

8. It opens gateway to outsiders (non-permenant residents) to apply for jobs in J&K.

9. J&K Civil cadre already being done away with, and 50% cap for local recruits further reduced to 33%, it opens gateway to IAS officers across India to work in J&K.

10. After every 15 years, there will be new domiciles who will be able to apply for jobs in already job straining state.

11. Children of government officials who served in UT for ten years, even if their children reside outside J&K will be eligible for level 4 jobs.

12. Any person who studied in J&K for seven years and appeared in board exams while being enrolled in any of the educational institutions in J&K is also a Domicile.

8. Domicile certificate will be issued  by Tehsildar. Earlier, Permeant Resident Certificate (PRC) was issued by Deputy Commissioner.

9. Deputy Commissioner will be appellate authority for domicile certificate purposes.

10. The immediate fallout would be on the demographics of the region.

NOW WHO IS A DOMICILE FOR THE PURPOSE OF EMPLOYMENT AS PER THE ACT:

1. Any person who has resided for a period of fifteen years in the UT of J&K.

2. Any person who has studied for a period of seven years and appeared in class 10th/12th examination in an educational institution located in the UT of J&K.

3. Children of those central government officials, all India services officers, officials of PSUs and autonomous bodies of central government, public sector banks, officials of statutory bodies, officials of central universities and recognised research institutes of central government who have served in Jammu and Kashmir for a total period of ten years or children of parents who fulfil any of the conditions in sections.

The new rules have also been extended to children of those who fulfil the above mentioned criteria even if they do not live in J&K, reported The Print.

4. Children of such residents of J&K as reside outside UT of J&K in connection with their employment or business or other professional or vocational reasons but their parents fulfil any of the conditions provided earlier.

5. Persons registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) in the UT of J&K, will also be included in the definition. (Emphasis supplied)

The author is a law student at Department of Legal Studies, Central University of Kashmir and can be reached at: abrar_reyaz@live.com. He blogs at: http://AbrarReyaz.wordpress.com

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