Srinagar- The government has defended Reservation Policy in the High Court of J&K and Ladakh, emphasizing that it was the duty of the ‘State’ to give equal opportunities to all the sections of the “social order” and to take the “downtrodden out of their disadvantageous and unfavorable position.”
While calling the pleas filed in the Court as an attempt to “abuse the judicial process motivated by ill will, ulterior and oblique motives”, the Social Welfare Department in the affidavit filed on April 4 this year stressed on “equitable distribution of the resources so as to ensure prevailing of Justice in its true sense, as destined upon, in the Constitution.”
Last years, petitions were filed in High Court wherein petitioners contend that due to the amendments in the Reservation Rules of 2005 by authorities, there is a decrease in the percentage in Jammu and Kashmir Government Recruitment posts and seats in educational institutions for open merit from 57 percent to 33 percent, Residents of Backward Area (RBA) from 20 percent to 10 percent while there is an increase in reservation in the Scheduled Tribe (ST) from 10 percent to 20 percent, Social Caste from 2 percent to 8 percent, and ALC from 3 percent to 4 percent, PHC from 3 percent to 4 percent.
“It is important to note that no particular section of the society has indefeasible, inalienable and absolute right to reservation in perpetuity,” the affidavit says, adding, “It is the Government which has to maintain equilibrium in the society and has to see that all such section of the society that needs special measures for their advancement and progress are provided so and also the duration to continue the same, thus empowering and enabling them to contribute in Nation building.” Accordingly, as per the constitutional mandate, the affidavit said, underlining that the “appropriate Government is entitled to include or exclude any particular section to be dealt with under the provision of the reservation and to make the country a ‘Socialist’ one in its true spirit.”
The government said that the plea challenging the reservation policy was “enthused” with an ambition of intervention in the “separation of powers” so much so that the petitioners want to control the legislative powers of the Government by misusing the power of “judicial review.”
Referring to judgment by the Supreme Court on the subject—Indra Sawhney— the government said that it has been held that whether a backward class is inadequately represented or not is purely a matter of subjective satisfaction of the State.
“It has been held that not only should a class be a backward class for meriting reservations, should also be inadequately represented in the services under the State,” the government said, adding, “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, it said. “All that is required is, there must be some material upon which the opinion is formed.”
The government also underscored that the writ petitioners before the Court have not challenged the reservations up to 50% and have only challenged the enhancement of reservation.
“As per Article 16(4), the State may make reservations for backward classes only if they are inadequately represented,” it said, adding, “By not challenging the reservation granted to these communities within the upper limit of 50%, the Petitioner affirmed that these classes are inadequately represented.” Hence, the government said, subject to the fulfillment of the social test for the breach of the 50% ceiling, it is for the State to decide the requisite reservation to cure the inadequate representation of these classes. “Test for Breaching the 50% Ceiling is Not a ‘Geographical Test’ but a ‘Social Test’,” it said, adding, “That the petitioners have failed to appreciate that the 50% ceiling is not an inviolable rule and may be breached in exceptional circumstances as held in …Indra Sawhney (judgment).”
The petitioners, the government said, have failed to appreciate that the impugned rules envisage ‘adequate representation’ and not ‘proportionate representation.’
“That adequate representation cannot be read as Proportionate Representation but can be applied as such the petitioners have further failed to appreciate that the norm under Article 16(4) is of adequate representation and not proportional representation.”
Ultimately, the government said, the Constitution of India is the ultimate authority for it to take such initiative to achieve the objective and ideology of the ‘Republic’ in making it a “Welfare State and distributing the resources of the Country so as to sub serve the common good.”
“In doing so, if the scope of the reservation is widened, there is no reason for the individuals having enjoyed the benefits of reservations for decades, to challenge the decision of the Government, especially when none of the rights have been taken away or curtailed,” it underlined, adding, “As such, the writ petition failed the test of having any legality, entailing the same to be dismissed with cost.”
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