Court rules against discriminatory employment clause, allowing petitioner Balwinder Kumar to proceed in selection process.
In a landmark decision, the Jammu and Kashmir High Court has struck down a clause in an advertisement notification that restricted participation in a district-level selection process based on residence. The case, Balwinder Kumar v. State of J&K, highlighted the conflict between the advertisement's residence requirement and the constitutional guarantee of non-discrimination in employment.
The petitioner, Balwinder Kumar, a resident of District Samba and belonging to the Scheduled Caste category, applied for the position of Orderly in District Baramulla. Despite being shortlisted for the interview, he was denied participation because he did not reside in the district where the post was advertised. This prompted Kumar to challenge the clause in the advertisement notification that barred non-residents from applying for district cadre posts.
Arguing the case, Kumar's counsel cited a prior judgment that emphasized the unconstitutional nature of discrimination based on residence, referencing Article 16 of the Indian Constitution which prohibits such discrimination unless prescribed by a law made by Parliament. In the absence of any such law applicable to Jammu and Kashmir, the court found the restriction to be unconstitutional.
The court, comprising Justices Sanjeev Kumar and Sanjay Parihar, ruled that the contested clause violated Articles 16(1) and 16(2) of the Constitution, which ensure equal opportunity in matters of public employment. The court further noted that the petitioner’s participation in the selection process did not bar him from challenging the clause, as estoppel does not apply when gross illegality or constitutional violations are at stake.
The judgment mandates that Kumar be interviewed and considered for the position without the residence-based restriction. The court has directed the authorities to complete the selection process within two months, clarifying that any appointment made will be prospective from the date of the order.
This decision reinforces the constitutional protection against employment discrimination and sets a significant precedent for similar cases, ensuring that employment opportunities are accessible to all citizens, irrespective of their district of residence.
Bottom Line:
Clause in advertisement notification restricting participation in selection process based on residence declared ultra vires Article 16 of the Constitution of India.
Statutory provision(s): Article 16 of the Constitution of India, J&K Ministerial Staff of Subordinate Courts (Recruitment and Conditions of Service) Rules, 2016, Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010.
Balwinder Kumar v. State of J&K, (Jammu And Kashmir)(Srinagar)(DB) : Law Finder Doc Id # 2830360
