Of J&K – Fighting
For Their Fundamental Rights
By Ashok Kumar Basotra
Perhaps India is the only democratic country in the World where one has to fight for his/her Fundamental Rights enshrined under the Constitution. And the mockery is that one has to wait for ages even if the Apex Court directs for providing said Fundamental Rights within stipulated period of time. Same is the plight of O.B.Cs in J&K State.
On persistent and strindent demand of neglected Socially and Educationally Backward Classes of providing reservation to them, who had no or inadequate representation in the employment in the Government jobs in the Central and State Governments, the Government of India appointed Ist Backward Classes Commission popularly known as “KAKASAHEB KALELKAR COMMISSION” on 29th Jan., 1953 which submitted its report on 30th march, 1955 listing 2399 castes as Socially and Educationally Backward Classes in the country on the basis of criteria evolved by it. In pursuance to the report of aforesaid commission, the J&K State Government appointed a committee for identification of Backward Castes / Classes vide Order No: 826-C of 1956. But the people of Backward Castes / Classes of J&K State were constantly ignored and discriminated against in the matter of recruitment in Government Services, Public Sector Establishments, Educational Institutions and allied fields in the State.
Again the J&K Government ultimately succumbed to genuine and reasonable demand of the Backward Classes and, in consultation with Union Government, appointed Shri P.B. Gajendra Gadkar Commission vide Government Order No: 876-D of 1967 dated 06-11-1967 and the said Commission made 42 recommendations out of which recommendation Nos: 7 and 8 pertain to Backward Classes which are reproduced herein below:-
“(7) The following multiple criteria be adopted for determining which classes should be treated as Backward:-
economic backwardness of the Class.
(2) The occupation or occupation pursued by that Class of Citizens.
(3) Their places of habitation.
(4) The average of student population per thousand in that Class.
(5) Castes, in relation to Hindus.
(8) The existing list of Backward Classes should be revised and a fresh list shown up by a high powered Committee after applying the multiple criteria, mentioned above, relating to Social, Educational and Economic Backwardness.”
Pursuant to the aforesaid recommendations made in the report of the Commission of Inquiry (Chairman Dr. P.B. Gajendra Gadkar) the State Government vide Government Order No: 2520-GAD of 1969 dated 03-02-1969 appointed a Committee (Chairman Justice J.N.Wazir) to draw list of Backward Classes of J&K State on the basis of criteria relating to social, educational and economical backwardness.
Having regards to the report made by the Backward Classes Committee (Chairman Justice J.N.Wazir), the Government of Jammu and Kashmir vide Notification No: 37-GD of 1970 dated 29th April, 1970 framed “The J&K Scheduled Castes and Backward Classes (Reservation Rules) 1970” and the Government also sanctioned rules dealing with reservation of posts to be filled up by the Promotion vide Notification No: 60-GD of 1970 and framed “The J&K Scheduled Castes Backward Classes (Reservation of appointment by promotion) Rules 1970” with following reservations:
Castes - 8%
(b) Backward Classes - 42% inclusive of 2% Reserved for
Whereas the aforesaid Rules came up to the scrutiny of the Hon’ble Supreme Court of India and the Hon’ble Supreme Court while pointing out certain defects therein directed the State Government that till defects were cured, the Rules were not capable of being given effect to, so far as these pertain to reservation for Backward Classes.
The Government of Jammu & Kashmir with a view to remove the defects in the rules as per verdict of Supreme Court of India, constituted a Committee appointing Justice Dr. A.S.Anand (now retired Chief Justice of India) as Chairman vide Government Order No: 540 of 1976 dated 22.09.1976.
Justice Dr. Adarsh Sen Anand Committee submitted its report to the Government in September 1977 and on the recommendations of the Justice A.S.Anand Committee, Notification vide S.R.O. No: 272 dated 03.07.1982 was issued by the Government to provide following reservations:
Castes - 8%
(2) Socially and Educationally Backward Classes:
a) Weak and under privileged Classes
(i) Gujjar and Backerwal - 4%
(ii) Other Social Castes - 2%
b) Residents of Backward Areas:
Leh - 2%
(ii) District Kargil - 2%
(iii) Other Backward Areas
excluding Leh and
Kargil District - 20%
(iv) Areas near the Actual
Line of Control - 3%
of Freedom Fighters - 2%
(4) Children of Permanent Residents
Defence Personnel - 3%
(5) Candidates possessing outstanding
Proficiency in Sports - 3%
Mandal Commission Report
In the meanwhile, with a view to determining and investigating the conditions of Socially and Educationally Backward Classes in India as per Article 340 of the Constitution, on Ist January 1979, under a Presidential Order, Second Backward Classes Commission known as MANDAL COMMISSION was appointed under the Chairmanship of Shri B.P.Mandal to verify the conditions of Socially and Educationally Backward Classes. The aforesaid Commission commenced its functioning on 21.3.1979 and completed its works on 12th December, 1980 and identified 63 Castes / Communities as Socially and Educationally Backward Classes in J&K State and recommended 27% Reservation for these Castes in J&K State on the basis of Social and Educational Backwardness. The Mandal Commission had not recommended any reservation for “Residents of Backward Area or Area adjoining the Actual Line of Control” in J&K State or in any other part of India.
That the recommendations of Shri B. P. Mandal Commission were challenged before the Hon’ble Supreme Court of India in a case titled “Indira Sawhney etc. vs. Union of India and others” AIR 1993 SC 477 in which Hon’ble Supreme Court of India vide its Judgment dated 16.11.1992 issued following directions of the Government of India, to the State Governments and the Administrations of the Union Territories:-
“123 (A) The Government of India, each of the State Governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over inclusion and under inclusion in the lists of other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the Government.
(B) Within four months from today the Government of India shall specify the basis applying the relevant and requisite socio-economic criteria to exclude socially advanced persons / sections (creamy layer) from “Other Backward Classes”. The implementation of the impugned O.M. dated 13th September 1990 shall be subject to exclusion of such socially advance persons (Creamy layer).”
that, no reservation till date has been provided to the socially and
Educationally Backward Castes / Classes as per recommendations of
the Mandal Commission Report upheld by the Supreme Court of India.
The State Government had to implement the judgment within four months
but the State Government, which was under Governor Rule at that time,
in order to play fraud with the Backward Classes appointed retired
Justice K. K. Gupta Commission (Creamy Layer Commission) working of
which was totally an eye wash as the said Commission worked only on
the report of over ruled Anand Committee – 1977 whereas the
Hon’ble Supreme Court in its Judgment in Mandal Commission case
has provided 27% Reservation to the Socially and Educationally Backward
Classes / Castes identified by the B.P.Mandal Commission in the J&K
State. This fraud can very well be judged from Notification vide S.R.O.
126 of 1994 dated 28-06-1994 forming new categories for reservation
a) Scheduled Castes - 8%
b) Scheduled Tribes - 10%
and Educationally Backward Classes:-
i) Residents of Backward Area - 20%
ii) Residents of Area Adjoining
Line of Actual Control - 3%
iii) Weak and Under Privilege
Classes (Social Castes) - 2%
d) Handicapped Persons - 2%
e) Ex. Servicemen and Children of
Defence Personnel - 5%
2. The State Government had also appointed Retired Justice Malik Sharief-ud-Din, Retired Justice I.K.Kotwal, Retired Justice G.L.Raina, Retired Justice Muzaffar Jan, as Chairman of Permanent Commission for Backward Classes on different occasions, but same was an eye wash as the Ist Commission was disbanded after about three years without any working and the second Commission had not yielded any fruitful results and the third Retd. Justice G.L.Raina Commission had also worked against the Mandal Commission Identified Castes and Communities and made attempts to include the Backward Area in the List of Socially and Educationally Backward Classes which is totally against the recommendations of the B.P.Mandal Commission Report – 1980 and the verdict of the Hon’ble Supreme Court of India. The Castes / Classes can be Socially and Educationally Backward due to their Stigma of Social Backwardness because its membership is hereditary in nature. Once one is born into these Social Castes, its membership is involuntary, even if one ceases to follow that occupation, still he remains and continues to be a Member of that group bearing stigma of “Social Backwardness” which remains with the individual and the same is never changed. The present Commission is also working on the same pattern but it has submitted a report in the year 2005-06 for enhancement of reservation quota of Social Castes from 2% to 27% as per the judgment of Supreme Court of India on Mandal Report, despite that no action has been taken by the State Government so far.
It is worthwhile to mention here that on 04.03.2004, Jammu and Kashmir Reservation Act, 2004 was passed and then, the Reservation Rules were framed vide S.R.O.294 in October 2005 which is again a reproduce of S.R.O.126 of 1994 for Socially and Educationally Backward Classes (Social Castes). The inclusion of Backward Area and Area adjoining to Actual Line of Control under Section 2(o) of the Act and Rule 4(c) of SRO of 2005 is against the provisions of Article 15(4), Article 16(4) and Article 340 of the Constitution of India and also against the recommendations of B.P.Mandal Commission upheld by the Hon’ble Supreme Court of India. The O.B.Cs of J&K State strongly oppose the inclusion of “Backward Area” and “Area adjoining to Actual Line of Control” under the definition of Socially and Educationally Backward Classes, as the Residents of Area cannot carry the stigma of Social Backwardness. Moreover, Mandal Commission when visited Jammu and Kashmir during the year 1979-80 had not recommended Area-wise reservation on geographical basis. Further National Commission for Backward Classes, New Delhi, has not accepted RBA and ALC reservations for Central Government Services.
Despite being above 60% of the population of Jammu and Kashmir State from amongst all the religions viz., Hindus, Muslims, Sikhs and Christians, the real OBCs don’t have even single MLA/MLC/MP from said State who can represent them and raise their issues on the floor of the house. This is another major factor that Backward Class people in J&K State are suffering a lot and not getting their due benefits since independence. Moreover, the Mandal Commission had already been implemented in rest of India and O.B.Cs of other States have been enjoying the benefits of reservation for the last more than two decades.
survey of the population of J&K State would prove that O.B.Cs,
S.Cs & S.Ts from amongst Hindus, Muslims, Sikhs, Bodhs and Christians
constitute approximately 85% of the total population of J&K State.
Rare are the people who know that S.Cs who are converted from Hindus
to Muslims also fall in the category of O.B.Cs alongwith those O.B.Cs
who had been converted from Hindus to Muslims. For instance, a ‘Nai’
in Hindus and a ‘Hajjam’ in muslims both are O.B.Cs(Barbers),
but a ‘Doom’ in Hindus is S.C. and a ‘Doom’
in Muslims is O.B.C. Though the Mandal Commission had identified 63
Castes in J&K State, but some of these castes had been given the
status of S.Cs and S.Ts by the Government of J&K. Out of rest
54 Castes, 25 Castes have been given the status of Weak & Under
Privileged Classes (Social Castes) as on date, and remaining 29 Castes,
which are totally ignorant and illiterate, unable to represent for
their inclusion in the list of Social Castes as they are so backward
that they hardly know the procedure to be followed for their inclusion,
are still at the mercy of the Permanent Commission for Backward Classes
which is always headed by High Caste Retired Justices of J&K State
till date. And one more irony is that all these Castes are also fighting
for getting the status of & recognition as “O.B.C.”.
The genuine demands of O.B.Cs of J&K State pending since independence, more specifically since 16-11-1992, the date of passing of judgment by the Apex Court in Mandal Case, are as under:-
(a) To enhance Reservation Quota of O.B.Cs from meagre 2% to 27% as per Supreme Court Judgement-1992 in the case titled “Indira Sawhney etc. v/s Union of India & ors.” on Mandal Commission basis.
(b) To issue single O.B.C. Certificate forever, applicable in J&K State as well as other States and Central Government jobs/institutions.
(c) To amend The Jammu & Kashmir Reservation Act, 2004 and The Jammu & Kashmir Reservation Rules, 2005 to the extent that Section 2(o), 6 & 9 of the said Act defining “Socially & Educationally Backward Classes” and Rules 4, 9(iii), 13(iii), and 15(c) of said rules providing unconstitutional reservation to “Residents of Backward Area” and “Actual Line of Control” are declared illegal and unconstitutional, thus quashed.
(d) To remove “Creamy Layer Embargo” from O.B.Cs reservation.
(e) To constitute Advisory Board for O.B.Cs in J&K State.
(f) To amend/modify J&K State Commission for Backward Classes Act, 1997 to the extent that all the members including Chairman of said Commission must be appointed from amongst O.B.Cs only, i.e. as per Annexure-“D” to S.R.O. 294.
(g) To amend/modify Sub-Section (2) of Section (1) of The National Commission for Backward Classes Act, 1993 to the extent that the words “except the State of Jammu and Kashmir” are deleted so that the Act is extended to the State of J&K as it is already extended to rest of India.
(h) To include the following remaining castes, from the list of J&K O.B.Cs as per Mandal Commission Report, into the present list of O.B.Cs i.e. Annexure-“D” to S.R.O. 294 :-
(iv)Bowria (v)Chopan (vi)Dhar(Muslim)
(vii)Dosali (viii)Dholwala (ix)Farda
(x)Gara(Blacksmiths) (xi)Gore-Khans (xii)Gratie
(xiii)Jullaha (xiv)Jogi (xv)Kholie
(xvi)Lone (xvii)Mahigir (xviii)Malyar
(xix)Mir (xx)Nal-Band (xxi)Para
(xxii)Parna,Perna (xxiii)Peer (xxiv)Pathir
i. The classification of Socially and Educationally Backward classes cannot be on the basis of geographic, climatic or backwardness of an area.
ii. That reservation under Article 16(4) is meant to include those socially backward castes, which had been stigmatized for centuries and as a result of which were both socially and educationally backward and under represented in the services under the state.
iii. The indicators for determining socially and educationally backwardness have been clearly laid down by the Hon’ble Supreme Court in the said Mandal Case. The Hon’ble Supreme Court of India has held that Social and Educational Backwardness must be due to historical injustice suffered merely because of the accident of birth into a particular social group.
iv. It has also been laid down by the Hon’ble Supreme Court of India that the educational backwardness should be the direct result of social backwardness.
v. That the purpose of 16(4) was to compensate those who have been left out of the race of life for social and historical reasons and past discrimination that persists to this day.
vi. It has also been laid down by the Hon’ble Supreme Court of India that backwardness, which arises out of purely economic factors, would not be that, which is contemplated in Article 16(4).
vii. The reservation of Socially and Educationally Backwards is justified by the very fact of their under the representation in the services.
viii. The definition of whole areas as backward and treating all residents living therein as socially and educationally Backward is illegal. It must be understood that in all these villages it is mainly the lower castes that are subjected to indignities and deprivation of educational opportunities. A classification based on backward castes employing the yardstick prescribed by the Mandal and approved by the Hon’ble Supreme Court of India would have directly benefited only those among the backward areas who are genuinely deserving of such reservation.
ix. That classification based on the backwardness of the area or residence near the Line of Control are not valid grounds for being classified as socially and educationally backward for the purpose of reservation under Article 16(4) of the Constitution.
x. Classifying the entire area as backward would only benefit the powerful upper castes living in these areas to the exclusion of the genuinely deserving residents of these areas.
xi. That such backward regions comprise people belonging to upper castes and dominant communities, which are not backward. They would be sole beneficiaries of the Reservation Policy as enacted in the said Act and Rules.
xii. That Article 16(4) is exhaustive of reservation to be made in favour of SC/ST and O.B.Cs. Reservations for other classes such as the physically handicapped can be made only under Article 16(1).
xiii. That purpose of Article 16(4) was to benefit such castes which were hitherto unrepresented or not adequately represented in the services because of past discrimination.
xiv. The backwardness contemplated under Article 16(4) is mainly social.
xv. In the present provision made in Rule 4(c) the truly backward and under represented communities would be swamped out and all the benefits would be enjoyed only by the upper castes and powerful groups.
xvi. That more than 60% of the population of Jammu and Kashmir is made up of other Socially and Educationally Backward Classes as defined by the Hon’ble Supreme Court of India and a mere 2% reservation has been made to be shared by over 60% of the population. This is nothing but paying lip service to the intentions of the Constitution makers as expressed in Article 15(4) and 16(4) read with Article 340.
xvii. That the intention of the J&K State Government, to defeat and deny the Constitutional rights of the socially and educationally backward classes, is apparent from the fact that to this date only 2% of the posts have been reserved for the socially and educationally backward classes as envisaged by the Hon’ble Supreme Court of India.
xviii. That by reducing the quota of the real backward classes in the Mandal Commission to merely 2%, a cruel joke has been played on the socially and educationally backward classes, which are under represented in the services.
xix. That ironically on the one hand there is a permanent body to screen off the creamy layer from amongst the socially and educationally backward classes, but on the other hand definition of this class itself has been expanded in such a manner that creamy layers have been included by said impugned definition.
xx. The commission has considered the representations made by the members of the socially and educationally Backward Castes. The commission had submitted its report to the State Government for consideration and taking appropriate action for enhancement of reservation quota from existing 2% to 27% in the month of February, 2006 for the castes and communities included in Annexure – “D” to 2005 Rules (SRO 294) framed under the impugned Act.
xxi. That if the J&K State Government is allowed to continue to make appointments based on the current Reservation Policy as reflected in the Reservation Act of 2004 and SRO-294 of 2005, it will further cause irreparable loss of the Backward Classes with no hope of ever ending the injustice being meted out to the class of people who are really Socially and Educationally Backward vide Article 15(4) and 16(4) of the Constitution of India.
xxii. That Article 15(4), Article 16(4) and Article 340 are directly applicable to the State of J&K as these are applicable to other States of the Country; therefore, jurisdiction of National Commission for Backward Classes must be extended to the State of Jammu and Kashmir as it is already extended to rest of India.
J&K High Court, Jammu.