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The bench of Justice Ali Mohammad Magrey of Jammu and Kashmir High Court has issued notice to the J&K Govt. on Monday regarding a petition challenging 4% reservation quota for "Pahari speaking people" in medical postgraduate courses in various Government Medical colleges of the UT.
Excessive reservation quota
Through Advocate Gagan Basotra, The petition has been filed by certain MBBS graduates who wish to apply for postgraduate medical courses. They are primarily aggrieved by the fact that the 4% quota, granted in favor of "Pahari speaking people" by amending Rule 15 of the J&K Reservation Rules, 2005, results in 53% cumulative reservation, thereby leaving only 47% seats for the open category.
This, "excessive reservation quota" according to the Petitioners, is constitutionally impermissible and is ultra-vires Section 9 of the Jammu and Kashmir Reservation Act.
The total percentage of the reservation shall, in no case, exceed 50%, as provided in Section 9 of the J&K Reservation Act. Similarly, as per the Constitutional mandate and various judicial precedents including Indra Sawhney v. Union Of India & Ors., AIR 1993 SC 477, the total number of reserved seats can't surpass 50% of the total seats.
Less Reservation in Higher Education
The Petitioner has relied on the principle which is evolved by the Supreme Court in Dr. Preeti Srivastava v. State of MP. (1999) 7 SCC 120 which is "higher the learning in specialized fields, lesser the reservation".
Petitioner submitted:
"Reservation for postgraduate medical courses should be less taking into view the high-grade skill, talent, technical, scientific and research involved in these medical courses, as it would be dangerous to deprecate merit and excellence at higher levels. The higher you go in the letter of education, the lesser should be reservation."
It is accordingly contended that the impugned amended rule provides for a very high and excessive reservation and that too for reserved categories which are not traceable to the Indian Constitution and is thereby liable to be quashed.
Language cannot be the sole criteria for determining backwardness
The Government provides 4% reservation for Pahari speaking people by designating them as socially and educationally backward community on linguistic basis, which cannot be the sole basis for being socially and educationally backward in terms of Articles 15(1), 15(4) and 15(5) of the Constitution of India, the Petitioner has contended.
It is argued,
"The Respondent No. 1 has though designated Pahari speaking people as socially & educationally backward, but the same is constitutionally impermissible as a language/ linguistic community cannot be the sole basis for being socially and educationally backward. The Hon'ble Court in Indra Sawhney's and in subsequent cases have delineated the criteria and the basis of any community being educationally and socially backward."
They added,
"In every case where the states decide to provide for reservation there should exist two circumstances, namely, "Backwardness" and "Inadequacy of representation'. The backwardness has to be based on objective factors whereas inadequacy has to factually exist. Respondent No 1 without having determined any intelligent, objective, and fair criteria that Pahari speaking people are socially and educationally backward have prescribed 4% Reservation for a linguistic community."
It was further contended by the petitioner that figuring out any individual belonging to a Pahari speaking would be vague as is clearly evident by the amended Rule 21 of the J&K Reservation Rules which govern the procedure and authority for granting the certificate.
Keeping in view that a crucial question of law has been raised in the petition, the Court has asked the Advocate General to remain present on the next date of hearing and assist the court in the matter.
The next date of hearing is on 27 July.
Case Details:-
Case Title: Gokul Sharma & Ors. v. Union Territory of JK & Ors
Case No.: WP(C) No.1107/2020
Quorum: Justice Ali Mohammad Magrey
Appearance: Advocate Gagan Basotra (for Petitioners)
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