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| Law Department ignores SC on Roster point seniority | | | EARLY TIMES REPORT
Jammu, Feb 16 : As per the communication issued by the General Administrative Department vide No. GAD (Ser) Genl/38/2013, Dated 22-01-2014, the Law Department of the State of Jammu & Kashmir has opined vide U.O. No. LD (SER) 2009/32-R&B, Dated 16-January-2014 totally ignoring the law of the land declared by the Supreme Court of India in M. Nagaraj case while interpreting Article 16 (4) of the Constitution of India.
The Supreme Court in Paragraph No. 116 of its judgment reported in SCC (2006) 8 page No. 212 titled M. Nagaraj Versus Union of India has held as under: -
"Therefore, in our view Article 16(4), 16 (4A) and 16 (4B) together form part of the same scheme. As stated above, Article 16 (4A) and 16 (4B) are both inspired by the observations' of the Supreme Court in Indira Sawhney and R.K. Sabharwal. They have nexus with Articles 17 and 46 of the Constitution.
Therefore, we uphold the classification envisaged by Article 16 (4A) and 16 (4B). the impugned Constitutional amendments, therefore, do not obliterate equality."
In view of the above quoted findings of the Constitution Bench of the Hon'ble Supreme Court neither Article 16 (4) nor fundamental right to equality is obliterated or violated with the insertion of Article 16 (4A) and 16 (4B) and they are part of the same scheme.
That quite unfortunately and in derogation to the conclusions and finding of the Hon'ble Supreme Court viz-a`-viz the interpretation of Article 16(4), 16 (4A) and 16 (4B) the Law Department of the Jammu and Kashmir State has opined that Article 16 (4A) is not applicable because the said Constitutional amendments by virtue of which Article 16 (4A) and 16 (4B) have been enacted , are not automatically applicable to the State of Jammu and Kashmir, completely ignoring that Article 141 of the Constitution of India is duly applicable to the State of Jammu and Kashmir and by virtue of that judgment of the Hon'ble Supreme Court of India (M. Nagaraj case) is applicable to the State of Jammu and Kashmir also.
Now, when in M. Nagaraj Judgment the Hon'ble Supreme Court has interpreted that giving promotion and consequential seniority is part of Article 16(4) and by doing so equality principle is not obliterated, then the Law Department of the Government of Jammu and Kashmir has no authority under the Constitution of the Jammu and Kashmir State to give a different interpretation to Article 16 (4) than what has been given by the Supreme Court of India while writing the Constitution Bench judgment in above mentioned M. Nagaraj case.
It is quite unfortunate that there are no regards in the State of Jammu and Kashmir to the observations and interpretations of the Supreme Court of India.
If it is by way of ignorance, then the same can be corrected but if it is a deliberate attempt, then why so?
Even while writing the conclusions in the said M.Nagaraj case the Hon'ble Supreme Court in Paragraph No. 121 has concluded as under: -
"The impugned Constitutional amendments by which Articles 16 (4A) & 16 (4B) have been inserted flow from Article 16 (4). They do not alter the structure of Article 16 (4)."
It, accordingly, becomes quite unambiguous that when undisputedly Article 16 (4) and Article 141 of the Constitution of India are applicable to the State of Jammu and Kashmir and Article 16 (4A) and Article 16 (4B) have been interpreted to be flowing from Article 16 (4) by the Constitutional Bench Judgment of the Hon'ble Supreme Court. So, the Law Department of the Jammu and Kashmir State cannot afford to give a different interpretation to Article 16 (4) because that will amount to contempt of the Hon'ble Supreme Court. |
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