Jammu & Kashmir High Court
Ut Of J&K And Others vs Seema Koul And Anr on 11 November, 2024
5
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 2631/2024
UT of J&K and others .....Appellants
Through: Mrs. Monika Kohli, Sr. AAG for appellants
No. 1 to 3 & 6
Mr. Bhannu Jasrotia, GA for appellants No. 4
& 5.
Q
Vs
Seema Koul and anr. ..... Respondent(s)
Through: Mr. Bimal Roy Jad, Sr. Advocate with
Mrs. Meenakshi Salathia Kaur, Assisting
counsel for R-2
Mrs. Veenue Gupta, Advocate for R-1
Coram: HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT
11.11.2024
(Atul Sreedharan-J)
(Oral)
1. The present writ petition has been filed by the appellants/Union
Territory of J&K being aggrieved by order dated 16.05.2024 delivered by
learned Central Administrative Tribunal, Jammu Bench, Jammu (Tribunal, for
short) in Transferred Application Nos. 61/3608/2020 and 61/3535/2020, vide
which, learned Tribunal had allowed the aforesaid Transferred applications
filed by the respondents herein and directed the UT of J&K/Government to
release the appointment orders in favour of the respondents herein.
Brief facts of the case are as follows:
2. Respondents herein, who are Seema Koul and Vishalni Koul, had filed
writ petitions before the Single Bench of this Court being SWP Nos.
2403/2018 and 1918/2018, which were transferred to learned CAT and re-
numbered as hereinabove. As the crux of the case in both the matters was
same, it came to be disposed of by the common impugned order. The
grievance disclosed by the respondents herein is that their names having
figured in the provisional select list of candidates issued by J&K Service
Selection Board (JKSSRB) to the post of Legal Assistant in the Department of
Disaster Management Relief, Rehabilitation and Re-construction under the
PM Package for Kashmiri Migrants, pursuant to Advertisement Notice No.
04/2017/149 dated 01.12.2017, were removed from the final selection list on
the ground that respondents have lost their migrants status having married
non-migrant persons before applying for the post of Legal Assistant.
3. Undisputedly, respondents belong to Kashmiri Pandit community and
they along with their families were compelled to migrate to Jammu from the
Kashmir Valley during the onset of militancy after 1989. Respondents were
issued migrant certificates on 22.12.2010 and 05.02.2010 by the Relief and
Rehabilitation Commissioner (M), Jammu. Respondents further stated that the
Government vide Notification No. SRO 412 of 2009 dated 30.12.2009
formulated the J&K Migrants (Special Drive) Recruitment Rules, 2009, vide
which, the persons who were covered within the definition of "Migrants"
were to be considered for appointment to the posts created in Kashmir Valley.
It was also the case of the respondents before learned Tribunal that they fell
under the definition of "Migrant" which entitled them to all benefits under the
aforesaid Recruitment Rules, notwithstanding the fact that they had got
married to non-migrant persons before applying for the post in question, as
their status as Migrants did not change under the rules.
4. Before the select list could be given effect to, private respondents,
namely, Komal Pandita and Sumit Bhat before learned Tribunal, who were in
the waiting list, represented that respondents herein do not fall in the category
of Migrants having married non-migrants. It was thus disclosed in the
representation that husbands of the respondents, being non-migrants, they lost
their status of Migrant under SRO no. 412.
5. The case of the appellants herein, before learned Tribunal, was that as
per the Advertisement/notice calling for application to the post in question,
only a married woman eligible under SRO No. 412 of 2009 could apply for a
job in the permanent district of residence of her husband in Kashmir. In other
words, the case put up by the appellants herein before learned Tribunal was
that a migrant woman was eligible to apply and be considered for the said
post in case:
a. she was unmarried;
b. she was married to another migrant, in that case she would
become eligible for securing a job in the district from which
her husband was a migrant; and
c. she married a non-migrant, she become ineligible to be
considered as a migrant any longer which would enable her to
seek a job in the District from where she or her ancestors
possessed immovable property.
6. Before this Court, the appellants have taken a plea that there was
concealment of the fact by the respondents herein that they were married
which would result in their disqualification. Learned counsels for the
respondents, on the other hand, have argued that status of the respondents, as
a migrant, does not get obliterated only on account of their marriage to non-
migrants. It is further argued that taking such a view would be violative of
Articles 14 and 16 of the Constitution as a migrant male would still continue
to have his migrant status even if he married a non-migrant female.
7. Heard learned counsel for the parties and perused the impugned order
passed by learned Tribunal.
8. In paragraph 18, learned Tribunal has referred to the meaning of a
Migrant as defined in SRO 412 in clause 2(d)(i)(ii). As per the said provision,
a migrant was a person who had migrated from Kashmir Valley after
01.11.1989 and was registered with the Relief Commissioner or where he/she
was not registered on the ground of him/her being in the service of
Government in any moving office or such person having left the valley or any
other part of the State in pursuit of occupation or vocation or otherwise, and is
possessed of immovable property at the place from where the person has
migrated, but is unable to ordinary reside on account of the disturbed
conditions there. An explanation also provides that for the purpose of the
clause, migrant is an internally displaced person would mean someone who
had to migrate within Valley from her/her original place of residence in
Kashmir Valley for security reasons and is registered, as such, with Relief and
Rehabilitation Commissioner, Migrants.
9. In Paragraphs 20 and 21, learned Tribunal has considered the scope of
definition of "Migrant" and has concluded that the definition does not provide
for any disqualification or reversal of the status of the migrant once granted. It
has also referred to judgment of Anuj Garg and others v. Hotel Association
of India and others; (2008) 3 SCC 1 wherein Hon'ble Supreme Court while
dealing with matters relating to employment recognised by Article 16 held
that the right of employment itself, though not a fundamental right, every
person, who is similarly situated has a fundamental right to be considered in
terms of Article 14 and 16 of the Constitution. It was further held that
whenever discrimination is sought to be made on the purported ground of
classification, such classification must be founded on rational criteria. It also
relied upon a judgment of Hon'ble Supreme Court in case titled Union of
India and others v. Ex. Lt. Selina John [Civil Appeal No. 1990/2019
decided on 14.02.2024] wherein Hon'ble Supreme Court, while dealing with
the case of the Ex. Lt. Selina John, who was a Permanent Commissioned
Officer in Military Nursing Service and was disengaged from service on the
ground that she had got married, observed that such rule applicable to only
women Nursing Officer was ex facie manifestly arbitrary and held the same to
be a gender discrimination and iniquitous. Hon'ble Supreme Court further
held that the acceptance of such patriarchy undermines human dignity and the
right to non-discrimination and fair treatment.
10. This Court is of the opinion that order passed by learned Tribunal is
just and proper. As per the definition of "Migrant" in SRO 412, it defines who
a migrant is but thereafter has no provision for reversal of the status once
granted. Thus, as per the said definition, a migrant was someone who was
forced out of the Kashmir Valley after 1989. This factual aspect is not
disputed by appellants herein. Thus, there is no cloud or doubt with regard to
the migrant status that was granted to the respondents herein.
11. One question of public important that arises before this Court is
whether a women who has been given a migrant status on account of the
suffering endured by her and her family on account of which they were forced
to leave their home and hearth in the Kashmir Valley on account of
disturbance that was rampant in the year 1989 onwards, could be
discriminated and would stand to lose the said status only on account of fact
that she had got married to a non-migrant? Holding thus would be going
against the nature of human beings. Respondents herein, who are ladies and
on account of no fault of theirs, had to leave their place of original residence
in Kashmir Valley, cannot be expected to remain unmarried only to secure a
job in the Kashmir Valley as a migrant. It is also reasonable to presume that
because of the exodus, not every migrant woman would be in a position to
find a match who himself was a migrant. In such a situation, to hold that the
woman would lose her status as a migrant only because she, out of the natural
urge of forming a family, had to marry a non-migrant on account of existing
circumstances, would be grossly discriminatory and militates against the very
concept of justice. This discrimination becomes even more brazen where a
male migrant continues to remain a migrant notwithstanding the fact that he
has married a non-migrant. Such a situation has arisen only on account of
patriarchy that prevails in the human race. However, in matters relating to
employment under the State/UT, such discrimination cannot be countenanced.
12. As regards, the contention put forth by learned counsel for the
appellant that there was non-disclosure/concealment of the fact that the
respondents were married, is of no consequence. Undisputedly, the
Advertisement notice does not provide for cancellation of the candidature on
account of non-disclosure or improper disclosure of facts/marital status.
Further, the appellants have not been able to show how material injustice has
been taken place to those who could not get selected otherwise on account of
such non-disclosure. Therefore, this argument is also rejected.
13. In view of what has been argued and considered and held hereinabove
by this court writ petition fails and is, accordingly, dismissed. The
appointment orders shall be given by the authority concerned to the
respondents herein within a period of four weeks from the date of uploading
of this order on the website.
(Mohd. Yousuf Wani) (Atul Sreedharan)
Judge Judge
Jammu
11.11.2024
Paramjeet
