By Ahmed Ziya Siddiqui
The Jammu & Kashmir Reservation Rules, 2005, intended to promote Social Justice, contain a provision that subtly undermines the principles of fair competition and equal opportunity. Rule 7(8) of the Rules, governing the preparation of select lists for the Combined Competitive Examination, allows reserved category candidates who qualify in the open merit (OM) pool to opt for reserved seats while reallocating vacated OM seats exclusively to other reserved candidates.
The above mentioned Rule reads as under;
“ (8) For purposes of services to which Combined Competitive
Examination is conducted, the reserved category candidates if selected
against open merit vacancies may also be considered for allotment of
services allocable to their respective category as per their inter-se-merit/ own preference and the resultant left over vacancies in the services in open merit shall be allotted to those reserved category candidates only, as per merit-cum-preference, against whose vacancies the reserved category candidates qualifying in the open merit are considered:
Provided that physically challenged candidates shall be considered
for selection in the services and against the posts identified for their
respective categories in terms of Government Order No. 62-SW of 2001 dated 13.03.2001 and in accordance with their merit-cum-preference, if otherwise found suitable for selection.”
This mechanism, though seemingly procedural, effectively expands reservation quotas beyond their constitutional limits, eroding opportunities for OM candidates and raising questions of arbitrariness under the Indian Constitution.
The Mechanics of the Reservation Rule 7(8).
Section 7(8) permits a reserved category candidate who secures an OM seat through merit to migrate to their reserved quota for a preferred service or cadre, such as the Kashmir Administrative Service. When this occurs, the vacated OM seat is not allocated to the next general category candidate in the merit list. Instead, it is reassigned to another reserved category candidate based on their merit and preference within their category. This process creates a cascading effect, reducing the OM quota while expanding the reserved quota beyond its intended share.
Consider a hypothetical scenario with 10 total seats: 6 allocated to OM and 4 to the Scheduled Caste (SC) category. If an SC candidate, ranking among the top 6 in the OM pool, opts for a reserved SC seat to secure a preferred cadre, their OM seat becomes vacant. Rather than filling this vacancy with the next general candidate (e.g., Rank 7, who outperformed others outside the top 6), the rule assigns it to another SC candidate (e.g., Rank 8). Consequently, the SC quota effectively increases to 5 seats, while the OM quota shrinks to 5, despite the general candidate’s higher merit. This reallocation disrupts the balance between affirmative action and merit-based selection.
The Jammu & Kashmir Public Service Commission (JKPSC) notifications for recent Combined Competitive Examinations indicate that approximately 60% of seats are allocated to reserved categories (SC, ST, OBC, etc.), leaving 40% for OM candidates. When vacated OM seats are reassigned to reserved candidates, the effective reservation exceeds this threshold. The rule takes OM seats earned by merit and gives them to reserved category candidates, even if a general candidate scored higher. For example, if an SC candidate in the OM pool switches to the SC quota, their OM seat goes to another SC candidate, not the next general candidate who may have better marks. This shrinks the OM quota (e.g., from 40% to 30% or less), unfairly limiting opportunities for general candidates without a clear reason.
The state may argue that the rule engages Article 16(4) of the Constitution, which permits reservations to ensure “adequate representation” for backward classes and that reallocating OM seats to reserved candidates fulfills this mandate, particularly by preventing reserved seats from remaining vacant. However, this rationale falters upon scrutiny. First, reserved seats are rarely vacant in J&K, given the robust demand for government jobs and the competitive nature of the examinations. Second, the policy oversteps Article 16(4) by granting reserved candidates dual benefits: the ability to compete in the OM pool and the option to migrate to reserved seats, with vacated OM seats absorbed into the reserved pool. This creates a “backdoor” expansion of reservations, undermining the principle of reasonable classification under Article 16(4), which requires that affirmative action be proportionate and not excessively disadvantageous to other groups.
Furthermore, the rule is arbitrary under Article 14, which guarantees equality before the law. By denying meritorious general candidates (e.g., Rank 7 in the example) a seat in favor of a lower-ranked reserved candidate (e.g., Rank 8), the policy prioritizes category over merit without a rational nexus to the objective of uplifting backward classes. This silent dilution of open merit flips the equality principle, transforming reservation from a protective measure into a mechanism of preferential excess.
The original aim of reservations was to uplift socially and educationally backward classes. But now, by denying higher-ranked candidates, the policy is seen as going beyond protection and becoming preferential. In other words, instead of ensuring fairness, it may be reversing equality — favoring one section even when it’s not justified by merit.
Comparative Perspective: UPSC’s Approach
A comparative analysis with the Union Public Service Commission (UPSC) highlights the inequity in J&K’s policy. In UPSC examinations, reserved category candidates who qualify in the OM pool may opt for reserved seats to secure preferred services. However, the vacated OM seat is filled by the next general candidate in the merit list, preserving the OM quota’s integrity. This approach maintains the balance between affirmative action and merit, ensuring that OM seats remain sacrosanct. J&K’s deviation from this model exacerbates the disadvantage faced by OM candidates, who already compete for a limited 40% of seats.
Societal and Legal Ramifications
In a region like J&K, where government jobs are a critical pathway to economic stability, the reservation rule fuels resentment among OM aspirants. With 60% of seats reserved, the additional absorption of OM vacancies into the reserved pool leaves general candidates with diminishing opportunities, despite their merit. This erodes trust in the examination system, risking alienation among youth who perceive their efforts sidelined by procedural inequities. In Janhit Abhiyan v. Union of India (2022), the Supreme Court upheld EWS reservations with a creamy layer (income cap) to prevent advantaged individuals from monopolizing benefits. For SC/ST in J&K, there’s no creamy layer, so economically well-off reserved candidates can take both OM and reserved seats. This allows a small group to dominate opportunities, which is unfair and arbitrary as it doesn’t target the truly disadvantaged.
From a legal standpoint, the rule’s overreach challenges the constitutional framework. The Supreme Court at various times has emphasized that reservations must not undermine efficiency in administration or disproportionately harm general candidates. By inflating the reserved quota at the expense of OM opportunities, J&K’s policy risks failing this test.
A Path to Reform
To restore fairness, policymakers should revise Section 7(8) to ensure that vacated OM seats are allocated to the next general candidate in the merit list and follow a similar model as followed by the UPSC. Reserved candidates should retain their right to migrate to their quota for preferred services, but the integrity of the OM quota must be preserved. In the earlier example, this would maintain the SC quota at 4 seats and the OM quota at 6, ensuring that meritorious general candidates are not unfairly excluded. Such a reform would align J&K’s policy with constitutional principles and UPSC’s balanced approach.
J&K’s reservation rule, while designed to promote affirmative action, inadvertently erodes open merit by reallocating vacated OM seats to reserved candidates. This mechanism expands reservation quotas beyond their constitutional limits, disadvantages meritorious general candidates, and risks violating Articles 14 and 16 of the Constitution. By adopting a more equitable approach, such as preserving OM seats for general candidates, J&K can uphold the delicate balance between affirmative action and merit-based selection. Without reform, the policy will continue to undermine trust in the system, leaving merit to languish in the shadow of procedural inequity.
Ahmed Ziya Siddiqui (Advocate, High Court of Jammu & Kashmir & Ladakh can be reached at aziyasiddiqui@gmail.com
