Hon'ble Sir,
The scrapping of Article 370 and 35A in August 2019 by the Parliament necessitated formulation of a new set of laws and rules for recruitment in the Union Territory of J&K keeping in view the all important issue of Domicile. It needs to be mentioned that some of the politicians and activists, who have not yet come out of the hangover of special status "granted" under the erstwhile Article 370/35A, need some more time to reconcile to the new political realities. It includes those leaders, and their followers, who were under detention for the past six to eight months after the 5-6 August 2019 developments.
The government of India issued the Gazette Notification in regard to the Domicile matters in the UT of J&K, a week before, on 31st March 2020. It made some important amendments to the Notification after a couple of days, based upon certain demands made by the various sections of people in J&K, and allowed all posts in the government and semi-government institutions to be filled up by the domiciled in the state.
However, the definition of Domicile in J&K was, as per the Notificaton, classified into four main categories. The Union government in its latest gazette notification stated that any person who has resided in the Union Territory of J&K for a period of fifteen years or has studied for the period of seven years and appeared in secondary and higher secondary board examination would be considered as "Domicile of J&K" and appointed in the services there. The displaced citizens of Jammu & Kashmir who are registered as "migrants" with the Relief & Rehabilitation Commissioner's office, irrespective of their stay in J&K is the third catagory of the Domiciled.
The fourth catagory of the Domiciled includes the Children of central government officers (Army, paramilitary forces, IAS, IPS), and employees of public sector undertakings and banks, central universities etc who have served in Jammu & Kashmir for 10 years. It also needs to be clarified that the children of the domiciled, as per the Notification, will also be eligible to apply for gazetted and non-gazetted government jobs in the state, irrespective of their stay in Jammu & Kashmir. This however, will not affect the recruitment and allocation process of IAS, IPS, IFS and other similar cadre appointees, and it will continue to be guided by the existing rules and practices.
The Gazette Notification is silent about a very important and an integral section of the J&K society. It becomes our moral duty to express our concerns in this regard and espouse the rightful claim of the people who otherwise should have been ordinarily included in the Notification as the fifth catagory of the Domiciled people of the UT of Jammu & Kashmir.
The people of Jammu and Kashmir since times immemorial have been going to the regions outside their state for education, business, jobs and other assignments. Persecutions have also led to their exodus from their homestead. Sometimes they would come back to their state and live and settle there once again. However, since 1947, the time of our independence, this process did not stop. The original inhabitants and the hereditary residents who posessed the certificate of state subject of the erstwhile Jammu and Kashmir state continue to live outside Jammu and Kashmir in many parts of India and the world. Since they are not in a position to prove their stay of 15 years in the state, hence they are not covered by the new law on Domicile. Similarly, most of them are also not registered as "migrants" with the office of the Relief and Rehabilitation Commissioner. In such a situation, this vast chunk of our brethren belonging to Jammu and Kashmir state cease to be the Domicile of the UT of J&K, though they possess the Hereditary State Subject certificate as well.
I raised this issue with the official representative of the PMO and the government of India, a few days ago and it needed to be pursued further. It would be the travesty of law of natural justice including the human rights infringement, along with the denial of Indegenous people's rights to the hereditary state subjects to deny their birth right to them to be a part of their birthland, both physically and legally. The new law can't be arbitrary in this regard at any cost.
As per a rough estimate, there are half a million of such people living all round the world since 1947 and they originally belong to the divisions of Jammu, Kashmir, Ladakh and parts of the occupied land of Jammu and Kashmir. All such people among them who possess valid state subject certificates of J&K, the progeny of their blood and the daughters-in-law in their families have a natural and legal right to claim the Domicile status, irrespective of whether they are included in the Notification or not.
It would be in the fitness of things that the government of India, at both the levels, Prime Minister's Office & Ministry of Home Affairs reviews the new law in this perspective and takes the concerned into confidence before taking the last call. Interpretation, rules and bylaws for the recruitments are yet to come, but this Gazette notification will have an overriding effect on the land laws and rules in the UT, eventually.
Therefore, it becomes important to make it sure that the fifth catagory of the residents of Jammu and Kashmir are granted hearing and justice in time and the government makes amends before it is too late.
The Gazette notification has also to make it clear whether for the issuance of the Domicile certificate, the authorities (In this case Tehsildar) would be guided by the old rules and submission of documents or a new set of rules and submission of documents would be required. This also requires a complete review. The displaced people registered as "migrants", ordinarily, don't need any certificate as they are the "deemed domiciled". However, those who are registered at places other than Jammu and Kashmir need to be brought under the purview of the Gazette notification for which only a clarification by the Relief Commissioner's office to the effect is sufficient. Lastly, the issue of inclusion of the fifth catagory of residents of Jammu and Kashmir as the Domicile Residents is an issue of natural justice and so needs to be taken up forthwith.
I reserve the right to release this letter as a write-up and also as an open letter to PMO, MHA and the office of the Lt. Governor of UT of Jammu and Kashmir for consideration of the pertinent issues of concern on priority and antecedence.