Discriminatory recruitment rules

By K.N. Pandita

In the follow up action to the Prime Minister’s Package for Kashmir militancy affected victims, the State government has recently provide employment to nearly 1700 youth of Kashmiri “migrants”. In this connection, the government has laid down certain rules specifically for these recruitments.

The package may be ambiguous in some parts but it is categorical about six thousand jobs to be provided exclusively to unemployed Kashmiri Pandit “migrants” with three thousand being budgeted by the central government.

The first question in this context is what made the state government frame new rules of recruitment for this specific group when there are established rules and procedures of recruitment with the administration. Nearly eight hundred thousand recruitments made during past two decades in all the three regions were all covered by the existing rules and never was a necessity felt to frame and add new rules to the corpus of existing ones. Why discrimination. 

From the language of the notification, these recruitments look parochial and regional in character. For example, the selected candidates are asked to report in the valley, and produce various documents in addition to making an agreement that “they will serve in the valley against the posts on which appointed and at a place where posted.” Why should the State government impose these arbitrary conditions on “migrant” recruits when nothing of the sort has ever been the stipulation for ordinary recruitments?  A government employee can be posted anywhere but not pinned down to a certain place for unlimited time. Why make a blatant and arbitrary specification for a particular group and valley-centric? The law will not support imposition of arbitrary and discriminative rules.

Vacancies have been notified department–wise as well as on regional level. Why should the rule prescribe a selected “migrant” employee to serve only in the valley when he or she can be adjusted or transferred at a post in any one of the three regions of the state? Binding a “migrant” recruit to the Valley through a forced agreement is denial of freedom of movement, vital human rights.  Moreover, the government has no right to impose these conditions because it failed to provide them security of life and property in 1990.  Their recruitment is not an obligation on them but redemption of government’s failure in discharging its constitutional obligation in 1990. That is precisely the spirit of PM’s package. If challenged in a court of law, the government cannot stand either the spirit of service rules or the stipulations of human rights.

The rule prescribes in very clear terms that a candidate appointed “has to serve in the valley and in case of leaving the valley his services will be terminated.” This again has a serious legal flaw. The government nowhere feels it necessary to assure the selected recruits that their security and safety are its primary responsibility. The government has conceded before the Supreme Court in a lawsuit J.L. Kaul vs. J&K State that it cannot commit itself to security of life. The law cannot uphold this unilateral and unjustifiable rule since the valley is still faced with and fighting the threat of extremist insurgency. A recent statement of the Union Home Minister said that more than 700 well-trained and well-armed jihadis were assembled along the other side of the LoC wanting to infiltrate into the state.  A secular democratic government does not have the moral authority of demanding duties from its citizens without making a firm commitment of providing them security of life and property. Terrorism cannot be wished away by dragging the  IDPs to the line of fire. That is infringement of Human Rights.

The notification states, “All the migrants registered with the Relief Commissioner, including the internally displaced migrants (within the valley) shall be eligible for applying for appointment against these posts”.

This  reflects brazen communal slant  in the stipulated rules.  The State has given a new meaning to the term “internally displaced persons” first by appending to it the label of “migrant” and then further specifying them as  “internally displaced migrants (within the valley)”.  Migrants and IDPs   are two different categories by all norms of definition. To further specify government’s thrust, the conditional phrase “within the valley” has been suffixed to “internally displaced migrants” which means the State government has accepted the nomenclature of IDPs but sub-divided it into two categories, namely “within the valley” and outside the valley. The purpose of clubbing three statuses is obviously to strictly pinpoint a particular group not by its proper nomenclature but by appending qualifying adjectival phrases to it only to make them entitled to maximum benefits of relief and rehabilitation including a share in the proposed quantum of jobs.

This universally accepted definition of IDP applies precisely to the “migrants” from ethnically cleansed Kashmir Valley. Why does the government refuse to give them their proper nomenclature and brand them “migrants” when the legal authorities in the country have conceded their proper nomenclature as IDPs?  Conversely, if they are called migrants because they left their home and hearth, then those who moved away from their homes within the valley are also “migrants” and not “internally displaced persons (within the valley)”.  What makes the government bestow three statuses on them, migrants, internally displaced persons plus “within the valley”?

The Union and State governments, besides the NHRC, refused IDP status to displaced persons from the valley.  But the State government conferred IDP status on a specific group of citizens just out of its choice with a single stroke of pen. This is not only arbitrary action but also blatant discrimination and a fraud on displaced Kashmiris.  I don’t think law will allow this dichotomy. Moreover who has the authority to declare a group IDP’? Does it fall within the jurisdiction of a State or the Union List?

Another aspect of this rule is that the “internally displayed migrants (within the valley)” categorized by the State government become shareholders in 6000 jobs that are promised to Kashmiri Pandit “migrants” in the package. Nobody knows the exact number of “internally displaced migrants (within the valley)”; it has never been disclosed nor the number of “migrants” from the valley” other than Kashmir Pandits. It has remained a closely guarded secret with the government. It is in the public interest that an enquiry is made into the number of such migrants and relief provided to them.

Nobody should have any objection to providing jobs to as many unemployed youth in the valley as is possible but then the package should not be trumpeted as a great favour to the Kashmiri Pandit migrants. When read between the lines, it shows that the extirpated community has been equalized with not one but three other categories of “victimized” people of Kashmir to become beneficiaries of PM’s package.. Why then should it be called a package for the Kashmiri Pandit migrants?

The notification is overloaded with conditionalities for “migrant” candidates like “registered migrants, “genuine migrants”, “bonafide migrants” and “authentication of migrant status” etc. It seems to be a ploy to find one or the other pretext for disqualifying as many “migrant” candidates as is possible. Producing a genuine migrant card issued by the Relief Commissioner should be sufficient to establish an applicant’s credentials.

Incidentally, there is no indication of relaxing upper age limit in the case of  “migrants” knowing that most of them are over-aged for normal recruitment in government service. Relaxation of upper age limit should have been part of the notification and module for recruitment..

Unfortunately the rules of employment notified by the government in the case of recruitments of “migrant” candidates seem to be dismally falling short of humanistic norms. A law has to emanate from a sense of humanistic approach to problems and situations whether the affected people are internally displaced or not. That is the fundamental principle of a welfare state. It is, therefore, hoped that the government will change its attitude radically and not behave in an arbitrary manner in matters of great sensitivity.
(The writer is he former Director of the Centre of Central Asian Studies, Kashmir University).

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