Not All Kashmiri Hindus are Kashmiri Pandits, Rules HC, Legal Challenge Likely

Not all Kashmiri Hindus are Kashmiri Pandits, the High Court of Jammu & Kashmir and Ladakh said in a significant judgment on Tuesday, dismissing a petition that sought to include Kashmiri Hindus in a government recruitment drive. The ruling has dismayed the Pandit community and its leaders have vowed to appeal against it.

The court maintained that Kashmiri Pandit is a community of Kashmiri-speaking Brahmins living in the regions for generations and are distinctly identified by their dress, customs, and traditions.

The HC was hearing a petition in which several Hindu groups living in the Valley were pleading to apply for the special recruitment drive for posts provided to Kashmiri non-migrant Pandits under the Prime Minister’s Package.

“Kashmiri Pandits is a separately identifiable community distinct from other Hindus residing in the Valley like Rajputs, Brahmins other than Kashmiri Pandits, Scheduled Castes, Scheduled Tribes and many others,” said Justice Sanjeev Kumar.

Thousands of Kashmiri Pandits and Hindus have been in exile ever since a brutal exodus due to the sudden rise in militancy in the Valley in the 1990s. The government is now looking to ramp up measures for their return and rehabilitation.

The court said it is difficult to accept the contention of the petitioners, who are mostly Kshatriyas, Rajputs, Scheduled Castes, non-Kashmiri Brahmins, to be treated as Kashmiri Pandits and admitted to the benefits of the Prime Minister’s revised package for return and rehabilitation of Kashmiri migrants, given effect to by the “Rules of 2009 read with SRO 425 of 2017″.

Petitioners may appeal

However, Kashmiri Hindus, including the petitioners, and KP leaders said the verdict had distressed them and they would like to challenge the judgment in the division bench of the High Court.

“We are pained by the judgment and that is why we seek to appeal again in a court of law. Our fresh petition needs to be research-based with all historical facts included. We will file it within the next 60 days of this verdict to have better traction and impact,” said a KP leader, wishing anonymity.

He said these Kashmiri Hindus have been living here for the last 300 to 400 years when they were settled in the Valley during the Sikh and Pathan rule. “They possess domiciles and before the Centre scrapped Article 370 of the Constitution, they had the state subject certificates. They were included as Kashmiri Hindu non-migrants in the 2010 census list but were kicked out in 2020 when they were to be recruited in government services,” he said.

As per the 2010 census, 114 Kashmiri Hindu families and about 700 KP families have not migrated out of the Valley. Most of the 114 were in the Uri and Kulgam areas of Kashmir.

Akshay Kumar, a Kashmiri Hindu, said he was crestfallen by the judgment. “I was selected in the recruitment list along with about 20 youths from my community from Uri, but Tuesday’s judgment has dashed my hopes,” he said. “This is a bolt from the blue. We have been living in Kashmir for generations. We speak the same mother tongue, possess domicile. How come we are held differently from Kashmiri Pandits? If a migrant Muslim, Sikh, Kshatriya, or Rajput from Kashmir can qualify for the job quota, why cannot anyone from our community get similar benefits?”

Sanjay Tickoo, a Kashmiri Pandit leader, who has been fighting for the community, said the government was dividing the Kashmiri Hindus on the basis of caste and customs. Tickoo, who heads the Kashmiri Pandit Sangharsh Samiti (KPSS), has petitioned dozens of cases that seek to fight for the rights of the community. “There seems to be a discrimination. This is division within the community,” he said.

Satish Mahaldar, chairman, Reconciliation, Return and Rehabilitation of Migrant Kashmiri Pandits (RRRM), however, said though he wants them to be included in the PM’s reservation quota on a “humanitarian” basis, he believes all Kashmiri Hindus are not Kashmiri Pandits. “They are not Kashmiri Pandits. We have a distinct culture, religious customs and traditions. We do Bhairav puja and they pray differently. How can we be part of a huge milieu? We are a smaller community but have a distinct identity,” Mahaldar said.

Altaf Mehraj, the lawyer for the petitioners, had contended that in the absence of any definition of Kashmiri Pandits given in the Statutory Regulatory Order (SRO), all Hindus, who are staying in Kashmir and did not migrate like non-migrant Kashmiri Pandits, should be treated as ‘Kashmiri Pandits’. The judge, however, declined.

“I regret my inability to accept such a broad definition of ‘Kashmiri Pandits’. It is true that neither in SRO 425 nor in the Rules of 2009 as amended vide SRO 425 of 2017, the term ‘Kashmiri Pandit family’ has been defined. What is, however, defined in Rule 2(ca), the term ‘Kashmiri Pandit’ means a person belonging to Kashmiri Pandit family, who has not migrated from Kashmir after 1st of November, 1989 and is presently residing in Kashmir Valley,” said the court.

In their petition, some non-migrant Kashmiri Hindus had sought to specify the quota out of 1,997 posts advertised by the government through a notification in December 2020 for Kashmiri migrants and non-migrant Pandits.

“I find no merit in the petition and the same is, accordingly, dismissed along with the connected application,” the judge ruled.

The HC noted an identical plea filed by the Sikh community seeking benefits under the Prime Minister’s Scheme was dismissed earlier by the court.

Case history

The case pertains to the year 2009 when the Government of India under PM Manmohan Singh issued the Prime Minister’s Package for the return and rehabilitation of Kashmiri migrants in the Valley. The package was executed and implemented by the-then state government by promulgating SRO 412, dated 30.12.2009. Subsequently, a survey was conducted with respect to the plight of Kashmiri Hindus who stayed within the Valley and did not migrate in the wake of the surge in militancy in the early 1990s. The survey conducted with respect to the living conditions of the non-migrant Hindu community of Kashmir, SRO 412 of 2009, was amended by SRO 425 of 2017, and the people belonging to the Hindu community who had stayed back in the Valley and did not migrate in 1990 were also extended the benefits of the special recruitment drive, which was a part of the PM’s package.

On December 1, 2020, the respondents issued an advertisement for filling up 1,997 posts while carrying out recruitment drives “in accordance with SRO 412 of 2009 as amended vide SRO 425 of 2017″. The advertisement was also open for people who had not migrated. They were, however, required to produce bona fide certificates to be issued by the concerned deputy commissioners to prove that such candidates had not migrated and were, accordingly, not registered with the Commissioner (Relief). The DCs were also to certify that the candidates, seeking the benefit of the special recruitment drive, belonged to the community described as ‘Kashmiri Pandits’. However, they, without any justification, chose not to grant such certificates in respect of a group of non-migrant Kashmiri Hindus, who according to them did not belong to the community of ‘Kashmiri Pandits’, say the petitioners.

The petitioners then filed an instant petition and sought their participation in the selection process without submitting the bona fide certificates from the DCs. The court in an order in March allowed the petitioners to participate in the selection process. The exercise has almost concluded and the selection list framed. The respondents have, however, withheld the selection of the petitioners on the ground that they do not meet the requirement of production of ‘Kashmiri Pandit’ certificate issued by the competent authority, say the petitioners.

The petitioners claim the benefit of Statutory Regulatory Order 425 of 2017 on the ground that this SRO is an outcome of the census carried out by the Government of India with regard to the living conditions of Hindus in the Valley, who despite adversity had opted not to move out during the turmoil in 1990 and, therefore, the benefit of the Prime Minister’s Package cannot be restricted to only one community, i.e., Kashmiri Pandits while ignoring other Hindu castes, communities and clans who have similarly suffered. All Hindus, they submitted, who are residing in the Valley and have not migrated, constitute one class and their further classification on the basis of their identities is not permissible in law. There is an allegation made by the petitioners that even SRO 425 of 2017, as is understood by the respondents, is not being followed in letter and spirit, in that, the respondents have in many cases issued bona fide certificates of ‘Kashmiri Pandits’ in favour of candidates who are similarly situated with the petitioners and carry the surname of ‘Singh’.

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