The Jammu and Kashmir High Court on Monday allowed contractors, who were delisted for being relatives of militants and separatists, “to participate in the tendering process” and quashed an order of the Department of Rural Development and Panchayati Raj.
“I find merit in these petitions...The impugned communication dated March 15, 2023, issued by the commissioner/secretary, Department of Rural Development and Panchayati Raj, is quashed. The respondents shall permit the petitioners to participate in the tendering process,” Justice Sanjeev Kumar said.
Justice Kumar was hearing a number of petitions where local contractors pleaded that they were denied permission to participate in a government tendering process for allegedly being related to militants or separatists.
“Evidently, the competent authority has not proposed the cancellation or refusal to renew the certificates of registration issued in favour of the petitioners. Simply, because one or more relatives of the petitioners were involved in anti-national activities in early 1990s or thereafter cannot be a ground to deprive the petitioners of their right to enter into contracts with government for execution of various public works,” Justice Kumar held.
The Department of Rural Development and Panchayati Raj in 2023 debarred a number of local contractors from participating in the process of government tendering on the basis of the communication received from the Criminal Investigation Department (CID), Jammu and Kashmir, wherein they “failed the security test”. The CID report suggested that “close relatives of the petitioners, i.e. brother, cousin, uncle, nephew, maternal uncle, father’s maternal uncle, father etc. had in the past remained involved in subversive activities. Some of the relatives indicated in the remarks column of the verification reports are dead for the last couple of decades.
“I am of the considered opinion that the impugned communication not only violates the fundamental right of the petitioners guaranteed under Article 19(1)(g) of the Constitution, but it has also the effect of depriving the petitioners of their right to livelihood implicit in Article 21. The relevant extract of Article 19 i.e. 19(1)(g) and 19(6),” the court observed.
Fundamental rights
Justice Kumar further held that in a democracy, as we are, governed by rule of law and no authority, however high and mighty it may be, cannot be permitted to subvert the constitutional provisions. “The fundamental rights, which form the bedrock of rule of law, cannot be permitted to be tampered with in the manner it has been done by the commissioner/secretary, Department of Rural Development and Panchayati Raj,” the court observed.
Referring to the 2010 rehabilitation policy for former militants in Kashmir who crossed into Pakistan-occupied Kashmir, Justice Kumar said, “To such a blatant violation of fundamental rights of the citizens, this court cannot remain a mute spectator. It may not be out of sync to point out that with a view to rehabilitating former militants/surrendered militants, the Government of Jammu and Kashmir has been promulgating rehabilitation policies.”
The policy was intended to facilitate the return of former militants who belonged to the Jammu and Kashmir and had crossed over to PoK/Pakistan for training in insurgency but later gave up insurgent activities due to change of heart.
“The intent and objective of the rehabilitation policies issued by the government from time to time was to bring the misguided youth and others, who had strayed into militancy but had realised their mistake, into the mainstream. The impugned communication issued by the then commissioner/secretary, Rural Development department and Panchayati Raj, is clear onslaught on the well thought after and wise decisions taken by the government to bring peace and normalcy in the then State of Jammu and Kashmir, now Union Territory of Jammu and Kashmir,” the court observed.
‘Filmsy ground’
Justice Kumar said, “I have not been able to discern the thought process that might have gone into the mind of the then commissioner/secretary to issue such communication. They [contractors] were debarred from executing works of the Rural Development department on a flimsy ground that their uncle or even father’s uncle 10/20 years ago were involved in anti-national activities. As is evident from the CID report, most of the relatives of the petitioners named therein have either died or surrendered to make a new beginning as law- abiding citizens of this country.”
The court held that it was a matter of “very serious nature”. “Let a copy of this judgment be placed before the Chief Secretary of the Union Territory of Jammu and Kashmir, for initiating departmental action against the concerned commissioner/secretary. A report with regard to action taken shall be submitted by the Chief Secretary to this court within a period of two months,” the court held.
The court listed the case for July 29, 2024.
Under the 2010 rehabilitation policy for militants, official figures suggest over 212 people returned from PoK through Nepal and other routes between 2010 and 2012, against 219 cases approved after security clearance.
