WP(C)/2156/2020 of MANZOOR AHMAD WANI Vs UNION TERRITORY OF J AND K AND ORS. (FIRE SERVICES DEPARTMENT) on 31 December 2020

1. By the present writ petition, the petitioner seeks direction upon the respondents to allow the petitioner to perform the duties of the post on which he has been appointed vide order No. 823/2020 dated 04.10.2020, and release the salary of the petitioner.

2/- At the very outset Mr B. A. Dar, learned Sr. AAG, raised an objection about the maintainability of the writ petition before this Court in view of the fact that pursuant to the abrogation of Article 370 of the Constitution of India, and formation of the Union Territory of Jammu & Kashmir and Ladakh in terms of the provisions of the Jammu and Kashmir Reorganization Act, 2019, all service matters of the Government Employee(s) in the said Union Territories, upon issuance of the Notification dated 29th April, 2020, issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), are required to be heard and considered only by the Central Administrative Tribunal, Chandigarh, “hereinafter for short as CAT” within whose jurisdiction the matter now falls.

3/- Confronted with the said position, the learned counsel for the petitioner submits that changed scenario does not take away the jurisdiction of this court as the same is protected in terms of the mandate of the judgments rendered by the Constitutional Bench of the Hon’ble Supreme Court in case titled L. Chandra Kumar v. Union of India and others reported as (1997) 3 SCC p. 261 and in case titled Kendriya Vidyalaya Sangathan and another v. Subhash Sharma etc. reported as AIR SCW 2002 (2) p. 1105.

4/- The learned counsel for the petitioner further submits that this Court has the jurisdiction to consider the case in terms of clause (b) of subsection (2) of Section 1 of The Administrative Tribunals Act, 1985. 5/- The learned counsel for the petitioner further contends that in view of the Full Bench judgment of this court rendered in Kuldeep Khoda & Others v. Masood Ahmad Choudhary & Others (1994) JKLR p. 25, the CAT has the additional or an alternative jurisdiction and not the exclusive one and in that view of the matter the jurisdiction of this Court is not deposed. The learned counsel for the petitioner heavily emphasized on paragraph no. 4 of the judgment of Hon’ble Supreme Court delivered incase titled “Kendriya Vidyalaya Sangathan v. Subhash Sharma” in support of his submissions.

6/- The leaned Senior Additional Advocate General, submits that the court may appreciate that there are two sides to the story one that is being referred to by the learned counsel for the petitioner relates to the period when Article 370 of the Constitution of India was subsisting and the Jammu & Kashmir was having the status of a State and the other part of the story relates to the present era when the Jammu & Kashmir has been formed into two Union Territories and the Article 370 of the Constitution of India is abrogated. The learned Senior Additional Advocate General further submits that clause (b) of sub-section 2 of the Section 1 of The Administrative Tribunals Act, 1985 also relates to the pre-abrogation era of Article 370, therefore, not applicable. He submits that the judgments referred to by the learned counsel also relate to the same period, therefore, are not applicable to the case in hand.

7/- I have heard learned counsel for the parties and considered the submissions made.

8/- Admittedly, the petitioner is a Government Employee in the Union Territory of Jammu and Kashmir. Article 323-A and Article 323-B for the establishment of various Tribunals was introduced in the Constitution by its (42nd Amendment) Act, 1976. Under Article 323-A of the Constitution, Central Administrative Tribunal Act, 1985 was established. Article 323- A (2) (d) excludes the jurisdiction of all Courts, except that of the Supreme Court under Article 136, with respect to the dispute or complaints referred to in clause (1).

9/- In order to appreciate the submissions made by the learned counsel for the parties, it has become necessary to take a look at the relevant provisions of law governing the subject. In the first instance, clause (b) of sub-section (2) of Section 1 of the Administrative Tribunals Act, 1985 is taken note of hereunder:

“1. Short title, extend and commencement.-….(b) in so far as it relates to Administrative Tribunals for States, to the whole of India, except the State of Jammu and Kashmir.” 10/- The plain reading of the provision of law makes it clear that the same talks of the State of Jammu and Kashmir which now stands formed into two different Union Territories, therefore, the submission made by the learned counsel that the Act is not applicable to the Jammu and Kashmir is unfounded, therefore, rejected.

11/- The other submission of the learned counsel for the petitioner that in view of the Full Court judgment of this Court delivered in case titled Kuldip Khuda & Ors v. Masud Ahmad Choudhary & Ors, the jurisdiction of this Court is protected, is not only misconceived but misdirected also, in that, the judgment rendered in the case is passed prior to the abrogation of Article 370 of the Constitution in terms whereof the Union Territory of Jammu and Kashmir and Union Territory of Ladakh were a State with special privileges. It needs no emphasis to record that on the application of the Jammu and Kashmir Re-organization Act, 2019, all the Central Laws have been made applicable to the erstwhile State of Jammu and Kashmir. Therefore, the judgment referred to by the learned counsel is no more applicable.

12/- From the above discussion what emerges is that this Court, cannot entertain a petition raising a service dispute of the employee in the service of the Government of India or the Government of Union Territory of Jammu and Kashmir and Ladakh.

13. Since the petition is listed before this Court for the first time and the remedy is already available for consideration, therefore, this submission of the learned counsel for the petitioner, having no merit, shall stand rejected.

14/- The court, in view of above, holds that this Court has no jurisdiction to entertain the petition and the same be, instead, presented before the CAT Bench, Jammu that has the jurisdiction.

15. Learned counsel for the petitioner submits that since the CAT, Bench Jammu is closed on account of winter vacation, and the vacation Bench is available from 1[st] of January, 2021, therefore, the Registrar, CAT, Bench, Jammu may be directed to list the matter before vacation Bench. Prayer granted and petitioner is given liberty to approach the CAT, Bench, Jammu for the relief claimed in this petition with direction to Registrar CAT Bench, Jammu to list the matter before vacation Bench.

Registry to convey the order to CAT, Bench, Jammu as also to learned counsel for the petitioner through e-mail.

Disposed of along with connected CM(s).

Srinagar 31.12.2020 Mohammad Yasin Dar

(Ali Mohammad Magrey) Judge