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2003 DIGILAW 170 (JK)

Badri Nath Bhat v. State Of J. &K.

2003-05-28

SYED BASHIR-UD-DIN

body2003
1. Petitioners are employees of the Central Government working in Directorate of census operations J&K at Srinagar/Jammu. They have filed this writ petition with prayer for promotion as Assistant Directors from retrospective date(s) with further prayer for consequential benefits. Counter affidavit is filed by the official respondents. 2. Mr. Bhan submits that this case concerns service dispute of the employees of Ministry of Home Affairs posted in J&K State, which dispute falls within the jurisdiction of the Central Administrative Tribunal (CAT). 3. This writ petition on the file of this court is prayed to be transferred to the Central Administrative Tribunal. 4. Learned counsel for the petitioners contests the position and submits that the jurisdiction of this court is not ousted once the petitioners have elected to file writ petition and pursue same before this High Court. The case cannot be transferred to CAT. The reliance is placed on Kuldip Khuda case (1994 JKLR 25). The controversy raised in this case is squarely covered by the authoritative pronouncement of Supreme Court in Kenydriya Vidyalaya Sangathan Vs. Subhas Sharma with another appeal (2002 AIR SCW 1105). The Supreme Court after taking note of the judgment of this court in Kuldip Khuda™s case (supra) has observed:- "In view of the above legal provision, we hold that the Act applied to all categories of Central Government servants and others posted to work in the State of Jammu and Kashmir as well. We are, therefore, of the opinion that the contention of Mr. B.D. Sharma, learned counsel for the respondent has no force. We may add here that the Full Bench of the High Court in Kuldip Khuda™s case (supra) has also taken the view that the Act extends to the whole of India which includes the State of Jammu and Kashmir." 5. In the context of para 18 of the judgment while referring to Chandra Kumar™s case (1997 (3) SCC 261) wherein the Apex Court struck down the clause 2 (d) of the Article 323-A in holding that there can be no embargo on the constitutional jurisdiction of the judicial review in the High Court(s) and the Supreme Court, in para 19 it is observed:- "I must say that the decision in Chandra Kumar™s case is a product of judicial craftsmanship and a landmark in the development of constitutional law in our republic. Even if this judgment does not ipso facto apply to the J&K State Constitution, there is no apparent reason why the ratio of this judgment should not be applied to the exercise of jurisdiction by J&K High Court under Sections 103 and 104 of J&K Constitution. The wholesome principle evolved by this Court in Chandra Kumar could be extended to Sections 103 and 104 as well; otherwise it would lead to an anomalous result of the Central Government servants/ employees of Central Government controlled Corporations, etc. working in J&K being left with the option of bypassing the Tribunal, without falling in line with their counterparts working elsewhere". Accordingly this petition is transferred to the CAT Chandigarh Bench which may entrust the case to the circuit Bench in the State of J&K for disposal. Disposed of.