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2013 DIGILAW 437 (JK)

Ab. Gani Thekry v. Union Of India

2013-07-26

DHIRAJ SINGH THAKUR

body2013
1. On the asking of the court, Mr Makroo, learned ASGI, appeared on behalf of respondents. 2. Petitioner is holding the post of Sub Post Master in Post and Telegraphs Department, presently posted in SPM Badyar Bala. He challenges his order of transfer dt. Ist of July 3 whereby he stands transferred from Badyar Bala to PA Beerwah, against a vacant post, on various grounds. 3. Mr Makroo, ASGI, at the very outset objected to the maintainability of the writ petition in as much as, according to him, the petitioner ought to have first approached the Central Administrative Tribunal, established under the Administrative Tribunals Act, 1985. 4. Counsel for the petitioner urged that there was no legal impediment in this court in exercising its jurisdiction under Article 226 and in that regard, placed reliance upon a Full Bench judgment of this court reported as Kuldip Khuda and ors v. Masud Ahmad Choudhary and ors, 1994 Vol. 24 JKLR 25 : 2010 (7) JKJ 736 [HC]. 5. With a view to decongest the courts and provide speedy disposal in regard to the resolution of service disputes, the Parliament thought it fit to provide for and establish an alternative forum by way of Administrative Tribunals with exclusive and independent jurisdiction. In order to achieve this object, Part XIV A containing Articles 323-A and 323-B were introduced by way of Constitution (Forty Second Amendment), Act, 1976. 6. Article 323-A clause 2(d) envisaged the exclusion of jurisdiction of all courts except the jurisdiction of the Supreme Court with respect to the disputes or complaints referred to in Clause (1) thereof i.e., the disputes pertaining to the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation or controlled by the Government. 7. Pursuant to the said Constitutional amendment incorporating inter-alia Article 323-A, the Parliament enacted the Administrative Tribunals Act, 1985, and by virtue of notification issued by the Central Government dt. 7. Pursuant to the said Constitutional amendment incorporating inter-alia Article 323-A, the Parliament enacted the Administrative Tribunals Act, 1985, and by virtue of notification issued by the Central Government dt. 28th of Sept'85, the Central Administrative Tribunal was established on 1st of Nov' 85, certain provisions whereof expressly provided that the said Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to inter alia all the service matters concerning recruitment etc. 8. Admittedly, 42nd amendment of the Constitution does not extend to the State of Jammu and Kashmir. Full Bench Judgment in the case of Kuldip Khuda v. Masud Ah. Choudhary: 9. A petition came to be filed in this court by the petitioners Kuldip Khuda and others, seeking seniority and relief for appointment to the IPS Cadre. A preliminary objection was raised regarding the maintainability of the petition on the ground that the jurisdiction of this court to issue a writ, order or direction under Sec. 103 of the Constitution of Jammu and Kashmir read with Article 226 of the Constitution of India, was taken away by the enactment of `The Administrative Tribunal Act, 1985', under which the Central Administrative Tribunal was constituted for adjudicating the disputes regarding the service matters etc, of the employees of the Central Government. 10. The writ court in the above case held that the Administrative Tribunals Act, 1985, or the constitution of the Central Administrative Tribunal under the said Act, did not affect the jurisdiction of the High Court in entertaining the writ petition even in respect of central government employees as Article 323-A of the Constitution of India was not applied at any time to the State of Jammu and Kashmir. 11. A Letters Patent Appeal was preferred against the judgment passed by the writ court. The Letters Patent Bench, then referred the matter for determination to a larger Bench. 12. A Full Bench of this court, while deciding the issue, in paragraph 38 of the judgment in the aforementioned case held as under:- "38. We have already indicated that the Administrative Tribunal Act, 1985, though extends to whole of India, would still not affect the constitutional jurisdiction of this court in entertaining the writ `petitions concerning the service matters of the employees of the central government. We have already indicated that the Administrative Tribunal Act, 1985, though extends to whole of India, would still not affect the constitutional jurisdiction of this court in entertaining the writ `petitions concerning the service matters of the employees of the central government. Applicability of the Act is different than the destruction of the Constitutional jurisdiction of this court by the Act. While the employees of the central government etc. posted in the state of Jammu and Kashmir may have been provided a forum for quick and early disposal of their grievances in respect of service matters, they still retain the choice to approach this court under section 103 of the State Constitution by filing a writ petition and praying for an appropriate writ, order or direction for the redressal of their grievances. The Tribunal in these circumstances will be an additional or alternative forum and not an exclusive forum." 13. The vires of Clause 2(d) of Article 323-A and 323-B, to the extent they excluded the jurisdiction of the High Courts and the Supreme Courts under Articles 226, 227 and 32 of the Constitution came to be challenged and were finally struck down by a Constitution Bench of the Apex Court in the case reported as L. Chandra Kumar v. Union of India and others, AIR 1997 SC 1125 . It was held that the jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of the Constitution. It was further held that the Tribunals created under Articles 323 A and 323 B of the Constitution possessed the competence to test the constitutional validity of statutory provisions and rules and all the decisions of these Tribunals would, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction, the concerned Tribunals fell. 14. What is important is the view expressed by the Constitution Bench in paragraph 99, which is reproduced herein-below:- "................ The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. 14. What is important is the view expressed by the Constitution Bench in paragraph 99, which is reproduced herein-below:- "................ The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal........." 15. The Apex Court, yet again in the case reported as Kendriya Vidyalaya Sangathan and another v. Subash Sharma, 2002 AIR SCW 1105, following the Constitution Bench judgment in the case of L. Chandra's case (supra), held in paragraph 13 of the judgment in the aforementioned case as under:- "In view of the clear pronouncement of this court, the High Court erred in law in directly entertaining the writ petitions concerning service matters of the employees of the Kendriya Vidyalaya as these matters come under the jurisdiction of the Administrative Tribunal. We, therefore, hold that the High Court committed an error by declining to transfer the writ petition to the Central Administrative Tribunal. Consequently, we set aside the impugned orders and direct the High Court to transfer both the writ petitions to the Central Administrative Tribunal. Chandigarh Bench which may, in its turn, make over the case to the circuit Bench in the State of Jammu and Kashmir for disposal in accordance with law." 16. Following the ratio of the judgments rendered by the Apex Court in the aforementioned cases, it is clear that the petitioner in the present case, ought to have first approached the Central Administrative Tribunal before directly rushing to this court under Article 226 of the Constitution of India read with Sec. 103 of the Constitution of Jammu and Kashmir. 17. For the reasons mentioned above, this petition along with connected IA is, therefore, dismissed.