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2020 DIGILAW 236 (JK)

Zahida Tabasum v. Union Territory of J&K

2020-06-03

SANJAY DHAR

body2020
JUDGMENT The instant writ petition has been filed by the petitioner, claiming various reliefs which are reproduced as under :- “(i) Writ of Mandamus:- The respondents be directed to relieve and also issue NOC in favour of the petitioner for undergoing PG course in pursuance of their merit cum selection list dated 03.05.2020 whereby the petitioner is figuring at Serial No. 493 in the said merit list drawn by the BOPEE and the respondents be also directed to allow the petitioner to join the course on deputation basis with all consequential benefits, as same shall serve the interests of justice. (ii) Any other writ, order or direction which this Hon’ble Court may deem fit in the circumstances of the case may also be passed in favour of the petitioner against the respondents in the interest of justice.” 2. The case of the petitioner is that she came to be selected as Medical Officer vide Government order bearing No. PSC/EXAM/84/2018 dated 20.12.2018, in consequence whereof, she was appointed as Medical Officer vide order No. 49-HME of 2019 dated 14.01.2019. 3. It is averred that the petitioner is desirous to go for PG Course and, accordingly, she applied for No Objection Certificate ( in short, NOC) from the department but when the same was not issued by the department, she applied directly for undergoing PG Course and got selected under Scheduled Tribe (ST) Category in the discipline of Microbiology. 4. It is also averred that the petitioner again approached her parent department for NOC, but the same has been refused, compelling her to file the instant writ petition. 5. Learned counsel for the respondents after putting in his appearance has filed objections to the writ petition and has raised a preliminary objection with regard to maintainability of the writ petition. According to the respondents, the writ petition is not maintainable, as the High Court lacks jurisdiction to entertain and decide the service matters pertaining to government employees of the UnionTerritory of the Jammu and Kashmir. The respondents have relied upon the Notification No. G.S.R. 318 (E) dated 28.05.2020 issued by the Government of India, whereby a permanent bench of the Central Administrative Tribunal ( hereinafter referred to as ‘the CAT’) stands established at Jammu having jurisdiction over the Union Territories of Jammu and Kashmir and Ladakh. 6. The respondents have relied upon the Notification No. G.S.R. 318 (E) dated 28.05.2020 issued by the Government of India, whereby a permanent bench of the Central Administrative Tribunal ( hereinafter referred to as ‘the CAT’) stands established at Jammu having jurisdiction over the Union Territories of Jammu and Kashmir and Ladakh. 6. On the issue of maintainability of the writ petition, learned counsel for the petitioner has contended that even after the establishment of the CAT in terms of the above notification, the High Court, in exercise of its powers under Articles 226 & 227 of the Constitution of India, continues to possess jurisdiction to entertain and hear the service matters of the employees of the UT of Jammu and Kashmir. In support of his contention the learned counsel has relied upon the judgments of the Hon’ble Supreme Court rendered in cases titled, S.P. Sampath Kumar Vs. Union of India, (1987) 1 SCC 124 and “L. Chandra Kumar Vs. Union of India, (1997)3 SCC 261 . 7. I have heard learned counsel for the parties on the question of maintainability of the writ petition and considered the matter. 8. It is an admitted position that upon coming into force of the Jammu and Kashmir Re-organization Act 2019 (hereinafter referred to as ‘the Re-organization Act), the Administrative Tribunals Act, 1985 (hereinafter referred to as ‘the Act’) has become applicable to UTs of Jammu and Kashmir and Ladakh w.e.f. 31.10.2019 and as a sequel thereto vide Notification No. G.S.R. 318 (E) dated 28.05.2020 published in the Gazette of India, a Bench of CAT stands established at Jammu with its jurisdiction extending to UTs of Jammu and Kashmir and Ladakh. 9. Once a Tribunal under provisions of the Act is established, the jurisdiction of all Courts including the High Court to entertain and hear service matters of employees of the State/ UnionTerritory is taken away and vested with the Tribunal. S.28 of the Act is relevant to the context in this regard. The same reads as under:- 28. 9. Once a Tribunal under provisions of the Act is established, the jurisdiction of all Courts including the High Court to entertain and hear service matters of employees of the State/ UnionTerritory is taken away and vested with the Tribunal. S.28 of the Act is relevant to the context in this regard. The same reads as under:- 28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution.-On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except- (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.” 10. From a perusal of the above quoted provision, it becomes clear that on and from the date when jurisdiction, powers and authority becomes exercisable by a Tribunal constituted under the Act, the jurisdiction in respect of the matters mentioned in the above provision, of all Courts except the Hon’ble Supreme Court and Industrial Tribunal/Labour Court stands ousted. The bar to the jurisdiction of all Courts including the High Court in respect of the matters enumerated in the afore quoted provision including in respect of service matters is total and unqualified. 11. The word “service matters” is defined in Section 3 (q) of the Act in the following manner:- (q) “service matters”, in relation to a person, means all matters relating to the conditions of his service 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, as the case may be, of any corporation [or society] owned or controlled by the Government, as respect- (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever;” 12. Let me now advert to the question whether the dispute raised in the instant petition attracts the provision contained in S.28 of the Act. So far as the instant matter is concerned, the same relates to the service conditions of the petitioner, who happens to be an employee of the Government of UT of the Jammu and Kashmir. Thus, the subject matter is squarely covered by the definition of the service matters. Even otherwise, no dispute has been raised on this question by the petitioner. 13. Once it is clear that the subject matter of the instant writ petition is covered by the definition of service matters, the provision contained in Section 28 of the Act comes into play and the jurisdiction of this Court to entertain the writ petition stands ousted. 14. Reliance placed by the learned counsel for petitioner upon the aforestated judgments of the Hon’ble Supreme Court is misplaced. In S.P. Sampath Kumar’s case (supra), the Hon’ble Supreme Court has observed that if Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court, there must be a permanent or Circuit Bench of the Administrative Tribunal at every place, where there is a seat of the High Court. Vide aforesaid Notification dated 28.05.2020, the Government of India has established a permanent Bench of the CAT at Jammu and has provided for sittings of the Bench at Srinagar as well. Thus, it cannot be said that there is absence of an effective or efficacious substitution of the High Court, whose seats are located at Jammu and Srinagar. It is not a case, where there is non availability of a circuit or permanent Bench at Jammu or Srinagar. The reliance placed by the learned counsel for the petitioner on the observations of the Hon’ble Supreme Court is, therefore, misplaced. 15. In L. Chandra Kumar’s case (supra), the Hon’ble Supreme Court has observed that the jurisdiction conferred upon the High Courts under Articles 226 & 227 of the Constitution of India being a part of inviolable basic structure of our Constitution, the same cannot be ousted. 15. In L. Chandra Kumar’s case (supra), the Hon’ble Supreme Court has observed that the jurisdiction conferred upon the High Courts under Articles 226 & 227 of the Constitution of India being a part of inviolable basic structure of our Constitution, the same cannot be ousted. The Hon’ble Supreme Court has further observed that by holding that all decisions of the Tribunals will be subject to jurisdiction of the High Courts under Articles 226 & 227 of the Constitution of India before a Division Bench of the High Court within whose territorial jurisdiction, the Tribunal concerned falls will serve two purposes. Firstly it will save the judicial review of legislative action vested in the High Courts under Articles 226 & 227 of the Constitution and secondly it will ensure filtering of frivolous claims through the process of adjudication in the Tribunal. The Hon’ble Supreme Court while making these observations has laid down guideline that a service dispute must be taken to the Administrative Tribunal as a Court of first instance and thereafter, the decision of the Tribunal can be subjected to judicial review by the Division Bench of the High Court in exercise of its powers under Articles 226 & 227 of the Constitution of India. 16. In the instant case, the petitioner has approached the High Court directly without availing the effective and efficacious remedy of approaching the CAT, which, as already stated, stands established vide Notification dated 28.05.2020 and even prior to that, vide Notification No. GSR 267 (E) dated 29.04.2020, the Chandigarh Bench of the CAT was conferred with the jurisdiction over the UTs of the Jammu and Kashmir and Ladakh. So it is not a case, where the petitioner does not have an alternative efficacious remedy but it is is a case where the petitioner has invoked the writ jurisdiction of this court without availing the alternative remedy of approaching the CAT. Therefore, this is not a fit for exercise of jurisdiction under Articles 226 & 227 of the Constitution of India by this Court. 17. For the foregoing reasons, it is concluded that this Court lacks jurisdiction to entertain and hear the instant writ petition. The same is, accordingly, held to be not maintainable and is dismissed as such. The petitioner is, however, at liberty to approach the CAT for redressal of her grievance, if any.