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2021 DIGILAW 346 (JK)

Basharat Hussain Wani v. State of J. K.

2021-07-19

ALI MOHAMMAD MAGREY

body2021
JUDGMENT : 1. The Petitioner, in the Petition in hand, has prayed for the grant of following relief(s) in his favour: “A. Certiorari for quashing the impugned selection list issued by the respondents on 2.1.2015 without showing the name of the petitioner and process the selection afresh under relevant rules. B. Mandamus directing the respondents to maintain the candidature of the petitioner on the basis of his eligibility under handicapped category and arrange for a specialized interview by a board/ committee comprising of expert members to assess his abilities. C. Mandamus commanding to provide all the facilities to the handicapped children by implementing the provisions of “J&K Persons with Disability (Equal Opportunities Protection of rights and Full Participation) Act 1998 read with SRO 126 of 1994. The Government has also formulated “J&K Persons with Disability (Equal Opportunities Protection of rights and Full Participation) Rules, 2003 and applicable Circulars and Orders on the subject. D. Mandamus commanding the respondents to produce the records in the court of law for the perusal of the case history and background of taking the illegal and mala fide action in an arbitrary manner. E. Any other Writ, order or direction which this Hon’ble Court may deem just and proper in the circumstances of the case though not prayed for be also passed in favour of the Petitioner and against the Respondents.” 2. The case of the Petitioner, put in a nutshell, is that he applied to advertisement notice No. CEOB/INT/Adv/14/22349 dated 5th of February, 2014 issued by the Respondents for making selection against available Class-IV vacancies in the School Education Department, District Budgam, as a specially abled child being deaf and dumb by birth. It is stated that, thereafter, in terms of notice No. CEOB/IMW/14/19453-54 dated 11th of October, 2014, the Petitioner, along with other eligible candidates, were called for interview. Subsequently, selection list is stated to have been published by the Respondents on 2nd of January, 2015, wherein the name of the Petitioner did not figure. This selection list issued by the Respondents is assailed by the Petitioner in the instant Petition on the grounds detailed out in the Petition. 3. Learned counsel for the Petitioner submitted that in terms of rules the Respondents were obliged in law to operate the reservation of 3% for handicapped candidates among three categories viz. This selection list issued by the Respondents is assailed by the Petitioner in the instant Petition on the grounds detailed out in the Petition. 3. Learned counsel for the Petitioner submitted that in terms of rules the Respondents were obliged in law to operate the reservation of 3% for handicapped candidates among three categories viz. (i) persons with locomotor disability 1%; (ii) persons with ocular disability 1%; and (iii) persons having deaf and dumb disability 1%, however, the Respondents, while making the aforesaid selection, have ignored the category of Deaf and Dumb candidates, like the Petitioner, by not including even one candidate from this category. It is further submitted that the Petitioner has been superseded by lesser qualified candidates and, by doing so, a serious prejudice has been caused to the rights of the Petitioner. 4. Objections stand filed on behalf of the Respondents. It is stated that the selection process in question has been conducted by the Respondents in tune with the mandate of rules and guidelines governing the subject, whereafter, list of meritorious candidates with good performance in viva-voce (interview) as well as having regard to their academic qualification was framed and published in the Daily ‘Greater Kashmir’ on 2nd of January, 2015. 5. 5. At the very outset, what requires to be stated herein this Petition is that in view of the present constitutional set up of Jammu and Kashmir and Ladakh, introduced in terms of the Constitutional (Application of Jammu and Kashmir) Order, 2019 (C.O. 272) dated 5th August, 2019 read with the Declaration made by the President of India under Article 370(3) of the Constitution in terms of Notification G.S.R. 562(E) (C.O.273) dated 6th August, 2019; the relevant provisions of the Jammu and Kashmir Reorganization Act, 2019 (No.34 of 2019), particularly the Fifth Schedule appended thereto; the provisions of the Central Administrative Tribunals Act, 1985, particularly Sections 14, 28 and 29 thereof; the judgment of the Supreme Court in ‘L. Chandra Kumar v. Union of India’, (1997) 3 SCC 261 ; and the Notification No. G.S.R. 317(E) dated 28th May, 2020, issued in exercise of the powers conferred by sub-section (7) of Section 5 of the Administrative Tribunals Act, 1985, by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), New Delhi, specifying Jammu and Kashmir as the places at which the Benches of the Central Administrative Tribunal shall ordinarily sit for the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, read with notification No. G.S.R. 318(E) dated 28th May, 2020 issued by the said Ministry in exercise of the powers conferred by sub-section(1) of Section 18 of the said Act relating to the jurisdiction of the Jammu Bench of the Tribunal, the jurisdiction to hear service petitions, as a Court of first instance, lies with the Central Administrative Tribunal constituted under the provisions of the Administrative Tribunals Act, 1985. 6. Looking at the relief prayed for by the Petitioner in the instant Petition, as extracted in Paragraph No.01 of this Order hereinabove, from the above perspective, it is evident that the Petitioner has assailed the selection made by the Respondents against the available Class-IV posts of the School Education Department of the Government of Jammu and Kashmir as put to advertisement in terms of advertisement notice dated 5th of February, 2014. Section 14 (1) (a) of the Administrative Tribunals Act, 1985 envisages that the Central Administrative Tribunal shall exercise all the jurisdiction, powers and authority in relation to recruitment and matters concerning recruitment to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being in either case, a post filled by a civilian. The posts, subject matter of the instant Petition, clearly come within the import and purport of a ‘civil post’ and, thus, squarely covered by Section 14 (1) (a) of the Central Administrative Tribunals Act, 1985. That being the position, the jurisdiction to hear this Petition, as a Court of first instance, therefore, lies with the Central Administrative Tribunal constituted under the provisions of the Administrative Tribunals Act, 1985. 7. Accordingly, in terms of Section 29 of the Act aforesaid, this case is transferred for further proceedings to the Central Administrative Tribunal, the Court of first instance, having its place of sitting at Srinagar, notified vide Notification No. G.S.R. 317(E) dated 28th of June, 2020, issued by the Central Government under Section 5(7) of the Administrative Tribunals Act, 1985. However, since there is only one Bench of the Central Administrative Tribunal established so far with regard to the Union Territory of Jammu and Kashmir, which is presently holding its sitting at Jammu, the learned Registrar (Judicial) is directed to transmit the record of this Petition to the Central Administrative Tribunal, presently holding sittings at Jammu, retaining a soft copy thereof. 8. The parties are directed to appear before the Registrar, Central Administrative Tribunal, Jammu Bench, on 6th of September, 2021 for further proceedings. 9. Registry to forthwith send a copy of this Order to the learned appearing counsel for the parties. 10. Disposed of as above, along with the connected CM.