HC rules it has no jurisdiction to hear service matters

J&K High Court Wednesday directed its Registrars (Judicial) at Srinagar and Jammu wings not to entertain any service matter of the UT or the central government employees. The court said the remedy for such matters was the Central Administrative Tribunal (CAT) Bench Chandigarh, “subject to further availability of a Bench in J&K and Ladakh”.

Disposing of a petition challenging transfer of a medical officer, a bench of Justice Ali Muhammad Magrey held that the “High Court has no jurisdiction to entertain the petition and the same be presented before the CAT Chandigarh.”

“Article 323-A and Article 323-B for establishment of various tribunals was introduced in the Constitution by its (42nd Amendment) Act, 1976. Under Article 323-A, the 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),” the court said.

The Court passed the order after hearing Advocate General (AG) D C Raina, Additional Advocate General Shah Aamir, ASGI Vishal Sharma and counsel for the petitioner, Iqbal Dar.

At the very outset, the AG raised an objection on the maintainability of the petition.   “Pursuant to the abrogation of Article 370 and formation of UTs of J&K and Ladakh in terms of the provisions of the J&K Reorganization Act, 2019, all service matters of the government employee(s) in the said UTs upon issuance of the notification dated 29 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” he said.

Counsel for the petitioner, however, submitted that “changed scenario” does not take away the jurisdiction of the High Court as the same is “protected” in terms of the mandate of the judgments rendered by the Constitutional Bench of the Supreme Court in case titled L Chandra Kumar vs. Union of India and others and in case titled Kendriya Vidyalaya Sangathan and another v. Subhash Sharma.

He submitted that the High Court has the jurisdiction to consider the case in terms of clause (b) of sub- section (2) of Section 1 of The Administrative Tribunals Act, 1985.

He also contended that in view of the Full Bench judgment of J&K High court rendered in Kuldeep Khoda and Others vs. Masood Ahmad Choudhary & Others, the CAT has the additional or an alternative jurisdiction.

The AG however submitted that clause (b) of sub-section 2 of the Section 1 of the Administrative Tribunals Act, 1985 related to the pre-abrogation era of Article 370, therefore, not applicable.  The judgments referred to by the petitioner’s counsel, he said, also relate to the same period, and are not applicable to the case in hand.

After hearing the arguments, the court held: “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.”

With regard to the submission that the Full Court judgment passed in case of Kuldip Khuda & Ors protected the jurisdiction of High Court, the single bench held: “It is not only misconceived but misdirected.  The judgment rendered in the case is passed prior to the abrogation of Article 370 of the Constitution in terms whereof the UT of  J&K and Union Territory of Ladakh were a State with special privileges.”

On the application of the Jammu and Kashmir Re-organization Act, 2019, the court said, all the central laws have been made applicable to the erstwhile State of J&K. “Therefore, the judgment referred to by the counsel is no more applicable”.

Counsel for the petitioner raised the issue of the Notification dated 29 April, 2020, which provides for hearing and consideration of services matters of UTs of J&K and Ladakh by the Chandigarh Bench of CAT. He said this was not applicable to the instant case as the order impugned was dated 6April, 2020 and the petition was filed much earlier to the notification date. The AG  however contended that the relevant date for determining such issue would be the date of consideration of the case before the court and not the date of filing.

“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,” the court said.

Meanwhile the Court asked its Registrar Judicial at Srinagar wing to ensure wide publicity of this judgment for the information of all concerned through electronic and print media.

The court directed the Registry to furnish a copy of its order to the chairman CAT, Principal Bench, New Delhi for information, besides to the Chief Secretary of J&K.