Ravinder Kour And Ors vs Ut Of Jk And Ors
2021 Latest Caselaw 424 j&K/2

                                                                 Serial No. 134

                                                                   Suppl. list


          IN THE HIGH COURT OF JAMMU AND KASHMIR
                         AT SRINAGAR
                      (Through Virtual Mode)

                                                         CM No. 2129/2021 in
                                                         WP(C) No. 725/2021
                                                         CM No. 2130/2021


Ravinder Kour and Ors.
                                                               ... Appellant(s)

                                   Through: - Mr. N. A. Tabasum, Advocate
                            V/s

UT of JK and Ors.
                                                               ... Respondent(s)

                                   Through: Mr. B. A. Dar, Sr. AAG

       Hon'ble Mr Justice Ali Mohammad Magrey, Judge
                                   ORDER

12.04.2021

CM No. 2129/2021

For the reasons mentioned in the application, coupled with submissions

made at the Bar, the instant application is allowed and the applicant is permitted to

file the instant petition without enclosing therewith the requisite Stamp duty, Court

fee, attestation of documents, etc. It is, however, directed that the said deficiency

shall be immediately made good by the applicant, as and when the Court functions

in physical mode

Disposed of.

WP(C) No. 725/2021, CM No. 2130/2021

1. By the present writ petition, the petitioners seek quashment of

impugned Government order No. 200-JKJSD of 2020 dated 15.10.2020

issued by Secretary to Government Jal Shakti Department with further direction upon respondents that they place the petitioners in the Higher Pay

Scale of Rs. 5150-8300 (Pre-revised) retrospectively.

2/- At the very outset Mr B. A. Dar, learned Sr. AAG, raised

an objection about the maintainability of the writ petition before this Court

in view of the fact that pursuant to the abrogation of Article 370 of the

Constitution of India, and formation of the Union Territory of Jammu &

Kashmir and Ladakh in terms of the provisions of the Jammu and

Kashmir Reorganization Act, 2019, all service matters of the Government

Employee(s) in the said Union Territories, upon issuance of the

Notification dated 29th 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, "hereinafter for short as CAT" within whose

jurisdiction the matter now falls.

3/- Confronted with the said position, the learned counsel for the

petitioner submits that changed scenario does not take away the

jurisdiction of this court as the same is protected in terms of the mandate

of the judgments rendered by the Constitutional Bench of the Hon'ble

Supreme Court in case titled L. Chandra Kumar v. Union of India and

others reported as (1997) 3 SCC p. 261 and in case titled Kendriya

Vidyalaya Sangathan and another v. Subhash Sharma etc. reported as AIR

SCW 2002 (2) p. 1105.

4/- The learned counsel for the petitioners further submits that this Court

has the jurisdiction to consider the case in terms of clause (b) of subsection

(2) of Section 1 of The Administrative Tribunals Act, 1985.

5/- The learned counsel for the petitioner further contends that in view

of the Full Bench judgment of this court rendered in Kuldeep Khoda & Others v. Masood Ahmad Choudhary & Others (1994) JKLR p. 25, the

CAT has the additional or an alternative jurisdiction and not the exclusive

one and in that view of the matter the jurisdiction of this Court is not

deposed. The learned counsel for the petitioner heavily emphasized on

paragraph no. 4 of the judgment of Hon'ble Supreme Court delivered in

case titled "Kendriya Vidyalaya Sangathan v. Subhash Sharma" in

support of his submissions.

6/- The leaned Senior Additional Advocate General, submits that the court

may appreciate that there are two sides to the story one that is being referred

to by the learned counsel for the petitioner relates to the period when Article

370 of the Constitution of India was subsisting and the Jammu & Kashmir

was having the status of a State and the other part of the story relates to

the present era when the Jammu & Kashmir has been formed into two

Union Territories and the Article 370 of the Constitution of India is

abrogated. The learned Senior Additional Advocate General further submits that

clause (b) of sub-section 2 of the Section 1 of The Administrative Tribunals Act,

1985 also relates to the pre-abrogation era of Article 370, therefore, not applicable.

He submits that the judgments referred to by the learned counsel also relate to the

same period, therefore, are not applicable to the case in hand.

7/- I have heard learned counsel for the parties and considered the

submissions made.

8/- Admittedly, the petitioners are Government Employee in the Union

Territory of Jammu and Kashmir. Article 323-A and Article 323-B for the

establishment of various Tribunals was introduced in the Constitution by

its (42nd Amendment) Act, 1976. Under Article 323-A of the Constitution,

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).

9/- In order to appreciate the submissions made by the learned counsel

for the parties, it has become necessary to take a look at the relevant

provisions of law governing the subject. In the first instance, clause (b) of

sub-section (2) of Section 1 of the Administrative Tribunals Act, 1985 is

taken note of hereunder:

"1. Short title, extend and commencement.-....

       (b)     in      so   far    as     it     relates   to      Administrative
       Tribunals      for  States,  to     the    whole    of    India,   except
       the State of Jammu and Kashmir."

10/- The plain reading of the provision of law makes it clear that the

same talks of the State of Jammu and Kashmir which now stands formed

into two different Union Territories, therefore, the submission made by

the learned counsel that the Act is not applicable to the Jammu and

Kashmir is unfounded, therefore, rejected.

11/- The other submission of the learned counsel for the petitioners that

in view of the Full Court judgment of this Court delivered in case titled

Kuldip Khuda & Ors v. Masud Ahmad Choudhary & Ors, the jurisdiction

of this Court is protected, is not only misconceived but misdirected also,

in that, the judgment rendered in the case is passed prior to the abrogation

of Article 370 of the Constitution in terms whereof the Union Territory of

Jammu and Kashmir and Union Territory of Ladakh were a State with

special privileges. It needs no emphasis to record that on the application

of the Jammu and Kashmir Re-organization Act, 2019, all the Central

Laws have been made applicable to the erstwhile State of Jammu and

Kashmir. Therefore, the judgment referred to by the learned counsel is no more

applicable.

12/- From the above discussion what emerges is that 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.

13. 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.

14/- The court, in view of above, holds that this Court has no jurisdiction

to entertain the petition and the same be, instead, presented before the

CAT Bench, Jammu that has the jurisdiction.

15. Petitioners are given liberty to approach the CAT, Bench, Jammu for the

relief claimed in this petition with direction to Registrar CAT Bench, Jammu to

list the matter before the Bench as and when the petitioners approach the CAT,

Bench, Jammu for decision.

Disposed of along with connected CM(s).

(Ali Mohammad Magrey) Judge Srinagar 12.04.2021 Mohammad Yasin Dar

MOHAMMAD YASIN DAR 2021.04.15 15:42 I attest to the accuracy and integrity of this document