Jammu & Kashmir High Court - Srinagar Bench
Faizan Ahmad Zargar And Anr vs Ut Of Jk And Ors on 10 December, 2021
Serial No. 23
Supplementary cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM No. 8096/2021 in
WP(C) No. 2568/2021
CM No. 8097/2021
Faizan Ahmad Zargar and Anr.
..... Petitioner(s)
Through: -
Mr. Syed Musaib, Advocate
V/s
UT of JK and Ors.
..... Respondent(s)
Through: -
Ms. Asifa Padroo, AAG
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Mohd Akram Chowdhary, Judge
Order
10.12.2021
(Oral)
CM No. 8096/2021
On the set of facts and grounds urged, coupled with the submissions
made at Bar, the instant application is allowed and applicants are permitted to
file the instant petition without attaching the certified copy of the order dated
06.12.2021.
CM disposed of.
WP(C) No. 2568/2021
The petitioners in the instant petition, have challenged the order dated
06.12.2021, passed by the CAT Bench, Srinagar (hereinafter referred to as
CAT Bench, Srinagar) in OA No. 1758/2021 with consequent challenge of
the impugned order bearing No. PSC /Lit/J-1/2021 dated 25.11.2021, issued
by respondent Public Service Commission (for short the Commission) with
further direction to entertain the candidature of the petitioners for the post of
Assistant Registrar, Cooperative Societies, advertised in terms of
advertisement Notice No. 05-PSC(DR-P) of 2021 dated 11.05.2021, by the
Commission on the grounds detailed out in the petition.
Brief facts:-
The respondent Public Service Commission vide Notification No. 05-
PSC (DR-P) of 2021 dated 11.05.2021, invited the applications through online
mode from the eligible candidates who are domiciled in the UT of J&K,
possessing the prescribed/Academic professional qualification and age for the
post of Assistant Registrar Cooperative Societies, in terms of the J&K
Cooperative (Gazetted) Service Recruitment Rules, 1976, issued vide SRO
591 dated 07.10.1977 as amended from time to time and J&K Probationer
(Conduct of Service, Pay & Allowance) and Fixation of Tenure Rules, 2020,
notified vide S.O. 192 of 2020 dated 17.06.2020 and J&K Public Service
Commission (Business and Procedure) Rules, 2021.
The petitioners (already registered with JKPSC) being fully eligible
(petitioner No. 1, a Ph.D scholar and petitioner No. 2, Post Graduate student
and desirous of applying to the post of Assistant Registrar Cooperative
Societies bonafidely attempted to access the official website of the respondent
Commission on 14.06.2021, before the cutoff date but due to the technical
snag in the system. On 15.06.2021, they attempted again to fill the application
form and submit the same but due the same technical issue the petitioners
could not access the official website of the respondent No. 2.
The petitioners on 16.06.2021, (last date) made another attempt to fill
up the application form in the prescribed format and on the last date
fortunately they could access the official website of the respondent
Commission and accordingly competed the application form (personal
information) and selection of the exam (i.e. Assistant Registrar Cooperative
Societies) through on-line mode before the cutoff date, but the payments
towards the applications were not completed due to technical issues faced by
the petitioners.
It is submitted that it was only the petitioners herein who suffered the
technical issue while submitting the application form, but some other eligible
candidates also faced the similar issue, which facts can be ascertained from
the screenshots of social media handles retrieved from the internet
The petitioners time and again approached the respondents with the
request to allow the petitioners to deposit the application fee and for
acceptance of their candidature for the post of Assistant Registrar Cooperative
Societies, Recruitment Exam through offline mode as the online transactions
failed due to a server error. It is submitted that the entreaties made by the
petitioners to the respondents, no heed was paid to the said requests of the
petitioners by the respondents. It is submitted that the petitioners were left
with no option but to approach the Hon'ble Central Administrative Tribunal,
Jammu Bench, by way of an original application which came to be registered
as OA No. 1700 of 2021. Upon motion hearing the Hon'ble Tribunal after
hearing the matter and perusing the record was pleased to dispose of the OA
with a direction to the respondents to consider the grievance of the applicants,
if any, pending with PSC and take a decision on the same in accordance with
law by passing a reasoned and speaking order with a period of 10 days from
today under intimation to the applicants.
It is submitted that the respondent No. 3, in purported compliance of
the order dated 12.11.2021, passed the impugned order dated 25.11.2021. The
written test for the post of Assistant Registrar Cooperative societies in
Cooperative Department is scheduled to be conducted on 12.12.2021 and the
admit cards for the same shall be available w.e.f. 02.12.2021.
The petitioners approached the Hon'ble CAT Bench, Srinagar,
challenging the order passed by the respondent Commission, on the statement
made by the counsel appearing for respondent Co-operative Department,
wherein it was stated that Co-operative department is a society and an
autonomous authority, therefore, the CAT has no authority to deal with the
matter and only the Hon'ble High Court has the jurisdiction to entertain the
petition and accordingly, the CAT erred in disposing the petition and asking
the petitioners to approach the Hon'ble High Court. The petitioners are
challenged the order of the CAT Bench, Srinagar, on the grounds detailed out
in the petition.
Learned counsel appearing for the petitioners submits that the CAT
Bench, Srinagar, has merely on the statement of counsel appearing for the
respondents that the subject matter pertains to Co-operative Societies,
declined to entertain the OA with reference to no jurisdiction to deal with the
matters pertaining to the Societies. Learned counsel further submits that the
subject matter of the OA has reference to filling up the post of Assistant
Registrar Co-operative Societies borne on the Service of the J&K Co-
operative (Gazetted) Recruitment Rules, 1977. Learned counsel further
submits that the post is to be filled up by open competition having reference
to method of recruitment, provided by recruitment rules, as mentioned above
and is a civil post for all intends and purposes. Learned counsel appearing for
the petitioners submits that the pleadings made and the contentions raised in
the OA were not considered by the CAT Bench, Srinagar, while returning the
OA on the ground of having no jurisdiction.
Ms. Asifa Padroo, learned AAG, was pointedly asked as to how the
post of Assistant Registrar, Co-operative Societies under reference of Public
Service Commission for filling up in terms of recruitment rules above is not
covered for the jurisdiction of the CAT Bench, had no reply. The scheme of
law and the jurisdiction of the CAT, Bench Srinagar, in service matters stands
discussed by this Court and findings recorded while dismissing the writ
petition, directly filed before this Court.
Heard learned counsel for the parties and considered the matter on the
above preliminary question.
Admittedly, the petition relates to claim of the petitioners for
recruitment on the posts of Assistant Registrar Cooperative Societies. Chapter
III of the Central Administrative Act, 1985 (CAT Act), provides for
jurisdiction, powers and authority of the Central Administrative Tribunals.
Section 14 thereunder reads as under:
"14. Jurisdiction, powers and authority of the Central
Administrative Tribunal. -
(1) Save as otherwise expressly provided in this Act, the
Central Administrative 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--
(a) 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;
(b) all service matters concerning--
(i) a member of any All-India Service; or
(ii) a person, not being a member of an All-India
Service or a person referred to in clause (c),
appointed to any civil service of the Union or any
civil post under the Union; or
(iii) a civilian, not being a member of an All-India
Service or a person referred to in clause (c),
appointed to any defence services or a post
connected with defence;
and pertaining to the service of such member, person or
civilian, 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 society owned or
controlled by the Government;
(c) all service matters pertaining to service in
connection with the affairs of the Union concerning a
person appointed to any service or post referred to in sub-
clause (ii) or sub-clause (iii) of clause (b), being a person
whose services have been placed by a State Government
or any local or other authority or any corporation 4 [or
society] or other body, at the disposal of the Central
Government for such appointment.
Explanation.-- For the removal of doubts, it is
hereby declared that references to 'Union' in this
sub-section shall be construed as including
references also to a Union territory.
(2) The Central Government may, by notification, apply with
effect from such date as may be specified in the notification the
provisions of sub-section (3) to local or other authorities within
the territory of India or under the control of the Government of
India and to corporations or societies owned or controlled by
Government, not being a local or other authority or corporation
or society controlled or owned by a State Government:
Provided that if the Central Government considers it
expedient so to do for the purpose of facilitating transition to the
scheme as envisaged by this Act, different dates may be so
specified under this sub-section in respect of different classes of,
or different categories under any class of, local or other
authorities or corporations or societies.
(3) Save as otherwise expressly provided in this Act, the
Central Administrative Tribunal shall also exercise, on and from
the date with effect from which the provisions of this sub-section
apply to any local or other authority or corporation or society, all
the jurisdiction, powers and authority exercisable immediately
before that date by all courts, except the Supreme Court, in
relation to--
(a) recruitment, and matters concerning recruitment, to
any service or post in connection with the affairs of such
local or other authority or corporation or society; and
(b) all service matters concerning a person, other than a
person referred to in clause (a) or clause (b) of sub-section
(1), appointed to any service or post in connection with the
affairs of such local or other authority or corporation or
society and pertaining to the service of such person in
connection with such affairs."
It is thus seen that Section 14, delineating the matters in relation with
which the Tribunals have been prescribed to have the jurisdiction, speaks of
recruitment, and matters concerning recruitment, inter alia, to any civil
service of the Union or a civil post under the Union. The word 'Union' in
terms of Explanation appended under Section 14(1)(c) has reference also to a
Union Territory. The words used are 'civil service' or 'civil post'. The
question is whether the post of Supervisor is a civil post.
It is seen that the post of Assistant Registrar Cooperative Societies is
borne on the Service of the Jammu and Kashmir Co-operative (Gazetted)
Service Recruitment Rules, 1976 issued vide SRO 591 dated 07.10.1977. In
terms of Rule 5 of the Recruitment Rules, recruitment to the posts borne on
the Service are prescribed to be made by direct recruitment, or by promotion,
or partly by direct recruitment and partly by promotion in the ration and in the
manner provided in Schedule-II appended to the Rules. Schedule-II prescribes
the post of Supervisor to be a Class II post under Section-C of the Schedule,
carrying a regular scale of pay. The method of recruitment is prescribed to be
(i) 50% by direct recruitment; (ii) 25% by selection through Departmental
Selection Committee.
It thus transpires from a bare perusal of the Recruitment Rules, that the
post of Assistant Registrar Cooperative Societies, to which the petitioners
herein claim their right to promotion, is a duly sanctioned post borne on a
Civil Service of the Union Territory of the Jammu and Kashmir and meets all
the requirements of being a civil post. That being the position, the claim of the
petitioners, admittedly, relates to the recruitment and/or matters concerning
recruitment to a civil service and/order a civil post under the Union.
Consequently, in terms of the mandate of Section 14 of the CAT Act, it is the
Tribunal which has the jurisdiction as a Court of first instance to exercise all
the jurisdiction, powers and authority vis-à-vis this petition, which were
exercisable by this Court prior to the appointed day.
The view taken hereinabove is supported by the Judgment of the
Coordinate Bench of this Court, rendered in LPA No. 123/2020 titled Abdul
Qayoom Chalkoo Vs. UT of JK and Ors. Paragraphs 9 to 11 being relevant
are extracted as under:-
"09. At the first blush, what requires to be stated is that after His Excellency the President made
the Constitutional (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) dated 5th of
August, 2019 read with the Declaration made under Article 370(3) of the Constitution in terms
of Notification G.S.R. 562(E) (C.O. 273) dated 6th of August, 2019; and after the Parliament
enacted the Jammu and Kashmir Reorganization Act, 2019 (No.34 of 2019), the Government of
India in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel
and Training), New Delhi, in exercise of powers conferred by sub-section (1) of Section 18 of
the Act of 1985, issued Notification G. S. R. 267(E) dated 29th of April, 2020 extending the
jurisdiction of the Central Administrative Tribunal, Chandigarh Bench, inter alia, to the Union
Territories of Jammu and Kashmir, and Ladakh. Subsequently, by another notification, issued
in exercise of the powers conferred by sub-section (7) of Section 5 of the Act of 1985, the said
Department issued Notification No. G.S.R. 317(E) dated 28th of May, 2020, specifying Jammu
and Srinagar 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.
Further, by yet another Notification No. G.S.R. 318(E) of even date, issued by the Central
Government in the Ministry of Personnel, Public Grievances and Pensions (Department of
Personnel and Training), New Delhi, in exercise of the powers conferred by sub-section (1) of
Section 18 of the said Act, the jurisdiction of the Jammu Bench of the Tribunal, was specified to
be the Union Territory of Jammu and Kashmir and Union Territory of Ladakh. In short, the Act
of 1985 stands extended to the two Union Territories (UTs) and a Bench thereof stands
established at Jammu for the two Union Territories.
10. Admittedly, the subject matter of the Writ petition filed by the appellant before the learned
Single Judge is the recruitment process concerning the civil post borne on the service of the
Government of the Union Territory of Jammu and Kashmir. Section 14 of the Act of 1985 falls
in Chapter III, captioned jurisdiction, powers and authority of Tribunals. It reads as under:
"14. Jurisdiction, powers and authority of the Central Administrative Tribunal--
(1) Save as otherwise expressly provided in this Act, the Central Administrative
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--
(a) 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;
(b) all service matters concerning--
(i) a member of any All-India Service; or
(ii) a person, not being a member of an All-India Service or a person referred to in
clause (c), appointed to any civil service of the Union or any civil post under the
Union; or
(iii) a civilian, not being a member of an All-India Service or a person referred to in
clause (c), appointed to any defence services or a post connected with defence;
and pertaining to the service of such member, person or civilian, 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 society owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union
concerning a person appointed to any service or post referred to in sub-clause (ii)
or sub-clause (iii) of clause (b), being a person whose services have been placed by
a State Government or any local or other authority or any corporation 4 [or society]
or other body, at the disposal of the Central Government for such appointment.
Explanation-- For the removal of doubts, it is hereby declared that references to
'Union' in this sub-section shall be construed as including references also to a Union
territory.
(2) The Central Government may, by notification, apply with effect from such date
as may be specified in the notification the provisions of sub-section (3) to local or
other authorities within the territory of India or under the control of the Government
of India and to corporations or societies owned or controlled by Government, not
being a local or other authority or corporation or society controlled or owned by a
State Government
Provided that if the Central Government considers it expedient so to do for the
purpose of facilitating transition to the scheme as envisaged by this Act, different
dates may be so specified under this sub-section in respect of different classes of, or
different categories under any class of, local or other authorities or corporations or
societies.
(3) Save as otherwise expressly provided in this Act, the Central Administrative
Tribunal shall also exercise, on and from the date with effect from which the
provisions of this sub-section apply to any local or other authority or corporation or
society, all the jurisdiction, powers and authority exercisable immediately before
that date by all courts, except the Supreme Court, in relation to--
(a) recruitment, and matters concerning recruitment, to any service or post in
connection with the affairs of such local or other authority or corporation or society;
and
(b) all service matters concerning a person, other than a person referred to in clause
(a) or clause (b) of sub-section (1), appointed to any service or post in connection
with the affairs of such local or other authority or corporation or society and
pertaining to the service of such person in connection with such affairs."
It is, thus, seen that Section 14, delineating the matters in relation with which the
Tribunals have been prescribed to have the jurisdiction, speaks of recruitment, and matters
concerning recruitment, inter alia, to any civil service of the Union or a civil post under the
Union. The word 'Union' in terms of Explanation appended under Section 14(1)(c) has
reference also to a Union Territory. The words used are 'civil service' or 'civil post'. The
subject matter of the Writ petition filed by the petitioner/ appellant herein relates to a duly
sanctioned post borne on a Civil Service of the Union Territory of the Jammu and Kashmir and
meets all the requirements of being a civil post. That being the position, the claim of the
petitioner/ appellant herein, admittedly, relates to the recruitment and/or matters concerning
recruitment to a civil service and/order a civil post under the Union. Consequently, in terms of
the mandate of Section 14 of the Act of 1985, it is the Central Administrative Tribunal which
has the jurisdiction as a Court of first instance to exercise all the jurisdiction, powers and
authority vis-à-vis the petition filed by the petitioner/ appellant before the learned Single Judge,
which were exercisable by this Court prior to the appointed day.
11. Apart from the above, in case titled 'Kendriya Vidyalaya Sangathan & Anr. v. Subhash
Sharma etc.', reported as 'AIR SCW 2002 (2) 1105', a Constitutional Bench of the Hon'ble
Supreme Court was called upon to deal with an issue similar to the one involved herein this
appeal and the Constitutional Bench, at Paragraphs 12 and 13, clearly laid down as:
"12. The Constitution Bench of this Court has clearly held that Tribunals set
up under the Act shall continue to act as the only courts of first instance 'in respect
of areas of law for which they have been constituted'. It was further held that it will
not be open for litigants to directly approach the High Court even in cases where
they question the vires of statutory legislation (except where the legislation which
creates the particular Tribunal is challenged) by overlooking the jurisdiction of the
concerned Tribunal.
13. 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."
From the above position of law enunciated by Hon'ble the Supreme Court, it
becomes axiomatic that the Tribunals set up under the Act of 1985 have been tasked to act as
the only courts of first instance in respect of areas of law for which they have been constituted
and the litigants have been restrained to directly approach the High Court even in cases where
they question the vires of statutory legislation, except where the legislation which creates the
particular Tribunal is challenged, by overlooking the jurisdiction of the concerned Tribunal.
Consequently, in these circumstances, the learned Single Judge could not have entertained a
petition raising a service dispute of the employee borne on the service of the Government of
India or the Government of the Union Territory of Jammu and Kashmir and Union Territory of
Ladakh."
Having regard to the decision rendered by this Court, the post under
reference being civil post, is squarely covered for the jurisdiction of the CAT
Bench, Srinagar.
In view of above, the instant writ petition is allowed and the order
passed by the CAT Bench, Srinagar, on 6th December, 2021 is set aside with
direction to the CAT Bench, Srinagar, to decide the OA afresh on merits.
Learned counsel appearing for the petitioners submits that in case the
petitioners are not allowed to appear in the written examination for the post of
Assistant Registrar Cooperative Societies, advertised in terms of
advertisement notice dated 11.05.2021, till the matter is decided by the CAT
Bench, Srinagar, the petition will become infructuous as the exams are
scheduled to be held on 12.12.2021.
We have considered the submissions of learned counsel for the
petitioners and are of considered view that the petitioners have made out a
case for interim relief, therefore, we direct the respondents 2 to 4 to allow the
petitioners to appear in the written examination for the post of Assistant
Registrar, Cooperative Societies, advertised in terms of advertisement Notice
No. 05-PSC(DR-P) of 2021 dated 11.05.2021, on their own risk and
responsibility.
Registry to send down a copy of this order to CAT Bench, Srinagar, for
compliance.
Disposed of along with connected CM(s).
(Mohd Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
10.12.2021
"Mohammad Yasin Dar"
MOHAMMAD YASIN DAR
2021.12.10 15:24
I attest to the accuracy and
integrity of this document
