Jammu & Kashmir High Court
Irshad Ahmad Malik vs Union Territory Of J&K And Others on 15 February, 2021
Sr. No. 104
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CJ Court
Case: LPA No. 127 of 2020
Irshad Ahmad Malik ...Petitioner(s)/Appellant(s)
Through: Sh. M.A. Bhat, Advocate.
v/s
Union Territory of J&K and others .... Respondent(s)
Through: Sh. D.C. Raina, Advocate General
with Sh. K.D.S. Kotwal, Dy. AG
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. Heard Sh. M.A. Bhat, learned counsel for the appellant and Sh.
D.C. Raina learned Advocate General assisted by Sh. K.D. S Kotwal,
Dy. AG for the respondents.
2. The petitioner has preferred this Letters Patent Appeal against the
judgment and order dated 29.09.2020 passed by the learned Single Judge
whereby the review application of the appellant was allowed but the writ
petition was dismissed. It appears from the record that the petitioner was
given compassionate appointment in place of his deceased brother after a
prolonged litigation. The petitioner subsequently filed a writ petition
seeking grant of notional/retrospective benefits from the date on which
he ought to have been appointed on compassionate basis. The said writ
petition was dismissed on 4th June 2020. Accordingly, the petitioner
applied for the review of the same contending that the court lacked
jurisdiction as in the meantime, Central Administrative Tribunal had
2 .....
become functional. The above review application was heard and decided
vide impugned order/judgment dated 29.09.2020, it was allowed but at
the same time the writ petition was again dismissed.
3. The submission of learned counsel for the appellant is that at the
time of hearing only the review application was heard and the matter
was not addressed on the merits of the writ petition. He also submits that
the learned Single Judge after allowing the review application ought to
have sent the writ petition to the Central Administrative Tribunal which
was functional and was ceased of the jurisdiction.
4. Section 29 of the Administrative Tribunal Act 1985 reads as
under:
"29. Transfer of pending cases. - (1) Every suit or
other proceedings pending before any court or other
authority immediately before the date of
establishment of a Tribunal under this Act, being a
suit or proceeding the cause of action whereon it is
based is such that it would have been, if it had arisen
after such establishment, within the jurisdiction of
such Tribunal, shall stand transferred on that date to
such Tribunal:
Provided that nothing in this sub-section shall
apply to any appeal pending as aforesaid before a
High Court.
........."
5. A plain reading of the aforesaid provision reveals that every suit
or other proceedings pending before any court or authority immediately
before the date of establishment of a Tribunal under this Act, shall stand
transferred on that date to such Tribunal.
3 .....
6. The aforesaid Act came into force in the Union Territory of J&K
with effect from 29.04.2020 and the Tribunal became functional on
08.06.2020.
7. In view of the above, not only the writ petition but also all other
proceedings which may include the proceedings for review would stand
transferred to the Tribunal once the said Act became applicable and the
Tribunal started functioning.
8. Accordingly, as the proceedings stood transferred to the Tribunal,
the writ court became functus officio to pass any order therein. Thus, we
are of the opinion that the order/judgement dated 29.09.2020 impugned
in this Letters Patent Appeal is without jurisdiction. It is non est in the
eyes of law and is accordingly set aside. The record of the writ petition
along with the proceedings for review are directed to be transferred to
the Central Administrative Tribunal for consideration on its own merits.
9. The Registry will ensure that the record as directed is transferred
within two weeks.
10. The appeal is disposed of accordingly.
(JAVED IQBAL WANI) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
15.02.2021
Tilak
