Jammu & Kashmir High Court - Srinagar Bench
Mukhtar Ahmad & Ors vs State Of Jk & Ors on 7 October, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No. 501
REGULAR
(Through Virtual Mode)
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 313/2019
Alongwith connected CM(s)/IA(s)
Mukhtar Ahmad & Ors.
...Petitioner
Through:
Mr Sheikh Mushtaq, Advocate
v.
State of JK & Ors.
...Respondent(s)
Through:
Mr D. C. Raina, Advocate General with Mr Asif Maqbool, Dy. AG.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
(ORDER) 07.10.2020
01. In this petition, the petitioners, who are working in the Higher Education Department of the Government of Jammu and Kashmir in the capacity of Lecturers, on academic basis, are seeking a 'Writ of Mandamus' declaring clause (b) of section 3 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 as ultra vires the Constitution of India. A direction is also sought upon the respondents for not disturbing the present position of the petitioners and providing them all the consequential benefits. In short, the petition relates to recruitment against the posts of Lecturers borne on the Service of the Education (Gazetted) College Services Recruitment Rules, 2008, promulgated vide SRO 423 of 23rd of December, 2008.
02. When this petition was taken up today, a preliminary issue was raised by the learned Advocate General as to whether this Court would have the jurisdiction, as the Court of first instance, to proceed ahead with it or it would need to be transferred to the Central Administrative Tribunal, Jammu (the Tribunal) in view of the change in the scheme of law in view of the passing of the Jammu and Kashmir Reorganization Act, 2019 by the Parliament.
03. I have heard learned counsel for parties and considered the matter on the above preliminary question.
04. Admittedly, the petition relates to the claim of the petitioners for recruitment on the posts of Lecturers in the respondent Higher Education Department of the State, now Union Territory. 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 posts of Lecturers are civil posts.
05. It is seen that the posts of Lecturers are borne on the Service of the Education (Gazetted) College Services Recruitment Rules, 2008, promulgated vide SRO 423 of 23.12.2008, perusal whereof reveals that these posts of Lecturers against which the petitioners herein claim their right to continuation/regularization, are duly sanctioned posts 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.
06. In light of the above, the instant petition is transferred to the Central Administrative Tribunal, presently, functioning at Jammu, for decision in accordance with law. However, till such time the Tribunal finally decides this matter, the petitioners shall be allowed to continue discharging their duties at the present arrangement and they shall be paid the legitimately earned wages in accordance with the rules governing the field, without any fail.
07. Registry to transmit the record of the Writ petition, alongwith applications etc., to the Tribunal forthwith by placing a copy of this order on each file, retaining an index thereof in the office for record. Before conducting any further proceedings in the matter, the Tribunal shall notify its receipt and listing to the parties for their appearance before it.
08. Parties shall appear before the Central Administrative Tribunal, Jammu on 3rd of February, 2021. In the event parties fail to appear before the Central Administrative Tribunal, Jammu, on the fixed date, the Central Administrative Tribunal, Jammu, shall issue notice to the parties for appearance.
(Ali Mohammad Magrey) Judge.
SRINAGAR:
07.10.2020 "Hamid"ABDUL HAMID BHAT 2020.10.09 12:04 I attest to the accuracy and integrity of this document