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Jammu & Kashmir High Court - Srinagar Bench

Deep Kumar And Others vs Union Of India And Others on 14 September, 2017

Author: Tashi Rabstan

Bench: Tashi Rabstan

                     HIGH COURT OF JAMMU AND KASHMIR
                               AT SRINAGAR
                                     ...

Date of order: 14.09.2017 Deep Kumar and others Versus Union of India & others Coram:

Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:

For Petitioner(s): Mr Z.A.Shah, Senior Advocate with Mr A. Hanan, Advocate For Respondent(s): Mr Tahir Majid Shamsi, ASGI i/ Whether to be reported in Yes/No Press/Media?

ii/      Whether to be reported in                    Yes/No
         Digest/Journal?


      1. Petitioners     seek     quashment          of   communication           no.C/92630/

Approval/PO/GS/SD-7(Adm Civ) dated 31st May 2016, with further direction to respondents to give effect to the order of transfer bearing no.C/92630/ PO/MT/1/2015/SD-7(Adm Civ) dated 8th April 2016.

2. Petitioners' case is that they have been appointed as Temporary Consy Safaiwala. They were transferred vide order dated 8 th April 2016 (Annexure C to writ petition). It is averred that petitioner no.4 is medically sick and he needs to be transferred from Kashmir Valley. It is submitted that after order of transfer was passed, Administrative SWP no. 1409/2016 Page 1 of 11 Commandant for Station HQ informed Station HQ Awantipur, where petitioners are working, that against a judgment passed in SWP no.836/2004, a Letters Patent Appeal was being filed. As a result, communication dated 12th April 2016, petitioners were not relieved to join new place of posting. A controversy is said to have arisen in the case whether a person, who has succeeded before the Writ Court can be transferred or not and that Administrative Commandant addressed a communication to the Army Headquarters, New Delhi, on 11 th May 2016, in which it was pointed out that many other persons had been transferred and the position be clarified as to whether petitioners could be posted out while the appeal was in the process of being filed. In response to the said communication, impugned communication is said to have been issued, cancelling petitioners transfer. According to petitioner other question which arises for consideration is whether a person, who has succeeded before writ court in a writ petition and is awaiting orders of transfer, can be denied transfer on the basis that it is proposed to file further legal proceedings against the judgment.

3. Reply has been filed by respondents, in which they insist that present writ petition is not maintainable in law as the petitioners are borne on the cadre of civilian conservancy staff and petitioners have remedy to seek redressal of their service dispute vis-à-vis their transfer/posting etcetera before the Central Administrative Tribunal and without invoking the said remedy petitioners have approached this Court. Respondents aver that this Court has considered similar matters in case titled Abdul Gani Turray v. Union of India and others as also Mst Shaheena v. Union of India and others and this Court after considering various judgements of the Apex Court governing the field, has returned a finding that civilian Centre Government employee, who has service dispute and whose grievance is SWP no. 1409/2016 Page 2 of 11 not redressed, has to necessarily invoke jurisdiction of Central Administrative Tribunal in the first instance and that in the case in hand without invoking said remedy petitioners have approached this Court, and even otherwise communication dated 31st May 2016 is well reasoned and therefore does not call for any interference. Further assertion of respondents is that adhoc Station HQ Awantipur started functioning since 2001. 134 conservancy staff including administrative staff were sanctioned for adhoc Station HQ Awantipur as additional manpower to Station HQ Khreuh with the administrative control remaining with Station HQ Khreuh vide HQ Northern Command letter no.18010/5/Addl/GS(SD)(I) dated 7th July 2001. It is contended that recruitment of 94 conservancy staff was carried out by Station HQ Khreuh and the staff so recruited was attached to ad hoc Station HQ Awantipur and case for posting of individuals, namely, Fayaz Ahmad Bhat; Fayaz Ahmad Malla; Pawan Singh; Deep Singh; Yash Pal, on mutual basis, was taken up by Station HQ Awantipur, in response whereto posting order was issued vide IHQ of MoD (Army, Directorate of Staff Duties (SD-7) (Adm Civ) letter no.C/92630/PO/ MT/1/2015/ SD- 7 (Adm Civ) dated 8th April 2016. Then it came to notice that these individuals at serial nos.2 to 5, are the part of a court case, SWP no.836/2004, titled Gulzar Ahmad Sheikh & ors v. UOI & ors, pending against their termination order dated 18th April 2004, which was served to them after detailed enquiry regarding huge malpractices in their recruitment and as on date even their employment with the department is subjudice. It is further averred that Station HQ Awantipur approached IHQ of MoD (Army) vide letter no.6069/P/Gen/Stn/A dated 11 th May 2016, seeking clarification whether the individuals, namely, Fayaz Ahmad Malla, Pawan Singh, Deep Kumar, and Yash Pal, could be posted SWP no. 1409/2016 Page 3 of 11 out till pendency of final judgement on the said case. On 31 st May 2016, integrated HQ of Ministry of Defence (Army), Directorate General of Staff Duties (SD-7) vide letter no.C/92630/Approval/ PO/GS/SD-7(Adm Civ) dated 31st May 2016, directed that posting orders issued vide office letter dated 8th April 2016, in respect of those conservancy employees, who are involved in court cases/disciplinary cases, stands cancelled as per policy in vogue and the individuals concerned were informed accordingly by Station HQ Awantipur. Respondents contend that as per Recruitment Rules of conservancy of safaiwala, this cadre is locally recruited and not to be transferred out of that specific station for which they have been recruited and there is only one condition, they can be transferred on their own request, on extreme compassionate grounds/mutual basis and that as per policy on the subject posting/ transfer on compassionate grounds/ mutual basis are issued only extreme compassionate grounds, following Army Order 22/2001, which is applicable to permanent employees only. Petitioners are stated to have concealed the fact intentionally that they are part of court case SWP no.836/2004 and their employment is still subjudice. Order dated 8th April 2016, transferring them, has been made erroneously and when the fact came to light, cancellation order was issued on 31st May 2016 because as per policy, petitioners cannot be transferred as permanent employee following Army Order 22/2001 and RR. As per departmental policy, it is next insisted, if any disciplinary/vigilance/court case is pending against any employee, he cannot be transferred out from the present station and posting transfer out of that station is not a right of any employee and as per government rules, it is not the discretion of the department.

4. Heard learned counsel for parties and considered the matter.

5. The Constitution intends to herald an egalitarian social order by implementing the goals of socioeconomic justice set down in the Preamble of the Constitution. In that regard the Constitution created positive duties on the State towards individuals. The Parliament and the State legislatures made diverse laws to restructure the social order; created rights in favour of the citizens; conferred power and jurisdiction on the hierarchy of Tribunals or the authorities constituted thereunder and given finality to their orders or decisions and divested the jurisdiction of the established civil courts expressly or by necessary implication. A radical change was made in the constitutional law relating to the services by the 42nd Constitution Amendment Act, 1976, which inserted into the Constitution Article 323A, to take out the adjudication of disputes relating to the recruitment and conditions of service of the public service of the Union and of the States from the hands of the Civil Courts and the High Courts and to place it before an Administrative Tribunal for the Union or of a State, as the case may be. The Legislature made this departure for the reason that the tradition-bound civil courts gripped with rules of pleading and strict rules of evidence and tardy trial, four tier appeals, endless revisions and reviews under the Code of Civil Procedure are not suited to the needed expeditious dispensation of litigation relating to the services.

6. The 42nd Constitutional Amendment introduced an innovation in the Constitution in the form of a new Article 323A. It provides that Parliament may establish tribunals for adjudication of disputes concerning recruitment and conditions of service of persons appointed to public service under Central, State or any local or other authority, or a corporation owned or controlled by Government. The law made by Parliament for the purpose may specify the jurisdiction and procedure of SWP no. 1409/2016 Page 5 of 11 these tribunals and exclude the jurisdiction of all Courts, except that of the Supreme Court under Article 136 with respect to the service matters falling within the purview of these tribunals.

7. The justification for Article 323A lay in the fact that massive case law was being generated in the country in relation to service maters and too much time of the Courts, especially of the High Court, was being consumed on this type of litigation. Article 323A seeks to relieve the High Courts which used to take cognisance of service matters under Article 226.

8. Article 323A is an enabling provision. Its scope is very wide and is synonymous with Article 309. The expression 'conditions of service' used in Article 323A also occurs in Article 309 and means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in such matters as pension etcetera, and includes matters of dismissal or termination of the service of government servants. Therefore, the tribunals can be endowed with comprehensive jurisdiction in relation to service matters.

9. An interesting question which arises is whether the setting up of these tribunals will be merely for purposes of holding inquiries against government servants or also for imposing punishment. The use of the expression 'adjudication of disputes' indicates that wider frame of reference is envisaged. It will be for Parliament to settle all the intricate questions in the law to be enacted. Another aspect of Article 323A is that Parliament has been given power to establish service tribunals not only for the Central employees, but also for the employees of the States, local governments and of the government corporations. This will effect quite a drastic change in the present system where each of these units has control SWP no. 1409/2016 Page 6 of 11 over the disciplinary proceedings relating to its servants. The idea underlying Articles 323A and 323B was that the tribunals established thereunder will practically have the same status as the High Courts as appeals from these tribunals could get to the Supreme Court under Article

136. Under Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, the relevant law establishing these tribunals could exclude the jurisdiction of the High Court sin relation to the matters falling within the jurisdiction of these tribunals. Thus, the High Courts could be barred from exercising their writ jurisdiction under Article 226 or their power of superintendence under Article 227. Even the writ jurisdiction of the Supreme Court under Article 32 could be excluded. The Supreme Court accepted this position in S.P. Sampath Kumar v. Union of India (1987) 2 SCC 124. However, the Supreme Court changed its position in L. Chandra Kumar v. Union of India (1997) 3 SCC 261. The Supreme Court ruled that since judicial review was a fundamental feature of the Constitution, the jurisdiction conferred on the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution, cannot be ousted even by a provision in the Constitution. The Supreme Court has observed:

"The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution."

10.In view of the above position, the courts and tribunals "may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution of India. About the Tribunals created under Article 323A and 323B, the Supreme Court has said that these tribunals--

"are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject SWP no. 1409/2016 Page 7 of 11 to scrutiny before a Divisions Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless continue to act like courts of first instance in respect of the areas of law for which they have been constituted."

11. The Supreme Court also ruled in L. Chandra Kumar's case (supra), State of West Bengal v. Ashish Kumar Ray (2005) 10 SCC 110, that "all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular tribunal falls". In pursuance of Article 323A, Parliament has enacted the Administrative Tribunals Act, 195, setting up the Central Administrative Tribunal (CAT) for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts 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 in pursuance of Article 323A of the Constitution and for matters connected therewith or incidental thereto. Thereafter, Central Administrative Tribunal, in exercise of the powers conferred by Section 200 of the Administrative Tribunals Act, 1985 (Central Act 13 of 1985) and all other powers thereunto, enabling it to frame Rules to regulate its own practice and procedure, prepared unified and consolidated Rules of Practice and thereafter made "The Central Administrative Tribunal Rules of Practice, 1993", in supersession of all the existing orders, regulations and notifications on the subject, whereby the conditions of service of persons, including the present petitioners, appointed to public services and posts in connection with the affairs of the Union or of any State or of SWP no. 1409/2016 Page 8 of 11 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.

12. In Kuldip Khuda and others v. Masud Ahmad Choudhary and others 1994 JKLR 25 : 2010(7) 736 [HC], it was held that while central government employees posted in the State of Jammu and Kashmir may have been provided a forum for quick and early disposal of their grievances in respect of service matters, they still retain the choice to approach the High Court of J&K under Section 103 of the State Constitution by filing a writ petition and praying for an appropriate writ, order or direction for the redressal of their grievances and the Tribunal in these circumstances would be an additional or alternative forum and not an exclusive forum. The vires of Clause 2(d) of Article 323A and 323B insofar as it relates to exclusion of the jurisdiction of the High Courts and the Supreme Courts under Articles 226, 227 and 32 of the Constitution came to challenged and were finally struck down by a Constitution Bench of the Supreme Court in L. Chandra Kumar's case (supra), by holding that jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32, is a part of the inviolable basic structure of the Constitution. It was further held that all decisions of the Tribunals would, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction, the concerned Tribunals fell.

13.Once again, the Supreme Court in Kendriya Vidyalaya Sangathan and another v. Subhas Sharma, 2002 AIR SCW 1105, held that the High Court erred in law in directly entertaining writ petitions relating to service matters of employees of Kendriya Vidyalaya inasmuch as these matters come under the jurisdiction of the Administrative Tribunal. The said case SWP no. 1409/2016 Page 9 of 11 related to two orders passed by the High Court of J&K in writ petitions filed under Article 226 of the Constitution of India, raising the issue concerning service condition of employees of Kendriya Vidyalaya. Two applications were filed by Kendriya Vidyalaya before the High Court of J&K, seeking transfer of the said writ petitions to the Tribunal. The said prayer was declined by the High Court of J&K. Thereagainst, Kendriya Vidyalaya preferred appeals. The Supreme Court, after discussing the judgement rendered in Kuldip Khuda's case (supra), the provisions of sub-clause (iii) of clause (b) of subsection (1) of Section 14 of the Administrative Tribunals Act, 1985, and the judgement rendered in L. Chandra Kumar's case (supra) held that employees, retired personnel, their legal heirs, dependents and successors as well governed by the provisions of the Administrative Tribunals Act, 1985, are required, at the first instance, to resort to remedy as available under the said Act and that the powers under Sections 103 and 104 of the Constitution of Jammu and Kashmir, can be exercised in respect of the matters arising out from the orders passed by the Administrative Tribunal. Apart from this, the Division Bench of this Court at Jammu, vide order dated 19th May 2009, passed in LPASW no.56/2009 titled Harjeet Singh and ors v. Union of India and others, while setting aside the judgment and order passed by the learned Single Judge and dismissing the writ petition, held that Writ Court at the first instance was incompetent to entertain writ petition and advised writ petitioners to approach the Central Administrative Tribunal. Recently as well, the Division Bench of this Court at Jammu Wing, in a bunch of writ petitions, with lead petition, being SWP no.142/2005, titled Darshan Singh v. Union of India and others has, vide judgement dated 18th July 2017, reiterated the law laid down in above cited cases.

14.In view of above discussion, it is clear that in the present case, petitioners, ought to have, at first instance, approached the Central Administrative Tribunal, before straightway rushing to this Court under Article 226 of the Constitution of India. Having said so, writ petition in hand is dismissed. However, petitioners are left free to approach the Central Administrative Tribunal. Needless to add, this order will not be read as an expression of opinion on the merits of the case. Dismissed.

( Tashi Rabstan ) Judge Srinagar 14th September, 2017 Ajaz Ahmad I pronounce this judgement under Rule 138(3) of the J&K High Court Rules, 1999.

( Sanjeev Kumar) Judge Srinagar 14th September 2017 Ajaz Ahmad SWP no. 1409/2016 Page 11 of 11