Jammu & Kashmir High Court
Tilak Raj vs Union Of India And Others on 31 July, 2017
Bench: Alok Aradhe, Sanjeev Kumar
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 2612/2000
MP Nos.2811/200 & 1/2017
c/w
SWP No.1653/2003, MP Nos.1760/2003 & 1/2017
SWP No.1659/2003, MP Nos.1766/2003 & MP No.1/2017
SWP No.694/2007, MP Nos.981/2007 & MP No.1/2017
SWP No.692/2016, MP Nos.1/2016 & MP No.1/2017
SWP No.693/2007, MP Nos.980/2007 & MP No.1/2017
SWP No.692/2007, MP Nos.979/2007 & MP No.1/2017
SWP No.2057/2010, MP Nos.2904/2010 & MP No.1/2017
SWP No.583/2009, MP No.1/2017
Date of Order: 31.07.2017
Tilak Raj Vs. Union of India and others
Along with connected matters.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant/Petitioner(s): Mrs. B.S.Salathia, Sr. Advocate with
M/S D.S. Chauhan, Ravinder Sharma,
Meenakshi Salathia, Monica Sumberia
& Bhanu Singh Salathia, Advocates.
Mr. Sunil Sethi, Sr. Advocate with
Mr. Summit Nayyar, Advocate.
For the respondent(s) : Mrs. Sindhu Sharma, ASGI.
(a) Whether approved for reporting in Digest/Law Journal-Net : Yes
(b) Whether approved for reporting in Press/Media : Yes Alok Aradhe-J
1. This Court vide order dated 18.07.2017 and for the reasons assigned therein had transferred a bunch of writ petitions to the Armed Forces Tribunal and thereafter this batch of writ petitions has come up today for orders on MP No.1/2017 i.e. an application seeking transfer of the writ petition to the Armed Forces Tribunal constituted under the Armed Forces Tribunal SWP No. 2612/2000 along with connected matters Page 1 of 17 2 Act, 2007. Since learned counsel for the petitioner(s) submitted that they would like to address this Court on certain additional issues of which this Court did not take note of while passing order dated 18.07.2017, therefore, they were heard and the issue with regard to transfer of this batch of writ petitions to the Armed Forces Tribunal is being decided by this order.
2. Learned ASGI has submitted that in view of Section 34 of the Armed Forces Tribunal Act, 2007 (for brevity, the Act of 2007), the writ petitions pending before this Court deserve to be transferred to the Armed Forces Tribunal Srinagar Bench at Jammu. Our attention has been invited to Section 1(2)(b) of the Administrative Tribunal Act, 1985 (for brevity, „the Act of 1985‟) and it has been submitted that the provisions of the Act of 1985 do not apply insofar as it pertain to the Administrative Tribunals to the State of Jammu and Kashmir, however, Section 2 of the Act of 2007 provides for applicability of the Act to persons, who are subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950. In other words, it is submitted that, there is no provision in the Act of 2007, which restricts its application to the State of Jammu & Kashmir. Learned ASGI has also invited attention of this Court to the decision of the Supreme Court in the case of SWP No. 2612/2000 along with connected matters Page 2 of 17 3 Kendriya Vidyalaya Sangathan and another v. Subhas Sharma; (2002) 4 SCC 145 and in particular has invited attention of this Court to paragraph Nos. 5 to 10 as well as 16 to 19 of the aforesaid decision.
3. It is submitted that the question whether the 42nd Amendment to the Constitution applies to the State of Jammu and Kashmir is not relevant as the Armed Forces Tribunal Act applies to the persons, who are subject to the provisions of Army Act, Navy Act and the Air Force Act. It is also submitted that the writ petition is covered under the expression "other proceeding", used in Section 34(1) of the Act, 2007, which has to be read in entirety and it is evident that "other proceeding‟ refers to the later part of the Section, namely, "being a suit or proceeding the cause of action whereupon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal." It is also submitted that the expression proceeding used in Section 141 of the Code of Civil Procedure has no relevance so far as interpretation of expression "other proceeding" used in Section 34 of the Act of 2007 is concerned as the expression "proceeding‟ used in Section 141 of the Code of Civil Procedure has SWP No. 2612/2000 along with connected matters Page 3 of 17 4 to be read in context of proceedings under Order-IX of the CPC.
4. It is further submitted that so far as decision rendered in the case of Union of India and others v. Major General Shri Kant Sharma and another; AIR 2015 SC 2465 is concerned, the same has no bearing on the controversy involved in this writ petition, which pertains to transfer of this batch of writ petitions to the Armed Forces Tribunal, inasmuch as, the decision in the case of Major Shri Kant Sharma(supra) deals with the issue as to whether against an order passed by the Armed Forces Tribunal, an appeal would lie to the Supreme Court or the order passed by the Tribunal is amenable to the writ jurisdiction of the High Courts. It is further submitted that under Entry 2 of the List-1 of VIIth Schedule to the Constitution of India, the Parliament has the power to enact the Armed Forces Tribunal Act, 2007 independently of Article 323A of the Constitution of India. It is submitted that in any case in the instrument of Accession, the Parliament has been given the power to enact law with regard to three subjects, namely, defence, telecommunication and external affairs.
5. Mr. B.S.Salathia, learned senior counsel appearing for the petitioners submitted that 42nd Amendment by SWP No. 2612/2000 along with connected matters Page 4 of 17 5 which Article 323A was incorporated in the Constitution of India does not apply to the State of Jammu & Kashmir and therefore, central government has no power to establish Armed Forces Tribunal in exercise of powers under Article 323A of the Constitution of India insofar as it pertains to the State of Jammu & Kashmir. It is further submitted that if a writ petition is filed challenging the constitution of the Tribunal, in such cases the same is maintainable. It is further submitted that the writ petition pending before this Court would not fall within the expression "other proceeding" used in Section 34 of the Act of 2007. It is also submitted that the expression "proceeding" is not defined anywhere except in Section 141 of the Code of Civil Procedure and it excludes writ petition. Therefore, Section 34 of the Act of 2007 will have no application to the fact situation of the case. Learned senior counsel has also referred to the Writ Proceeding Rules, 1997.
6. It is further submitted that the decision rendered by the Supreme Court in the case of Kendriya Vidayala Sangathan (supra) is not applicable to the facts of the case as the same is based on concession made by the learned counsel, in this connection, learned senior counsel has taken us to paragraph Nos. 4, 5 and 6 of the judgment. It is also submitted that under Section SWP No. 2612/2000 along with connected matters Page 5 of 17 6 14(1) of the Armed Forces Act, 2007, the powers of the High Courts under Article 226 and 227 of the Constitution of India have been saved and therefore, writ petition is maintainable. It is further submitted that a Full Bench decision of this Court in the case of Kuldip Khuda v. Masud Ahmad Choudhary; 1994 SLJ 287 has not been overruled by the Supreme Court and a litigant has a fundamental right to approach this Court by way of filing petition under Section 103 of the Constitution of Jammu & Kashmir. It is submitted that since the matter pertaining to the view taken by the Supreme Court in the case of Major General Shri Kant Sharma (supra) is pending consideration before a larger Bench of the Supreme Court, therefore, proceedings in these writ petitions should have been deferred. It is argued that since the constitution of the Tribunal is under challenge, therefore, this writ petition is maintainable and by invoking the powers under Section 34 of the Act of 2007, writ petition cannot be transferred to the Armed Forces Tribunal.
7. Mr. Sunil Sethi, learned senior counsel has submitted that this Court has not been created under the law enacted by the Parliament and therefore, the powers of this Court cannot be curtailed by an enactment of the Parliament, namely Armed Forces SWP No. 2612/2000 along with connected matters Page 6 of 17 7 Tribunal Act. It is submitted that this Court‟s jurisdiction can be curtailed by a law enacted by the State Legislature, however, in the instant case, the original jurisdiction of this Court has been taken away by the law enacted by the Parliament and has been vested in the Armed Forces Tribunal by the said enactment namely, Armed Forces Tribunal Act, 2007. It is pointed out that Article 323A of the Constitution of India is not applicable to the State of Jammu and Kashmir and only provisions of Article 222 and part of Article 226 apply to the State of Jammu and Kashmir to deal with the case of persons, who are non state subjects. It is submitted that context of jurisdiction has two facets, namely territorial jurisdiction and the subject matter of the jurisdiction. The Armed Forces Tribunal Act deals with the facet of subject matter of the jurisdiction. It is also argued that the Parliament under Entry-2 of List-I of the VIIth Schedule of the Constitution of India has no power to establish the Armed Forces Tribunal in the State of Jammu & Kashmir as there is a specific provision under Article 323A under which said Tribunal has to be created, which does not apply to the State of Jammu & Kashmir. In any case, it is argued that Article 323A cannot apply to the State of Jammu & Kashmir without taking recourse to the provisions of SWP No. 2612/2000 along with connected matters Page 7 of 17 8 Article 370 of the Constitution of India. Learned senior counsel has also invited our attention to Entry 95 of List-I appended to the VIIth Schedule to the Constitution of India and has submitted that the aforesaid Entry deals with the jurisdiction of Courts and not Tribunals.
8. We have considered the submissions made by learned counsel for the parties and have perused the records. The Parliament enacted the Central Administrative Tribunal Act, 1985 for adjudication or trial of the disputes and complaints with regard to recruitment and condition 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 of India in pursuance of Article 323A of the Constitution. In other words, the Central Administrative Tribunal under the Administrative Tribunal Act, 1985 refers to Article 323A of the Constitution of India. Section 1(2) of the Act of 1985 reads as under:-
"1.....................
(2) it extends,---
(a) in so far as it relates to the Central Administrative Tribunal, to the whole of India:
(b) in so far as it relates to Administrative Tribunals for States, to the whole of India, except the State of Jammu and Kashmir."SWP No. 2612/2000 along with connected matters Page 8 of 17 9
From the perusal of Section 1(2) of the Act of 1985, it is evident that the provisions of the Act insofar as it relates to the Central Administrative Tribunal extends to the whole of India but the provisions of the Act do not apply to the State of Jammu & Kashmir insofar as it pertains to Administrative Tribunals for States.
9. The Armed Forces Tribunal Act, 2007 is an act to provide for adjudication or trial by the Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also provides for appeals arising out of orders, findings or sentences of courts-martial held under the said Acts. From the preamble of the Act, we notice that there is no reference to the provisions of Article 323A of the Constitution of India as is the case in the Administrative Tribunal Act, 1985. Section 2 of the Armed Forces Tribunal Act, 2007, which is relevant in view of the controversy involved in the writ petition, reads as under:-
"2. Applicability of the Act.-(1) The provisions of this Act shall apply to all persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 45 of 1950).
(2) This Act shall also apply to retired personnel subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 45 of 1950), including their SWP No. 2612/2000 along with connected matters Page 9 of 17 10 dependants, heirs and successors, in so far as it relates to their service matters."
From the perusal of Section 2 of the Act of 2007, it is evident that it does not refer to any of the territory of India and none of the provisions of the Act excludes its application to the State of Jammu and Kashmir. The Act applies to any person, who is subject to the provisions of Army Act, Navy Act or Air Force Act irrespective of place where he is posted.
10. Insofar as reliance placed on behalf of the petitioners on the decision of the Full Bench of this Court in the case of Kuldip Khuda (supra) is concerned, it is pertinent to mention that in the aforesaid decision, the Full Bench of this Court while dealing with the provisions of Administrative Tribunal Act, 1985 has held that the Tribunal in the circumstances is an additional or alternative forum and not exclusive forum and an employee can resort to the remedy under Section 103 of the Constitution of the State of Jammu & Kashmir as well. It is pertinent to mention that the Full Bench‟s decision of this Court in the case of Kuldip Khuda (supra) was considered by the Supreme Court in the case of Kendriya Vidayalaya Sangathan‟s case (supra), in which in paragraph Nos. 8, 18 and 19, it was inter alia, held as under:-
SWP No. 2612/2000 along with connected matters Page 10 of 17 11
"8. In view of the above legal provision, we hold that the Act applies to all categories of Central Government servants and others posted to work in the State of Jammu and Kashmir as well. We are, therefore, of the opinion that the contention of Mr. B.D. Sharma, learned counsel for the respondent has no force. We may add here that the Full Bench of the High Court in Kuldip Khoda's case (supra) has also taken the view that the Act extends to the whole of India, which includes the State of Jammu and Kashmir.
18. We shall proceed on the assumption that the view of the Full Bench regarding the applicability of Article 323-A to J&K State is correct. If so, as pointed out by the Full Bench, the bar contained in Clause 2 (d) of Article 323-A excluding the jurisdiction of all Courts except the jurisdiction of the Supreme Court under Article 136 with respect to the service matters of persons appointed to public services and posts in connection with the affairs of the Union and others specified in Clause (1) will not apply and in such a case, the J&K High Court could entertain the writ petitions filed by such public servants subject, of course, to the usual self-imposed limitations, such as the existence of alternative remedy. Whether the reasoning of the Full Bench of the High Court is correct or not need not be gone into in view of the Constitution Bench decision of this Court in Chandra Kumar's case (1997) 3 SCC 261, wherein this Court struck down the Clause 2(d) of Article 323-A on the ground that it offends one of the basic and essential features of the Constitution, viz, the power of judicial review vested in the High Court and the Supreme Court. Thus, the embargo on the constitutional jurisdiction of the High Court stands lifted by virtue of the decision in Chandra Kumar's case. The offending provision in Article 323-A eroding the constitutional powers of the High Court goes out of existence. The High Courts, under Articles 226/227 of the Constitution of India or the corresponding provisions in J&K Constitution, namely, Sections 103/104 will, therefore, retain their jurisdiction even in relation to the service matters falling within the sweep of Clause (1) of Article 323-A. To this extent, SWP No. 2612/2000 along with connected matters Page 11 of 17 12 the ultimate conclusion reached by the Full Bench of the J&K High Court on an entirely different ground accords with the Constitution Bench Judgment in Chandra Kumar's case. But, then, the effect and implications of the ruling in Chandra Kumar's case have to be considered in order to see whether the impugned order of the High Court can be sustained. This Court having struck down the offending clause of Article 323-A proceeded to hold that the power conferred on the Administrative Tribunals should be preserved without sacrificing the judicial review power of the High Court and the Supreme Court inhering from Articles 226/227 and 32 respectively. With this objection in view, to keep the mechanism of Administrative Tribunals in fact, this Court deemed it expedient to impose certain restraints on the entertainment of petitions under Articles 226/227. The Court held that an Administrative Tribunal can still perform its supplementary role in relation to the service matters and it can even test the constitutional validity of the statutory provision or rule except the Act or the Rule under which it was created. It was laid down that the Tribunal will continue to act as Court of first instance in respect of matters falling within in its jurisdiction and it was not open to the aggrieved person to directly approach the High Court by overlooking the jurisdiction of the Tribunal concerned. In this context, my learned brother has quoted the relevant passage from the decision in Chandra Kumar's case, AIR 1997 SC 1125: (1997 SC W 1345).
19. I must say that the decision in Chandra Kumar's case is a product of judicial craftsmanship and a landmark in the development of constitutional law in our republic. Even if this judgment does not ipso facto apply to the J&K State Constitution, there is no apparent reason why the ratio of this judgment should not be applied to the exercise of jurisdiction by the J&K High Court under Sections 103 and 104 of J&K Constitution. The wholesome principle evolved by this Court in Chandra Kumar, could be extended to Sections 103 and 104 as well; otherwise it would lead to an anomalous result of the Central Government servants/employees of SWP No. 2612/2000 along with connected matters Page 12 of 17 13 Central Government controlled Corporations, etc. working in J&K being left with the option of bypassing the Tribunal, without falling in line with their counterparts working elsewhere"
Thus, from the perusal of the aforesaid paragraphs, it is evident that the Supreme Court has taken into consideration that even assuming that the provisions of Article 323A do not apply to the State of Jammu & Kashmir, yet the conclusion reached at by the Full Bench of this Court though on entire ground accords with constitution Bench Judgment in L. Chandra Kumar v. Union of India; (1997) 3 SCC 261, wherein it has been held that the Forum created under the Administrative Tribunal Act has to be resorted to as Forum at the first instance and thereafter an aggrieved person can invoke the jurisdiction of this Court under Sections 103 or 104 of the Constitution of Jammu & Kashmir. Even otherwise, the Armed Forces Tribunal Act, 2007 appears to have been enacted in exercise of powers under Entry-2 of List-I of the VIIth Schedule to the Constitution of India and therefore, the Parliament has the legislative competence to enact the aforesaid law and none of the provisions of the Act provides that it does not apply to the State of Jammu & Kashmir. Therefore, it is not necessary for us to decide on the question of applicability or non-applicability of SWP No. 2612/2000 along with connected matters Page 13 of 17 14 Article 323A of the Constitution of India as the same has already been taken care of by the Supreme Court in the case of Kendriya Vidayalaya Sangathan(supra).
11. So far as the submission made by learned counsel for the petitioners that this batch of writ petitions should not be transferred as correctness of the view taken in the case of Major General Shri Kant Sharma is pending consideration before the Supreme Court is concerned, we are not inclined to accede to the aforesaid prayer as the issue pending consideration before the larger Bench is whether against an order passed by the Armed Forces Tribunal, an appeal would lie under Section 30 of the Act of 2007 before the Supreme Court or the High Court will have the jurisdiction under Article 226 and 227 of the Constitution of India and Sections 103 of 104 of the Constitution of Jammu & Kashmir also to entertain writ petition against order passed by the Tribunal. Therefore, the aforesaid question has no bearing so far as transfer of this batch of writ petitions to the Armed Forces Tribunal under Section 34 of the Act of 2007 is concerned.
12. Now we may advert to the submissions made on behalf of the petitioners that the writ petitions would not cover the expression "other proceeding" used in Section 34 of the Act of 2007. At this stage, it is SWP No. 2612/2000 along with connected matters Page 14 of 17 15 pertinent to take note of Section 141 of the Code of Civil Procedure, which reads as under:-
"141. Miscellaneous proceedings The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation.-----In this section, the expression "Proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution."
From perusal of Section 141 CPC, it is evident that the expression "proceeding" has been denied in the context of Civil Procedure Code and in relation of the proceeding under Order IX of CPC, therefore, contention of the petitioners that in view of the definition of "proceeding" in Section 141 CPC, the writ petition would not be included in the expression "other proceeding"
used in Section 34 of the Act of 2007, cannot be accepted. It is evident that it provisions of the Code in regard to suits shall be followed in all proceedings in any Court of civil jurisdiction as far as it can be made applicable and therefore, petition under Article 226 of the Constitution of India would not be included in the expression "proceeding" as used in Section 141 of the Code of Civil Procedure (see Puran Singh and others v. State of Punjab and others; 1996 (2) SCC 205. Besides that, the expression "other proceeding" cannot be interpreted in isolated manner and has to be read in SWP No. 2612/2000 along with connected matters Page 15 of 17 16 entirety with Section 34(1) of the Act of 2007, which reads as under:-
"34. Transfer of pending cases
1. Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal."
Thus, expression proceeding has to be read in context of suit or proceeding the cause of action whereupon it is based, is such that it would have been within the jurisdiction of such Tribunal. Therefore, it is evident that the expression proceeding would also include the writ petition as besides civil court and this Court, before no other forum proceeding could have been filed. Therefore, inescapable conclusion is that the expression "other proceedings" used in Section 34 of the Act of 2007 would include proceedings in the writ petition.
13. So far as contention raised on behalf of the petitioners that the jurisdiction of this Court, which has been established under the Constitution of Jammu & Kashmir cannot be curtailed by a law enacted by the Parliament is concerned, we refrain ourselves from expressing any opinion on the aforesaid issue as the same is pending consideration before a larger Bench of the Supreme Court in the case of Major General Shri SWP No. 2612/2000 along with connected matters Page 16 of 17 17 Kant Sharma (supra). It is pertinent to note that in none of the writ petitions the constitution of the Tribunal has been challenged.
14. In view of the preceding analysis, we do not find any ground to take a different view than the one taken by us in order dated 18.07.2017. For the reasons assigned by us in the order passed today as well as order dated 18.07.2017, we direct transfer of this batch of writ petitions to the Armed Forces Tribunal, Srinagar Bench at Jammu.
15. Registry is directed to transmit the writ petitions to the Armed Forces Tribunal forthwith.
16. Accordingly, writ petitions are disposed of.
(Sanjeev Kumar) (Alok Aradhe)
Judge Judge
Jammu,
31.07.2017
Vinod.
SWP No. 2612/2000 along with connected matters Page 17 of 17