Jammu & Kashmir High Court
Darshan Singh vs Union Of India And Ors. on 18 July, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
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Date of order:-18.07.2017
Darshan Singh Vs. Union of In dia and others
Coram:
Hon'ble Mr. Justice AlokAradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant/Petitioner(s): Mrs. Surinder Kour, Sr. Advocate with
Ms. Van dana Kumari, Advocate.
Mr. U.K. Jalali, Sr. Advocate with
Ms. Shivani Jalali, Advocate.
Mr. Abhinav Sharma, Advocate.
Mr. Rajnesh Raina, Advocate.
Mr. Ashok Sharma, Advocate.
Mr. Anil Sethi, Advocate.
Mr. S.K. Raina, Advocate.
Mr. D.S. Saini, Advocate.
Mr. Jatinder Choudhary, Advocate.
Mr. K.L. Pandita, Advocate.
Mr. M.R. Qureshi, Advocate.
Mrs. Veenu Gupta, Advocate.
Mr. G.S. Thakur, Advocate.
Mr. Rajnesh Singh Parihar, Advocate.
SWP No. 142/2005 a/w connected matters Page 3 of 14
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Mr. Sachin Dogra, Advocate.
Mr. D.S. Chouhan, Advocate.
For the respon dent(s) : Mrs. Sindhu Sharma, ASGI.
Mr. R.S. Jamwal, Sr. C GSC.
Mr. N.A. Choudhary, Advocate.
(a) Whether approved for reporting in
Digest/Law Journal-Net : Yes/No
(b) Whether approved for reporting in
Press/Media : Yes/No
Per AlokAradhe-J
When the matter was taken up today, Mrs. Sindhu
Sharma, learned ASGI raised an objection that this
Bunch of the writ petitions is required to
transferred to the Armed Forces Tribunal (in
brevity, the AFT) in view of Section 34 of the
Armed Forces Tribunal Act, 2007. It is further
submitted that a Circuit Bench of AFT has become
operative in Jammu, and, therefore, by virtue of
Section 34 of the aforesaid Act, 2007, the
proceedings which are pending before this Court
deserve to be transferred to the AFT. It is further
submitted that petitioners in all the cases have
alleged violation of either the provisions of the
Army Act, Navy Act and the Air Force Act and since
they have alleged violation of the provisions of the
aforesaid Acts, the cases filed by them are triable
under the Armed Forces Tribunal Act.
1. In support of her submissions, learned ASGI has
referred to the decision of Hon'ble Supreme Court
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in the case titled "Kendriya Vidyalaya
Sangathan and Another Vs. Subhash Sharma
etc., (2002) 4 SCC 145" and has submitted that
in the aforesaid decision, the Full Bench decision
rendered by this Court in the case of "Kuldip
Khoda Vs. Masud Ahmad Choudhary and
others" reported in 1994 SLJ 287, by which the
Full Bench of this Court has held that the
provisions of Article 323-A of the Constitution of
India do not apply to the State of Jammu and
Kashmir has been considered and it has been held
that the employees, retired personnel, their legal
heirs, dependants and successors as well, are
governed by the provisions of the Central
Administrative Tribunal (in brevity, the CAT) and
have to take resort to the provisions of the
Administrative Tribunals Act by filing an original
application before the CAT.
2. Mrs. Sindhu Sharma, learned ASGI has also
referred to the decision of the Supreme Court in
the case of "Union of India and others Vs.
Major General Shri Kant Sharma and another,
(2015) 6 SCC 773" and has submitted that the
aforesaid decision has been referred for
consideration before the Larger Bench for
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consideration of the question whether against an
order passed by the AFT, an appeal would lie to the
Supreme Court or the High Court can still exercise
the powers under Articles 226 and 227 of the
Constitution of India. It is further submitted that
the Supreme Court has held that the decision
rendered by it in the in the case of "Union of India
and others Vs. Major General Shri Kant Sharma
and another" (supra) needs to be re-visited and no
direction has been passed with regard to the
pending cases or the observations made with
regard to the appeal, which are required to be filed
under Section 30 of the AFT Act.
3. On the other hand, Mrs. Surinder Kour, learned
senior counsel for the petitioners has submitted
that Article 323 (A) of the Constitution of India
does not apply to the State of Jammu and Kashmir
and, therefore, the writ petitions pending before
this Court cannot be transferred. In support of her
submission, learned counsel for the petitioner has
placed reliance on Full Bench decision in case of
"Kuldip Khoda (supra) .
4. It is further submitted that by establishing the
Tribunal under Article 323-A of the Constitution of
India, the Parliament cannot take away the powers
SWP No. 142/2005 a/w connected matters Page 6 of 14
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of the High Court conferred on them under Articles
226 and 227 of the Constitution of India, which
corresponds to the Sections 103/104 of the
Constitution of Jammu and Kashmir. It is further
submitted that the decision in the case of Kendriya
Vidyalaya Sangathan (supra) has no application to
the obtaining factual matrix of the case. Learned
senior counsel has also invited the attention of this
Court to Section 14 (1) of the AFT Act and has
submitted that the aforesaid Section does not bar
the jurisdiction of the High Court and the powers
under Articles 226 and 227 of the Constitution of
India cannot be taken away.
5. Mr. U.K. Jalali, learned senior counsel for the
petitioner has invited our attention to Article
32 (2A) of the Constitution of India and has
submitted that for violation of fundamental rights,
a person has the right to approach the High Court
for ventilation of his grievance, which cannot be
taken away by the Parliament by enacting the AFT
Act. It is further submitted that Article 32 (2 A) of
the Constitution of India is a special provision in
respect of State of Jammu and Kashmir and has
been retained in the Constitution of India.
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6. M/S Abhinav Sharma and Rajnesh Raina,
Advocates submitted that since the decision in the
case of Major General Shri Kant Sharma's case
(supra) is pending consideration before the Larger
Bench of the Hon'ble Supreme Court, therefore, the
decision with regard to transfer of the cases to the
AFT be deferred. It is further submitted that in
case the writ petition is decided, the petitioner will
be rendered remediless.
7. We have considered the submissions made by the
learned counsel for the parties and have perused
the record. Before proceeding further, we deem it
appropriate to take note of the well settled legal
position, which reads as under:-
"In stating the principle that "a change
in the law of procedure operates
retrospectively and unlike the law
relating to vested right is not only
prospective", the Supreme Court quoted
with approval the reason of the rule as
expressed in MAXWELL: "No person has a
vested right in any course of procedure.
He has only the right of prosecution or
defence in the manner prescribed for the
time being by or for the court in which the
case is pending, and if, by an Act of
Parliament the mode of procedure is
altered, he has no other right than to
proceed according to the altered mode."
See:-Principles of Statutory interpretation by
Justice J.P. Singh (13 th Edition), Page 537.
8. Thus, from the aforesaid enunciation of law, it is
evident that no person has a vested right in any
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course of procedure and he has only right of
prosecution or defence in the manner prescribed
for the time being by or for the Court in which,
case is pending and if by an Act of Parliament, the
mode of procedure is altered, he has no other right
than to proceed accordingto the altered mode.
9. At this stage, we may refer to Section 34 of the
Armed Forces Tribunal Act, 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.
(2) Where any suit, or other proceeding
stands transferred from any Court
including a High Court or other authority
to the Tribunal under sub-section
(1)-
(a) The Court or other authority shall, as
soon as may be, after such transfer,
forward the records of such suit, or
other proceeding to the Tribunal;
(b) The Tribunal may, on receipt of such
records, proceed to deal with such
suit, or other proceeding, so far as
may be, in the same manner as in the
cse of an application made under sub-
section (2) of section 14 from the
stage which was reached before such
transfer or from any earlier stage or
de novo as the Tribunal may deem
fit."
10. Undisputedly, the writ petitions pending before
this would be covered by the expression proceeding
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under Section 34 of the Act. Section 34 of the Act
provides transfer of pending proceedings before the
AFT Act. Therefore, in view of the mandate
contained in Section 34 of the Act, the proceeding
pending before the AFT Act as well as taking into
account the well settled legal position that a
litigant has no vested right in a particular forum,in
our considered opinion, the proceedings, which are
pending before this Court are required to be
transferred to the Tribunal.
11. Besides that, the Full Bench decision of this Court
in the case of Kuldip Khoda's case (supra) was
considered by the Hon'ble Supreme Court in the
case of Kendriya Vidyalaya Sangathan and another
(supra). The relevant extract of which is
reproduced below for the facility of reference:-
"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 SWP No. 142/2005 a/w connected matters Page 10 of 14 11 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, 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 SWP No. 142/2005 a/w connected matters Page 11 of 14 12 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 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"
12. Thus, it is evident that Full Bench decision of this Court has been taken into consideration by the Supreme Court. The position with regard to non- applicability of Article 323-A has also been taken into account by the Supreme Court and it has been held by the Hon'ble Supreme Court that the SWP No. 142/2005 a/w connected matters Page 12 of 14 13 employees, retired personnel, their legal heirs, dependants and successors as well governed by the provisions of the Administrative Tribunals Act, 1985 are required to resort to the remedy under the provisions of the Administrative Tribunal Act, at the first instance. It has further been held 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 CAT.
13. Though the contention has been raised before us by the learned senior counsel for the petitioner by referring to Article 32 (2 A) of the Constitution of India, which is a special provision, dealing with the State of Jammu and Kashmir as well as the fact that the decision rendered in the case of Major GeneralShri Kant Sharma (supra) is pending consideration before the Larger Bench of the Hon'ble Supreme Court, we refrain ourselves from expressing any opinion with regard to the issues raised on behalf of the petitioner, at this stage, as the matter is sub judice before the Supreme Court.
14. Needless to state that in case of violation of a fundamental right, it is always open to a person to approach this Court by filing a writ petition under SWP No. 142/2005 a/w connected matters Page 13 of 14 14 Section 103 of the Constitution of the State of Jammu and Kashmir as well as under Article32 (2 A) of the Constitution of India.
15. We are afraid that the submission made on behalf of the petitioners that they would be rendered remediless cannot be accepted as Section 30 of the Act provides for remedy of an appeal and the question whether the powers of judicial review under Articles 226 and 227 of the Constitution of India can be taken away and whether this Court has the power to entertain the writ petition against an order passed by the AFT Act is pending consideration before the Larger Bench of the Supreme Court.
16. In view of the preceding analysis, we direct transfer of all the writ petitions to AFT Bench at Jammu.
17. The Registry is directed to transmit the records of the cases to the AFT Bench at Jammu, forthwith.
Accordingly, the writ petitions are disposed of.
(Sanjeev Kumar) (AlokAradhe)
Judge Judge
Jammu,
18.07.2017
Ram Krishan
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