The Supreme Court on Friday has issued notice to the Centre & Jammu & Kashmir to sought their response on a plea filed seeking setting up of a permanent Bench of the Central Administrative Tribunal (CAT) for hearing service matters in the Union Territory of Jammu & Kashmir.
The Supreme Court, however did not pass any interim orders while issuing notice to the parties including DoPT and the Ministry of Home Affairs.
The petition was filed through Advocate Arjun Garg and the petitioners were represented by Senior Advocate Ravindra Shrivastava
A three-judge Bench of the Court comprising of Chief Justice of India SA Bobde, Justice AS Bopanna and Justice Hrishikesh Roy heard the petition filed by two residents of Jammu and Kashmir, challenging the government notification dated April 29, 2020 and sought its cancellation. According to the notification, all the service matters in Union Territory of Jammu and Kashmir will go the Central Administrative Tribunal in Chandigarh
The jurisdiction was conferred on CAT Chandigarh by Ministry of Personnel, Public Grievance and Persons. The Ministry had also issued a press release stating that all service matters of Central Government and UP employees will be taken up in CAT circuit bench at J&K.
The petition has also asked the Court to issue direction to High Court of Jammu and Kashmir directing them not to transfer the service matters that are pending before CAT in Chandigarh and should continue to hear fresh service matters, till the time a permanent Bench of CAT is set up for Jammu and Kashmir.
According to the petitioners the order dated April 29th is violative of the Constitution. The petition stated that as on December 31, 2018 nearly 50,000 cases were pending before the CAT, Chandigarh and an additional 35,000 to 40,000 pending cases are sought to be transferred from the Jammu and Kashmir High Court to the Chandigarh CAT. CAT however is only functioning with only 1 member at this point.
Before the status of Jammu and Kashmir was changed from State to a Union Territory, the Jammu and Kashmir High Court had the jurisdiction under Articles 226 and 227 to hear service cases.
The petitioners cited the order of the Apex Court in L Chandra Kumar vs Union of India, when a seven-judge Bench had stated that the powers of a High Court are very wide and unfettered under the scope of Articles 226 and 227, and its jurisdiction cannot be wholly excluded and the powers conferred on it are part of the basic structure of the Constitution. If a Tribunal is set up, it should be robust, effective institutional mechanism or authority.
According to the petitioners, the jurisdiction of the Jammu and Kashmir High Court can therefore not be abrogated and its jurisdiction will still stand retained even if the employees of the UT have now become Central Government employees. A total restriction on jurisdiction of the High Court cannot be imposed. If such change in status of employees has taken place, then a proper Bench of CAT needs to be established which can exercise the powers and jurisdiction of the High Court.
According to the petitioners, the transfer of cases in such manner will result in serious impediment to the administration and delivery if justice. The adhoc arrangement of holding circuit bench by the Bench of Chandigarh is not a substitute or even a proper arrangement for dealing with such huge number of cases.
The petitioners have also stated that it is arbitrary and violative of fundamental rights not only of the petitioners but also of a large number of people in Union Territories of Jammu, Kashmir and Ladakh.
-India Legal Bureau