HC restrains High Court registry from entertaining Service Writ Petitions

Bar of Section 28 Administrative Tribunals Act

21/05/2020



JAMMU, May 20: In a significant judgment having far reaching consequences, Justice Ali Mohammad Magrey today directed High Court Registry not to entertain the writ petitions relating to service disputes of the employees of the Union Territory of Jammu and Kashmir and Union Territory of Ladakh and those Central Government Employees who are posted and stationed in these two Union Territories, for which the remedy is with CAT Bench Chandigarh subject to further availability of a Bench at Union Territory of Jammu and Kashmir and Ladakh.
This significant judgment has been passed in a petition filed by Fehmeeda Akhter who challenged the order the respondent no. 4, by virtue of which the transfer order of the petitioner being Order No. CMOB/3300-03 dated 03.04.2020 has been rescinded/ cancelled. The grievance projected by the petitioner in nutshell is that she has been performing her duties as a Community Health Officer, CHO, at Primary Health Centre, PHC, Narbal, and during her posting as such an order bearing No. CMOB/3300-03 dated 03.04.2020 came to be issued by the respondent no. 4 whereby the petitioner was transferred to PHC Ichgam and upon her joining at the said place the impugned order was issued just after three days rescinding/ cancelling the order of transfer dated 3rd April, 2020, without any rhyme or reason. She being aggrieved of the said act of the respondent no. 4, challenges the same by the petition in hand.
During the course of hearing Advocate General, Mr D C Raina, raised an objection about the maintainability of the writ petition before this Court in view of the fact that pursuant to the abrogation of Article 370 of the Constitution of India, and formation of the Union Territory of Jammu & Kashmir and Ladakh in terms of the provisions of The Jammu and Kashmir Reorganization Act, 2019, all service matters of the Government Employee(s) in the said Union Territories, upon issuance of the Notification dated 29th April, 2020, issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), are required to be heard and considered only by the Central Administrative Tribunal, Chandigarh, "hereinafter for short as CAT" within whose jurisdiction the matter now falls.
Justice Ali Mohammad Magrey after hearing Adv MI Dar for the petitioner whereas Advocate General DC Raina assisted by AAGs Shah Aamir and Aseem Sawhney for the UT administration and ASGIs Vishal Sharma and TM Shamsi for the Union of India observed that this Court, cannot entertain a petition raising a service dispute of the employee in the service of the Government of India or the Government of Union Territory of Jammu and Kashmir and Ladakh.
During the course of arguments the counsel for the petitioner had further made a submission that the Notification dated 29th April, 2020, which provides for hearing and consideration of services matters of Union Territories or Jammu and Kashmir and Ladakh by the Chandigarh Bench of CAT, is not applicable to the instant case as the order impugned is dated 6th April, 2020 and the petition is filed much earlier to the notification date.
Advocate General resisted the submission by contending that the relevant date for determining such issue would be the date of consideration of the case before the Court and not the date of filing. Since the petition is listed before this Court for the first time and the remedy is already is available for consideration, therefore, this submission of the counsel for the petitioner, having no merit, shall stand rejected.
High Court observed that while hearing the counsel for the parties through Video Conferencing mode the Advocate General submitted that a Notifications dated 2nd May, 2020, read with 17th May, 2020, copy whereof has been made available which is made part of the file, has been issued by the Principal Registrar Principal Bench, CAT, spelling out the mode/ procedure in which the cases are being regulated in these times of Covid-19 crisis an directed the petitioner to approach the CAT today itself. Given the urgency involved in the matter the CAT Bench, Chandigarh is expected to hear the matter on priority preferably tomorrow or the day after.
During the course of hearing the counsel for the petitioner submits that it would be very inconvenient for the petitioner to approach the CAT Bench Chandigarh which is a far-off place from Srinagar and the ends of justice would get defeated by not making available the Bench at Srinagar. At this stage Vishal Sharma, ASGI, in response, on the strength of instructions conveyed to him by the Government of India, submits that already a statement has been made by him before the Division Bench of this Court at Jammu, in case PIL no. 3/2020 titled Aditya Sharma and another v. Union of India and others on 19.05.2020 to the effect that immediate steps are being taken to constitute bench of CAT in Union Territory of Jammu and Kashmir and Union Territory of Ladakh to be stationed in the Jammu and Kashmir only. Therefore, very likely a permanent CAT Bench would soon be made available for hearing the service matters of the employees of Union Territory of J&K and Ladakh and of those Central Government Employees who are posted in these Union Territories.
Justice Ali Mohammad Magrey observed that needless to mention that making available the Bench for the litigants of the Union Territory of Jammu and Kashmir and Ladakh is for the Government of India to decide and the Court being conscious of its constitutional limitations cannot pass any direction in respect of constitution/ sitting of the CAT Benches.
With these observations High Court holds that this Court has no jurisdiction to entertain the petition and the same be, instead, presented before the CAT Chandigarh that has the jurisdiction and directed a) Registrar Judicial of the High Court wing Srinagar/ Jammu are directed not to entertain the writ petitions relating to service disputes of the employees of the Union Territory of Jammu and Kashmir and Union Territory of Ladakh and those Central Government Employees who are posted and stationed in these two Union Territories, for which the remedy is with CAT Bench Chandigarh subject to further availability of a Bench at Union Territory of Jammu and Kashmir and Ladakh.

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