DB dismisses petition challenging fresh appointments of CWC & JJB with cost of Rs 1 Lakh

29/03/2023

Jammu, Mar 28: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Sanjeev Kumar and Justice Puneet Gupta today dismissed the petition seeking quashment and set aside the Advertisement Notification No.01 SC (MV) dated 01.08.2022 and Notification No. 02 SC (MV) of 2022 dated 01.08.2022; and directing the respondents to allow the petitioners to discharge their duties as Chairpersons/Members of CWCs and the Members of JJBs in terms of Jammu and Kashmir Juvenile Justice (Care and Protection of Children)Rules, 2014.
DB dismissed both the petition, but not without imposing exemplary costs of Rs.1.00 lac, to be deposited by the petitioners in the Registry of this Court within four weeks from today. DB further said that the dismissal of these petitions shall pave way for the selection committee to finalize the selection. We hope and trust that the Competent Authority shall act in the matter without any further delay and constitute the CWCs and JJBs in accordance with the 2015 Act and the Rules framed thereunder.
DB after hearing counsel for the parties and having read both the writ petitions between the lines, observed that we clearly find that in the first writ petition filed in Srinagar the petitioners had missed to pray for and persuade the learned Single Judge to protect their continuation in service. The focus of the petitioners in the first petition filed in Srinagar wing of this Court was only to somehow persuade the Court to stop the process of selection undertaken by the respondents by issuing the impugned Notifications. The petitioners were well aware that their first term of appointment had since expired and even the extension of one year granted too had expired when the writ petition was filed. It is in this background and keeping the fact situation in mind, the petitioners specifically prayed for a direction to the respondents to allow them to discharge their duties as Chairpersons/Members of CWCs and Members of JJBS in terms of the Rules of 2014 framed under the Act of 2013. We are, therefore, at a loss to understand as to what prompted the petitioners to file another writ petition, that too, in the Jammu wing of this Court when the first petition on the subject matter was pending adjudication in Srinagar wing of this Court. Obviously, filing of second writ petition was motivated by the consideration that, though the petitioners had succeeded in persuading the Court in Srinagar wing to stay the selection process initiated by the respondents in terms of the impugned Advertisement Notifications, but had either missed to pray for or failed to persuade the Court to pass an order of status quo, so that their service status could also have been protected. Perhaps the petitioners could have filed an application in the pending case and made an effort to persuade the learned Single Judge to consider granting an another interim order of stay to protect their service status in the first petition pending in Srinagar wing of this Court. But as the things will speak for themselves, the petitioners rushed to the Jammu wing to file the second petition though their earlier petitioner was pending in Srinagar wing. It is not in dispute that the Srinagar Wing of this Court was fully functional and Bench with relevant roster was available in Srinagar but had shifted to Jammu in the meanwhile. Obviously, the Jammu wing of this Court was moved to have the second petition listed before the same Bench which had entertained the first petition and passed the interim directions staying the process of selection undertaken by the respondents in terms of the impugned Notifications.
DB observed that forum shopping is essentially a practice of choosing the Court in which to bring an action from among those Courts that could properly exercise jurisdiction based on a determination of which Court is likely to provide a most favourable outcome. Similarly, 'Bench hunting' refers to petitioners managing to get their cases heard by a particular judge or Court to ensure a favourable order. Recently, Apex Court has come heavily on such unscrupulous elements who are always on a hunt to find a Court or forum of their choice [Refer Kamini Jaiswal v. Union of India. Such conduct of party is not permitted under law. The principle is based on the maxim that one who seeks equity must do equity. The extraordinary writ jurisdiction conferred upon the Constitutional Court is predominantly an equitable discretionary jurisdiction and the Constitutional Court can refuse to entertain a petition and grant relief prayed for only on the ground that the petitioner has not approached the Court with both hands clean, notwithstanding the merits of such petition.
DB observed that unscrupulous litigants cannot be allowed to even think of indulging in forum shopping to get favourable decisions. It is depreciable conduct in the field of law.
DB further observed that in the instant case, the petitioners even tried to hoodwink the Court and justify the filing of subsequent petition in another wing by rearranging the sequence of names of petitioners just to give an impression as if they, in the subsequent petition, were different from the one who had filed the earlier petition in Srinagar Wing of this Court.
Viewed from any angle, the conduct exhibited by the petitioners is highly deprecable and cannot be approved. Such litigants are not entitled to invoke the extraordinary writ jurisdiction. Both the writ petitions are, therefore, liable to be dismissed on this ground alone without even going to the merits of the controversy. There is, however, another significant aspect which this Court cannot lose sight of. The petitioners before this Court are hundred (100) and as per the record produced by the respondents, eighty five (85) of them have already been selected by the selection committee on the basis of their qualification, experience and personal interaction/interview. It is true that sixty two (62) petitioners had already responded to the Adverti-sement Notification before they filed WP(C) No. 1742/2022 and rest of them submitted their applications pursuant to the directions passed by this Court on 14.11.2022 in the connected public interest litigation. Be that as it may, all the 100 petitioners have participated in the selection process, out of which, 85 have already made it to the selection. Although looking to the conduct exhibited by the petitioners in this litigation, we could have directed their ouster from their office, notwithstanding their selection made by the selection committee pursuant to the impugned Notifications, yet, we have decided to take a lenient view in the matter with a hope that the petitioners would take a lesson from here and would never think of indulging in forum shopping or misleading the Court to derive any permanent or temporary unfair advantage.
DB observed that without commenting much, dismissed both the petitions, but not without imposing exemplary costs of Rs.1.00 lac, to be deposited by the petitioners in the Registry of this Court within four weeks from today. The dismissal of these petitions shall pave way for the selection committee to finalize the selection. We hope and trust that the Competent Authority shall act in the matter without any further delay and constitute the CWCs and JJBs in accordance with the 2015 Act and the Rules framed thereunder. JNF

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