Mohi-ud-Din Khan vs Union of India

Bhat, J.—This case is before the Division Bench on a reference made by one of us' Bhat J). The questions which form the subject matter of

reference are under:

i) whether the Administrative Tribunals Act of 1985 (Act No : of 1985) would apply to the employees of Central Government serving in the State

of Jammu & Kashmir notwithstanding the fact that the repository of the Act i. e Art. 323A (Part XIV A) of the Constitution of India has not been

made applicable to the State of Jammu & Kashmir ? '

ii) Whether the jurisdiction of the High Court to entertain and decide writ petitions under Art. 226 in respect of service matters of Central

employees is taken away by the said Act ?

iii) Whether the writ petitions are 'other proceedings' within the meaning of section 29 of the Act, therefore, are liable to be transferred to the

Tribunal under the Act ?

The petitioner in this case, though resident of Jammu & Kashmir, was an employee of the Union of India. During the pendency of the writ

petition Central Administrative Tribunals Act of 1985 came into force. An objection was raised by the counsel for Union of India that this court has

no jurisdiction to hear the writ petition in view of the change of law. That was the reason for making the reference.

We have heard learned counsel for the parties.

Mr. Sadiq appearing for the petitioner submits that jurisdiction of this court under section 103 of the Constitution of J&K is not ousted by the

Administrative Tribunals Act nor is there any bar for this court to hear the writ petition against the Union of India filed by an employee of the Union

of India serving or residing in the state. He has referred to various provisions of the Constitution of India and to the provisions of the Administrative

Tribunals Act.

The Administrative Tribunals Act has its origin in section 323A of the Constitution of India, which is contained in part XIV A. This part was

introduced by the constitutional 42nd Amendment Act of 1976 in the Constitution of India. It provides that the Parliament may, by law, provide for

the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters with respect to conditions of

service of persons appointed to public service 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 under the control of the Govt. of India or corporation owned or controlled by the Govt.

Part XIV A begins from section 323 A. It is not applicable to the State of Jammu & Kashmir because of the 42nd Amendment by which this

part was introduced into the Constitution of India does not apply to the State of Jammu & Kashmir. Therefore Central Administrative Tribunal or

any Tribunal for which parliament can make laws has no application in so far as state of J&K is concerned.

Administrative Tribunals Act of 1985 divides the Tribunals under two beads. One is Central Administrative Tribunal and the other is State

Administrative Tribunal. In so far as the Central Administrative Tribunal is concerned, the Act applies to whole of India, In so far as the State

Administrative Tribunal Act is concerned, it applies to whole of India except to the State of J&K.

Chapter III of the Adminstrative Tribunals Act provides for jurisdiction, powers and authority of the Tribunal. Section 14 of the said Act

provides that the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority

exercisable immediately before that day by all courts except the Supreme court in relation to various matters concerning recruitment, and matters

concerning recruitment to any All India service or any civil service of the Union or a Civil post under the Union or to a post connected with defence

or in the defence services, being in either case, a post filed by a civilian; all service matters concerning a number of any All India Service; or a

person appointed, to any civil service of the Union or any civil post under the Union or any post under the Union etc.

Chapter V excludes the jurisdiction of the Courts except the Supreme Court under Art. 136 of the Constitution. On the basis of this section, and

from the date from which any jurisdiction, power and authority becomes exercisable under this Act by a Tribunal in elation to recruitment and

matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or

post, no court except the Supreme Court or Industrial Tribunal shall have or be entitled to any jurisdiction, powers or authority in relation to such

recruitment or matters concerning such requirement of such service matters. Section 29 provides that every suit or other proceedings pending

before any court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause

of action whether on it is based in such that it would have, if it had arisen after such establishment within the jurisdiction of such Tribunal shall stand

transferred on that date to such Tribunal. This section would not apply to an appeal pending before the High Court.

From the joint reading of sections 11 and 28, it is revealed that jurisdiction in respect of service matters which was vested in the High Courts

under Art. 226 would cease to vest in the High Courts and was to be exercised by the Administrative Tribunals which are set up by the Act of

1985. Cases pending before the High Court on the date on which the Act came into force are to be transferred to the Administrative Tribunals

under section 29 of the 'Act. However, the appeals would remain pending before the High Court, Therefore, by an Act of parliament jurisdiction of

courts, except the Supreme court under Art. 136 of the Constitution and that of the Industrial Tribunals under the Industrial Tribunal Act was taken

away. Parliament also got the power to make such law only in terms of section 323A contained in Chapter XIV A of the Constitution by 42nd

Amendment Act of 1975.

The admitted position is that Administrative Tribunals Act of 1985 is not applicable to the State of Jammu & Kashmir. It emanates from

section 323A of Part XIV A of the Constitution. That also is not applicable to the State of Jammu & Kashmir. The Act is not to apply to certain

categories who are members of Navel, Military or Air Force or any other armed force, Officers of the Supreme Court and High Courts and

person appointed to the security staff of the House of parliament.

The Tribunal therefore in the other parts of the country is a substitute to the High Court and not supplementary to the High Court in matters in

which the High court had power to exercise its jurisdiction under Art. 226 of the Constitution of India.

In Udai Bhan Singh Chauhan and etc. Vs Union of India and others 1987 Lab. 1C. 515 a full bench of the Allahabad High Court have stated the

true position in law so far as it relates to other parts of the country. On consideration of the various provisions of the Administrative Tribunals Act,

was observed by the Full Bench as under:

We must, therefore, hold that upon the Constitution of the Administrative Tribunal under the Act. the jurisdiction, power and authority of this court

under Articles 226/227 stand excluded. By the operation of S. 29 (1) of the Act, every suit or other proceeding including the writ proceeding

except the appeals pending in this court shall stand transferred to the Tribunal.

In M.B. Shakula's case the same High Court had held that powers of the High Court under Art. 226 of the Constitution in relation to the service

matters could be exercised. However, this view was over ruled by the Full Bench.

In S.P. Sampath Kumar Vs. Union of India and ors, (AIR1986 SC 366) the Supreme Court dealt with certain questions at length and it was held

that the Administrative Tribunals Act was entacted by parliament in exercise of the powers conferred by clause (1) of Art. 323A which was

introduced in the Constitutional 42nd Amendment Act of 1976. Clause 2 (d) of the said Article provides that Law made by parliament under

clause (1) may exclude the jurisdiction of the Courts except the jurisdiction of the Supreme Court under Art. 136. The exclusion of the jurisdiction

of the High Courts under Articles 226 and 227. is specifically authorised by the constitutional amendment enacted in the said Art i.e Article 323 A

of the Constitution. It has provided effective institutional mechanism or authority for judicial review. Therefore, Art. 323 A could exclude the

jurisdiction of the High Courts under Art. 226 and 227. If effective institutional mechanism or arrangement for judicial 'review was not provided,

Art. 323 A would have been violative of the basic structure doctrine and violative of the powers of the Parliament. The law framed by the

Constitution under Art. 323 has not left a void but has provided effective, institutional mechanism or authority of judicial review. Consequently the

exclusion of High Courts powers under Arts. 226 and 227 in respect of service matters and vesting such jurisdiction in Administrative Tribunals

can pass the test of constitutionality and is within the ambit of powers of parliament. The Administrative Tribunal was held to be effective and

efficacious in exercising the powers of Judicial review. However, certain recommendations were made to the Govt. about the method of

constitution of the Tribunals in consultation with the Chief Justice of India.

The Administrative Tribunal Act would apply to certain persons who are named in the Administrative Tribunal Act and within its purview

Central Government employees serving in the State of Jammu and Kashmir could also be brought. The jurisdiction of the Central Administrative

Tribunal would extend in relation to all the employees of the Central Govt. no matter at which place they are serving. The, place of posting is not

material for application of the Act. It is the nature of the employees and under whom such employees is serving which would determine the

jurisdiction of the Administrative Tribunal. The Act is not made applicable to the state of J&K nor is the fountain from which the Act flows applied

to the State of Jammu & Kashmir. That would not exclude the central Government employees mentioned in section 14 of the Act from the purview

of the Act.

Our answer to question No. 1 therefore is that the Administrative/Tribunals Act of 1985 would apply to the employees the central Govt.

serving in the State of Jammu & Kashmir though the repository of I the Act i. e. 323A of the Part XIV A of Constitution of India has not been

made applicable to the State of Jammu & Kashmir.

That brings us to second question, whether the jurisdiction of the High Court to entertain and decide writ petitions under Art. 226 in respect of

service matters of Central employee is taken away by the said Act ?

The Central Administrative Tribunals Act of 1985 as already stated is not applied to the State of Jammu & Kashmir. Section of the said Act

takes away the jurisdiction of the High courts in the rest of the country to entertain or decide any writ petition under Art. 226 and 227 of the

employees which pertain to service matters of the employees. Section 28 is also not applicable to the State of Jammu and Kashmir Therefore, the

jurisdiction of the High Court of J&K under the said section is not taken away.

Jurisdiction of the High court of J&K can be taken away only by an Act of parliament which is applied to the State of J&K in accordance with

the law. There is a mechanism for applying an Act of parliament to the State of Jammu & Kashmir. Therefore, Chapter XIV A of the constitution is

not applicable to the State of Jammu & Kashmir. The Central Administrative Tribunal Act would therefore not effect the jurisdiction of the High

court of Jammu & Kashmir State. The J&K State High court has the jurisdiction to exercise powers under Articles 226 and 227 of the

Constitution of India and it has power to issue writs under section 103 of the Constitution of Jammu & Kashmir. Exclusion of jurisdiction of this

High court cannot be presumed in the absence of any law made in this behalf. Law made in behalf has not been applied to the State of Jammu &

Kashmir. Therefore, jurisdiction of the Jammu and Kashmir High court to entertain and decide the writ petitions in respect of Central Govt.

employees is not barred.

Mr. A.K Malik appearing for the Union of India submitted that Administrative Tribunal Act was made under Chapter XIVA read with 7th

Schedule, list I Entry 95. The schedule pertains to Union list. Entry 95 places jurisdiction and powers of all courts except the Supreme court with

respect to any of the matters in this list; admirality jurisdiction in the Union list. By itself it does not empower the Parliament to frame laws about the

exclusion of the jurisdiction of High courts to issue writs. That power according to the Supreme court is given to the parliament only by virtue of

Chapter XIV A of the constitution because Art. 323A empowers the parliament to make laws with regard to setting up of Administrative

Tribunals. In pursuance of that chapter Administrative Tribunal was set up and the Administrative Tribunals Act excluded the jurisdiction of the

High court except the Supreme court to issue writs. Therefore, entry 95 has nothing to do with the exclusion of jurisdiction of the Jammu &

Kashmir High court to issue writs. Nor is Administrative Tribunal Act framed under this schedule.

Our answer to question No: (11) therefore is that jurisdiction of the High Court to entertain and decide writ petitions under Art. 226 in respect

of service matters of Central Government employees is not taken away by the Central Administrative Tribunals Act. The employees can invoke the

jurisdiction of this court which it can exercise under Articles 226 and 227 of the Constitution of India.

Section 29 which enjoins upon the High Court to transfer all the proceedings and suits pending before the High Court to Administrative

Tribunal is not applicable to the State of Jammu and Kashmir. Therefore, it is not obligatory for this court to transfer any petition or other

proceedings to the Tribunal under the Administrative Tribunals Act for adjudication because that power is not vested in this High Court.

The bar of jurisdiction in regard to pending cases is specifically provided by section 29 of the Act. Since that section has no application so far

as this High Court is concerted, therefore, this High Court cannot transfer pending cases to the Tribunal which are brought before it under Articles

226 and 227 of Constitution of India or section 103 of the Constitution of Jammu & Kashmir.

Our answer to question No: 3 is therefore, that no writ petitioner or any other proceedings within the meaning of section 29 is liable to be

transferred from this Court to the Administrative Tribunal because Administrative Tribunals Act and the respository of the Act i.e chapter XIV A

of the Constitution of India is not made applicable to the State of Jammu & Kashmir.

M/S. K.N Raina, Hakim Ishtiyak Hussain and H.L Raina raised some academic discussions about the powers of the Jammu and Kashmir

High Court and about the doctrine of exclusion of jurisdiction, In view of the answer given by us to the reference we need not go into these details.

It is turn that for State of J&K special provision is made in the Constitution of India and mechanism for applying constitutional amendment or any

law to the State If law which takes out jurisdiction of the High Courts in rest of the country is mot made applicable to the State of J&K, the

jurisdiction of she High Court of J&K is not curtailed because for taking away the jurisdiction of the High Court of J&K, in matters of issuance of

writs, parliament can frame the law which has got to be applied in accordance with procedure provided in the Constitution. Exclusion of

jurisdiction of this Court to issue writs, cannot be inferred merely because Central Administrative Tribunals for the Central Govt. Employees of

various kinds is set up by the Central Govt. by virtue of the Act of 1985 which in turn has been passed by introducing Chapter XIV A in the

Constitution of India by 42cd amendment Act As already pointed out neither 42nd Amendenment Act is applicable to the State of J&K nor is

General Administrative Tribunals Act of 1985 applicable to the state of J&K. Therefore, bar of jurisdiction to entertain the writ petition is not

created by any law. The Administrative Tribunals Act is not framed under Entry 95 of the Union List. This we have said because powers of this

High Courts and also the preamble of the Constitution of J&K was discussed before us for a good deal of time.

The writ petition shall now be listed before an appropriate bench for decision on merits in view of our answer to the question referred to the

Division Bench.