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The Court has also directed the Registrar (Judicial) to not entertain the writ petitions relating to service disputes of the employees of Jammu and Kashmir/ Ladakh or those of Central Government Employees.
The Jammu & Kashmir High Court on Wednesday disposed of a service matter concerning a medical officer stating that the High Court no longer has the jurisdiction to entertain service matters following the abrogation of Article 370 of the Constitution and the bifurcation of the erstwhile State into two Union Territories. (Fehmeeda Akhter vs UT of Jammu & Kashmir)
With this, the Court noted that all Central laws are now applicable to Jammu and Kashmir.
Justice Ali Mohammad Magrey made the observation while dealing with a petition filed by a medical officer challenging certain transfer orders.
The High Court pointed out that it did not have jurisdiction to entertain service matters concerning government employees. All such matters now will have to be heard by the Central Administrative Tribunal (CAT) at Chandigarh which would be the forum of first instance.
When the matter was taken up for hearing by the High Court via video conferencing, the Advocate General, Dr. DC Raina, at the outset challenged the maintainability of such a plea before the High Court.
Raina argued that following the abrogation of Article 370 and revocation of the special status accorded to the erstwhile State of Jammu & Kashmir, all central laws are now applicable to the two Union Territories of Ladakh and Jammu & Kashmir. This would include the applicability of the Administrative Tribunals Act, 1985 which provides for service matters concerning government employees to be heard by the CAT.
The counsel for the petitioner, however, opposed this position and argued that the changed status of the region does not take away the jurisdiction that was conferred on the High Court. It was argued that The Central Administrative Tribunals Act itself in Section 1(2)(b) makes the Act applicable in all of India "except the State of Jammu and Kashmir."
The Court, however, rejected the petitioner's argument and pointed out that the exemption from the applicability of the Act was given to the State of Jammu and Kashmir, which now no longer exists on account of being bifurcated into Union Territories.
Further, the petitioner had also cited the 1994 judgment by a Full Court of the High Court in the case Kuldip Khuda & Ors v. Masud Ahmad Choudhary & Or where it was held that CAT has an "additional or an alternative jurisdiction", not an exclusive one. Therefore, he had argued that the High Court's jurisdiction is not deposed.
The Advocate Geenral countered this argument by pointing out that the judgment had stated the position in law that existed prior to the abrogation of Article 370. However, with the decisions taken on August 5 and 6 of 2019, the position stands altered.
Agreeing with Raina's arguments, the Court highlighted that the Central Administrative Tribunal Act, 1985 was established under Article 323A of the Constitution of India, which along with Article 323B provided for establishment of various Tribunals. The Court underscored,
The Court took note that the judgment in the Kuldip Khuda case was passed prior to abrogation of Article 370, at a time when the State of Jammu and Kashmir enjoyed a special status. However, on the application of the Jammu and Kashmir Re-organization Act, 2019, all Central laws govern the Union Territories that the State has been bifurcated into.
Therefore, to say that the jurisdiction of the Court is protected on account of the judgment would be "not only misconceived but misdirected also", the judge observed. The Court thus concluded,
The Court, however, granted liberty to the petitioner to approach the CAT and said that owing to the urgency in the matter, it is expected that the CAT would take up the matter for hearing on an urgent basis.
The Court further issued the following instructions as regards other similar matters that may come before the High Court in future:
The Registrar (Judicial) of the High Court is instructed 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 concerning Central Government Employees.
The Registrar (Judicial) is also directed to give wide publicity to this judgment to ensure that the position as regards jurisdiction is made known.
The petitioner was represented by Advocate Mohammad Iqbal Dar and the Government of the Union Terriroty of Jammu & Kashmir was represented by Advocate General DC Raina.