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The Supreme Court today issued notice to the Centre and sought its response on a plea seeking the setting up of a permanent Bench of the Central Administrative Tribunal (CAT) in the Union Territory of Jammu & Kashmir for hearing service matters.
[Asheesh Singh Kotwal vs UOI petition (Jammu and Kashmir CAT)]
[Asheesh Singh Kotwal vs UOI - SC Order]
The Bench led by Chief Justice of India SA Bobde with Justices AS Bopanna and Hrishikesh Roy asked the Centre to respond in four weeks on a plea filed by two Jammu residents, who also sought quashing of the government order of April 29, 2020, which had conferred jurisdiction for hearing service matters arising from the UT of Jammu and Kashmir to the CAT in Chandigarh.
Additionally, a prayer is also made by the petitioners seeking a direction for the High Court of Jammu and Kashmir not to transfer pending service matters from before it to CAT in Chandigarh until a permanent Bench of CAT is set up for the UT.
The High Court should continue to receive and entertain fresh service writ matters till the setting up of a Bench, the petitioners have prayed.
The Supreme Court, however, did not pass any interim orders while issuing notice to the Centre and seeking its response.
The petitioners claim that the April 29 notification of the Centre is unconstitutional and in violation of the constitutional principles. It is added in their plea that the number of cases pending before the CAT, Chandigarh as on December 31, 2018 was nearly 50,000 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.
The CAT, while having a sanctioned strength of 4 members is functioning with only 1 member at this point. Through a press release dated May 1, the DoPT said that all service matters from the UT of Jammu and Kashmir will be taken up by a circuit bench of CAT for the UT.
Going into the change in status of Jammu and Kashmir from being a State with special status to two Union Territories now, the petitioners state that prior to this development, the Jammu and Kashmir High Court had the jurisdiction under Articles 226 and 227 to hear service cases.
The petition adds that it was the Supreme Court Bench of seven Judges that had said in the case of L Chandra Kumar vs UOI that jurisdiction of a High Court cannot be wholly excluded and the powers conferred thus are part of the basic structure of the Constitution. The powers of the High Court are very wide and unfettered under the scope of Articles 226 and 227.
The Supreme Court had also emphasized that if a Tribunal is being set up as an alternative forum, the same should be "a robust, effective institutional mechanism or authority." In this backdrop, the petitioners say that the same cannot be achieved through a circuit Bench of the CAT to hear nearly 40,000 pending matters.
It is submitted that there cannot be a complete ouster of the jurisdiction of the High Court and there cannot be a complete bar on the same. Given that there is no absolute bar on the powers of the High Court, there was no need for the identification of service matters and transferring them to the CAT, the petition argues.
Such an exercise of transferring the cases is not justified in the absence of a permanent Bench of the CAT in UT of Jammu and Kashmir. By virtue of the judgment in L Chandra Kumar case, the jurisdiction of the Jammu and Kashmir High Court cannot be abrogated. It is argued that High Court jurisdiction still stands retained despite the abrogation of Article 370 of the Constituion, which had resulted in government employees from Jammu and Kashmir becoming Central government employees.
Therefore, the plea states that pending cases should not be transferred and an ad-hoc arrangement in the form of a circuit bench of the CAT will not amount to a proper arrangement for dealing with such a large number of cases.
Fundamental rights under Articles 19(1)(g), 14, and 21 are also invoked by the petitioners, who claim that the government's April 29 notification as regards the CAT's jurisdiction is in violation of these provisions.
The petitioners were represented by Senior Counsel Ravindra Shrivastava and the petition was filed through Advocate Arjun Garg.
Earlier this week, a single Judge Bench of the Jammu and Kashmir High Court held that the High Court no longer has the jurisdiction to entertain any service matters relating to government employees since the abrogation of Article 370.
The Court had also directed the Registrar on the judicial side to stop entertaining any writs in relation to service matters and to give wide publicity to this judgment.
Prior to this, the High Court's Chief Justice, Gita Mittal, had also written to Union Minister of State Jitendra Singh, seeking the establishment of Administrative Tribunals with multiple benches having permanent seats in Srinagar and Jammu.