Full Judgment Text
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CASE NO.:
Appeal (civil) 5448 of 2000
Appeal (civil) 5021 of 2001
PETITIONER:
KENDRIYA VIDYALAYA SANGATHAN & ANR.
Vs.
RESPONDENT:
SUBHAS SHARMA
DATE OF JUDGMENT: 07/03/2002
BENCH:
S.N. Phukan
JUDGMENT:
Phukan, J.
In these two appeals by special leave, two orders of the
High Court of Jammu & Kashmir at Jammu have been assailed. By
the impugned orders the High Court rejected two applications filed by
the appellants for transfer of the writ petitions to the Central
Administrative Tribunal, Chandigarh Bench. As the points involved
are the same, they were heard together and by this judgment both
the appeals are disposed of.
The appellants are the Kendriya Vidyalaya Sangathan (for
short ’Kendriya Vidyalaya’) and its officials. The respondent No.1 in
Civil Appeal No.5021 of 2001 and the sole respondent in Civil Appeal
No.5448 of 2000 are the employees of the Kendriya Vidyalaya and as
some dispute arose regarding their service conditions, they filed two
writ petitions under Article 226 of the Constitution before the High
Court for adjudication. In the above two writ petitions the Kendriya
Vidyalaya filed two separate applications for transfer of the writ
petitions to the Central Administrative Tribunal on the ground that
under the Administrative Tribunals Act, 1985 (for short ’the Act’) the
Tribunal has got jurisdiction to decide the disputes. By the impugned
orders, both the applications were dismissed.
By order dated January 24, 2002, this Court after hearing
the counsels for the parties issued notice to the learned Attorney
General of India and the Advocate General of the State of Jammu
and Kashmir. The learned Advocate General did not respond. Mr.
Altaf Ahmed, learned Additional Solicitor General has appeared on
behalf of the learned Attorney General to assist this Court.
The High Court relying on a Full Bench decision of the
same High Court in Kuldip Khud versus Masud Ahmad Chodhry &
Others [1994 JKLR 25] held that the writ court has jurisdiction to
decide service disputes of the present nature and, therefore, rejected
the prayer for transfer holding that the writ petitions were
maintainable. The High Court extracted the following paragraph from
the judgement of the Full Bench:
"We have already indicated that the
Administrative Tribunals Act, 1985 though
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extends to whole of India, would still not affect
the constitutional jurisdiction of this court in
entertaining the writ petitions concerning the
service matters of the employees of the central
government. Applicability of the Act is different
than the destruction of the Constitutional
jurisdiction of this court by the Act. While the
employees of the central government etc.
posted in the state of Jammu & Kashmir may
have been provided in respect of service
matters, they still retain the choice to approach
this court under section 103 of the State
constitution by filing a writ petition and praying
for an appropriate writ order or direction for the
redressal of their grievances. The Tribunal in
these circumstances will be an additional or
alternative forum and not an exclusive forum."
Mr. Altaf Ahmed has made the following submissions: -
(1) In view of clause (a) of sub-section (2) of Section 1 of the Act,
the Act extends to the State of Jammu and Kashmir and as the
respondents are employees of the Kendriya Vidyalaya, which is
an autonomous body registered under the Societies
Registration Act and controlled by the Government of India,
such disputes regarding service matters are exclusively within
the jurisdiction of the Central Administrative Tribunal.
(2) According to Mr. Ahmed though the High Court under Article
226 of the Constitution or Section 103 of Jammu and Kashmir
Constitution has wide power, but in view of the restraint
imposed by the judgment of the Constitution Bench of this
Court in L. Chandra Kumar versus Union of India and Others
[1997 (3) SCC 261], High Court ought not to have entertained
the writ petition.
Mr. Gaurishankar, learned senior counsel and Mr.
Rajappa and Mr. Kapur, learned counsels appearing for the
appellants have adopted the submissions of Mr. Altaf Ahmed. In reply
Mr. B.D. Sharma, learned counsel appearing for the respondent No.1
in Civil Appeal No.5021 of 2001 has submitted that in view of Article
370 of the Constitution and the constitution of the State of Jammu
and Kashmir, the Act does not apply to the State. Though, notice
was served, the respondent in Civil Appeal No.5448 has not
appeared.
Regarding applicability of the Act to the State of Jammu
and Kashmir, Mr. Ahmed has drawn our attention to clause (a) of
sub-section (2) of Section 1 of the Act. The said sub-section runs as
follows: -
"(2) It extends, -
(a) in so far as it relates to the Central
Administrative Tribunal, to the whole
of India.
(b) in so far as it relates to
Administrative Tribunals for States,
to the whole of India, except the
State of Jammu and Kashmir."
In view of the above legal provision, we hold that the Act
applies to all categories of central government servants and others
posted to work in the State of Jammu and Kashmir as well. We are,
therefore, of the opinion that the contention of Mr. B.D. Sharma,
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learned counsel for the respondent has no force. We may add here
that the Full Bench of the High Court in Kuldip Khud (supra) has
also taken the view that the Act extends to the whole of India which
includes the State of Jammu and Kashmir.
In support of his contention that the Central Administrative
Tribunal has exclusive jurisdiction in respect of service matters of the
employees of the Kendriya Vidyalaya, Mr. Ahmed has drawn our
attention to sub-clause (iii) of clause (b) of sub-section (1) of Section
14 of the Act. The said provision is extracted below: -
"14.Jurisdiction, powers and authority of the
Central Administrative Tribunal.-
1. Save as otherwise expressly provided in this
Act, 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-
(a).......
(b) all service matters concerning-
(i) . . . . .
(ii) . . . . .
(iii) a civilian not being a member of an
All-India Service or a person referred
to in clause (c) appointed to any
defence services or a post connected
with defence,
and pertaining to the service of such member,
person or civilian, in connection with the affairs
of the Union or of any State or of any local or
other authority within the territory of India or
under the control of the government of India or
of any corporation or society owned or
controlled by the Government."(emphasis
supplied)
The Kendriya Vidyalaya is an autonomous body
registered under the Societies Registration Act and controlled by the
Government of India and that being the position the Administrative
Tribunal has jurisdiction concerning service matters of the employees
of the Kendriya Vidyalaya in view of sub-clause (iii) of Section
14(1)(b). In this connection, the learned Additional Solicitor General
has also drawn our attention to the notification of the Government of
India dated 17th December, 1998 issued under sub-section (2) of
Section 14 of the Act by which the Central Government specified that
the Act shall apply to the organisations mentioned in the schedule to
the notification and the Kendriya Vidyalaya has also been included in
the said notification at item no.34. Therefore, Mr. Ahmed has rightly
submitted that the service disputes concerning the employees of the
Kendriya Vidyalaya would come under the jurisdiction of the Central
Administrative Tribunal. It does not make any difference that the
institution is located in Jammu and Kashmir and the respondent is
working there.
To appreciate the second submission of Mr. Ahmed we
extract below relevant portions from paragraphs 93 and 99 of the
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decision of the Constitution Bench of this Court in L. Chandra
Kumari’s case (supra): -
"(93).......We may add that the Tribunals will,
however, continue to act as the only courts of
first instance in respect of the areas of law for
which they have been constituted. By this, we
mean that it will not be open for litigants to
directly approach the High Courts even in cases
where they question the vires of statutory
legislations (except, as mentioned, where the
legislation which creates the particular Tribunal
is challenged) by overlooking the jurisdiction of
the Tribunal concerned."
"(99)........It will not, therefore, be open for
litigants to directly approach the High Courts
even in cases where they question the vires of
statutory legislations (except where the
legislation which creates the particular Tribunal
is challenged) by overlooking the jurisdiction of
the Tribunal concerned. Section 5(6) of the Act
is valid and constitutional and is to be
interpreted in the manner we have indicated."
The Constitution Bench of this Court has clearly held that
Tribunals set up under the Act shall continue to act as the only courts
of first instance ’in respect of areas of law for which they have been
constituted’. It was further held that it will not be open for litigants to
directly approach the High Court even in cases where they question
the vires of statutory legislation (except where the legislation which
creates the particular Tribunal is challenged) by overlooking the
jurisdiction of the concerned Tribunal.
In view of the clear pronouncement of this Court, the High
Court erred in law in directly entertaining the writ petitions concerning
service matters of the employees of the Kendriya Vidyalaya as these
matters come under the jurisdiction of the Administrative Tribunal.
We, therefore, hold that the High Court committed an error by
declining to transfer the writ petition to the Central Administrative
Tribunal. Consequently, we set aside the impugned orders and direct
the High Court to transfer both the writ petitions to the Central
Administrative Tribunal, Chandigarh Bench which may, in its turn,
make over the case to the circuit bench in the State of Jammu and
Kashmir for disposal in accordance with law.
We record our appreciation for the valuable assistance
rendered by Mr. Altaf Ahmed.
In the result both the appeals are allowed. Parties to bear
their own costs.
.J.
[S.N. PHUKAN]
March 07,2002