SRINAGAR, July 3: In a landmark decision, High Court has held that Central Administration Tribunal (CAT) have no jurisdiction to hear the matters related to the Jammu and Kashmir Bank.
This significant order has been passed by Justice Ali Mohammad Magrey in the petition of candidates aspiring for their consideration in the selection process commenced by the Jammu and Kashmir Bank Limited pursuant to Notification No.HR-Rectt-2018-1564 dated 06.10.2018 for filling up the posts of Probationary Officers and Banking Associates.
They challenged the notice dated 15.04.2020 issued by the bank whereby it has notified that the selection process conducted for the posts stands cancelled and the fresh Recruitment Notice No.JKB/HR-Rectt-2020-27 & 28 dated 01.06.2020 issued by the bank inviting applications for recruitment to 350 posts of Probationary Officers and 1500 Banking Associates.
During the course of hearing, Advocate General DC Raina submitted that the CAT Act is applicable to the Union Territory of Jammu and Kashmir and the bank having been declared as a Public Authority this court does not have the jurisdiction to entertain this writ petition.
Advocate General further submitted that after the establishment of the Central Administrative Tribunal (CAT) for the Union Territories of Jammu and Kashmir, and Ladakh, all the jurisdiction, powers and authority which were exercisable by this court immediately before establishment of the CAT in relation to the matters enumerated thereunder, in terms of Sub-Section (1) of Section 14 of the CAT Act are exercisable by the CAT as the court of first instance.
He made specific reference to the words ‘recruitment, and matters concerning recruitment’ occurring in Clause (a) of Sub-Section (1) of Section 14 and submitted that since the instant matter relates to recruitment in the bank, declared as a Public Authority, all jurisdiction and powers and authority in relation thereto lies with the CAT.
Similar argument was made by Sunil Sethi, senior counsel, for respondents, who went a step further to submit that since the bank is a Public Authority and a State within the meaning of Article 12 of the Constitution, the posts borne on it are civil posts under the Union and, therefore, are covered under Clause (a) of Sub-Section (1) of Section 14 of the CAT Act.
After hearing both the sides, Justice Ali Mohammad Magrey observed, “the Government order clearly suggests that the posts are created by the bank itself and recruitments thereto are, or are to be, made by the bank itself”, adding “a further insight into the material elements, discussed in the decision of the Supreme Court, vis-à-vis the bank can be had from a perusal of the relevant Articles and Memorandum of Association of the bank reproduced in the Full Court decision in Firdous Ahmad Tanki & Others Versus the J&K Bank Ltd & Others”.
“It also not shown that the UTs have the right to suspend and/or dismiss any holder of the post borne on the service of the bank; or that the UTs have the right to control the manner and method of doing the work of the holders of the posts borne on the service of the bank, or that the payment of their wages or remuneration is made by the two UTs”, High Court said, adding “further, it is not shown that the posts borne on the service of the bank are under the administrative control of the UTs or that the UTs have the right or power to create or abolish the posts and regulate the conditions of service of persons appointed to the posts in question”.
Justice Magrey further said, “it can by no stretch of interpretation of clause (a) of Sub-Section (1) of Section 14 of the CAT Act be said that the service of the bank is, or constitutes, a civil service of the Union or the posts borne on the service of the bank are, or constitute, civil posts under the Union”, adding “Sub-Section (3) of Section 14, it starts with the phrase “save as otherwise expressly provided in this Act”. This phrase has long since been interpreted to mean that the provision would apply only to cases not expressly provided for in the Act”.
“Applying this interpretation, since Sub-Section (1)(a)(b)(c) of Section 14 of the CAT Act does not expressly apply to the recruitment and matters concerning recruitment in the bank, Sub-Section (3), undoubtedly, would apply thereto. But the application of this provision viz. Sub-Section (3) of Section 14 of the CAT Act is hedged in the condition prescribed in Sub-Section (2) of Section 14, which is that Sub-Section (3) does not have an automatic application; its application is dependent on the discretion of the Central Government to apply it to a local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies etc”, High Court said.
“Such discretion has to be exercised only by issuance of a notification in that behalf. The language of Sub-Section (2) of Section 14 in this regard is unambiguous and empathic that the Central Government may, by notification, apply the provisions of Sub-Section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies owned or controlled by Government, not being a local or other authority or Corporation or society controlled or owned by a State Government”, Justice Magrey said.
He further observed, “during the course of arguments, this court specifically enquired from the Advocate General and Sunil Sethi, senior counsel, whether the Central Government had issued any such notification. They frankly answered in negative”, adding “it is not that Central Government has not issued any notification in exercise of the powers under Sub-Section 2 of Section 14 of the Act applying the provision of Sub-Section (3). Certain documents / notifications issued by the Central Government, from time to time, in exercise of such power under Sub-Section (2) of Section 14 have been placed before the court which depict that so far nearly 214 organizations, by their name, have been brought under the purview of Sub-Section (3) of Section 14 of the CAT Act; the J&K Bank, in any case, is not one amongst them”.
Justice Magrey further said, “it cannot be said that Sub-Section (3) of Section 14 of the CAT Act applies to the bank or the instant recruitment process of the bank”, adding “this answers the point in issue raised by the Advocate General and Sunil Sethi, senior counsel. Resultantly, it is held that the CAT does not have the jurisdiction under Section 14 in relation to the subject matter of controversy in the instant case; and, further, that this court continues to have the jurisdiction in relation thereto to entertain this petition”.
Accordingly, High Court admitted the petition for hearing and issued post admission notice with direction to list all the petitions for final hearing on July 20.