B L Saraf
The dilution of Art 370 of the Union Constitution and downgrading Jammu and Kashmir State to two Union Territories may have served agenda of some but the move has landed Union Government in a tangle from which it is struggling to come out. With the passage of time, the complicacies and unnecessary inconveniences created are slowly but surely showing up. First, the residents were made to queue up in a hot, humid and COVID Infected atmosphere, in an unnecessary exercise , to claim Domicile Certificates, on the plea to defend them from ” outsiders ” invasion on their lands and jobs . Soon came the MHA fiat that anyone from “outside” can acquire immovable property in J &K for the purposes of setting up industries and doing business. So , the whole DC business came to a naught.
The Jammu and Kashmir Reorganization Act 2019 No. 34 of 2019 ( Act 34) has provided for delimitation of assembly constituencies in J &K. But the process is going nowhere. Though a Commission for this purpose has been constituted a year before but it has made no progress so far when its term is about to expire.
The list is long . However, presently we limit the comment to the fate of our Public Service Commission (PSC). Section 128 of The Constitution of Jammu Kashmir ( State constitution) provided for Public Service Commission in the State . Sections 129 to 137 gave a detailed procedure regarding appointment of the members, chairman, terms and conditions for holding office by them, their removal, functions etcetera. The constitutional change of 5th August 2019 has nullified the State Constitution. So, the institutions created under it were rendered ineffective. State PSC was one among them .
Sec 93 of the Act 34 may have saved the existing PSC but , when examined carefully, a piquant situation emerges out. Sub sec (1) says ” the Public Service Commission for existing State of Jammu & Kashmir shall , on and from the appointed day , be the Public Service Commission for the Union Territory of Jammu & Kashmir .” Sub Section 3 says that the persons holding office immediately before the appointed date as the chairman and members of PSC for the existing State of J&K shall, as from the appointed date, be the Chairman, or the case may be ,the other members of PSC for the UT of J &K. While as Sub Sec 4 provides that any person who becomes the Chairman and Member of the PSC for the J&K UT on the appointed day under Sub Sec 3 shall be entitled to receive from the Government of UT of J&K, conditions of service not less favorable than those to which he was entitled under the provisions applicable to him. (Emphasis supplied)
The position could be otherwise which is not in the public domain, the impression ,however, is clear : that aforesaid provision not only saves the PSC, created under State Constitution , but also bestows it with a continuity from the past : that the Chairman and the members will continue to enjoy same terms and conditions of service which they were entitled to prior to the appointed day. So the logical reading of the provision is that, along with other terms and conditions ,the Chairman and the members will have five year tenure or till they attain age of sixty five years.
For all intents and purposes, Act 34 has the characteristics of a Constitution that provides a guide as to how UT of J &K should be governed henceforth, as was done under the State Constitution, prior to the appointed day. It provides for all the limbs viz legislature, Executive and Judiciary necessary for the State to function. Seemingly , one essential state institution like PSC has not been adequately taken care of. No doubt, Sec 93 of the Act 34 makes a provision for it but it is so sketchy and inadequate as to make us no wiser. It doesn’t say anything about the fresh service terms and conditions of the Chairman and members ; oath they may take and how the PSC is to conduct its business. The point taken can be well understood when a reference is made to a provision relating to the High Court. There may not be an exactness in the analogy, nonetheless, it will help strengthen the point.
Sec 75 of the Act 34 provides for a Common High Court for the two UTs of J&K and Ladakh ; that the Judges of High Court of J&K for the existing State of J&K holding office immediately before the appointed day shall become on that day the Judges of the common High Court. Here, a look at the relevant provisions of the Jammu and Kashmir Reorganization (Removal of Difficulties) Order 2019 Order 2019 shortly) will be profitable . MHA has been notified the Order on 30 Oct 2019 vide SO, 3912 (E) and intends to remove difficulties arising in giving effect to the Act 34.
According to the Cl 1 Of the Order 2019 the Judges of J&K High Court holding office immediately before the appointed day shall be deemed to have been appointed under Art 217 of the Constitution and they shall be deemed to have taken oath or affirmation under Art 219 of the Constitution and shall continue to function as Judges of the common High court . The aims and objects of the Order 2019 explain that all the provisions of Constitution of India relating to the appointment of High Court Judges are to be applicable to the Judges of common High Court.
The confusion with respect to the legal status of PSC gets confounded when we have a look at Cl 16 of the Order 2019. It protects the position of persons who have taken oath and are holding positions under the State Constitution or any other law in force in the existing State of Jammu & Kashmir immediately before the appointed day. It says they shall be deemed to have taken such oath or affirmation under the Constitution of India or any other law applicable tp the UTs of J&K and Ladakh, and shall continue to hold office or position as such till the appointed day.
Well according to this clause those persons will cease to hold office after the ‘appointed day.’ Applying this test to the Chairman and members of PSC their oath would be valid till 30 10 2019. But what about thereafter? Question arises because there is no corresponding provision in the Order 2019 like Cl 1 or in Act 34 that would clear the legal position vis-a-vis PSC. In any case clause 16 is a superfluous one. Nothing needs to be clarified as the State Constitution and the state laws continue to be in force till the appointed day arrives. Need for clarification would arise if, after the appointed day, any difficulty is felt in implementing a law or any proviso of the Act 34.
The legal status of the PSC seems to be in a flux. There must be clarity about it because the whole administrative structure of the UT is dependent on its recommendations. The PSC has been a Constitutional body: for clarifying the matter, it ought to have been brought- If not already done – within the ambit of relevant Article of the Union constitution, as has been the case with J&K High Court. Or else MHA may take a cue from Cl,16 of the Order 2019 , borrow sections 128 -137 from the State Constitution and, with required alterations /modifications , insert them in Sec 93 of Act 34, or in Order 2019, to complete the code.
(The author is former Principal District & Sessions Judge)
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