Advocate Pranav Kohli
The Administrative Tribunals find its source or origin in the Constitution of India under Part XIV-A Article 323 A & 323 B, which was inserted by Constitution (42nd Amendment) Amendment Act, 1976. The Administrative tribunal Act, 1985 came to be established in the year 1985 by the Parliament while exercising the powers under Article 323A. The Act received the assent of the President on 27th of February 1985 and was enforced on 1st November 1985. Prior to the establishment of the Central Administrative Tribunal with five benches, writ petitions were filed in the Supreme Court and various High Courts challenging the constitutional validity of Article 323-A and provisions of the Act. The principal contention was that the writ jurisdiction of the Supreme Court under article 32 and that of the High Courts under article 226 could not be taken away even by constitutional amendment. Reference may be given to judgment of the Honb’le Supreme court in L. Chandra kumar’s case in this regard.
The administrative tribunal deals with the adjudication and resolution of the disputes pertaining to recruitment and conditions of service etc. of the employees appointed to (i) Public services and posts in connection with the affairs of the Union; or (iii) any State; or (iii) of any local authority under the control of the Government of India; or (iv) any corporation owned or controlled by the Government.
There are three kinds of Administrative tribunals (i) Central Administrative tribunal; (ii) Administrative tribunal for a State; or (iii) Joint Administrative tribunal for two or more states.
The basic object of the establishment of the Administrative tribunal was to reduce the burden of various high courts, where there are large number of service matters are pending and provide a forum to deal exclusively with service matters in an expeditious manner.
Notwithstanding, the incorporation of the Article 323-A w.e.f 1976, the erstwhile employees of state of J&K were not covered under the Administrative tribunal Act, 1985 for the reason that the 42nd amendment was not made applicable to the erstwhile State of J&K. It happened so because of the rigors of Article 370, as it required concurrence of the then State Government under Article 370 and also for the reason that not all of the provisions of the Constitution of India were made applicable to the state of J&K. Even the State Administrative Tribunal was also not constituted in the State of J&K. Therefore, the employees of the erstwhile state of J&K were not covered under the Administrative tribunal Act, 1985.
However, the situation changed by Presidential order of 5th of August, 2019, when the Constitution (Application to Jammu & Kashmir) Order, 2019 was issued. As we all know, the president rule was imposed in the State of J&K w.e.f June, 20, 2018 and in the interregnum period, the Constitution order of 2019 was introduced, which was in concurrence with the government of the J&K (Governor at that point of time). As per Clasue 2 of this order, all the provisions of the Constitution, as amended from time to time were made applicable to the State of J&K. Thus, for the first time, the rigor of Article 370 was diluted and the constitution per se in its entirety was made applicable to the State of J&K. The natural corollary to this constitution order was that Article Part XIV A dealing with Tribunals (Articles 323 A & 323 B) became ipso facto applicable to the state of J&K.
Be that as it may, even with the Article 323 A being extended to the state of J&K, the employees of the erstwhile state did not come under the purview of Administrative tribunal Act, 1985 for twin reasons, firstly, the J&K state employees continued to be the employees of the state Government and there was no Administrative tribunal for the state of J&K, Secondly, these employees were not the members of any All India Service of the Union or the body under the control of the Union. Thus, the only remedy or forum for these employees was the writ jurisdiction of the High court of J&K.
Thereafter the most important event in the history of J&K took place i.e. the coming in to force of the J&K Reorganization Act, 2019 which was published on 09-08-2019 in the official Gazette of India. In terms of section 4 of the Act, on and from the “appointed day”, the erstwhile state of J&K shall be the Union Territory of J&K. Date of Enforcement;- the Ministry of Home Affairs (Department of Jammu & Kashmir Affairs) issued S.O. 2889 (E) of 2019, dated 09-08-2019, And notified 31st day of October, 2019, as the appointed day for the purposes of the Act.
In terms of section 90 of the Reorganization Act, the appropriate legislature, the Central Government in the case of a UT will have the power to regulate the recruitment and conditions of service of the employees of the UT of J&K.
Section 95 makes all Central laws in Table 1 of the Fifth Schedule applicable to the UT of J&K. Table -1 of the Fifth Schedule contains the list of the Central Laws which have been made applicable to the UT of J&K and Ladhak, wherein, the Administrative Tribunal Act, 1985 has been made applicable with an amendment of Clause (b) of Sub-section (2) of section 1 shall be omitted (except to the state of J&K). Thus w.e.f the appointed day (31-10-2019), the Administrative tribunal Act, 1985 has been made applicable to the UT of J&K and shall govern all its employees. The Service matters pertaining to recruitment, and conditions of service of these employees shall be adjudicated exclusively by the Administrative Tribunal.
The Ministry of Personal, Public Grievances and Pensions (Department of personnel and Training) issued another notification dated 29th of April, 2020, whereby it has been notified that for the employees of UT of J&K and Ladhak, the jurisdiction will be with the Chandigarh bench. In other words, the service disputes which were earlier being filed in and heard by the High court of J&K will now be heard by the Chandigarh bench of the Administrative Tribunal. Nothing more nothing less.
An impression came to drawn by few and many that henceforth, the pending cases as also the fresh will have to be pursued in the Chandigarh bench being located there, and the lawyers and litigants will have to travel to Chandigarh bench for pursuing their cases. Though there was no occasion of having this impression as the Notification dated 29th of April, 2020 only reiterates like earlier that Chandigarh bench shall have the jurisdiction to hear the service matters of employees of UT of J&K and Ladhak.
The next big question is as to whether the UT of J&K requires permanent bench or a circuit bench which will serve the need and / or fulfill the basic object of providing expeditious justice to the employees, the answer is certainly the former. Currently there are about 35,000 service matters which are pending in the J&K High Court and as per Section 29 of the Administrative Act, 1985, all the service cases shall stand transferred to the Chandigarh bench of the Tribunal. As per information, there are around 3000 service cases already pending in the Chandigarh Bench. There are only two benches each comprising of one judicial and one administrative member. Out of the four vacancies only 1 is filled and three are vacant. Meaning thereby, that there is not even one bench available to hear the cases. Needless to state that the composition of Tribunals and Benches is stipulated in Section 5 of the Act of 1985. As per section (2) of Section 5, the bench shall consist of one Judicial Member and one Administrative member. Thus, a validly constituted bench is also not available in the Chandigarh Bench. Filling up of these vacancies is also of utmost importance.
Another aspect of the matter is that the Chandigarh Bench also has the jurisdiction over three more states and one UT i.e. States of Punjab, Haryana and Himachal Pradesh & the Union Territory of Chandigarh. Whether two Benches of CAT can bear the burden of these many cases of all these three states and UT’s simultaneously? When the Chandigarh bench also holds the courts at Himachal State as a circuit bench.
Earlier also when the CAT bench of Chandigarh used to hold its sittings in the Jammu and Kashmir, it used to hold it not more than 2 -5 sittings in a period of one or two month. Even if the number of sittings is increased, unless the Bench holds the courts on regular basis, it shall not serve the purpose of providing expeditious justice to the UT employees besides the dire requirement of the litigants and the lawyers who are seeking the disposal of their cases in a time bound manner. Therefore, in the fitness of the things, it is inevitable that the Central Government and the local administration shall make concerted efforts to set up a regular CAT bench for the Union Territory of Jammu & Kashmir with allied infrastructure and secretariat. The demand of setting up of regular bench appears to be absolutely genuine and the need of the hour. I believe the government and / or the people at the helm of the affairs will certainly take in to consideration these important practical aspects while deciding its further course of action.
(The author is former Vice President of the Jammu & Kashmir High Court Bar Association)
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