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After the change in the status of Jammu and Kashmir from a state to a union territory, the Central Government recently issued a notice regarding the filing of service matters. The notice stated that the government employees would now have to file any service-related matters in the Chandigarh Bench of the Central Administrative Tribunal (CAT) instead of proceeding in the High Court of Jammu and Kashmir. Such cases would include any new matters on the same as well as the 30,000 cases pending.
Aggrieved by this notice, a writ petition titled Asheesh Singh Kotwal & Another v Union of India & Others was filed before the Hon’ble Supreme Court. This petition challenges the notification dated 29 April 2020. This step of the government is being labeled as a “violation of the fundamental right of access to justice to the litigants of J&K”. The Supreme Court issued notice to the Centre and other requisite parties. Mr. Arjun Garg, Advocate on Record, filed this writ petition on behalf of his clients. Mr. Ravindra Shrivastava, Senior Advocate, argued before the Court.
Background of this development
Before the enactment of the Jammu and Kashmir Reorganization Act, 2019, all constitutional amendments could apply to the state only through Article 370 of the Indian Constitution. This means that any amendment was applicable in the State of Jammu and Kashmir only after receiving an agreeable nod from the J&K Cabinet. The Constitution (Forty-second Amendment) Act, 1976 inserted the provisions related to tribunals: Articles 323A and 323B. These provisions were not made applicable to the State of J&K and neither was the Administrative Tribunals Act, 1985.
However, on 5th August 2019, the BJP-led Central Government scrapped Article 370. It led to the revocation of the special status conferred by this Article on the State of J&K. On 6th August 2019, a Presidential Order, after recommendations of the Parliament, abolished the provisions laid down under Article 370. Followed by this amendment, the Jammu & Kashmir Reorganization Act, 2019 was introduced. This Act bifurcated the previously known State of J&K into the Union Territory of J&K and the Union Territory of Ladakh.
It was this major amendment that made it possible for the application of the Indian Constitution and other Central legislations to Jammu & Kashmir. Thus, the application of Articles 323A and 323B of the Constitution and the Administrative Tribunal Act, 1985 to the newly formed UT of J&K also became possible. These provisions govern the establishment and functioning of the Central Administrative Tribunal as well as the State Administrative Tribunals.
Earlier, it was the High Court of J&K that heard service matters of employees of J&K’s State Government while CAT heard the service matters related to centrally employed personnel. After the Reorganization Act came into force, the status of all the state employees changed to that of Central Government employees. This led the Union Government’s notification dated 29 April 2020.
This notification extended the jurisdiction of the Chandigarh Bench of CAT. It stated that now the Chandigarh Bench will hear all service matters of J&K personnel. This notification took away J&K’s right to have a permanent Tribunal within the UT. The reason cited was that the law allows only States to have a State Administrative Tribunal.
A lot of criticism came from lawyers, various political parties as well as other concerned members of the society. One such criticism came in the form of a writ petition on which the Hon’ble SC issued notice to the Center and involved parties. This petition was filed under Article 32 of the Constitution and sought a writ of Mandamus for quashing the above said notification of the Center.
- From the petitioner’s side:
- The petition seeks the establishment of a permanent bench of CAT in Jammu and Kashmir itself.
- The High Courts have wide and unfettered powers under Articles 226 and 227 of the Constitution. The jurisdiction conferred upon the High Courts by these articles is a part of the basic structure and thus, cannot be completely taken away. There cannot be an absolute bar.
- A Tribunal is to act as an alternative to the Court. Thus, it has to be robust and effective. The requisite function here in this case cannot be achieved through a circuit bench as proposed by the Center. This is because there are going to be over 40,000 cases to be heard.
- The transfer of cases to the Chandigarh Bench would amount to an impediment of justice as the Bench only has one member.
- As established in the case of L. Chandra Kumar, the jurisdiction of the High Court cannot be abrogated. The jurisdiction will persist irrespective of the status of employees. In other words, just because state employees have become Central Government employees, the jurisdiction of the High Court would remain.
- The transfer of cases by High Court is not justified in absence of a permanent bench of CAT at Jammu and Kashmir. The High Court should not have initiated the process of transfer hastily without ascertaining the matter completely.
- The correct procedure would be to establish a proper and permanent bench of CAT in J&K and then begin the transfer of cases. The circuit bench of Chandigarh is not the solution.
- Continuation of proceedings before the Chandigarh Bench is questionable as it currently has only one member. Such a practice gets approved only in rare cases only and it doesn’t seem to be the case here.
- The notification violates Articles 19(1)(g), 14, 21, and 39(A) of the Constitution. It violates the right to equality, the right to practice any profession, and denies equal access to justice.
- The decision of the Central Government is arbitrary. The decision does not take into consideration the number of employees and the number of existing as well as potential service matters. The decision also overlooked the strength of the Chandigarh Bench of CAT.
- The impugned notification also fails to consider the geography of J&K. It would be difficult for the litigants and advocates to go to the Chandigarh Bench. Geographic remoteness, financial constraints, and a lack of internet access add to the plight of the people.
- Earlier, only a handful of cases arose but now with the change of the status of J&K, the number of cases has increased multi-folds.
- Since the right to access justice is comes within the ambit of the Fundamental Rights of a person, a full-fledged bench of CAT must be established in the Union Territory of J&K.
The response of the government
The BJP-led Central Government soon realized the controversy that ensued after the notification dated 29th April 2020. In pursuance of damage control, the Department of Personnel & Training (DoPT) issued a clarification:
“It is clarified that neither the petitioner nor the lawyer needs to go to Chandigarh for filing a petition or appearing before the tribunal related to service matters of employees. The term Chandigarh circuit is being misinterpreted to mean that the petitioner or lawyer would have to go to Chandigarh, which is not so.”
It was further clarified that “All service matters of the Central Government and UT employees of J&K and Ladakh will be heard and disposed of in the CAT Bench in J&K itself. It is reiterated that earlier also, the CAT Bench used to hold its sittings in J&K to dispose of service matters related to Central Government employees of J&K. The only difference now is that it will also be disposing off matters related to UT employees and will have more frequent sittings in J&K.”
In reply to the petition seeking the establishment of a permanent bench of CAT in J&K, it was argued that J&K cannot have its separate Tribunal. This was because the law provides for the establishment of Tribunals only for Centre and for states, independently or jointly, namely, the Centre administrative tribunal (CAT), State Administrative Tribunal (SAT), and Joint Administrative Tribunal (JAT). Since J&K is a UT and not a state therefore, it cannot have its permanent bench to hear service-related matters. The Central Government directly governs a UT. Thus, all service-related matters will be now heard by a CAT bench only.
Relevant legal provisions
A Tribunal is a quasi-judicial institution set up to reduce the burden of work from Courts. It adjudicates on several issues including resolution of administrative disputes, tax-related disputes as well as environmental issues. Each Tribunal is set to deal with one specific field. It performs many functions ranging from adjudicating disputes, determining the rights of contesting parties to reviewing an existing administrative decision.
The concept of Tribunals was not always found within the Constitution. It was the Constitution (Forty-second Amendment) Act, 1976 that inserted Part XIV-A into the Constitution. This Part consists of Article 323A and 323B that lay down provisions related to Tribunals.
- Article 323A
This article lays down provisions related to administrative tribunals. It empowers the Parliament to make laws regarding the adjudication of disputes by administrative tribunals. This article further provides for the establishment of an administrative tribunal for the Union and separate administrative tribunals for the States.
- The Administrative Tribunal Act, 1985
It was in pursuance of this article that the Central Administrative Tribunal (CAT) was established. It is empowered to deal with service matters relating to Central Government employees and the employees of UTs. It has 17 regular benches. Out of this, 15 operate at the principal seats of High Courts while the remaining two operate at Jaipur and Lucknow. There are also about 21 circuit benches across India.
Article 323A also led to the enactment of the Administrative Tribunal Act, 1985. It has the following main provisions:
- Section 4 Sub-section (1) provides for the establishment of a Central Administrative Tribunal. The principal bench of CAT must sit at New Delhi.
- Section 5 states that each Tribunal must consist of a Chairman, and such other Judicial and Administrative members as deemed fit by the appropriate government.
- Section 6 provides the qualifications for the appointment of Chairman, Vice Chairman, and other members.
- Section 14 lays down provisions regarding the jurisdiction, powers, and authority of CAT. Any State Administrative Tribunal does not have jurisdiction over matters that come within the specific jurisdiction of CAT.
- Section 17 empowers the tribunals to punish for its contempt. It lays down the procedure and powers of tribunals. It states that a Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, 1908.
- Section 28 provides for the exclusion of jurisdiction of Courts except for the Supreme Court under Article 136 of the Constitution.
- Section 30 states that all proceedings before a Tribunal are deemed to be judicial proceedings.
- Section 35 empowers the Central Government to make rules concerning tribunals.
The Chief Justice of Jammu and Kashmir High Court, Gita Mittal wrote a letter to the Union Minister of State Jitendra Kumar. Through her letter, the High Court Chief sought the establishment of an administrative tribunal in Jammu & Kashmir. It indicated that a single circuit bench of Chandigarh would not be enough to deal with all service-related matters of the Union Territories of Jammu & Kashmir as well as Ladakh.
The letter addressed the sheer amount of cases that the Chandigarh Bench would have to deal with. Such cases would include not only the already pending 31,641 pending matters but also the ones that would be filed in the future. It was also stated that the number of cases for the UTs of J&K and Ladakh would surpass the number of other Administrative Tribunals in Delhi, Allahabad, and Chennai among others. She emphasized by stating:
“The physical area of each of these Union Territories is much larger than that of any Union Territory in India. If a census is taken of the number of government employees, you would probably find that the number of government employees in the Union Territory of Jammu and Kashmir is also more than perhaps some of the larger States.”
As per the data available till February, Allahabad Bench has about 6,241 pending cases, Bengaluru Bench has only 895 cases and the Gauhati Bench has 597 cases as opposed to over 31,000 cases that will be transferred to the Chandigarh Bench.
This letter by the Chief Justice of the J&K High Court highlights the issue with the Center’s decision. It was not a well-thought decision and was taken unilaterally without engaging with the affected parties. Tribunals were established to lessen the burden on Courts. This was a step towards providing speedy justice to the litigants. If the Tribunals would be burdened with such a huge amount of pending cases, then the objective behind their establishment would be rendered meaningless. As specified in the petition as well, such a step by the government would hamper the delivery of justice to the litigants of J&K.
Therefore, a separate bench must be established for J&K to ensure timely and efficacious justice. Frequent sittings would not be of any help. This would not only be in the interest in the public of J&K but would also ensure that no extra burden is put upon the Chandigarh Bench that only has one member as of present.
The Supreme Court Bench led by Chief Justice of India S A Bobde with Justices A S Bopanna and Hrishikesh Roy sought a response from the Central Government within 4 weeks. Although the government has issued a statement clarifying its stand, it does not seem to be enough. It is yet to make a clarifying stand before the Apex Court. The government decision has not only faced criticism from people but also forced the J&K High Court Chief Justice Gita Mittal to pen a letter. The leaking of the details of this letter was highly criticized by Jitendra Kumar. He stated that the exchange of opinions and suggestions between two respected officials must not be open and should be within the dignity of the position of both officials.
After the abrogation of Article 370, a lot has changed politically as well as judicially. The matters must be now handled carefully and not in a hasty manner. The focus must be on the people and their interests as they are already going through a difficult time ever since the abrogation of Article 370. A simple clarification by the government is not enough. It must ensure that its actions are up to the satisfaction of the people and in the interest of justice. Further, the ball is now with the Apex Court. It would ensure that justice is not hampered and is delivered timely to the citizens.
Author: Rishita Saxena from Bharati Vidyapeeth University, New Law College Pune.
Editor: Shalu Bhati from Campus Law Centre, Faculty of Law, University of Delhi.