Deciding Authority: The Supreme Court of India
Name of the Judges: P. Venkatarama Reddi
Date of Judgement: 07/03/2002
Facts:
In Kuldip Khud vs. Masud Ahmad (1994 SLJ 287A), the Full Bench, speaking through Saghir Ahmad, CJ (as he then was) took the view that the Constitution (42nd Amendment) Act, whereby Article 323-A was introduced, does not apply to the State of Jammu and Kashmir for the reason that the mechanism prescribed in Article 370 was not resorted to. It was, therefore, held: “since, Article 323-A does not apply to this State, any law made by the Parliament under that Article taking away Constitutional jurisdiction of the High Court in issuing Writs in service matters as specified in that article would not affect the Constitutional jurisdiction of the High Court of this State.” The full Bench of the High Court then observed, in keeping with what was stated above, that the Tribunal will be an additional or alternative forum and not an exclusive forum. Availability of remedy in an alternative forum does not have the effect of ousting the jurisdiction of the High Court under Section 103 of J & K State Constitution.
Judgement:
In the case of L. Chandra Kumar v. Union of India, 1997 3 SCC 261, the Court struck down the Clause 2(d) of Article 323-A on the ground that it offends one of the basic and essential features of the Constitution, viz., the power of judicial review vested in the High Court and the Supreme Court. Thus the embargo on the Constitutional jurisdiction of the High Court stands lifted by virtue of the decision in Chandra Kumar’s case. The offending provision in Article 323-A eroding the Constitutional powers of High Courts goes out of existence. The High Courts, under Article 226/227 of the Constitution of India or the corresponding provisions in J & K Constitution, namely, Section 103/104 will, therefore, retain their jurisdiction even in relation to the service matters falling within the sweep of Clause (1) of Article 323-A. To this extent, the ultimate conclusion reached by the Full Bench of the J & K High Court on an entirely different ground accords with the Constitution Bench Judgment in Chandra Kumar’s case. Even if this Judgment does not ipso facto apply to the J & K State Constitution, there is no apparent reason why the ratio of this Judgment should not be applied to the exercise of jurisdiction by J & K High Court under Sections 103 and 104 of J & K Constitution. The wholesome principle evolved by this Court in Chandra Kumar, could be extended to Section 103 and 104 as well; otherwise it would lead to an anomalous result of the Central Government servants/employees of Central Government controlled corporations, etc. working in J & K being left with the option of bypassing the Tribunal, without falling in line with their counterparts working elsewhere.
Decision:
As regards the territorial operation of the Administrative Tribunals Act, it extends to whole of India including Jammu and Kashmir. Therefore, after the judgement of L. Chandra Kumar the contention that the machinery under the Administrative Tribunals Act to decide the disputes or complaints specified therein cannot function within the State of J & K does not deserve further consideration.
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