Sr. No.27 v. STATE OF J&K & Ors.

Through: - Mr. Sajad Ashraf, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER (ORAL) 21.11.2023 1) The petitioners through the medium of instant petition have sought the following reliefs: I) By issuance of a writ of certiorari or any other appropriate writ, order or direction: a) The Circular No. 31-GAD of 2012 dated 28-9-2012 issued by respondent no. 02, be quashed; b) 1st proviso of section 5 of the J&K Civil Services (Special Provisions) Act, 2010, which reads as under: "Provided that regularization of the eligible or adhoc or contractual or consolidated appointees under this Act shall have effect only from the date of such regularization, irrespective of that such appointees have completed more than seven years of service on the appointed date or regularization." there-after but before be declared illegal, improper and unconstitutional. c) OM No. A/36(83)-11-845 dated 19-8-2015 issued by respondent no. 05 be quashed. AND II) By issuance of a writ of mandamus or any other order or direction, the respondents be directed: a) To regularize the petitioners in service as Medical Officer (ISM) if not with effect from the date of completion of three years of satisfactory service, but from the date of completion of seven years of P a g e | 2 continuous service, from the date of their initial appointment as contractual Medical Officer (ISM)/ Assistant Surgeons and based on that, to give them all the consequential benefits. b) To give them the arrears of salary and other benefits w.e.f 01-01-2006 in terms of the J&K Civil Services (Revised Pay) Rules of 2009 and fix their pay and grant them other benefits accordingly. c) To count their contractual service rendered by them as Medical Officer (ISM)/ Assistant Surgeon before their regularization towards their pensionary and other benefits. 2) The petitioners claim that they were engaged on contractual basis as Medical Officers (ISM)/Assistant Surgeons on consolidated salary vide various orders issued by the respondents and thereafter their services were regularized in terms of the provisions contained in the J&K Civil Services (Special Provisions) Act, 2010 (hereinafter referred to as “the Act of 2010”), by issuance of Government Orders in the years 2012 to 2015 but these orders of regularization of services of the petitioners were given prospective effect. The petitioners claim that their services deserve to be regularized with effect from the date(s) on which they completed seven years of service as contractual appointees but the respondents have, by placing reliance upon the first proviso to Section 5 of the Act of 2010 regularized their services prospectively. The petitioners have also challenged the vires of the aforesaid provision. 3) The writ petition was, after coming into effect of the J&K Reorganization Act, 2019 and consequent setting up of Central Administrative Tribunal in Jammu and Kashmir, transferred to the said Tribunal in terms of order dated 01.12.2020. It was observed in the said order that the grievance projected in the petition relates to the subjects P a g e | 3 covered by Section 14 of the Central Administrative Tribunals Act, 1985, as such, the jurisdiction to hear this petition as a Court of first instance lies with the Central Administrative Tribunal. 4) After the record of the writ petition was transferred to the Central Administrative Tribunal, the petition came up for consideration before the Tribunal on 21st March, 2022, and the following order came to be passed:

1. Mr. Javid Hassan, learned counsel for the petitioners, and Mr. B. D. Singh, learned counsel for the respondents are present. 2. Learned counsel for the petitioners submits the petitioners have constitutional validity of the J&K Civil Services (Special Provisions) Act, 2010, and this Tribunal has no jurisdiction to deal with it. 3. In view of the statement made by the learned counsel for the petitioners, the matter is transferred back to Hon’ble High Court for further hearing. challenged

4. With this TA No.4482/2021 is disposed of. 5) From a perusal of the aforesaid order, it appears that the Tribunal has, on the basis of the submission made by learned counsel for the petitioners, transferred the matter back to this Court. It appears that the Tribunal has been influenced by the submission of the learned counsel for the petitioners that because Constitutional validity of the J&K Civil Services (Special Provisions) Act, 2010 is the subject matter of the petition, as such, the Tribunal has no jurisdiction to deal with it. The Tribunal has, however, not given its own finding on this issue. 6) Heard and considered. P a g e | 4 7) There is no dispute to the fact that the issue involved in this petition qualifies to be a “service matter” within the meaning of Section 3(q) of the Administrative Tribunals Act, therefore, amenable to the jurisdiction of the Central Administrative Tribunal. The question that arises for consideration is as to whether the Tribunal has jurisdiction to adjudicate the vires of a provision of a Statute. This question is no longer res integra. The Supreme Court in the case of L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261, has held that the Tribunals created under Article 323A and Article 323B of Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. Therefore, the Central Administrative Tribunal is vested with jurisdiction to adjudicate upon the vires of proviso to Section 5 of the Act of 2010. Thus, in the instant case the Tribunal could not have transferred the writ petition back to this Court without even going into the said issue. 8) In view of the above, the writ petition is transferred to the Central Administrative Tribunal, Srinagar Bench. The Registrar Judicial is directed to transmit the record of the writ petition to the Tribunal forthwith. 9) The parties are directed to appear before the Central Administrative Tribunal, Srinagar Bench, on 22.12.2023. Srinagar 21.11.2023 (Sanjay Dhar) Judge P a g e | 5 “Bhat Altaf, PS” Whether the order is speaking: Whether the order is reportable: Yes/No Yes/No