Constitution of J&K CAT BENCH: An axiom or conundrum?
Soon after the J&K Reorganisation Act 2019, the Central Administrative Tribunal surfaced on front pages of dailies for quite some time and created a furore in legal circles.
Since the erstwhile status of the state of Jammu and Kashmir was officially downgraded, new orders and policies are leading to a cycle of unanticipated restructuring of administrative and judicial setup in J&K. The recent enactment was the transfer of service matter cases to the Central Administrative Tribunal (CAT), Chandigarh. After months-long resentment, the recent constitution of the 18th Permanent Bench of CAT for the UT of J&K and Ladakh has now finally neutralized the ongoing concerns regarding the adjudication of long-pending cases of service matter. In this write-up, let’s try to understand the fundamental objective of Central Administrative Tribunals and the circumstances which resulted into the present status-quo in J&K.
What are Central Administrative Tribunals (AT’s)?
The main objective of the Central Administrative Tribunal is speedy and effective justice. It eases off the extra burden of various service-related disputes pending in HC thereby addressing the major problem of “Docket Explosion”. An Administrative Tribunal is a quasi-judicial body, which can interpret law and hold hearings on service-matters. Furthermore, the Central Administrative Tribunal consists of administrative members and judicial members. Today, CAT with its Principal Bench in Delhi, has 18 regular benches and 21 circuit benches in India. In countries like Britain, specialized jurisdiction tribunals exercise jurisdiction in particular fields of administration. Moreover, the organizational structure of tribunals in France clearly demarcates administrative courts and regular courts.
oes AT exclude the writ jurisdiction of J&K HC in service matters?
As argued by senior Advocate J&K HC, Sunil Sethi that the subject matter jurisdiction of J&K HC will not be absolutely barred. On the contrary, the statutory bar cannot overlap J&K HC constitutional provisions. If a CAT cannot provide an efficacious remedy for justice, then you can challenge that in the respective HC. The landmark judgement of L.Chandra Kumar case established that a separate judicial mechanism does not undermine the power of judicial review and the basic structure of Indian Constitution. The court also made it clear that AT performs a substitution role and not a supplementary role. Despite the fact that the HC of J&K had the constitutional authority to adjudicate the service matters in J&K till any official order or notification, Why the central government without establishing the required infrastructure or providing an efficacious remedy in haste transferred the service matter of five lakh J&K government employees to Chandigarh CAT? Why was the entire transfer mechanism unplanned and impromptu? When the world is facing the Corona crisis, J&K is suffering from unilateral decisions. The untimely notification followed by a clarification clearly showed Delhi’s inability and inadequacy to manage the state of affairs in J&K.
Despite the change in the constitutional status of J&K, no formal notification was issued in this regard either by the concerned ministry or by the administrative tribunals. Other than the issuance of notification dated 9th August 2019, no infrastructure or registry has been created for operationalizing the functioning of the Tribunal of Jammu and Kashmir. In the absence of any notification, litigants continued to file writ jurisdiction in respective HC court of J&K. As per the official figures of J&K HC, more than 32,932 cases related to service matters are pending, out of which 1338 fresh petitions are filed between 1st September 2019 and 4th May 2020. The given figure is 50% of the total strength of cases in J&K HC and 64% of the total pending service-disputes in administrative tribunals across the country. The notification from DoPT raised an alarm over the future of service disputes in J&K. In response to the growing concern of the Ministry of Personnel, Public Grievances and Pensions, Dr. Jitendra Singh refuted all the claims and issued a formal press release clarifying that neither the litigant nor the lawyer will have to visit Chandigarh for filing petitions.
CAT and Constitutional Changes
Under the traditional structures and methods of functioning no central government law or enactments by the parliament were directly made applicable to the erstwhile state of J&K, until and unless passed by the state legislature or cabinet. Thus, all the service-related matters were adjudicated by way of writ jurisdiction in J&K HC as the 42nd Constitutional Amendment Act was not applicable to J&K. This was due to the fact that it required the concurrence of the then State Government under Article 370. Therefore, Article 323A and 323B w.e.f from 42nd Constitutional Amendment Act were not incorporated into the Constitution of J&K. Notwithstanding the above-mentioned provisions, the service-related disputes of the employees of the erstwhile state of J&K were not covered under the Administrative Tribunal Act of 1985. Also, no state tribunal was constituted and thus all the service-related cases of the state government employees were adjudicated through the writ jurisdiction of J&K HC Bench, one in Srinagar and the other in Jammu. The service-disputes of central government employees serving in J&K were covered by a circuit bench of CAT in J&K, under the jurisdiction of the CAT bench of Chandigarh with its periodic sittings (two or three) in every two months.
On 5th August, the President issued the Constitution (Application to J&K) order, 2019 in concurrence with the Government of J&K, thus diluting the rigors of Article 370. As per Clause 2 of the order, a total of 107 laws and provisions of the constitution, as amended from time to time were made applicable to J&K, including Article 323A and 323B of the Indian constitution. The employees of the state government of J&K were not directly covered by the AT Act because they were still the employees of the state government and were not listed under All-India services of state or Union. It was only after the Reorganisation Act of 2019 that paved the way for adjudication of service-disputes of the state government employees entirely by Administrative Tribunals.
Suggestions by legal luminaries
Addressing the concerns of the stakeholders i.e. lawyers, litigants and over five lakh government employees, the Chief Justice of J&K wrote a detailed letter to the concerned minister, DOPT and demanded the establishment of Permanent benches of CAT in Jammu, Srinagar, and Ladakh as the Chandigarh bench would be “Hopelessly Insufficient” to adjudicate 32000 pending service disputes in J&K HC. In her detailed letter, the Hon’ble Chief Justice of J&K expressed deep concern regarding the required infrastructure, registry, and no. of benches with permanent seats. One of the most important points raised by the concerned Chief Justice of J&K HC was that the pendency of service matters either before the Jammu or the Srinagar wing of the HC is more than the pendency before the Principal Bench at Delhi and way more than that at the Administrative Tribunals at Allahabad, Chennai, Hyderabad, Kolkata, Jabalpur among others. Even for states having extremely low pendency, separate tribunals were created. The Hon’ble Chief Justice cited the example of Bengaluru Bench with 895 and 597 cases. Therefore, for the effective conduct of these cases, there is an imperative need for establishing an Administrative Tribunal with Multiple Benches having permanent seats both in Jammu and Kashmir. All the lawyers from J&K regarded the intervention by Hon’ble Chief Justice from J&K as an affirmation to their genuine concerns.
Though the detailed letter was intended and communicated to the concerned minister, DOPT, it was quite surprising to see that the CAT Chairman and former Chief Justice of Patna HC, L.Narasimha Reddy rebuffed the concerns by issuing a rebuttal through various media channels. This, despite the fact that he was neither in loop nor in the midst of the communication. The unnecessary rebuttal by the CAT chairman led to a situation where two institutions were standing against each other. “It was a unique case of J&K where Quasi Judiciary was against Judiciary”. Many Legal luminaries and senior counsels from J&K regarded the letter written by the Hon’ble Chief Justice as justifiable. The letter was in response to the detailed representations submitted by the concerned counsels demanding efficacious remedy for disposal of service-matter and constitution of permanent benches with their numerical strength in proportion with the numerical strength of the cases.
J&K Service Matters: Why this Uproar?
It is the legislative obligation of the state to set up a satisfactory system for its domiciles. After the abrogation of Article 370, the transfer of service-related cases to Administrative Tribunals was inevitable but the execution could be reasonable causing less inconvenience. Justice delivery mechanism is meaningless if you are deprived of the opportunity to go to the tribunal or Court with ease, where you can argue your case without any difficulty. The government was better placed to appreciate the fact that how is it possible for a service employee, remotely placed in Ladakh or Poonch to move down with his legal counsel to distant Circuit benches with limited sittings. Finally, after appreciating all the concerns and state wide resentment, the Government of India by exercising its power enforced under section 5 clause 7 of the Administrative Tribunal Act of 1985 has constituted the 18th Bench of CAT for Jurisdiction in J&K and Ladakh with its sittings in Jammu and Srinagar. Moreover, Dr Bhagwan Sahai, Administrative Member, CAT, Mumbai Bench has been transferred and posted as Administrative Member, CAT, Jammu Bench.
Unfortunately, the natural corollary drawing to present circumstances was a turbulent one. Irrespective of the outcome, it took more than nine months for the Government of India to understand that an impeccable justice delivery mechanism has to be smooth and accessible, that even with four functional benches, the ill-equipped Chandigarh CAT bench will be overburdened to handle such huge bulk of fresh cases. Moreover, J&K with over 5 lakh government employees, no infrastructure or registry for CAT benches, with 32,931 pending cases was made to believe that the ostensible motives behind the transfer of cases to Chandigarh CAT bench is quicker justice. As per the former Chief Justice of India, TS Thakur the non-availability of chairpersons, members, and required infrastructure for tribunals across India is a matter of great concern. The current Central Administrative Tribunals is already working at half of its total sanctioned strength of 66 members including the chairman i.e 33 posts each for judicial and administrative members. Despite this, the disposal of cases in the tribunals has been exceptional. Now, as the benches are back to the twin capital cities, employees are having a sigh of relief.