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Judgment
Learned counsel for the parties agree that this petition be disposed of at this stage without formally admitting the same.
The following two main questions to be determined arise in this petition:
(1) What is the scope and extent of powers of the J&K Special Tribunal in the matters of appeals, revisions and review petitions filed before it?
(2) Whether the tribunal can exercise powers of appeal, revision and review only in cases where such remedy is provided by a statute or it can
entertain any appeal, revision or review entertainable by the Government or the Minister, notwithstanding the origin or source of the order against
which such remedy is availed of?
The facts of the present case arethat respondents No. 3 & 4 are employees of the petitionerstate and serving in the Ranbir Government Press.
Respondent No. 4 was put in charge of computing section and given charge allowance vide order of the General Manager dated 9.7.1990.
Respondent No. 3 filed an appeal against the said order before the J&K. Special Tribunal (hereinafter referred to as the Tribunal) as, according to
him, the order impugned in the appeal amounted to punishment to him besides his supersession. He claimed that he was the only person qualified to
be promoted as bill computer. After hearing the parties, a member of the tribunal allowed the appeal and directed that the matter of promotion or
grant of charge allowance or any other additional remuneration be considered by the respondents in the light of the observations made in the order
of the tribunal dated 2.8.1991. Respondent No. 3 thereafter filed a review petition before the tribunal in which a direction was issued that till
further orders, the post claimed by the said repentant shall not be filled. The orders of the tribunal have been challenged in this petition being
without jurisdiction and contrary to the provisions of the J&K Special Tribunals Act, 1988 (hereinafter referred to as the Act).
In the objections filed on behalf of respondent No. 3 it is submitted that the petitioner has no locus standi to file the petition under Art. 226 of
the Constitution of India which, according to him, if allowed, would shake the faith of the public in the Constitution creating a total chaos in the
society and frustration amongst the citizens of the country. It is submitted that as no fundamental or legal right is stated to have been infringed, the
petition was liable to be dismissed. The petition is alleged to have been filed with mala fide intention to unnecessarily drag respondent No. 3 into
litigation and deprive him of his promotion by adjusting one A. K. Koul in his place arbitrarily, illegally and with mala fide intention. Respondent
No. 3 has contended that he has been harassed and mentally tortured without any fault on his part.
I have heard learned counsel for the parties. Under Art. 226 of the Federal Constitution read with Sec. 103 of the Constitution or Jammu and
Kashmir, the High Court has the power to issue to any person or authority or the government such direction or orders or writs including the writs in
the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, or any one of them, for the enforcement of the rights conferred by
PartIll or any other purpose, as it deems fit Mr. Rai, learned counsel appearing for the contesting respondent has submitted that the persons in
authorities mentioned in Art. 226 against whom the directions can be issued, have no right to maintain a writ petition under this Article as,
according to him, they being the custodians of the fundamental rights cannot themselves claim to be aggrieved by the action of any other of them. A
perusal of Article 226 shows that the powers conferred upon the High Court are wider than those conferred upon the Supreme Court under Art.
32 of the Federal Constitution in as much as the directions can be issued not only for the enforcement of the fundamental rights conferred by part
III, but, also ""for any other purposes"". Art. 226 envisages a party aggrieved of the action of the respondentauthority as distinguishable from a
person or citizen. If any authority is aggrieved of the action of any person or authority, against whom the direction can be issued under this Article,
such aggrieved person or authority can approach this court for the grant of relief as envisaged under the Article. The rules, as to the locus standi for
the prerogative relief under this Article, are liberal and subject to well settled principles of law. Any party who has been prejudicially affected by an
act or omission of an authority can invoke the jurisdiction of this Court for the issuance of appropriate writ, order or direction. The question of
locus standi has to be examined with reference to the relief's sought by the petitioners. The general rule is that a petitioner approaching the Court
must have a substantial legal right in his favour and such right should ordinarily be personal to the petitioner. However, in peculiar circumstance of a
case and exigency of the circumstances, this rule can be released. The Supreme Court in the Calcutta Gas Co. (Proprietary) Ltd. v. The State of
West BengalAIR 1962 SC 1044, held:
Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any
of the rights conferred by Part III or for any other purpose. It is, therefore, clear that parsons other than those claiming fundamental right can also
approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder but it is
implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The right that can be enforced
under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself though in the case of some of the writs like habeas
corpus or quo warranto this rule may have to be relaxed or modified"".
The Supreme Court reiterated this position of law in Venkateswara v. Govt. of Andhra PradeshAIR 1966 SC 828 and held:
This court held in the decision cited supra that ""ordinarily"" the petitioner who seeks to file an application under Art. 226 of the Constitution should
be one who has a personal or individual right in the subject matter of the petition. A personal right need not be in respect of a proprietary interest; it
can also relate to an interest of a trustee. That apart, in exceptional cases as the expression ""ordinarily"" indicates, a person who has been
prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the
subjectmatter thereof
(AIR 1966 SC 828)
When a petition is presented by a party aggrieved, the Court can intervene ex debit justitiae, in justice of the applicant and even when the
petition is filed by a stranger and the Court considers that the public interest demands, it can intervene. The Supreme Court in case Dr.
Satyanaryan Sinha vs S. Lal & Co. (P) Ltd. AIR 1973 SC 2720, after referring the cases reported in AIR 1952 SC 319 and AIR 1951 SC 41,
held that the legal right that can be enforced under Art. 32 must ordinarily be the right of the petitioner himself who complains of infraction of such
right and approaches the Court for relief. In respect of the jurisdiction under Art. 226 of Constitution it was laid down in the state of Orissa v.
Madan Gopal Rungta, (1952) 3 SCR 28=(AIR 1952 SC 12) that the existence of the right is the foundation of the exercise of jurisdiction of the
Court under Art 226 of the Constitution. The right to which this court had adverted as being the foundation for exercising the jurisdiction under Art
32 or Article 226 of the Constitution, according to The Calcutta Gas Co. (Proprietary) Ltd. The State of West Bengal, (1962) Supp 3 SCR 1=
(AIR 1962 SC 1044) is ordinarily the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas
corpus or quo warren to this rule may have to be relaxed or modified, Subba Rao, J. as he then was, observed in that case;
Article 226 conferee a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any
of the rights conferred by part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also
approach the Court seeking a relief there under.
After citing the above passage in Godde Venkateswara Rao V. Govt. of Andhra Pradesh, (1966) 2 SCR 172 = (AIR 1966 SC 828) the learned
Judge was delivered the judgment in this case also observed at P. 181: A personal reed not be in respect of a proprietary interest. It can also relate
to an interest of a trustee, part, in exceptional cases as the expression ""ordinary"" indicates, a person who has been prejudicially affected by an act
or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subjectmater thereof.
In respect of persons who are strangers and who seek to invoke the Supreme Court or this court, difficulty sometimes arises because of the
nature and extent of the right or interest which is said to have been infringed and whether the infringement in some way effects such persons. On
this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction.
In England also the Courts have taken the view that when the application is made by a party or by a person aggrieved the Court will intervene
ex debito justitiae, in justice to the applicant and when it is mace by a stranger the Court considers whether the public interest demands its
intervention. In either Case it is a matter, which rests ultimately in the discretion of the Court (See R.V. Thames Magistrate's Court, ex. P.
Greenbaum, (1967), 55 L.G.R. 129 extracted in Yardley Source Book of English Administrative Law, 1970, p. 228).
It is also well established that the writ of certiorari can be issued to a judicial or quasijudicial body in respect of its judicial or quasijudicial
proceedings and not in respect of the executive or administrative proceedings.
It is not disputed that the petitioner State was a party before the tribunal and is adversely affected by the order impugned. Other wise also, the
question as to whether the tribunal can exercise jurisdiction in the matters like the one agitated in this petition, I am of the opinion that this Court
must act ex debit justitiae. The objection raised by the respondent is, therefore, without any basis. The petitioner State is held to have locus stand
to file the writ petition in the instant case.
The Act was enacted for the first time in 1985, which was substituted, vides Act No. XIX of 1988. It provides for presentation of appeals,
revisions and review petitions arising under any law made by the State legislature. Sec. 4 provides that the Government may by notification in Govt.
Gazette establish a tribunal to perform the functions and to exercise the powers under the Act and under Sec. 7 all appeals, revisions or review
petitions, which were pending before the Government or a Minister on the date appointed under Sec. 3, were directed to be transferred to the
tribunal. The Act, therefore, envisages the consideration and disposal of such appeals, revisions and review petitions, which arise under any law
made by the State Legislature Sec. 46 of the State Constitution provides that there shall be a legislature for the State, which shall consist of the
Governor and two houses to be known as Legislative Assembly and Legislative Council. Under Article 13 of the Federal Constitution, law
includes an ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of Jaw and ""law in force"" includes Jaw passed
or made by the legislature or other competent authority in the territory of India before the commencement of the Constitution not previously
repealed. The Act, however, made a distinction between the laws used in the loose term of the sense and the laws made by the State legislature for
the purpose of filing appeals, revisions and review petitions before the tribunal. The Jaw as envisaged under Article 13 of the Federal Constitution
is distinguishable from the laws made by the State legislature as contemplated by the provisions of the Act. It is also not disputed that the powers
of the tribunal are restricted for the purpose of entertaining such appeals, revisions and review petitions, which are provided under any law made
by the legislature. It is also established that right to appeal, revision or review, is a statutory right and connote be assumed by any Court or tribunal
in the absence of a specific provision. Part XIV of the Federal Constitution deals with the services under the Union and the States. Article 309
provides for recruitment and conditions of service of persons serving the Union or State; Article 310 provides the tenure of office of the person
serving the Union or a State and Article 311 provides that no person who is a member of civil services of the Union or All India Services or a civil
service of a State, shall be dismissed or removed by an authority subordinated to that by which he was appointed. Constitutional Jaw as envisaged
in Part XIV cannot be deemed to be made by the State Legislature for the purposes of the Act as corresponding provision has been made in Part
IX of the State Constitution. The tribunal, therefore, has no jurisdiction to entertain an appeal, revision or review against the orders passed by the
authority for which no statutory appeal under any law made by the State Legislature is provided.
12 Learned counsel for the respondent, has, however, submitted that the tribunal being a domestic tribunal has the inherent jurisdiction to hear the
appeal, revision or review against any order of any administrative authority and grant relief to the person agreed. He has referred to the history of
evolution of the institution of administrative and domestic tribunals to urge that a civil servant, if aggrieved of any order affecting his service
conditions, caw approach the tribunal for the grant of relief. The argument of the learned counsel, even though attractive on the face of it, is, in fact,
devoid of any legal force. The importance of the domestic tribunals dispensing justice cannot be ignored. However, in a country governed by the
rule of law, the tribunals constituted have to exercise powers in a restricted manner as contemplated by the lawmakers. Theft tribunal under the Act
can neither be treated to be a domestic tribunal or administrative tribunal so for as the service conditions of civil servants are concerned. Being
conscious of the requirement, necessity and growth of administrator tribunals, Parliament added Part XTVA by inserting. Articles 323A and 323B
in the Constitutions providing for the constitutionof tribunals for adjudication or trial of disputes and complaints with respect to recruit me and
conditions of service of the persons appointed to public services and posts He connection with this affairs of the Union or of any State or of any
locator to the authority within the territory of the country or under the control of the Government of India or of any corporation owned or
controlled by the Government. The provisions regarding the constitution of administrative tribunal were inserted by the Constitution (Fifty Second
Amendment) Act, 1976, which has already been held to be not applicable to the State of Jammu and Kashmir. To follows, therefore, that the
legislature of the country did not deem it proper for making any provision for the Constitution of administrative tribunals for settlements of disputes
of civiler events in so far as the State of Jammu and Kashmir was concerned. The Governor's Act No. IX of1986 was enacted at a time when the
State of Jammu and Kashmir was placed under the Governor's Rule and when there did not exist a council ministers and a popular responsible
government. This Act was replaced by Act No. XIX of 1988 which received assent of the Governor on 31.8.1988 and was published in Govt.
Gazette on 191988 for the same purpose arid with the preamble : ""An Act to provide for the presentation of appeals, revisions and review
petitions arising under any law made by the State Legislature, to Special Tribunal"".
Mr. Rai, learned counsel for respondent No. 3 has submitted that as the order by which respondent No. 3 felt aggrieved, was an appeasable
order under the provisions of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956' (hereinafter referred to as the
1956 Rules), he had a right to prefer an appeal to the Government under Rule 36 of the 1956 Rules. This submission of the learned counsel can
also not be accepted in as much as 1956 Rules, cannot be held to be law made by the State legislature nor the order by which respondent No. 3
felt aggrieved, was appeasable under the said rules. The 1956 Rules were framed by the State Government in exercise of the powers conferred by
subsec. (1) of Sec. 3 of the Jammu and Kashmir Civil Services (Removal of doubts and declaration of Rights) ordinance, 1956. The rules at the
most can be termed to be result of the delegated legislation under the provisions of the ordinance and cannot be equated with the law made by
State legislature. Otherwise also, for filing an appeal under Rule 36, the aggrieved civil servant, had to show that the order against which the appeal
was filed, was an order of imposing any of the penalties specified in rule 30 of the 1956 Rules. Rule 36 provides the following penalties.
(i) Censure;
(ii) fine not exceeding one month's pay;
(iii) withholding of increment and/or promotion;
(iv) reduction to a lower post and/or a lower timescale and/or to a lower stage in timescale;
(v) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;
(vi) Premature retirement on proportionate pension other than that specified in rule 226(2) of Jammu and Kashmir Civil Service Regulations;
(vii) removal from the service of the State, which does not disqualify from future employment;
(viii) dismissal from the service of the State, which ordinarily disqualifies from future employ sat.
Under Rule 37, a member of a gazette service can file appeal to Minister in charge from an original order passed by a subordinate authority and to
Government from such order passed by the Minister in charge. Under Subrule (2) of Rule 37, appeal lies from an original order of punishment of
the Head of the Department to the Minister in charge and from original order of punishment of a Minister in charge to the Government.
The order impugned in appeal passed on 9.7.1990 by the General Manager, was not an order against the respondent imposing any penalty
under rule 30 of the 1956 Rules. Respondent No. 3 could not disclose as to how the appeal against an order of the General Manager of the Press
was maintainable before, the Minister in charge.
It is, thus, established that under the Act, the tribunal can entertain only such appeals, revisions and review petitions which arise only under any
law made by the State legislature and not otherwise. No remedy is available to a civil servant to approach the tribunal against any administrative
order affecting his service conditions as contemplated by part XIV of the Federal Constitution. The tribunal cannot assume jurisdiction, which was
not specifically conferred upon it nor can grant relief to the civil servants as has been done in the instant case. The tribunal has been found to have
acted recklessly and assumed jurisdiction which was not vested in it by passing orders in the appeal filed by respondent No. 3 which did not lie
before it. Similarly the review application entertained by the tribunal is not main tenable.
Under the circumstances this petition is allowed and a writ of certiorari is issued quashing the order of tribunal dated 2.8.1991 and subsequent
proceedings by way or review petition filed by respondent No. 3 and pending before it. While allowing this petition it is observed that the
Petitioner State shall consider the genuine grievance of respondent No. 3 and provide him appropriate relief in accordance With law. There shall,
however, be no order as to costs.