KULDIP KHUDA Vs. MASUD AHMAD CHOUDHARY

JUDGEMENT

(1.) RESPONDENT No: 1 who is an I.P.S. officer filed writ petition No: 119/89 in this court praying interalia that he may be placed senior to the appellants as also other officers who were imp leaded with the appellants as opposite party in the petition. Respondent No. 1 also prayed for a direction to the State Government of Jammu and Kashmir to treat the cadre strength of the State of Jammu and Kashmir to have been raised from 49 to 120 in the Year 1986 and treat the petitioner as having been appointed to the I.P.S cadre with effect from 1978 and to assign to him 1972 as the year of allotment.

(2.) THE respondents did not file any counter affidavit in this case, but raised a preliminary objection regarding the maintainability of the petition on the ground that the jurisdiction of this court to issue writ, order or direction under section 103 of the Constitution of Jammu and Kashmir read with Article 226 of the Constitution of India was taken away by an Act of Parliament, namely, the Administrative Tribunal Act, 1985 under which Central Administrative Tribunals were constituted for adjudicating the disputes regarding service matters etc of the employees of the Central Government.

(3.) THE objection was countenanced on behalf of the Respondent No. 1 by asserting that the Administrative Tribunal Act, 1985 could not have been legally applied to the State of Jammu and Kashmir as Article 323 -A of the Constitution of India under which the Act was made by the Parliament, was not applicable to this State. It was contended that the power to issue prerogative writes set out in Section 103 of the State Constitution read with Article 226 of the Central Constitution is a Constitutional power which cannot be whittled down by any legislative measure, unless, it was permissible under the Central constitution itself (as applicable to the State of Jammu and Kashmir). It was further contended that Article 323 -A which was introduced in the Central Constitution by the Constitution (42nd amendment) Act, 1976 was not applied to this State and consequently the provision of Article 323 -A under which it was permissible for the Parliament to enact a law affecting the constitutional jurisdiction of the High Courts to issue writs under Article 226, would not affect the jurisdiction of the High Court of Jammu and Kashmir as available under section 103 of the State Constitution.