Appointments & TransfersNews

Elevation of 2 Judicial Officers as Judges in Jammu and Kashmir High Court


Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges in the Jammu & Kashmir High Court:

1. Shri Mohan Lal, and

2. Shri Mohd. Akram Chowdhary


Collegium Resolution

[Statement dt. 1-09-2021]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., granted bail to the applicant in arrested in a rape case. While clarifying the distinction between an attempt to rape and preparation to attempt rape, the Bench stated,

“There is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation.”

The alleged facts of the case were that the victim, about 10 years and nine months of age had gone to the house of the applicant for buying mobile charger as he deals with mobile accessories. The allegations against the applicant were that he took the victim to the attic of the house, gave her mobile lead and thereafter gagged her mouth with a tape, took off her trousers and also removed his own trousers and made an attempt to rape her. However, in the meanwhile, younger brother of the petitioner reached the spot. It was, however, stated by the victim that she covered her legs with her shirt and the brother of the petitioner could not see her. A case for offences under Sections 376, 354, 511 IPC and Section 8 of POCSO Act was registered and the victim was subjected to medical check-up, according to which no intercourse had taken place nor was there any mark of violence on the body or any private part.

It was contended by the applicant that he had been falsely implicated in the crime, by one Rafiq Ahmed Sheikh and his family, who belong to a different sect of Islam, harbour ill will against the petitioner and had, with a view to settle scores, lodged a false and frivolous FIR and even accepting the contents of the FIR as gospel truth, no offence under Section 376/511 IPC or under Section 8 of POCSO Act was made out.

Indecent Assault v. Attempt to Rape

  1. Whether the act of the petitioner taking off the trousers of the victim as also is own trousers would amount to an attempt to rape?

In Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, the Supreme Court had held that, “The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.”

Thus, the Bench opined that there is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation. In the instant case, the petitioner had allegedly stripped the victim naked and had also taken off his trousers. This was, thus, an effort of making preparation for committing an attempt. Without there being any further act committed by the petitioner, the conclusion could not be made that the petitioner intended to commit rape or that the act attributed to the petitioner amount to an attempt to commit rape. Therefore, prima facie, Section 511 IPC would not be attracted and it could, at best, be a case of indecent assault punishable under Section 354 IPC.

  1. Whether the offence under Section 8 of POCSO Act was prima facie made out?

Section 7 of the POCSO Act defines “Sexual Assault” as:

“7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

Hence, going by the statement of the victim, it was held to be abundantly clear that the act of the applicant taking off the trousers of the girl and also taking off his own trousers was an act with sexual intent, which involved physical contact without penetration and, therefore, would amount to committing sexual assault punishable under Section 8. Therefore, the Bench stated that the applicant was accused of committing indecent assault but also seem to have committed sexual assault defined under Section 7 of the POCSO Act.

 Maintainability of Successive Bail Application

On the maintainability of the successive bail application after the dismissal of the same the Trial Court, the Bench stated that under Section 439 of the CrPC, the High Court and the Court of Sessions have concurrent jurisdiction to grant bail in case a person is in custody in connection with the commission of offence of the nature specified in Section 437(3) of CrPC. Hence, if a person moves the Court of Sessions for grant of bail and his bail plea is rejected, he shall be entitled to file a fresh bail application before the High Court on the same grounds. However, while doing so, he may also point out the illegality or infirmity in the order of learned Sessions Judge rejecting his bail plea which was met by the applicant while alleging that the rejection order passed by the Trial Court was cryptic and did not dwell upon the well-established parameters to be taken into consideration while considering bail plea in non-bailable offences.

Conclusion

In the light of the above, after analyzing the statement of the victim in light of the definition of rape under Section 375 IPC, the Bench held that indisputably, the act of applicant did not, by any stretch of reasoning, amount to rape. Further noticing that the applicant was in custody since 16-12-2020 and that the investigation in the matter had been completed; the Bench opined that the purpose of arrest had been well served. Hence, the petitioner was granted bail subject to him furnishing personal bond in the amount of Rs.50,000 and two sureties of the like amount to the satisfaction of the Trial Court.[Fayaz Ahmad Dar v. UT of J&K, 2021 SCC OnLine J&K 463, decided on 12-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicant: N.H.Kuchai, Advocate.

For UT of J&K: Asif Maqbool, Dy. AG vice and Mr. Mir Suhail, AAG

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., heard the instant petition presented by the wife of the Petitioner to assail his detention ordered by District Magistrate, Pulwama under Preventive Detention law. The Bench opined,

“Two FIRs, pertain to the offences under NDPS Act and, therefore, if the petitioner was to be detained with a view to preventing him from indulging in illicit trafficking of drugs, there is a separate legislation in place i.e. the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which provides for preventive detention in such matters.”

On the basis of communication of SSP, the detaining authority arrived at satisfaction that to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under Section 8 of the J&K Public Safety Act. As per the grounds of detention, it was alleged that the petitioner was affiliated with Jamat-i-Islami, an organization declared unlawful by Government of India, under sub-section (1) and (3) of Section 3 of the Unlawful Activities (Prevention) Act.

It is also claimed that the petitioner was involved in illicit trafficking of drugs and psychotropic substances and, in this regard, two FIRs stand registered against him NDPS Act. It is on the basis of aforesaid activities, the detaining authority had arrived at subjective satisfaction that keeping at large of the petitioner was detrimental to the maintenance of public order and, therefore, his detention under the Act necessitated.

Grounds of Challenge

The grounds of challenge which were pressed during the course of arguments by the petitioner were as under:

1) The subjective satisfaction derived by the detaining authority was vitiated for the reason that the detaining authority had clubbed two different types of activities;
2) The requisite material relied upon by the detaining authority to derive his satisfaction had not been served upon the petitioner. Even the copies of FIRs relied, referred to in the grounds of detention, had not been supplied to the petitioner;
3) The grounds of detention are totally vague, indefinite, uncertain and ambiguous and, therefore, vitiate the impugned order of detention.

Further, the petitioner argued that there was no reference to any of the activities of the petitioner which could demonstrate that even after 28-02-2019, when Jamat-i-Islami was declared as unlawful organization the petitioner had continued with his affiliation with the aforesaid organization nor the petitioner had been provided with any material which would indicate that the petitioner was ever associated with the aforesaid organization or was its member at any point of time.
Stand Taken by the Detaining Authority

The detaining authority submitted that the order of detention was based upon subjective satisfaction and the reasons that prevailed with it could not be gone into by the Court. Placing strong reliance on the judgment of the Supreme Court in Haradhan Saha v. State of W.B., (1975) 3 SCC 198, it was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal and that the pendency of the prosecution is no bar to pass an order of preventive detention. It was also contended that where individual liberty comes into conflict with an interest of security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

Verdict of the Court

The Bench observed that, from the grounds of detention it transpired that the opinion of the detaining authority clearly oscillates between the activities of the detenue relating to illicit trafficking of drugs and those having potential of disturbing public order. Admittedly, instead of proceeding under Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the detaining authority had placed the petitioner in preventive detention. The Bench opined,

“The incident for which FIR had been registered pertains to the year 2016 whereas the impugned order of detention had been passed on 30-09-2020. There was, thus, no proximate link between both prejudicial activities of the petitioner and the object of detention.”

Hence, it could not be said that the detaining authority had derived its subjective satisfaction on the basis of any relevant material placed before it. Though, the detaining authority had contended that preventive measures taken against the petitioner in terms of Section 107 read with Section 151 of CrPC could not succeed to deter the petitioner from acting in any manner prejudicial to the maintenance of public order, no details of any proceedings under Section 107 had been given in the grounds of detention nor copy thereof had been provided to the petitioner. As a matter of fact, no date of occurrence for which proceedings under Section 107 read with Section 151 of CrPC were initiated, had been indicated which had made the grounds of detention vague, uncertain and indefinite. The Court expressed,

“In the absence of requisite and definite material having been supplied to the petitioner, it cannot be said that the petitioner has been given an opportunity to make an effective representation against his detention, which is a constitutional right of the person detained under preventive detention.”

The Bench held that the detention order is vitiated if the requisite material relied upon was not supplied to the detenue, in that, it affects the vital constitutional right of the detenue to make an effective representation. Simply because a communicated had been issued to the detenue informing him about his right to make a representation was not sufficient.

Lastly, opining that the detention was based on stale incidents which had no proximate and live link with the activities of the detenue, the Bench quashed the impugned order and directed the respondents to release the detenue from the preventive custody forthwith.[Ishfaq Amin Bhat v. UT of J&K, WP(Crl) No.161 of 2020, decided on 27-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Mohammad Ayoub Bhat

For the UT: AAG Mir Suhail

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Tashi Rabstan and Ali Mohammad Magrey, JJ., addressed the instant petition seeking for issuance of directions to the government for providing promotion opportunities to the persons working as restorers in the High Court. The Bench remarked,

“It is settled position of law that right of consideration for promotion to the next higher post is a fundamental right of an employee. Opportunity of advancement in service career by promotion is considered to be a normal incidence of service.”Ser

The grievance of the petitioners was that they were working as Restorers in the High Court of Jammu and Kashmir and that they had remained stagnated on the said posts as there were no promotional avenues available for them in terms of the rules governing the field. It was stated that the grade attached to the said posts of Restorers was Rs.2610-3450 (pre-revised) which was neither commensurate to the duties being performed by the petitioners nor at par with their counterparts working in the other High Courts of the country. The petitioners had filed a representation before the Registrar General of the High Court for seeking redressal of their grievances. The registrar, in return, had requested the government to accord approval for upgradation of pay scale of Restorers working in the High Court from 2610-3450 (pre-revised) to 3050-4910 (pre-revised).

However, despite there being recommendations for upgradation of pay scale the Government did not consider the case. The issue was threadbare discussed and examined by the High-Level Committee constituted for this purpose which was headed by Financial Commissioner, Finance Department. The Committee finally recommended that pay scale attached to the post held by all the employees working in the High Court could not be upgraded as it would lead to similar claims from similarly placed employees of the State Government and it may also result in pay anomalies.

Ultimately, keeping in view the demands of the employees, and also the direction passed by this  Court in Joginder Singh v State, the government decided that special pay equivalent to the 10% of the basic pay may be allowed to the employees.  The said benefit of the “Special Pay” had already been accepted by the employees and the Restorers had also been allowed the same benefit. The government contended that the case of the Restorers could not be examined in isolation from other employees of the High Court. Since, all the employees working in the High Court were governed by the same rules, same yardstick had to be adopted/ followed for each of such category of employees while considering their case of upgradation of pay scale.

The petitioners contended that the course of action adopted by the Government in intermingling the issue of upgradation of the grade attached to the posts of Restorers, with the grant of ‘Special Pay’ could not be countenanced at all.

The ‘Special Pay’ in favour of the employees working in the High Court was granted by the Government in recognition to the special duties being performed by such employees and same was a distinct element which, in no circumstance could be merged with the basic pay.

The Bench, after perusing the recruitment rules/ orders governing the service conditions of the petitioner-Restorers observed that the standing mode for filling up the available vacancies of Restorers in the High Court was 100% by direct recruitment, but, at the same time these Restorers had not been made the feeding cadre for any higher post, meaning thereby that there were no avenues for their promotion to the next higher post at all. The Bench expressed,

“Availability of reasonable promotional opportunities in service generates efficiency and fosters the appropriate attitude to grow for achieving excellence in service.”

The Supreme Court, in Council of Scientific and Industrial Research v. K.G.S. Bhatt, (1989) 4 SCC 635, in order to emphasize the importance of promotional avenues to obviate stagnation in service had held as follows:

“…an organization, public or private, does not ‘hire a hand’ but engages or employees a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance…Every management must provide realistic opportunities for promising employees to move upward.”

It had been repeated and reiterated in a catena of judicial dictums that absence of appropriate promotional prospects in service is bound to degenerate the employees. Stagnation in service on the same post for quite a long period of time and lack of any promotional avenues kills the desire to serve properly. The Bench observed,

“The petitioners have been discharging their duties on the posts of Restorers in the High Court since a long period of time with the legitimate expectation that in due recognition of such services being rendered by them, they will be provided appropriate promotional avenues as is the procedure prevalent with regard to the rest of the posts borne on the establishment of the High Court.”

The factum of stagnation in service qua the petitioners was clearly evident even to a naked eye as, in their entire length of service, not even a single promotional avenue was available to the petitioners. In view of the foregoing analysis, the Bench disposed of the instant petition by directing the Government to consider the recommendations of the High Court for upgradation of the grade attached to the posts of Restorers notwithstanding the grant of ‘Special Pay’ and pass appropriate orders thereon. Further, in view of the stagnation in service being faced by the petitioners, the Bench directed the Registrar of the High Court,to consider the case of the petitioners for exploring the possibility of creating suitable promotional avenues in favour of the petitioners by making appropriate amendment in the rules governing the field commensurate to the present status/ qualification of the petitioners. [Latif Hussain Khan v. State of JK, WP(C) No.1410/2019, decided on 26-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Sr. Adv. Rohit Kapoor and Adv. Ankit

For the Respondents: Sr. AAG B. A. Dar and Adv. Masooda Jan

COVID 19Hot Off The PressNews

Virtual Hearing

Jammu and Kashmir High Court extend its Order dated 5-04-2021 with regard to the virtual mode of hearing due to the sudden surge of COVID-19 Cases in the Country in general and UTs of Jammu and Kashmir and Ladakh in particular.

Link to the NOTIFICATION.


Jammu and Kashmir High Court

[Notification dt. 16-04-2021]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., heard the instant petition challenging the validity of circular No. CEO/K/Monitoring/20/14887-967 dated 21-11-2020, whereby all Teaching officials were directed not to indulge in the private practice of giving luxury education at private coaching institutions. The Bench stated,

“Teachers these days are paid hefty salary by the Government and there is no pressing necessity for them to engage in private tuitions that, too, on many occasions at the cost of their students in the government institutions.”

The impugned circular was purported to have been issued under Section 28 of the Right of Children to Free and Compulsory Education Act, 2009, which had become applicable to the Union Territory of Jammu & Kashmir in terms of the Jammu & Kashmir Reorganization Act, 2019.

Noticeably, on 11-08-2005 a circular was issued debarring the teaching officials from undertaking any activity/assignment including teaching in private tuition/coaching centres unless permission was obtained from the competent authority providing further that no such permission would be available two hours before the opening of the school and two hours after school gets closed. The said circular was declared invalid by a Division Bench of this Court in Vichar Kranti Manch International v. State of J&K, WP (PIL) No. 06 of 2011.

Pursuant to which the department of school education issued another circular No. Edu/L/J/Misc/131/2017 dated 25-09-2017, which was in supersession of all previous circulars issued on the subject. It was submitted that in terms of the circular dated 25.09.2017 issued by the Secretary to Government, School Education Department, no member of teaching faculty can engage in teaching occupation in private tuition/coaching centres without prior permission of the competent authority.

Analysis by the Court

Noticing that the Chief Education Officer had purportedly derived the power to issue such circular under Section 28 of Right of Children to Free and Compulsory Education Act, 2009 to issue the impugned circular, the Bench stated, government teachers imparting education to the higher classes other than elementary education do not fall within the purview of the Act of 2009. The teachers serving in the institutions where classes higher than the eighth class were taught did not fall within the purview of the Act of 2009. Thus, the impugned circular was valid only in respect of teachers who are employed for imparting elementary education in the schools up to the eighth standard.

However, the Bench observed that the teaching faculty of the school education department as well as higher education department like other government employees are governed by the Jammu & Kashmir Government Employees (Conduct) Rules, 1971. Rule 10 of which makes it clear that, no government employee, which would include teaching faculty of the school and higher education department shall engage directly or indirectly in any trade or business or undertake any other employment except with previous sanction of the government. The Proviso added to Rule 10(1) exempts a government employee from seeking prior sanction in a case where he undertakes honorary work of a social or charitable nature or occasional work of a literary, artistic or scientific character except in organizations or associations with which a Government employee is strictly debarred from the association.

“Instead of concentrating on their pious job and contribute to the nation building, the God has chosen for them, for, they (teachers), moved by their insatiable greed, engage in activity of private tuition either at their residence or in private coaching centres. Many times, they skip their classes in the government schools so as to show up in the private coaching centres.”

Thus, the Chief Education Officer or the administrative department of school education was held to be within the power to debar teaching officials from engaging directly or indirectly in any trade or business without previous sanction of the Government under Rule 10. The Bench clarified that the circular dated 11-08-2005 was set aside by a Division Bench of this Court on the ground that it had granted blanket permission to all teachers to engage themselves by way of self-employment in private tuition centres two hours before opening of the schools and two hours after closing of the schools. The Court found the grant of general permission to the teaching faculty to engage in private coaching bad in the eye of law. The Bench expressed,

“It is pity that the standard of education in the government institutions has gone down drastically, though the best teaching faculty is available in the government-run institutions.”

In the light of the above the instant petition was disposed of with the following observations:

i) Imparting private tuition at residence or at some other premises including coaching/tuition centres is necessarily an engagement in the trade or business and, therefore, prohibited under Rule 10 of the Employees Conduct Rules, if undertaken without previous sanction of the government.

ii) The government employee is, however, entitled to undertake honorary work of a social or charitable nature or occasional work of a literary, artistic or scientific character even without such sanction.

iii) Neither Rule 10 of the Employees Conduct Rules nor any other provision of any Act or Rules debars the government from issuing circular, guidelines or instructions for enforcing Rule 10 of the Employees Conduct Rules. There is nothing that prevents the government from taking a policy decision in the matter of teaching faculty of the government that there shall be no sanction/grant for engagement directly or indirectly in private tuition in private coaching/tuition centres during and after the duty hours.

iv) The Zonal Education Officers at the zonal level and Chief Education Officers at the district level shall be the nodal officers, who will ensure the implementation of Rule 10.

v) The Government should do well to create and provide toll free telephone number in each District where complaint(s) against the banned activity of the teaching faculty could be made. The government may also create a web portal/grievance cell for receiving and redressal of the complaint(s).

vi) Government would adopt a proactive approach to eradicate the menace of government teaching faculty engaging in private tuitions at the cost of students studying in the government institutions.

The Bench was of the view that this would not only discipline the teaching faculty but would also help in raising the standard of education in government-run educational institutions. [Farooq Ahmed v. UT of J&K, 2021 SCC OnLine J&K 226, decided on 31-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. F.S.Butt

For the Respondents: GA Suneel Malhotra

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J., in a significant judgment dismissed the petition filed by former Chief Minister of J&K, Mehbooba Mufti for seeking directions for issuance of a passport in her favour.

The precise case of the petitioner was that she had submitted an application for issuance of a passport in her favour before the Passport Officer, Regional Passport Office. As per circular instructions issued by the Ministry of External Affairs on this behalf, the passport of an individual is required to be issued within 30 days from the date of receipt of the application, but despite lapse of more than three months, no passport was issued in favour of the petitioner. The petitioner, upon enquiry came to know the status of her application for passport as under: “Pending for physical police verification at respective Thana under SP Office, District Srinagar.” Thereafter, the petitioner approached Senior Superintendent of Police with the request to forward the Police Verification Report (PVR) to the Regional Passport Office, but nothing fruitful had been done in her favour.

The Assistant Solicitor General of India, Tahir Majid Shamsi submitted that the Passport Officer had already sought information from the Additional Director General of Police (CID) in the instant matter. Besides, Counsel for respondents 2, 3 and 5 was directed to expedite the PVR in relation to the case of the petitioner. Subsequently, the PVR was forwarded by the ADG of Police, CID,  to the Regional Passport Officer.  The Passport Officer’s report revealed that:

“Whereas the PVR received from Addl. Director General of Police, J&K-CID do not favour issuance of passport and returned as “NOT RECOMMENDED PASSPORT CASE”. In view of the J&K CID report, your case was found to attract refusal under provisions of section 6(2)(c) of the Passport Act, 1967. In light of the above, your application for issuance of passport is Refused.”

 The respondent argued that the petitioner had the alternate remedy of appeal to Joint Secretary (PSP) and Chief Passport Officer, Ministry of External Affairs, against the refusal order within (30) days from the date of receipt of the order under Section 11 of the Passports Act, 1967. It was also pleaded that the petitioner had no absolute right to demand a passport in her favour inasmuch as the passport, being a document that vouches for the respectability of the holder, stands to reason that the Government need not vouch for a person it did not consider worthy.

Considering that the PVR received by the Passport Officer, did not recommend grant of passport in favour of the petitioner, the Bench opined that no direction could be issued by the Court for issuance of passport as the scope of Court in the matter of grant or otherwise of passport is very limited inasmuch as the Court, in this behalf, could only direct the concerned authorities to expeditiously consider the case of an individual in the light of the mandate of the scheme of law governing the subject.

Noticing that the respondents had already undertaken the said exercise in tune with the mandate of the scheme of law by, firstly, seeking report from the Police/ CID authorities, and, thereafter, passing the order in tune with such recommendations of the police/ CID authorities. Relying on the decision of Supreme Court in Satwant Singh Sawhney v. Assistant Passport Officer, AIR 1967 SC 1836, the Bench said,  the petitioner had no absolute right to demand a passport in her favour.

 Hence, the petition was dismissed.[Mehbooba Mufti v. Union of India, WP(C) No.382/2021, decided on 29-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the Petitioner: Sr. Adv. Jahangir Iqbal Ganai with Adv. Humaira Shafi,

For the Respondents: ASGI Tahir Majid Shamsi and Sr. AAG B. A. Dar

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while dismissing the present petition, discussed the scope of interference under Article 226 in Contractual matters and further called the present case a classic example of filing successive petitions for the same relief after failing to get the interim relief in the earlier writ petitions. Taking a lenient view of the matter, and considering that the petitioner is a student, Court did not impose any costs but only left with a severe warning against the same.

Through the medium of the instant writ petition, the petitioner has sought a direction against the respondents for release of all the instalments of fee in her favour and transfer of the same to a medical college in Bangladesh, so that she is able to pursue her MBBS course from the institution therein. Further, a writ of certiorari for quashing of communication dated 31-01-2020 has also been sought. Issue to be determined by the Court precisely was, whether the petitioner is entitled to seek a direction upon the respondent corporation to release the loan amount sanctioned in her favour to college different from the one mentioned in the sanctioned letter. It is to be noted that such borrowings/loan from a Financial Institution is purely contractual in nature governed by the terms and conditions of the loan agreement indicating a very restricted approach of the Court exercising writ jurisdiction.

Court referred to the following cases pursuant to its decision;

  1. Noble Resources Ltd. v. State of Orissa, (2006) 10 SCC 236; While answering whether a writ petition was maintainable in contractual matters and if so, what is the scope of jurisdiction of the Court in such matters, Supreme Court said, “It is trite that if an action on the part of the State is violative of the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the court’s scrutiny would be more intrusive, in the latter the court may not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution.” [Law laid down in Radhakrishna Agarwal v. State of Bihar, (1977) 3 SCC 457]
  2. Kisan Sehkari Chini Mills v. Vardan Linkers, (2008) 12 SCC 500; With respect to an administrative action involved in conclusion of the Contract, Court said, “…when there is a contractual dispute with a public law element, and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full fledged adjudication of his contractual rights, but only a judicial review of the administrative action.”
  3. Rishi Kiran Logistics v. Board of Trustees of Kandla Port Trust, (2015) 13 SCC 233; Distinguishing between a remedy sought under the Contract Act, by means of damages, Specific Performance under the specified Act and invoking Writ Jurisdiction, Court observed in the words, “Ordinarily, the remedy available for a party complaining of breach of contract lies for seeking damages. He would be entitled to the relief of specific performance, if the contract was capable of being specifically enforced in law. The remedies for a breach of contract being purely in the realm of contract are dealt with by civil courts. The public law remedy, by way of a writ petition under Article 226 of the Constitution, is not available to seek damages for breach of contract or specific performance of contract. However, where the contractual dispute has a public law element, the power of judicial review under Article 226 may be invoked.

Narrowing down to the facts and circumstances of the present case, Court said that the terms and conditions of the loan agreement suggest that the institution in whose favour the loan was being sanctioned was an essential ingredient to the contract and the college in which the petitioner now seeks to take admission in, was not at all in picture during the grant of the first installment.

Therefore, “…the action of the respondent-Corporation in not releasing the second installment of loan in favour of the petitioner appears to be justified and the same cannot be termed either arbitrary or malafide”. Court further said, “So far as the action of the respondent Corporation directing the petitioner to refund the first installment of loan amount is concerned, the same also appears to be justified because the petitioner admittedly had, on her own, transferred the first installment of loan from the Community Based Medical College, Bangladesh to Khwaja Younis Ali Medical College, Bangladesh without informing the respondent Corporation which is a breach of terms and conditions of the sanction letter.” [Mubashir Ashraf Bhat v. Union Territory of J&K, 2021 SCC OnLine J&K 8, decided on 19-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Appointments & TransfersNews

APPOINTMENT

President appoints Justice Rajesh Bindal, senior-most Judge of Common High Court for the Union Territory of Jammu & Kashmir and Union Territory of Ladakh, to perform the duties of the office of Chief Justice of that High Court with effect from 09-12-2020 consequent upon the retirement of Kumari Justice Gita Mittal, Chief Justice, Common High Court for the Union Territory of Jammu & Kashmir and Union Territory of Ladakh.


Ministry of Law and Justice

[Notification dt. 08-12-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J. addressed a matter wherein 100 % reservation in public employment for J&K domiciles in the UT has been challenged.

Petitioner’s 1 and 3 are domiciles of the State of Haryana and Petitioner 2 a permanent resident of the erstwhile State of Jammu and Kashmir who is now a resident of UT of Ladakh.

Petitioners challenged Sections 3A, 5A, 6, 7, and 8 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, on the ground that the same is violative of Article 14, 16, 19 and 21 of the Constitution of India.

Petitioner contended that Parliament has never delegated the law-making power of Article 16(3) of Constitution to the Central Government under Section 96 of Jammu and Kashmir Reorganization Act, 2019. 

“…power delegated under Section 96 was only for the purpose of facilitating the applications of already prevailing law in former State of Jammu and Kashmir or to make laws applicable to new Union Territories of J&K and Ladakh.”

Further, it was contended that the power delegated under Section 96 shall not be in any manner construed as a delegation of parliamentary power of Article 16(3) of the Constitution of India.

By amending Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 by two executive orders dated 31-03-2020 and 03-04-2020, the Union Ministry of Home Affairs has debarred the non-domiciles from employment in J&K.

After the amendment in Section 96, the term “Permanent Resident of J&K” was replaced by “Domiciles” of UT of J&K.

Court directed for issuance of notice to the respondents. Matter to be listed on 03-09-2020. [Nishant Khatri v. UOI, 2020 SCC OnLine J&K 380, decided on 04-08-2020]

Hot Off The PressNews

Justice Sanjay Kumar Gupta of Jammu and Kashmir High Court, dies at age 59.

Background

Justice Sanjay Kumar Gupta was born on 24-11-1961, did matriculation from Oriental Academy, Jammu in 1976,  B.Sc with full medical subjects from G.G.M Science College, Jammu in 1982, and L.L.B. from University of Jammu.

Journey as an Advocate

Enrolled as an Advocate in Bar Council of Delhi in 1986, joined Jammu bar in the Chamber of S.S Lehar (Senior Advocate) and practised in all fields including Criminal, Civil, Revenue, MACT etc. in subordinate courts and before High Court.

Higher Judicial Service

He was selected as a direct recruit in Higher Judicial Service as District and Sessions Judge on 22-01-2004 and was posted as Additional District and Sessions Judge Doda, served as District and Sessions Judge in various Courts at Jammu, including 1st additional, 2nd additional, 3rd additional, Additional District and Sessions Judge and Principal District and Sessions Judge Jammu.

Furthermore, he also remained posted as 3rd and 4th additional District and sessions Judge Srinagar, Judicial member special tribunal, J&K at Jammu. One man-forest tribunal Jammu and Kashmir, Principal District and Sessions Judge Leh, Principal District and Sessions Judge, Rajouri.

Lastly, he was posted as Principal District and Sessions Judge, Jammu, from where elevated to permanent Judge of High Court of Jammu and Kashmir.

He took oath as a High Court Judge on 06-06-2017.


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Hot Off The PressLaw School NewsNewsOthers

Scheme for Internship and e-internship in the High Court of Jammu and Kashmir

In exercise of the powers conferred under Article 229 of the Constitution of India, the Chief Justice, High Court of Jammu and Kashmir, has been pleased to approve the following scheme for engagement of law students as law interns including e-internship in the High Court of Jammu and Kashmir.

1. Title:

This scheme shall be called “Scheme for Internship and e-internships in the High Court of Jammu & Kashmir.”

2. Entitlement for the services of Law Interns for e-internship:

The Chief Justice and the Judges of the High Court of Jammu & Kashmir may permit internships to law students, either regular or by way of e-internship to such number as may be convenient.

3. Eligibility Conditions:

The candidate must possess the following qualifications to be eligible for internship:

(i) The candidate should be pursuing LL.B course from a recognized Law College/ University established by law in India and eligible for enrolment as an Advocate with the Bar Council of India or State Bar Councils on conclusion of the LL.B course.

(ii) The candidate must have a good working knowledge of computers.

(iii) The candidate must be a citizen of India.


To read the full details of the scheme, please click on the below link:

NOTIFICATION


Jammu and Kashmir High Court

[Notification dt. 23-07-2020]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges of the Jammu & Kashmir High Court:

1. Shri Vinod Chatterji Koul,
2. Shri Sanjay Dhar, and
3. Shri Puneet Gupta.


Supreme Court of India

[Collegium Statement dt. 19-02-2020]

Appointments & TransfersNews

The Supreme Court Collegium in its meeting held on 15-10-2019, after taking into consideration the material on record, has approved the proposal for elevation of the following persons as Judges of the Jammu & Kashmir High Court:

1. Moksha Kazmi (Khajuria), Advocate; and
2. Rajnesh Oswal, Advocate


Supreme Court of India