Jammu & Kashmir High Court Sets Aside Single Bench Order For Probe Against J&K SSB, Matter To Be Decided Afresh

A bench comprising Justices Tashi Rabstan and MA Chowdhary observed,

"We are of the view that the Writ Court had no jurisdiction to finally dispose of the petition without first issuing notice and affording an opportunity to the opposite side for filing reply on merits of the case"

The appellant Jammu and Kashmir Service Selection board assailed the single bench judgement primarily on the ground that the Single Judge on the very first date of hearing proceeded to decide the writ petition finally without granting any opportunity to the appellants to file objections to the writ petition. Counsel appearing for appellants argued that they were under the impression that the arguments were being heard for the purposes of deciding the application for interim relief, as the appellants were appearing before the Writ Court in the capacity of caveators.

The appellant further submitted that, at no point of time the counsel for appellants-writ respondents had made a statement that the appellants-writ respondents did not want to file reply or that the matter be decided on the basis of record only, as the matters having huge repercussions and involving public interest cannot be decided on the basis of record only or without seeking formal objections of the parties. Therefore, the judgment impugned is contrary to the settled position of law as also in conflict with the Writ Proceedings Rule, 1997, they averred.

Dealing with the matter in controversy the bench observed that the Rules 14 & 15 of the Writ Proceeding Rules 1997 are amply clear that when the petition is placed before the Court, the Court upon being satisfied is having two options, i.e., the Court may either summarily dismiss the petition or order to issue rule nisi to the opposite side, as it thinks fit and proper.

The bench noted that the order itself shows that when the matter was listed before the learned Single Judge for the first time on November 30, 2022, no notice was issued by the Single Judge to the opposite party. The writ respondents through their counsel were appearing in the capacity of caveators and the learned Single Judge without recording the statements of learned counsel for writ respondents-caveators that the writ respondents-caveators do not intend to file reply to the writ petition, reserved the matter, the bench pointed.

Observing that the order does not show whether the matter had been reserved for passing order on interim relief or for finally disposing of the writ petition, the bench maintained that we are of the view that the Writ Court had no jurisdiction to finally dispose of the petition without first issuing notice and affording an opportunity to the opposite side for filing reply on merits of the case.

In view of the same, the bench preferred not to venture into the merits of the case and deemed it proper to dispose of the appeals and remit the writ petition back to the Writ Court for deciding the matter afresh.

The bench further directed the appellants/Writ respondents to file objections/counter to the writ petition within two weeks from today and listed the matter before the Single Judge on 5th of April, 2023, for its final disposal.

Case Title: J&K Service Selection Board Vs Vinkal Sharma.

Citation: 2023 LiveLaw (JKL) 48

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