Jammu & Kashmir & Ladakh High Court Weekly Round-Up: July 10 To July 16, 2022

Kamaljeet Singh Vs UT of J&K and Ors 2022 LiveLaw (JKL) 63

Jaffar Hajam Mohd Abbas and ors. V/s Chairman and Managing Director, FCI & ors 2022 LiveLaw (JKL) 64

Enigineering Control Vs. Banday Infratech Pvt. Ltd 2022 LiveLaw (JKL) 65

Sanjay Kumar Srivastava & Ors. Vs. Central Bureau Of Investigation 2022 LiveLaw (JKL) 66

Waseem Qureshi vs UT of J&K 2022 Livelaw (JKL) 67

Qazi Gousia Jeelani V/s Mehraj Ud Din Najar and ors 2022 LiveLaw (JKL) 68

Faizan Amin and another V/s UOI and another 2022 Livelaw (JKL) 69

Mohammad Yousaf vs Union Territory of J&K and other 2022 LiveLaw (JKL) 70

Suhail Ahmad Wani V/s SKIMS Medical College Hospital and ors 2022 LiveLaw (JKL) 71

Zubair Ahmad Wani Vs. Government Of J&K 2022 Livelaw (JKL) 72

Fayaz Ahmad Sheikh Vs. Mushtaq Ahmad Khan 2022 LiveLaw (JKL) 73

Waiz-ul-Islam Vs Union Territory of J&K through NIA Jammu 2022 LiveLaw (JKL) 74

Judgements/Orders

1) Offences Alleged Against A Person Must Fall Within Realm Of Disturbing "Public Order" To Warrant Preventive Detention: J&K&L High Court Reiterates

Case Title: Kamaljeet Singh Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 63

A single bench of Justice Rajnesh Oswal held that a detention order passed by a competent authority under Sec 8(1) of J&K Public Safety Act on the ground of disturbance of law & order situation is not sustainable in law as the said provision clearly prescribes "prejudicial to Public order" as a ground to issue detention orders.

The bench further observed that a person may be detained under preventive detention laws provided the case falls within the parameters of law laid down under the Act and the perusal of detention order reveals that in all the FIRs, the allegations against the petitioner are with regard to the commiss ion of offences those do not fall within the realm of "public order" as defined by section 8(3) of the Act.

2) Employment Conditions Can't Take Away Employees' Right To Seek Judicial Review Of Employer's Actions: J&K&L High Court

Case Title: Jaffar Hajam Mohd Abbas and ors. V/s Chairman and Managing Director, FCI & ors

Citation: 2022 LiveLaw (JKL) 64

The court held that the right to seek judicial review is a vital right conferred by the Constitution and any terms and conditions of employment, which restrain a person to seek legal remedies for enforcement of his rights, are null and void. employer cannot impose such conditions of employment which have the effect of taking away the right of its employees to seek judicial review of the actions of the employer, the bench of Justice Sanjeev Kumar underscored.

3) Pre-Condition Of Filing Complaint U/S 138 NI Act Not Fulfilled When Statutory Notice Of Demand Sent On Wrong Address: J&K&L High Court

Case Title: Enigineering Control Vs. Banday Infratech Pvt. Ltd

Citation: 2022 LiveLaw(JKL) 65

A bench of Sanjay Dhar ruled The Jammu and Kashmir and Ladakh High Court ruled that an inference of having received the statutory notice of demand by a drawer of a cheque as mandated under Section 138 of Negotiable Instrument Act can be raised only if the notice has been dispatched to his correct address. Such an inference cannot be drawn if the notice has been sent on the incorrect address of the drawer of the cheque, the court observed.

4) If Sanction For Prosecuting Public Servant Under PC Act Is Denied, Prosecuting Agency Can't File Challan Under Other Penal Laws On Same Facts: J&K&L HC

Case Title: Sanjay Kumar Srivastava & Ors. Vs. Central Bureau Of Investigation

Citation: 2022 LiveLaw (JKL) 66

The Jammu and Kashmir and Ladakh High Court held that once the Central Vigilance Commission after examining the material on record reaches a conclusion that no criminal offence is made out against the accused public servant and the said opinion is accepted by the competent authority, it is not open to the investigating agency to file a challan on the same set of facts against the accused public servant by dropping the offences under the provisions of Prevention of Corruption Act and confining the challan only to the offences under other penal provisions.

5) Doctrine Of Ejusdem Generis Not Automatically Applicable To Restrict Words Used In Statute If Legislative Intent Is Clear: J&K&L High Court

Case Title: Waseem Qureshi vs UT of J&K

Citation: 2022 LiveLaw (JKL) 67

The Jammu and Kashmir and Ladakh High Court held that the doctrine of "ejusdem generis" cannot be made automatically applicable to restrict the words used in a statute if otherwise intention of the legislature is clear. It is only in cases where intention of the legislature is clear that the general terms shall not be given broader meaning than required, the aforesaid doctrine will have applicability, Justice Sanjay Dhar recorded.

6) Courts Can't Expand Scope Of Qualification Prescribed By Employer By Reading Into It A Higher Qualification: J&K&L High Court

Case Title: Qazi Gousia Jeelani V/s Mehraj Ud Din Najar

Citation: 2022 LiveLaw (JKL) 68

A division bench comprising Justices Sanjeev Kumar and M A Chaudhary ruled that a person, to be eligible for a post, must possess the qualification prescribed for the post and it is not within the province of the Courts of law to read the higher qualification into the qualification prescribed in the rules or the advertisement as essential qualification.

7) High Court Directs NIT Srinagar To Pay Rs 5 Lacs Compensation Over Unjustifiable Delay In Appointing Candidates Selected As Jr. Engineers

Case Title: Faizan Amin and another V/s UOI and another

Citation: 2022 LiveLaw (JKL) 69

The bench comprsing Justice Sanjeev Kumar took a strong note of the mushrooming growth in frivolous litigations and said: "To serve the cause of justice and to keep the stream of justice unsullied, it is imperative for the Courts to act tough and discourage the tendency of some litigants to misuse the process of law."

The court further observed: "Time has come to stay firm on frivolous litigation lest it will prevent the Courts from taking up good causes involving adjudication of vital constitutional and other statutory rights of the citizens. It would be no exaggeration to say that a major portion of Court time is wasted in hearing and weeding out frivolous litigation.

8) J&K&L High Court Orders Probe By Anti-Corruption Bureau Into Leakage Of PSA Detention Order Even Before Its Execution

Case Title: Mohammad Yousaf vs Union Territory of J&K and other

Citation: 2022LiveLaw (JKL) 70

A bench of Justice Rajnesh Oswal observed The court further observed that it is at a loss as to understand how the order of detention landed in the hands of the petitioner or his brother without there being any execution of the said detention order. In view of the gravity of the act, the Court directed the Director, Anti-Corruption Bureau, Union Territory of J&K to enquire the issue with regard to the connivance of the officials of the respondents with regard to fact as to how these documents landed with the detenu or his brother without execution of the detention order.

9) In Absence Of Criteria To Break A Tie, Selection Committee May Adopt Its Own Yardstick In Consonance With Article 14: J&K&L High Court

Case Title: Suhail Ahmad Wani V/s SKIMS Medical College Hospital and ors

Citation: 2022 LiveLaw (JKL) 71

The Jammu and Kashmir and Ladakh High Court ruled that in cases of recruitment or drawing of seniority lists where there is neither any statutor y prescription, nor any executive instructions laying down any criteria or guidelines to be followed to break the tie, the only course that is left with a Court adjudicating such matter is to look to the fairness and rationality of the selection process as also the criteria that ought to have been possibly applied to break the tie.

The bench also observed that preferring a candidate having better merit in the academics but not being older in age cannot, by any stretch of reasoning, be said to be unfair, irrational or arbitrary.

10) Anticipatory Bail Plea Not Maintainable By Person Already Enlarged On Bail As He Is Under Constructive Custody: J&K&L High Court

Case Title: Zubair Ahmad Wani Vs. Government Of J&K

Citation: 2022 LiveLaw (JKL) 72

A bench comprising Justice Sanjay Dhar ruled that a person released on bail is already construed to be the in constructive custody and if the law requires him to come back to custody for specified reasons, the application for anticipatory bail will not lie. There cannot be an apprehension of arrest by a person already in the constructive of the law.

Dismissing the bail application the bench observed bench observed that the proper course for the petitioner was to surrender before the Sessions Court and apply for grant of regular bail because he had already been arrested and pursuant to grant of interim regular bail, he was in constructive custody of the law.

11) Simultaneous Prosecution Of Accused U/S 420 IPC & S.138 NI Act On Same Set Of Facts Not "Double Jeopardy": J&K&L High Court

Case Title: Fayaz Ahmad Sheikh Vs. Mushtaq Ahmad Khan

Citation: 2022 LiveLaw (JKL) 73

The Jammu and Kashmir and Ladakh High Court ruled that the test to ascertain and uphold the fundamental right against "double jeopardy", which isguaranteed under Article 20(2) of the Constitution, is that whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials.

12) Pulwama Terror Attack: J&K&L High Court Dismisses Accused' Appeal Claiming 'Plea Of Juvenility'

Case Title: Waiz-ul-Islam Vs Union Territory of J&K through NIA Jammu

Citation: 2022 LiveLaw (JKL) 74

The division bench comprising Justices Rajnesh Oswal and Mohan Lal observed that if an offence is constituted of several acts and when the accused is major at a time when subsequent act is committed forming part of an offence, he c annot claim to be juvenile. Thus, this court has no hesitation to hold that the appellant was more than 18 years of age and was not juvenile at time of commission of offence.