J&K High Court Directs Dept Action Against Commissioner Secretary For Barring Contractors Whose Relatives Were Involved In Anti-National Activities In Past

While directing departmental action against the then Commissioner/Secretary for disregarding the law a bench of Justice Sanjeev Kumar observed,

“..There is nothing adverse noticed by the CID against the petitioners while verifying their character/antecedents. The petitioners can, by no stretch of reasoning, be penalized and deprived of their right to livelihood on the ground that one or more relatives of the petitioners had, in the past, indulged in anti-national activities”.

The case involved multiple petitions filed by registered contractors under the J&K Registration of Contractors Rules, 1969. They were barred from participating in tenders for public works by the Department of Rural Development and Panchayati Raj based on a report from the CID that their close relatives, including brothers, cousins, uncles, and nephews, had been involved in subversive activities in the past.

The petitioners challenged this decision, arguing that it violated their fundamental right to practice any profession or carry on any occupation, trade, or business guaranteed under Article 19(1)(g) of the Constitution of India. They further contended that they had not been convicted of any offense and their character verification reports did not mention any adverse findings against them.

The Department of Rural Development and Panchayati Raj defended its decision, stating that it aimed to bring fairness and transparency to the allotment of government contracts and keep those involved in anti-national activities out of such projects.

In his judgment, Justice Kumar observed that the impugned communication not only violated the fundamental rights of the petitioners but also deprived them of their right to livelihood. He highlighted that the Act and Rules governing contractor registration prescribed specific grounds for disqualification and observed,

“..the petitioners have not incurred any of the disqualifications under the Act and the Rules framed thereunder and, therefore, hold valid certificates of registration issued by the competent authority. These certificates were issued by the competent authority after recording satisfaction about the eligibility and fulfilment of requisite conditions by the petitioners”.

The court reasoned that the petitioners cannot be denied the right to enter into contracts with the government for public works based solely on their relatives' involvement in anti-national activities in the early 90s or later as the valid registration certificates issued to the petitioners by the competent authority entitle them to participate in government contracts.

Expounding on the mandate of the right to life and liberty guaranteed under Article 21 and the right to carry on trade or business guaranteed under Article 19(1)(g) the court explained that the restrictions on these fundamental rights cannot be imposed otherwise than in accordance clause (6) of Article 19.

“Such restriction must be reasonable, in general public interest and imposed by law. The restriction on the fundamental right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution, even if it is reasonable, cannot be imposed by the Government through executive fiat”, the court underscored.

The Court further noted the government's rehabilitation policies for ex-militants and surrendered militants, emphasizing the importance of reintegration into mainstream society. It deemed the impugned communication to be against the spirit of these policies and a disregard for the well-being of the petitioners who were not responsible for the actions of their relatives.

Consequently, the Court allowed the petitions, quashing the communication and directing the authorities to permit the petitioners to participate in the tender process if they meet the eligibility criteria.

Additionally, the Court directed the Chief Secretary of the Union Territory of Jammu and Kashmir to initiate departmental action against the then Commissioner/Secretary who issued the impugned communication, disregarding the law and causing prejudice to the petitioners.

“A report with regard to action taken against the then Commissioner/Secretary to Government, Department of Rural Development and Panchayati Raj shall be submitted by the Chief Secretary to this Court within a period of two months from the date a copy of this judgment is served upon the Chief Secretary. For this purpose only, the matter shall be listed before this Court on 29.07.2024”, the court concluded.

Case Title: Mohammad Shafi Malik Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 128

Mr. Mir Umar, Advocate appeared for the petitioners Ms. Maha Majeed, Assisting Counsel, vice Mr. Mohsin Qadiri, Sr. AAG. Mr. Alla-ud-din Ganai, AAG represented the respondents

Click Here To Read/Download Judgment