Jammu & Kashmir High Court Imposes ₹1L Cost On CWC And JJB Members For "Forum Shopping" Regarding Their Re-Appointments

The Jammu & Kashmir and Ladakh High Court on Tuesday dismissed a petition to quash and set aside an advertisement notification for selections to constitute Juvenile Justice Boards and Child Welfare Committees under the Juvenile Justice (Care and Welfare) Act, 2015.

The bench comprising Justices Sanjeev Kumar and Puneet Gupta while deciding a plea noted that the petitioners, ninety six (96) in number, working either as Chairpersons/Members of the CWCs or Members of JJBs, had been appointed under different provisions of Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 for a period of 3 years.

Subsequently, the process of selection was initiated which came to be assailed by the petitioners before the Srinagar bench of High Court and the Single Judge,  after considering the grievance of the petitioners, passed an ad-interim ex parte order staying the process.

The bench also recorded that while the aforesaid writ petition was pending adjudication, another writ petition came to be filed by the petitioners before the Jammu bench in which they sought directions upon the respondents to undertake performance appraisal of the petitioners for the purpose of re-appointment.

In this other petition, it was further prayed to restrain the respondents from taking any action disadvantageous to the interests of the petitioners and further allow the petitioners to continue and also to release their monthly honorarium regularly, the bench recorded.

After perusing the writ petitions in juxtaposition, the bench observed that the averments made in both the petitions were entirely identical and that in the first writ petition filed in Srinagar the petitioners had missed to pray for and persuade the Single Judge to protect their continuation in service as the focus of the petitioners in the first petition filed in Srinagar wing of the Court was only to somehow persuade the Court to stop the process of selection undertaken by the respondents by issuing the impugned Notifications.

It was this missing out or their failure to persuade the Court to pass an order of status quo, so that their service status could also have been protected which had triggered the petitioners to rush to the Jammu wing and file the second petition though their earlier petitioner was pending in Srinagar, the bench pointed.

Terming it as a clear case of forum shopping/Bench Hunting, pure and simple and blatant abuse of process of law, the bench recorded that the second petition on the same cause of action and the same subject matter was not maintainable.

Expounding law on the subject the bench explained that it is an abuse of process of the Court and contrary to justice and public policy for a party to re-agitate the same issue which has either been tried earlier or is pending adjudication before other Court or forum.

"The re-agitation of the issue may or may not be barred by the principle of “res judicata” but the same may, in the given circumstances, tantamount to an abuse of process of Court", the court said

Expressing displeasure on the matter the bench pointed that the petitioners have tried to hoodwink the Court by filing second petition on the same cause of action, that too, in the wing other than the one in which the first petition on the same subject matter was pending.

"An attempt was made to get an additional interim order in different form which the petitioners had failed to obtain in the first petition. The reason for rushing to the Jammu wing to file the second petition was nothing short of forum shopping and, therefore, cannot be countenanced by this Court on any count",the bench underscored.

Frowning over the mechanism adopted by the petitioners to hoodwink the Court and justify the filing of subsequent petition in another wing by rearranging the sequence of names of petitioners just to give an impression as if they, in the subsequent petition, were different from the one who had filed the earlier petition in Srinagar Wing of this Court, the court said that the conduct exhibited by the petitioners is highly depreciable and cannot be approved.

"Such litigants are not entitled to invoke the extraordinary writ jurisdiction. Both the writ petitions are, therefore, liable to be dismissed on this ground alone without even going to the merits of the controversy", the bench said while admonishing the petitioners.

In view of the same the court dismissed the petition and imposed an exemplary cost of Rs one lakh on the petitioners for the conduct the petitioners exhibited.

“We hope and trust that the Competent Authority shall act in the matter without any further delay and constitute the CWCs and JJBs in accordance with the 2015 Act and the Rules framed thereunder”, the bench concluded.

Case Title: Dr. Khair-Un-Nisa and others Shalini Sharma and others Vs UT of J&K & others.

Citation: 2023 LiveLaw (JKL) 69

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