HARSH DEV SINGH, MLA Vs. STATE OF J AND K

JUDGEMENT

(1.) THE petitioner is a member of the State Legislative Assembly. He has challenged the vires of Jammu and Kashmir Essential Services Maintenance Ordinance and its use against the employees of the State Government who are on strike to seek enforcement of the Government Order No. : 58 -F of 1998 dated 5th Feb. 1998 providing the manner in which the arrears of pay and allowances were to be released. The relief prayed by the petitioner is that the ordinance may be declared ultra -vires and non -est and consequently the arrest of the Government employees and their suspension be nullified being without jurisdiction.

(2.) THE contention of the petitioner is that since Section 5 of the Jammu and Kashmir Constitution Act, 1996 was omitted in November 1951, all laws made by His Highness in exercise of the power conferred by this section have ceased to exist. However, this argument is no -longer res -integra for this court in view of the judgement of the Apex Court in 'Rehman Shangoo and Ors. v. State of Jammu and Kashmir', AIR 1960 SC 1, holding that: -

(3.) SO the discretion is with the Government to apply it to all employment under it. This discretion cannot be said to be arbitrary because all employment under the Government is essential for securing the object sought to be achieved. Maintenance of public order and maintaining supplies or services necessary to the life of the community are of wide amplitude embrassing of employment under the Government which is only for public good. Moreover, Article 14 prohibits class legislation and not reasonable classification. While rejecting a similar challenge to the Jammu and Kashmir Enemy Agent Ordinance, 2005 in the case of Rehman Shagoo (supra), their Lordships held that: -