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Jammu and Kashmir Constitution-Part-III

 

PART VII
THE HIGH COURT
93. (1) There shall be a High Court for the State, consisting of a Chief Justice and two or more other judges.
(2) The High Court exercising jurisdiction in relation to the State Immediately before the commencement of this Constitution shall be the High Court for the State.
94. The High Court shall be a court of record and shall have all the powers of such a courts including the power to punish for contempt of itself or of the courts subordinate to it.
95. Every Judge of the High Court shall be appointed by the President by Warrant under his hand and seal after consultation with the Chief Justice of India, the Sadar-i-Riyasat, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office until he attains the age of sixty years.
96. A person shall not be qualified for appointment as a Judge of the High Court unless he is a citizen of India, and:
(a) has for at least ten years held a judicial office in the State or in any other part of India; or
(b) has for at least ten years been an advocate of the State High Court or of any other High Court in India or of two or more such courts in succession.
Explanation: - For the purposes of this Section in omputing the period during which a person has been an advocate of a High Court. there shall be included any period during which the person has held judicial office after he became an advocate.
97. Every person appointed to be a Judge of the High 
Court, shall. before he enters upon his office, make an subscribe before the Sadar-i-Riyasat or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Fifth Schedule.
98. (1) There shall be paid to the Judges of the High 
Court such salaries as are specified in the Fourth Schedule.
(a) Every Judge shall be entitled to such allowan-ces and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by the Legislature, and until so determined, to such allowances and rights as are specified in the Fourth Schedule:
Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his dis-advantage after his appointment:
99. (1) A Judge of the High Court may, by writing under his hand addressed to the President, resign his office.
(2) A Judge of the High Court shall not be removed from his office except by an order of the President passed after an address by each House of the Legislature supported by a majority of the total membership of that House and by a majority of not less than two- thirds of the members of that House present and voting has been presented to the president
in the same session for such removal on the
ground of proved misbehaviour or incapacity.
(3) The Legislature may by law regulate the  procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under sub-section (2).
100. (1) When the office of the Chief Justice is vacant or when the Chief Justice is by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other
Judges of the Court as the President may appoint for the purpose.
(2) When any Judge of the High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of the Court until the permanent Judge has resumed his duties.
101. (1) The usual places of sitting of the High Court shall be Jammu and Srinagar.
(2) The Chief Justice shall, with the approval of the Sadar-i-Riyasat determine the number of Judges who shall sit from time to time at Jammu and at Srinagar for such period as may be deemed necessary.
(3) Whenever it appears to the Chief Justice that it is desirable that the High Courts should hold its sitting at a place other than Srinagar and Jummu, one or more Judges of the High Court as determined by him shall, with the previous approval of the Sadar-i-Riyasat, sit at such place.
102. Subject to the provisions of this Constitution and to the provisions of any law for the time being in force, the jurisdiction of and the law administered in the High Court and the respective powers of the Judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof, sitting alone or in Division Courts, shall be the same as immedia-tely before the commencement of this Constitution.
103. The High Court shall have power to issue to any person or authority, including in appropriate cases any Government within the State, directions, orders or writs. including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them. for any purpose other than those mentioned in clause (2A) of article 32 of the Constitution of India.
104. (1) The High Court shall have superintendence and control over all courts for the time being subject to its appellate or revisional jusrisdic-tion and all such courts shall be subordinate to the High Court.
(I) Without prejudice to the generality of the foregoing provision, the High court may:
(a) call for returns from such courts,
(b) make and issue general rules and prescribe forms for regulating the practice and pro-ceedings of such courts; and
(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such court.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advo-cates and pleaders practicing therein:
Provided that any rules made, forms prescrib-ed or tables settled under sub-section (2) or sub-section(3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Sadar-i-Riyasat.
105. If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution or the Constitution of India the deter-mination of which is necessary for the disposal of the case, it shall withdraw the case and may:
(a) either dispose of the case itself; or
(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgement on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgement.
106. No person who had held office as a Judge of the 
High Court after the commencement of this Con-stitution shall plead or act in any court or before any authority within the State.
107. (1) The High Court shall have and use as occa-sion may require a seal bearing a device and impression of the State emblem with an exergue or label surrounding the same with the inscription:
"The seal of the High Court of Jammu and Kashmir''
(2) The seal shall be delivered to. and kept in the custody of, the Registrar or such other officer of the court as the Chief Justice may designate in this behalf.
108. (1) Appointments of officers and servants of the High Court shall be made by the Chief Justice of the court or such other judge or officer of the court as he may direct:
Provided that the Sadar-i-Riyasat may by rule require that in such cases as may be specified in the rule no person not already attached to the court shall be appointed to any office connected with the court save after consulta-tion with the State Public Service Commis-sion.
(I) Subject to the provisions of any law made by the Legislature, the conditions of service of the officers and servants of the High Court shall be such as may be prescribed by rules made by the High Court with the approval of the Sadar-i-Riyasat.
(3) The administrative expenses of the High Court including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court' shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.
SUBORDINATE COURTS
109. (1) Appointment of persons to be, and the postings: and promotion off district judges in the State shall be made by the Sadar-i-Riyasat in con-sultation with the High Court. 
 (2) A person not already in the service of the : State shall only be eligible to be appointed a  district judge if he has been for not less than seven years an advocate or pleader and is recommended by the High Court for appointment.
110. Appointment of persons other than district judges to the judicial service of the State shall be made by the Sadar-i-Riyasat in accordance with rules made by him in that behalf after consulation with the Public Service Commission and with the High Court.
111. The control over district courts and courts sub-ordinate thereto including the posting and promo-tion of, and the grant of leave to, persons belong-ing to the judicial service of the State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this section shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
112. In this part...
(a) the expression "district judge'' includes additional district judge, assistant district judge, sessions judge, additional sessions judge and assistant sessions judge:
(b) the expression "judical service" means a service consisting exclusively of persons inten-ded to fill the post of district judge, and other civil judicial posts inferior to the post of dis-trict judge.
113. The Sadar-i-Riyasat may be public notification direct that the foregoing provisions of this part and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magis-trates in the State as they apply in relation to any persons appointed to the judicial service of the State Subject to such exceptions and modifications as may be specified in the notification.
PART VIII
FINANCE, PROPERTY AND CONTRACTS
114. No tax shall be levied or collected except by authority of law.
 115. (1) Subject to the provisions of section 116, all revenues received by the Government, all loans raised by the Government by the issue of
treasury bills, loans or ways and means advances and all moneys received by Government in repayment of loaned shall form one consolidated fund to be entitled "the Consolidated Fund of the State."
(2) All other public moneys received by or on behalf of the Government shall be credited to the public account of the State.
(3) No moneys out of the Consolidated Fund of the State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.
116. The Legislature may by law establish a Contingency Fund in the nature of an impress to be entitled
"the Contingency Fund of the State" into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the Sadar-i--Riyasat to enable advances to be made by him out of such fund for the purposes of meeting unforeseen expenditure pending authorisation of such expendi-ture by Legislature by law under section 82 or 83.
117. The State may make any grants for any public purpose, notwithstanding that the purpose is not one with expect to which the Legislature may make.
118. The custody of the Consolidated Fund of the State and the Contingency Funds of the State, the payment of moneys into such funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Fund received by or on behalf of the Government, their payment into the public account of the State and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by the Legislature and, until provision in that behalf is so made, shall be regulated by rules made by the Sadar-i-Riyasat.
119. All moneys received by or deposited with:
(a) any officer employed in connection with the affairs of the State in his capacity as such, other than revenues or public moneys raised or received by the Government; or
(b) an, court within the State to the credit of any cause, matter, account or persons, shall be paid into the public account of the State.
120. Any property within the State which, if this Constitution had not come up into operation, would have accrued to the Government or any other authority hi the State by escheat or lapse, or as bona-vacantia for want of a rightful owner, shall vest in the State.
121. (1) The executive power of the State shall extend, subject to any law made by the State Legisla-ture, to the carrying on of any trade or busi-ness, and to the grant, scale, disposition or mortgage of any property held for the purposes of the State, and to the purchase or acquisi-tion of property for those purposes and to the making of contracts.
(2) All property acquired for the purposes of the State shall vest in the State.
122. (1) All contracts made in the exercise of the executive power of the State shall be expressed to be made by the Sadar-i-Riyasat and all such contracts and all assurance of property made in the exercise of that power shall be executed on behalf of the Sadar-i-Riyasat by such persons and in such manner as he may direct or authorise.
(2) The Sadar-i-Riyasat shall not be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes any of enact-ment relating to the Government of the State heretofore in force, nor shall any person making or executing any such contract or assurance on his behalf be personally liable in respect thereof.
123. The Government may sue or be sued by the name of the State of Jammu and Kashmir and may, subject to any provisions which may be made by Act of the Legislature enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to its affairs in the like cases as the State might have sued or been sued if this Constitution had not been enacted.
PART IX
THE PUBLIC SERVICE
124. Subject to the provisions of this Constitution, the Legislature may by law regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State:
Provided that it shall be competent for the Sadar--i-Riyasat or such person as he may direct, to make rules regulating the recruitment and the conditions of services of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of the Legislature under this section, and any rules so made shall effect subject to the provisions of any such Act.
125. (1) Except expressly provided by this Constitution, every person who is a member of a civil service of the State or holds any civil post
under the State hold office during the pleasure of the Sadar-i-Riyasat.
(2) Notwithstanding that a person holding a civil post under the State holds office during the pleasure of the Sadar-i-Riyasat, any contract under which a person, not being a member of a civil service of the State, is appointed to hold such a post man, if the Sadar-i-Riyasat deems it necessary in order to secure the services of a person having special qualifications, provide for tile payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any miscon-duct on his part required to vacate that post.
126. (1) No person who is a member of a civil service of tile State or holds a civil post under the State shall be distressed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of show-ing cause against the action proposed to be taken in regard to him:
Provided that this sub-section shall not apply:
(a) where a person is dismissed or removed or reduced in rank on the ground of con-duct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or
(c) where the Sadar-i-Riyasat is satisfied that in the interests of the security of the State it is not expedient to give to that person such an opportunity.
(3) If any question arises whether it is reasonably
practicable to give to any person an oppor-tunity of showing cause under sub-section.
(4) The decision thereon of the authority empo-wered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.
127. Until other Provisional is made in this behalf under the constitution, all the laws in force im-mediately before the commencement of this Consti-tution and applicable to any public service or any post which continues to exist after the commence-ment of this Constitution as service or post under the- State, shall continue in force so far as consistent with the provisions of this Constitu-tion.
THE PUBLIC SERVICE COMMISSION
128. There shall be a Public Service Commission (here-inafter referred to in this Part as "the Commi-ssion" for the State.
129. (1) The Chairman and other members of the Commission shall be appointed by the Sadar-i-Riyasat:
Provided that as nearly as may be one-half of the members of the Commission shall be persons who at the dates of their respective appointments have held office for at least ten years under the Government.
(2) A member of the Commission shall hold office of a terms of five years from the date on which he enters upon his office or until he attains the age of sixty-five years, whichever is earlier:
Provided that:
(a) a member of the Commission may, by writing under his hand addressed to the Sadar-i-Riyasat, resign his office
(b) a member of the Commission may be removed from his office in the manner hereinafter provided.
(3) A person who holds office as a member of the Commission shall on the expiration of his term of office, be ineligible for re-appointment to that office.
130. (1) Subject to the provisions of sub-section (3), the Chairman or any other member of the Commission shall only be removed from his office by order of the Sadar-i-Riyasat on the ground of misbehaviour after the High Court on reference being made to it by the Sadar-i--Riyasat, has, on inquiry held in that behalf, reported that the Chairman or such other member, as the case may be ought on any such ground to be removed.
The Sadar-i-Riyasat may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the High Court under sub-section (l) until the Sadar-i-Riyasat has passed orders on receipt of the report of the High Court on such reference.
(3) Notwithstanding anything in sub-section (1) the Sadar-i-Riyasat may by order remove from office the Chairman or any other mem-ber of the Commission if the Chairman on. such other member, as the case may be - 
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment out side the duties of his office; or
(c) is, in the opinion of the Sadar-i-Riyasat, unfit to continue in office by reason of infirmity of mind or body.
(4) If the Chairman or any other member of the Commission is or becomes in anyway concern-ed or interested in any contract or agreement made by or on behalf of the Government of the State, the Government of India or the Government of any other State in India or participates in anyway in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty misbehavi-our.
131. The Sadar-i-Riyasat may be regulations:
(a) determine the number of members of the Commission and their conditions of service; and
(b) make provision with respect to the num-ber of members of the staff of the Commission and - their conditions of service;
Provided that the conditions of service of a member of the Commission shall not be varied to his disadvantage after his ap-pointment.
132. On ceasing to hold office the Chairman and the members of the Commission shall be ineligible for further office under the Government of the State, but a member other than the Chairman shall be eligible for appointment as a Chairman of the Commission.
Explanation: - For the purposes of this sec-tion; the office of Minister or Deputy Minister shall not be deemed to be an office under the Government of the state.
133. (1) It shall be the duty of the Commissions to conduct examinations for appointment to the services of the State.
(2) The Commission shall be consulted - 
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidate for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government including memorials or petitions relating to such matters;
and it shall be the duty of the Commission to advise on any matter so referred to them or on any other matter which the Sadar-i--Riyasat may refer to them:
Provided that the Sadar-i-Riyasat may make regulations specifying the matters in which either generally, or in any particular class of cases or in any particular circumstances, it shall not be necessary for the Commission to be consulted.
(3) Nothing in sub-section (2) shall require the Commission to be consulted as respects the manner in which a provision may be made by the State for the reservation of appointment or posts in favour of any class of permanent residents which in the opinion of the Govern-ment is not adequately represented in the services under the State.
(4) All regulations made under the proviso to sub-section (2) by the Sadar-i-Riyasat shall be laid for not less than fourteen days before each House of the Legislature as soon as possible after they made, and shall be subject to such modifications, whether by way or repeal or amendment, as the Legislative Assembly may make during the session in which they are so laid.
134. If the office of the Chairman of the Commission becomes vacant or if the Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall until some person appointed under sub-section (1) of section 129 to the vacant office has entered on the duties thereof or, as the case may be until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the Sadar-i-Riyasat may appoint for the purpose.
135. An Act made by the Legislature may provide for the exercise of additional functions by the Commission as respects the services of the State and also as respects the services of any local authority or other body corporate constituted by law or of any public institution.
136. The expenses of the Commission, including any salaries, allowances and pensions payable to or in respect of the members or the staff of the Com-mission, shall be charged on the Consolidated Fund of the State.
137. It shall be the duty of the Commission to present annually to the Sadar-i-Riyasat a report as to the work done by the Commission and the Sadar-I--Riyasat, on receipt of such report, shall cause a copy thereof together with a memorandum explai-ning, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the Legislature.
PART X
ELECTIONS
138. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, the elections held under Part VI shall, be vested in an Election Commissio-ner to be appointed by the Sadar-i-Riyasat.
(2) The Sadar-i-Riyasat, may, for such period as he may deem necessary appoint one or more Deputy Election Commissioners to assist the Election Commissioner in the per-formance of the functions conferred by sub-section (1).
(3) subject to the provisions of any law made by the Legislature, the Conditions of service of the Election Commissioner and the Deputy Election Commissioner shall be such as the Sadar-i-Riyasat may by order specify.
(4) The Sadar-i-Riyasat may make acts viable to the Election Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commissioner by sub-section (1).
139. There shall be one general electoral roll for every territorial constituency for election to either House of the Legislature and no person shall be ineligible for inclusion in any such roll or claim to be inclu-ded in any special electoral roll for any such consti-tuency on grounds only of religion, race, caste, sex or any of them.
140. The elections to the Legislative Assembly shall be on the basis of adult suffrage; that is to say, every person who is a permanent resident of the State and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by the Legislature and is not otherwise disqualified under this Constitution or any law made by the Legislature on the ground of non-residence, unsoundness of mind, crime or corruptor illegal practice, shall be registered as a voter at any such election.
Subject to the provisions of this Constitution, the Legislature may from time to time by law make provision with respect to all matters relating to, or in connection with elections to either House of the Legislature, including the preparation of elec-toral rolls, the delimitation of constituencies, appointment of election tribunals and all other matters necessary for securing the due constitution of the two Houses.
142. Notwithstanding anything in this Constitution:
(a) the validity of any law relating to the delimita-tion of territorial constituencies for the pur-pose of electing members of the Legislative Assembly or the allotment of seats to such constituencies, made or purporting to be made under section 141, shall not be called in ques-tion in any court;
(b) no election to either House of the Legislature shall be called in question except by an elec-tion petition present to such authority and in such manner as may be provided for by or under any law made by the Legislature.
PART XI
MISCELLANEOUS PROVISIONS
143. (1) The Sadar-i-Riyasat shall not be answerable to any court for the exercise of performance of the powers and duties of his office or for any act done or purposing to be done by him in the exercise and performance of those -powers and duties.
Provided that nothing in this subjection-sec-tion shall be construed as restricting the right of any person to bring appropriate proceed-ings against the Government.
(2) No criminal proceedings whatsoever shall be instituted or continued against the Sadar-I--Riyasat in any court during his term of office. No process for the arrest or imprisonment of the Sadar-i-Riyasat shall issue from any court during his term of office.
No civil proceedings in which relief is claimed against the Sadar-i-Riyasat shall be instituted during his term of office in any court in res-pect of any act done or purporting to be done by him in his personal capacity, whether be-fore or after he entered upon his office as Sadar-i-Riyasat, until the expiration of two months next after notice in writing has been delivered to the Sadar-i-Riyasat or left at his office stating the nature of the proceedings the cause of action therefor, the name, descri-ption and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.
144. The flag of the State shall be rectangular in shape and red in colour with three equidistant white vertical stripes of equal with next to the staff and a white plough in the middle with the handle facing the stripes.
The ratio of the length of the flag to its width shall be 3:2.
145. The official language of the State shall be Urdu, but the English language shall, unless the Legisla-ture by law otherwise provides continue to be used for all the official purpose of the State for which it was being used immediately before the com-mencement of this Constitution.
. The Sadar-i-Riyasat shall, as soon as may be, after the commencement of the Constitution establish an Academy of Arts, Culture and Language, where opportunities will be afforded for the development of Art and Culture of the State and for the development of Hindi, Urdu and other regional languages of the State specified in the Sixth Schedule.
PART XII
AMENDMENTS OF THE CONSTITUTION
147. An amendment of this constitution may be initia-ted only by the introduction of a Bill for the pur-pose in the Legislative Assembly and when the Bill is passed in each House by a majority of not less than two-thirds of the total membership of at the House, it shall be presented to the Sadar-i-Riyasat for his assent and, upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that a Bill providing for the abolition of the Legislative Council may be intro-duced in the Legislative Assembly and passed by it majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting:
Provided further that no Bill or amendment seeking to make any change in:
(a) this section;
(b) the provisions of the sections 3 and 5; or
(c) the provisions of the constitution of India as applicable in relation to the State;