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1990 DIGILAW 287 (ALL)

Sohrat Ali v. Union of India

1990-03-16

A.P.MISRA, N.N.MITHAL

body1990
JUDGMENT N. N. Mithal, J. 1. This is an application for recall of an order dated 13-9-85 finally disposing of the writ petition filed by the opposite parties. THIS application was moved on 20-11-85. 2. A preliminary objection has been raised by the respondent as to the maintainability of the application in view of the provisions of Administrative Tribunal Act, 1985. Draped in comparative brevity the relevant facts are that by means of Writ Petition (No. 2271 of 78) the petitioners had challenged the order of the General Manager, Railways dated 3-4-78 cancelling the panel for promotion to class-3 posts. The writ petition was allowed on 13-5-85, but it is urged that in the cause list of that date the name of Sri Lalji Sinha, learned counsel for the applicant was not shown. The matter was heard ex-parte and the writ petition was disposed of on 13-9-85. Subsequently the present application was moved on 20-11-85. It may be recalled that in the meantime Administrative Tribunal Act, 1985 (hereinafter 'the Act') was enforced from 1-11-1985. 3. The objection of the respondent is that on the enforcement of the Act the jurisdiction hitherto exercised by the Court in matters pertaining to All India Services would cease and became vested exclusively in the Tribunal constituted under the Act. From that day onwards the High Court cannot exercise any jurisdiction over any matter regarding recruitment etc. to All India Service. So far as the pending matters are concerned Section 29 of the Act provides that these shall stand transferred to the Tribunal immediately on the establishment of the Tribunal if the cause of action on which it is based relates to that matter cognizable by the Tribunal. Only appeals pending before the High Court and the Supreme Court have been saved. What is, therefore, urged is that as soon as the Act comes into being the High Court loses all jurisdiction in respect of All India Service regarding service matters of all kinds and these powers simultaneously got vested in the Tribunal in view of Section 15 of the Act. 4. There appears to be substantial merit in what the objector contends. 4. There appears to be substantial merit in what the objector contends. Language of Section 14 (1) is to the widest amplitude as would be apparent from the following expression used therein: "All jurisdictions, powers and authority exercisable by......all courts" The provision, therefore, expressly takes away the jurisdiction, powers as well as authority of the Courts even those which were exercisable by it. The word 'exercisable' widens the scope of the section. In our opinion, therefore, the Court is not left with the jurisdiction or power to deal with any matter even directly or incidentally. 5. The application for recall of the order dated 13-9-85 is very intimately connected with the revival of the rights which directly concern the matters relating to service in the Union. In view of wide language employed in Sec. 14 (1) even the indirect attempt to invoke the jurisdiction of the Court in such matters would be futile. 6. Not only this the words 'in relation to' in this section further extends its scope. We are, therefore, of the opinion that on the enforcement of the Act the High Court becomes divested to all jurisdiction, power or authority even to indirectly deal with the matter which concerns the recruitment or only the matter relating thereto. Sri Sinha, appearing for the Union of India, however, submitted that the application itself may be transferred for disposal before the Tribunal. This request, however, cannot be accepted for two reasons; firstly, as we have stated above, this Court retains no power after 1-11-85 to entertain any matter even obliquely connected with service matters under the Union, secondly, the power of transfer can only be exercised under Sec. 29 of the Act. Section 29, however, only applies to a suit or other proceedings which was pending before any court immediately before the establishment of the Tribunal. The question arises whether any suit or proceeding was pending in the High Court on that date ? Even if we regard the application for recall of the order as a proceeding the question still remains whether it was pending on that date or not. We have already pointed out earlier that this application was moved only on 20-11-85 while the Tribunal was established on 1-11-85. Even if we regard the application for recall of the order as a proceeding the question still remains whether it was pending on that date or not. We have already pointed out earlier that this application was moved only on 20-11-85 while the Tribunal was established on 1-11-85. Thus on the date of enforcement of Act and the establishment of the Tribunal neither the writ petition was pending (having already been disposed of on 13-9-85) nor the application for recall was pending. There was thus nothing which can be transferred to the Tribunal. Had this application been moved prior to 1-11-85 there could have been some merit in this submission but as things are we are afraid, we cannot pass any order for transferring this application to the Tribunal under Sec. 29 of the Act. During the argument it was suggested that the application can be made before the Tribunal. We, however, express no opinion on this question because this question cannot be raised before us. 7. In S. P. Sampath Kumar v. Union of India 1987 UPLBEC 84 the Supreme Court considered the purpose and effect of the Administrative Tribunals Act, 1985. While upholding the validity of the said Act the Supreme Court observed that the Tribunal has been contemplated as a substitute and not as supplemental to the High Court in the Scheme of Administration of justice. It is, therefore, of paramount importance that the substitute institution, the Tribunal, must be a worthy successor to the High Court in all respects. 8. A Full Bench of this Court in Udai Bhan Singh Chauhan v. Union of India, 1987 AWC 369 also had occasion to consider a matter similar to the case in hand. In that case certain petitions concerning service matters were filed in the High Court after 1st November, 1985 and it was held that they must be dismissed with liberty to the petitioner to approach the Tribunal. It was also held that upon the constitution of Administrative Tribunal, the jurisdiction, power and authority of this Court under Articles 226/227 stand excluded. In that case certain petitions concerning service matters were filed in the High Court after 1st November, 1985 and it was held that they must be dismissed with liberty to the petitioner to approach the Tribunal. It was also held that upon the constitution of Administrative Tribunal, the jurisdiction, power and authority of this Court under Articles 226/227 stand excluded. By operation of Sec. 29 (1) of the Act every suit or other proceedings including the writ proceeding except appeals pending in this Court shall stand transferred to the Tribunal A cumulative effect of the two decisions is that neither the pending cases can be considered or adjudicated upon by this Court nor it can entertain fresh petitions after the enforcement of the Act. A case very similar to the one in hand is Shanti Swaroop v The Additional Bench, Central Administrative Tribunal at Allahabad, 1986 AWC 1099. On construction of Sections 14 and 29 it was held that the Tribunal acquires jurisdiction even in respect of those cases which were filed before the Civil Judge earlier and had been dismissed prior to the date of enforcement of the Act In such cases even the jurisdiction of the civil court to entertain an application for restoration of appeal was not maintainable. The same view was expressed by a learned single Judge of this Court in Ramesh Chandra Suri v. 7th Additional District Judge, Gorakhpur, 1990 AWC 301 . Consistent view, therefore, appears to be that so far as cases that were pending on the date of commencement of the Act they shall stand transferred except appeals pending in the High Court and subsequent to that date no suit or proceeding shall be entertained by the High Court. Even those matters which had been pending before the civil court or the High Court and on account of some reasons they ceased to be pending on the said date may be, due to dismissal or other like cause, no application to restore the same or to bring them back to life would be entertainable. All such matters ought to be agitated before the Tribunal. Thus for the reasons given above, we are of the opinion that the application for setting aside the order of the Court in this writ petition is not maintainable as this Court has no jurisdiction in this behalf. 9. All such matters ought to be agitated before the Tribunal. Thus for the reasons given above, we are of the opinion that the application for setting aside the order of the Court in this writ petition is not maintainable as this Court has no jurisdiction in this behalf. 9. We accordingly dismiss the application but we make it clear that our decision is not on merits of the grounds taken in the application for recall of the order dated 13-9-85 and is confined only to the question of jurisdiction of this Court.