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1995 DIGILAW 470 (KAR)

L. SHREEDEVI v. STATE OF KARNATAKA

1995-09-27

M.F.SALDANHA

body1995
M. F. SALDANHA, J. ( 1 ) HEARD the petitioners' learned advocate. A rather unusual procedure has been followed in this case insofar as the petitioners before the court are the two minor daughters of a transferred government servant. The father has been shown as guardian on behalf of the minor daughters. The contention raised is that by virtue of the general transfer that was effected in the month of may 1995, that the government servant concerned was transferred to a place by the name of tarikere as revenue inspector. He proceeded there with his family and shortly, a few weeks thereafter, he was once again served with an Order, dated 24-7-1995 seeking to effect a second transfer. The minor daughters contend that they are the persons aggrieved insofar as a result of this action, they would, in the middle of the academic year, be precluded from being able to get into any educational institution at the place to which their father is transferred and that, apart from other hardship, that they will seek to lose one academic year. It is therefore submitted that as persons who are seriously aggrieved by the action that they have the locus standi to challenge the Order in question which is why the petition has been presented on their behalf. ( 2 ) THE learned Advocate who represents the petitioners hassub mitted that it is permissible under Article 226 of the constitution for a minor to present a petition through a guardian or through a next best friend. He is right with regard to the proposition of law that it is permissible in appropriate cases for a minor to present such a petition, the classic instance being that of a large number of writs that are filed on behalf of the students who may be underaged persons but still have a legal right to agitate their grievances before the high court. The maintainability of the petition however has been found fault with by the office of this court insofar as the office has raised the preliminary objection that the subject-matter of the petition concerns the transfer of a civil servant and this being a purely service matter, that the appropriate authority for adjudicating the dispute is the administrative tribunal and by virtue of Section 15 of the administrative tribunals Act, that the jurisdiction in respect of this class of cases vests expressly and exclusively with the administrative tribunal. Issues similar to the ones raised in this petition have come up on numerous occasions before the court and both the Supreme Court and this court have consistently held that all such disputes are required to be adjudicated by the tribunal and that in this background, the High Court ought not to exercise jurisdiction. The learned government Advocate has relied on the division bench decision of this court in the case of Ganganarasaiah v. State of Karnataka and others, wherein, the aforesaid view has been confirmed. Even though that was a case relating to persons employed on daily wage basis where the contention was that the authorities are not treating them as full fledged employees and therefore the tribunal has no jurisdiction, the division bench in this case followed the decision of the Supreme Court in Union of India and others v. Deep Chand Pandey and another, wherein it was held that even in respect of a person appointed on daily wage basis, the provisions of the administrative tribunals ACT are attracted. In the light of these decisions, the objection that has been raised by the office will necessarily have to be upheld. ( 3 ) AS regards the submissions canvassed by the petitione rslearned advocate, it needs to be clarified that where there is a direct prohibition on the exercise of jurisdiction by this court, that the bar cannot be overcome or circumvented merely by framing the petition differently. Had the aggrieved party been exclusively persons other than the government servant, the argument advanced by the learned Advocate would have been perfectly valid. In the present instance, a perusal of the prayer clause will indicate that the relief asked for is in relation to the Order by which the government servant is aggrieved. Had the aggrieved party been exclusively persons other than the government servant, the argument advanced by the learned Advocate would have been perfectly valid. In the present instance, a perusal of the prayer clause will indicate that the relief asked for is in relation to the Order by which the government servant is aggrieved. The two petitioners who are his daughters are merely representing or projecting the same grievance and in other words, they are advocating the case of their father. The true complexion of the litigation therefore would be that it is a service dispute pure and simpliciter, and under these circumstances it would not be permissible to accept the view that it does not come within the framework of a service litigation. ( 4 ) MR. Albal, on behalf of the petitioners in the course of his argument has canvassed a submission that the jurisdiction exercised by the High Court in respect of service matters prior to the promulgation of the administrative tribunals ACT is the power that emanates from Article 226 of the constitution. That is an inherent power of the High Court which was invoked by aggrieved parties which power is now sought to be transferred to the administrative tribunals. The submission canvassed is that if that jurisdiction is to be abridged or transfered or taken away, that this can only be done through an amendment to Article 226 and not by promulgation of a parallel law. It is his submission that Article 226 has not been invoked because there is an elaborate procedure provided for a constitutional amendment and that therefore the power that originally vested in this High Court is still saved, it would not be possible to uphold this submission for the reason that the administrative tribunals ACT has been challenged both before the Supreme Court and before more than one of the high courts and the validity and vires of the ACT have consistently been upheld. Under these circumstances, the last submission canvassed by Mr. Albal which incidentally has not been effectively pleaded in the petition, cannot be taken cognizance of. This is not a case in which the jurisdiction of the tribunal or the validity of the ACT has been challenged on this basis and therefore, the petitioners cannot take shelter behind such submissions. Under these circumstances, the last submission canvassed by Mr. Albal which incidentally has not been effectively pleaded in the petition, cannot be taken cognizance of. This is not a case in which the jurisdiction of the tribunal or the validity of the ACT has been challenged on this basis and therefore, the petitioners cannot take shelter behind such submissions. ( 5 ) UNDER these circumstances, this court must necessarily be required to direct the petitioners if they are so aggrieved, or through a guardian, to approach the appropriate forum in relation to the dispute that is the subject-matter of the present petition. I need to add here that in the course of his arguments Mr. Albal had occasion to refer to the annexures to the petition and he advanced the submission that the second transfer Order is neither permissible nor can it be legally upheld. The authority before which the dispute is taken will go into those aspects of the matter and adjudicate thereon. As of now, since this court declines to exercise jurisdiction, the last question that arises is as to whether the court is satisfied that during the interim period the petitioner is entitled to be protected. After hearing the learned advocate, I am satisfied that the answer is in the affirmative and it is accordingly directed that if the petitioner has not so far been relieved from the post pursuant to the Order, dated 24-7-1995 that this should not be done for a period of four weeks from today to enable the prosecution of the alternate remedy. With these directions, the petition to stand disposed of. --- *** --- .