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2000 DIGILAW 258 (PAT)

Indian Lac Research Institute v. Smt. Nazma Bano

2000-02-15

P.K.SINHA, S.N.JHA

body2000
Judgment S.N.Jha and P.K.Sinha JJ. 1. This letters patent appeal is directed against the judgment and order of the learned single Judge in C.W.J.C. No. 266 of 1998 (R) [reported in 2000(2) PLJR 778 ]. By the judgment under appeal a direction has been issued to the appellants to forthwith provide employment to the son of petitioner no. 1 on compassionate ground. 2. The correctness of the order has been challenged on merit of the claim as well as on the ground of lack of jurisdiction. It has been contended that in view of the provisions of the Administrative Tribunal Act, 1985 (for short the Act) this court had no jurisdiction to entertain, much less, allow the writ petition seeking recruitment under the Indian Lac Reserch Institute which is the part of the Indian Council of Agricultural Research, notified under section 14 (3) of the Act. 3. Since we are inclined to think that the jurisdiction of this court stands ousted by reason of the relevant provisions of the Act and, therefore, it is open to the writ petitioners to prefer application before the Central Administrative Tribunal under section 14 (1), we think it proper to refrain from referring to either the facts of the case or the merit of the claim of the writ petitioners. If we do so, any observation which we may unwittingly make, might affect the case of either party. We would, therefore, confine ourselves to the question of jurisdiction of this court in this order. 4. As is well known, the Administrative Tribunals Act was enacted with the object of creating a forum where matters relating to recruitment and other service matters of the Central Government employees could be adjudicated and the burden of the High Court could be reduced. Section 14 (1) of the Act confers exclusive jurisdiction upon the Central Administrative Tribunal in relation to the matters specified therein including recruitment, while section 14 (1) applies to All India Services or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, held by a civilian, sub-section (2) empowers the Central Government to apply from such date as may be specified, the provision of sub-section (3) to local or other authorities or society owned by or under the control of the Government of India. Sub-section (3) of the Act lays down that save as otherwise expressly provided in the Act lays down that save as otherwise expressly provided in the Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provision of this sub-section apply to any local or other authority or corporation, all the jurisdiction, powers and authority exercisable immediately before that date by all courts, except the Supreme Court, in relation to the matters specified therein including recruitment. As if the provisions of Section 14 (3) were not sufficient to oust the jurisdiction of the High Court, further provision has been made in section 28 of the Act, and it would be useful to quote the same as under : "Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution.On and from the date from which any jurisdiction, power and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matter concerning recruitment to any service or post or service matters concerning members of any service of persons appointed to any service or post no court except (a) the Supreme Court; or (b) any Industrial Tribunal Act, 1947 (14 of 1947), or any other corresponding law for the time being in force shall have), or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment of matters concerning such requirement or such service matters." 5. It is not in dispute that by virtue of the notification dated 20.4.1987, copy whereof is marked as Annexure-2 to the memo of appeal, the Indian Council of Agricultural Research was included in the schedule for the purpose contemplated under section 14 (3) of the Act. It is further not in dispute that compassionate appointment falls within the ambit of the term recruitment under section 14 (3). That being so, it would follow that the High Court has no jurisdiction to entertain any writ petition seeking the relief of compassionate appointment under the Indian Lac Research Institute which admittedly is part of the Indian Council of Agricultural Research. 6. Counsel for the writ petitioners, however, submitted that this point was not taken by the appellants before the learned Single Judge and, therefore, should not be allowed to be raised in "letters patent appeal". The submission, if we may say so, is a cry of desperation. 6. Counsel for the writ petitioners, however, submitted that this point was not taken by the appellants before the learned Single Judge and, therefore, should not be allowed to be raised in "letters patent appeal". The submission, if we may say so, is a cry of desperation. Even if the plea was not taken before the learned Single Judge, it would not amount to conferring jurisdiction upon this court. It is well known that the consent cannot confer jurisdiction and there is no estoppel against statute. 7. Counsel for the appellants pointed out that though in the counter-affidavit to writ petition giving rise to this appeal this point was not taken, it would appear from the order of this court passed in the previous writ petition, C.W.J.C. No. 3505 of 1996 (R), that such a plea had been taken by the respondents i.e. appellants herein. This court, however, did not go into that question and, instead, addressed itself on the merit of the claim and allowed the writ petition. 8. Counsel for the writ petitioners further submitted that in the case of L. Chandra Kumar V/s. Union of India, (1997) 3 Supreme Court Cases 261 : 1997(1) PLJR (SC)84, the jurisdiction of the High Court under Articles 226/227 of the Constitution of India has been restored and, therefore, the question of jurisdiction is no more available to the appellants. Counsel relied on the observations contained in paragraph 99 of the judgment. Counsel for the appellants also relied on certain observations contained in the same paragraph i.e. paragraph 99 of the judgment. Since counsel of both the parties placed reliance on same very judgment and, in fact same paragraph, it would be appropriate to quote the relevant part of the judgment as under : "The jurisdiction conferred upon the High Court under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharghing the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the Constitutional validity of statutory provisions and rules. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharghing the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the Constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations by overlooking the jurisdiction of the Tribunal concerned." From the judgment it would appear that one of the points at issue was whether the power of judicial review conferred on the High Courts under Articles 226/227 of the Constitutional could be ousted by enacting law under section 323 A (2) (d) or section 323 B (3) (d) of the Constitution. The Supreme Court answered the question in negative and held that all decisions of the Tribunal would be subject to the scrutiny by a Division Bench of the High Court. While saying so, as would appear from the aforequoted passage, the court clarified that the Tribunals will continue to act like courts of first instance in respect of the areas of law for which they have constituted and therefore, it would not be open to the litigants to directly approach the High Court. In order words, the person aggrieved is required to approach the Tribunal i.e. Central Administrative Tribunal for redressal of his grievances, at the first instance. He may thereafter seek judicial review of such decision of the Tribunal before the High Court under Articles 226/227 of the Constitution. 9. In the above premises, we do not find any substance in the submission of the counsel for the writ petitioners that the decision in L. Chandra Kumars case has restored the jurisdiction of the High Court in the sense that the High Court can entertain the writ petition straightway even at the first instance. There is nothing in the decision to dilute the provisions of section 28 of the Act. There is nothing in the decision to dilute the provisions of section 28 of the Act. Therefore, we do not think that this court had jurisdiction to entertain the writ petition. The order of the learned Single Judge is fit to be set-aside on that ground alone. 10. Before we part with this order, considering that decision of the Tribunal rendered on the application which the writ petitioners may file before it, will be amenable to judicial review before this court, it must be clarified that in the event such application is made, the fact that the claim of the writ petitioners was allowed by the court will not unnecessarily influence the Tribunal and it will arrive at its own independent conclusion on the merit of the claim in accordance with law. 11. In the result, the order of the learned Single Judge dated 14.5.1999 is set-aside and this appeal is allowed.