Shrikishan Yadav v. Commandant, Central Reserve Police Force
2003-02-04
A.K.SHRIVASTAVA, DIPAK MISRA
body2003
DigiLaw.ai
ORDER Misra, J. -- 1. Defensibility and sustainability of the order dated 11.12.2001 passed by the learned Single Judge in Writ Petition No. 5870/01 is called in question in this appeal preferred under Clause 10 of the Letters Patent. 2. The appellant (hereinafter referred to as 'the petitioner'), invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution, instituted the aforesaid writ petition for issue of an appropriate writ to the respondents herein for conferral of benefit of compassionate appointment on him. The facts which are essential for adjudicating the controversy are that the father of the petitioner lute Bhurelal Yadav, who was a Sub-Inspector in Central Reserve Police Force (for brevity 'the CRPF'), expired on 16.9.1999 in harness in the State of Uttar Pradesh. The family being in distress, the mother of the petitioner preferred an application before the Deputy Inspector General, Police CRPF, Sundernagar, Jamshedpur in the State of Bihar to grant appointment on compassionate ground to her son. The application was rejected by order dated 20.3.2001, Annexure P-12 to the writ petition, by the Commandant working in the office of the Director General of CRPF on the ground that on medical examination, the petitioner was found suffering from colour blindness as well as high blood pressure and hence, was not eligible to be appointed. It is relevant to state that the said intimation was communicated to the mother of the petitioner. 3. The aforesaid order was sought to be assailed in the writ petition and a prayer was made for issue of writ of mandamus to appoint the petitioner to the post of Assistant Sub-Inspector. We may at this juncture state that when a query was made in regard to the relief sought, Mr. Tamrakar, learned counsel for the petitioner submitted that though there is no prayer for quashment of the order contained in Annexure P-12, this Court may mould the relief in exercise of its equitable jurisdiction. And we accede to the same. 4. It is relevant to state that the learned Single Judge dismissed the writ petition in limine on the the ground that this Court has no territorial jurisdiction as all the respondents have their offices outsides the geographical area of the State and no cause of action either in whole or in part has arisen within the territorial jurisdiction of this Court.
As the matter required a different type of deliberation and the issue was complex, we sought the assistance of Mr. S.K. Yadav, learned counsel who immediately agreed to render us the assistance and accordingly he was appointed as the friend of the Court. 5. Assailing the order impugned, it is submitted by Mr. S.K. Yadav being assisted by Mr. Tamarakar, learned counsel for the appellant that the learned Single Judge has not appreciated the peculiar facts of this case and the decisions which have been placed reliance upon for the purpose of providing jurisdiction are quite different and in fact, distinguishable. It is urged by them that the Director General, who is the Director of CRPF has been defined under Rule 2(dd) of the CRPF, Rules, 1955 framed under the CRPF Act, 1949. From the definition of Rule 4, 4-A and 5 it. would be grafically clear that the authority is the highest one at the all India level and exercises equivalent power as the Chief of Army Staff. As per the provision of Army Act, 1950 exercise of power is with the regular army. It is arged by them that CRPF is not within the military force though this is within the expression of armed forces of the Union and hence, analogy has to be drawn between the Chief of Army Staff and Director General of CRPF, as far as the concept of institution is concerned. To bolster this facet of submission, the learned counsel for the appellant placed reliance on the decisions rendered in the cases of Akhilesh Prasad v. Union Territory of Mizoram 1981(2) SCC 150 and Dinesh Chandra Gahtori v. Chief of Army Staff 2001(9) SCC 525 . 5-A. The second limb of. submission of the learned counsel for the appellant is that the decisions rendered in the cases of State of Rajasthan v. M/s Swaika Properties AIR 1985 SC 1289 , Aligarh Muslim University and another v. Vinay Engineering Enterprises (P) Ltd. and another 1994(4) SCC 710 , Oil & Natural Gas Commission v. Utpal Kumar Basu 1994(4) SCC 711 , South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. 1996(3) SCC 443 , World Tanker Carrier Corpn. v. SNP Shipping Services Pvt. Ltd. AIR 1998 SC 2330 , H. V. Jayaram v. Industrial Credit & Investment Corpn.
Ltd. v. Nav Bharat Enterprises Pvt. Ltd. 1996(3) SCC 443 , World Tanker Carrier Corpn. v. SNP Shipping Services Pvt. Ltd. AIR 1998 SC 2330 , H. V. Jayaram v. Industrial Credit & Investment Corpn. of India Ltd. 2000(2) SCC 202 , Navin Chandra N. Majilhia v. State of Maharashtra 2000(7) SCC 640 , Union of India v. Adani Exports Ltd. AIR 2002 SC 126 and Rajasthan High Court Advocates Association v. Union of India AIR 2001 SC 416 , are inapplicable inasmuch as they relate to jurisdictional issue pertaining to contractual matters cause of action relatable to a service holder while in service or when out of service or right on land in land acquisition proceedings. It is urged by them that the learned Single Judge has placed reliance on the decision rendered in the case of Ram Narayan v. Chief of Army Staff and two others rendered in W.P. No. 3329/2001, wherein most of the decisions have been referred to but the factual matrix in the case at hand is quite distinguishable. It is pertinent to state that the decision rendered in the case of Ram Narayan (supra) has been set aside in LPA No. 28/2002, (since reported in 2002(2) JLJ 86 = 2002(2) MPLJ 623 ) on the score that Dinesh Chandra Gahtori (supra) holds the field. 6. Mrs. Nair, learned Senior Counsel assisted by Mr. Anoop Nair has urged with vehmence that no cause of action has arisen within the State of Madhya Pradesh, therefore, the order passed by the authority at Delhi cannot be the subject matter of assail before this Court. It is contended by her that if the decisions pronounced by the Apex Court are understood in proper perspective, the writ petition has rightly been dismissed in limine as this Court cannot invoke its jurisdiction under Article 226(2) of the Constitution, inasmuch as not a singular facet of cause of action had arisen within the territorial limits of this Court. As far as the post of Director General is concerned Mrs. Nair, learned Senior Counsel has submitted that it is not disputed that Director General is the Head of the CRPF; but the analogy with the chief of Army Staff may not be possible to be drawn. 7. To appreciate the rival submissions raised at the Bar, we shall refer to the decisions which have been cited before us.
Nair, learned Senior Counsel has submitted that it is not disputed that Director General is the Head of the CRPF; but the analogy with the chief of Army Staff may not be possible to be drawn. 7. To appreciate the rival submissions raised at the Bar, we shall refer to the decisions which have been cited before us. In the case of M/s Swaika Properties (supra) the two-judge Bench of the Apex Court in paragraphs 7 and 8 came to hold that the cause of action, culmination in the acquisition of land under section 52 of the Rajasthan Urban Improvement Act, 1959 arose in the State of Rajasthan, within the territorial jurisdiction of Rajasthan High Court. Their Lordships further held that answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to the cause of action. In that backdrop, their Lordships held that the cause of action had wholly arisen within the jurisdiction of Rajasthan High Court and nothing in relation to cause of action arose in the jurisdictional sphere of Calcutta High Court. 8. In the case of Oil and Natural Gas Commission (supra), their Lordships adverted to the factum of cause of action and expressed the view that the High Court of Calcutta had no jurisdiction. It is worthwhile to state here that the ONGC, a Government of India undertaking had advertised in the Newspaper calling for tenders for setting up of a Kerosene Recovery Processing Unit at the Hazira Complex in Gujarat. The respondent therein approached the Calcutta High Court on the bedrock that office of the Company is situated at Calcutta within the jurisdiction of Calcutta High Court. In the said case, as has been indicated earlier, the work was required to be done in the State of Gujarat. In that backdrop their Lordships held that no cause of action accrued within the territorial jurisdiction of Calcutta High Court. 9. In the case of Sourt East Shipping Co. Ltd. (supra) the exercise of jurisdiction by Delhi High Court was not given the stamp of approval on the following reasonings : "3. It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a Court of law.
9. In the case of Sourt East Shipping Co. Ltd. (supra) the exercise of jurisdiction by Delhi High Court was not given the stamp of approval on the following reasonings : "3. It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a Court of law. The cause of action means, therefore, every fact, which it traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an action no cause of action would possibly accrue or would arise. In view of the admitted position that contract was executed in Bombay i.e. within the jurisdiction of High Court of Bombay, performance of the contract was also to be done within the jurisdiction of the Bombay High Court; merely because bank guarantee was executed at Delhi and transmitted for performance to Bombay, it does not constitute a cause of action to give rise to the respondent to lay the suit on the original side of the Delhi High Court. The contention that the Division Bench was right in its finding and that since the bank guarantee was executed and liability was enforced from the bank at Delhi, the Court got jurisdiction, cannot be sustained." 10. In the case of World Tanker Carrier Corpn. (supra) while dealing with the concept of admiralty jurisdiction of Bombay High Court, the Apex Court referred to various aspects of cause of action and eventually came to hold that none of the claimants in respect of whose claims were advanced were not carrying on business within jurisdiction of said High Court. Hence, Bombay High Court had no jurisdiction. We may state here that the said decision was rendered in a different context altogether. We have referred to the said decision as Mrs. Nair has pressed the same into service. 11. Mrs. Nair has also placed reliance on the decision rendered in the case H. V. Jayaram (supra).
Hence, Bombay High Court had no jurisdiction. We may state here that the said decision was rendered in a different context altogether. We have referred to the said decision as Mrs. Nair has pressed the same into service. 11. Mrs. Nair has also placed reliance on the decision rendered in the case H. V. Jayaram (supra). In the said case, the Apex Court held that complaint for offence under section 113(2) of the Companies Act, 1956 can be filed only were a registered office of the Company is situated, as the cause of action would mise there and not where the complainant is residing. Mrs. Nair has also propounded that if no cause of action arises, the High Court should not interfere to deal with the order impugned before it. 12. In the recent decision in the case of Adani Exports Ltd. (supra) the Apex Court has held that existence of registered office of a Company within the territorial jurisdiction of Court does not ipso facto give rise to a cause of action to that Court. In this context, we think it apposite to reproduce paragraph 17 of the aforesaid judgment, it reads as under: "Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. If we apply this principle then we see that none of the facts pleaded in paragraph 16 of the petition, in our opinion, fall into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which would confer territorial jurisdiction on the Courts at Ahmedabad." 13. We need not load our decision with further citations. We may proceed to state here whether these decisions would be allowed to govern the present controversy or the other decision rendered in the case of Dinesh Chandra Gahtori (supra) would apply. At this juncture, it is seemly to state that the Chief of Army Staff can be sued anywhere in the country. This is one concept that cause of action cannot be allowed to corrode. We may reproduce paras 3 and 4 from the case 3.
At this juncture, it is seemly to state that the Chief of Army Staff can be sued anywhere in the country. This is one concept that cause of action cannot be allowed to corrode. We may reproduce paras 3 and 4 from the case 3. "The appellant filed a writ petition before the High Court at Allahabad to quash a communication sent to his wife which stated that the appellant had been tried by a Summary Court Martial and had been found guilty of using criminal force against his superior officer and awarded the sentence of dismissal from service. The High Court dismissed the writ petition at the admission stage by holding: "In view of the fact that the summary Court-martial proceedings were conducted in the State of Punjab and orders were also passed in Punjab by the West Command, we are of the view that this Court has got no territorial jurisdiction to entertain this writ petition." 4. The writ petition was filed in 1992. The impugned order was passed in 1999. This is a fact that the High Court should have taken into consideration. More importantly, it should have taken into consideration the fact that the Chief of Army Staff may be sued anywhere in the Country. Placing reliance only on the cause of action, as the High Court did, was not justified." (emphasis supplied.) 14. Before we proceed to the concept of cause of action, we would like to deal with the aspect whether the Director General of CRPF can be sued anywhere in the country. Chief of Army Staff has been defined under section 3(iv) of the Army Act, 1950 which reads as under: "Chief of the Army Staff" means the officer commanding the regular Army." 15. Regular Army Staff as defined under Clause 21 of the dictionary clause reads as under : . "regular Army" means officers, junior commissioned officers, warrant officers, non-commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army where called out on permanent service. 16.
16. Thus, the Chief of Army Staff has the authority over the regular army and the Apex Court has held that Chief of Army Staff can be sued anywhere in the country and placing reliance only on the cause of action is not justified. Section 8 of the CRPF Act, 1949 occurs in the Chapter which deals with the constitution of forces and the said provision stipulates Superintendence, Control and Administration of the Forces. We think it appropriate to reproduce the said section, which reads as under : "8. Superintendence, Control and Administration of the Forces -- (1) The Superintendence of, and control over, the Forces shall vest in the Central Government; and the Forces shall be administered by the Central Government in accordance with the provisions of this Act and of any rules made thereunder through such officers as the Central Government may from time to time appoint in this behalf. 2. The headquarters of the Force shall be at Neemuch or at such other place as may from time to time be specified by the Central Government. . 3. While on active duty outside its headquarters, the Forces shall be subject to the general control and direction of such authority or officer as may be prescribed or as may be specially appointed by the Central Government in this behalf." 17. Section 18 of the afpresaid Act, authorises the Central Government to frame rules and accordingly the Central Reserve Police Force Rules, 1955' has been framed. 18. Rule 2(dd) defines the term "Director General" which reads as under : "Director General" means the Director General of the Forces appointed by the Central Government through whom the superintendence of, and control over, the Forces of the Central Government shall be exercised and who shall, subject to any instructions that the Central Government may give, administer the Forces in accordance with the provisions of the Act and of these or other rules;" 19. Mr. Yadav has also drawn our attention to Rules 4, 4-A and 5 to highlight how the Power is exercised. In view of the emphasis laid clown, we think it condign to reproduce the same: "4.
Mr. Yadav has also drawn our attention to Rules 4, 4-A and 5 to highlight how the Power is exercised. In view of the emphasis laid clown, we think it condign to reproduce the same: "4. Powers of the Central Government and Certain Officers of the Force: (a) In all cases not specifically provided for in these rules, instruction issued from time to time by the Central Government or the Director General or under his directions by the Additional Director General or the Inspector General shall regulate working of the Force. 4-A. Composition of the Force -- (1) Central Reserve Police Force shall be constituted as follows: (a) Central Reserve Police Force (Regular); (b) Central Reserve Police Force (Auxiliary); (2) Officers, Subordinate Officers and other persons appointed to or enrolled into the Central Reserve Police Force (Regular) shall be liable for the service for the term mentioned in their enrolment letter of appointment or in the rules made in this behalf. (3) Officers, Subordinate Officers and other persons appointed to or enrolled into the Central Reserve Police Force (Auxiliary) shall serve as and when they are called out for service by the Director General with the consent of the Central Government or for training under the order of the Director General. 5. Composition of the Force -- A Battalion other than Signals Battalion. (1) The Force shall be constituted as fol1ows : (a) Superior Officers: Commandant Assistant Commandant (Second-in Command) Assistant Commandant One for each Battalion. (Adjutant) Quarter Master One for each Battalion Company Commander One per service (Officer) Company plus one leave and training reserve for each Battalion. (b) Rank and file for a Battalion of four companies 20. As has been stated it has been conceded to earlier by Mrs. Nair, the Director General is the head of the Forces. Chief of Army Staff is also head of the Commandant of the regular army. If the provisions in the enactment and the rule framed therein are appreciated in proper perspective and studied with deep scrutiny it becomes luminous that an analogy can be drawn between the Director General and the Chief of Army Staff that equal exercise of jurisdiction/power/authority lies over their employees/staff/ forces. 21.
If the provisions in the enactment and the rule framed therein are appreciated in proper perspective and studied with deep scrutiny it becomes luminous that an analogy can be drawn between the Director General and the Chief of Army Staff that equal exercise of jurisdiction/power/authority lies over their employees/staff/ forces. 21. In view of the aforesaid, we are of the considered opinion that law laid down in the case of Dinesh Chandra Gahtori (supra) though rendered in regard to Chief of Army Staff it shall be applicable to the Director General of CRPF, which comes within the expression of armed forces of the Union. Thus, on this foundation, we have no hesitation in holding that the writ petition before this Court is maintainable. 22. Presently, we shall proceed to deal with the issue relating to cause of action. We have referred to the catena of decisions which have been cited by Mrs. Nair, to sustain her contention that no cause of action has arisen within the State of Madhya Pradesh. We have careful1y perused the aforesaid decisions and in fact in our humble way deal with the ratio laid down therein. Most of the cases relate to contractual sphere and different type of matters, namely, acquisition of land in Rajasthan, initiation of proceedings at Gujarat, establishment of a factory and calling of tender and such other matters. We may hasten to add that the case at hand does not relate to the grievance of the service holder. We are not stating that service holder can file a case where he resides. What is the issue before us is whether refusal of compassionate appointment to the petitioner by the office of the Director General, the Head of the CRPF cannot be entertained by this Court solely on the ground that his father while working as Sub-Inspector CRPF, Rampur, Uttar Pradesh expired in that State. Mr. Yadav has submitted that in the case of Navin Chandra N. Majithia (supra) the Apex Court has referred to Article 226 in paragraph 16 and thereafter in paragraph 17 to 18 dealt with the concept of cause of action. Thereafter, their Lordships have referred to the case of ONGC (supra) and eventually in paragraph 37 and 43 have held as under: "37.
Thereafter, their Lordships have referred to the case of ONGC (supra) and eventually in paragraph 37 and 43 have held as under: "37. In view of clause (2) of Article 226 the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which "the cause of action, wholly or in part, arises and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The Fifteenth Amendment of the Constitution which introduced clause (2) is thus aimed at widening the area for reaching the writs issued by different High Courts. 43. The mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor can it be said that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any paJ1 of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case." 23. We are conscious that the aforesaid decision was rendered in the context of lodging of FIR but it is worth noting that their Lordships extensively dealt with the power of High Court under Article 226(2) of the Constitution of India. We have referred to the aforesaid decisions only to that if a legal injury is suffered by a person, he can approach the Court of law for seeking redressal of his grievance. The cause of action which consists of bundle of facts does not totally rule out the process of investigation or Inquiry from its realm or arena. In the case at hand, the petitioner is not only the resident of State of Madhya Pradesh but has sought compassionate appointment.
The cause of action which consists of bundle of facts does not totally rule out the process of investigation or Inquiry from its realm or arena. In the case at hand, the petitioner is not only the resident of State of Madhya Pradesh but has sought compassionate appointment. A case of compassionate appointment is not exactly the same as grant of relief to a person who holds a post. A service-holder may not be in a position to choose jurisdiction or clothe the Court with jurisdiction because of his residence. We may not be understood to have stated that in every case of compassionate appointment, the residence would be a governing factor for conferral of jurisdiction on the High Court. What we intend to say is that some enquiry is envisaged in the State of Madhya Pradesh. The compassionate appointment is given to save the family immediately from distress and agony so that family does not suffer from destitution. For this, the financial status of the family and genuine legal heirs of the employee dying in harness and such other ancillary facts are to be gone into. That apart, other genuineness aspects like education, etc. of the applicant have also to be looked into. In the case at hand, a bald order has been passed that petitioner has been found unfit because he suffers from colour blindness and high blood pressure. Communication has been received within the State of Madhya Pradesh where the petitioner resides. We may repeat at the cost of repetition that mere receipt of communication always may not give rise to the cause of action partly but in the case of compassionate appointment, it has to be given some weightage. This Court is not oblivious to the fact that the father of the petitioner had died in harness while serving in CRPF. CRPF is not a local body or a small institution of the State. When a query was made to Mrs. Nair whether the compassionate appointments are centrally monitored, she answered in the positive that it is centrally monitored. When it is centrally monitored or controlled, we are of the considered view that the cause of action can arise anywhere in the country as a person can be appointed in any of the States in India and does not have the right to claim a posting in a particular State. 24.
When it is centrally monitored or controlled, we are of the considered view that the cause of action can arise anywhere in the country as a person can be appointed in any of the States in India and does not have the right to claim a posting in a particular State. 24. Now, we shall proceed to deal with the merits of the case. It is submitted by Mr. Tamrakar that the authority concerned has rejected the prayer in a cryptic manner by passing an order brought on record as annexure P-12. It is urged by him that the examination should have been conducted by the medical board and the petitioner has evidence to prove that he does 'lot suffer either from colour blindness or high blood pressure. Mrs. Nair submitted that the board conducted the medical examination of the petitioner and found him unfit. She has submitted that there is a Director (medical) functioning under the Director General. 25. Considering the totality of circumstances, we command that the Director (medicals) institution headed by Director General shall examine the petitioner afresh and if he is found fit appropriate posting be done within the territorial limits. We hope and trust that the respondent No. 4 shall keep every facet and do the needful within a period of four months from the date of receipt of the order passed today. 26. Consequently, the LPA is allowed and the order passed by the learned Single Judge is set aside. However, no order as to costs.