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2003 DIGILAW 92 (HP)

RAM SINGH VERMA v. UNION OF INDIA

2003-05-01

R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J.: This petitioner, by virtue of the present petition under Art. 226/227, Constitution of India, has approached this Court seeking the following writ, order or direction; (a) The notification dated 7.10.1994 (Annexure P-6) rejecting the representation of the petitioner be quashed and set aside; (b) The seniority list at Annexure P3 may be quashed an set aside and the respondents may be directed to draw a fresh seniority list by assigning seniority to the petitioner over and above respondents No.4 and 5 Sub Inspector; (c) The seniority and promotion from the rank of Head Constables to the next higher rank/post be given effect from the due dates in accordance with the Recruitment and Promotion Rules notified vide notification dated 15.6.1998 (Annexure P-2). (d) The petitioner may be given step up in pay so as to bring his pay at par with that of respondents No.4 and 5; and (e) The petitioner be granted all such consequential benefits to which he may be found entitled to. 2. Shorn of details, the facts of the case maybe thus stated. The petitioner was initially appointed as a Lower Division Clerk on 3.3.1966 in the then 31st (Himachal Pradesh and Punjab) SSB Battalion. He was converted to the rank of Head Constable with effect from 18.6.1969 and later promoted as Assistant Sub Inspector with effect from 4.11.1970 and thereafter as Sub Inspector with effete from 15.12.1976. 3. In exercise of the powers conferred by sub-section (I) of section 18 of the Central reserve police Force Act, 1949, the Central Government vide notification dated 15.6.1988 (Annexure P2) framed the rules known as Combatised Clerical Cadre Rules, 1988 for regulating the method of recruitment to the clerical cadre in the SSB Group Centres. Prior to formation of these rules, the recruitment and promotions to Head Constables - Clerks, Assistant Sub Inspectors - Upper Division Clerks and Sub Inspectors - Head Clerks were being made on seniority basis and at the Divisional levels, subject to the promulgation of the recruitment and promotion rules as may be promulgated. 4. Under the recruitment and promotion rules (Annexure P2) the seniority list in relation to Head Constables and Assistant Sub Inspectors is to be maintained at Directorate level for promotion to the rank of Assistant Sub Inspectors and Sub Inspectors, respectively. 4. Under the recruitment and promotion rules (Annexure P2) the seniority list in relation to Head Constables and Assistant Sub Inspectors is to be maintained at Directorate level for promotion to the rank of Assistant Sub Inspectors and Sub Inspectors, respectively. Therefore, the seniority of Head Constables and Assistant Sub Inspector, earlier being maintained at the Divisional level, was required to be refixed and redetermined at the Directorate level and further promotion9s) were required to be effected accordingly keeping in view the seniority fixed/determined at the Directorate level. 5. Due to the seniority and promotions made at the Divisional level, persons junior to the petitioner got promoted to the next rank earlier then the petitioner and as such came to be placed senior to him in the seniority list prepared at the Directorate level. The representation made by the petitioner qua his placement I the seniority below respondents 4 and 5, who were juniors to him, was rejected vide memo dated 7.10.1994 (Annexure P6). 6. Assailing the rejection of his representation vide Annexure P6 and the correctness of the seniority list Annexure p3, the petitioner has averred that respondents No.4and 5 arbitrarily been placed senior to the petitioner in the rank of Sub Inspectors. The petitioner was senior to them as lower Division Clerk. After the promotion of the recruitment and promotion rules, all promotions made earlier were required to be redetermined after preparation of the seniority of Had Constables and Assistant Sub Inspectors at the Directorate level. 7. The case of the respondents 1 to 3 is that seniority in the centralised cadre after the promulgation of the recruitment and promotion rules was drawn on the basis o the continuous officiation at the particular individuals in the ranks held by them. Respondents No.4 and 5 holding the ranks of Sub Inspectors much prior to the petition and as such were rightly placed seniors to him. 8. At the time of hearing of the writ petition, a preliminary objection as to territorial jurisdiction of this court in the matter was raised on behalf of respondents No. 1 to 3. 9. In so for as the territorial jurisdiction is concerned, Art. 226, Constitution of India provides as to when a High Court can entertain a petition. 8. At the time of hearing of the writ petition, a preliminary objection as to territorial jurisdiction of this court in the matter was raised on behalf of respondents No. 1 to 3. 9. In so for as the territorial jurisdiction is concerned, Art. 226, Constitution of India provides as to when a High Court can entertain a petition. Clause (1) of the said Article enacts that every High Court has power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority within those territories directions, orders or writs for the enforcement of Fundamental Rights or for any other purpose. Clause (2) of Art. 226, further provides: "The power conferred by clause (1) to issue durations, orders or Writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat off such Government or authority or the residence of such person is not within those territories." 10. Dealing with the scope and ambit of Clauses (1) and (2) of Art. 226. Constitution of India, a Division Bench of this Court in Tibetan Administrations Welfare Society v. Union of India & others (Latest HLJ. 2001 (1) H.P. 104) has held:- "Conjoint reading of clauses (1) and (2) makes the legal position clear. And it is this. Clause (1) lays down general principle as to territorial jurisdiction of High Courts. It states that every High Court can exercise power through the territories in which it exercises jurisdiction; Further, the person or authority to whom it issues a writ should be within those territories. "Clause (2) is in the nature of extension or expansion to the above rule in clause (1) of Article 226. It declares that even though a person or authority is not within the territorial jurisdiction of High Court, if cause of action either wholly or in part arises within the territorial limits of that Court, the High Court can exercise jurisdiction irrespective of location of office of such person or authority." 11. In Subhash Chander v. Union of India and others, (2001 (2) Sim. L.C. 259), the petitioner therein was saving as Naik (79) in the Indian Army and was posted at Holta in District Kangra. In Subhash Chander v. Union of India and others, (2001 (2) Sim. L.C. 259), the petitioner therein was saving as Naik (79) in the Indian Army and was posted at Holta in District Kangra. On 10.8.1998 he was directed to carry Convoy protection party with salvage stores to Pathankot on the following day. On 11.8.1998 he started from Palampur at about 8 AM. While proceeding to Pathankot at about 10.30 AM he halted his truck at a place about 2 Kms. Beyond Gaggal in order to give pass to an incoming bus. He after giving the pass started proceeding towards Pathankot and while negotiating a curve, the truck fell down into Banoi Khad resulting into death of several persons and injuries to others. A case for the offences under section 279, 337,338 and 304-A, Indian Penal Code, came to be registered at Police Station, Kangra. After necessary investigation the case was put up against him in the Court of Chief Judicial Magistrate Kangra. On 13.6.1999 the competent authority, namely, Major General, General officer commanding by virtue of the powers vested in him under section 125 of the Army Act decided that the petitioner be tried by a Court Martial for the offences. Accordingly the case pending against the petitioner before the Chief Judicial Magistrate was treated as closed and forwarded to the Major General at 39, Mountain Division, C/O 56 A.P.O for the purpose of conducting Summary Court Martial. The petitioner upon trial by the Summary Court Martial was convicted and sentenced. The petitioner approached this Court under Art. 226 of the Constitution of India for quashing the entire proceedings of the Summary Court Martial including the order of his conviction and sentence. 12. In such writ petition an objection as to lack of territorial jurisdiction of the court was raised by the respondents therein. It was contended that the impugned order by the Summary Court Martial was passed in Jammu and Kashmir. The entire proceedings were also held there. Therefore, this court had no territorial jurisdiction. On behalf of the petitioner, relying on the provisions contained in Sub-clause (2) of Art. 226 of the Constitution, it was contended that a part of cause of action had arisen in the State of HP. The entire proceedings were also held there. Therefore, this court had no territorial jurisdiction. On behalf of the petitioner, relying on the provisions contained in Sub-clause (2) of Art. 226 of the Constitution, it was contended that a part of cause of action had arisen in the State of HP. inasmuch as the accident took place in Himachal Pradesh; a First information Report was lodged in this State and even a criminal case was instituted in the Court of Chief Judicial Magistrate, Kangra. Therefore, this Court had the jurisdiction in the matter. 13. Repelling the contention of the petitioner, a Division Bench of this Court held that no part of the cause of action had arisen within Himachal Pradesh and, therefore, this court had no territorial jurisdiction in the matter. It was observed:- "........The question, however, is whether in the facts and circumstances of the present case, a part of cause of action had arisen within the territorial jurisdiction of this Court? As stated above, the accident took place in the Himachal Pradesh and First information Report was also lodged in this State, a criminal case was registered, But the subsequent development cannot be overlooked that in exercise of power under section 124 and 125 of the Act, the competent Authority had exercised his option and instead of proceeding further with the criminal trial, proceedings were ordered to be treated as closed and an order was passed to hold Summary Court Martial and the place of trial was fixed in the State of Jammu and Kashmir. In view of the said order, the proceedings, which were pending before the Chief Judicial Magistrate were treated as closed. As soon as the said order was passed, in our opinion, those proceedings came to an end and hence, on the basis of such proceedings the petitioner cannot invoke the jurisdiction of this Court by contending that a part of cause of action can be said to have arisen within the State of Himachal Pradesh. As soon as the said order was passed, in our opinion, those proceedings came to an end and hence, on the basis of such proceedings the petitioner cannot invoke the jurisdiction of this Court by contending that a part of cause of action can be said to have arisen within the State of Himachal Pradesh. Since in the instant case, the cause of action either wholly nor partly can be said to have arisen within the territorial jurisdiction of this Court and the Summary court Martial proceedings from beginning to end were held and culminated in the final order of conviction and sentence exclusively in the State of Jammu and Kashmir, we have to hold that this Court has no jurisdiction in the matter and the preliminary objection raised by the learned Counsel for the respondents deserves to be upheld. Accordingly, the contention is upheld." 14. In the present case as well admittedly the seat of respondents No.1 and 2 is not located within the jurisdiction of this Court. In so far as respondent No.3 is concerned, no relief is being claimed against him inasmuch as no action/ order of his is being assailed. No part of the cause of action has arisen to the petitioner within the territorial jurisdiction of this Court. All actions challenged in the present petition by the petitioner were taken by respondents No.1 and 2 at New Delhi. Even at the time of passing of the order as at Annexure p6 and preparation of seniority list Annexure P3 and at the time of filing of the present petition the petitioner was not serving in Himachal Pradesh. He was saving at Kohima in Nagaland. Therefore, this court has no territorial jurisdiction in the matter and the present writ petition is liable to be dismissed on this short ground alone. 15. For the foregoing reasons, without going into the merits of the case, the present writ petition is dismissed or lack of territorial jurisdiction of this court leaving the parties to bear their own costs.