Research › Search › Judgment

Calcutta High Court · body

2004 DIGILAW 525 (CAL)

A. K. MALLICK v. UNION OF INDIA (UOI)

2004-08-05

GORACHAND DE, JAYANTA KUMAR BISWAS

body2004
JAYANTA KUMAR BISWAS, J. ( 1 ) THE petitioner in Writ Petition No. 2 of 2004 is the appellant in this appeal. He is aggrieved by the judgment and order dated April 2, 2004, whereby his writ petition was disposed of by the learned Single Judge without granting him any substantial relief. ( 2 ) THE appellant was working as superintendent in the Aandn administration. By an order dated February 6, 2001, the administration created a post, of superintendent in the engineering wing of the Zila Parishad, Port Blair. Then by order dated February 5, 2003, the administration appointed the appellant in the post. ( 3 ) WHILE the appellant was working in the Zila Parishad, the Adhyaksh thereof issued the order dated December 30, 2003; by it the Adhyaksh released him with effect from December 30, 2003; and he was directed to report to the administration for further posting. ( 4 ) FEELING aggrieved the appellant filed the writ petition, and in it an order for status quo was passed. The authority concerned took back the appellant, and he served the Zila Parishad till April 2, 2004. ( 5 ) BY the judgment and order dared April 2, 2004 the writ petition was disposed of. Immediately after the disposal of the writ petition the Zila Parishad authority released the appellant once again and he was directed to report to the administration for further posting. The admitted position is that the appellant reported to the administration, and necessary posting order was issued for giving him new posting. ( 6 ) THE respondents in the writ petition contested it by filing affidavit-in-opposition. They raised an objection that since the appellant was an employee of the administration, regarding his service matter he was not entitled to invoke the writ jurisdiction of the High Court as the Court of first instance, and his remedy, if any, was available only before the Central Administrative Tribunal. ( 7 ) THOUGH the question of lack of jurisdiction was raised by the respondents in the writ petition, while disposing of the writ petition, the learned Judge, however, did not decide it. He observed that since the writ petition was being decided on merits, there was no necessity to decide the question of jurisdiction raised by the respondents in the writ petition. He observed that since the writ petition was being decided on merits, there was no necessity to decide the question of jurisdiction raised by the respondents in the writ petition. ( 8 ) WE are of the view that the order passed in the writ petition cannot be sustained on the sole ground that the objection regarding lack of jurisdiction was not decided. In the absence of jurisdiction, the Court is no competent to decide a lis on merits. Even if the question of jurisdiction is not raised by the parties in a case, it is the duty of the Court to ascertain whether it has the jurisdiction to entertain and adjudicate it. on merits. We know that even by consent of the parties jurisdiction cannot be conferred, if there is inherent lack of jurisdiction in the Court to entertain a particular matter. Hence the question of jurisdiction being the elementary question in the matter, the learned Judge should have decided it before deciding the writ petition on merits. ( 9 ) THOUGH we have already found at the order passed in the writ petition cannot be sustained on the ground that the question of jurisdiction was not decided by the learned Judge, we find that remanding the writ petition for fresh hearing will not serve the purpose of justice. ( 10 ) AFTER disposal of the writ petition the appellant, approached the administration, and after accepting his joining report the administration issued necessary order for his posting. There is no dispute that the authority that is competent to give posting to the appellant is the administration. We also find that by the order dated February 5, 2003 the appellant was, in fact, given a posting in the Zila Parishad, and it was not a posting on deputation, as was understood by the appellant. Nothing has been shown to us for the purpose of establishing that the appellant could have a right to the post in the Zila Parishad. We make it further clear by holding that the appellant has no legal right to get a posting in the engineering wing of the Zila Parishad, Port Blair. Nothing has been shown to us for the purpose of establishing that the appellant could have a right to the post in the Zila Parishad. We make it further clear by holding that the appellant has no legal right to get a posting in the engineering wing of the Zila Parishad, Port Blair. ( 11 ) LEARNED Counsel for the appellant has contended that since the posting order was issued by the administration, the Adhyaksh of the Zila Parishad had no authority and power to release the appellant; and if the appellant was to be taken back, he could have been taken back only by issuing appropriate order by the administration. She relies on Regulation 157 of the Aandn Islands (Panchayat) Regulations, 1994. ( 12 ) WE are of the view that even if it is found that the actions taken by the Adhyaksh of the Zila Parishad are illegal, in the present proceeding the appellant is not entitled to any relief whatsoever. Because of the subsequent developments regarding his joining the administration, and the order of posting issued by the administration, the illegality, if any, caused by the order issued by the Adhyaksh of the Zila Parishad stood simply eclipsed, and the issue now raised has become an absolutely academic issue. It is known that the writ Court does not decide any academic question, and no dispute is decided by it, unless the aggrieved person can be given appropriate relief. ( 13 ) WE have already seen that the appellant did not have any legal right to the posting in the Zila Parishad, and his such posting was also not on deputation. The posting was issued by the administration, and the Zila Parishad was simply to comply with the direction given by the administration. The actions taken by the Adhyaksh of the Zila Parishad did not give rise to any protests from the administration; and rather the admitted position is that the administration accepted the position, and gave the appellant fresh posting in some other department. ( 14 ) THE position being a noted before there is absolutely no scope to direct the Zila Parishad or the administration to give the appellant posting in the Zila Parishad once again. It is also known that nobody has a right to a particular posting and the matter of posting is entirely in the domain of the administration. ( 14 ) THE position being a noted before there is absolutely no scope to direct the Zila Parishad or the administration to give the appellant posting in the Zila Parishad once again. It is also known that nobody has a right to a particular posting and the matter of posting is entirely in the domain of the administration. ( 15 ) IN view of the facts and circumstances stated before, we find that in the present appeal there is no necessity to interfere with the order passed in the writ petition. We are of the view that the appeal has become infructuous because of the subsequent steps taken by the parties in it. The actions of the appellant virtually amounted to his abandoning the cause. ( 16 ) FOR the above reasons, the appeal is hereby dismissed. There will be no order for costs in this appeal.