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2005 DIGILAW 548 (CAL)

A AND N. ADMINISTRATION v. SHRI BHAN KHARIA

2005-08-22

BHASKAR BHATTACHARYA, SANKAR PRASAD MITRA

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BHATTACHARYA, J. ( 1 ) THIS Mandamus Appeal is at the instance of th'e respondents of a writ application and is directed against the order dated july 8, 2005 passed by a learned Judge of this Court holding that the writ application filed by the respondents is maintainable before this Court by overruling the objection raised by the present appellants that the same is entertainable by the Central Administrative Tribunal in view of the administrative Tribunals Act, 1985. ( 2 ) THE respondent herein filed the writ application in question thereby praying for the following relief :- (a) A writ in the nature of Mandamus directing the respondent authorities to act in accordance with law widely notifying each and every vacancy position for the post of GTT/pgt/pet/librarian Grade-II and inviting application from eligible candidates setting aside the impugned policy decision published in the Government news paper namely The Daily Telegrams dated 15th June, 2005. (b) A writ in the nature of Certiorari directing the respondent authorities to transmit the case record before this Hon'ble Court, so that after perusing the same conscionable Justice may be rendered to your petitioners directing the respondents not to reserve existing/ future vacancies of direct recruitment quota for any unclassified category/class of persons. (c) A writ in the nature of prohibition prohibiting the respondent authorities to give any effect or further effect of the impugned policy decision taken by the respondent A and N Administration as regard filling up the post of PGT/pet/gtt/librarian Grade-ll by preparing a panel from and amongst the candidates who have served the department on contract/ad-hoc basis for minimum two years during the period 1997 to 2003 and recruiting them against direct recruitment quota vacancies and till all candidates in the panel are absorbed stopping the recruitment from amongst the new candidates. ( 3 ) THE writ petitioners are 41 in number and in Para-4 of the writ application they made the following averments :-"4. Your petitioners state that when they are waiting to apply as and when posts of PGT/gtt/pet would be advertised, all on a sudden, from a Govt. publication in the Daily Telegrams dated 15th june, 2005 they came to know that the Department of Education, A and N Islands took decision to fill up all direct quota regular existing as also future vacancies from and amongst the candidates of a particular category mentioned therein viz. publication in the Daily Telegrams dated 15th june, 2005 they came to know that the Department of Education, A and N Islands took decision to fill up all direct quota regular existing as also future vacancies from and amongst the candidates of a particular category mentioned therein viz. who have rendered minimum two years service to the Department on contract/ad-hoc basis during the period 1997 to 2003, by preparing a panel for their absorption. " ( 4 ) THEREFORE, the sum and substance of the grievance of the writ petitioners is that the illegal policy decision reflected in the advertisement appearing in a Government publication annexed as the Annexure P-2 of the writ application, affects their existing legal right to apply for the jobs in question. ( 5 ) AFTER entering appearance in the writ application, the appellants took a preliminary objection that the grievance of the writ petitioners came squarely within the purview of Section 14 (1 ) (a) read with Section 19 of the administrative Tribunals Act, 1985 and as such, it is the duty of the writ petitioners to approach the Central Administrative Tribunal for their relief. ( 6 ) THE aforesaid contention was opposed by the petitioners contending that the petitioners having challenged the policy decision of a state within the meaning of Article 12 of the Constitution of India as violative of their fundamental rights guaranteed under Constitution, it is this Court which can alone entertain the writ application. ( 7 ) THE learned Single Judge on consideration of the materials-on-record accepted the contention of the writ petitioners and held that the writ application was maintainable before this Court. ( 8 ) BEING dissatisfied, the respondents have come up with the present appeal. ( 9 ) THEREFORE, the only question that arises for determination in this appeal is whether the writ application filed before this Court is maintainable after coming into operation of the Administrative Tribunals Act, 1985. (Act ). ( 10 ) MR. Bahadur, the learned Advocate appearing on behalf of the appellants has contended that the learned Single Judge erred in law in holding that this Court has the jurisdiction to entertain the writ application by misreading the judgment of the Apex Court in the case of L. Chandra kumar. Mr. (Act ). ( 10 ) MR. Bahadur, the learned Advocate appearing on behalf of the appellants has contended that the learned Single Judge erred in law in holding that this Court has the jurisdiction to entertain the writ application by misreading the judgment of the Apex Court in the case of L. Chandra kumar. Mr. Bahadur submits that the said decision rather holds the view that it is for the respondents to approach the tribunal constituted under the act at the first instance. He, therefore, prays for setting aside the order of the learned Single Judge and dismissal of the writ application on the said ground. ( 11 ) MS. Shyamali Ganguly, the learned Advocate appearing on behalf of the respondents/writ petitioners, however, strenuously contended before us that the Administrative Tribunals Act applies only in connection with the disputes arising out of recruitment and conditions of service of persons "appointed" to public service as indicated in the Preamble of the Act. Ms. Ganguly further draws attention of this Court to the definition of "service matters" appearing in Section 3 (q) of the Act and contends that the petitioners not having yet applied for any job, the Administrative Tribunals act has no application. ( 12 ) MS. Ganguly further contends that in case of prayer for setting aside policy decision of a State, the aforesaid Act has not taken away the jurisdiction of this Court. In support of her contentions, Ms. Ganguly relies upon the following decisions of the Supreme Court:- (a) Union of India and Another v. State of Haryana and Another, reported in 2000 (10) SCC 482 ; (b) Kailash Chandra Sharma v. State of Rajasthan and Othes, reported in 2002 (6) SCC 562 ; (c) L. Chandra v. Union of India, reported in 1997 SCC (supra) (d) State of Punjab v. Raghbir Chand Sharma and Another. reported in 2002 (1) SCC 113 . reported in 2002 (1) SCC 113 . ( 13 ) IN order to appreciate the respective contentions of the learned counsel for the parties, it will be profitable to refer to the following provisions of the Act:-"3 (q) 'service matters', in relation to a person, means all matters relating to the conditions of his service in connection with the affaris of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respect- (i) remuneration (including allowances), pension and other retirement benefits (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters, or (v) any other matter whatsoever. " ( 14 ) JURISDICTION, powers and authority of the Central administrative Tribunal-" (1) Save as otherwise expressly provided in this Act, the Central administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to- (a) recruitment, and matters concerning recruitment, to any All-India Service 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, being, in either case, a post filled by a civilian; (b) all service matters concerning- (i) a member of any All-India Service; or (ii) a person (not being a member of an All-India Service or a person referred to in clause (c) appointed to any civil service of the union or any civil post under the Union ; or (iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence. and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation [or society] owned or controlled by the Government; (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any Corporation [or society] or other body, at the disposal of the Central Government for such appointment. [explanation-For the removal of doubts, it is hereby declared that references to "union" in this sub-section shall be construed as including references also to a Union territory. ] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controlled by Government, not being a local or other authority or corporation [or society] controlled or owned by a State Government. Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dated may be so specified under this sub-section in respect of different classes of or different categories under any class, of local or other authorities or corporations [or societies]. Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dated may be so specified under this sub-section in respect of different classes of or different categories under any class, of local or other authorities or corporations [or societies]. (3) Save as otherwise expressly provided in this Act, the Central administrative Tribunal shall also exercise on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all Courts (except the Supreme Court) in relation to- (a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society] and (b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub section (1)] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs. 19. Applications to Tribunals- (1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. Explanation-For the purposes of this sub-section, "order" means an order made- (a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation [or society] owned or controlled by the Government; or (b) by an officer, committee or other body or agency of the govenment or a local or other authority or corporation [or society] referred to in clause (a ). " (Emphasis supplied by us) ( 15 ) ON a conjoint reading of those provisions, it is clear that by the enactment of the Administrative Tribunals Act, 1985, the jurisdiction of this court to entertain a writ application at the first instance with regard to the matters referred to therein has been taken away and is invested with the tribunals. " (Emphasis supplied by us) ( 15 ) ON a conjoint reading of those provisions, it is clear that by the enactment of the Administrative Tribunals Act, 1985, the jurisdiction of this court to entertain a writ application at the first instance with regard to the matters referred to therein has been taken away and is invested with the tribunals. The Tribunal is even entitled to declare any policy decision of the Government regarding recruitment and matters concerning recruitment as unconstitutional. All that the petitioners want in this writ application is to declare that the policy decision taken by the appellants as reflected in annexure P-2 should be set aside as the same affects the existing right of the writ petitioners in relation to recruitment and matters concerning recruitment to a civil post under the Union depriving them from applying for the jobs in question. ( 16 ) THEREFORE, the subject-matter of this writ application is definitely a matter in relation to recruitment and also matter concerning recruitment to a civil post under the "union and the alleged policy decision is also an 'order' within the meaning of Explanation added to Section 19 (1) of the Act. ( 17 ) SUCH being the position, it is the duty of the petitioners to apply before the Tribunal in terms of Section 19 of the Act. The present case having fallen within sub-section (a) of Section 14 (1) of the Act, the definition of 'service matters' containing in Section 3 (q) of the Act has no role to play in this case. The said definition would become relevant if the case was under the category of Section 14 (1) (b) or (c) of the Act. ( 18 ) IT appears from the order impugned that the learned Single Judge relied upon Para 93 of the judgment of the Supreme Court in the case of l. Chandra Kumar v. Union of India and Others reported in 1997 (3) SCC 261 in arriving at the conclusion that this Court has jurisdiction. After going to the said paragraph, we find that all that has been pointed out by Supreme Court is that the Tribunals are competent to hear matter even where vires of statutory provisions are questioned and their function in this respect is supplementary because the decision of the Tribunal will be subject to scrutiny before a Division Bench of the respective High courts. In the said paragraph, it is clearly mentioned that Tribunal will have the power to test the vires of the subordinate legislations and the rules with only one exception that it shall not question the vires of the parent statute, namely, the Administrative Tribunals Act itself. ( 19 ) WE are unable to accept the conclusion of the learned Single judge that any observation made in the said paragraph supports the contention of the respondents that the present writ application should be maintainable before this Court. ( 20 ) WE, thus, find that having regard to the nature of the dispute involved in this writ application, the same should be moved before the tribunal at the first instance and not before a learned Single Judge of this court. ( 21 ) WE now propose to consider the decision cited by Ms. Ganguly. ( 22 ) IN the case of Union of India and Another (supra), the Supreme court was dealing with an appeal preferred against an order passed by high Court thereby dismissing a writ application under Article 226 of the constitution of India on the ground of existence of alternative remedy in the form of a statutory appeal. In dealing with such an appeal the Supreme court was of the view that the High Court was not justified in dismissing the application on the ground of existence of statutory remedy According to supreme Court, the question raised in the writ application was pure question of law, which required determination of the question whether the provision of telephone connection and instrument amounted to sale and even so, why was Union of India not exempted from payment of Sale Tax under the respective statute. The Supreme Court held that the question was of fundamental character, which should have been dealt with by the High Court instead of leaving the matter to statutory appeal. In our view, the said decision cannot have any application to the fact of. the present case where by the operation of the Act, the authority to decide the question involved herein is vested, at the first instance, with the Tribunal and thereafter, the order passed by the Tribunal can be challenged before a Division Bench of high Court. In our view, the said decision cannot have any application to the fact of. the present case where by the operation of the Act, the authority to decide the question involved herein is vested, at the first instance, with the Tribunal and thereafter, the order passed by the Tribunal can be challenged before a Division Bench of high Court. Therefore, this is not a case of existence of alternative remedy, but in this case, the learned Single Judge of High Court is precluded by operation of law from entertaining the writ application. ( 23 ) IN the case of Kailash Chandra Sharma (supra), a circular issued pursuant to policy decision was challenged before High Court under Article 226 of the Constitution of India regarding recruitment of the post of teacher in Panchayat School under Zilla Parishad. Against the decision passed by the High Court in such a writ application, an application for special leave was filed. While dealing with such an appeal, the Supreme Court held that even such a circular issued pursuant to policy decision must pass under articles 14,15 and 16 of the Constitution of India. We are unable to follow how the said decision can be of any help to the respondent. The recruitment to the post of teachers in Panchayat under Zilla Parishad does not admittedly come within the purview of the Act. Therefore, the High Court in that case, was the proper forum. It is also needless to mention that any such circular on the basis of public policy should pass the test of Articles 14,15 and 16. At this juncture it may not be out of place to mention herein that the Apex court in case of L. Chandra v. Union of India reported in 1997 SCC (supra), clearly indicated that even a Tribunal constituted under the Act is entitled to decide the question of constitutionality of any provision or any circular which affects the legal or fundamental right of the applicant. Therefore, if according to the respondent the policy decision by virtue of which the respondents are unable to apply forthe job is unconstitutional, such question can be successfully agitated before the Tribunal. We, therefore, find that the aforesaid decision is of no assistance to the respondent. Therefore, if according to the respondent the policy decision by virtue of which the respondents are unable to apply forthe job is unconstitutional, such question can be successfully agitated before the Tribunal. We, therefore, find that the aforesaid decision is of no assistance to the respondent. ( 24 ) IN the case of State of Punjab (supra), the Apex Court was dealing with an appeal against the order of the Division Bench of the High Court passed in an appeal against an order of a learned Single Judge disposing of a writ application challenging the order appointing Assistant Advocate-General of the State. By referring to the said decision, Ms. Ganguly tried to convince us that the there is enough scope of entertaining a writ application before a High Court even in respect of matters relating to the recruitment to a civil post. It appears from the said decision that the writ application challenging the appointment was filed in the year 1989 before the High court of Punjab and Haryana. No notification in terms of Section 1 (4) of the act creating any State Administrative Tribunal for exercising power under section 15 of the Act in the State of Punjab or Haryana was published till 1991, the year of disposal of the writ application by the learned Single Judge as it appears from the year mentioned in the number of the Appeal disposed of by the Division Bench. Therefore, in the absence of a State Administrative tribunal in the State, the High Court entertained such application and disposed of the same. Moreover, such point was never raised in the said decision. Therefore, the said decision cannot be cited as a precedent in support of the proposition of law that a writ application entertainable by a tribunal constituted under the Act can also be entertained by a High Court. We, therefore, find that the said decision does not help her clients in any way. We, therefore, the find that the decisions cited by Ms. Ganguly are of no avail to her clients. Accordingly, we set aside the order impugned and hold that the writ application is not maintainable before this Court. In the facts and circumstances there will be however no order as to costs.