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2014 DIGILAW 859 (GAU)

Tajuk Charu v. Union of India

2014-09-08

M.R.PATHAK

body2014
Judgment M.R. Pathak, J. 1. Heard Mr. Jakir Hussain, learned counsel for the Petitioner. Also heard Mr. Kardak Ete, learned Sr. counsel & Addl. Advocate General, assisted by Ms. Geeta Deka, learned Addl. Sr. Govt. Advocate, appearing for the State Respondents No. 2 & 3; Mr. Sanjay Kr. Medhi, learned counsel, with Mr. Arnav Das and Mr. Abhai Kr. Singh, learned counsels, for private Respondent No. 4 and Mr. Ninnong Ratan, learned counsel for Respondents No. 5, 6 and 7. However, there is no representation on behalf of the Respondents No. 1 and 8, Union of India, though name of CGC has been reflected in the cause list. Mr. Ete, learned Addl. Advocate General, Arunachal Pradesh, has submitted that as per the communication received from the Union Public Service Commission [UPSC, in short], the Selection Committee meeting, connected with the instant writ proceeding, is scheduled on 12.09.2014 and he also brought to the notice of this Court, the order dated 28.08.2014. Mr. Ete, submitted that there is an urgency in the matter and as the parties have already exchanged their affidavits in the matter, he, thus, prayed before the Court, to take-up the matter finally. In this regard, learned counsels for the Petitioner, private Respondent No. 4 and the Respondents No. 5, 6 & 7, also expressed their consent and agreed that the matter be heard finally at the admission stage itself. In this writ petition, only the notice has been issued to the parties concerned and the matter is yet to be admitted. However, considering the urgency in the matter and as the contesting parties have mutually agreed, the Court accepting the request of the parties concerned, has taken-up this matter for final consideration. 2. In this writ petition, only the notice has been issued to the parties concerned and the matter is yet to be admitted. However, considering the urgency in the matter and as the contesting parties have mutually agreed, the Court accepting the request of the parties concerned, has taken-up this matter for final consideration. 2. The Government of India, in the Department of Training, Ministry of Personnel, Public Grievances & Pensions, New Delhi, vide letter under D.O. No. 14015/52/2013 AIS [I] dated 07.12.2013, requested the Chief Secretaries of all the State Governments to provide with the information for determination of number of vacancies in the Promotion Quota of IAS, both in State Civil Services [SCS, in short] and Non-State Civil Services [Non-SCS, in short] categories; also informing that for promotion quota of IAS from Non-SCS category, it is desirable that for every one vacancy expected to be determined, names of 5 [five] officers serving in connection with the affairs of the State and not belonging to State Civil Service, are sent and further informed that same shall be furnished as per proforma enclosed with the certificates latest by 15th January, 2014 [Annexure-A to the writ petition]. 3. Pursuant to the same, the State Government in the Personnel Department, Arunachal Pradesh, vide communication dated 28.01.2014, informed all the Commissioners and Secretaries of the State at Itanagar, to forward the names of the officers who are less than 54 years of age and have outstanding APAR [Annual Personnel Appraisal Report] for the last 8 [eight] years in the Grade of Group 'A' under their Control with their complete bio-data, with age proof, tribe certificate, respective seniority list, to the said Department within 10th February, 2014, to enable the State Government to make decision for recommending the name of the officers for promotion to IAS against Non-SCS promotion quota [Annexure-B to the writ petition]. 4. In terms of the same, the present Petitioner, namely, Sri Tajuk Charu, Director of Printing, Arunachal Pradesh, Naharlagun, by his application dated 07.02.2014, submitted his complete bio-data with the APAR of last 8 [eight] years and other certificates before the Secretary [Information, Public Relations & Printing], Government of Arunachal Pradesh, Itanagar, for consideration of promotion to IAS under the quota of Non-SCS category. The said application of the Petitioner was recommended by the concerned Secretary [IPR & Printing], Government of Arunachal Pradesh, Itanagar, which was received by the Department of Personnel of the State, on 21.02.2014 [Annexure-C to the writ petition]. 5. For sending proposals to the Government of India, for preparation of Select List for the year 2014 of State of Arunachal Pradesh for promotion to IAS under Non-SCS category, the State Government in the Department of Personnel, vide order dated 27.02.2014, constituted a Screening Committee, with Respondent No. 5 as the Chairman and Respondents No. 6 & 7 as its Members [Annexure-D to the writ petition]. The said Department on 01.04.2014, stating that the Screening Committee so constituted by the Government on 27.02.2014, shall held a meeting on 02.04.2014, at 11AM, to scrutinize the documents of the applicants for promotion to IAS under Non-SCS category, for sending proposals to the Government of India for preparation of Select List for the year 2014 [Annexure-E to the writ petition]. Accordingly, the Screening Committee, in its meeting held on 02.04.2014, scrutinized the documents of 11 [eleven] such applicants, including the Petitioner and submitted its report before the Department of Personnel, Government of Arunachal Pradesh. When the said Screening Committee's Report was placed before the Chief Secretary of the State, it was found that the same is not in conformity with the necessary requirements and some discrepancies, like non-availability of original documents, vigilance clearance after 31.12.2013, report with regard to any encroachment of land of Government Quarter, etc., were not placed before him, and accordingly, the Chief Secretary of the State, on 05.05.2014, observed that the Committee may meet again and draw proceeding mentioning the award of marks specifically [Annexure-C1 to the writ petition]. The Chief Secretary of the State discussed the issue with the Commissioner [Personnel], Government of Arunachal Pradesh, Itanagar, again on 19.05.2014 and as he sought for certain clarifications on 05.05.2014 after such discussion, it was decided that it will be more appropriate to re-convene the Committee by holding a fresh meeting, consisting of same members, so that fresh vigilance clearance in respect of all the candidates, may be looked into and some representations that have been received for inclusion, may also be taken-up for consideration, observed that the said Committee may submit its recommendations within 15 [fifteen days] [Annexure-H to the writ petition]. Accordingly, the State Government in its Personnel Department vide order dated 19.05.2014, constituted the Selection Committee, for the said purpose, consisting of same set of officers as that of the Screening Committee i.e. Respondents No. 5, 6 & 7, herein, as Chairman and Members of the Committee respectively, with the observation that the said Committee will re-scrutinize the documents of the applicants as per Guidelines issued by the UPSC and award marks to their ACRs [Annual Confidential Reports, in short] for the preceding 5 [five] years by drawing minutes of the same [Annexure-J to the writ petition] and also issued a Circular dated 02.06.2014 informing that the meeting of the Selection Committee, so constituted on 02.06.2014, will be held on 04.06.2014, for re-scrutinization of the documents of the applicants for promotion to IAS under Non-SCS category and for awarding of marks to their ACRs for the preceding 5 [five years] [Annexure-K to the writ petition]. Consequently, the Selection Committee in its meeting held on 04.06.2014, scrutinized the documents of 12 applicants, including the Petitioner and the private Respondent No. 4, namely, Sri Sang Phuntsok, Chief Engineer [Monitoring], Department of Hydro Power Development, Government of Arunachal Pradesh, and following the provisions of IAS [Appointment by Selection] Regulations 1997, made selection by awarding marks on the basis of ACR Grading of preceding 5 [five] years of said 12 candidates, prepared the Minutes and recommended five names, namely - [i] Shri Tokong Pertin, [ii] Shri Tanya Ronya, [iii] Shri Tasser Talar, [iv] Shri Sang Phuntsok [private Respondent No. 4], & [v] Shri Subu Tabin and submitted the same before the authority concerned for necessary approval of the State Government [Annexure-L to the writ petition]. In the said Minutes, dated 04.06.2014, the Selection Committee clarified that on the Report of the Screening Committee [held on 02.04.2014], the Commissioner of Personnel Department of the State, awarded marks to the ACRs of the applicants for the preceding 5 [five] years of the candidates from 1 to 11 as per guidelines of the Government of India and recommended the names of 5 [five] officers, namely- [i] Shri Subu Tabin, [ii] Shri Tokong Pertin, [iii] Shri Tanya Ronya, [iv] Shri Tasser Talar and [v] Shri Tajuk Charu [Petitioner herein] and submitted the file before the competent authority for final decision. 6. 6. The Petitioner being aggrieved with such action of recommending the name of the Respondent No. 4 [Shri Sang Phuntsok] by the Re-Scrutinizing Committee dated 04.06.2014, in the promotion quota of IAS of the State under the Non-SCS category, on the basis of the order dated 19.05.2014 [Annexure-J, as above] and Circular dated 02.06.2014 [Annexure-K, as above] excluding/dropping his name amongst the 5 [five] selected candidates for the said purpose, who was earlier selected on the basis of the recommendation of the Selection Committee held on 02.04.2014, in terms of order dated 27.02.2014 [Annexure-D, as above] and Circular dated 01.04.2014 [Annexure-E, as above], has filed this Writ Petition. The main contention of the Petitioner, herein, is that the application of the private Respondent No. 4 was recommended by the departmental Secretary only on 30.05.2014 for lateral induction to IAS, much after the expiry of the mandatory period prescribed by the State Government and illegal action on the part of the State Respondents in considering his said application and to include his name in the recommended list in place of the Petitioner. 7. The State Respondents No. 2 & 3, the private Respondent No. 4 and Respondents No. 5, 6 & 7, have filed their affidavits to which the Petitioner has filed his replies. The State Respondents have submitted the relevant Records of the case. The private Respondent No. 4 has filed the connected Misc. Case being MC [WP] No. 88 [AP] of 2014 for vacation/modification/alteration of the interim order dated 07.08.2014 passed by the Court earlier in this petition, wherein the contesting parties were directed to maintain status quo as on 07.08.2014, in the matter, which was subsequently extended again by orders dated 11.08.2014 & 28.08.2014. 8. The parties have argued at length in the matter with regard to the merit of the case. However, Mr. S.K. Medhi, learned counsel for private Respondent No. 4, raised preliminary objection with regard to the maintainability of this Writ Petition before this Court to which the Petitioner has vehemently objected and submitted that in the present case, the writ petition is maintainable. 9. However, Mr. S.K. Medhi, learned counsel for private Respondent No. 4, raised preliminary objection with regard to the maintainability of this Writ Petition before this Court to which the Petitioner has vehemently objected and submitted that in the present case, the writ petition is maintainable. 9. The question which arises for consideration before the Court now, is whether this petition is maintainable in the present form under Article 226 of the Constitution of India and the Court deem it fit and proper, prior to entering into the merit of this case, to determine the issue of maintainability. 10. Mr. Medhi, learned counsel, submitted that entire process of communication, orders, circulars, constitution of Screening Committee, Selection Committee and recommendation of the State Government, have been initiated from the letter under D.O. No. 14015/52/2013 AIS [I] dated 07.12.2013 of the Government of India, in the Department of Training, Ministry of Personnel, Public Grievances & Pensions, New Delhi, with regard to the promotion quota of IAS of the State from Non-SCS category. As such, Mr. Medhi urged that it is the Central Administrative Tribunal [CAT, in short] only, being the first Court of instance, has the power and jurisdiction to try with the instant matter and the Writ Court has no jurisdiction to entertain such writ petition of the Petitioner. In this regard, learned counsel has placed reliance on the Sections 3[q], 14, 28, 29 and Article 323 of the Constitution of India. Mr. Medhi, learned counsel, has also relied upon the judgments of the Hon'ble Supreme Court, decided in Union of India & Ors. v. Baleshwar Singh, reported in 1994 Supp [2] SCC 587; Smt. Tapati Rani Mahanta & Ors. v. Union of India & Ors. reported in 1997 [1] GLT 230 and Prabhas Debnath v. Union of India & Ors., reported in 2004 [Supp] GLT 482. 11. On the other hand, Mr. v. Baleshwar Singh, reported in 1994 Supp [2] SCC 587; Smt. Tapati Rani Mahanta & Ors. v. Union of India & Ors. reported in 1997 [1] GLT 230 and Prabhas Debnath v. Union of India & Ors., reported in 2004 [Supp] GLT 482. 11. On the other hand, Mr. Hussain, learned counsel for the Petitioner, has submitted that even today, the Petitioner and the private Respondent No. 4 are State Government employees, holding the posts under the State Government; the process for recommendation to the promotion quota of IAS of the State from Non-SCS category from the State Government employees have been taken-up by the State respondents; they have not yet been selected to the post of IAS; illegality in the process of recommending the names of Non-SCS officers of the State for promotion to IAS have been committed by the State Respondents and therefore, against such illegal action of the State Respondents, the Petitioner has filed this Writ Petition for violation of natural justice and administrative fair play and in violation of Articles- 14, 16 & 19 of the Constitution of India and according to him, the writ petition preferred by the Petitioner is certainly maintainable. Mr. Hussain, learned counsel, has also submitted that the decisions referred by Mr. Medhi, learned counsel for private Respondent No. 4, are not applicable to the present case as the official Respondents, therein, are under the Central Government. 12. Article 323 A of the Constitution of India provides Administrative Tribunals. Furthermore, the Sections 3[k], 3[p], 3[q], 14[1], 28 and 29[1] of the Administrative Tribunal Act, 1985, read as follows: "Section 3. Definitions.- [k] "Post" means a post within or outside India; [p] "Service" means service within or outside India. [q] "Service matters", in relation to a person, means all matters relating to the conditions of his service 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, as the case may be, of any corporation or Society owned or controlled by the Government, as respects- [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; Section 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]j 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 2 [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. Section 28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the constitution. 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. Section 28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the constitution. - On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except- [a] the Supreme Court; or [b] any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes 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 or matters concerning such recruitment or such service matters. Section 29. Transfer of pending cases. - [1] Every suit or other proceeding pending before any court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal: Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court." 13. In All-India Services Act 1951, All- India Service and other All-India Services are defined as follows: "2. Definition. In this Act, the expression "An All-India Service" means the service known as the Indian Administrative Service or the service known as the Indian Police Service or any other service specified in Section 2A. 2A. Other All-India Services. With effect from such date as the Central Government may, by notification in the official Gazette, appoint in this behalf, there shall be constituted the following All-India Services and different dates may be appointed for different services, namely: - 1. The Indian Service of Engineers [Irrigation, Power, Building and Roads]; 2. The Indian Forest Service 3. The Indian Medical and Health Service." 14. The Indian Service of Engineers [Irrigation, Power, Building and Roads]; 2. The Indian Forest Service 3. The Indian Medical and Health Service." 14. Article 312 [1] & [2] of the Constitution of India provides for All-India Services wherein it is provided that Indian Administrative Service and the Indian Police Service as deemed services created by the Parliament and that any other services can be provided by the Parliament as All India Service in accordance with the procedure prescribed under Article 312[1]. 15. Literally, 'recruit' means, a newly enlisted member, to enroll or obtain new members/employees, etc. and 'recruitment' means, the action of recruiting people. Similarly, 'concern' means, to have, to do with something or someone; to be about something or someone and 'concerning' means relating to, about. 16. The Hon'ble Apex Court in Ashok Kumar Sawhney v. Union of India, reported in 1982 [1] SCC 497 at Para 8 in a matter related to "the Released Emergency Commissioned Officers & Short Service Commissioned Officers [Reservation of Vacancies] Rules, 1971" observed 'recruitment' as: "The word 'recruitment' is comprehensive enough to embrace the content of all the rules preceding R.8 including, the fitment of candidates recruited to the service vis-à-vis each other." 17. In Prafulla Kumar Swain v. Prakash Chandra Misra, reported in 1993 Supp [3] 181, with regard to "the Orissa Forest Service Class II Recruitment Rules, 1959" at Paragraphs 29 & 30, the Hon'ble Supreme Court defined 'recruitment' as: "Recruitment is just an initial process. The term "recruitment" connotes and clearly signifies enlistment, acceptance, selection or approval for appointment." 18. The Hon'ble Supreme Court in K. Narayanan v. State of Karnataka, reported in 1994 Supp [1] SCC 44 in a matter related to "the Karnataka Public Works Engineering Department Service [Recruitment] [Amendment] Rules, 1985" defined 'recruitment' as: "Recruitment according to dictionary means 'enlist'. It is comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well-known methods of recruitment. Even appointment by transfer is not unknown". 19. Further the Hon'ble Apex Court in the case of State of Assam v. Kanak Chandra Dutta, reported in AIR 1967 SC 884 in a matter related to Mouzadars of Assam defined 'Civil Post' as: "There is no formal definition of "post" and "civil post" within the Constitution. Even appointment by transfer is not unknown". 19. Further the Hon'ble Apex Court in the case of State of Assam v. Kanak Chandra Dutta, reported in AIR 1967 SC 884 in a matter related to Mouzadars of Assam defined 'Civil Post' as: "There is no formal definition of "post" and "civil post" within the Constitution. The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A Civil Post is distinguished in Art. 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. In Article 311, a member of a civil service of the Union or all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment". 20. In the case of L. Chandra Kumar v. Union of India, reported in [1997] 3 SCC 261, the Hon'ble Supreme Court, a Bench consisting of Seven Hon'ble Judges, has held that - "The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is 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 discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B 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 concerned 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 legislation [except where the legislation which creates the particular Tribunal is challenged] by overlooking the jurisdiction of the concerned Tribunal". 21. In the case of Telecom District Manager & Ors. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislation [except where the legislation which creates the particular Tribunal is challenged] by overlooking the jurisdiction of the concerned Tribunal". 21. In the case of Telecom District Manager & Ors. v. Keshab Deb, reported in [2008] 8 SCC 402, Hon'ble Supreme Court has held that a Tribunal indisputably was entitled to exercise its jurisdiction for enforcement of a fundamental right. 22. It is clear from the communication of the Government of India, Department of Training, Ministry of Personnel, Public Grievances & Pensions dated 07.12.2013 [Annexure-A to the writ petition] that the Government of Arunachal is required to provide/recommend the names of Non-State Civil Service Officers for consideration of promotion to IAS quota of the State. So, it is the post of IAS [Indian Administrative Service] under the Union of India, which is All-India Service under All-India Services Act 1951, as well as under Article 312 of the Constitution of India 23. From the reading of Section 14[1] of the Administrative Tribunals Act, 1985 it is very clear that the Central Administrative Tribunal [CAT] has the jurisdiction with regard to 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. 24. From Section 3 and 14[1] of the Administrative Tribunals Act, 1985, it is the post to which the candidate or an incumbent is going to be recruited that determines the jurisdiction of the Central Administrative Tribunal and not the actions of the State agencies while making any selection, recommendation etc. 25. In the present case, in terms of aforesaid communication of the Government of India dated 07.12.2013, the State Respondents have taken-up the process for selection and recommendation of the names of candidates from Non-SCS category of the State for promotion quota to the recruitment of IAS of the State, which falls under the category of "All-India Service". 26. 25. In the present case, in terms of aforesaid communication of the Government of India dated 07.12.2013, the State Respondents have taken-up the process for selection and recommendation of the names of candidates from Non-SCS category of the State for promotion quota to the recruitment of IAS of the State, which falls under the category of "All-India Service". 26. Therefore, in considered opinion of the Court, the Petitioner cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India against the selection and recommendation of the State Respondents, in recommending the names of Non-SCS officers of the State to the Central Government for consideration of promotion quota to IAS of the State. As such, in the present case, it is the Central Administrative Tribunal which has the jurisdiction being the Court of first instance. The Writ Court in a Division Bench under Articles 226/227 has jurisdiction to entertain only the matter that arises out of a decision of the Administrative Tribunal created pursuant to Articles 323-A/323-B of the Constitution of India. 27. For the aforesaid reasons, the Court uphold the preliminary objection raised by the Respondent No. 4, that the writ petition is not maintainable, since the jurisdiction lies before the Central Administrative Tribunal as provided under the Administrative Tribunal Act, 1985. 28. Accordingly, this Writ Petition is hereby dismissed as not maintainable at this stage. The interim order of status quo passed by this Court on 07.08.2014, and which was subsequently extended vide orders dated 11.08.2014 and 28.08.2014, stands vacated. 29. However, passing of this order shall not affect the Petitioner's right, if any, to approach the Central Administrative Tribunal, in accordance with law, if so advised. There shall be no order as to costs. Petition Dismissed.