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2017 DIGILAW 1645 (JHR)

Shiv Kumar Ram v. State of Jharkhand

2017-09-13

S.N.PATHAK

body2017
JUDGMENT : S.N. Pathak, J. Heard learned counsel for the parties. 2. The petitioner has filed this writ petition with a prayer for a direction upon the respondents to reconsider his case for recommendation of his name for appointment in IAS Cadre against the Non-State Civil Service for the vacancy of the year 2015 – 16. Petitioner has further prayed for a direction to send his name immediately without any further delay as his case may be considered by the Screening Committee for his appointment in IAS Cadre against the posts advertised by modified Notification dated 30.05.2016. 3. At the very outset, Mr. H.K. Mehta, learned AAG has raised the issue of maintainability of the instant writ petition. Learned AAG submitted that before delving into merits of the case, it would be proper to decide maintainability of the case as this writ petition under Article 226 of Constitution of India is not maintainable in view of catena of decision of this Court as well as of the Hon'ble Apex Court. Learned AAG submitted that petitioner could have approached before the learned Central Administrative Tribunal and instead of doing so, he has directly approached before this Court. 4. Mrs. M.M. Pal, Learned Sr. Counsel assisted by by Ms. Mahua Palit, appearing on behalf of the petitioner has opposed the contention raised by the learned AAG. Learned Sr. Counsel argued that at no point of time objection was raised so far maintainability is concerned. Learned Sr. Counsel further argued that in the earlier attempt before this Court, specific direction was given to consider case of the petitioner. Learned Sr. Counsel has placed reliance in a Judgment rendered in the case of Harbanslal Sahnia and Another Vs. India Oil Corporation Ltd. and Others reported in (2003) 2 SCC 107 , and submitted that in view thereof, the instant writ petition is maintainable though there is an alternative remedy of Central Administrative Tribunal. Learned Sr. Counsel has put emphasis on Para7 of the said Judgment, which is quoted hereunder: “7. India Oil Corporation Ltd. and Others reported in (2003) 2 SCC 107 , and submitted that in view thereof, the instant writ petition is maintainable though there is an alternative remedy of Central Administrative Tribunal. Learned Sr. Counsel has put emphasis on Para7 of the said Judgment, which is quoted hereunder: “7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and nonexistent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings”. 5. Per contra counter affidavit has been filed. Mr. H.K. Mehta, learned AAG has vehemently opposed the contention of learned Sr. Counsel appearing on behalf of the petitioner and further argued that the case relied upon by the petitioner is not at all applicable in the present case. Learned AAG further submitted that this Court has already considered this aspect of the matter and has been pleased to hold that such petitions are not maintainable and further been pleased to direct the petitioners in those cases to approach before the appropriate forum. Learned AAG has further placed reliance in the Judgment passed in the case of Bhawani Prasad Lal Das Vs. Learned AAG has further placed reliance in the Judgment passed in the case of Bhawani Prasad Lal Das Vs. The State of Jharkhand and others in W.P.(S) No. 7172 of 2013 which has been affirmed by the Division Bench of this Court in L.P.A. No. 302 of 2014 wherein the Court has refrained from delving into the factual aspects as the same would prejudice interest of the petitioner and may otherwise influence the Court of first instance in the event appellant-petitioner approaches the Central Administrative Tribunal. 6. Be that as it may, having gone through rival submission of the parties and after careful consideration of the entire case and the cases relied upon by the parties, this Court is of the considered view that writ petition is not maintainable before this Court. The cases relied upon by learned counsel for the petitioner is of no help to her and is distinguished on the ground that fundamental rights of the petitioner is not infringed as promotion is not a fundamental right. There is right for consideration and case of the petitioner has already been considered and rejected. The jurisdiction of the competent authority is not under challenge as the order has been passed by the competent authority having jurisdiction and ample opportunity had been provided to the petitioner before passing of the said order. This Court cannot delve into the factual aspects as it would prejudice the interest of the parties and may influence the Court of first instance in the event the petitioner approaches the Central Administrative Tribunal. In the case of L. Chandra Kumar Vs. Union of India and others reported in (1997) 3 SCC 261 [: 1997 (1) PLJR (SC)84] the Hon'ble Apex Court has held at para93 that “... … … We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. … ...” . In the case of Vinay Kumar Pandey Vs. State of Jharkhand and others reported in 2003(4) JLJR 382 , the Court has discussed the case on jurisdiction point and has held at para9 which is quoted hereunder: “9. … ...” . In the case of Vinay Kumar Pandey Vs. State of Jharkhand and others reported in 2003(4) JLJR 382 , the Court has discussed the case on jurisdiction point and has held at para9 which is quoted hereunder: “9. So far as the jurisdiction of the High Court under Article 226 of the Constitution of India, vis-a-vis the jurisdiction of the Central Administrative Tribunal is concerned, the matter stands already decided by a decision of the Supreme Court in the case of L. Chandra Kumar Vs. Union of India (A.I.R. 1997 S.C. 1125) [: 1997(1) PLJR (SC) 84]. In the said case, the Supreme Court held that the power is vested in the High Court to exercise Judicial Superintendence over the decision of all the Courts and Tribunals within their respective jurisdiction and made the decisions of the Tribunals amenable to scrutiny by a Division Bench of the respective High Courts under Articles 226 and 227 of the Constitution of India.” 7. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I am of the considered view that the matter relating to recruitment of All India Services is within the jurisdiction of Central Administrative Tribunal under Section 14 of the Administrative Tribunal Act, 1985. I feel appropriate not to delve into merits of the case since the matter falls within the exclusive domain of Central Administrative Tribunal and as such, this Court cannot interfere into the matter under writ jurisdiction which may influence the Court of first instance in the event petitioner approaches before the Central Administrative Tribunal. The Central Administrative Tribunal being the Court of first instance, this Court is not inclined to exercise its writ jurisdiction in the matter. 8. Accordingly, this writ petition is disposed of giving liberty to the petitioner to approach before the appropriate forum i.e. Central Administrative Tribunal and if the petitioner approaches before the same, the Tribunal shall consider to condone delay, if any, in view of the fact that petitioner was pursuing his grievance before this Court.