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2019 DIGILAW 706 (CAL)

Union of India v. Md Asiq Billah

2019-07-10

ABHIJIT GANGOPADHYAY, SAMBUDDHA CHAKRABARTI

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JUDGMENT : SAMBUDDHA CHAKRABARTI, J. 1. These appeals have arisen from a common judgment and order passed by a learned Single Judge of this Court on May 18, 2018 on three writ petitions. The appeals were heard together and are being disposed of analogously. 2. On behalf of the Union of India, i.e. the appellants herein, a preliminary objection was taken before the learned Single Judge about the maintainability of the writ petitions in this Court. The stand of the Union of India has been that the grievance of the writ petitioners can only be adjudicated before the Central Administrative Tribunal which as the Court of first instance has the jurisdiction to entertain these applications. 3. By the order impugned, the learned Single Judge has, inter alia, held the writ petitions to be maintainable in this Court since they do not involve recruitment or any relief relating to any civil post under the Union and that is expressly provided for under statutory rules framed by the Union of India itself. In the said order, the learned Single Judge has also passed some other directions. However, it was made clear that all the observations, except the finding as to jurisdiction of this Court to entertain the writ petitions, were tentative and subject to the ultimate result of the writ petition. 4. These appeals have been directed against the finding about the maintainability of the writ petitions in this Court. 5. The substratum of the submissions made by the learned advocates before the learned Single Judge has been enlarged in course of hearing of these appeals. 6. It appears from the order impugned that the learned advocate for the writ petitioners in A.S.T 21 of 2018 and A.S.T 22 of 2018 relied on Rule 3A of the Gramin Dak Sevak (Conduct and Engagement) Rules, 2011 to show that a Gramin Dak Sevak would be outside the civil service of the Union of India and also would not claim to be at par with the Central Government Employees. 7. These writ petitions have a background. The writ petitioners in AST 21 of 2018 and AST 22 of 2018 wanted to fill up the online application forms for the posts of Gramin Dak Sevaks in terms of the notification issued on April 4, 2018. 7. These writ petitions have a background. The writ petitioners in AST 21 of 2018 and AST 22 of 2018 wanted to fill up the online application forms for the posts of Gramin Dak Sevaks in terms of the notification issued on April 4, 2018. The educational qualification for the said post required that the candidate should pass 10th standard from the state Boards approved by the respective State Governments/Central Government. It is the grievance of the writ petitioners in AST 21 of 2018 and AST 22 of 2018 that the Department of Posts, Union of India in complete derogation of the earlier notification declined to accept the certificates issued by the West Bengal Board of Madrasah Education (the Madrasah Board, for short) and as a result of that, the writ petitioners could not fill up the application forms. 8. Initially, the writ petitioners approached the Central Administrative Tribunal which had directed the Chief Postmaster General to consider the matter and to pass a reasoned order. By an order dated May 7, 2018, the respondents authorities rejected the contention of the writ petitioners. This has, inter alia, been challenged in the first two writ petitions seeking equivalence of the degrees given by the other State Boards and the Madrasah Board. 9. The third writ petition is by the Madrasah Board itself, a statutory body, and two of its officers for directing the respondents not to give effect or further effect to the communication dated January 2, 2018 by which the certificates awarded by the Madrasah Board were practically de-recognized and whereby it was held that the said certificates were not equivalent to Secondary School Examination pass certificate of 10th standard for the purpose of appointment to the concerned posts. 10. Mr. Chanda, the learned Additional solicitor General submitted that the concerned posts were civil posts and, therefore, any dispute arising out of the recruitment to those posts should be necessarily adjudicated by the Central Administrative Tribunal. The defence to this argument by the writ petitioners has been the same as before the learned Single Judge that they were not to be treated as part of the civil service. 11. The writ petitions, however, raise several issues which need to be examined for the purpose of deciding whether this Court has the jurisdiction to entertain the writ petitions. 11. The writ petitions, however, raise several issues which need to be examined for the purpose of deciding whether this Court has the jurisdiction to entertain the writ petitions. A bare perusal of the writ petitions makes it clear that they not only seek to raise dispute relating to the recruitment of the petitioners. In the first two writ petitions, the recruitment to the posts concerned and the advertisement issued seeking applications for those posts of Gramin Dak Sevak were definitely in the background and they provided the immediate reason for seeking the reliefs in the present writ petitions. The notification, refusal by the appellants herein to recognize the certificates issued by the Madrasah Board, refusal to treat the same as equivalent to the 10th standard certificate issued by the State Board and the order passed by the Chief Postmaster General were definitely the occasions for filing these writ petitions. 12. The question, however, to be decided is whether the present writ petitions can be classified as 'Service Matters', raising a dispute in connection with service or recruitment of an employee or a person seeking to make an application for appointment. It cannot be lost sight of that the writ petitioners have assailed the decision on the part of the postal department not to treat the certificates issued by the Madrasah Board as equivalent to the certificates issued by the other State Boards. That really is the reason why they have sought for a writ in the nature of a declaration that these certificates are equivalent to the 10th standard certificate of the Board. 13. Mr. Chanda in justification of his stand that the Central Administrative Tribunal alone has the jurisdiction to adjudicate the writ petitions has taken us through the pleadings of the writ petitions to substantiate that they are basically service matters where the primary purpose of the petitioners is to seek an appointment under the Union of India. In that case the Tribunal has the exclusive jurisdiction to decide the matter as the tribunal of first instance. He submitted that it has been of and on mentioned in the respective writ petitions that the impugned action of denial of the right of the petitioners to participate in the selection process has the effect of taking them out of the zone of consideration for recruitment to the relevant posts. He submitted that it has been of and on mentioned in the respective writ petitions that the impugned action of denial of the right of the petitioners to participate in the selection process has the effect of taking them out of the zone of consideration for recruitment to the relevant posts. Even some of the prayers made in the writ petitions make it clear that they were challenging the impugned memos which related to filling up posts of Gramin Dak Sevak spread over various postal divisions of the State. 14. We have heard the submissions and given our very anxious consideration to it. It may not be entirely wise on our part to approach the matter from a unilinear perspective nor can we approach the issue merely on the basis of what has been specifically prayed and what has not been prayed. On perusal of the writ petitions, we have no doubt that reliefs sought for in this writ petitions are very different in nature from those which are found in an application made to assail a decision of the respondents in a service matter per se. We have already mentioned that the applications were for the posts of Gramin Dak Sevak and refusal on the part of the respondents to recognize the certificates of the Madrasah Board are the immediate occasion for these writ petitions. Therefore, these matters and the complaints about it and the allegations against the respondents necessarily appear as a recurrent refrain throughout the writ petitions. 15. It cannot be denied that the primary purpose of the writ petitioners was to secure a declaration from the Court that the certificates issued by the Madrasah Board are equivalent to the 10th standard certificates issued by the other state Boards. Much assertion of Mr. Chanda to the contrary, the petitioners have not primarily prayed for a direction upon the respondents to allow them to participate in the selection process for the concerned posts. This could have been their prayer if their applications before the respondents were declined on any ground other than the one on which it has been. Since the certificates issued by them have not been recognized as equivalent to the other certificates issued by the State Boards, the writ petitioners have to overcome the initial hurdle of getting a declaration about the equivalence of the two certificates. Since the certificates issued by them have not been recognized as equivalent to the other certificates issued by the State Boards, the writ petitioners have to overcome the initial hurdle of getting a declaration about the equivalence of the two certificates. Until and unless that is done they cannot participate in the selection process and once it is done in favour of the petitioners, if at all, their right to participate in the selection process will follow automatically. 16. In the 3rd writ petition being W.P. No. 6356(W) of 2018 filed by the Madrasah Board and two of its office bearers the contention is that the examinations conducted by the said Board are equivalent to the 10th standard examination conducted by the West Bengal Board of Secondary Education. They have relied on a circular of the government of West Bengal which recognized the equivalence. The Ministry of Personnel, Public Grievances and Pensions also issued a circular on February 23, 2010 recognizing the certificates issued by the Board as equivalent to the Central Board of Secondary Education certificates for the purpose of employment under the central government. Their grievance is that in spite of such the students of the Board were not allowed to submit online applications for the concerned posts. They are apprehensive that the effect of the orders impugned in the writ petition would be to encourage the students of the minority community in West Bengal not to take admissions in the Madrasahas recognized by the Board as the action of the respondents will be applicable to all posts. 17. Thus the 3rd writ petition obviously has been filed to ensure the validity of the certificates issued by the Board. It is true that the petitioners had also challenged the decisions of the respondents but at the core of it lay a declaration that the certificates issued by them were equivalent to the 10th standard certificates issued by the other state Boards. Challenging the order declaring the certificates of the Board as not equivalent to the certificates issued by the other state Boards has the effect of seeking a declaration that the two certificates are equivalent. In any case the petitioners in the 3rd writ petition being W.P. No. 6356(W) of 2018 cannot be said to be seeking any recruitment so that the same can be classified as a service matter. 18. In any case the petitioners in the 3rd writ petition being W.P. No. 6356(W) of 2018 cannot be said to be seeking any recruitment so that the same can be classified as a service matter. 18. Therefore, it cannot be held that the sole purpose of the petitioners is to participate in the selection process. Even if this in the ultimate purpose, the other issues are so inextricably connected with it that they have to be decided first in order to reach the final stage. 19. It is true that the petitioners have not come up with an altruistic petition for a theoretical declaration that the certificates possessed by them and the 10th standard certificates are equivalent. The declaration sought has a definite purpose. It is not a petition in vacuum. It is not a petition which is to be read in abstraction divorced from the immediate background. 20. The initial memos the cancellation of which has been assailed by the writ petitioners undoubtedly were issued in the context of the specific recruitment process. But that does not lead one to an invariable conclusion that once the petitioners seek cancellation of those documents, the Tribunal alone assumes jurisdiction to decide the same. The prayer for cancellation of those documents is certainly essential for the petitioners to attain their ultimate object of participating in the selection process. But it is equally true, if not truer, that such direction for cancellation cannot be asked by the petitioners unless they first get a declaration that the certificates issued by the Madrasah Board are equivalent to those issued by the other State Board after completion of the 10th standard examination. Therefore, Section 14 of the Administrative Tribunal Act, 1985 does not stand in the way of entertaining the writ petitions by this Court. All that Section 14 says is that the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, power and authority relating 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. 21. Mr. Chanda argued that since the declaration of equivalence relates to recruitment the jurisdiction of this Court must be necessarily ousted. 21. Mr. Chanda argued that since the declaration of equivalence relates to recruitment the jurisdiction of this Court must be necessarily ousted. This is submission with which we do not agree. The primary issue in these writ petitions is for a declaration of equivalence of the certificates issued by two different Boards. When the qualification of candidates is in question and a declaratory relief has been prayed for, it is something more than a matter in relation to recruitment only, but a matter which goes to the root of the whole issue. It is immaterial whether some of the writ petitioners including the Madrasah Board had earlier approached the Central Administrative Tribunal. The Tribunal had disposed of the applications by directing the Chief Postmaster General to dispose of the matter by passing a reasoned order. Once that has been done, the present writ petitions must be held to have taken a different hue from the one which qualifies them to be classed as a service petition pure and simple. 22. The Central Administrative Tribunal is certainly competent to exercise jurisdiction in relation to recruitment and matters concerning recruitment for a certain class of employment but a declaratory relief can be granted by this Court under Article 226 of the Constitution of India. Without any issue relating to the alleged lack of equivalence of the two classes of certificates, the Tribunal would have had definitely the power to entertain a lis of this sort that could have been classed as a pure service matter. But this is a case where the question of declaration of equivalence must be first decided before answering the eligibility of the writ petitioners to participate in the selection process. In an appropriate case the writ Court has the power to grant declaratory relief if the Court is satisfied about their suitability. In Bool chand Vs. Chancellor, Kurukshetra University, 1968 AIR(SC) 292, the Supreme Court observed that if a declaration is a suitable relief in the circumstances of a given case, the High Court is not precluded from granting it under Article 226 of the Constitution of India. Again, the present writ petitions will also not be hit by S. 34 of the Specific Relief Act as the petitioners have prayed for consequential reliefs. 23. Mr. Chanda relied on the judgment in case of A & N. Administration & Ors. Vs. Again, the present writ petitions will also not be hit by S. 34 of the Specific Relief Act as the petitioners have prayed for consequential reliefs. 23. Mr. Chanda relied on the judgment in case of A & N. Administration & Ors. Vs. Shri Bhan Kharia, 2005 2 CalLJ 568 where the sum and substance of the grievance of the writ petitioners was that the illegal policy decision reflected in the advertisement affected their existing legal right to apply for the jobs in question. The Court held that the Tribunal had the jurisdiction to entertain the matter. 24. That judgment, however, cannot be applied to the facts of the present case. That is a case where the petitioners sought for mandamus directing the respondent authorities to act in accordance with law widely notifying each and every vacancy position for certain posts and inviting applications from eligible candidates upon setting aside of certain policy decision. The petitioners did not pray for any declaration about the equivalence of any degree or certificate. This is the basic difference between the facts of the two cases rendering the judgment distinguishable from the facts of the present petitions. We have already indicated that had a direction upon the respondents to allow the writ petitioners to participate in the selection process been the sole prayer of the writ petitioners, much of what the present appellants say might have had an occasion or justification. That being not what it is, we agree with the view taken by the learned Single Judge that these writ petitions are maintainable before this Court. 25. For the reasons stated above, the appeals are devoid of merits. 26. The appeals are dismissed. 27. We request the learned Single Judge to dispose of the writ petitions as early as possible. 28. There shall be no order as to costs. 29. Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date. 30. I agree.