Allahabad High Court
Union Of India And 2 Others vs Abhishek Kumar Yadav And Another on 1 February, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:17597-DB
Court No. - 40
Case :- SPECIAL APPEAL No. - 846 of 2022
Appellant :- Union Of India And 2 Others
Respondent :- Abhishek Kumar Yadav And Another
Counsel for Appellant :- Chandra Prakash Yadav
Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
1. This appeal is by the Union of India challenging the judgment and order passed by learned Single Judge dated 05.05.2022 in Writ-A No. 18833 of 2021, whereby the impugned order passed by the appellant dated 24.11.2021 has been set aside and a writ of mandamus is issued to issue appointment letter to the respondent petitioner.
2. The recruitment herein has been undertaken by the Staff Selection Commission for different posts in the Ministry of Defence. The short ground on which the order of learned Single Judge is challenged is that Ministry of Defence since is notified as an authority under Section 14 of the Administrative Tribunals Act, 1985, then a writ petition could not have been entertained directly under Article 226 of the Constitution of India. Reliance is placed upon the judgment of Supreme Court in L. Chandra Kumar versus Union of India and others, AIR 1997 Supreme Court 1125, wherein the Constitution Bench has clearly held as under:
"Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. 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. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal" (Emphasis supplied by us)
3. Submission is that the writ petition since was not directly maintainable without approach to the Tribunal, the direction issued by the learned Single Judge cannot be sustained.
4. Sri Pankaj Kumar Gupta, learned counsel appearing for the respondent-petitioner submits that action of the respondent in denying appointment was in teeth of the law laid down by the Supreme Court in the case of Avtar Singh versus Union of India and others, 2016 (8) SCC 471. It is submitted that since the impugned action itself was contrary to the law laid down by the Supreme Court, therefore, learned Single Judge committed no error in entertaining the writ petition. It is also submitted that at the time the offence itself was committed, the respondent was a juvenile and therefore, any offence committed by the respondent could not have been taken into consideration. It is also submitted that offence otherwise was trivial in nature and resulted in acquittal of respondent.
5. Be that as it may, we are of the view that once a writ petition was not maintainable directly before the High Court, without approaching the Tribunal, in view of the law laid down by the Supreme Court in the case of L. Chandra Kumar (supra), all other issues cannot be looked into nor can be relied upon to confer jurisdiction to the Writ Court. It is otherwise not disputed that the Ministry of Defence is notified as an authority under Section 14 of the Administrative Tribunals Act. In respect of the matters of grant of appointment, the proper course available was to have approached the Central Administrative Tribunal, at the first instance. The writ petition therefore could not have been entertained nor could have been allowed. On this short ground itself, this appeal succeeds and is allowed. Judgment and order passed by learned Single Judge dated 05.05.2022 is set aside. The writ petition is held to be not maintainable.
6. In the facts of the case, however, we provide that in the event the respondent approaches the Central Administrative Tribunal within two weeks from today, his Original Application will be entertained on merits and shall be dealt with in accordance with law, expeditiously.
Order Date :- 1.2.2024
Abhishek Gupta
