Ex. Hav. Ranjit Singh vs Inspector General Of Prisons And ...
2008 Latest Caselaw 475 Del

JUDGMENT

Anil Kumar, J.

1. The petitioner in this writ petition under Article 226 of the Constitution of India has prayed for consideration of his seniority from November, 1990 and has also claimed his salary and other benefits since then.

2. According to the petitioner out of 10 posts of Assistant Superintendent in Central Jail, 3 were reserved for ex-servicemen. The name of the petitioner was forwarded by the employment exchange and the petitioner was interviewed by the selection board on 21st November, 1990. The petitioner contended that he is an ex-serviceman released from Indian Army at the rank of hawaldar on medical grounds after completing 21 years of service and his medical disability was attributed and aggravated on account of military service.

3. The grievance of the petitioner is that despite the fact that the petitioner was in priority-I grade and his name was duly forwarded by the employment exchange, the selection board in violation of rules and regulations failed to consider the candidature of the petitioner. On the representations being made by the petitioner a letter dated 4th November, 1991 was issued by the Ministry of defense to the Inspector General of Prison to consider the application of the petitioner for the said post as the petitioner was placed in the priority-I grade. According to the petitioner by letter dated 26th November, 1991 the respondent No. 1 admitted their mistake and adviced the petitioner that he should approach the Directorate General of Rehabilitation and as and when the list of candidates for the said post shall be called for, he will be considered.

4. Later on the petitioner was given an appointment in the year 1992 and consequently the petitioner raised his grievance relying on the decisions of the Government of India bearing No. 3/23/71/Estt.(D) dated 24.12.1971 and No. 14024/6/77/Estt.(D) dated 31.12.1979 and 13/34/71/Estt.(E) dated 1.2.1972 and contended that he should have been selected in 1990 as he was a priority-I candidate and consequently he should be given seniority since 1991 and also the arrears of salary and other benefits.

5. Though the petitioner made a grievance first time in July, 1992, however, writ petition was not filed in 1992 or immediately thereafter. The petitioner made representation and continued to make representations regarding grant of his seniority since 1990 when the first DPC was held for appointment of Assistant Superintendents of the Central Jail, Tihar, New Delhi. The petitioner ultimately filed the present petition on 7th May, 1997 after about seven years when he was not selected for the post by the DPC in 1990.

6. The petition is contested by the respondents contending that the writ petition is not maintainable as the petitioner has an alternate remedy available to him under Section 14 of the Administrative Tribunals Act, 1985 and the High Court does not have jurisdiction to entertain the petition claiming service benefits. The dismissal of the writ petition is also prayed on the ground that the petitioner is claiming seniority from 1990 and the writ petition was filed after a delay of 7 years without any cogent explanation. The relief to the petitioner is contested also on the ground that he has not challenged the decision of the Staff Selection Board constituted in the year 1990 by which all the appointments were made in the year 1990.

7. The respondents have relied on , Kendriya Vidalyaya Sangathan v. Subhash Sharma; , Samarndra Das, Advocate v. State of West Bengal to contend that the Central Administrative Tribunals has exclusive jurisdiction as Court of first instance in relation to service matters and, therefore, the High Court though has the power, however, it should not entertain a writ petition directly.

8. The petitioner who appears in person contends that the High Court has the power and since the writ petition is pending since 1997 and he is seeking remedy since 1992 even though he was appointed but he has not been given seniority since 1990 and he is on the verge of his retirement, therefore, it will be just and appropriate to entertain the petition and decide the same as the Court has jurisdiction under Article 226 of the Constitution of India. The petitioner has relied on , T.K. Rangarajan v. Government of Tamil Nadu and Ors.; , S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors. and , Radha Raman Samanta v. Bank of India and Ors.

9. In T.K. Rangarajan (supra) relied on by the petitioner it was held that under Article 226 of the Constitution of India, the High court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situations having no parallel remedy though such extraordinary powers are to be used sparingly. In that case, the State Government had dismissed about two lakh employees for going on strike and the Administrative Tribunal was manned only by one person. In the circumstances, it was held by the Supreme Court that the judgment of the larger Bench in L. Chandra Kumar case (1997) 3 SCC 271 was binding, however, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause and consequently, it was held that because of 'very very exceptional circumstances' there is sufficient and justifiable reason for the High Court to entertain the petition despite an alternative remedy provided under the Administrative Tribunals Act, 1985. In S.J.S. Business Enterprises (P) Ltd. (supra) relied on by the petitioner it was held that existence of alternative remedy does not impinge on the jurisdiction of the High court to hear the matter, if it is otherwise possible. In this case the Writ Petition filed under Article 226 of the Constitution of India was dismissed by the Single bench of the High Court on the ground of suppression of the fact of the pendency of another suit which was filed by the said petitioner prior to the institution of the Writ petition. The appeal against the order of the single bench was also dismissed by the division bench on the ground of suppression of material fact. Thereafter SLP was filed and the Supreme Court had set aside the order of the High Court and had observed that the filing of the suit was not such a fact, the suppression of which could have affected the disposal of the writ petition on merits. The Apex Court had further held that where a party has initiated an alternative remedy but not pursued it, the High Court can call upon the party to elect either the alternative remedy or the writ petition and, consequently, if the party has withdrawn the alternative remedy, by the time the writ petition was heard, the writ petition should not be rejected on the ground that the party had not disclosed the pendency of alternative remedy already taken by such a party. The petitioner has also relied on , Radha Raman Samanta v. Bank of India and Ors. where the Apex Court had held that the claim of alternative remedy not having been raised before the single judge, could not be raised before the Division Bench and could not be gone into.

10. Apparently the cases relied on by the petitioner do not support the plea of the petitioner that though the petitioner has remedy under Administrative Tribunals Act, 1985, this Court should entertain the writ petition. In Ambica Quarry Works v. State of Gujarat and Ors. the Supreme Court had observed:

The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.'` Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SC 111 (vide para 59), the Supreme Court had observed:

It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.

This is no more res integra that a case is only an authority for what it decides. As observed by the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra :

A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.

11. Apparently the case relied on by the petitioner are distinguishable and on the basis of ratio of said cases it cannot be held that this Court should exercise jurisdiction under Article 226 of the Constitution of India and should entertain the writ petition regarding the grievance of the petitioner that he should be granted seniority from 1990 when he was allegedly not selected though he was in priority grade I as has been alleged by him.

12. Learned Counsel for the respondent, on the other hand, relied on , Kendriya Vidyalaya Sangathan and Anr. v. Subhas Sharma, holding that under the Administrative Tribunals Act, 1985, the Central Administrative Tribunals has exclusive jurisdiction as court of first instance in relation to service matters concerning the employees of Kendriya Vidyalaya despite the fact that the jurisdiction of High Court under Article 226/227 of the Constitution of India under corresponding provisions was not excluded. The Apex Court had held that the High Court should not and cannot directly entertain a writ petition concerning service matters of such employees of such organizations in respect of which there is a notification under Section 14(2) of the Administrative Tribunals Act, 1985. It was held that the Administrative Tribunals Act, 1985, Section 1(2)(a) applies to all Central Government servants.

13. In the present circumstances, this cannot be disputed by the petitioner that the provisions of Administrative Tribunals Act, 1985 are applicable to the case of the petitioner, as he is claiming that he should be granted seniority from 1990 as Assistant Superintendent in Tihar Jail as his non selection in 1990 was not illegal as he was priority grade I candidate. In Kendriya Vidyalaya Sangathan (supra), it was held by the Apex Court relying on L. Chandra Kumar case that it is not open for a litigant to directly approach the High Court even in cases where they question the vires of statutory legislation by overlooking the jurisdiction of the Tribunal concerned. The relevant observation of the Apex Court in the case of Kendirya Vidyalaya Sangathan page 151 are as under:

99. ...it will not, therefore, be open for litigants to directly approach the High courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.

14. This petition was filed by the petitioner after coming into the force of the Administrative Tribunals Act, 1985. The petitioner, therefore, ought to have filed the petition before the Central Administrative Tribunal. In terms of the decision of the Apex court, Mr. T.K. Rangarajan (supra), there are no such very very exceptional circumstances' which will entail interference by this Court under Article 226 of the Constitution of India. For the foregoing reasons, even if this Court has jurisdiction, I do not find it to be a fit case to exercise the writ jurisdiction ignoring and overlooking the jurisdiction of Central Administrative Tribunal under the Administrative Tribunals Act, 1985 which Tribunal is a court of first instance in relation to service matters.

15. For the foregoing reasons it will not be just and appropriate for this Court to exercise its jurisdiction under Article 226 when the jurisdiction is with the Central Administrative Tribunal under the Administrative Tribunals Act, 1986. In the circumstances this petition be sent to Central Administrative Tribunal as this petition is pending since 1997 and the petitioner has contended that he is on the verge of his retirement. The Central Administrative Tribunal shall be entitled to decide all the pleas and contentions raised by the parties. The registry of this Court is directed to send this matter to the Central Administrative Tribunal. The parties are directed to appear before the Central Administrative Tribunal on 24th March, 2008. Considering the facts and circumstances, the parties are also left to bear their own costs.