Gauhati High Court
Page No.# 1/28 vs Assam Civil Service Officers ... on 3 May, 2024
Author: Suman Shyam
Bench: Chief Justice, Suman Shyam
Page No.# 1/28
GAHC010106632018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/167/2018
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI 781006
2: THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GUWAHATI-6
3: THE JOINT SECY. TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GUWAHATI-6
4: THE SELECTION COMMITTEE FOR THE SELECTION OF NON SCS
OFFICERS TO THE POST OF IAS
DISPUR
GUWAHATI 78100
VERSUS
ASSAM CIVIL SERVICE OFFICERS ASSOCIATION AND 14 ORS
HAVING ITS REGISTERED OFFICE NEAR STATE FIRE AND EMERGENCY
SERVICES , DISPUR, GUWAHATI -6, REPRESENTED BY ITS GENERAL SECY.
2:SRI MRIDUL KUMAR MAHANTA
GENERAL SECY.
ACS OFFICERS ASSOCIATION
DISPUR
GUWAHATI 6
3:THE UNION OF INDIA
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA
Page No.# 2/28
DEPTT. OF PERSONNEL AND TRAINING
MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND PENSION
NORTH BLOCK
NEW DELHI 110001
4:THE UNDER SECY.
DEPTT. OF PERSONNEL AND TRAINING
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES AND PENSION
NORTH BLOCK
NEW DELHI 110001
5:THE UNION PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS CHAIRMAN
DHOLPUR HOUSE
SHAHJAHAN ROAD
NEW DELHI 110069
6:SMT. MANJULA SAIKIA BHUYAN
ADDL. COMMISSIONER
INDUSTRIES AND COMMERCE
UDYOG BHAWAN
BAMUNIMAIDAM
GUWAHATI 781021
7:SRI RAKESH AGARWALA
JOINT COMMISSIONER OF TAXES
KAR BHAWAN
GANESHGURI
GUWAHATI 781006
8:SMTI ARUNIMA CHOUDHURY
ASST. COMMISSIONER OF TAXES
KAR BHAWAN
GANESHGURI
GUWAHATI 781006
9:SRI BINOD AGARWALA
JOINT ZONAL REGISTRAR OF COOPERATIVE SOCIETIES
TEZPUR ZONE
TEZPUR
ASSAM.
10:DR. DEEPI REKHA KULI
DIRECTOR
DIRECTORATE OF ARCHEOLOGY
Page No.# 3/28
AMBARI
GUWAHATI 781001
11:SRI GHANA PEGU
JOINT REGISTRAR FO COOPERATIVE SOCIETIES
KHANAPARA
GUWAHATI 781022
12:SRI HEMANTA KR. DEWRI
DIRECTOR
FINANCE (ECONOMIC AFFAIRS)
ASSAM
SECRETARIAT
DISPUR
GUWAHATI 781006
13:SRI RAJIB KR. SAIKIA
CHIEF PUBLIC RELATION OFFICER
ASSAM POLICE HEADQUARTER
ULUBARI
GUWAHATI 781007
14:DR. RUNU DUTTA
DIRECTOR (PC DIVISION) TRANSFORMATION AND DEVELOPMENT
DEPTT.
BLOCK F. JANATA BHAWAN
DISPUR 781006
15:SRI SIMANTA TALUKDAR
SUPERINTENDENT OF POLICE (COMMUNICATION)
SB HQ
KAHILIPAR
Advocate for the Petitioner : MR. D NATH
Advocate for the Respondent : MR. D CHOUDHURY
Linked Case : WA/165/2018
SRI RAKESH AGARWALA
S/O SRI LAKSHMINARAYAN AGARWALA
Page No.# 4/28
C/O ACHYUT PARADISE
SIKARIA COMPOUND CHRISTIAN BASTI
G.S. ROAD
GHY-5
KAMRUP (M)
ASSAM.
VERSUS
ASSAM CIVIL SERVICE OFFICERS ASSOCIATION AND 17 ORS
HAVING ITS REGISTERED OFFICE NEAR STATE FIRE AND EMERGENCY
SERVICES
DISPUR
GUWAHATI 781006 REPRESENTED BY ITS GENERAL SECY.
2:MRIDUL KUMAR MAHANTA
GENERAL SECY.
ACS OFFICERS ASSOCIATION
DISPUR
GUWAHATI 781006
3:THE UNION OF INDIA
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA
DEPTT. OF PERSONNEL AND TRAINING
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES AND PENSION
NORTH BLOCK
NEW DELHI 110001
4:THE UNDER SECY.
DEPTT. OF PERSONNEL AND TRAINING
MINISTRY OF PERSONNEL
PULBIC GRIEVANCES AND PENSION
NORTH BLOCK
NEW DELHI-110001
5:THE UNION PUBLIC SERVICE COMISSION
RPERESENTED BY ITS CHAIRMAN
DHOLPUR HOUSE
SHAHJAHAN ROAD
NEW DELHI 110069
6:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
Page No.# 5/28
7:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GUWAHATI 781006
8:THE JOINT SECY. TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GUWAHATI 781006
9:THE SELECTION COMMITTEE FOR SELECTION OF NON SCS OFFICERS
TO THE POST OF IAS
DISPUR
GUWAHATI-06
10:SMTI MANJULA SAIKIA BHUYAN
ADDITIONAL COMMISSIONNER
INDUSTRIES AND COMMERCE
UDYOG BHAWAN
BAMUNIMAIDAM
GUWAHATI 781021
11:SMTI ARUNIMA CHOUDHURY
ASSTT. COMMISSIONER OF TAXES
KAR BHAWAN
GANESHGURI
GUWAHATI 781006
12:SRI BINOD KR. AGARWALA
JOINT ZONAL REGISTRAR OF COOPERATIVE SOCIETIES
TEZPUR ZONE
TEZPUR
ASSAM.
13:DR. DEEPI REKHA KULI
DIRECTOR
DIRECTORATE OF ARCHEOLOGY
AMBARI
GUWAHATI 781001
14:SRI GHANA PEGU
JOINT REGISTRAR OF COOPERATIVE SOCIETIES
KHNAPARA
GUWAHATI 781022
15:SRI HEMANTA KR. DEWRI
DIRECTOR
FINANCE (ECONOMIC AFFAIRS)
ASSAM SECRETARIAT
DISPUR
GUWAHATI 781006
Page No.# 6/28
16:SRI RAJIB KR. SAIKIA
CHIEF PUBLIC RELATION OFFICER
ASSAM POLICE HEADQUARTER
ULUBARI
GUWAHATI 781007
17:DR. RUNU DUTTA
DIRECTOR (PC DIVISION)
TRANSFORMATION AND DEVELOPMENT DEPARTMENTS
BLOCK-F
JANATA BHAWAN
DISPUR-781006
18:SRI SRIMANTA TALUKDAR
SUPERINTENDENT OF POLICE (COMMUNICATION) SB HQ KAHILIPARA
------------
Advocate for : MR. B CHOUDHURY
Advocate for : ASSTT.S.G.I. appearing for ASSAM CIVIL SERVICE OFFICERS
ASSOCIATION AND 17 ORS
Linked Case : WA/166/2018
SMTI MANJULA SAIKIA BHUYAN
ADDITIONAL DIRECTOR
INDUSTRIES AND YOG BHAWAN
BAMUNIMAIDAN
GUWAHATI 781021
VERSUS
ASSAM CIVIL SERVICE OFFICERS ASSOCIATION AND 16 ORS
HAVING ITS REGISTERED OFFICE NEAR STATE FIRE AND EMERGENCY
SERVICES
DISPUR
GUWAHATI 781006 REPRESENTED BY ITS GENERAL SECY.
2:MRIDUL KUMAR MAHANTA
GENERAL SECY.
ACS OFFICERS ASSOCIATION
DISPUR
GUWAHATI 781006
3:THE UNION OF INDIA
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA
DEPTT. OF PERSONNEL AND TRAINING
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES AND PENSION
Page No.# 7/28
NORTH BLOCK
NEW DELHI 110001
4:THE UNDER SECY. DEPTT. OF PERSONNEL AND TRAINING
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES AND PENSION
NORTH BLOCK
NEW DELHI 110001
5:THE UNION PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS CHAIRMAN
DHOLPUR HOUSE
SHAHJAHAN ROAD
NEW DELHI 110069
6:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI 781006
7:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GUWAHATI 781006
8:THE JOINT SECY. TO THE GOVT. OF ASSAM
PERSONNEL (A) DEPTT.
DISPUR
GUWAHATI 781006
9:THE SELECTION COMMITTEE FOR SELECTION OF NON SCS OFFICERS
TO THE POST OF IAS
DISPUR
GUWAHATI 781006
10:SRI RAKESH AGARWAL
JOINT COMMISSION OF TAXES
KAR BHAWAN
GANESHGURI
GUWAHATI 781006
11:SMTI ARUNIMA CHOUDHURY
ASSTT. COMMISSION OF TAXES
KAR BHAWAN
GANESHGURI
GUWAHATI 781006
12:SRI BINOD KR. AGARWALA
JOINT ZONAL REGISTRAR OF COOPERATIVE SOCIETIES
TEZPUR ZONE
TEZPUR
ASSAM.
Page No.# 8/28
13:DR. DEEPI REKHA KULI
DIRECTOR
DIRECTORATE OF ARCHEOLOGY
AMBARI
GUWAHATI 781001
14:SRI GHANA PEGU
JOINT REGISTRAR OF COOPERATIVE SOCIETIES
KHANAPARA
GUWAHATI 781022
15:SRI HEMANTA KR. DEWARI
DIRECTOR
FINANCE (ECONOMIC AFFAIRS)
ASSAM SECRETARIAT
DISPUR
GUWAHATI 781006
16:SRI RAJIB KR. SAIKIA
CHIEF PUBLIC RELATION OFFICER
ASSAM POLICE HEADQUARTERS
ULUBARI
GUWAHATI 781007
17:DR. RUNU DUTTA
DIRECTOR (PC DIVISION) TRANSFORMATION AND DEVELOPMENT BLOCK
F
JANATA BHAVAN
DISPUR
GUWAHATI 781006
18:SRI SRIMANTA TALUKDAR
SUPERINTENDENT OF POLICE (COMMUNICATION) SB HQ
KHANAPARA
------------
Advocate for : MR D DAS
Advocate for : ASSTT.S.G.I. appearing for ASSAM CIVIL SERVICE OFFICERS
ASSOCIATION AND 16 ORS
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SUMAN SHYAM
JUDGMENT & ORDER (CAV)
Date of hearing : 23.04.2024.
Date of judgment : 03.05.2024
Page No.# 9/28
(Suman Shyam,J)
Heard Mr. D. Saikia, learned Advocate General, Assam assisted by Mr. D. Nath,
learned Senior Government Advocate, Assam appearing for the appellants in Writ
Appeal No.167/2018 and Mr. D. Das, learned senior counsel assisted by Ms. S.
Sharma, learned counsel appearing for the appellants in Writ Appeal Nos.165/2018
and 166/2018. We have also heard Mr. K. N. Choudhury, learned senior counsel
assisted by Mr. T. Chakraborty, learned counsel appearing for the respondents/writ
petitioners in all the three Writ Appeals.
2. These three intra-court appeals arise out of the common judgment and order
dated 26.04.2018 passed by the learned Single Judge in WP(C) No.1149/2018
involving common question of law and facts and therefore, these appeals are being
disposed of by a common order. The facts and circumstances, giving rise to the filing
of these Writ Appeals are briefly narrated here-in-below.
3. The respondent No.1 viz., Assam Civil Service Officers Association, which is an
association of Assam Civil Service Officers, along with its General Secretary, had
instituted WP(C) No.1149/2018 being aggrieved by the decision of the Government of
Assam to recommend the names of 10 officers belonging to the non-State Civil
Service (SCS) category, for nomination to the Indian Administrative Service (IAS) by
contending that the recommendations are in complete violation of the norms as well
as the provisions of the rules. As per the case projected by the writ petitioners, on
28.02.2017 the Secretary to the Government of Assam, Personal (A) Department had
Page No.# 10/28
issued a communication addressed to all the Additional Chief Secretaries, Principal
Secretaries as well as the Commissioner and Secretaries to the Government of Assam,
requesting each of them to forward names of not more than two officers for
appointment to the IAS as per regulation 4 of the IAS (Appointment by Selection)
Regulation, 1997. Pursuant to the communication dated 28.02.2017 names were
forwarded, whereafter a Screening Committee/Selection Committee, headed by the
Chief Secretary, Assam, as its Chairman, constituted for the purpose of selecting and
recommending the candidates, had considered the names of 15 non-SCS officers
and thereafter, recommended the names of as many as 10 officers including the
private respondent Nos.8 and 9 in the writ petition. Thereafter, on 27.10.2017, the
Secretary to the Government of Assam, Personal (A) Department had issued a
notification notifying as many as eight (8) different posts in the non-SCS cadre officers
declaring them to be equivalent to the rank of Deputy Collector of the State Civil
Service. Being inter-alia aggrieved by the minutes of meeting of selection committee
dated 18.09.2017 as well as the equivalence notification dated 27.10.2017, the
Association of Civil Service Officers of the State, along with its General Secretary, had
approached this Court by filing WP(C) No.1149/2018.
4. The primary contention of the writ petitioners, reduced to its essence, are as
follows. Firstly, the private respondents, who were recommended for nomination to
IAS, did not hold posts equivalent to Deputy Collector in the State Civil Service, as is
required under regulation 4(1)(iii) of the Indian Administrative Service (Appointment
by Selection) Regulations, 1997 and as such, none of them could have been
recommended by the Selection Committee for nomination/appointment to the IAS
Page No.# 11/28
cadre. Secondly, the recommendations of the DPC having been made on 18.09.2017
i.e. prior to declaration of the equivalence of the posts on 27.10.2017 and there being
no corresponding amendment to Schedule-I of Assam Civil Service Rules, 1998, such
recommendations were invalid in the eyes of law. To that extent, the notification
dated 27.10.2017 has also been put under challenge in the Writ Petition. Thirdly, the
total number of vacancies being 7 (seven) and in view of Rule 8 of the Indian
Administrative Service (Recruitment) Rules, 1954 not more than 15% of the vacancies
could have been reserved for non-SCS category officers, meaning thereby that not
more than 1 (one) post could have been filled up by nominating any officer from the
non-SCS category. As such, by filling up two vacancies from the officers belonging to
the non-SCS category, the respondents have acted without jurisdiction. It is also the
case of the writ petitioners that none of the officers from the non-SCS category,
recommended by the selection committee vide its resolution dated 18.09.2017, had
rendered 8 (eight) years of service in the relevant post which was a mandatory
requirement of the Rules. On such count the petitioners have sought interference not
only with the minutes of the selection committee dated 18.09.2017 but also the
equivalence notification dated 27.10.2017.
5. On 28.02.2018 the learned Single Judge, while issuing notice to the
respondents in the writ petition, had passed an interim order, the operative part of
which is reproduced herein below for ready reference :-
"7. In the interim, the upgradation of the private respondents to the IAS
should not be made, if the equivalent of their post declared later under the
notification dated 27.10.2017 (Annexure-7)"
Page No.# 12/28
6. It appears that notwithstanding the interim order dated 28.02.2018, the
respondent Nos.8 and 9 in the writ petition, viz., Smti. Manjula Saikia Bhuyan and Sri
Rakesh Agarwala respectively, were nominated to the IAS cadre.
7. The respondents in the writ petition, had questioned the maintainability of the
writ petition by contending that in view of the decision of the Hon'ble Supreme Court
rendered in the case of L. Chandra Kumar Vs. Union of India and others reported in
(1997)3 SCC 261 as well as the decision of this Court in the case of Tajuk Charu Vs.
Union of India and others reported in 2015 (1) GLT 588 it was incumbent upon the writ
petitioners to approach the Central Administrative Tribunal (CAT for short) before
approaching the High Court. As such, the writ petition was not maintainable. The
learned counsel for the respondent Nos.8 and 9 had also questioned the locus standi
of the petitioners to challenge the selection and/or nomination of his clients to the IAS
on the ground that the writ petitioners were not the aggrieved persons due to the
appointment of the respondent Nos.8 and 9 to the IAS cadre and hence, did not
have the locus to institute the writ petition.
8. After hearing the submissions advanced by learned counsel for both the sides
and after discussing the propositions of law, as cited at the Bar, the learned Single
Judge had passed order dated 26.04.2018 holding that the writ petition was
maintainable. The relevant findings and observations of the learned Single Judge, on
the point of maintainability of the writ petition, are reflected in paragraph Nos.18 and
19 of the order dated 26.04.2018, are reproduced herein below for ready reference :-
"18. Let us now examine whether the writ court should entertain this case or
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whether the CAT is the only forum available for the aggrieved party. In L.
Chandra Kumar Vs. Union of India reported in (1997)3 SCC 261, the Supreme
Court even while declaring that the Tribunals will act as the Court of first
instance in respect of areas of law for which they have been constituted,
unequivocally declared that the Tribunals cannot act as substitute for the High
Courts or the Supreme Court. It was also held that the power of juridical review
over legislative action, is an integral and essential feature of the Constitution.
19. On the issue of appropriate forum, it will bear repeatation that the key
challenge here is to the equivalence declaration to posts held by the private
respondents by the impugned notification dated 27.10.2017 (Annexure-7). The
post of Superintendent of Taxes, held by the respondent No.9, is governed by
the Assam Taxation Service Rules, 1995. Similarly, the Assam Industrial Service
Rules, 1997 covers the post of Joint Director of Industries and Commerce, held
by the respondent No.8. As can be seen, the posts which are equivalent to a
post in any other cadre, are included in the Schedule-I of the Assam Civil
Service Rules, 1998 and it is apparent that the two posts of the Non-SCS
category where the respondent Nos.8 and 9 have served, are not declared to
be equivalent to the post of Deputy Collector, in exercise of power under Rule
3(3) of the Assam Civil Service Rules, 1998. The concerned Service Rules
covering those posts held by the respondents, were made in exercise of
powers conferred by the proviso to Article 309 of the Constitution of India and
undoubtedly they are in the domain of legislative function of the State.
Therefore if any change is to be made to the concerned Service Rules, the role
of the State will surely be legislative in character. Logically therefore, even
under the ratio of L. Chandra Kumar (supra), the power of judicial review
vested in the High Court under Article 226 of the Constitution, over legislative
action of the State, cannot in my considered assessment, be ousted in this
matter."
9. Having held as above, the learned Single Judge went on to make the
Page No.# 14/28
following observations in paragraph 21 of the impugned order, which are as follows :-
"21. The adjudication on disputes which arise out of exercise of power by the
State in the legislative domain relating to changes in the Service Rules framed
under the proviso to Article 309, should best be decided by the High Court.
Even in matters pertaining to recruitment to All India Service, where the Central
Administrative Tribunal is otherwise competent to exercise jurisdiction under
Section 14 of the Tribunals Act, 1985, the assumption of jurisdiction by the
Tribunal will have to be preceded by certain acts to be done by the State
Government. If those very acts of the State Government in the domain of the
legislative function, bring an undeserving Non-SCS incumbent, to the arena of
recruitment to the All India Service and the aggrieved party challenges the
State's action, the writ court in my considered opinion, would surely be the
better forum to adjudicate on the issue."
10. The learned Single Judge was, therefore, of the view that availability of
alternative remedy is a rule of discretion and not one of compulsion and as such, in
an appropriate case, even when alternative remedy or forum is available, the writ
court may exercise its discretionary jurisdiction of judicial review if the contingencies
laid down by the Supreme Court in the case of M. P. State Agro Industries
Development Corporation Ltd. Vs. Jahan Khan reported in (2007)10 SCC 88 are
available.
11. On the question of validity of the process of recommendation and short listing
of the 10 officers for nomination to IAS as well as the publication of the equivalence
declaration notification dated 27.10.2017, the learned Single Judge had found the
process to be seriously flawed on the face of the record and hence, had issued a
direction to the State to respond to the facets of the challenge in the writ petition by
Page No.# 15/28
filing counter-affidavit within four weeks. By the impugned order dated 26.04.2018,
the learned Single Judge has also declined the prayer made by the respondent Nos.8
and 9 in the writ petition to vacate the interim order dated 28.02.2018.
12. Assailing the impugned order dated 26.04.2018 Mr. D. Saikia, learned
Advocate General, Assam has argued that in L. Chandra Kumar (supra) it was held
that in service matters, only the Tribunal would have the jurisdiction and power to
entertain the matter and therefore, it would not be open for the litigants to directly
approach the High Court by invoking the jurisdiction under Article 226 of the
Constitution. Mr. Saikia submits that such restriction laid down by the Apex Court
would include even those cases where the vires of legislation are under challenge.
13. Referring to the decision of this Court in the case of Tajuk Charu (supra) Mr.
Saikia has argued that in the said decision, in a similar fact situation pertaining to
selection and recommendation of suitable candidates from the non-SCS category for
nomination to IAS, the learned Single Judge had refused to entertain the challenge
made by an unsuccessful candidate by accepting the objection that after the
decision of the Supreme Court in the case of L. Chandra Kumar (supra), a writ petition
would not be maintainable and accordingly, the petitioner was asked to seek
remedy before the CAT. Mr. Saikia therefore, submits that the decision of the
coordinate Bench in Tajuk Charu (supra) was binding upon the learned Single Judge
in this case. Notwithstanding the same, the learned Single Judge has not followed the
said decision without assigning proper reasons and has erroneously held the writ
petition to be maintainable.
Page No.# 16/28
14. Mr. Saikia has further submitted that the respondent Nos.8 and 9 have not only
been nominated to the IAS during the pendency of the writ petition but they have
also retired from service on attaining the age of superannuation. As such, save and
except the issue of validity of the equivalence declaration notification dated
27.10.2017, no other live issue survives in the writ petition. Contending that if the
petitioners confine their challenge in the writ petition only to the question of legality
and validity of the equivalence declaring notification dated 27.10.2017, then in that
event, the State would not have any objection as to the maintainability of the writ
petition.
15. Mr. Saikia further submits that the learned Single Judge has recorded
elaborate findings on the merit of the claim of the writ petitioners thus, virtually
deciding the writ petition on merits even before the respondents could file their
counter-affidavits. As such, the impugned order is liable to be set aside on such count
as well.
16. Mr. D. Das, learned senior counsel appearing for the appellants in Writ Appeal
Nos.165/2018 and 166/2018 preferred by respondent Nos.8 and 9 in the writ petition,
respectively, has more or less supported the stand of the State in the matter and has
also forcefully assailed the maintainability of the writ petition on similar grounds as
urged by the learned Advocate General, Assam. In addition to the above, Mr. Das
has also questioned the locus standi of the writ petitioners to file the writ petition by
contending that the petitioners are not the aggrieved persons in these matters and
therefore, they had no locus standi to approach the court by filing the writ petition. In
Page No.# 17/28
support of his arguments Mr. Das has relied upon the decision rendered in the case of
Rajeev Kumar and another Vs. Hemraj Singh Chauhan and others reported in (2010)4
SCC 554 and the decision of the Bombay High Court in the case of Gaurav Ganesh
Das Daga and others Vs. Maharashtra Public Service Commission and another
reported in 2022 SCC OnLine Bom 476 to submit that viewed from any angle, the writ
petition was not maintainable in the eyes of law. As such, the impugned order dated
26.04.2018 is unsustainable in law and hence, liable to be set aside by this Court.
17. Mr. K. N. Choudhury, learned senior counsel appearing for the writ
petitioners/respondent Nos.1 and 2, on the other hand, has opposed the submissions
of the appellants' counsel, by contending that the learned Single Judge has
recorded adequate and sufficient reasons in the impugned order dated 26.04.2018
so as to justify the order holding the writ petition to be maintainable. According to Mr.
Choudhury, the reasons recorded in the impugned order do not call for any
interference by this Court. On the question of findings recorded in the impugned
order, touching upon the merit of the case, Mr. Choudhury has argued that those
findings are tentative in nature and have been recorded merely for the purpose of
deciding the issue of maintainability of the writ petition. However, he would not have
any objection if this Court clarifies that any findings recorded in the impugned order
dated 26.04.2018 on the merit of the case would not have any bearing in the
outcome of the writ petition at the stage of final hearing.
18. We have considered the submissions advanced by learned counsel for both
the sides and have meticulously gone through the materials available on record.
Page No.# 18/28
19. As noted above, the impugned order dated 26.04.2018 has been assailed by
the Writ Appellants primarily on the ground that in view of the decision of the
Supreme Court rendered in the case of L. Chandra Kumar (supra) the Writ Petition
was not maintainable. That apart, the appellants in Writ Appeal Nos.165/2018 and
166/2018 have also urged that the petitioner association did not have the locus to
maintain the writ petition. Since the issues raised in all the three appeals are basically
on the point of maintainability of the writ petition, we make it clear that our
determination in this order would also be confined only to the questions raised in
these appeals and no further.
20. The Administrative Tribunals Act, 1985 (hereinafter the Act of 1985) provides for
setting up of Central Administrative Tribunal (CAT). Section 14 of the Act of 1985 lays
down the jurisdiction, power and authority of Central Administrative Tribunal. For the
sake of ready reference, Section 14 is reproduced herein below :-
"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 1***) 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
Page No.# 19/28
person referred to in clause (c)] 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 2[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.]
(2) The Central Government may, by notification, apply with effect from
such date as may be specified in the notification the provisions of sub-
section (3) to local or other authorities within the territory of India or under the
control of the Government of India and to corporations 2[or societies] owned
or controlled by Government, not being a local or other authority or
corporation [or society] controlled or owned by a State Government:
Provided that if the Central Government considers it expedient so to do
for the purpose of facilitating transition to the scheme as envisaged by this Act,
different dates may be so specified under this sub-section in respect of
Page No.# 20/28
different classes of, or different categories under any class of, local or other
authorities or corporations 2[or societies].
(3) Save as otherwise expressly provided in this Act, the Central
Administrative Tribunal shall also exercise, on and from the date with effect
from which the provisions of this sub-section apply to any local or other
authority or corporation [or society], all the jurisdiction, powers and authority
exercisable immediately before that date by all courts (except the Supreme
Court) in relation to--
(a) recruitment, and matters concerning recruitment, to any service or
post in connection with the affairs of such local or other authority or
corporation 4[or society]; and
(b) all service matters concerning a person [other than a person referred
to in clause (a) or clause (b) of sub-section (1)] appointed to any
service or post in connection with the affairs of such local or other
authority or corporation 4[or society] and pertaining to the service of
such person in connection with such affairs."
21. In L. Chandra Kumar (supra) the Supreme Court had the occasion to examine
the doctrine of basic structure of the Constitution, as propounded in Kesavananda
Bharati Vs. State of Kerala reported in (1973) 4 SCC 225. While examining the scope of
power of judicial review of the High Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution of India, in L. Chandra Kumar's case the Supreme
Court had also dealt with the question as to whether, the High Courts should entertain
matters coming within the domain of the CAT. While clarifying that the Tribunals
constituted as per the provisions of Articles 323-A(2)(d) and 323-B(3)(d) will have the
power to entertain all matters for the purpose of which the Tribunals were created,
Page No.# 21/28
including the power to test the vires of subordinate legislation and Rules, save and
except entertaining any question regarding the vires of the parent statute, it was held
that the Tribunals will continue to act as the only court of first instance in respect of
areas of law for which they have been constituted. It was further clarified that the
consequence of the observations made in the decision would mean that it would not
be open for the litigants to directly approach the High Courts even in cases where
any question of vires of statutory legislation, except the exceptions mentioned in the
decision, is under challenge, by overlooking the jurisdiction of the Tribunal concerned.
The Supreme Court has, however, emphatically held in paragraph 99 that the
jurisdiction conferred upon the High Court under Articles 226/227 of the Constitution
and upon the Supreme Court under Article 32 of the Constitution were a part of the
invoiable basic structure of our Constitution. It was further observed that while the
jurisdiction conferred upon the High Courts and the Supreme Court cannot be
ousted, the other Courts and Tribunals may perform a supplementary role in
discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The
observations made by the Supreme Court in paragraph 99 of L. Chandra Kumar
(supra) would be relevant in this case and, therefore, those are reproduced herein
below for ready reference :-
"99. In view of the reasoning adopted by us, we hold that Clause 2(d)
of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the
jurisdiction of the High Courts and the Supreme Court under Articles 226/227
and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the
"exclusion of jurisdiction" clauses in all other legislations enacted under the
aegis of Articles 323A and 323B would, to the same extent, be unconstitutional.
Page No.# 22/28
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 legislations (except where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of the concerned
Tribunal. Section 5(6) of the Act is valid and constitutional and is to be
interpreted in the manner we have indicated."
22. A careful reading of the decision of the Supreme Court rendered in the case
of L. Chandra Kumar (supra) would go to show that the observations made therein,
pertaining to the jurisdiction of the Tribunals to act as the Court of first instance with
regard to the areas of law for which they have been constituted, were driven more
out of concern for heavy pendency of cases in the High Courts and in view of the
theory of alternative institutional mechanism, as propounded in the case of S. P.
Sampat Kumar Vs. Union of India and others reported in (1987) 1 SCC 124 rather to
exclude the jurisdiction of the constitutional courts to entertain such disputes. It also
appears from the observations made in L. Chandra Kumar's case that the Supreme
Court was anxious about preserving the conferment of powers on the Tribunals,
Page No.# 23/28
keeping in mind the unprecedented docket explosions in the superior Courts rather
than to oust the jurisdiction of the High Court under Article 226 and accordingly, had
emphasized on the need to adopt the theory of alternative institutional mechanism,
as highlighted in the case of S. P.Sampat Kumar(supra). In L. Chandra Kumar (supra)
there is no finding or observations of the Apex Court indicating complete ouster of
jurisdiction of the High Court in matters where the Tribunals were also empowered to
entertain the dispute. On the contrary, the Supreme Court has observed that the
Tribunals cannot act as substitute for the High Courts or the Supreme Court. In the
case of L. Chandra Kumar (supra) the Supreme Court has categorically held that
there was no exclusion of jurisdiction of the High Courts and the Supreme Court.
23. L. Chandra Kumar, undoubtedly, emphasizes on the need for the litigants to
first approach the CAT as the court of first instance, if the dispute is one which comes
within the ambit of law for which the Tribunals are created and to that extent, it
would be perfectly justified for the High Courts to refuse to entertain such a dispute in
exercise of powers conferred under Article 226. However, such an approach of the
High Court cannot be interpreted to altogether exclude the jurisdiction of the High
Court to entertain the dispute. 24. Not entertaining a writ petition under Article 226 of
the Constitution in view of availability of alternative remedy is not a rule of law
but a rule of prudence and would depend on the facts and circumstances of each
case. The ratio laid down in the decision of L. Chandra Kumar (supra), therefore, must
be understood to be one wherein, it has been provided that under ordinary
circumstances it is the Tribunal constituted under the statute which will be the court of
first instance to entertain a dispute falling within the area of law for which the Tribunal
Page No.# 24/28
has been constituted. The question arising in these appeals, however, would be as to
whether, in view of the decisions in L. Chandra Kumar's case, there is complete ouster
of jurisdiction of the High Court to entertain such a dispute. The answer to the said
question, in our considered opinion, has to be in the negative. This we say so in view
of the categorical observations made in paragraph 99 of L. Chandra Kumar (supra).
25. Examining the legality and validity of exercise of power by the executive
would lie within the realm of administrative law. Law is well settled that exercise of
executive power of the State within the domain of Article 162 of the Constitution of
India would be amenable to judicial review by the constitutional courts.
26. Law is equally settled that by issuing office orders/memorandums/ executive
instructions, the executive power of the State cannot be exercised to supplant any
statutory provision but the same can only be used to supplement the statute/rule.
Such orders/ memorandums/executive instructions can also not be issued in
contravention of the statutory rules. [See : Union of India v. Majji Jangamayya [(1977)
1 SCC 606], P.D. Agarwal v. State of U.P. [(1987) 3 SCC 622], Paluru Ramkrishnaiah v.
Union of India [(1989) 2 SCC 541], C. Rangaswamaiah v. Karnataka Lokayukta [(1998)
6 SCC 66]. While exercising the power of judicial review in such matters, the judiciary is
expected to act as the sentinel in qui vive.
27. In the case of State of Bihar and 0thers vs. Subhash Singh reported in (1997) 4
SCC 430 the Supreme Court has observed that the power of judicial review of
administrative actions and also of legislation, is exercised against the action of State.
Since the State or public authorities act in exercise of their executive or legislative
Page No.# 25/28
power, they are amenable to judicial review. The State, therefore, is subject to etat
de droit i.e. the State is submitted to the law which implies that all actions of the State
or its authorities and officials must be carried out subject to the Constitution and
within the limits set by law i.e. constitutionalism.
28. In the present case, the writ petitioners have questioned not only the manner
in which the equivalence declaration notification was issued by the State
Government on 27.10.2017 without circulating the same in the official gazette but
also the manner in which the same was given effect to without amending the
Schedule-I of the Rules of 1998. The aforesaid aspects of challenge in the writ petition
lies in the realm of exercise of administrative and legislative powers of the State and
therefore, in our considered opinion, would raise legal issues which would
undoubtedly transcend beyond the contours of jurisdiction of the CAT, as conferred
under Section 14 of the Act of 1985. If the challenge to the notification dated
27.10.2017 succeeds on merit, then in that event, the same would, in all probability,
have a cascading effect on the other issues raised in the writ petition including the
question of validity of the recommendations of non-SCS category candidates, not
only in the recent past but also for future purposes. Therefore, the views expressed by
the learned Single Judge in paragraphs 18 and 19 of the impugned order dated
26.04.2018, holding the writ petition to be maintainable, appears to be a plausible
view. We are also of the prima-facie opinion that the core issues raised in the writ
petition would lie within the domain of the power of judicial review conferred on the
High Court under Article 226 of the Constitution of India. Therefore, the Writ Petition is
maintainable in the eyes of law.
Page No.# 26/28
29. In the case of Tajuk Charu (supra) relied upon by the appellants, an
unsuccessful candidate, whose name was not included in the list of short listed
candidates from the non-SCS category for nomination to IAS, had approached the
High Court by filing a writ petition raising a dispute which was purely a service matter.
On the face of objection raised by the counsel for the respondents regarding the
maintainability of the writ petition in the light of the decision rendered in the case of L.
Chandra Kumar (supra), the learned Single Judge had upheld the preliminary
objection of the respondents regarding the maintainability of the writ petition and
dismissed the same by giving liberty to the petitioner to approach the CAT in
accordance with law. After going through the decision in Tajuk Charu (supra) we are
of the opinion that although there is some similarity of some of the issues involved in
both the proceedings, yet, the facets of challenge in the instant writ petition lies in a
completely different compass, thus giving rise to dissimilar questions of law and facts.
As such, we find that the decision rendered in the case of Tajuk Charu (supra) is
distinguishable on facts.
30. In so far as the plea of locus standi of the petitioners to institute the writ petition
is concerned, we find that although the learned counsel for the appellants in Writ
Appeal Nos.165/2018 and 166/2018 had specifically raised the said plea before the
learned Single Judge, no finding on the above issue has been recorded in the
impugned order dated 26.04.2018. Since the writ petition is still pending and a
question on the above point has been raised, it would be incumbent upon the
learned Single Judge to decide the question of locus standi of the petitioners at an
appropriate stage. Therefore, we find force in the submission of learned counsel for
Page No.# 27/28
the appellants that a direction to that effect is called for from this Court.
31. We have also taken note of the submissions of Mr. Saikia that the writ
appellants/respondents in the writ petition are yet to file counter affidavit in the writ
petition. Notwithstanding the same, the learned Single Judge has made observations
in the impugned order dated 26.04.2018 touching upon the merit of the case which
deserves to be set-aside by this Court. We find ourselves in agreement with such
submission of the learned counsel for the appellants. Since the writ petition is pending
disposal on merit, any finding and/or observation recorded in the impugned order
dated 26.04.2018 touching upon the merit of the case would cause undue prejudice
to the interest of the parties at the stage of final hearing and therefore, would be
uncalled for.
32. For the reasons stated herein above, we affirm the impugned order dated
26.04.2018 passed by the learned Single Judge, in so far as the maintainability of the
writ petition, despite availability of alternative remedy is concerned. We, accordingly,
request the learned Single Judge to expeditiously decide the writ petition on merit by
considering all the legal objections and/or pleas raised by both the sides, including
the questions of locus standi of the writ petitioners. We also make it clear that the
observations recorded by the learned Single Judge in the impugned order dated
26.04.2018 shall be treated to be of prima facie nature, meant only for the limited
purpose of considering the objections pertaining to maintainability of the writ petition
and the same shall not have any bearing at the stage of final hearing of the writ
petition.
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With the above observations, all the three Writ Appeals stand disposed of.
Parties to bear their own costs.
JUDGE CHIEF JUSTICE
T U Choudhury/Sr. PS
Comparing Assistant
