Jharkhand High Court
Avinash Kumar vs Union Public Service Commission on 5 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3429 OF 2023
Avinash Kumar ... ... ... Petitioner
VERSUS
1. Union Public Service Commission, through its Chairman, having its
office at Dholpur House, Bahadur Shah Jafar Marg, New Delhi.
2. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Project Bhawan, Dhurwa, Ranchi
3. The Principal Secretary, Department of Home, Prison & Disaster
Management, Government of Jharkhand, Project Bhawan, Dhurwa,
Ranchi.
4. Director General of Police, Jharkhand Police Headquarter, Police
Headquarter, Dhurwa, Ranchi.
5. Manish Toppo, presently posted as Sr. Dy. S.P., Special Branch (SIB),
Dhurwa, Ranchi
6. Kailash Karmali, presently posted as Sr. Dy. S.P., Head Quarter, Latehar,
Jharkhand.
7. Pitambar Singh Kherwar, at present posted as Sr. Dy. S.P. - cum - Sub
Divisional Police Officer, Nirsa, Dhanbad, Jharkhand.
... ... ... Respondents
CORAM : HON'BLE DR JUSTICE S.N. PATHAK
For the Petitioner : Mr. Ajit Kumar, Sr. Advocate
Ms. Aprajita Bhardwaj, Advocate
Ms. Tanya Singh, Advocate
For the Respondents : Mr. Rajiv Ranjan, AG
Mr. Gaurav Abhishek, AC to AG
Mr. Shray Mishra, AC to AG
For the UOI` : Mr. Shiv Kumar Sharma, CGC
For the UPSC : Mr. Faiz Ur Rahman, Advocate
04/05.09.2023 Heard.
2. Petitioner has approached this Court with a prayer for calling
upon the relevant records of the present case by which a provisional
recommendation/ select list has been made by the UPSC for
consideration of State Cadre Police Officers of the State of Jharkhand
into the rank of IPOS Cadre in the year 2000 (meeting held on
19.06.2023) which does not include name of the petitioner. Further
prayer has been made for a direction upon the respondent nos. 2 and 3
RC/
to resend name of the petitioner with all his up-to-date service records
including the Annual Confidential Reports to the respondent no. 1 -
UPSC as per the Indian Police Service (Appointment by Promotion)
Regulations, 1955, which has not been done earlier by the respondent
nos. 2 and 3 and consequent thereto direct the UPSC to reconsider
case of the petitioner for inclusion of his name for IPS Cadre on the
basis of fresh/ up-to-date documents forwarded by the State of
Jharkhand under the provisions of the relevant Regulation for the year
2020 (meeting held on 19.06.2023).
3. According to the petitioner, he qualified the examination
conducted by the JPSC and was appointed in the year 2010 in the
State Police Service and joined as a Trainee in Police Training Centre,
Hazaribagh. After remaining for a while, he was also sent for district
training at Seraikella Kharsawan. After completing training, petitioner
was posted as Dy. S.P. at Jharkhand Jaguar (Special Task Force) and
thereafter variously posted in different places. Pursuant to the
notification no. 12/P-1004/2019, dated 08.07.2022, issued by the
Department of Home, Prison and Disaster Management, Government
of Jharkhand, petitioner was promoted to the category of Senior
Deputy Superintendent of Police with effect from 14.12.2020
whereby and whereunder his basic pay was increased to Rs.15,600 -
39,000 and grade pay to Rs.6,600. There was no complaint against the
petitioner from any corner and no adverse remark was ever
communicated to him. Pursuant to the letter no. 13/P 101/2021 - 435,
dated 06.02.2023, the name of the petitioner was also considered by
the Department of Home, Prison and Disaster Manager, Government
of Jharkhand for promotion of the petitioner from the State Police
Service to Indian Police Service. The decision of the Department is
also apparent from the Memo No. 169/G, dated 08.02.2023, issued
from the office of the Director General of Police and Inspector
General of Police.
4. It is further case of the petitioner that the Ministry of Home
Affairs, Government of India determined the vacancies for different
RC/
years for appointment by promotion of State Police Officers of
Jharkhand to the Indian Police Service of Jharkhand Cadre and
furthermore, directed the State Government and Union Public Service
Commission to take further necessary action as required under the IPS
(Appointment by Promotion) Regulation, 1955.
5. It is case of the petitioner that his entire service record has been
assessed to be "Excellent" throughout his tenure and it was only for
the period 17.10.2019 to 31.03.2020, his service was placed in the
category of "Good" but that too was later on converted to Excellent
vide order dated 29.03.2023, which is apparent from Annexure-3 to
the writ petition. However, during the process of consideration of
names at the end of respondent State authorities, the said fact could
not be considered and ignored leading to disqualification. It is case of
the petitioner that he cannot be held liable for writing and review of
his ACR and without any rational basis, he cannot be put to a
disadvantageous position despite having all requisite qualification and
eligibility criteria for promotion. Petitioner has come to know that
despite his seniority and having an Excellent service record, his name
has not been given place in the provisional select list of the officers
whose names have been considered for being promoted to the Indian
Police Service. Furthermore, ignoring his seniority, three officers
whose names stand below name of the petitioner at Sl. Nos. 27, 28
and 29 respectively, have been included in the provisional select list
of the UPSC, which has been forwarded to the State Government for
procuring their affidavits for the purpose of finalizing the final select
list of recommendations. Petitioner has further come to know that
vide memo no. 2850, dated 26/27.06.2023, the Additional Secretary
to the Department of Home, Prison and Disaster Management,
Government of Jharkhand has communicated with 24 candidates
included in the provisional select list of the UPSC to submit an
affidavit with regard to Rule 6 of the Regulations by 30.06.2023. This
further fortifies his apprehension that his name has been excluded
from the provisional select list without any basis and reasons denying
RC/
his legitimate right to be considered for promotion inspite of being
fully eligible and competent as per the Regulations.
6. It is case of the opetitoner that his name appears at serial no. 26
of the memo no. 169/G dated 08.02.2023, issued by the office of the
Director General of Police and Inspector General of Police, which has
formed basis of consideration of his promotion. Petitioner being fully
eligible, should be considered for promotion to Indian Police Service.
However, in an arbitrary and unreasonable manner, ignoring his
seniority, the name of officers placed below him in the seniority list,
have been included in the provisional select list communicated by the
UPSC to the State Government. As soon as petitioner came to know
that his name has been excluded from the provisional select list, he
immediately represented before the respondent nos. 1, 2, 3 and 4 on
03.07.2023 with relevant documents, however no heed has been paid
to the same. Since name of the Dy. S.P. who were found fit for
promotion for IPS Cadre were recommended and petitioner claiming
to be senior to them, did not find place in the recommended list, was
aggrieved and also as his representation regarding fresh consideration
has not been considered, he has been constrained to knock door of
this Court by way of instant writ petition.
7. Mr. Ajit Kumar, learned Sr. Counsel appearing on behalf of the
petitioner assisted by Ms. Aprajita Bhardwaj and Ms. Tanya Singh
strenuously argues that the respondents are duty bound to consider
case of the petitioner since his representation after review has not
been taken care of and considered by the respondents. Learned Sr.
Counsel further submits that marks in case of the petitioner, is much
better than the respondents which comes from the review order.
Learned Sr. Counsel before arguing on the point of maintainability
submits that the process of the select list started in the year February,
2023, the vacancies were carved out by the Central Government. In
the seniority list the private respondents are junior to the petitioner.
The marks of the petitioner, though the same has been changed after
review, ought to have been considered by the respondents. It has
RC/
further been argued that only provisional select list has been sent and
the final select list is yet to be prepared and as such the basic
grievance of the petitioner is against the State and the issue for
consideration is "Whether it is incumbent on the State Government to
send the review proceeding/ remarks for consideration and
appreciation by the Central Government/ UPSC?". It has further been
argued that petitioner has represented before the State and the Union
Public Service Commission. Drawing attention of the Court towards
Article 243A of the Constitution of India and Sections 14 and 19 of
the Administrative Tribunal Act, 1985, the learned Sr. Counsel
submits that there is no bar for the High Court to consider case of the
petitioner and issue directions to the State. Learned Sr. Counsel
vociferously argues that on the point of maintainability also the writ
petition is fully maintainable and the Judgment rendered by this Court
in the case of Vinay Kumar Pandey Vs. State of Jharkhand and 8
others reported in 2003(4) JLJR 382 does not come as an obstacle
and is not a law laid down as the same is per incuriam. Learned Sr.
Counsel further submits that even the Judgment of this Court passed
in the case of Shiv Kumar Ram Vs. The State of Jharkhand and
others [W.P.(S) No. 3486 of 2016] is also per incuriam and in no way
come to the rescue of the respondents. Learned Sr. Counsel further
submits that Section 2F of the Tribunal Act has not been considered
which talks of the recruitment. Learned Sr. Counsel in furtherance of
his arguments refers to Clause 5(iii) and 5(iv) as well as Clauses 6
and 9 and submits that it is exclusive duty of the State. Further
reference has also been made to Clauses 8.1 and 8.2 of the
Administrative Tribunal Act. It has further been argued that it is
apprehension of the petitioner that his name has been excluded from
the provisional select list without any basis and reason denying
legitimate rights to be considered for promotion in spite of being fully
eligible and competent as per the Regulation whereas name of juniors
to him have been considered and their names have been sent for
consideration for IPS Cadre.
RC/
8. Learned Sr. Counsel emphatically argues that when the matter
has not yet been finalized and final select list has not been published
and notified, petitioner is still in the cadre of the State and jurisdiction
lies before this High Court and not before the Central Administrative
Tribunal. It is a fit case in which this Court sitting under Article 226
of the Constitution of India, can interfere and stay the final
publication of the select list till case of the petitioner regarding review
is considered by the Central Government as well as the UPSC in
preparation of the select list.
9. Learned Sr. Counsel further places heavy reliance on
paragraphs-19 and 20 the Judgment passed in the case of The
Chairman, Railway, Recruitment Board, Madras Vs. S. Ruban
Peter and others reported in 1990 SCC OnLine Mad 862, which
reads as under:
"19. This section on its plain reading provides that a
person aggrieved by an order made by the Government
or a local or other authority or under the control of the
Government of India or by any corporation owned or
controlled by the Government or by an officer committee
or other body or agency of the Government or a local or
other authority or corporation owned or controlled by the
Government pertaining to any service matter within the
jurisdiction of the Tribunal, may make an application to
the tribunal for redressal of his grievance. The expression
"person aggrieved occurring in Section 19 Of the Act
implies any such person who is already in service and
whose rights have been violated by an order pertaining to
any matter within the jurisdiction of the tribunal. A
person who is not 'in-service' cannot be said to be a
'person aggrieved' within the meaning of Section 19 of
the Act. A person can be said to be 'aggrieved' only if he
has suffered a legal grievance in the sense that his
interest, recognized by law, has been directly and
prejudicially affected. A person who is disappointed only
of a benefit which he might have received if the order had
been made differently, unless the denial of the benefit
violates his legal right or infringes some interest inhering
in him, cannot be called an 'aggrieved person'.
20. Undoubtedly a person who is not in service cannot
be said to be an 'aggrieved person' under S. 19. Inviting
applications for a post does not by itself create any right
to the post in any candidates who in response to the
advertisement makes an application. He only offers
RC/
himself to be considered for the post. It does not create
any right in the candidate to the post. Even the
prerecruitment formalities, such as medical examination,
direction to deposit some money as security, does not
amount to a promise to appoint the applicant. Mere
expectancy of being taken in service or the pre-
recruitment formalities having been gone through, does
not create any promise which the employer would be
estopped from ignoring. Of course, in public service, a
candidate who is otherwise fit able and appropriate
person for appointment, should not be ignored on any
extraneous consideration; but at the same time, he or she
cannot claim that he or she has acquired some right to be
appointed to the post for which he or she is a candidate
just because he or she had applied for the post and had
even gone through the prerecruitment formalities. No
such candidate can approach the tribunal for redressal of
any grievance and for such a person the invoking of the
jurisdiction under Arts. 226/227 of the Constitution has
not been excluded. It would also be relevant in this
connection to take notice of the application form as
prescribed under the Act to raise a dispute before the
Tribunal."
10. Mr. Rajiv Ranjan, learned Advocate General assisted by Mr.
Gaurav Abhishek and Mr. Shray Mishra appearing on behalf of the
State vehemently opposes contention of learned Sr. Counsel
appearing on behalf of the petitioner and raises preliminary objection
on the point of maintainability. Learned Advocate General, at the very
outset submits that the issues involved in the present writ petition is
no more resintegra and in plethora of Judgments it has already been
decided that at such stage, the writ petition regarding selection list/
promotion to the post of IPS Cadre by way of Appointment
Regulation 1955 is not maintainable rather the remedy lies before the
Central Administrative Tribunal and the petitioner should have raised
his grievances by invoking jurisdiction of the Central Administrative
Tribunal by filing appropriate application. Learned Advocate General,
placing heavy reliance on the Judgment rendered by this Court in the
case of Vinay Kumar Pandey Vs. State of Jharkhand and 8 others
reported in 2003(4) JLJR 382 as also in the case of Shiv Kumar Ram
Vs. The State of Jharkhand and others [W.P.(S) No. 3486 of 2016],
RC/
submits that this Court placing heavy reliance on the celebrated
Judgment rendered in the case of L. Chandra Kumar Vs. Union of
India reported in (1997) 3 SCC 261, has clearly held that the writ
petition at this stage before invoking jurisdiction of Central
Administrative Tribunal is not maintainable. Learned Advocate
General referring to the Constitutional Amendment of 1976, Clauses
323A and 323B submits that the Administrative Tribunal Act came in
the year 1985 and Section 14 of the Act is very clear that it is also for
consideration concerning All India Service. It has further been argued
that Section 19 of the said Act does not oust the jurisdiction rather it
is the only jurisdiction of the Central Administrative Tribunal at this
stage. Referring to the case of L. Chandra Kumar (Supra) learned
Advocate General submits that much consideration has been shown
and the Hon'ble Apex Court taking into consideration every aspects
of the matter, has clearly held that the aspirants for promotion by way
of appointment under the Regulation 5 of the Act should, at the first
stage, approach before the Tribunal. Learned Advocate General
submits that the arguments advanced by learned Sr. Counsel is fit to
be turned down and not to be considered by this Court as whatever
has been argued and brought to the notice before this Court, is before
coming of the Act. Placing reliance on the Judgment of Hon'ble Apex
Court passed in the case of Kendriya Vidyalaya Sangathan and
another Vs. Subhas Sharma and another analogous cases reported in
(2002) 4 SCC 145, learned Advocate General submits that the Central
Administrative Tribunal has exclusive jurisdiction as the Court of first
instance in relation to service matters. Learned Advocate General
further submits that the prayer of the petitioner cannot be considered
by this Court as the writ petition itself is not maintainable and as such
it is fit to be quashed and to be rejected in limine as being not
maintainable. Similar writ petition filed by one Deepak Kumar Vs.
UPSC and others on the same and similar issue has already been
dismissed as withdrawn.
RC/
11. Mr. Shiv Kumar Sharma, learned counsel appearing on behalf
of the Union of India and Mr. Faiz Ur Rahman, learned counsel
appearing on behalf of the UPSC adopts the arguments advanced by
learned Advocate General and further submits that the writ petition is
not maintainable at this stage and petitioner should withdraw the same
and prefer appropriate application before the Central Administrative
Tribunal.
12. Having heard rival submission of the parties across the bar, this
Court is of the considered view that no interference is warranted in
the instant writ petition for the following facts and reasons:
i. Before entering into merits of the case, the preliminary
objection relating to maintainability of the writ petition before
the High Court has to be decided and to be considered "As to
whether in a situation when there is an alternative forum
available for redressal of the grievances i.e. Central
Administrative Tribunal, this Court can exercise its
jurisdiction under Article 226 of the Constitution of
India?".
ii. The issue fell for consideration before this Court in the case
of Vinay Kumar Pandey Vs. State of Jharkhand and 8 others
reported in 2003(4) JLJR 382 - 2003 SCC OnLine Jhar 745.
Para-7 to 11 of the said Judgment is relevant to be quoted
herein:
7. From the Indian Police Service
(Appointment by Promotion) Regulation, 1955, it
will be evident that the process of Appointment by
Promotion (Recruitment) starts from the stage of
Regulation 3, con stitution of the Committee to
make selec tion. As per Regulation 3, there should
be a Committee constituted for the State Cadre
under the Chairmanship of Commission and
members as made thereunder. Each such
Committee shall ordinarily meet every year to
prepare a list of members of the State Police
Service, as may be held by them to be suitable for
promotion to Indian Police Service, as per
Regulation 5. There fore, the question of
consideration by a Selection Committee comes
RC/
into play only after the constitution of the
Selection Com mittee. Once the Committee is
constituted, the first step taken for recruitment by
way of promotion to the Indian Police Service.
The jurisdiction, power and authority of the
Central Administrative Tribunal has been
enumerated under section 14, which shall exercise
all the jurisdiction, power and authority
exercisable immediately before the day the 'CAT
Act, 1985' came into effect in relation to
Recruitment and matters concerning Recruitment
to All India Service or to any Civil Services of the
Union of India or a Civil post under the Union of
India etc.
8. Thus, as prayer made by the petitioner is
concerning Recruitment to an All India Service,
the Central Administrative Tribunal has
jurisdiction to deal with the matter.
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 v. Union of India(1997) 3 SCC 261 : 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 respeclive
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.
10. For the reasons aforesaid, in stead of filing
a writ petition before a Sin gle Judge of this
Court, the petitioner should first move before the
Central Ad ministrative Tribunal. Thereafter, it is
al ways open to the aggrieved party to move
before the Division Bench of the High Court for
scrutiny of the order/judgment of the Central
Administrative Tribunal, as may be passed.
11. The writ petition stands disposed of with
aforesaid liberty to the petitioner."
iii. Similar issue fell for consideration before tis Court in the
case of of Shiv Kumar Ram Vs. The State of Jharkhand and
others [W.P.(S) No. 3486 of 2016] and this Court, considering
RC/
the celebrated Judgment of L. Chandra Kumar Vs. Union of
India reported in (1997) 3 SCC 261 and that of Vinay Kumar
Pandey (Supra), dismissed the writ petition with a direction to
approach the Tribunal.
iv. The Hon'ble Apex Court in the case of L. Chandra Kumar,
considering the matter on the jurisdictional powers of the
Tribunal, has held in para-93 and 99 as under:
"93. 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 set-
up, 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 High Court concerned 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 Tribunal concerned.
94. The directions issued by us in respect of making the
decisions of Tribunals amenable to scrutiny before a
Division Bench of the respective High Courts will,
however, come into effect prospectively i.e. will apply to
decisions rendered hereafter. To maintain the sanctity of
judicial proceedings, we have invoked the doctrine of
RC/
prospective overruling so as not to disturb the procedure
in relation to decisions already rendered.
95. We are also required to address the issue of the
competence of those who man the Tribunals and the
question of who is to exercise administrative supervision
over them. It has been urged that only those who have
had judicial experience should be appointed to such
Tribunals. In the case of Administrative Tribunals, it has
been pointed out that the Administrative Members who
have been appointed have little or no experience in
adjudicating such disputes; the Malimath Committee has
noted that at times IPS Officers have been appointed to
these Tribunals. It is stated that in the short tenures that
these Administrative Members are on the Tribunal, they
are unable to attain enough experience in adjudication
and in cases where they do acquire the ability, it is
invariably on the eve of the expiry of their tenures. For
these reasons, it has been urged that the appointment of
Administrative Members to Administrative Tribunals be
stopped. We find it difficult to accept such a contention. It
must be remembered that the setting up of these Tribunals
is founded on the premise that specialist bodies
comprising both trained administrators and those with
judicial experience would, by virtue of their specialised
knowledge, be better equipped to dispense speedy and
efficient justice. It was expected that a judicious mix of
Judicial Members and those with grassroot experience
would best serve this purpose. To hold that the Tribunal
should consist only of Judicial Members would attack the
primary basis of the theory pursuant to which they have
been constituted. Since the Selection Committee is now
headed by a Judge of the Supreme Court, nominated by
the Chief Justice of India, we have reason to believe that
the Committee would take care to ensure that
Administrative Members are chosen from amongst those
who have some background to deal with such cases.
96. It has been brought to our notice that one reason why
these Tribunals have been functioning inefficiently is
because there is no authority charged with supervising
and fulfilling their administrative requirements. To this
end, it is suggested that the Tribunals be made subject to
the supervisory jurisdiction of the High Courts within
whose territorial jurisdiction they fall. We are, however,
of the view that this may not be the best way of solving
the problem. We do not think that our constitutional
scheme requires that all adjudicatory bodies which fall
within the territorial jurisdiction of the High Courts
should be subject to their supervisory jurisdiction. If the
idea is to divest the High Courts of their onerous
burdens, then adding to their supervisory functions
RC/
cannot, in any manner, be of assistance to them. The
situation at present is that different Tribunals constituted
under different enactments are administered by different
administrative departments of the Central and the State
Governments. The problem is compounded by the fact
that some Tribunals have been created pursuant to
Central Legislations and some others have been created
by State Legislations. However, even in the case of
Tribunals created by parliamentary legislations, there is
no uniformity in administration. We are of the view that,
until a wholly independent agency for the administration
of all such Tribunals can be set up, it is desirable that all
such Tribunals should be, as far as possible, under a
single nodal ministry which will be in a position to
oversee the working of these Tribunals. For a number of
reasons that Ministry should appropriately be the
Ministry of Law. It would be open for the Ministry, in its
turn, to appoint an independent supervisory body to
oversee the working of the Tribunals. This will ensure
that if the President or Chairperson of the Tribunal is for
some reason unable to take sufficient interest in the
working of the Tribunal, the entire system will not
languish and the ultimate consumer of justice will not
suffer. The creation of a single umbrella organisation
will, in our view, remove many of the ills of the present
system. If the need arises, there can be separate umbrella
organisations at the Central and the State levels. Such a
supervisory authority must try to ensure that the
independence of the members of all such Tribunals is
maintained. To that extent, the procedure for the selection
of the members of the Tribunals, the manner in which
funds are allocated for the functioning of the Tribunals
and all other consequential details will have to be clearly
spelt out.
97. The suggestions that we have made in respect of
appointments to Tribunals and the supervision of their
administrative function need to be considered in detail by
those entrusted with the duty of formulating the policy in
this respect. That body will also have to take into
consideration the comments of expert bodies like the LCI
and the Malimath Committee in this regard. We,
therefore, recommend that the Union of India initiate
action in this behalf and after consulting all concerned,
place all these Tribunals under one single nodal
department, preferably the Legal Department.
98. Since we have analysed the issue of the constitutional
validity of Section 5(6) of the Act at length, we may now
pronounce our opinion on this aspect. Though the vires of
the provision was not in question in Dr Mahabal Ram
case [(1994) 2 SCC 401 : 1994 SCC (L&S) 642 : (1994)
RC/
27 ATC 97] , we believe that the approach adopted in
that case, the relevant portion of which has been
extracted in the first part of this judgment, is correct
since it harmoniously resolves the manner in which
Sections 5(2) and 5(6) can operate together. We wish to
make it clear that where a question involving the
interpretation of a statutory provision or rule in relation
to the Constitution arises for the consideration of a Single
Member Bench of the Administrative Tribunal, the
proviso to Section 5(6) will automatically apply and the
Chairman or the Member concerned shall refer the
matter to a Bench consisting of at least two Members, one
of whom must be a Judicial Member. This will ensure that
questions involving the vires of a statutory provision or
rule will never arise for adjudication before a Single
Member Bench or a Bench which does not consist of a
Judicial Member. So construed, Section 5(6) will no
longer be susceptible to charges of unconstitutionality.
99. In view of the reasoning adopted by us, we hold that
clause 2(d) of Article 323-A and clause 3(d) of Article
323-B, 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 323-A and 323-B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the
High Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the Constitution is a
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 323-A and Article 323-B 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 Tribunal concerned 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 Tribunal concerned. Section 5(6) of the
Act is valid and constitutional and is to be interpreted in
the manner we have indicated."
RC/
v. The arguments advanced by learned Sr. Counsel appearing
on behalf of the petitioner that since this Court while deciding
the issue in the case of Vinay Kumar Pandey (Supra) has not
considered the provisions of Section 2F as well as Clauses 4, 5
and 6 thereof and also that since the select list has not yet been
finalized, the jurisdiction lies with the High Court and not with
the Central Administrative Tribunal and the Judgment rendered
in the aforesaid case is per incurium, is totally misconceived
and not tenable in the eyes of law and fit to be rejected at this
stage. This Court, while rendering the Judgment in the case of
Vinay Kumar Pandey and that of Shiv Kumar Ram, has fully
considered every aspects of the matter and the jurisdiction and
the powers of the learned Tribunal and also that of the High
Court under Article 226 of the Constitution of India. The issue
which has been set at rest and is no more resintegra, cannot be
opened again.
vi. This Court as well as the Hon'ble Apex Court has clearly
held that the power is vested in the High Court to exercise
judicial superintendence over the decisions of all the Courts and
the Tribunals over the respective jurisdiction and amenable to
scrutiny by the Division Bench of the respective High Courts
under Articles 226 and 227 of the Constitution of India. It has
been further held that it will not be open for the litigants to
directly approach before the High Court even in cases where
the question of virus of legislative legislation except where the
legislation which created the particular Tribunal is challenged
by overlooking the jurisdiction of the Tribunal concerned.
vii. The same view has been reiterated in the case of Kendriya
Vidyalaya Sangathan and another Vs. Subhas Sharma and
another analogous cases reported in (2002) 4 SCC 145.
Reliance placed by learned Sr. Counsel appearing for the
RC/
petitioner in the case of The Chairman, Railway, Recruitment
Board, Madras Vs. S. Ruban Peter and others reported in
1990 SCC OnLine Mad 862, is of no help to him. The issue has
already been decided and now set at rest and needs no
interference by this Court.
13. This Court at this stage is not inclined to enter into merits of the
writ petition so far it relates to petitioner since it would prejudice
interest of the parties and influence the Court. The petitioner should
approach Central Administrative Tribunal at the first instance for
redressal of his grievance. In a similar case, vide order dated
12.07.2023, in the case of Deepak Kumar Vs. Union Public Service
Commission and others, this Court dismissed the writ petition with a
liberty to the petitioner to approach before the Central Administrative
Tribunal.
14. In view of aforesaid observations of the Hon'ble Apex Court as
well as of this Court and in the facts and circumstances of the case,
this Court is of the considered view that the writ petition is not
maintainable and fit to be rejected.
15. As a sequitur of the aforesaid rules, guidelines and judicial
pronouncements, this Court is not inclined to interfere in the writ
petition and as such the same is hereby dismissed. However, liberty is
granted to the petitioner to approach before the appropriate forum, if
so advised.
16. Pending Interlocutory Application also stands disposed of.
(Dr. S.N. Pathak, J.)
RC/
