Jharkhand High Court
Election Commission Of India Having Its ... vs Manjunath Bhajantri on 23 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.244 of 2024
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1. Election Commission of India having its Office at
Nirvachan Sadan, Ashoka Road, P.O.-Sansad Marg, P.S.-
Sansad Marg, New Delhi-110001.
2. The Principal Secretary, Election Commission of India
having its Office at Nirvachan Sadan, Ashoka Road, P.O.
& P.S.-Sansad Marg, New Delhi-110001.
3. The Chief Electoral Officer, Cabinet (Election)
Department, Jharkhand, Sector-2, Dhurwa, P.O. & P.S.-
Dhurwa, Dist - Ranchi, Ranchi, Jharkhand.
... ... Appellants
Versus
1. Manjunath Bhajantri, S/o Hanamantappa Bhajantri,
aged about 45 years, presently posted as Administrative
Officer, having Office at Swarnrekha Bahudyeshiya
Bhawan, Adityapur, PO & PS - Adityapur, Jamshedpur-
831013.
2. The State of Jharkhand through its Chief Secretary,
Project Building, Dhurwa, P.O. & P.S. - Dhurwa,
Ranchi. ... ... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Rajiv Sinha, Advocate
: Ms. Shreesha Sinha, Advocate
For the Resp. No.1 : Mr. Indrajit Sinha, Advocate
: Ms. Surabhi, Advocate
For the State : Mr. Sahbaj Akhtar, A.C. to AAG-III
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C.A.V. on 29.08.2024 Pronounced on 23/09/2024
Per Sujit Narayan Prasad, A.C.J.
I.A. No.4765 of 2024
1. The present Interlocutory Application has been filed
for condonation of delay of 20 days in filing the instant
appeal.
2. Heard learned counsel for the parties.
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L.P.A. No.244 of 2024
3. Having regard to the averments made in this
application, we are of the view that the appellants were
prevented by sufficient cause from preferring the appeal
within the period of limitation.
4. Accordingly, I.A. No.4765 of 2024 is allowed and the
20 days' delay in preferring the appeal is condoned.
Issue of maintainability of L.P.A. No.244 of 2024
5. The issue of maintainability of the instant appeal
has been raised by the office vide office note dated
27.06.2024 wherein the stamp reporter has pointed out the
maintainability of the instant appeal. For ready reference
the objection as raised by the office is being quoted as
under:
"The instant L.P.A. has been filed against
the order dated 26.02.2024 passed in W.P.(S)
no. 5716 of 2022 by Hon'ble Mr. Justice Rajesh
Shankar.
The aforesaid Writ Petition is still
pending hence in view of Order dated
05/07/2010 passed in L.P.A. No. 195/2010 by
the Hon'ble court the instant L.P.A. appears to
be not maintainable. (Copy enclosed at flag - A)
Under such circumstances
Maintainability of this L.P.A. is being submitted
before the Hon'ble Court."
6. Thus, before adverting to merit and facts of the
instant appeal, this Court deems it fit to adjudicate the
aforesaid objection which was raised by the office on the
point of maintainability.
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L.P.A. No.244 of 2024
7. The core issue for consideration is whether the
order 26.02.2024 passed by the Hon'ble Single Judge in
W.P.(S) no. 5716 of 2022, by which the objection raised by
the respondent-ECI/appellant with respect to
maintainability of the writ petition, has been rejected,
tantamounts to a "judgment" within the meaning of clause
10 of Letters Patent making it amenable to Letters Patent
Appeal as per the Rules of this Court.
8. As per the "High Court of Jharkhand Rules, 2001"
Letters Patent Appeal means an appeal under Clause 10 of
Letters Patent constituting the High Court of Judicature at
Patna, as adopted by these Rules and made applicable to
the Court under Section 27 of the Bihar Reorganisation
Act, 2000.
9. The rules of filing of Letters Patent Appeal is
prescribed under "High Court of Jharkhand Rules, 2001"
which requires to be referred herein:-
"B : Rules for Appeals under Clause 10 of the
Letters Patent.
174. (1) Every appeal to the Court under
Clause 10 of the Letters Patent from a
judgment of one Judges of the Court shall be
presented at the Centralised Filing Counter
within thirty days from the date of the
judgment appealed from. The Designated
Officer shall endorse on the memorandum the
date of presentation and after satisfying himself
that the appeal is in order and is within time
shall cause it to be laid before a Bench for
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L.P.A. No.244 of 2024
orders at an early date. It shall be accompanied
by a certified copy of judgment appealed
against. (2) If an appeal under this rule is filed
beyond the period of 30 days, the delay in filing
the appeal may be condoned subject to the
appellant showing sufficient cause and offering
explanation as to the reasons of delay by filing
a separate application (I.A.) for this purpose
duly supported by an affidavit."
10. Thus, it is evident that all appeals under clause 10
of the Letters Patent against the "Judgments" of Single
Judges will lie before the Division Bench of this Court.
11. Thus, everything turns upon the meaning of
expression "judgment" and the issue as to what constitute
a "judgment" so as to make it amenable to Letters Patent
Appeal under the Rules of the Court is no longer
res integra.
12. The issue as to when a decision of the Hon'ble
Single Judge could be regarded as a 'judgment' within the
meaning and scope of Clause 15 of the Letters Patent of
Bombay High Court came up for consideration before the
Hon'ble Apex Court in the case of Shah Babulal Khimji
Vs. Jayaben D Kania : 1981 (4) SCC 8, wherein the Apex
Court has held that the word "judgment" for the purposes
of Clause 15 of the Letters Patent should receive a wider
and more liberal interpretation than the expression
"judgment" in the CPC.
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L.P.A. No.244 of 2024
13. The principles laid down by the, Hon'ble Supreme
Court can be gathered from paras 106 and 115 of the
judgment and these are as under:-
"106. Thus, the only point which emerges from
this decision is that whenever a trial Judge
decides a controversy which affects valuable
rights of one of the parties, it must be treated
to be a judgment within the meaning of the
Letters Patent."
"115. Thus, in other words every interlocutory
order cannot be regarded as a judgment but
only those orders would be judgments which
decide matters of moment or affect vital and
valuable rights of the parties and which work
serious injustice to the party concerned.
Similarly, orders passed by the trial Judge
deciding question of admissibility or relevancy
of a document also cannot be treated as
judgments because the grievance on this score
can be corrected by the appellate court in
appeal against the final judgment."
14. Further, in the case of Central Mine Planning and
Design Institute Ltd. Vs. Union of India [2001 (2) SCC
588] while laying down the test when interlocutory order
would fall within the meaning of 'judgment' for the
purposes of Letters Patent, the Hon'ble Apex Court has
observed as under:-
"...to determine the question whether an
interlocutory order passed by one Judge of a
High Court falls within the meaning of
"judgment" for purposes of Letters Patent the
test is: Whether the order is a final
determination affecting vital and valuable
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L.P.A. No.244 of 2024
rights and obligations of the parties concerned.
This has to be ascertained on the facts of each
case."
15. Thus, from the aforesaid proposition of law it is
evident that if the order passed by the Court is affecting
vital and valuable rights and obligations of the parties
concerned which has to be ascertained on the facts of each
case, then in such circumstances even if such order has
not traits and trappings of finality is amenable to the
Letters Patent Appeal.
16. Thus, the term 'judgment' occurring in clause 10 of
the Letters Patent will take into its fold not only the
judgments as defined in section 2(9) of the CPC and orders
enumerated in Order 43 Rule 1 of CPC, but also other
orders which, though may not finally and conclusively
determine the rights of parties with regard to all or any
matters in controversy, may have finality in regard to some
collateral matter, which will affect the vital and valuable
rights and obligations of the parties.
17. Whether an order impugned would be a 'judgment'
within the scope of Clause 10 of Letters Patent, would
depend on facts and circumstances of each case. However,
for such an order to be construed as a 'judgment if it affects
vital and valuable rights of the parties.
18. Keeping in mind the aforesaid settled position of
law, what we find in the instant case is that before the
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L.P.A. No.244 of 2024
learned writ Court the bone of contention was whether the
writ is maintainable before the High Court under Article
226 of the Constitution or the petitioner should have
approached the Central Administrative Tribunal, Ranchi as
the court of first instance.
19. The learned writ Court while appreciating the
claims of both the parties has rejected the objection of
maintainability raised by the respondent/ECI and observed
that "this Court does not find any merit in the objection
raised by the respondent-ECI with respect to
maintainability of the present writ petition" against which
present appeal is preferred.
20. Thus, from the aforesaid discussion, it is evident
that the learned writ Court has decided the core issue of
the lis which materially and directly affects the core of the
present lis.
21. On the basis of discussion made herein above this
Court is of considered view that since the order passed by
the learned writ Court has materially and directly affected
the valuable right of the party as such the present appeal is
maintainable under Clause 10 of the Letters Patent.
22. Further, the office has based its objection on the
ratio of the Judgment of the Co-ordinate Bench of this
Court rendered in the L.P.A. No. 195 of 2010.
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L.P.A. No.244 of 2024
23. In the aforesaid context this Court has bounden
duty to go through the Judgment passed in the L.P.A. No.
195 of 2010.
24. It is evident from the factual aspects of the aforesaid
case that the Single Judge had directed the writ
petitioner/appellant to deposit half of the amount awarded
by the tribunal within a month from the date of passing of
that order.
25. The Division Bench while relying upon the judgment
of the Hon'ble Supreme Court in the case of Central Mine
Planning and Deugn, Institute. Ltd. Vs. Union of India
and another reported in 2001 (2) SCC 588 wherein it was
held that for determining the question whether an
interlocutory order passed by one judge of a High Court
falls within the meaning of "judgment" for purposes of
letters patent, the test is whether the order is a final
determination affecting vital and valuable rights and
obligations of the parties concerned which has to be
ascertained on the facts of each case, has observed that
the order impugned in the appeal does not come within the
meaning of "judgment", hence it is not maintainable.
26. There is no dispute on the settled position of law as
observed by the learned Division Bench that the "judgment"
for purposes of Letters Patent, the test is whether the order
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L.P.A. No.244 of 2024
is a final determination affecting vital and valuable rights
and obligations of the parties concerned.
27. Herein the fact is entirely different from the facts of
the said appeal, reason being that issue which has been
decided by the writ court in the instant case materially
affects the right of the parties whereas in the said appeal
the right of a party to have award of back wages has not
been decided by the learned Single Judge and only a
condition has been put for the purpose of grant of stay and
thereby the writ petitioner has been directed to deposit half
of the awarded amount.
28. Thus, on the basis of the aforesaid discussion the
objection as raised by the office on the issue of
maintainability is hereby overruled.
L.P.A. No. 244 of 2024
Prayer
29. This intra court appeal has been preferred against
the order dated 26.02.2024 passed by the learned Single
Judge in W.P.(C) No. 5716 of 2022 by which the objection
raised by the respondent-ECI/appellant with respect to
maintainability of the writ petition, has been rejected.
30. At the outset, it needs to refer herein that in order
to go through the contention advanced on behalf of the
parties, this Court passed an order to list this case along
with the record of W.P.(C) No.5716 of 2022.
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L.P.A. No.244 of 2024
31. Accordingly, the record of W.P.(C) No.5716 of 2022
has been listed.
32. This Court has gone through the pleading made in
the writ petition and the counter affidavit as also the
pleading made in the present Memo of Appeal.
33. The writ petition has been filed for quashing Memo
dated 06.12.2021 issued under the signature of Principal
Secretary, Election Commission of India (ECI)-respondent
no.2, whereby the reply submitted by the petitioner to the
show cause notice dated 03.11.2021 having not been found
satisfactory, the State Government has been directed to
initiate disciplinary proceeding for major penalty against
the petitioner by issuing memo of charge against him with
further direction to immediately remove him from the post
of Deputy Commissioner-Cum-District Election Officer,
Deoghar and not to post him as DC/DEO or on any other
election duty without prior permission of the ECI.
Factual Matrix
34. The brief facts of the case as enumerated in the writ
petition is that the petitioner was posted as Deputy
Commissioner, Deoghar during bye-election of Madhupur
Legislative Assembly Constituency held in the month of
April, 2021.
35. The petitioner being the Deputy Commissioner-
cum-District Election Officer informed the Chief Electoral
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L.P.A. No.244 of 2024
Officer, Jharkhand vide letter dated 15.04.2021 citing
various incidents of violating Model Code of Conduct,
disturbing communal harmony and intimidating of voters
as well as spreading racial hatred among them by Dr.
Nishikant Dubey, Member of Parliament from Godda Lok
Sabha Constituency during the election campaign of the
said by-election.
36. A complaint dated 19.04.2021 was received by the
Election Commission of India from Dr. Nishikant Dubey,
M.P., Godda via email wherein it was alleged that the
petitioner being the District Election Officer, Deoghar and
the Superintendent of Police, Deoghar were working as
agents of a political party during the aforesaid by-election
and requested to conduct enquiry against them.
37. Thereafter, the Election Commission of India
removed the petitioner from the position of DEO-cum-DC,
Deoghar vide letter no. 100/ES-1/JKD-LA/1/2021 dated
26.04.2021 and appointed one Nancy Sahay in his place.
38. The process of election was completed on
02.05.2021. Thereafter the petitioner was again posted as
D.C, Deoghar vide Notification No.2381 dated 03.05.2021
and he assumed the charge on 04.05.2021.
39. The petitioner vide letter dated 28.05.2021 and few
other letters called for a report regarding the action taken
against Dr. Nishikant Dubey, MP for violating Model Code
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L.P.A. No.244 of 2024
of Conduct during the said by-election and on finding that
no action was taken pursuant to the said letter dated
15.04.2021, he vide letter dated 23.10.2021 directed the
concerned authorities to take legal action against said Dr.
Nishikant Dubey and to send report within two days.
40. The Chief Electoral Officer, Jharkhand vide letter
no.2472 dated 26.10.2021 informed the petitioner that his
complaint/letter dated 15.04.2021 with respect to the
offences allegedly committed by Dr. Nishikant Dubey was
already sent to the ECI vide letter dated 18.04.2021 for
necessary action.
41. The ECI also received a report from Chief Electoral
Officer (CEO), Jharkhand on 26.10.2021 mentioning inter
alia that five F.I.Rs had been lodged against Dr. Nishikant
Dubey under various Sections of the Indian Penal Code for
violating Model Code of Conduct during the by-election.
42. It was further reported by the CEO, Jharkhand that
neither any intimation was received from the petitioner
before/after lodging of the FIRs nor any direction was
issued from the CEO office in this regard. The CEO
Jharkhand thus sought guidance of ECI for taking further
action.
43. The ECI vide letter dated 3.11.2021 addressed to
the CEO, Jharkhand, Ranchi called explanation from the
petitioner on various points.
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L.P.A. No.244 of 2024
44. The petitioner replied the letter of ECI vide letter No.
1131 dated 11.11.2021 explaining that the incidents were
already reported to the ECI vide letter dated 15.04.2021. It
was further stated that FIRs were lodged not only for
election related offences but also for the offences under
Indian Penal Code. The petitioner further stated that the
FIRs were registered with the same statements as were
reported to the CEO/ECI vide letter dated 15.04.2021 and
there was no change/improvement in the prosecution
version. Thus, no prejudice was caused to the accused due
to delay in lodging the FIRs. Moreover, all five FIRs were
registered in respect of different offences, different places
and dates of occurrences etc. and there was no multiplicity
of FIRs with respect to the single incident. However, the ECI
issued the directions as contained in the impugned letter
dated 06.12.2021.
45. The writ petitioner being aggrieved with the Memo
no.100/ES-1/JKDLA/01/2021 dated 06.12.2021
(Annexure-4 to the writ petition) issued under the signature
of Principal Secretary, Election Commission of India (ECI)-
respondent no.2, has preferred the writ petition being
W.P.(S) No. 5716 of 2022 before this Court.
46. The learned counsel for the ECI/respondent
no.2/appellant has contended before the writ Court that
since petitioner has approached this Court in an
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L.P.A. No.244 of 2024
independent capacity as an IAS Officer, against whom the
impugned directions as contained in letter dated
06.12.2021 for initiation of Disciplinary Proceeding for
major punishment has been issued and as such in view of
the judgment rendered by the Hon'ble Supreme Court in
the case of L. Chandra Kumar Vs. Union of India & Ors.
reported in (1997) 3 SCC 261, he should have approached
the Central Administrative Tribunal, Ranchi at the first
instance.
47. Per contra, the learned counsel for the writ
petitioner/respondent has submitted that the question of
maintainability of the writ petition as raised by the
respondent-ECI is liable to be rejected primarily for the
reason that the same has been filed quite belatedly.
48. It has further been submitted that the writ petition
was filed on 18.11.2022 and was admitted for hearing on
10.02.2023 and thereafter, it was also heard on different
dates i.e. on 21.08.2023, 20.09.2023 and 05.01.2024 and
when on 05.01.2024 a Bench of this Court was pleased to
fix the matter on 19.01.2024 under the heading "For Final
Disposal" only thereafter the respondent-ECI for the first
time raised the issue of maintainability.
49. It has also been submitted that raising the issue of
availability of alternative remedy after admitting the writ
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L.P.A. No.244 of 2024
petition for hearing as well as exchange of pleadings is
highly improper and hence, liable to be rejected.
50. Vide order dated 26.02.2024 the learned Single
Judge, after appreciating the rival claims of the both the
parties, has rejected the issue of maintainability and
observed that impugned order dated 06.12.2021 has been
passed in purported exercise of the power under section
20-A of the Act, 1951 and not under any service rules
governing the terms and conditions of service of the
petitioner, thus, the writ petition is maintainable before this
Court, however, not under the nomenclature of W.P.(S),
rather as W.P.(C).
51. Being aggrieved with the order dated 26.02.2024
the respondent no.2/ ECI has preferred the instant appeal.
52. It is evident from the factual aspect that the ECI
/respondentNO.2/Appellant has issued Memo no.100/ES-
1/JKDLA/01/2021 dated 06.12.2021 whereby the reply
submitted by the petitioner to the show cause notice dated
03.11.2021 having not been found satisfactory, the State
Government has been directed to initiate disciplinary
proceeding for major penalty against the petitioner by
issuing memo of charge against him with further direction
to immediately remove him from the post of Deputy
Commissioner-Cum-District Election Officer, Deoghar and
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L.P.A. No.244 of 2024
not to post him as DC/DEO or on any other election duty
without prior permission of the ECI.
53. The writ petitioner being aggrieved with the said
Memo has preferred the writ petition being W.P.(S) No.
5716 of 2022 before this Court.
54. The learned counsel for the ECI/ respondent
no.2/appellant has raised the issue of maintainability of
the writ petition before the writ Court and submitted that
in view of the judgment rendered by the Hon'ble Supreme
Court in the case of L. Chandra Kumar Vs. Union of
India & Ors reported in (1997) 3 SCC 261, the writ
petitioner should have approached the Central
Administrative Tribunal, Ranchi at the first instance.
55. Per contra, the learned counsel for the writ
petitioner/respondent has submitted that the question of
maintainability of the writ petition as raised by the
respondent-ECI is liable to be rejected primarily for the
reason that the same has been filed quite belatedly. It is
also submitted that raising the issue of availability of
alternative remedy after admitting the writ petition for
hearing as well as exchange of pleadings is highly improper
and hence liable to be rejected.
56. The learned Single Judge vide order dated
26.02.2024 has rejected the issue of maintainability and
observed that impugned order dated 06.12.2021 has been
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L.P.A. No.244 of 2024
passed by the ECI in purported exercise of the power
under section 20-A of the Act, 1951 and not under any
service rules governing the terms and conditions of service
of the petitioner, thus, the present writ petition is
maintainable before this Court, however, not under the
nomenclature of W.P.(S), rather as W.P.(C)., against which
the present appeal.
Submission of the learned counsel for the Appellants
57. Learned counsel for the respondent-ECI/appellant
at the outset raises an objection with respect to
maintainability of the writ petition by contending that the
averments made in different paragraphs of the writ petition,
reply to the counter affidavit and the supplementary
affidavit filed by the petitioner suggest that the petitioner
has approached this Court in an independent capacity as
an IAS Officer, against whom the impugned directions as
contained in letter dated 06.12.2021 i.e. initiation of
Disciplinary Proceeding for major punishment has been
issued and as such in view of the judgment rendered by the
Hon'ble Supreme Court in the case of L. Chandra Kumar
Vs. Union of India & Ors (supra), he should have
approached the Central Administrative Tribunal, Ranchi at
the first instance.
58. The learned counsel for ECI has placed reliance on
the judgment rendered by the Hon'ble Supreme Court in
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L.P.A. No.244 of 2024
the case of Kendriya Vidyalaya Sangathan & Another
Vs. Subhas Sharma reported in (2002) 4 SCC 145,
wherein the employees of Kendriya Vidyalaya had filed two
writ petitions before Jammu and Kashmir High Court as
certain disputes had arisen regarding their service
conditions. Kendriya Vidyalaya Sangathan filed two
separate applications in the said writ petitions for transfer
of the same to the Central Administrative Tribunal on the
ground that the said Tribunal constituted under the
Administrative Tribunals Act, 1985 (hereinafter to be
referred as 'the Act, 1985') had the jurisdiction to decide
the disputes, however the applications filed by the Kendriya
Vidyalaya Sangathan were dismissed by the High Court.
59. The matter travelled to the Hon'ble Supreme Court,
wherein it has been observed that the Central
Administrative Tribunal had the jurisdiction concerning
service matters of the employees of Kendriya Vidyalaya
Sangathan in view of sub-clause (iii) of Section 14(1)(b) of
the Act, 1985.
60. The learned counsel for ECI further relied on the
judgment rendered by the Delhi High Court in the case of
Prabhat Ranjan Deo Vs. Union Public Service
Commission & Others reported in 2020 SCC OnLine Del
738, wherein it has been held that judgment of L.
Chandra Kumar (Supra) and Section 14(1) of the Act,
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L.P.A. No.244 of 2024
1985 make it clear that in relation to service matters
covered under the said Act, there is an ouster of
jurisdiction of the High Court as a court of "first instance"
and the Tribunal is not an "alternative", but is the "only"
forum available to the petitioner. It has further been held
that it is neither a matter of "choice" for the petitioner to
approach the Tribunal, nor a matter of discretion with this
Court to entertain the petition. It has also been held that
there cannot be a doubt on the proposition that jurisdiction
conferred on High Courts under Article 226 of the
Constitution of India is an inviolable basic framework of the
Constitution of India, however, with respect to service
matters of the employees covered under the Act, 1985, High
Courts cannot exercise jurisdiction at the first instance.
61. The learned counsel for the respondent-ECI also
puts reliance on the judgment rendered by a Bench of this
Court in the case of Jagat Bandhu Mahapatra Vs. State
of Jharkhand & Others reported in 2007 SCC OnLine
Jhar 330. In the said case, the Bench while framing issue
no.1, as to whether the petitioner of the said case being a
member of Indian Police Service can directly approach this
Court under Article 226 of the Constitution of India, has
answered the said issue by referring to the various
judgments of the Hon'ble Supreme Court holding that the
High Court cannot permit an aggrieved person to bypass
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L.P.A. No.244 of 2024
the remedy of moving the Administrative Tribunal at the
first instance and thus cannot entertain the writ petition
questioning the validity/legality of transfer order of the
petitioner, which is covered under the expression "any
other matter whatsoever" appearing in Section 3(q)(v) of the
Administrative Tribunal Act, 1985. It has also been held
that the petitioner cannot, therefore, be permitted to bypass
the remedy of approaching the Administrative Tribunal and
prefer writ petition at the first instance under Article 226 of
the Constitution of India.
62. On the aforesaid premise the learned counsel has
submitted that order dated 26.02.2024 passed by the
learned single Judge has suffered with an error , hence not
sustainable in eye of law.
Submission of the learned counsel for the
respondent/writ petitioner:
63. Per Contra, learned counsel for the petitioner
submits that the power of judicial review of this Court
under Article 226 and 227 of the Constitution of India over
the orders passed by the Administrative Tribunals has been
kept intact by the Hon'ble Apex Court in the case of L.
Chandra Kumar (Supra.). The question of maintainability
of the writ petition as raised by the respondent-ECI is liable
to be rejected primarily for the reason that the same has
been filed quite belatedly.
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L.P.A. No.244 of 2024
64. It is further submitted that the writ petition was
filed on 18.11.2022 and was admitted for hearing on
10.02.2023. Thereafter, it was also heard on different dates
i.e. on 21.08.2023, 20.09.2023 and 05.01.2024. On
05.01.2024 and a Bench of this Court was pleased to fix
the matter on 19.01.2024 under the heading "For Final
Disposal" and only thereafter the respondent-ECI for the
first time raised the issue of maintainability. It is also
submitted that raising the issue of availability of alternative
remedy after admitting the writ petition for hearing as well
as exchange of pleadings is highly improper and hence
liable to be rejected.
65. It is further submitted that the writ petition has
been filed challenging the impugned letter dated
06.12.2021 issued by the ECI in exercise of powers under
Section 20-A r/w 28-A of the Representation of People's
Act, 1951 (hereinafter to be referred as the 'Act, 1951')
which is only recommendatory in nature. Since the said
impugned letter has been issued much after declaration of
result of the said by-election, the ECI did not have the
jurisdiction to even recommend initiation of disciplinary
proceedings against the petitioner in view section 28-A of
the Act, 1951 and hence the same is without jurisdiction.
66. It is further contended that the ECI, after
conclusion of the election process, does not have any
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L.P.A. No.244 of 2024
authority whatsoever over a Deputy Commissioner of a
district designated as District Election Officer and therefore
cannot exercise any power regulating the service condition
of the said officer or can have any supervision over him.
67. It is also submitted that there is no employer-
employee relationship between the petitioner and the ECI.
Otherwise also, the impugned communique dated
06.12.2021 cannot be said to have been issued under the
Service Rules governing the terms and conditions of the
petitioner's service.
68. On the aforesaid basis the learned counsel has
submitted that order dated 26.02.2024 passed by the
learned single Judge has not suffered with any error, hence
no inference of this Court is required.
Analysis
69. Before adverting to the fact of the case the following
issues are need to be answered herein:-
(i) whether question of maintainability of the writ
petition on the point of jurisdiction can be raised at
the belated stage?
(ii) Whether the impugned communique dated
6.12.2021 issued by the respondent no.2 is amenable
under original jurisdiction under article 226 or the
writ petitioner should go before the tribunal as the
court of first instance which was constituted under
the Act, 1985 solely meant for the redressal of the
grievances of service matters?
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Issue no.1
70. It is the contention of learned counsel for the
petitioner that the question of maintainability of the writ
petition cannot be raised by the respondent-ECI at the
belated stage.
71. In the aforesaid context, it requires to refer herein
the settled proposition of law that where a jurisdictional
issue is raised, save and except for certain categories of the
cases, the same may be permitted to be raised at any stage
of the proceedings. Reference in this regard may be taken
from the judgment rendered by the Hon'ble Apex Court in
the case of Fatma Bibi Ahmed Patel Vs. State of Gujarat
& Another reported in (2008) 6 SCC 789 wherein it has
been observed as under:-
"21. This Court, in a matter like the present one
where the jurisdictional issue goes to the root of the
matter, would not allow injustice to be done to a
party. The entire proceedings having been initiated
illegally and without jurisdiction, all actions taken by
the court were without jurisdiction, and thus are
nullities. In such a case even the principle of res
judicata (wherever applicable) would not apply.
23. Where a jurisdictional issue is raised, save and
except for certain categories of the cases, the same
may be permitted to be raised at any stage of the
proceedings."
72. Further the Hon'ble Apex Court in the case of
S.N.D.P. Sakhayogam Vs. Kerala Atmavidya Sangham
23
L.P.A. No.244 of 2024
& Others reported in (2017) 8 SCC 830, wherein it has
been held as under:-
"17. Be that as it may, in our considered view, the
issue of jurisdiction which goes to the root of the
case, if found involved has to be tried at any stage of
the proceedings once brought to the notice of the
Court."
73. Thus, from the aforesaid proposition of law it is
evident that the jurisdictional issue which goes to the root
of the matter can be raised at any stage of the proceeding.
74. Since the respondent-ECI has raised question with
respect to jurisdiction of this Court to hear the present
matter contending that the same is amenable to the
jurisdiction of Central Administrative Tribunal as the court
of the first instance, this Court is of the view that the said
issue goes to the root of the matter and in view of the legal
principle laid down in the aforesaid judgments, the same
can be raised at any stage.
Issue No. II
75. Before adverting to the said issue this Court thinks
fit to discuss the core of the Article 323 A of the
Constitution which was inserted based on the
recommendations of the Swaran Singh Committee, Part
XIV-A was added by the Constitution (Forty-second
Amendment) Act, 1976, titled as 'Tribunals' which provided
for the establishment of 'Administrative Tribunals' under
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Article 323-A, for ready reference the same is being quoted
as under:-
323A. Administrative tribunals.
(1) Parliament may, by law, provide for the
adjudication or trial by administrative tribunals of
disputes and complaints with respect to recruitment
and conditions of service of persons appointed to
public services and posts 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 owned or controlled by the Government.
(2) A law made under clause (1) may-
(a) provide for the establishment of an administrative
tribunal for the Union and a separate administrative
tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the
power to punish for contempt) and authority which
may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as
to limitation and rules of evidence) to be followed by
the said tribunals;
(d) exclude the jurisdiction of all courts, except the
jurisdiction of the Supreme Court under article 136,
with respect to the disputes or complaints referred to
in clause (1);
(e) provide for the transfer to each such
administrative tribunal of any cases pending before
any court or other authority immediately before the
establishment of such tribunal as would have been
within the jurisdiction of such tribunal if the causes
of action on which such suits or proceedings are
based had arisen after such establishment;
(f) repeal or amend any order made by the President
under clause (3) of article 371D;
(g) contain such supplemental, incidental and
consequential provisions (including provisions as to
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fees) as Parliament may deem necessary for the
effective functioning of, and for the speedy disposal of
cases by, and the enforcement of the orders of, such
tribunals.
(3) The provisions of this article shall have effect
notwithstanding anything in any other provision of
this Constitution or in any other law for the time
being in force.
76. The Tribunals are institutions established for
discharging judicial or quasi-judicial duties. Article 323A of
the Constitution stipulates that Parliament may, by law,
provide for the adjudication or trial by Administrative
Tribunal of disputes and complaints with respect to
recruitment and conditions of service of persons appointed
to public services and posts 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 owned or
controlled by the Government.
77. The main objective of establishing Tribunals as set
out in the Statement of Objects and Reasons of The
Constitution (Forty-Second Amendment) Act, 1976 is as
under:-
'To reduce the mounting arrears in High Courts and
to secure the speedy disposal of service matters,
revenue matters and certain other matters of special
importance in the context of the socio-economic
development and progress, it is considered expedient
to provide for administrative and other tribunals for
dealing with such matters while preserving the
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L.P.A. No.244 of 2024
jurisdiction of the Supreme Court in regard to such
matters under article 136 of the Constitution."
78. Thus, with the enactment of Administrative
Tribunals Act, 1985, a large number of cases relating to
service matters pending before various Courts were brought
within the jurisdiction of the Tribunals. Administrative
Tribunals created under Article 323A have been freed from
technical rules of Indian Evidence Act, 1872 and
procedural shackles of the Code of Civil Procedure, 1908
but, at the same time, they have been vested with the
powers of Civil Court in respect of some matters including
the review of their own decisions and are bound by the
principles of natural justice.
79. The Administrative Tribunals Act, 1985 brings into
existence the 'Tribunals' contemplated under Article 323-
A(2), to deal with various matters. The Act specifically
provides that it will not be applicable to-
i. any member of the naval, military or air force or of any
other armed forces of the union;
ii. any officer or servant of the Supreme Court or of any High
Court, and
iii. any person appointed to the secretarial staff of either
House of Parliament or to the secretarial staff of any State
Legislature or a House thereof or, in the case of a Union
Territory having a legislature, of that legislature. Later on
in the year of 1987, even the officers and servants of the
subordinate courts were also excluded from the purview of
the Act.
80. Thus, from the aforesaid discussion it is evident
that the Tribunal constituted under the Administrative
27
L.P.A. No.244 of 2024
Tribunals Act, 1985 acts like the court of first instance in
respect of the area of law for which it has been constituted.
81. After enactment of the Administrative Tribunal Act,
1985 by insertion of a new provision as Article 323A in the
Constitution of India, the issue travelled to the Hon'ble
Apex Court in the case of S.P. Sampath Kumar v. Union
of India and Others [(1987) 1 SCC 124] wherein the
validity of the Act, 1985 was the subject matter.
82. The issue regarding the exclusion of the High
Court's jurisdiction of judicial review under Article 226 and
227 of the Constitution of India in service matters was
considered.
83. It has been held by Hon'ble Apex Court in the said
case that the Act could not be rendered unconstitutional if
the amendment in the provision thereof (Sections 4, 6 and
8) as suggested by Hon'ble Apex Court, are carried out
within a reasonable period (March 31, 1987) so as to make
the Administrative Tribunal constituted under it an equally
efficacious and effective alternative remedy to the High
Court, for ready reference, paragraphs 5 and 15 needs to be
referred herein which read hereunder as :-
"5. It is necessary to bear in mind that service matters
which are removed from the jurisdiction of the High
Court under Articles 226 and 227 of the Constitution
and entrusted to the Administrative Tribunal set up
under the impugned Act for adjudication involve
questions of interpretation and applicability of Articles
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14, 15, 16 and 311 in quite a large number of cases.
These questions require for their determination not
only judicial approach but also knowledge and
expertise in this particular branch of constitutional
law. It is necessary that those who adjudicate upon
these questions should have same modicum of legal
training and judicial experience because we find that
some of these questions are so difficult and complex
that they baffle the minds of even trained judges in the
High Courts and the Supreme Court. That is the
reason why at the time of the preliminary hearing of
these writ petitions we insisted that every Bench of the
Administrative Tribunal should consist of one judicial
member and one administrative member and there
should be no preponderance of administrative
members on any Bench. Of course, the presence of the
administrative member would provide input of
practical experience in the functioning of the services
and add to the efficiency of the Administrative
Tribunal but the legal input would undeniably be more
important and sacrificing the legal input or not giving
it sufficient weightage would definitely impair the
efficacy and effectiveness of the Administrative
Tribunal as compared to the High Court. Now Section
6 provides that the Chairman of the Administrative
Tribunal should be or should have been a Judge of the
High Court or he should have for at least two years
held office of Vice-Chairman or he should have for at
least two years held the post of Secretary to the
Government of India or any other post under the
Central or State Government carrying a scale of pay
which is not less than that of a Secretary to the
Government of India. I entirely agree with Ranganath
Misra, J. that the Chairman of the Administrative
Tribunal should be or should have been a Judge of a
High Court or he should have for at least two years
held office as Vice-Chairman. If he has held office as
Vice-Chairman for a period of at least two years he
29
L.P.A. No.244 of 2024
would have gathered sufficient experience and also
within such period of two years, acquired reasonable
familiarity with the constitutional and legal questions
involved in service matters. But substituting the Chief
Justice of a High Court by a Chairman of the
Administrative Tribunal who has merely held the post
of a Secretary to the government and who has no legal
or judicial experience would not only fail to inspire
confidence in the public mind but would also render
the Administrative Tribunal a much less effective and
efficacious mechanism than the High Court. We
cannot afford to forget that it is the High Court which
is being supplanted by the Administrative Tribunal
and it must be so manned as to inspire confidence in
the public mind that it is a highly competent and
expert mechanism with judicial approach and
objectivity. Of course, I must make it clear that when I
say this, I do not wish to cast any reflection on the
members of the Civil Services because fortunately we
have, in our country, brilliant civil servants who
possess tremendous sincerity, drive and initiative and
who have remarkable capacity to resolve and overcome
administrative problems of great complexity. But what
is needed in a judicial tribunal which is intended to
supplant the High Court is legal training and
experience. I am, therefore, of the view, in agreement
with Ranganath Misra, J. that clause (c) of Section 6(1)
must be struck down as invalid.
15. The question that arises, however, for
consideration is whether bar of jurisdiction under
Articles 226 and 227 affects the provision for judicial
review. The right to move the High Court in its writ
jurisdiction -- unlike the one under Article 32 -- is not
a fundamental right. Yet, the High Courts, as the
working experience of three-and-a-half decades shows
have in exercise of the power of judicial review played
a definite and positive role in the matter of
preservation of fundamental and other rights and in
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keeping administrative action under reasonable
control. In these thirty-six years following the
enforcement of the Constitution, not only has India's
population been more than doubled but also the
number of litigations before the courts including the
High Courts has greatly increased. As the pendency in
the High Courts increased and soon became the
pressing problem of backlog, the nation's attention
came to be bestowed on this aspect. Ways and means
to relieve the High Courts of the load began to engage
the attention of the government at the Centre as also
in the various States. As early as 1969, a Committee
was set up by the Central Government under the
chairmanship of Mr Justice Shah of this Court to
make recommendations suggesting ways and means
for effective, expeditious and satisfactory disposal of
matters relating to service disputes of government
servants as it was found that a sizeable portion of
pending litigations related to this category. The
Committee recommended the setting up of an
independent Tribunal to handle the pending cases
before this Court and the High Courts. While this
report was still engaging the attention of government,
the Administrative Reforms Commission also took note
of the situation and recommended the setting up of
Civil Services Tribunals to deal with appeals of
Government servants against disciplinary action. In
certain States, Tribunals of this type came into
existence and started functioning. But the Central
Government looked into the matter further as it
transpired that the major chunk of service litigations
related to matters other than disciplinary action. In
May 1976, a Conference of Chief Secretaries of the
States discussed this problem. Then came the Forty-
second Amendment of the Constitution bringing in
Article 323-A which authorised Parliament to provide
by law "for the adjudication or trial by Administrative
Tribunals of disputes and complaints with respect to
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recruitment and conditions of service of persons
appointed to public services and posts 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 owned or controlled by the Government".
As already stated this article envisaged exclusion of
the jurisdiction of all courts, except the jurisdiction of
the Supreme Court under Article 136, with respect to
the disputes or complaints referred to in clause (1).
Though the Constitution now contained the enabling
power, no immediate steps were taken to set up any
Tribunal as contemplated by Article 323-A. A
Constitution Bench of this Court in K.K. Dutta v. Union
of India [(1980) 4 SCC 38] observed :
"There are few other litigative areas than
disputes between members of various services
inter se, where the principle that public policy
requires that all litigation must have an end can
apply with greater force. Public servants ought
not to be driven or required to dissipate their
time and energy in courtroom battles. Thereby
their attention is diverted from public to private
affairs and their inter se disputes affect their
sense of oneness without which no institution
can function effectively. The constitution of
Service Tribunals by State Governments with an
apex Tribunal at the Centre, which, in the
generality of cases, should be the final arbiter of
controversies relating to conditions of service,
including the vexed question of seniority, may
save the courts from the avalanche of writ
petitions and appeals in service matters. The
proceedings of such Tribunals can have the
merit of informality and if they will not be tied
down to strict rules of evidence, they might be
able to produce solutions which will satisfy
many...."
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In the meantime the problem of the backlog of
cases in the High Courts became more acute and
pressing and came to be further discussed in
Parliament and in conferences and seminars.
Ultimately in January 1985, both Houses of
Parliament passed the Bill and with the Presidential
assent on February 27, 1985, the law enabling the
long awaited Tribunal to be constituted came into
existence. As already noticed, the Central Government
notified the Act to come into force with effect from
November 1, 1985."
84. Subsequent to the said judgment, the ratio laid
down in the case of S.P. Sampath Kumar v. Union of
India and Others (Supra) has again been reconsidered by
the Constitution Bench of the Hon'ble Apex Court in the
case of L. Chandra Kumar v. Union of India and Others
reported in 1997(3) SCC 261 wherein it has been held that
the power of judicial review vested in the High Courts and
in the Supreme Court under Articles 226/227 and 32 is
part of the basic structure of the Constitution.
85. The Hon'ble Apex Court in the said case, by making
reference of the judgment rendered in the case of
Kesavananda Bharati v. State of Kerala [(1973) 4 SCC
225] a thirteen-Judge Constitution Bench, by a majority of
7:6, held that though, by virtue of Article 368, Parliament is
empowered to amend the Constitution, that power cannot
be exercised so as to damage the basic features of the
Constitution or to destroy its basic structure. The reference
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of the relevant paragraph needs to be referred herein which
reads hereunder as :-
62. In Kesavananda Bharati case [(1973) 4 SCC 225] a
thirteen-Judge Constitution Bench, by a majority of
7:6, held that though, by virtue of Article 368,
Parliament is empowered to amend the Constitution,
that power cannot be exercised so as to damage the
basic features of the Constitution or to destroy its
basic structure. The identification of the features
which constitute the basic structure of our
Constitution has been the subject-matter of great
debate in Indian Constitutional law. The difficulty is
compounded by the fact that even the judgments for
the majority are not unanimously agreed on this
aspect. [There were five judgments for the majority,
delivered by Sikri, C.J., Shelat and Grover, JJ., Hegde
and Mukherjea, JJ., Jaganmohan Reddy, J. and
Khanna, J. While Khanna, J. did not attempt to
catalogue the basic features, the identification of the
basic features by the other Judges are specified in the
following paras of the Court's judgments: Sikri, C.J.
(para 292), Shelat and Grover, JJ. (para 582), Hegde
and Mukherjea, JJ. (paras 632 & 661) and
Jaganmohan Reddy, J.
(paras 1159 & 1161).] The aspect of judicial review
does not find elaborate mention in all the majority
judgments. Khanna, J. did, however, squarely address
the issue (at para 1529): (SCC p. 818)
"... The power of judicial review is, however, confined
not merely to deciding whether in making the
impugned laws the Central or State Legislatures have
acted within the four corners of the legislative lists
earmarked for them; the courts also deal with the
question as to whether the laws are made in conformity
with and not in violation of the other provisions of the
Constitution.... As long as some fundamental rights
exist and are a part of the Constitution, the power of
judicial review has also to be exercised with a view to
see that the guarantees afforded by those rights are
not contravened.... Judicial review has thus become an
integral part of our constitutional system and a power
has been vested in the High Courts and the Supreme
Court to decide about the constitutional validity of the
provisions of statutes. If the provisions of the statute
are found to be violative of any article of the
Constitution, which is the touchstone for the validity
of all laws, the Supreme Court and the High Courts
are empowered to strike down the said provisions."
(emphasis added)
76. To express our opinion on the issue whether the
power of judicial review vested in the High Courts and
in the Supreme Court under Articles 226/227 and 32
is part of the basic structure of the Constitution, we
must first attempt to understand what constitutes the
basic structure of the Constitution. The doctrine of
basic structure was evolved in Kesavananda Bharati
case [(1973) 4 SCC 225] . However, as already
mentioned, that case did not lay down that the specific
and particular features mentioned in that judgment
alone would constitute the basic structure of our
Constitution. Indeed, in the judgments of Shelat and
Grover, JJ., Hegde and Mukherjea, JJ. and
Jaganmohan Reddy, J., there are specific observations
to the effect that their list of essential features
comprising the basic structure of the Constitution are
illustrative and are not intended to be exhaustive. In
Indira Gandhi case [1975 Supp SCC 1] , Chandrachud,
J. held that the proper approach for a Judge who is
confronted with the question whether a particular
facet of the Constitution is part of the basic structure,
is to examine, in each individual case, the place of the
particular feature in the scheme of our Constitution,
its object and purpose, and the consequences of its
denial on the integrity of our Constitution as a
fundamental instrument for the governance of the
country. (supra at pp. 751-752). This approach was
specifically adopted by Bhagwati, J. in Minerva Mills
case [(1980) 3 SCC 625] (at pp. 671-672) and is not
regarded as the definitive test in this field of
Constitutional Law."
86. The Hon'ble Apex Court, in the said case, has also
considered the propriety of the amendment inserted by
virtue of insertion of Article 323A and 323B.
87. The Hon'ble Apex Court, in the caser of L. Chandra
Kumar v. Union of India and Others (Supra) has
considered that when a Constitution Bench in the case of
S.P. Sampath Kumar v. Union of India and Others
(Supra) has adopted the theory of alternative institutional
mechanisms, it was attempting to remedy an alarming
practical situation and the approach selected by it
appeared to be most appropriate to meet the exigencies of
the time, for ready reference, paragraph 82 needs to be
referred herein which reads hereunder as :-
"82. There are pressing reasons why we are anxious to
preserve the conferment of such a power on these
Tribunals. When the Framers of our Constitution
bestowed the powers of judicial review of legislative
action upon the High Courts and the Supreme Court,
they ensured that other constitutional safeguards were
created to assist them in effectively discharging this
onerous burden. The expectation was that this power
would be required to be used only occasionally.
However, in the five decades that have ensued since
Independence, the quantity of litigation before the
High Courts has exploded in an unprecedented
manner. The decision in Sampath Kumar case [(1987)
1 SCC 124] was rendered against such a backdrop. We
are conscious of the fact that when a Constitution
Bench of this Court in Sampath Kumar case [(1987) 1
SCC 124] adopted the theory of alternative
institutional mechanisms, it was attempting to remedy
an alarming practical situation and the approach
selected by it appeared to be most appropriate to meet
the exigencies of the time. Nearly a decade later, we
are now in a position to review the theoretical and
practical results that have arisen as a consequence of
the adoption of such an approach."
88. The Hon'ble Apex Court in paragraph 99 has been
pleased to 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 has been held to be
part of the inviolable basic structure of the Constitution. It
has further been held that 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, for ready reference,
paragraph 99 is being quoted hereunder as :-
"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."
89. It is, thus, evident that the Tribunal created by
virtue of enactment of the Administrative Tribunal Act,
1985 can exercise the power conferred under Article
226/227 of the Constitution of India which will be
amenable to the High Court to be heard by the Division
Bench.
90. Even the constitutional validity of the vires of the
statutory provision has also been conferred to be exercised
save and except that the Act under which the Tribunal has
been created itself is under challenge. It means that the
Tribunal has been given the power to exercise the power
conferred under Article 226 of the Constitution of India as
has been conferred by the Constitution to be exercised by
the High Court.
91. However, if the judgment rendered in the case of L.
Chandra Kumar v. Union of India and Others (Supra)
will be taken into consideration in entirety, the High Court
has been conferred with the power to judicially review the
decision passed by the Central Administrative Tribunal for
the purpose of maintaining the basic structure of the
Constitution of India that in each State there will be one
High Court, meaning thereby, the power which is to be
exercised under Article 226 of the Constitution of India is
only by the High Courts but the Hon'ble Apex Court taking
into consideration the burden which is to be put upon the
High Courts if the scrutiny of the order passed by the
Tribunal will not be done by exercising the power of judicial
review, having no power of administrative review and, as
such, in order to reduce the load, such decision has been
taken by the Hon'ble Apex Court in the case of L. Chandra
Kumar v. Union of India and Others (Supra) by making
the Central Administrative Tribunal as a court of first
instance.
92. It needs to refer herein that there is difference in
between the Court of first instance and the forum available
in the statute by way of alternative remedy.
93. The Court of first instance means that the said
court, depending upon the nature of case to be entertained,
will have its original jurisdiction while on the other hand,
the alternative forum as provided under the statute is also
the original adjudicatory forum but in case of availability of
alternative forum under the statute, there is no embargo for
the High Court not to exercise the power conferred under
Article 226 of the Constitution of India, rather, the High
Court can exercise the power conferred under Article 226 of
the Constitution of India since the High Court is having the
self-imposed restriction and depending upon the situation
or availability of the conditions, the High Court can exercise
the jurisdiction conferred under Article 226 of the
Constitution of India as has been dealt with by the Hon'ble
Apex Court in the case of Maharashtra Chess
Association v. Union of India and Others reported in
(2020) 13 SCC 285, wherein, as under paragraphs 19, 20
and 22, has held as under:-
"19. This argument of the second respondent is
misconceived. The existence of an alternate remedy,
whether adequate or not, does not alter the
fundamentally discretionary nature of the High Court's
writ jurisdiction and therefore does not create an
absolute legal bar on the exercise of the writ jurisdiction
by a High Court. The decision whether or not to
entertain an action under its writ jurisdiction remains a
decision to be taken by the High Court on an
examination of the facts and circumstances of a
particular case.
20. This understanding has been laid down in several
decisions of this Court. In U.P. State Spg. Co. Ltd. v.
R.S. Pandey [U.P. State Spg. Co. Ltd. v. R.S. Pandey,
(2005) 8 SCC 264] this Court held : (SCC p. 270, para
11)
"11. Except for a period when Article 226 was
amended by the Constitution (Forty-Second
Amendment) Act, 1976, the power relating to
alternative remedy has been considered to be a rule
of self-imposed limitation. It is essentially a rule of
policy, convenience and discretion and never a rule of
law. Despite the existence of an alternative remedy it
is within the jurisdiction or discretion of the High
Court to grant relief under Article 226 of the
Constitution. At the same time, it cannot be lost sight
of that though the matter relating to an alternative
remedy has nothing to do with the jurisdiction of the
case, normally the High Court should not interfere if
there is an adequate efficacious alternative remedy."
22. The mere existence of alternate forums where the
aggrieved party may secure relief does not create a legal
bar on a High Court to exercise its writ jurisdiction. It is
a factor to be taken into consideration by the High
Court amongst several factors."
94. The Hon'ble Apex Court in the case of M/s Godrej
Sara Lee Ltd. v. The Excise and Taxation Officer-cum-
Assessing Authority & Ors. reported in 2023 1 Supreme
257 wherein, as under paragraph 4, has held as under:-
"4. Before answering the questions, we feel the urge
to say a few words on the exercise of writ powers
conferred by Article 226 of the Constitution having
come across certain orders passed by the high courts
holding writ petitions as "not maintainable" merely
because the alternative remedy provided by the
relevant statutes has not been pursued by the parties
desirous of invocation of the writ jurisdiction. The
power to issue prerogative writs under Article 226 is
plenary in nature. Any limitation on the exercise of
such power must be traceable in the Constitution
itself. Profitable reference in this regard may be made
to Article 329 and ordainments of other similarly
worded articles in the Constitution. Article 226 does
not, in terms, impose any limitation or restraint on
the exercise of power to issue writs. While it is true
that exercise of writ powers despite availability of a
remedy under the very statute which has been
invoked and has given rise to the action impugned in
the writ petition ought not to be made in a routine
manner, yet, the mere fact that the petitioner before
the high court, in a given case, has not pursued the
alternative remedy available to him/it cannot
mechanically be construed as a ground for its
dismissal. It is axiomatic that the high courts
(bearing in mind the facts of each particular case)
have a discretion whether to entertain a writ petition
or not. One of the self-imposed restrictions on the
exercise of power under Article 226 that has evolved
through judicial precedents is that the high courts
should normally not entertain a writ petition, where
an effective and efficacious alternative remedy is
available. At the same time, it must be remembered
that mere availability of an alternative remedy of
appeal or revision, which the party invoking the
jurisdiction of the high court under Article 226 has
not pursued, would not oust the jurisdiction of the
high court and render a writ petition "not
maintainable". In a long line of decisions, this Court
has made it clear that availability of an alternative
remedy does not operate as an absolute bar to the
"maintainability" of a writ petition and that the rule,
which requires a party to pursue the alternative
remedy provided by a statute, is a rule of policy,
convenience and discretion rather than a rule of law.
Though elementary, it needs to be restated that
"entertainability" and "maintainability" of a writ
petition are distinct concepts. The fine but real
distinction between the two ought not to be lost sight
of. The objection as to "maintainability" goes to the
root of the matter and if such objection were found to
be of substance, the courts would be rendered
incapable of even receiving the lis for adjudication.
On the other hand, the question of "entertainability"
is entirely within the realm of discretion of the high
courts, writ remedy being discretionary. A writ
petition despite being maintainable may not be
entertained by a high court for very many reasons or
relief could even be refused to the petitioner, despite
setting up a sound legal point, if grant of the claimed
relief would not further public interest. Hence,
dismissal of a writ petition by a high court on the
ground that the petitioner has not availed the
alternative remedy without, however, examining
whether an exceptional case has been made out for
such entertainment would not be proper."
95. But, the said principle will not be applicable if the
matter pertains to the Administrative Tribunal Act, 1985,
rather, the Tribunal being the Court of first instance and as
has been held in paragraph 99 of L. Chandra Kumar v.
Union of India and Others (Supra), all the matters
pertaining to the service disputes or concerning the service
disputes is to be filed before the Tribunal by way of first
instance and in such circumstances, the fact about the
principle of self-imposed restriction will not be applicable,
rather, the principle of embargo in the High Court will be
applicable in view of the fact that the Tribunal is also
having the constitutional status by carving out the court of
first instance by judicial pronouncement of the Hon'ble
Apex Court.
96. Further, the Tribunal has also been conferred with
the power to decide the question of vires of the statutory
legislation.
97. The Hon'ble Apex Court, in view thereof, has laid
down at para 99 that it will not be open for the litigants to
directly approach the Hon'ble Apex Court even in cases
where they question the "vires of statutory legislation".
98. This Court deems it fit and proper to refer the
various statutory provision in order to appreciate the
argument advanced on behalf of the parties, the relevant is
Section 14 of the Administrative Tribunal Act, 1985 which
reads hereunder as :-
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 2***) 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 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 3 [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 [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 [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 different classes of, or different
categories under any class of, local or other
authorities or corporations 1 [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 2***) 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 1 [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 1 [or society] and pertaining
to the service of such person in connection with such
affairs."
99. This Court, after going through the provision as
contained under Section 14 of the Act, of 1985, needs to
refer herein the definition of "application", "service matters"
and the "service rules" as defined under Section 3(b), 3(q)
and 3(r) respectively which read hereunder as :-
3(b) "application" means an application made under
section 19;
(q) "service matters", in relation to a person, means all
matters relating to the conditions of his service 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, as the case may be, of any
corporation or society owned or controlled by the
Government, as respects--
(i) remuneration (including allowances), pension
and other retirement benefits;
(ii) tenure including confirmation, seniority,
promotion, reversion, premature retirement and
superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;
(r) "service rules as to redressal of grievances", in
relation to any matter, means the rules, regulations,
orders or other instruments or arrangements as in
force for the time being with respect to redressal,
otherwise than under this Act, of any grievances in
relation to such matters;
100. The "application" means, as defined under Section
3(b), that an application made under Section 19.
101. The "service matters" as defined under Section 2(q)
means in relation to a person, means all matters relating to
the conditions of his service 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, as the case may be, of any
corporation or society owned or controlled by the
Government, as respects-- (i) remuneration (including
allowances), pension and other retirement benefits; (ii)
tenure including confirmation, seniority, promotion,
reversion, premature retirement and superannuation; (iii)
leave of any kind; (iv) disciplinary matters; or (v) any other
matter whatsoever.
102. The Section 3(q)(v) is the issue of consideration in
the present case wherein it has been stipulated that any
other matter whatsoever which does imply that otherwise
the issue as referred in 3(q) (i) or 3(q)(ii), 3(q)(iii) and 3(q)(iv),
all other matters of any nature will be considered to be the
"service matters".
103. The Section 3(r) contains the definition of "service
rules as to redressal of grievances", which means in
relation to any matter, means the rules, regulations, orders
or other instruments or arrangements as in force for the
time being with respect to redressal, otherwise than under
this Act, of any grievances in relation to such matters.
104. The Section 19 contains the applications to be filed
to the Tribunal if a person is aggrieved by any order
pertaining to any matter within the jurisdiction of a
Tribunal may make an application to the Tribunal for the
redressal of his grievance.
105. As per the explanation to Section 19 - For the
purposes of this sub-section, "order" means an order
made-- (a) by the Government or a local or other authority
within the territory of India or under the control of the
Government of India or by any corporation or society owned
or controlled by the Government; or (b) by an officer,
committee or other body or agency of the Government or a
local or other authority or corporation or society referred to
in clause (a). The Section 19 reads hereunder as :-
"19. Applications to tribunals.--(1) Subject to the
other provisions of this Act, a person aggrieved by any
order pertaining to any matter within the jurisdiction
of a Tribunal may make an application to the Tribunal
for the redressal of his grievance.
Explanation.--For the purposes of this sub-section,
"order" means an order made--
(a) by the Government or a local or other
authority within the territory of India or under
the control of the Government of India or by any
corporation 3[or society] owned or controlled by
the Government; or
(b) by an officer, committee or other body or
agency of the Government or a local or other
authority or corporation 3[or society] referred to
in clause (a).
(2) Every application under sub-section (1) shall be in
such form and be accompanied by such documents or
other evidence and by such fee (if any, not exceeding
one hundred rupees) 4[in respect of the filing of such
application and by such other fees for the service or
execution of processes, as may be prescribed by the
Central Government].
5[(3) On receipt of an application under sub-section
(1), the Tribunal shall, if satisfied after such inquiry as
it may deem necessary, that the application is a fit
case for adjudication or trial by it, admit such
application; but where the Tribunal is not so satisfied,
it may summarily reject the application after recording
its reasons.]
(4) Where an application has been admitted by a
Tribunal under sub-section (3), every proceeding
under the relevant service rules as to redressal of
grievances in relation to the subject-matter of such
application pending immediately before such
admission shall abate and save as otherwise directed
by the Tribunal, no appeal or representation in
relation to such matter shall thereafter be entertained
under such rules."
106. Now adverting to the facts of the present case, it is
evident from the order passed by the Election Commission
of India dated 06.12.2021 can be considered to be a service
dispute within the meaning of the definition of "service
matters" as per the definition contained under Section 3(q).
107. The Section 14 provides that the service matter is
"recruitment and matters concerning recruitment", to any
All-India Service as also all service matters concerning a
member of All India Service. Further, 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).
108. It needs to refer herein that the respondent - writ
petitioner is a member of All India Service holding the post
during the relevant time as the Deputy Commissioner,
Deoghar, an IAS Officer.
109. The "service matter" as has been defined in respect
to any other matter whatsoever also including the
remuneration, (including allowances), pension and other
retirement benefits, tenure including confirmation,
seniority, promotion, reversion, premature retirement and
superannuation, leave of any kind and disciplinary
matters.
110. The stipulation made under 3(q)(v) is having the
wider scope and any other matter whatsoever of a member
of All India Service or as per the requirement as stipulated
under Section 14 of the Act, 1985 concerning a member of
an All India Service or a person appointed to any civil
service of the Union or any civil post under the Union or 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.
111. Although, the impugned order is a recommendation
made by the Election Commission of India with respect to
the conduct of the respondent - writ petitioner, after the
election having been notified but such recommendation
has been made after conclusion of the process of election
but the conduct of the petitioner has been considered to be
not in accordance with law by the Election Commission of
India in exercise of power conferred under Section 28A of
the Representation of People Act, 1951.
112. The provision as contained under Section 28A of the
Representation of People Act, 1951 since confers power
upon Election Commission of India after the notification of
the election and till the conclusion of the election to have
the control over all the public servant posted in the area
where the election has been notified which means that the
Election Commission of India will have all the powers to
put the things under control and even by exercising the
power to deal with the concerned public servant under the
Conduct Rules, meaning thereby, the Election Commission
of India can also exercise the power under the relevant
Conduct Rules during the course of election.
113. However, here it is not the case that the Election
Commission has exercised such power but due
recommendation was made to the State Government to
initiate a proceeding.
114. The proceeding will ultimately lead to the decision
to be taken by the State where the cadre of the respondent
-writ petitioner has been allocated. However, the relevant
rule which will be applicable is the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 to deal
with the conduct of the petitioner by initiating appropriate
proceeding as per the rule contained therein.
115. It is, thus, evident that on the basis of the said
recommendation, the State is to initiate the proceeding
under the Central Civil Services (Classification, Control and
Appeal) Rules, 1965. The moment the disciplinary
proceeding will be initiated acting upon the
recommendation of the Election Commission of India, there
might be two possibilities that the respondent - writ
petitioner might be exonerated on conclusion of the
proceeding or there will be chance of punishment.
116. This Court, therefore, is of the view that the
recommendation which has been made by the Election
Commission of India will ultimately lead to initiation of the
departmental proceeding under the relevant Conduct
Rules, i.e., Central Civil Services (Classification, Control
and Appeal) Rules, 1965, and in such circumstances it will
be said to be the service matter under the fold of any other
matter whatsoever.
117. At this juncture the import of section 14 of The
Administrative Tribunals Act, 1985 is required to be
discussed, wherein the Jurisdiction, powers and authority
of the Central Administrative Tribunal has been stipulated.
118. A bare perusal of aforesaid provision makes it
crystal clear that all service matters concerning to not only
All-India Service but also to any civil service of the Union or
to any civil post under the Union, fall within the
jurisdiction, power and authority of the Central
Administrative Tribunal.
119. Further, at this juncture, it would be just and
proper to discuss the power of the Election Commission
(respondent no.2/appellant) which has been enshrined in
the constitution.
120. As per the constitutional mandate Article 324(5)
stipulates that the president or the Governor of the state,
shall, when requested by the Election commission; make
available such staffs may be necessary for the discharge of
the functions as per the constitutional mandate conferred
on the Election Commission.
121. ln pursuance of the above constitutional provisions,
a well-defined structure of electoral machinery has been
provided in the election laws, contained in part II(A)
(sec.13A to 13CC) of Representation of the People Act, 1950
and corresponding provisions given in part IV (Scc.20 to 29)
of Representation of the People Act, 1951.
122. For ready reference the section 13CC of the
Representation of the People Act, 1950 is being quoted as
under:-
[13CC. Chief Electoral Officers, District Election
Officers, etc., deemed to be on deputation to Election
Commission.--The officers referred to in this Part and
any other officer or staff employed in connection with
the preparation, revision and correction of the
electoral rolls for, and the conduct of, all elections
shall be deemed to be on deputation to the Election
Commission for the period during which they are so
employed and such officers and staff shall, during
that period, be subject to the control,
superintendence and discipline of the Election
Commission.]
123. A similar provision is contained in section 28 A of
the Representation of the People Act,195l , which is also
being quoted as under:-
[28A. Returning officer, presiding officer, etc., deemed
to be on deputation to Election Commission.--The
returning officer, assistant returning officer, presiding
officer, polling officer and any other officer appointed
under this Part, and any police officer designated for
the time being by the State Government, for the
conduct of any election shall be deemed to be on
deputation to the Election Commission for the period
commencing on and from the date of the notification
calling for such election and ending with the date of
declaration of the results of such election and
accordingly, such officers shall, during that period,
be subject to the control, superintendence and
discipline of the Election Commission.]
124. From bare perusal of the aforesaid section it is
evident that the returning officer, assistant returning
officer, presiding officer, polling officer and any other officer
appointed under this Part, and any police officer designated
for the time being by the State Government, for the conduct
of any election shall be deemed to be on deputation to the
Election Commission for the period commencing on and
from the date of the notification calling for such election
and ending with the date of declaration of the results of
such election and accordingly, such officers shall, during
that period, be subject to the control, superintendence and
discipline of the Election Commission.
125. ln view of Section 28A of l95l Act, all the State
(Govt. officials who have been involved in elections in any
capacity, also shall deemed to be on deputation to the
Election Commission and they are thus by law, officers of
the Commission being on deputation to it and are subject
to its control, superintendence and discipline and are
answerable to the commission.
126. Now this court is adverting to the fact of the instant
case wherefrom it is evident that the petitioner was posted
as Deputy Commissioner, Deoghar during bye-election of
Madhupur Legislative Assembly Constituency held in the
month of April, 2021. The petitioner being the Deputy
Commissioner-cum-District Election Officer informed the
Chief Electoral Officer, Jharkhand vide letter dated
15.04.2021 citing various incidents of violating Model Code
of Conduct by Dr. Nishikant Dubey, Member of Parliament
from Godda Loksabha Constituency during the election
campaign of the said by-election.
127. Further, a complaint dated 19.04.2021 was received
by the ECI from Dr. Nishikant Dubey, M.P., Godda via
email wherein it was alleged that the petitioner being the
DEO, Deoghar and the Superintendent of Police, Deoghar
were working as agents of a political party during the
aforesaid by-election thereafter, the ECI removed the
petitioner from the position of DEO-cum-DC, Deoghar vide
letter dated 26.04. 2021.The process of election was
completed on 02.05.2021.
128. The petitioner was again posted as D.C, Deoghar
vide notification dated 3.05.2021 thereafter petitioner vide
letter dated 28.05.2021 and few other letters called for a
report regarding the action taken against Dr. Nishikant
Dubey, MP for violating Model Code of Conduct during the
said by-election pursuant to the said letter dated
15.04.2021 and vide letter dated 23.10.2021 the writ
petitioner directed the concerned authorities to take legal
action against Dr. Nishikant Dubey.
129. The Chief Electoral Officer, Jharkhand vide letter
no.2472 dated 26.10.2021 informed the petitioner that his
complaint/letter dated 15.04.2021 was already sent to the
ECI vide letter dated 18.04.2021 for necessary action.
130. The ECI also received a report from Chief Electoral
Officer (CEO), Jharkhand on 26.10.2021 mentioning inter
alia that five F.I.Rs. had been lodged against Dr. Nishikant
Dubey for violating Model Code of Conduct during the by-
election.
131. It was further reported by the CEO, Jharkhand that
neither any intimation was received from the petitioner
before/after lodging of the FIRs. nor any direction was
issued from the CEO office in this regard. The ECI vide
letter dated 3.11.2021 addressed to the CEO, Jharkhand,
Ranchi called explanation from the petitioner on various
points.
132. The petitioner replied the letter of ECI vide letter no.
1131 dated 11.11.2021 but, the said reply having not been
found satisfactory by the ECI and thereafter, ECI issued the
directions as contained in the impugned letter dated
6.12.2021 by which State Government has been directed to
initiate disciplinary proceeding for major penalty against
the petitioner by issuing memo of charge against him with
further direction to immediately remove him from the post
of Deputy Commissioner-Cum-District Election Officer,
Deoghar and not to post him as DC/DEO or on any other
election duty without prior permission of the ECI.
133. The writ petitioner being aggrieved with the Memo
dated 06.12.2021 has preferred the writ petition being
W.P.(S) No. 5716 of 2022 before this Court.
134. On the basis of the aforesaid discussion this Court
to examine nothing more except the fact whether there is
jurisdiction, power and authority to the Central
Administrative Tribunal in service matter of petitioners in
the instant case, as per the provisions of section 14 of The
Administrative Tribunals Act, 1985 (for short 'the Act')
135. In L. Chandra Kumar v. Union of India and
others AIR 1997 SC 1127 at paragraph 99, the Hon'ble
Supreme Court has held that the Tribunals constituted
under the Administrative Tribunals Act, 1985 act like
courts to 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
legislation (except where the legislation which creates the
particular Tribunal is challenged) by overlooking the
jurisdiction of the concerned Tribunal.
136. As discussed above, the object of forming the
Tribunal is to minimise the work load of the High Courts in
deciding the matters under Article 226 of the Constitution
and that way, such Tribunal was created as Court of first
instance. This is the true import of L. Chandra Kumar's
case (supra).
137. We cannot be forgetful that the question of
alternative remedy and the question of the Court of first
instance, are the two different aspects all together.
138. No doubt, the writ Court in a particular situation,
can ignore a question of alternative remedy and can start
hearing of a matter on merits instead of sending the same
back for exhausting the alternative remedy.
139. But, when the Central Administrative Tribunal is
created as a Court of first instance and all decisions of
such Tribunal are subjected to scrutiny by a Division
Bench of the High Court, this question cannot be ignored.
If this Division Bench of the High Court hearing the writ
matters regarding service passes an order ignoring the
existence of the Central Administrative Tribunal and as a
Court of first instance, it will become a jurisdictional error.
140. In L. Chandra Kumar's case (supra) it has been
categorically ruled by the Hon'ble Apex Court that the
Central Administrative Tribunal is a Court of first instance
i.e. first hearing will be made by the Tribunal and
thereafter against the decision of the Tribunal, it will be
heard by the Division Bench of the High Court.
141. In this way, the Constitution Bench of Hon'ble
Supreme Court has propounded a principle of universal
application to all the High Courts that the matters arising
out of the decisions of the Tribunal, will be cognizable,
exclusively by the Division Bench of the High Court under
Article 226 of the Constitution and the Tribunals will hear
the matters as a Court of first instance.
142. Therefore, if the High Court, under Article 226 of
the Constitution, ignores this aspect and holds that the
alternative forum of adjudication can be ignored and even
in such matters High Court can be directly approached, it
would lead to an anomalous position and would frustrate
the objective sought to be achieved by creating the Tribunal
as a Court of first instance.
143. Contention of the writ Petitioner that the
jurisdiction of the High Court under Article 226 is a part of
inviolable basic structure and framework of our
Constitution is a proposition which cannot be disputed.
However, in view of the binding dictum of the Constitution
Bench of the Supreme Court in L. Chandra Kumar (supra)
in the context of remedy before the Central Administrative
Tribunal, the writ petition cannot be entertained.
144. The presumption on which the arguments of the
petitioner are premised is that approaching the Tribunal is
an alternative remedy and therefore if the remedy is not
efficacious, a writ can be filed.
145. This argument cannot be sustained in view of the
observations of the Supreme Court in L. Chandra Kumar
(supra) that the remedy to approach the Tribunal in service
disputes with respect to employees who are amenable to its
jurisdiction is not an alternative remedy but is the only
remedy, the Tribunal being a Court of first instance.
Employees aggrieved by the decision of the Tribunal can
certainly approach the respective High Court having
territorial jurisdiction over the matter in its power of
judicial review over the decisions of the Tribunal.
146. Further by virtue of section 14 of the Act 1985 itself,
person aggrieved, can directly invoke the jurisdiction of the
Central Administrative Tribunal In the instant case,
although the petitioner has not invoked the jurisdiction of
the Tribunal, which is not only the alternative forum of
adjudication but also is a Court of first instance.
147. This Court, in such circumstances, is now
proceeding to examine the argument advanced on behalf of
the parties.
148. Mr. Rajeev Sinha, learned counsel appearing for the
Election Commission of India has raised the jurisdictional
issue of this High Court wherein the order of
recommendation dated 06.12.2021 has been challenged on
the ground that such recommendation will come under the
fold of any other matter whatsoever.
149. While on the other hand, Mr. Indrajit Sinha, learned
counsel appearing for the respondent - writ petitioner, has
submitted that since the order dated 06.12.2021 is merely
a recommendation which can be accepted or which cannot
be accepted also by the State and, as such, it will not come
under the fold of any other matter whatsoever and,
therefore, the writ petition will lie before the High Court.
150. This Court, on rival submission advanced on behalf
of the parties, as above, is of the view that what has been
argued by Mr. Indrajit Sinha, learned counsel for the
respondent - writ petitioner, that the recommendation so
made by the Election Commission of India is not binding.
151. If that be so, then why the writ petition has been
filed since, according to him, the said recommendation is
yet to be accepted and in such circumstances, the writ
petition will be said to be premature.
152. The writ petition since has been filed on the basis
that the respondent-writ petitioner has considered himself
to be aggrieved party after issuance of the order dated
06.12.2021 making recommendation to initiate
departmental proceeding which itself and impliedly means
that the recommendation is not optional upon the State,
rather, it binds the State and that is the mandate also if
the provision of Section 28A of the Representation of People
Act, 1951 will be taken into consideration wherein it has
been provided that if any irregularity in discharge of service
has been conducted either by the employee working in the
State Government or the Central Government, the Election
Commission will have power to make such
recommendation.
153. However, herein such recommendation has been
made on conclusion of the election but the conduct of the
petitioner which is the basis of making recommendation is
in course of the period of election, i.e., after notification of
the election and before conclusion of the process of election
and, as such, this Court is of the view that such
recommendation which has been made by the Election
Commission of India dated 06.12.2021 cannot be said to be
optional, rather, it is mandatorily to be accepted by the
State otherwise the constitutional spirit of establishment of
Election Commission of India will be frustrated and if the
same will be frustrated, the same will be nothing but
hitting the basic structure of the Constitution of India,
which, as per the Kesavananda Bharati v. State of
Kerala (Supra) case, is not permissible.
154. This Court, therefore, is of the view that the
recommendation as made by the Election Commission is
the basis of initiation of the service dispute and, as such, it
will come under the fold of "any other matter whatsoever"
at this stage and further, the respondent - writ petitioner is
the member of All India Service, hence as per the mandate
of Article 323A of the Constitution of India, subject to its
consideration by the Constitution Bench in the case of L.
Chandra Kumar Vs. Union of India & Ors (Supra),
particularly paragraph-99, for the respondent - writ
petitioner the Tribunal will be the court of first instance
and, as such, in view of the power by virtue of the judicial
pronouncement of the Hon'ble Apex Court as laid down in
paragraph-99, the remedy available to the writ petitioner is
Central Administrative Tribunal.
155. Accordingly, the issues are answered.
156. Having answered the issue, this Court, based upon
the aforesaid discussion made hereinabove, is of the view
that this Court is having no jurisdiction to act as a Court of
first instance giving go-bye to the Court of first instance
which is the Central Administrative Tribunal.
157. This Court, having discussed and coming across the
order passed by the learned Single Judge, wherein the
learned Single Judge has observed that the impugned order
dated 06.12.2021 has been passed in purported exercise of
the power under section 20-A of the Act, 1951 and not
under any service rules governing the terms and conditions
of service of the petitioner, thus, the present writ petition is
maintainable, is of the view that the same suffers from an
error and needs to be interfered with.
158. Therefore, the order passed by the learned Single
Judge dated 26.02.2024 in W.P.(S) No.5716 of 2022 is
hereby quashed and set aside.
159. In the result, the instant appeal stands allowed.
160. The respondent-writ petitioner is at liberty to
approach the Tribunal.
161. However, passing of this Order will not affect the
petitioner's right, if any, to approach the Central
Administrative Tribunal in accordance with law, if so
advised.
162. Pending interlocutory application, if any, also
stands disposed of.
I agree (Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Birendra/A.F.R.
