Jharkhand High Court
Kumar Abhishek vs The Union Of India Through The ... on 27 September, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.4601 of 2023
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Kumar Abhishek, aged about 32 years, son of Rajendram Prasad,
resident of Upper Kilburn Colony, bind Hinoo, P.O. Hinoo, P.S.
Doranda, District Ranchi, Jharkhand.
.... .... Petitioner
Versus
1. The Union of India through the Controller of Defence Accounts,
having its office at Udayan Vihar Narangi, Satgaon, P.O.
Patharquerry, P.S. Kamrup, District Kamrup, Guwahati-781171,
Assam.
2. The Deputy Controller, Controller of Defence Accounts,
Government of India, having its office at Udayan Vihar Narangi,
Satgaon, P.O. Patharquerry, P.S. Kamrup, District Kamrup,
Guwahati-781171, Assam.
3. The Regional Director, Staff Selection Commission (ER), Niram
Place, 1st M.S.O. Building, 8th Floor, 234/4, A.J.C. Bose Road,
P.O. and P.S. A.J.C Bose Road, District Kolkata, West Bengal.
4. The Controller General of Defence Accounts (AN-VIII), Ulan
Batar, Rao Tularam Marg, Sports View, Palam, P.O. and P.S.
Delhi Cantt, New Delhi, 110010
5. The Deputy Director, Staff Selection Commission (ER), Niram
Place, 1st M.S.O. Building, 8th Floor, 234/4, A.J.C. Bose Road,
P.O. and P.S. A.J.C Bose Road, District Kolkata, West Bengal.
.... .... Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mr. Arvind Kr. Choudhary, Advocate
For the UOI : Mr. Anil Kumar, Addl. S.G.I.
: Mr. Abhijeet Kr. Singh, Advocate
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06/Dated: 27.09.2024
Per Sujit Narayan Prasad, J.
Prayer
1. This writ petition is under Article 226 of the Constitution of
India, whereby and whereunder, the order dated 18.07.2023 passed
by the learned Central Administrative Tribunal, Patna Bench, Patna,
Circuit Bench, in OA No.051/00428/2023 has been assailed, by
which, the original application has been held to be devoid of merits
and accordingly, has declined to pass positive direction to direct the
respondents to accept the joining of the present petitioner.
Factual Matrix
2. The brief facts, as per the pleading made in the writ petition, as
also, the impugned order, required to be enumerated, which reads as
under:-
3. It is the case of the writ petitioner that he was selected for the
post of Auditor in the Defence Accounts Department and offer of
appointment on 26.11.2018 was sent to him.
4. According to offer of appointment, he had to report for joining
within 30 days from the date of receipt of the letter. The writ
petitioner has made request for extension of joining time and vide
letter dated 20.02.2019, extension of joining time of six months was
granted but he has not joined the said post on the extended time.
5. Thereafter, he has made another request for extension of
joining time and at that time, vide order dated 18.06.2019, three
months' time, up to 26.08.2019, was granted. Again, he had not
joined the post and on 10.02.2020, dossier of the petitioner was
returned back by the respondents to Staff Selection Commission.
6. The writ petitioner/applicant, thereafter, on 02.02.2021, sent
petition/application addressed to the CDA and his said application
was referred to the CDA Guwahati by the Sr. Accounts Officer, vide
letter dated 11.02.2021, and pursuant thereto, letter dated
26.02.2021, was sent to the petitioner/applicant stating that his
candidature nomination has been automatically cancelled as he has
failed to join his duty within the stipulated time.
7. It is evident from the factual aspect that the writ petitioner, in
pursuant to the advertisement floated by the Recruitment Agency to
the post of Auditor in the Defence Accounts Department, has found
to be successful based upon the performance in the recruitment
process.
8. The recommendation made with respect to the appointment of
the writ petitioner has been accepted by the competent authority,
thereafter, the offer of appointment was issued on 26.11.2018 but the
petitioner for one reason or the other, has not joined the said post.
9. The ground has been taken that his father was having some
cardiac issue, therefore, an application was made for extension of
time. The same was extended up to the month of August, 2019 but
even then, he has not joined the service, thereafter, Pandemic
Covid-19 has come and hence, the delay has been caused.
Representations were filed and the same were also rejected,
thereafter, the petitioner/applicant has approached the tribunal by
filing original application under Section 14 of the Administrative
Tribunals Act, 1985.
10. The respondents have been called upon. The respondents
have taken the ground that after lapse of extended period, the joining
cannot be accepted to the post of Auditor.
11. The learned Tribunal has accepted the opposition made on
behalf of the respondents and has dismissed the original application,
against which, the present petition has been filed.
Arguments of the writ petitioner
12. Mr. Arvind Kumar Choudhary, learned counsel for the petitioner
has taken the ground that there is no deliberate laches on the part of
the writ petitioner, rather, due to the reason beyond his control, i.e.,
in the initial stage, due to suffering of his father from some cardiac
issue and thereafter, the Pandemic Covid-19 are the reasons, due to
which, the petitioner could not be able to give his joining.
13. The ground has also been taken that the said facts have also
been brought to the notice of the respondents-authority while filing
representations but the aforesaid aspect of the matter, has not been
appreciated by the learned Tribunal, therefore, the present petition.
Arguments of the Respondent-UOI
14. Per contra, Mr. Abhijeet Kumar Singh, learned counsel
appearing for the respondent-UOI has argued the case by defending
the order passed by the learned Tribunal.
15. It has been contended that the said decision cannot be
interfered with due to the reason that the recruitment was of the year,
2018-19 and now, we are in the end of year, 2024 and as such, there
is substantial delay, i.e., about six years. As such, in such a long
delay, there cannot be any direction to accept the joining of the
petitioner that too, in a case, where after issuance of offer of
appointment, so many advertisements in the meanwhile, have come.
Analysis
16. This Court has heard the learned counsel for the parties and
gone through the pleadings made in the writ petition, as also, the
order passed by the learned tribunal.
17. This Court, before entering into the rival contentions raised on
behalf of the parties, is of the view that the reference is required to
be made with respect to the jurisdiction which is to be exercised by
the High Court showing interference with the order passed by the
learned Tribunal under Section 14 of the Administrative Tribunals Act,
1985.
18. The aforesaid issue has already been decided by the Hon'ble
Apex Court in its Constitution Bench Judgment rendered in the case
of L. Chandra Kumar Vs. Union of India and Others, reported in
(1997) 3 SCC 261, wherein, it has been held that the High Court has
been conferred with the power under Article 226 of the Constitution
of India to exercise the power of judicial review. The reference of the
relevant paragraph needs to be referred herein, which reads
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."
19. It is evident from paragraph-99 of the aforesaid judgment, as
quoted and referred above, that the High Court has been conferred
with the power to exercise the power of judicial review.
20. The "judicial review" means that if there is any error apparent
on the face of the record then the power of judicial review can be
exercised, reference in this regard may be made to the judgment
rendered by the Hon'ble Apex Court in the case of West Bengal
Central School Service Commission & Ors Vrs. Abdul Halim &
Ors., reported in (2019) 18 SCC 39, wherein, at paragraph-30 it has
been held as under:-
"30. In exercise of its power of judicial review, the Court
is to see whether the decision impugned is vitiated by an
apparent error of law. The test to determine whether a
decision is vitiated by error apparent on the face of the
record is whether the error is self-evident on the face of
the record or whether the error requires examination or
argument to establish it. If an error has to be established
by a process of reasoning, on points where there may
reasonably be two opinions, it cannot be said to be an
error on the face of the record, as held by this Court in
Satyanarayan vs. Mallikarjuna reported in AIR 1960 SC
137. If the provision of a statutory rule is reasonably
capable of two or more constructions and one
construction has been adopted, the decision would not
be open to interference by the writ Court. It is only an
obvious misinterpretation of a relevant statutory
provision, or ignorance or disregard thereof, or a
decision founded on reasons which are clearly wrong in
law, which can be corrected by the writ Court by
issuance of writ of Certiorari."
21. Likewise, the Hon'ble Apex Court in the case of T.C. Basappa
Versus T. Nagappa, reported in (1955) 1 SCR 250, wherein, it has
been held as under:-
"An error in the decision or determination itself may also
be amenable to a writ of certiorari but it must be a
manifest error apparent on the face of the proceedings, e.
g. when it is based on clear ignorance or disregard of the
provisions of law. In other words, it is a patent error which
can be corrected by certiorari but not a mere wrong
decision."
22. Adverting to the factual aspect of the present case, herein the
admitted position is that the recruitment process has begun in the
year 2018 and on conclusion thereof, the appointment letter was
issued to the petitioner on 26.11.2018. The petitioner has made
request for extension of joining time and vide letter dated
20.02.2019, the extension of joining time of six months was granted
but he has not joined the post on the extended time. Thereafter, he
has made another request for extension of joining and at that time,
vide order dated 18.06.2019, three months' extension time up to
26.08.2019 was again granted but he has not joined. The reason
has been shown of suffering of his father due to some cardiac issue.
The second ground has been taken of Pandemic Covid-19.
23. The question herein which requires to be considered that
whether after lapse of six years, any such direction can be passed by
the High Court under Article 226 of the Constitution of India in
exercise of power of judicial review by showing interference with the
decision so taken by the learned tribunal?
24. The Hon'ble Apex Court, since, has laid down the proposition
in the case of L. Chandra Kumar Vs. Union of India and Others
(supra), wherein, the power of judicial review is only to be exercised
in order to look into the propriety of the decision taken by the learned
tribunal, which power is to be exercised only in a case where the
decision on the face of the order is found to suffer from perversity.
25. Here, the reason might be bona fide. But the question is that
when the recruitment process is going on year-wise and the law is
well settled that if after the issuance of appointment letter, the
recruitment will be said to be closed but the remaining process will
have to be carry forwarded to the new vacancy year. As such, there
is no question of availability of post, the moment, the recruitment
process has been closed, rather, the remaining vacancy will have to
be considered by notifying the same by issuance of the fresh
advertisement.
26. The power is to be exercised by the High Court only in two
circumstances, i.e., if there is any breach of fundamental right or any
legal vested right.
27. This Court has gathered from the pleading made, as also, from
the argument that it is not a case of breach of fundamental right or
even the legal vested right, the aforesaid view has also been taken
note by the learned tribunal.
28. Therefore, this Court is of the view that the order passed by the
learned tribunal, cannot be said to suffer from vice of perversity.
29. This Court, applying the principle laid down by the Hon'ble
Apex Court in the case of L. Chandra Kumar Vs. Union of India
and Others (supra), therefore, is of the view that the impugned
order requires no interference.
30. Accordingly, the instant writ petition fails and is, dismissed.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Rohit/-A.F.R.
