Madhya Pradesh High Court
Shivendra Bagri vs Union Of India on 21 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 21 st OF MAY, 2024
WRIT PETITION No. 12979 of 2024
BETWEEN:-
SHIVENDRA BAGRI S/O SHRI SHUBHKARAN BAGRI,
AGED ABOUT 26 YEARS, OCCUPATION: UNEMPLOYED
R/O VILLAGE MAUTA POST CHURWARI
RAGHURAJNAGAR DISTRICT SATNA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ATUL CHOUDHARY - ADVOCATE)
AND
1. UNION OF INDIA THROUGH GENERAL MANAGER
MINISTRY OF RAILWAYS WEST CENTRAL
RAILWAY INDIRA MARKET JABALPUR (MADHYA
PRADESH)
2. SENIOR DIVISIONAL PERSONNEL OFFICER, WEST
CENTRAL RAILWAY JABALPUR DIVISION
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PUSHPENDRA YADAV - DEPUTY SOLICITOR GENERAL)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner has filed this petition claiming following relief:-
"(i) A writ of mandamus to the respondents to issue the
appointment letter in favour of the petitioner, considering his
representations which were pending before them.
(ii) Kindly issue writ of mandamus by issuing direction to the
respondents to give all benefits to the petitioner from the date of
his application.
(iii) Any other appropriate writ, order or direction which the
Hon'ble Court may deem just and proper in the nature and
circumstances of the case."
2. However, at the very outset, Shri Yadav appearing for the respondents
has raised an objection with regard to tenability of the petition saying that in
pursuance to the orders passed by the coordinate Benches in WP No.
4909/2023-Ashish Patel vs. Union of India & Others decided on
09.08.2023 and WP No. 764/2023-Poonam Patel vs. Union of India &
Others decided on 01.09.2023 this petition is not maintainable.
3. Shri Choudhary appearing for the petitioner on the contrary has placed
reliance upon an order passed by the coordinate Bench in WP No. 3469/2023-
Geeta Dey vs. Union of India & Others decided on 10.07.2023 to evince that
this petition is maintainable.
4. I have heard the arguments advanced by the learned counsel for the
parties and also gone through the orders relied upon by them. In case of Ashish
Patel (supra) referred by the learned counsel for the respondents, the Court
relying upon a judgment of Supreme Court reported in (1997) 3 SCC 261 - L.
Chandra Kumar Vs. Union of India has observed as under:-
"A conjoint reading of Section 3(q) read with Section 14 of the
Administrative Tribunals Act, 1985, in the opinion of this Court,
the remedy avaialble before the Central Administrative Tribunal.
The Constitution Bench of Supreme Court in the case of L.
Chandra Kumar Vs. Union of India reported in (1997) 3 SCC 261
opined as under :-
"93. Before moving on to other aspects, we may summarise
our conclusions on the jurisdictional powers of these
Tribunals. The Tribunals are competent to hear matters where
the vires of statutory provisions are questioned. However, in
discharging this duty, they cannot act as substitutes for the
High Courts and the Supreme Court which have, under our
constitutional set-up, been specifically entrusted with such an
obligation. Their function in this respect is only
supplementary and all such decisions of the Tribunals will be
subject to scrutiny before a Division Bench of the respective
High Courts. The Tribunals will consequently also have the
power to test the vires of subordinate legislations and rules.
However, this power of the Tribunals will be subject to one
important exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes following
the settled principle that a Tribunal which is a creature of an
Act cannot declare that very Act to be unconstitutional. In
such cases alone, the High Court concerned may be
approached directly. All other decisions of these Tribunals,
rendered in cases that they are specifically empowered to
adjudicate upon by virtue of their parent statutes, will also be
subject to scrutiny before a Division Bench of their
respective High Courts. We may add that the Tribunals
will, however, continue to act as the only courts of first
instance in respect of the areas of law for which they have
been constituted. By this, we mean that it will not be
open for litigants to directly approach the High Courts
even in cases where they question the vires of statutory
l egi sl ati ons (except, as mentioned, where the legislation
which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal concerned."
(Emphasis supplied)
In view of this binding Constitution Bench judgment, the Court of
first instance for service matters is the Central Administrative
Tribunal and high Court is not obliged to act as a Court of first
instance. Thus, the petition is not maintainable and Single Bench
orders passed by other Benches in ignorance of Constitution Bench
Judgement are not binding on this Court."
Likewise in case of Poonam Patel (supra) also the Court relying upon the
judgment of L. Chandra Kumar (supra) has observed as under:
"3. Thus, grievance of petitioner is as regards service in
the Railways.
3.1 The appropriate forum of first instance to raise a
service dispute in regard to employment in connection with
affairs of the Union of India is the Central Administrative
Tribunal constituted under the Administrative Tribunals Act,
1985.
3.2 The Apex Court in the case of L. Chandra Kumar Vs.
Union of India reported in (1997) 3 SCC 261 held thus :
"93. Before moving on to other aspects, we may summarise
our conclusions on the jurisdictional powers of these
Tribunals. The Tribunals are competent to hear matters
where the vires of statutory provisions are questioned.
However, in discharging this duty, they cannot act as
substitutes for the High Courts and the Supreme Court
which have, under our constitutional set-up, been
specifically entrusted with such an obligation. Their
function in this respect is only supplementary and all such
decisions of the Tribunals will be subject to scrutiny
before a Division Bench of the respective High Courts. The
Tribunals will consequently also have the power to test the
vires of subordinate legislations and rules. However, this
power of the Tribunals will be subject to one important
exception. The Tribunals shall not entertain any question
regarding the vires of their parent statutes following the
settled principle that a Tribunal which is a creature of an
Act cannot declare that very Act to be unconstitutional. In
such cases alone, the High Court concerned may be
approached directly. All other decisions of these Tribunals,
rendered in cases that they are specifically empowered to
adjudicate upon by virtue of their parent statutes, will also
be subject to scrutiny before a Division Bench of their
respective High Courts. We may add that the Tribunals
will, however, continue to act as the only courts of
first instance in respect of the areas of law for which
they have been constituted. By this, we mean that it
will not be open for litigants to directly approach the
High Courts even in cases where they question the
vires of statutory legislations (except, as mentioned,
where the legislation which creates the particular Tribunal
is challenged) by overlooking the jurisdiction of the
Tribunal
concerned. "
(Emphasis supplied)
4. Learned counsel for petitioner at this juncture has brought
to the notice of this Court a Single Bench decision rendered in
W.P. No.1619/2023 (Shobhit Patel Vs. Union of India and
others) on 14.08.2023 whereby a Coordinate Bench of this
Court has allowed a petition raising a similar grievance as raised
herein on the anvil of the prayer made in that petition. A bare
perusal of the order dated 14.08.2023 reveals that the Co-
ordinate Bench was under the impression that the acquisition
policy framed by the Railways is under challenge. Whereas, the
prayer clause re-produced in the second page of the said order of
Co-ordinate Bench reveals that no such prayer was sought. In
fact, the only prayer sought was for grant of employment.
4.1 More so, the decision of the Co-ordinate Bench of this
Court rendered in W.P. No.1619/2023 runs contrary to the
constitution Bench decision of Apex Court in L. Chandra Kumar
(Supra) as extracted above. Therefore, in the face of the decision
in L. Chandra Kumar (Supra), the order of the co-ordinate Bench
rendered on 14.08.2023 in W.P. No.1619 of 2023 loses its
precedential value.
5. Accordingly, this Court declines to interfere on merits
and relegates the petitioner to avail the remedy before
appropriate Bench of the Central Administrative Tribunal."
5. However, in case of Geeta Dey (supra) the coordinate Bench placed
reliance upon an order passed in WP No. 2296/2023 - Ashok Kumar
Shrivastava vs. Union of India and Others decided on 16.06.2023 and
observed that the petition in the High Court is maintainable, but Shri Yadav
submits that the order passed in the case of Ashok Kumar Shrivastava
(supra) has been assailed in a writ appeal and the Division Bench has stayed the
said order.
6. Under such a circumstance, I am of the opinion that the observation
made by the coordinate Bench in the case of Geeta Dey (supra) is having no
binding effect and even otherwise looking to the judgments passed by the other
Coordinate Benches relying upon a judgment of Constitutional Bench and the
observation made in case of L. Chandra Kumar (supra), I am also of the
view that this petition is not maintainable before this Court and therefore I am
not inclined to interfere on merit of the case. However, the petitioner is at liberty
to avail appropriate remedy available before the Central Administrative Tribunal.
7. With the aforesaid, this petition is disposed of.
(SANJAY DWIVEDI)
JUDGE
RAGHVENDRA
