Allahabad High Court
Ramjeet And Ors. vs Central Administrative Tribunal Thru ... on 25 April, 2014
Bench: Amreshwar Pratap Sahi, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Reserved) Case :- WRIT - A No. - 10928 of 2013 Petitioner :- Ramjeet And Ors. Respondent :- Central Administrative Tribunal Thru Registrar And Ors. Counsel for Petitioner :- Akhilesh Kumar Pandey Counsel for Respondent :- Sudhir Bharti,Prashant Mathur Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajan Roy,J.
(Delivered by Hon'ble Rajan Roy,J.) By means of this writ petition, the petitioner is challenging the order dated 21.05.2012 passed by the Central Administrative Tribunal, Allahabad, Allahabad Bench, Allahabad (hereinafter referred to as ''the Tribunal') in purported exercise of its powers under Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987, by means of which the learned Tribunal has modified its judgment and order dated 04.02.2011 passed in Original Application No.1210 of 2006.
As the merits of the claim of the petitioners are not in issue in the instant writ petition, the same having already been adjudicated by the learned Tribunal vide its judgment and order dated 04.02.2011 in O.A. No.1210 of 2006, therefore, it is not necessary to narrate the facts of the case in detail.
Suffice it to say that as the Original Application No.1210 of 2006 was filed by the petitioners before the learned Tribunal seeking their regularisation against vacancies on 3270 class-IV posts, which had been advertised on 29.10.2005 in the Employment News, considering the earlier directions of the Tribunal in O.A. No.1000 of 1991, as, on account of availability of the said vacancies, a fresh cause of action had arisen in spite of the rejection of their claim earlier vide order dated 16.10.1992 and inspite of earlier round of litigation between the parties.
After exchange of affidavits, the learned Tribunal heard the Original Application and allowed the same vide judgment and order dated 04.02.2011, the relevant extracts of the judgment is being quoted hereinbelow:
"7. ............................ As they had worked earlier and there is Judgment of the Tribunal in O.A. No.1000 of 1991 hence their case must be considered prior to advertising the post but it has not been done by the respondents hence we are of the opinion that the case of the applicants must be considered by the respondents for regularization in the light of various directions and judgment.
8. For the reasons mentioned above, we are of the opinion that as the applicants had worked for more than 120 days hence as per Railway Board's instructions, they are entitled to be regularized and they are agitating the matter since 1992 and earlier to that they have also moved to the Hon'ble Supreme Court in another case for impleadment as party but that application was rejected with the direction that they must agitate the matter before the Central Administrative Tribunal, and thereafter O.A. No.1000 of 1991 was filed and even a Contempt Petition was moved, which was disposed of on submitting the written reply to the effect that 66 senior persons to the applicants are waiting for their regularization but even then the case of the applicants was not considered rather the vacancies were advertised. In these circumstances, O.A. deserves to be allowed partly.
9. O.A. is allowed partly. The advertisement dated 29.10.2005, published in the Employment News, is modified to the extent that case of the applicants shall also be considered as per direction of the Tribunal in O.A. No.1000 of 1991 and Contempt Petition No.113 of 1992. The case of the applicants shall be considered as per direction in that O.A. and in the body of this Judgment within a period of three months from the date of receipt of a copy of the order. The respondents shall be apprised about the order by the Advocate for the respondents as well as a copy of the order shall also be delivered to the respondents by the applicants forthwith. No order as to costs."
It appears that during pendency of the Original Application some inquiry was conducted in respect of the selection held in pursuance of the advertisement dated 29.10.2005 on the allegation that a leakage of question papers took place on 26.02.2006.
It appears that after the disposal of O.A. No.1210 of 2006 vide judgment and order dated 04.02.2011, the aforesaid selection was cancelled on 28.04.2011.
Based on the aforesaid cancellation of selection, the respondents filed an application for modification of the judgment and order dated 04.02.2011 purporting to be an application under Rule 24 of the Rules of 1987.
By means of the said application, the following modification was sought:
"This Hon'ble Tribunal may graciously be pleased to modify the order and judgment dated 04.02.2011 to the extent that as and when a fresh recruitment will be started the appointment of the Applicants will be considered in accordance with rules."
After hearing the parties, the learned Tribunal decided the aforesaid application vide order dated 21.05.2012, which is impugned in this writ petition. The learned Tribunal took the view that once the entire selection had been cancelled, then the order passed by it on 04.02.2011 cannot be complied with. Accordingly, it modified the order dated 04.02.2011 as under:
"7. Accordingly, the order dated 04.02.2011 is modified to the extent it direct the respondents to consider the name of the applicant pursuance to above advertisement. The applicant is at liberty to challenge the decision dated 28.4.11 of the respondents, if so desired, in the original side.
8. In view of the above, the instant Misc. Application is disposed of."
It has been submitted on behalf of petitioners that by exercising the powers under Rule 24, the learned Tribunal has virtually nullified its judgment dated 04.02.2011, which is impermissible in law. The provisions of Rule 24 do not permit such action.
On the other hand, the learned counsel for the opposite parties has submitted that the Tribunal has rightly exercised its powers under Rule 24 "to secure the ends of justice". The impugned order does not suffer from any error. The advertisement itself having been cancelled, the petitioners were not entitled to be considered in pursuance thereof. He also submitted that the petitioners had subsequently filed a contempt petition arising out of the judgment dated 04.02.2011, which was dismissed, thereafter, they filed an Original Application No.1293 of 2012 seeking consideration for re-engagement/ regularisation, which was also decided vide judgment and order dated 01.10.2012.
After hearing the learned counsel for petitioner as well the learned standing counsel for the opposite parties, we are of the view that the short question, which falls for consideration in the instant writ petition is as under:
(i) Whether the learned Tribunal was empowered under Rule 24 of the Rules of 1987 to alter, modify or nullify its judgment and order dated 04.02.2011 passed in O.A. No.1210 of 2006, that too, on an application for modification filed by the respondents, based on a subsequent event?
The petitioners, who are casual labourers having been appointed way back in the year 1976-1977 had filed the Original Application No.1210 of 2006 seeking their regularisation. The said original application had been filed under Section 19 of the Administrative Tribunals Act, 1985. It was decided vide judgment and order dated 04.02.2011 in their favour. The said judgment was neither challenged by the respondents before a higher court nor any review petition was filed seeking a review of the same, therefore, it attained finality between the parties.
The Central Government has framed Central Administrative Tribunal (Procedure) Rules, 1987 in exercise of powers conferred by clauses (d), (e) and (f) of sub-Section (2) of Section 35 and clause (c) of Section 36 of the Administrative Tribunals Act, 1985. Rule 24 of the said Rules reads as under:
"24. Order and directions in certain cases.- The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice."
In this context reference may be made to the pronouncement of the Supreme Court in the case of Union of India Vs. J.R. Dhiman reported in 1999 (6) SCC 403, where their Lordships of the Supreme Court had an occasion to consider the scope of Rule 24 of the Rules of 1987. They observed as under:
"4. The contention put forth before us is that under Rule 24 of the Central Administrative (Procedure) Rules, 1987, the Tribunal may make such orders or give such direction as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. A perusal of the order made by the Tribunal on the application for contempt goes far beyond the original order and issued directions to the revisional authority the manner in which the order has to be made when originally the order made by the revisional authority was set aside and the matter was remitted for fresh consideration after taking into note of the pleadings raised in the original application before the Tribunal and any fresh contention that may be advanced. It is clear that the order made by the Tribunal is that it could not have passed an order other than what had been passed earlier, namely, one of a penalty reducing the time scale of pay of the two stages for a period of two years and certain other directions. It is not permissible at all for the Tribunal to direct the revisional authority to pass such a punishment alone and any higher punishment could not be imposed. When the order made by the revisional authority had been set aside and the matter was remitted for fresh consideration certainly, after consideration of all aspects of the matter it could pass an appropriate order in accordance with law.
5. In that view of the matter, the Tribunal has no justification to give direction as made in the order under appeal. Such an order does not fall within the scope of Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987. Hence, the order made by the Tribunal to this extent shall stand quashed. It is made clear that if any order is made in any other proceedings initiated by the respondent it will not be affected by this order."
The aforesaid provision is somewhat similar to the provision contained under Section 151 of the Civil Procedure Code, which reads as under:
"151. Saving of inherit powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
The Supreme Court in the case of Dwaraka Das Vs. State of Madhya Pradesh and another reported in 1999 (3) S.C.C. 500 while considering the scope of the powers of the civil court under Sections 151 and 152, C.P.C. in a matter where a judgment and decree was altered in exercise of the powers under the said provisions observed as under:
"6. ..................................The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. .................................. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective order in the lis pending before them. No Court can, under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. ................"
In the case of Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 SC 993, their Lordships of Supreme Court considered the scope of inherent powers of the civil court under Section 151 of the Civil Procedure Code and observed as under:
"19.................................It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a Particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates......................................................"
In the case of K.K. Velusamy Vs. N. Palanisamy, 2011 (11) SCC 275, it was held as under:
"12................................
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
In the instant case, O.A. No.1210 of 2006 was finally decided by judgment and order dated 04.02.2011. As per the law declared by the Supreme Court in the case of L. Chandra Kumar Vs. Union of India, AIR 1997 SC 1125, the judgment of the Tribunal could be challenged before the High Court under Article 226/227 of the Constitution of India. Further, under Section 22(3)(f) of the Act of 1985 and Rule 17 of the Rules of 1987, the Tribunal has the powers of a civil court to review its judgment. Relevant extract of Section 22(3)(f) is being quoted hereinbelow:
"22. Procedure and powers of Tribunals. -
(1) .................................
(2) .................................
(3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely :-
(a) ..................................
(b) ..................................
(c) ..................................
(d) .................................
(e) ................................
(f) reviewing its decisions;
(g) ...............................
(h) ................................"
It is trite that after deciding the lis pending before it, the Tribunal becomes functus officio. Subsequently, the judgment rendered by it can only be varied either under Article 226/227 or on a review application. The Tribunal could not have entertained the application for modification. The only course of action open to the aggrieved party was to challenge the said judgment under Article 226/227 or to file a review application.
The learned Tribunal failed to appreciate the purport and scope of Rule 24. The power vested under the said provision could be used to give effect to the judgment and order dated 04.02.2011, i.e. for implementation/ enforcement. It could not be used to alter, modify or nullify it.
By means of the impugned order dated 21.05.2012, the learned Tribunal reviewed and nullified its judgment dated 04.02.2011, as it withdrew the direction contained therein and verily dismissed the original application, which it had allowed by acceding to the cancellation of the selection held in pursuance of the impugned advertisement. This was clearly beyond the scope of Rule 24 of the Rules of 1987.
The order passed by the learned Tribunal under Rule 24 also cannot be said to be an order to prevent the abuse of its process as no such abuse of process was alleged nor involved.
It can also not be said to be an order "to secure the ends of justice", as in the garb of the said words, the Tribunal cannot review its earlier judgment as a separate provision exists for the said purpose.
In this context, the judgments of the Supreme Court in the cases of Dwaraka Das's (supra), Arjun Singh (supra) and K.K. Velusamy (supra) are very relevant as a similar provision under Section 151, C.P.C. empowering the civil court to make such orders as may be necessary for securing the ends of justice or to prevent abuse of the process of the court has been considered therein and it has categorically been held that the said provision cannot be used to modify, alter or add to the terms of its original judgment, decree or order.
Moreover, the principles laid down by the Supreme Court in K.K. Velusamy's case (supra) regarding the scope of exercise of power under Section 151, C.P.C. can very well be applied to the scope of power under Rule 24 of Rules of 1987. Applying the same, it is evident that the power of review has been explicitly vested in the Tribunal under Section 22(3)(f) of the Act, 1985 and Rule 17 of the Rules of 1987. Therefore, the power under Rule 24 could not be invoked in order to cut across the powers of review conferred by the Act of 1985 and Rules of 1987. The Tribunal could not have made use of the special provisions of Rule 24 as the remedy in such matters is provided under Section 22(3)(f) and Rule 17 separately. Provision of Rule 24 should not be treated as a carte blanche to grant any relief.
Apart from the above, the impugned order passed by the learned Tribunal is also contrary to the relief claimed in the modification application as would be evident from a conjoint reading of the prayer in the said application and the relief granted by the Tribunal thereof vide order dated 21.05.2012.
The learned Tribunal also failed to appreciate that the cancellation of the selection on 28.04.2011 is subsequent to the passing of the judgment dated 04.02.2011 in O.A. No.1210 of 2006, therefore, it could not form the basis for modifying the said judgment.
Moreover, the cancellation of selection for direct recruitment held in pursuance of the impugned advertisement on the ground of alleged leakage of papers was not at all relevant, so far as the entitlement of the petitioners to consideration for regularisation in terms of the judgment dated 04.02.2011 was concerned, as, they had not appeared in the said selection but had merely been granted right of consideration for regularisation against the vacancies mentioned in the advertisement, in terms of the earlier judgment passed by the Tribunal in O.A. No.1000 of 1991. The reference to the said advertisement in the judgment dated 04.02.2011 was only for the said purpose. In view of the above, the filing of an application for modification of the judgment dated 04.02.2011 was quite unnecessary apart from being legally unsustainable under Rule 24 of the Rules of 1987.
In view of the above discussion, we have no hesitation in holding that the impugned order dated 21.05.2012 could not have been passed in exercise of the powers under Rule 24 of the Rules of 1987. The question framed in the earlier part of the judgment is accordingly answered in the negative.
In view of the above discussion, the impugned order dated 21.05.2012 is not sustainable in the eye of law. The same is, accordingly, quashed. Consequences to follow.
The writ petition is allowed.
Order Date :- 25.04.2014 NLY