Madras High Court
Government Of Tamil Nadu And Ors. vs P. Hepzi Vimalabai on 28 September, 1994
Equivalent citations: (1995)1MLJ1
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT AR. Lakshmanan, J.
1.Writ Appeal Nos. 1419 of 1992 and 530 of 1993 were directed against the order of K.S. Bakthavatsalam, J. dated 6.4.1992 in W.P. No. 11997 of 1990 and the order dated 26.3.1992 in W.P. No. 7940 of 1992. The learned Judge allwed the above two writ petitions in view of the orders passed by him in W.P. Nos. 1911, 1912 and 2669 of 1990, dated 26.3.1992. Likewise, the learned Judge allowed W.P. No. 7940 of 1992 filed by one N. Vasanthi by following a Division Bench of this Court in Chairman, Railway Recruitment Board v. Ruban Peter, 1990 W.L.R. 1 : (1990)2 L.L.J. 92. The learned Judge by following the Division Bench, held that writ petitions in High Court arising at pre-recruitment stage by persons not already "in service" are maintainable and that the jurisdiction of the Tribunal is confined to disputes and complaints with respect to "recruitment and conditions of service" of persons already appointed. The learned Judge, however, has disagreed with the interpretation put forth by one of us (D. Raju, J.) regarding the judgment of a Division Bench of this Court in Ruban Peter's case.
2. A Division Bench of this Court consisting of the Hon'ble Chief Justice and T. Somasundaram, J., while dealing with W.A. Nos. 1419 of 1992 and 530 of 1993 and connected W.P. Nos. l 1431 of 1992, etc., batch and on going through the judgment of the earlier Division Bench of our High Court in Ruban Peter's case (1990)2 L.L.J. 92 : 1990 W.L.R. 1, doubted the soundness of the view expressed by the Division Bench in Ruban Peter's case. The said decision according to the order of reference, will have great repercussion and therefore they considered it necessary to refer the above cases to a larger Bench.
3. The following two questions were referred to us for our opinion:
(a) Whether a recruitment to any civil service of the State or to any civil post under the State, in the light of the provisions contained in Section 15(1)(a) of the Administrative Tribunals Act, 1985, on the coming into force of the Act, would come within the purview of Article 226 of the Constitution of India, or, would lie within the purview of the State Administrative Tribunal?
(b) Whether the recruitment by interview is justified in law?
The Division Bench referred the above writ appeals along with other cases involving the same question of law and that was how these cases are before us.
4. W.P. No. 11431 of 1992, etc., batch the petitioners have challenged their non-selection and prayed for mandamus directing the respondents therein to consider and select them.
5. To begin with, let us notice the relevant provisions of the Administrative Tribunals Act, 1985, viz. the preamble, Sections 3(q), 14, 15, 19 and 28 and Article 323-A of the Constitution of India. The preamble of the Administrative Tribunals Act, 1985, reads as follows:
An act to provide for the adjudication or trial by Administrative Tribunnals 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 or society owned or controlled by the Government in pursuance of Article 323-A of the Constitution and for matters connected therewith or incidental thereto
6. The statement of objects and reasons of the original Act reads as under:
Article 323-A of the Constitution stipulates that 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 with the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government....
The establishmennt of Administrative Tribunals under the aforesaid provisions of the Constitution has become necessary since a large number of cases relating to service matters are pending before the various courts. It is expected that the setting up of such Administrative Tribuunals to deal exclusively with service matters would go a long way in not only reducing the burden of various courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances (vide: Lok Sabha Bill No. 21 of 1985, published in the Gazette of India, Extraordinary, Part II, Section 2, dated 25th Januuary, 1985).
7. Section 3(q) of the Act reads as follows:
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.
8.9 Section 19 of the Act, which deals with the procedure, runs as follows:
19. Application 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 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).
(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) in respect of the filing of such application and by such other fees for service or execution of processes, as may be prescribed by the Central Government.
(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.
10. Section 28 of the Act deals with exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution, which reads as under:
28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution: On and from the date from which any jurisdiction, power and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post, no court except-
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.
11. Article 323-A of the Constitution of India runs as follows:
323-A. (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 371-D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to 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.
12. Mr. P. Shanmugham, learned Special Government Pleader appearing on behalf of the appellants, first invited our attention to the provisions above quoted and of the following decisions in support of his contention that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution was ousted under Section 15 of the Act, and that the disputes concerning "service" could only be agitated before the Central and State Administrative Tribunals, set up specifically under the Act. The decisions cited by the learned Special Government Pleader in support of his contentions are reported in Padmini Bai v. The State of Tamil Nadu, 1992 W.L.R. 205, S.P. Sampath Kumar v. Union of India AI.R. 1987 S.C. 386, K. Naga Raja v. The Superintending Engineer, Irrigation Department, Irrigation Circle, Chittoor , Dr. Usha Narwariya v. State of Madhya Pradesh (1994)2 L.L.J. 252(F.B.),Prafulla Kumar Swain v. Prakash Chandra Misra (1993)1 L.L.J. 749 (S.C.) and Union of India v. Deep Chand Pandey . According to Mr. P. Shanmugham, the decision of a Division Bench of our High Court reported in Chairman, Railway Recruitment Board v. Ruban Peter, 1990 W.L.R. 1 : (1990)2 L.L.J. 92, requires reconsideration by this Full Bench.
13. It is the contention of the learned Special Government Pleader, that the judgment in Ruban Peter's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92, discloses that the provisions contained in Section 28 of the Act and the difference between recruitments and conditions of service have not been brought to the notice of the Division Bench. According to the learned Special Government Pleader, Section 15(1)(a) of the Act, with which we are now concerned, specifically provides that on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts except the Supreme Court in relation to recruitment and matters concerning recruitment to any civil service of the State or to any civil post under the State, shall be exercised by the tribunal. It is his further contention that Section 28 of the Act, which specifically excludes the jurisdiction of the courts except the Supreme Court under Article 136 of the Constitution of India, provides that "no court except the Supreme Court or any Industrial Tribunal, Labour Court or authority constituted under the Industrial Disputes Act, 1947, or any other corresponding law for the time being in force, shall have or be entitled to exercise any jurisdiction or authority in relation to such recruitment or matters concerning recruitment or such service matters."
14. The learned Special Government Pleader cited the decision reported in S.P. Sampath Kumar v. Union of India AI.R. 1987 S.C. 386, wherein the Supreme Court in relation to Sections 14 and 15 of the Act has observed that under those sections all the powers of the courts except those of the Supreme Court in regard to matters specified therein, vest in the tribunals, Central or State. He has also invited our attention to the decision reported in Union of India v. Deep Chand Pandey , in support of his contention.
15. Let us now analyse the decisions cited by the learned Special Government Pleader. The first decision is reported in Padmini Bai v. The State of Tamil Nadu, 1992 W.L.R. 205. This judgment of one of us (Raju, J.) is dealt within the later part of this judgment.
16. The second decision is reported in S.P. Sampath Kumar v. Union of India A.I.R. 1987 S.C. 386. The following portion in paragraph 15 will be useful for our reference:
The Tribunal has been contemplated as a substitute and not as supplemental to the High Court in the scheme of administration of justice. To provide the tribunal as an additional forum from where parties could go to the High Court would certainly have been a retrogade step considering the situation and circumstances to meet which the innovation has been brought about. Thus, barring of the jurisdiction of the High Court can indeed not be a valid ground of attack.
17. The learned Special Government Pleader then cited a Full Bench decision of the Andhra Pradesh High Court reported in K. Naga Raja v. The Superintending Engineer, Irrigation Department, Irrigation Circle, Chittoor . The point raised before the said court was, whether a writ of mandamus would issue from the said court to the respective respondents to consider the applications for appointment in respect of the petitioners therein without insisting on their being sponsored by the Employment Exchange, as, according to them, the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, did not prohibit the consideration of such applications received direct from the candidate. When the matter was pending before a Division Bench, a preliminary objection with respect to the maintainability of the writ petitions in view of the bar under Article 371-D of the Constitution, was raised. The learned Advocate General who appeared and assisted the court submitted that the decision of the said court reported in Dr. Venkat Reddy v. State, 1982 Lab.I.C. 1927, on which the petitioners placed reliance, required reconsideration. As the Division Bench also doubted the correctness of the said decision, the matter was referred to a Full Bench along with other cases involving the same question. The Full Bench answered the reference as follows:
The words 'recruitment' and 'appointment' are not synonymous. Each has its separate connotation. It cannot, however, be said that Administrative Tribunal would derive jurisdiction only when the dispute relates to a person already employed in the service; and that any dispute relating to the process of selection leading to appointment would not fall within its ambit.
...
The constitutional object of Article 371-D with particular reference to Clause (7) thereof, is to relieve the High Court for that matter, every other court and tribunal, except the Supreme Court of the burden concerning service matters relating to State Government employees, and in that view also it would run counter to the provisions of the Article both in letter and spirit if a restrictive meaning is given to the application of the provisions barring the jurisdiction of the High Court in terms of Clause (7) of the Article. The expression 'with respect to appointment' in Clause (3) of Article 371-D should not be given a narrow meaning as to restrict its application to the stage after actual appointment. That expression not only takes within its sweep actual appointment as such or any stage posterior to such appointment, but also every stage leading to the appointment. The entire process of appointment forms an integral whole and it could not be taken in parts; so as to exclude the exercise in the process of selection leading to appointment from the jurisdictional ambit of the Administrative Tribunal. No such distinction or differentiation is warranted by the plain meaning of the expression used.....
It is evident that the expression 'person employed' occurring in para. 7 is used in a comprehensive sense for the sake of convenience to avoid repetition. A careful analysis of the language guardedly used in sub-para (1) of para. 7 would indicate that the persons employed are persons who are entitled to approach the Tribunal with 'representations for the redress of their grievances relating to matters within its jurisdiction', which implies that the right of the persons to seek redressal extends to all matters within its jurisdiction. The provisions contained in sub-para.(2) of para. 7 of the order are also of some relevance. The combined effect of Clauses (3), (4) and (7) of Article 371-D of the Constitution and paras. 2(1)(d), 6 and 7 oof the order is that the Administrative Tribunal and Administrative Tribunal alone, has jurisdiction to entertain matters with respect to appointment inclusive of selection process for being appointed to the post in service of the Government. It has to be noticed that para. 7 of the Order is one which lays down procedure than one conferring any right or jurisdiction. It is, in fact, an enabling provision which gives guidance as to what the Tribunal was expected and authorised to do when a person invokes its jurisdiction in terms of para. 6 (1) of the order. It would be absolutely unreasonable to hold that the intention of using the expression 'person employed' is to restrict the jurisdiction of the Tribunal.
18. The next decision relied on by the learned Special Government Pleader is reported in Dr. Usha Narwariya v. State of Madhya Pradesh (1994)2 L.L.J. 252 (M.P.) (F.B.). In that case, in response to an advertisement issued by the Madhya Pradesh Public Service Commission, the petitioner, before the Full Bench applied for appointment by selection to the post of Assistant Professor in Zoology. She was given a roll number and allowed to appear in the written examination. However, she was excluded from the zone of consideration for her having passed M.Sc. in Bio-science. Likewise, another petitioner had applied for appearing in the State Services Preliminary Examination, 1992 arranged for selecting suitable candidates for appointment to the State Administrative Services. The petitioner and a few others around 300 could not appear at the preliminary examination held at Gwalior on July 19, 1992, allegedly because of dislocation in railway services consequent to a sudden strike by railway employees at Jhansi resulting in belated arrival of the trains at Gwalior, by which time the examination was already over. Before the Division Bench, the learned Counsel appearing for the Public Service Commission raised the question of maintainability and entertainability of the petitions submitting that Section 14 read with Section 28 of the Administrative Tribunals Act, 1985, excluded the jurisdiction of the High Court and the appropriate forum before which the petitioners should have raised their grievances was the State Administrative Tribunal duly established and functioning in the State of Madhya Pradesh. The contention of the learned Counsel for the Commission was that the words "recruitment or matters concerning recruitment" used in Clause (a) of Sub-section (1) of Section 14 of the Act include the process of selection beginning with the issuance of advertisemennt and ending with the preparation of selection list for appointment of the candidates. He cited some decisions in support of his contention.
19. On the other hand, the learned Counsel appearing for the petitioners in that case placed reliance on some decisions including the decision of a Division Bench of our High Court reported in the Chairman, Railway Recruitment Board v. Ruban Peter, 1990 W.L.R. 1 : (1990)2 L.L.J. 92 and submitted that matters relating to 'pre-recruitment stage' cropping up for consideration at the instance of persons who are not 'in service' do not lie within the jurisdiction of the State Administrative Tribunal, as according to him, 'recruitment and matters concerning recruitment' occurring in Sections 14 and 15 of the Act were circumscribed in their application and covered the persons who had been appointed to public service or who were holding posts in connection with affairs of the Union or the State, etc., the Act having been enacted pursuant to the powers conferred on the Parliament by Article 323-A of the Constitution of India. The Full Bench of the Madhya Pradesh High Court has also referred to the decision of the Full Bench decision of the Andhra Pradesh High Court in K. Naga Raja's case A.I.R. 1987 A.P. 230 and accepted the principles laid down in the said judgment. Though the Full Bench referred to the decision of the Division Bench of our High Court in Rupan 's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92 and extracted a portion of the said judgment, has, however, did not express any opinion on the said Division Bench judgment. On a consideration of the decisions and materials placed by both parties, the Full Bench answered the reference that the petitions would lie within the jurisdiction of the Tribunal and do not lie before the High Court. The Full Bench recorded its reasons for such a conclusion as under:
It is thus clear that recruitment is an earlier part of the process which culminates in appointment. Selection is part of recruitment process and precedes appointment. Notifying the vacancies, inviting applications, their scrutiny, finalisation of list of such eligible candidates as would be put to test, their written or oral test and interview, selection and approval for appointment, are all different steps in the process of recruitment. So it would not have made any difference if the ppreamble to the Administrative Tribunals Act and Sections 14 and 15 thereof would have used the term 'recruitment' merely and avoided the use of the word 'matters concerning recruitment' inasmuch as 'matters concerning recruitment' would have been deemed to be included in 'recruitment' itself. The use of the phrase 'matters concerning recruitment' preceded by the word and conjunction 'recruitment and' is definitely suggestive of legislative intent to make the provision wide in its import so as to include in 'matters concerning recruitment' all such matters as could unwittingly be left out of 'recruitment'. Such an interpretation would also advance the object behind enactment of Tribunals Act....
It is well known that Article 323-A and Article 323-B finding place in Part XIV-A of the Constitution were so inserted by 42nd Amendment with the idea of lessening the burden of Courts and ensuring speedy dispensation of justice in service matters through adjudicatory bodies called Administrative Tribunals. What necessitated insertion of Article 323-A of the Constitution and enactment of Administrative Tribunals Act has been noticed and stated by the Supreme Court in S.P. Sampat Kumar-I and S.P. Sampat Kumar-II (1987)1 L.L.J. 128. The Tribunals are meant to be substituted for High Courts for relieving them of mounting backlog of cases and assuring quick settlement of service disputes in the interest of public servants. The Tribunals Act is a remedial piece of legislation. In construing a remedial Act, the court ought to give widest operation which the language of the Act will permit....
Having interpreted the term 'recruitment' as we have done, consistently with the law laid down by the Supreme Court, we are of the opinion that we see no justification in carving out jurisdiction of the Administrative Tribunals by drawing a distinction between 'pre-recruitment matters' and 'recruitment matters' for such a distinction would be not real, but merely a distinction without any difference. What has been called 'pre-recruitment' disputes in some of the decisions is nothing but a 'dispute concerning recruitment' within the meaning of the Act and the 'dispute or complaints with respect to recruitment' within the meaning of Article 323-A of the Constitution. Such a dispute would lie within the jurisdiction of the Administrative Tribunals....
Section 19 of the Tribunals Act referred to and relied on by the learned Counsel for the respondent finds place in Chapter IV entitled 'Procedure', while Sections 14 and 15 are to be found in Chapter III entitled 'Jurisdiction', power and authority of Tribunals'. Section 19 is merely a procedural or machinery provision which cannot be pressed into service for limiting down the scope of substantive provisions contained in Sections 14 and 15 of the Tribunals Act....
20. The next decision relied on by the learned Special Government Pleader is reported in Prafulla Kumar Swain v. Prakash Chandra Misra (1993)1 L.L.J. 749. In this decision, the Supreme Court while construing the meaning and effect of the words 'recruitment' and 'appointment' and 'appointment' held as follows:
At this stage, we will proceed to decide as to the meaning and effect of the words 'recruitment' and 'appointment'. The term 'recruitment' connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contra distinction the word 'appointment' means an actual act of posting a person to a particular office.
21. It is also useful to refer to the judgment of the Supreme Court reported in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra (1990)2 L.L.J. 135, wherein at page 137 it has been held as follows:
The word 'selection' in the context does not mean only the final act of selecting candidates with preparation of the list for appointment. The process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examination, calling for interview or viva voice and preparation of list of successful candidates for appointment.
22. The last decision relied on by Mr. P. Shanmugham, learned Special Government Pleader is reported in Union of India v. Deep Chand Pandey A.I.R. 1993 S.C. 382. In that case, the question which fell for decision before the Supreme Court was, whether the Central Administrative Tribunal is vested with the jurisdiction to entertain and decide the claim of the respondents therein as against the petitioners (Union of India and its officers) and consequently the High Court has no jurisdiction to deal with the matter. The Supreme Court in paragraphs 5 and 6 has observed as follows:
The scope of Article 323-A permitting the Parliament to legislate on the subject covered therein is, having regard to the language very wide, and by enacting 1985 Act this power has been exercised in almost full measure. An examination of Section 14 and Section 3(q) clearly indicates that the Act covers a very wide field, and there is nothing to suggest that the provisions dealing with the jurisdiction of the Tribunal should receive a narrow interpretation. This is also supported by the clarification offered by the then Minister for Law, who was piloting the Bill, while replying to the demand for the further enumeration of the conditions of service in Sections 14 and 15. He stated that (as recorded in the proceedings for 9th to 11th November, 1976 of the Rajya Sabha Debate) he believed the 'conditions of service' to be of such a wide expression that an attempt of enumeration would be 'really so dangerous from the point of view of the employees themselves that by exclusion you say that the others are not.
The present respondents are claiming the right to continue in the employment of the Union of India as before, with additional claim of temporary status and it is, therefore, idle to suggest that such a claim is not covered by the Act. The necessary conclusion, therefore, is that the remedy of the respondents was before the Tribunal and not the High Court. We, accordingly, hold that the High Court did not have the jurisdiction to entertain the claim of the respondents. Consequently, the impugned judgment is set aside, the writ petition before the High Court is dismissed and these appeals are allowed, but without costs.
23. Per contra, Mr. R. Gandhi, learned Senior Counsel appearing for the respondents in the writ appeals and for some of the petitioners in the writ petitions would invite our attention to the decision of a Division Bench of our High Court in Ruban 's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92 and would heavily rely on the said decision in support of his only contention that pre-recruitment matters would be outside the scope of the Tribunals constituted under the Act and such matters have to be dealt with only by Courts exercising jurisdiction under Articles 226 and 227 of the Constitution. He also invited our attention to the judgment of K. S. Bakthavatsalam, J. reported in N. Vasanthi v. The Teachers' Recruitment Board, 1992 W.L.R. 607, where the learned Judge followed the decision of the Division Bench referred to supra and dissents from the view taken by one of us (D. Raju, J.) in Padmini Bai v. The State of Tamil Nadu, 1992 W.L.R. 205.
24. It is significant at this stage to observe that the learned Judge (K.S. Bakthavatsalam, J.) has merely-applied the ruling of the Division Bench in Ruban's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92 and has not given any independent reasons for arriving at the conclusion that matters relating to pre-recruitment stage would be outside the purview of the Tribunals constituted under the Act and therefore a writ petition under Article 226 of the Constitution is maintainable.
25. Mr. R. Gandhi, learned Senior Counsel also brought to our notice a decision of the Aurangabad Bench of the Bombay High Court reported in Bashnurbi v. Divisional Accounts Officer, M.G. South Central Railway (1992)2 L.L.J. 391, wherein the Division Bench had taken the view that a claim by a widow of a deceased employee for family pension would fall outside the purview of the Administrative Tribunal and a writ would lie in such matters. It, therefore, becomes necessary for us to consider the reasons given by the Division Bench in Ruban's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92.
26. The following are the reasons given by the Division Bench for coming to the conclusion that questions which arise at a pre-recruitment stage by persons not already "in service" could be gone into by the High Court in exercise of the writ jurisdiction:
(A) The matters which can be taken upp by the Tribunal are those which would fall within the expression "Service Matters" defined in Section 3(q) of the Act and the said definition does not expressly include within its fold "Recruitment and matters concerning recruitment" which find mention in Section 14(1)(a) of the Act.
(B) The exclusion of jurisdiction of the High Court has to be restricted only in respect of matters envisaged by Article 323 of the Constitution.
(C) The use of the expression recruitment and matters concerning recruitment would imply that "in service" candidates can raise disputes before the Tribunal even in respect of matters relating to recruitment but no person who is not "in service" can approach the Tribunal for redressal of any grievance.
(D) The expression "Person aggrieved" in Section 19 of the Act implies any such person who is already in service and whose rights have been violated by an order pertaining to any matter within the jurisdiction of the Tribunal and a person who is not in service cannot be said to be a person aggrieved within the meaning of Section 19 of the Act.
(E) Form I as framed under Section 19 of the Act goes to show that the disputes can be raised only by "in service" candidates and not by persons who are not in service.
(F) That the expression "Recruitment and matters concerning recruitment" occurring in Section 14 of the Act cannot go beyond the provisions of Article 323(A) of the Constitution, which provide for Tribunals for adjudication of disputes and complaints with respect to recruitment and service conditions of employees who are already in service of the Union or the State.
27. The Division Bench has also expressed the opinion that their view is fortified by the Full Bench decision of the Himachal Pradesh High Court, in the decision reported in Padma Sharma v. The State of Himachal Pradesh (1989)2 A.I.S.L.J. 129.
28. One of us (D. Raju, J.) sitting singly had occasion to consider the Division Bench judgment in Ruban s case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92 and has held that conditions of service would itself cover the entire gamut of service conditions including promotion or appointment by selection and the concept of recruitment ordinarily connotes initial recruitment into service for the first time of one who is not already in service and anyone raising any dispute or making any claim in respect of "Recruitment to a service" shall go only before the Tribunal. The learned Judge in that case Padmini Bai v. The State of Tamil Nadu, 1992 W.L.R. 205, said as follows:
Viewed thus in the background of the case and the issue before their Lordships of the Division Bench, I am of the view that the issue of the nature did not arise for the consideration of the Division Bench in the fact situation like the one before me. It can also be seen that the case before the Division Bench (para 2 of the judgment) was concerned with a pre-recruitment stage' and not really pertaining to a recruitment stage or post-recruitment stage with respect to conditions of service of persons appointed to public services and posts of the class referred to in Article 323-A or Section 14 or Section 15 of the Act. That the Division Bench was only concerned with and confining their consideration of the questions posed from only to a 'pre-recruitment stage', is reinforced by the discussions in paras. 19 and 20 of the judgment where the decision of the Full Bench of the Himachal Pradesh High Court reported in Padma Sharma v. The State of Himachal Pradesh (1989)2 A.I.S.L.J. 129, is not only relied upon but was considered to fortify the opinion of the Division Bench. The passage extracted from the Full Bench decision of the Himachal Pradesh High Court, by the Division Bench as hereunder, would make it beyond doubt or controversy this presumption of mine:
Their Lordships, then went on to say: "Recruitment to a service of a civil post connotes the ideal of enlistment, acceptance, selection or approval for appointment to a service or to a civil post. The acquisition of eligibility for appointment, by itself, does not amount to recruitment as understood in service law.
and finally held:
We are of the opinion that a petition like the present where the petitioners are seeking redressal in the matter of their admission to the J.B.T. condensed course does not deal with a matter concerning recruitment to a civil service or post under a State of Himachal Pradesh. It cannot be directed to be transferred for consideration to the Himachal Pradesh Administrative Tribunal. The petitioners are entitled to consideration of their petition under Article 226 of the Constitution of India.
The view expressed by the Himachal Pradesh High Court, fortifies our opinion." (vide paragraph 20 of the Division Bench judgment).
Consequently, the observations in paragraph 14 of the judgment of the Division Bench regarding 'in service recruitment' to move the Tribunal must, in my view, be construed as having been said in the context of a "pre-recruitment stage" case and to be confined to the extent and nature of the issue raised before them and not to be read as if laying down a general proposition of universal application divorced from the facts and circumstances of the very case before their Lordships of the Division Bench. As a matter of fact, the stage at which the petitioner in the present case moved the Tribunal by filing O.A. No. 120 of 1989 as well as W.P. No. 1806 of 1989 before this Court is indisputably a 'pre-recruitment stage' of sending the name of the petitioner by the District Employment Office to the Recruitment Board so that the petitioner can be called for interview and consideration for selection for appointment by the Recruitment Board. The petitioner, in the present writ petition, is aggrieved by his non-selection and selection of others by the Recruitment Board. That such claims or consideration concerns the recruitment stage and not pre-recruitment stage admits of no controversy or doubt even judged by the views expressed by the Division Bench by following and quoting with approval the Full Bench decision of the Himachal Pradesh High Court.
"That apart, it could be seen that both Sections 14 and 15 of the Act merely repeat and adopt the phraseology recruitment and conditions of service of persons appointed to public services and posts'.... and do not employ any other language. Neither before the earlier Division Bench judgment nor in the present case before me, any plea regarding the constitutional validity of Section 14 or Section 15 in the sense of a grievance that it exceeds the scope and purport or authority conferred under Article 323-A of the Constitution of India has been raised. Thus, as the provisions stand at present it requires to be construed and the words of persons appointed to public services and posts' construed so as to indicate and refer to in service candidates' or those appointed to and to service. It would under the very scheme underlying the provisions of the Constitution qualify the words 'conditions of service' and not the words recruitment'. Conditions of service would itself cover the entire gamut of service conditions including promotion or appointment by selection and the concept of recruitment ordinarily connotes initial recruitment into service for the first time of one who is not already in service. Therefore, any one raising any dispute or making claim in respect of recruitment to a service' shall go only before the Tribunal.
As the provisions of Article 323-A of the Constitution of India as well as Sections 14 and 15 of the Administrative Tribunals Act, 1985 stands, disputes or claims regarding pre-recruitment stage are wholly outside the purview of the jurisdiction of the Tribunal. When, having regard to the nature and stage of the claim the dispute regarding which falls outside the purview of the Tribunal, the further issue or question as to the status or locus of the person bringing such claim for adjudication becomes wholly unnecessary. It is only in a case where the nature of the claim satisfies Section 14 or 15 that the further question regarding the status or eligibility of the person becomes relevant and necessary for consideration. The subject-matter of the decision of the Division Bench being indisputably one pertaining to pre-recruitment stage, it was unnecessary on the facts of that case to really consider the further issue based upon the status of the applicant, i.e. whether he was an 'in service candidate' or 'non-service candidate' as a separate issue de hors a pre-recruitment claim. That apart, as notices supra, there was no challenge as to the constitutional validity of Section 14 or Section 15 in that case for the reason that those provisions have the consequence of providing for something more than what was contemplated under Article 323-A of the Constitution of India or that those provisions take within it even disputes or claims of persons whom the provision in the Constitution itself did not recognise as eligible or entitled to approach the Tribunal.
No doubt, the above view of D. Raju, J. did not find favour with K.S. Bakthavatsalam, J.
29. We have bestowed our anxious and deep consideration to the questions referred for our decision and we have to express our inability to share the view expressed by the Division Bench in Ruban 's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92. We have also not been persuaded by the learned Senior Counsel appearing for the respondents to take a different view.
30. In our view, the use of the expression 'matters concerning recruitment' is wide enough to cover and include all matters concerning recruitment. There is no warrant to make a distinction between 'pre-recruitment matters' and 'recruitment matters'. We are of the opinion that the view expressed by the Division Bench in Ruban's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92, that only 'in service' candidates can raise disputes in respect of matters pertaining to recruitment and not a person not in service is not acceptable. On the contrary, 'recruitment' is a process which would cover within its ambit all the necessary steps commencing from the stage of notifying the vacancies and ending with the appointment of selected candidates. The fact that the definition of the expression 'service matters' in Section 3(q) of the Act does not make any reference to recruitment is wholly irrelevant'. 'Recruitment' is separately referred to in the preamble as well as in the relevant provisions of the Act. In addition thereto, the expression 'conditions of service of persons appointed' is also found. Section 3(q) of the Act is applicable to persons appointed to service. That is why that section does not make any reference to recruitment.
31. The above view expressed by us finds full support from the following Full Bench decisions of the Andhra Pradesh and Madhya Pradesh High Courts reported in K. Naga Raja v. The Superintending Engineer, Irrigation Department, Chittoor and Dr. Usha Narwariya v. State of M.P. (1994)2 L.L.J. 252.
32. The Supreme Court had occasion to consider the meaning of the words 'Recruitment' and 'Appointment' in Prafulla's case (1993)1 L.L.J., 749. The observations of the Supreme Court have been extracted in paragraphs supra. The position of law expounded by the Supreme Court amply supports the above view taken by us.
33. Section 19 of the Act which deals with the making of applications to the Tribunal is merely procedural and in our opinion, the said provision is wide enough to cover any matter which falls within the jurisdiction of the Tribunal. We have already explained the scope and jurisdiction of the Tribunal to deal with all disputes and complaints with respect to recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union and the State. Section 19 of the Act cannot control the substantive provisions of Sections 14 and 15 of the Act. Form I, which was framed under Section 19 of the Act, cannot also, in our vie w be pressed into service to understand the scope of jurisdiction of the Tribunal under Sections 14 and 15 of the Act.
34. In this connection, it is useful to refer to Section 28 of the Act extracted supra, wherein the words 'service' and 'post' have not been defined. This section says that it shall be effective on and from the date on which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal. Therefore, we have necessarily to refer to the provisions of Sections 14 and 15 of the Act relating to jurisdiction, powers, etc., of the Tribunals constituted under the Act. Those two sections have been extracted in paragraphs supra.
35. The expressions 'service' and 'post' are defined to Clauses (p) and (k) of Section 3 of the Act as service or post within or outside India. The expression 'service matters' occurring in this section is also referred to in Clause (q) of Section 3 as all matters relating to the conditions of service of any person in connection with the affairs of 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. Accordingly, this section provides that no court except the Supreme Court shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.
36. Article 323-A of the Constitution uses the expression 'recruitment' and 'conditions of service' of persons appointed to public service and posts. There is a clear distinction between the words 'recruitment' and 'appointment'. Having regard to the use of the words 'recruitment and matters concerning recruitment' in the Preamble and in Sections 14, 15 and 28 of the Act and in Article 323-A of the Constitution, it is clear that the Tribunal shall have exclusive jurisdiction to deal with all matters specified therein and the High Court shall not have jurisdiction to decide questions relating to recruitment and matters concerning recruitment to writ petitions filed under Article 226 of the Constitution of India.
37. Further, the court is also of the view that the word 'recruitment' cannot be clubbed with the expression appointment' because persons appointed will never be aggrieved by recruitment. This is the view taken by a Division Bench of the Allahabad High Court in the case of Sudhan Shee Tripathi v. Union of India (1988)56 F.L.R. 696, which reads as follows:
In Clause (1) of Article 323-A the relevant words used are 'recruitment' and 'conditions of service of persons appointed to public service and posts'. It is obvious that the words 'recruitment' and 'conditions of service of persons appointed' have been used to indicate different meanings and purpose. The appointment to public service or post is not the same thing as the recruitment. The 'appointment' as defined in Words and Phrases, Permanent Edition, Volume 3-A means the designation of person to hold an office (Use of Braden V.O'Neill, 83 A. 2d 382). It also means the designation of a person, by the person or persons having authority therefor to discharge the duties of some office or trust (In re: Nicholson's Estate, 93 p. 2d/880, 884, 104 Colo. 561).
'Appointments' is used in the sense of designation to or selection for public office not only as meaning the office or service to which one is appointed, but denoting the right or privilege conferred by an appointment, and the subject of a term of office is fairly included in a broad significance of the word (State v. Peake, 120 N.W. 47, 18 N.D. 101).
The meaning of the word 'recruitment' specified in the Shorter Oxford Dictionary, Vol.II, 1978 Edition page 1768 is 'a reinforcement; the act or process of recruiting'.
Taking clue from the words used in Article 323-A of the Constitution, the Parliament deliberately used the words 'recruitment' and 'matters concerning recruitment' in Sections 14 and 28 of the Act so as to indicate that the Tribunal shall have exclusive jurisdiction to deal with these matters and that the High Court in view of the specific provisions contained in Section 28, shall not have jurisdiction to entertain or adjudicate upon the petition in which questions relating to recruitment and matters concerning recruitment are raised.
In view of the above, we are unable to subscribe to the view taken by the Full Bench of the Himachal Pradesh High Court in the decision reported in Padma Sarma v. The State of Himachal Pradesh (1989)3 A.I.S.L.J. 129.
38. The following passage occurring in Union of India v. Deep Chand Pandey , can also be usefully referred to:
In pursuance of Article 323-A of the Constitution of India, the Administrative Tribunals Act, 1985 was passed and the Central Administrative Tribunal, established under Section 4(1) thereof was available to the respondednts in the present case. By Clause (2)(d) of Article 323-A, the Parliament was authorised to exclude the jurisdiction of this Court (Supreme Court) under Article 136 with respect to the dispute and complaints referred to in Clause (1) and accordingly by Section 14 of the Act, all the jurisdiction, powers and authority exercisable by all courts except the Supreme Court have been vested in the Central Administrative Tribunal. The question, therefore, is whether the Central Administrative Tribunal could entertain the claim of the respondents, who were, before termination of their employment, engaged as casual servants of the Union of India.
The expression 'all Courts' mentioned in Section 14(1) is comprehensive enough to include the High Court. If the subject matter of the claim of the respondents is held to be covered by Section 14, it must follow that the High Court is not left with any jurisdiction to deal with the same... The scope of Article 323-A permitting the Parliament to legislate on the subject covered therein is, having regard to the language, very wide, and by enacting 1985 Act, this power has been exercised in almost full measure. An examination of Section 14 and Section 3(q) clearly indicates that the Act covers a very wide field, and there is nothing to suggest that the provisions dealing with the jurisdiction of the Tribunal should receive a narrow interpretation. This is also supported by the clarification offered by the then Minister for Law, who was piloting the Bill, while replying to the demand for the further enumeration of the conditions of service in Sections 14 and 15. He stated that (as recorded in the proceedings for 9th to 11th November, 1976 of the Rajya Sabha Debate) he believed the 'conditions of service' to be of such a wide expression that an attempt of enumeration would be 'really so dangerous themselves that by exclusion you say that the others are not'.
With respect, we do not agree with the view expressed by the Division Bench in Ruban 's case, 1990, W.L.R. 1 : (1990)2 L.L.J. 92. We are also of the view that there can be no distinction such as 'recruitment' and 'pre-recruitment' matters. The judgment in Ruban's case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92, is hereby overruled.
40. Thus, we answer the questions referred to us as follows:
(a) Recruitment to any Civil Service of the State or to any civil post under the State would exclusively fall within the provisions of Section 15(1)(a) of the Administrative Tribunals Act, 1985 and the same would be outside the purview of a petition under Article 226 of the Constitution of India.
(b) The second question viz. 'whether the recruitment by interview is justified in law' was not rightly argued before us, for, this is a matter which has to be decided by the 'Forum' constituted under the Administrative Tribunals Act, 1985.
41. The reference is answered accordingly. Hence, the writ appeals are allowed and the writ petitions are dismissed.