Central Administrative Tribunal - Lucknow
Smt Laxmi vs Union Of India on 4 July, 2022
CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors.
Central Administrative Tribunal
Lucknow Bench, Lucknow
Reserved on: 02/02/2022
Pronounced on: 04/07/2022
Original Application No. 353 of 2015
CORAM
Hon'ble Mr. Devendra Chaudhry, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member (J)
Smt. Laxmi, aged about 26 years, W/o Sri Dheeraj Kumar,
R/o Village & Post Haripur, T.P. Nagra, District Sultanpur
.............. Applicant
By Advocate: Sri Dharmendra Awasthi
Versus.
1. Union of India through its Secretary, Ministry of
Postal department, New Delhi.
2. Director, Postal Services, Lucknow U.P. Region, Office
of the Chief Postmaster General, Lucknow.
3. Chief Postmaster General, Lucknow.
4. Superintendent of post Offices, Sultanpur Divsion,
Sultanpur.
5. Uma Kant Dubey, S/o Sri Purshottam Dubey, R/o
Village & Post Vaijdpur District Pratapgarh
.............Respondents
By Advocate: Sri Shatrohan Lal
ORDER
Per Hon' Devendra Chaudhry, Member (A) The present Original Application (O.A.) has been preferred against the order dated 18.08.2015 passed by the respondent Page 1 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. no.4 whereby appointment of the applicant has been cancelled with regard to post of Gram Dak Sewak („ GDS‟ in short hereinafter), Post office Baitikalan, Koiripur, District Sultanpur.
2. Brief facts of the case are that, when the post of GDS BPM Post Office Batikalan (B.O.) Koripur, district Sultanpur, fell vacant, an advertisement for filling it up was issued in August 2014 (Annexure A-2), whereupon the applicant along with 72 others applied. That, the applicant was given appointment vide order dated 27.05.2015 (Annexure A-4) and after verification of documents, the Respondent-4 issued a letter dated 30/05/2015 for training of the applicant from 01/06/2015 to 04/06/2015 (Annexure A-6). However, R-5 made a complaint against the appointment and R-4 as a result of which the training of the applicant was cancelled vide letter dated 03/06/2015 (Annexure A-8). Thereafter vide letter dated 10/06/2015 the engagement of the applicant was kept in abeyance pending inquiry (Annexure A-7). That thereafter vide letter dated 18/08/2015 the engagement issued vide 27/05/2015 itself was cancelled (Annexure A-1). 2.1 It is asserted by the applicant that the complaint on the basis of which her engagement has been cancelled is misleading inasmuch that the complainant R-5 is also a candidate for the examination conducted for the appointment Page 2 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. to the same post as the applicant and therefore has a vested interest in the applicant not being selected. In fact, even he is not eligible and he has concealed the fact that he has passed High School twice - once in 1991 from Bahudhandhi High School, Sonahita, Jaunpur and also in 2014 from Kisan IC Ajosi Jaunpur per marksheets at Annexure A-9/10. Further that R-5 is also working as LIC Agent vide code number - 0704521 (Annexure A-12) which is a disqualification for the post which is why every candidate is required to state in Sl- 12 (Annexure A-13) of the application form as to whether he/she is working as LIC Agent. That this fact has been concealed by the complainant while applying for the said post which is evident from the LIC document of R-5 (Annexure A-
12) making him ineligible and in consequence, he is also misleading the respondents with regards to case of the applicant‟s eligibility.
2.2 Accordingly, the applicant has challenged the impugned order on the grounds of (i) that no opportunity of hearing has been given before passing of the order, (ii) the order is arbitrary as the applicant has not violated any condition of securing the employment to the post of GDS aforesaid, (iii) that the applicant fulfills all conditions thereto prescribed and, finally (iv) the complaint is malicious and on false misleading grounds. Ld. counsel for the applicant has also Page 3 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. relied on the judgment of Hon‟ble High Court of Allahabad, Lucknow Bench and other citations to fortify his case. It is therefore asserted that the impugned order is worthy of being quashed and hence the O.A.
3. Per contra, the respondents deny any wrong doing and assert that the impugned order is lawful on the grounds that
(i) the appointment of the applicant has been cancelled as per inquiry after a complaint by one Sri Diwakar Misra, son of Sri Uma Shanker Mishra, R/o Village Kudhuwa Post Thakurganj, Jaunpur whereby it was complained that the applicant has passed High school twice viz. 2005 and 2013 and that this fact has been hidden by the applicant and therefore, the applicant is not eligible for getting selected on the basis of the presented qualification, (ii) that a similar complaint was also made against the applicant by one of the candidates, viz R-5,
(iii) That on the basis of various complaints, the respondents apprehending wide scale fraud in the conduct of the basic examination itself, have therefore cancelled the whole/entire concerned examination vide order dated 13/08/2015 (Annexure CR-1) which also includes the applicant. That as the entire examination itself has been cancelled therefore there is no reason to give any opportunity of hearing to the applicant in specific and so the action against her is neither arbitrary or mala fide. Further, that the impugned order has Page 4 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. been issued rightly as per the GDS Engagement Rules and the law laid down by the Hon‟ble Apex Court, more particularly in the matter of cases of fraud etc. That therefore there has been no illegality in the issuance of the impugned order and so the O.A. is worthy of being dismissed.
4. Heard the learned counsel for the parties at length and perused the pleadings carefully.
5. The key issue is the legality of the impugned order as per the GDS (Conduct & Engagement) Rules, 2011 („Rules‟ in short hereinafter), and settled law.
6. In order to decide the matter, it would be well to examine the impugned order of 18/08/2015 and the representation dated 14/07/2015 (Annexure no. A-14) filed against it, for which purpose the same are reproduced herein below:-
Annexure A-1:
"....Department of Posts India O/o Supdt. of Posts Sultanpur Dn. Sultanpur-228001 No. B-3/43-A/Baintikala/2015 dated at Sultanpur 18.8.15 The engagement order issued vide this office memo no. even dated 27.5.15 in favour of Smt. Laxmi W/o Sh. Dhiraj Kumar on the post of GDS BPM Baintikala BO (Loiripur) is hereby cancelled with immediate effect. This issues is with the approval of competent authority.
Sd/-
Supdt. Of Posts.
Sultanpur Dn.
Sultanpur 228001
----------------------------------------------------------Page 5 of 17
CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors.
Annexure A-14:
To, The Post Master General, Postal Services, Lucknow, Lucknow.
Sir, Subject: Handing and Taking over charge as BPM at Baintikala, Sultanpur Request Regarding.
It is bring to your honour's kind notice that I have been appointed as BPM at Bainti Kala Sultanpur vide order dated 27.05.2015 of the Superintendent Postal services, Sultanpur issued vide order letter C.No./Memo No. B-3/43- A/Bainti Kala/2015 dated at Sultanpur the 27.05.2015 and accordingly obtained Training for four 01.06.2015 to 04.06.2015 (Photo copy of order and training order's enclosed) for reference later on SPO has directed that the order may be held in abeyance is the matter is under enquiry.
The complainant is Uma Kant Dubey has submitted his matriculation certificate marks-sheet of the year 2014, whereas he has already passed matriculation examination in the year 1991 by securing 305/600 in IInd Division from Bahukhandi H.S. School Sonhita, Jaunpur (Photocopy enclosed) for reference.
That Sri Dubey has passed Intermediate examination in the year 1993 in IIIrd Division by securing 182/500 from Sri G.S. Inter College Samodhpur (Photocopy enclosed) for reference.
That Sri Dubey was also engaged in L.I.C. as LIC agent Code No. 0604521 copy of the same is enclosed for reference.
Hence Sri Dubey has cancelled the facts and figures to the department.
In view of the facts stated above, I would therefore request your honour to kindly consider my case and allow me to take over the charge as BPM Baintikala, Koriripur Sultanpur.
For this act of your honour's kind consideration and favourable order's I shall remain obliged to your good self for ever.
Encl. Yours faithfully
(Laxmi Upadhyaya)
Atd PO Hanipur
Copy submitted to the SPO's Sultanpur for information and for this sympathetic consideration and favourable order's please.
(Laxmi Upadhayay)"Page 6 of 17
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7. As evident, the impugned order of termination dated 18/08/2015 reveals that no particular Rule has been referred to in the order. The representation of date 17/07/2015 does not firstly mention as to against which order the representation is and, secondly under what rule the same has been filed. From the language and the wordings of the representation it only seeks re- engagement along with facts concerning R-5 complaint and as to how he himself is ineligible for the post. Notwithstanding this Tribunal has to see as to what Rules can be applicable in the case at hand. Since the matter involves termination of engagement, the relevant Rules of the GDS (Conduct & Engagement) Rules, 2011 are: Rule-8, 9, 12, 13 and 4. Same read as under:
Rule-8 "...8. Termination of Engagement (1) The engagement of a Sevak who has not already rendered more than three years' continuous service from the date of his engaement shall be liable to be terminated at any time by a notice in writing given either by the Sevak to the Recruiting Authority or by the Recruiting Authority to the Sevak:
(2) The period of such notice shall be one month:
Provided that the service of any such Sevak may be terminated forthwith and on such termination. the 5evak shall be entitled to claim a sum equivalent to the amount of Basic Time Related Continuity Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service or' as the case may be for the period by which such notice falls short of one month' NOTE. - Where the intended effect of such termination has to be immediate, it should be mentioned that one month's Time Related Continuity Allowance plus Dearness Allowance as admissible is being remitted to the Sevak in lieu of notice of one month through money order.
Rule-9 "...9. Nature of penalties: The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Sevak by the Recruiting Authority. namely:- (i) Censure;
(ii) Debarring of a Sevak from appearing in the recruitment examination for the post of Multi-Tasking Staff Croup C and/or postman and/or from being Page 7 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors.
considered for recruitment as Postal Assistants,/Sorting Assistants for a period not exceeding three years;
(iii) Debarring of a Sevak from being considered for recruitment 10 Multi Tasking staff 6roup 'C' on the basis of selection cum seniority for a period not exceeding three years;
(iv) Recovery from Time Related Continuity Allowance of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders;
(v) Removal from engagement which shall not be a disqualification for future employment
(vi) Dismissal from engagement which shall ordinarily be a disqualification for future employment.
Rule-12 "....12. Put off duty (l) The Recruiting Authority or any authority to which the Recruiting Authority is subordinate or any other authority empowered in that behalf by the Government, by general or special order, may put a Sevak off duty:
(a) Where a disciplinary proceedings against him is contemplated or is Pending;
or
(b) Where a case against him in respect of any criminal offence is under investigation, enquiry or trial:
Provided that in cases involving fraud or embezzlement, the Sevak holding any post specified in the Schedule to these rules may be put off duty by the Inspector of Posts , or the Assistant Superintendent of Post Offices of the Sub- Division, as the case may be, under immediate intimation to the Recruiting Authority' (2) An order made by the Inspector of post offices or the Assistant Superintendent of Post Offices as the case may be, of the Sub-Division under Sub-rule (l) shall cease to be effective on the expiry of fifteen days from the date of such order unless earlier confirmed or cancelled by the Recruiting Authority or the authority to which the Recruiting Authority is subordinate.
(3) A Sevak shall be entitled per month for the period of put off duty to draw amount of compensation as ex-gratia payment equal to 25a/o of his/her Time Related Continuity Allowance together with admissible Dearness Allowance:
Provided that where the period of put off duty exceeds 90 days, the Recruiting Authority or the authority to which the Recruiting Authority or any other authority empowered in this behalf, as the case may be. who made the order o{ put off duty shall be competent to vary the amount of compensation for any period subsequent to the period of first 90 days as follows:-
(i) The amount of compensation as ex-gratia payment may be increased by a suitable amount, not exceeding 50% of such compensation admissible during the period of the first 90 days, if in the opinion of the said Page 8 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors.
authority the period of put off duty has been prolonged' for reasons to be recorded in writing not directly attributable to the Sevak'.
(ii) The amount of compensation as ex-gratia payment may be reduced by a suitable amount not exceeding 5Oolo of such compensation admissible during the first 90 days' if in the opinion of the said authority' the period of put off duty has been prolonged due to reason to be recorded in writing directly attributable 1o the Sevak' Rule-13 Appeal (1) A Sevak may appeal against an order putting him off duty to the authority to which the authority passing the order regarding putting him off duty is immediately subordinate.
(2) A Sevak may appeal against an order imposing on him any of the penalties specified in Rule 9 to the authority to which the authority imposing the penalty is immediately subordinate.
Rule-4 Recruiting Authority (1) The Recruiting Authority in respect of each category of Sevak shall be as shown in the Schedule annexed to these rules. (2) lf any doubt arises as to who is the appropriate Authority in any case, the matter shall be referred to the Government, whose decision thereon shall be final.
(3) Notwithstanding anything contained in these rules, any authority superior to the Recruiting Authority as shown in the Schedule, may, at any time, either on its own motion or otherwise call for the records relating to the engagement of Gramin Dak Sevaks made by the Recruiting Authority, and if such Recruiting Authority appears-
(a) to have exercised a jurisdiction not vested in it by any law or rules time being in force: or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, such superior authority may, after giving an opportunity of being heard, make such order as it thinks fit.
8. As may be seen Rule-8 of the Gramin Dak Sewak (Conduct & Employment) Rules, 2011 provides for termination of employment for a Sewak who has not completed three years of Page 9 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. continuous employment. Rule-9(vi) provides for dismissal from employment and Rule-12 enables a GDS to be put-off duty. Rule- 13 provides for appeal against an order under Rule-12, is for Putting off duty and against any of the penalties imposed under Rule-9. We may now examine as to the applicability of various Rules. On this count, it seems that Rule-9 is not attracted because in it, there is provision for termination but only by way of punishment and per the facts narrated earlier this is not an order under Rule-9 as there is no aspect of punishment involved. Rule-8 cannot perhaps come into play because the applicant has not even completed the training and so could never render any continuous service / engagement qua the three-year limit. In fact, her appointment got cancelled even before she could undergo the training and so ab initio ipso facto, there was no occasion to go into regular service and so even the Proviso containing the entitlement to TCRA stated in Rule-8 cannot come into play as not even a day of service was done by the applicant. Rule-12 may also not be applicable as in the case at hand we do not have an order placing the applicant on put-off duty arrangement, again because the applicant was not allowed to complete the training period and so never even started regular service. The applicability of Rule-4 needs analysis and perhaps more documentation than available with regards to the conditions specified therein. Moreso there seems to be no doubt as to who is the competent recruiting authority per Rule 4(2) or for that matter whether any authority superior to the Recruiting authority called for records relating to the appointment in question. The impugned order at least does Page 10 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. not state anything on this point. What is important is that we find that the O.A. or, representation of the applicant and for that matter, the impugned order itself including other related orders fail to mention any Rule based on which the concerned orders could have been passed. It is none of the business of the court to imagine the application of any Rule and proceed to supplant the same and then go ahead and adjudicate on that presumptive basis. Therefore, it was the business of the applicant to sort it out before approaching the court and not come to it in a frivolous rushed manner. We may also analyse the citation of the Hon High Court of Allahabad, Lucknow Bench order dated 30/04/2018, relied upon by the ld applicant counsel, relevant portions of which are extracted below:
"This Bunch of 61 writ petitions (except writ petitions No. 61220 of 2017 and 7835 of 2018) has come at the instance of Union of India through Chief Post Master General U.P. Circle, Circle Office, Hazaratganj Lucknow and two other Authorities of Postal Department who are aggrieved by a common judgment dated 14 July 2017 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as, 'Tribunal') deciding 100 Original Applications (hereinafter referred to as, 'O.A.') filed by various applicant-respondents who were terminated by orders of various dates, though similarly worded, by taking recourse to Rule 8 of Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 (hereinafter referred to as, 'Rules 2011'). [EMPHASIS SUPPLIED ] Tribunal has allowed O.As and termination orders have been set aside. Petitioners have been directed to reinstate applicant-respondents and to give consequential benefits. "
As may be seen the citation is with regards to Rule-8 and this unfortunately does not help much here on account of the fact that the applicant has not challenged the impugned order Page 11 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. under Rule-8. In fact as already stated there is no specific Rule stated to challenge the order per se. The Civil Procedure Code, 1908 ("Code") includes complete provisions with respect to the life cycle of a civil suit under Indian law. Upon filing a civil suit or a commercial suit, a court can reject the plaint on satisfaction of grounds listed under Order 7 Rule 11 of the Code. Among these, a key ground for rejection is where the plaint does not disclose a cause of action. The Hon Apex Court in the matter of Dahiben vs Arvindbhai Kalyanji Bhanusali ... on 9 July, 2020, CIVIL APPEAL NO. 9519 OF 2019, (Arising out of SLP (Civil) No.11618 of 2017) held as under:
"...Order VII Rule 11 CPC, which reads as under:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed in undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." (emphasis supplied) . The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.Page 12 of 17
CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. In Azhar Hussain v. Rajiv Gandhi1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be 11986 Supp. SCC 315 Followed in Maharaj Shri Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o Late Maharaja Mahedrasinhji, (1998) 2 GLH 823 permitted to waste judicial time of the court, in the following words :
"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action." 12.2 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to. 12.3 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
12.4 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :
"Order 7 Rule 14: Production of document on which plaintiff sues or relies.- (1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at 2 Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr., (2004) 9 SCC 512. the same time deliver the document and a copy thereof, to be filed with the plaint. (2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory." (emphasis supplied) Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
12.5 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
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CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors. 12.6 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.3 12.7 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr.,4 which reads as :
"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed." In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court 3 Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137 4 (2004) 9 SCC 512, 5 (2007) 5 SCC 614, cannot embark upon an enquiry whether the allegations are true in fact.6 12.8 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC. 12.9 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra.7 The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause
(a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
6 D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941. 7 (2003) 1 SCC 557. 13. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
In Swamy Atmanand v. Sri Ramakrishna Tapovanam8 this Court held :
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded" (emphasis supplied) In T. Arivandandam v. T.V. Satyapal & Anr.9 this Court held Page 14 of 17 CAT Lko Bench - OA 353/2015 Smt. Laxmi Vs. UOI & Ors.
that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : -
"5. ...The learned Munsiff must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has 8 (2005) 10 SCC
51. 9 (1977) 4 SCC 467. created the illusion of a cause of action, nip it in the bud at the first hearing ..." (emphasis supplied) Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal,10 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal11 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
Therefore, for the Tribunal to presume application of a Rule on behalf of the applicant would be substituting its own legal grounds where none exist and even risk the situation of trying to assist the applicant out of legal jurisdiction.
Sufficient cause of action is not disclosed merely by stating that the order is arbitrary and unlawful. The specific Rule has to be challenged. In the event therefore it is to the applicant‟s disadvantage of filing an O.A. without adequate citing of lawful grounds. A general statement that the order is unlawful is insufficient unless the concerned Rule is cited against which the order may be ultra vires, particularly when such Rules exist. In the absence of such plea the Tribunal cannot assume illegality of the order.Page 15 of 17
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9. In the event therefore, since the applicant has not challenged the order under any specific rule, therefore this Tribunal cannot presume the mind of the applicant qua the Rule which she would wish to take recourse to for assailing the impugned order. The representation dated 14/07/2015 is only with regards to taking the applicant back into training as also as to how the claim of the complainant for appointment is dubious on account of his double High School qualification which per applicant seems to be a disqualification in itself, but, in any case, is not the subject of the case at hand. There is no counter filed by R-5 the private respondent despite grant of opportunity to do so. The O.A. is not, repeat not challenging the impugned order under any Rule. So, the vires or the ultra vires of the impugned order cannot be assessed per any Rule. That being the case, it is open then, as to whether the applicant has or has not exhausted a remedy or remedies which may be available against the impugned order qua a specific Rule or Rules discussed above. This would in turn open up the issue of the applicant approaching the Tribunal without exhausting such remedy or remedies, which would then be a violation of Section-20 the Central Administrative Tribunals Act, 1985 and so, there is a possible case for dismissing the O.A. at the threshold itself.Page 16 of 17
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10. In conclusion therefore we are unable to find any ground for holding the impugned order illegal. Accordingly, the O.A. is liable to be dismissed and is dismissed.
11. No costs.
(Swarup Kumar Mishra) (Devendra Chaudhry)
Member (J) Member (A)
JNS
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