Central Administrative Tribunal - Jaipur
Mahipal Yadav vs Central Excise & Customs on 21 March, 2025
OA No. 86/2016 1
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 86/2016
Order Reserved on: 24.02.2025
DATE OF ORDER: 21.03.2025
CORAM
HON'BLE MS. RANJANA SHAHI, JUDICIAL MEMBER
HON'BLE MR. LOK RANJAN, ADMINISTRATIVE MEMBER
Mahipal Yadav son of Late Shri Banwari Lal aged about 57
years R/o Yadav Nagar, Nine Shop, Panipech, Jaipur.
Presently working on post of Superintendent in office of
Central Excise and Service Tax Audit Commissionerate, Statue
Circle, C-Scheme, Jaipur.
....Applicant
Shri C.P. Sharma, counsel for the applicant.
VERSUS
1. Union of India through Secretary, Government of India,
Ministry of Finance, Department of Revenue, North Block,
New Delhi.
2. Dr. Sandeep Srivastava Son of not known to applicant,
presently holding the post of Commissioner of Customs
and Central Excise, NCR Building, Statue Circle, "C"
Scheme, Jaipur.
.... Respondents
Shri Kinshuk Jain, counsel for the respondents.
ORDER
Per: RANJANA SHAHI, JUDICIAL MEMBER
The present Original Application has been filed by the
applicant praying therein that the impugned letter dated
OA No. 86/2016 2
25.08.2015 and order dated 28.01.2011 which pertain to
respondent No. 2, Dr. Sandeep Srivastava may be quashed
and set aside and has sought directions to the respondent No. 1 to immediately remove Dr. Sandeep Srivastava from the post of Commissioner of Customs and Central Excise on account of not having requisite eligibility and experience as per Rule 22 of Indian Customs and Central Excise Service Group 'A' (Amended) Rules, 1998.
2. The brief facts of the case are that the applicant is working on the post of Superintendent in the office of Central Excise and Service Tax, Jaipur. Through the present Original Application, he has challenged the order dated 28.01.2011 (Annexure A/1) by which Dr. Sandeep Srivastava, respondent No. 2 in the present OA, was promoted to the post of Commissioner, Customs and Central Excise, Jaipur on the ground that he did not possess requisite eligibility for promotion as provided under Rule 22 of the Indian Customs and Central Excise Service Group 'A' (Amended), Rules 1998.
3. Against, the above said order dated 28.01.2011 and 25.08.2015, the applicant approached the Hon'ble High Court of Rajasthan at Jaipur by way of Civil Writ Petition (Quo Warranto Writ) No. 14359/2015 wherein the following order dated 19.01.2016 was passed:
"Learned counsel prays for withdrawal of this writ petition with liberty to approach Central Administrative Tribunal.OA No. 86/2016 3
In view of aforesaid, writ petition is dismissed as withdrawn with liberty sought for."
Accordingly, the applicant approached this Tribunal through the present Original Application.
4. Shri Kinshuk Jain, learned counsel for the respondents has taken a primary objection of maintainability of the present O.A. on the ground that the applicant has no locus as he is not affected by the impugned order(s). He states that the applicant is totally unconnected with the promotion order that he is challenging and the promotion of a person which does not affect the applicant in any way. Other ground on which the respondents insist the non-maintainability of the present Original Application is that the applicant has challenged impugned order dated 28.01.2011 through this O.A. filed in the year 2016, which is after a lapse of long period of five years. Hence, the present O.A. is claimed to be time barred.
5. Heard both sides and perused the material available on record.
6. The question which at the preliminary stage needs to be answered is as to whether the present Original Application is maintainable as the applicant's locus is questionable being totally unaffected by the impugned order dated 28.01.2011 promoting one Dr. Sandeep Srivastava, respondent no. 2 in the present O.A. The applicant is working on the post of OA No. 86/2016 4 Superintendent in the office of Central Excise and Service Tax, Jaipur. He has challenged the Office Order dated 28.01.2011 (Annexure A/1) vide which respondent No. 2, Dr. Sandeep Srivastava, had been promoted to the cadre of Commissioner of Customs and Central Excise on adhoc basis for a period of one year. It is pertinent to mention that by this impugned order dated 28.01.2011 as many as 27 officers of the Indian Revenue Service (Customs and Central Excise) were promoted to the grade of the Commissioner of Customs and Central Excise on adhoc basis for a period of one year. The present applicant was neither eligible nor had he ever applied or claimed or participated in any process for promotion to the post of Commissioner of Customs and Central Excise. In other words, the applicant was neither eligible nor aspirant for the post of Commissioner of Customs and Central Excise to which respondent No. 2 along with other 26 officers was promoted.
7. Learned counsel for the applicant insists that this Tribunal has the competence to adjudicate all matters relating to the recruitment and service condition as this Tribunal is substitute of Hon'ble High Court and as such can entertain applications irrespective of the locus of the applicant by way of Public Interest Litigations (PILs) and writ of quo-warranto against any person appointed to a civil post in the service of the Union. To support his contention, the applicant has relied upon various judgments. Similarly, the respondents' side OA No. 86/2016 5 taking a stand that this Tribunal does not have the competence to entertain PILs and the Writ of Quo Warranto has also relied upon number of judgments.
8. Therefore, we will examine the question of maintainability of Writ of Quo Warranto as well as PIL relating to service matters in this Tribunal.
9. Applicant has relied upon the judgment dated 18.07.1990 passed by the Hon'ble High Court of Karnataka in the case of Dr. H.T. Venkata Setty vs. Shiva Sailam and another (Writ Petition No. 7707 of 1990). The relevant extract of the aforesaid judgment dated 18.07.1990 of the Hon'ble High Court of Karnataka is as follows: -
" 1LXXXXX "Whether a petition under Article 226 of the Constitution seeking the issue of a Writ of quo-warranto against a person appointed to a civil post in the service of the State of Karnataka on the ground that he does not possess the qualification prescribed for the post is maintainable before this Court, or it falls within the jurisdiction of the Karnataka Administrative Tribunal?
2. XXXXX
3. The above question arises in view of the Constitution of the State Administrative Tribunal pursuant to the Administrative Tribunals Act, 1985 (the Act' for short) enacted by the Parliament pursuant to Article 323A of the Constitution of India. Article 323A reads:-
"323A. (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 -OA No. 86/2016 6
(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 371D;
(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 endorsement 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."
4. The above Article empowers the Parliament to enact a law to set up an Administrative Tribunal for the purpose of adjudicating 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 Union or of any State. Clause (d) of Article 323-A(2) empowers the Parliament to exclude the jurisdiction of all the Courts except the Supreme Court in relation to matters covered by the jurisdiction of the Administrative Tribunals constituted under the Act. Pursuant to the said Article the Parliament enacted Administrative Tribunals Act, 1985. The said Act provides for establishment of a Central Administrative Tribunal in respect of central service matters and a Tribunal for each of the States for deciding disputes and complaints in relation to service matters pertaining to respective States. Accordingly, Karnataka Administrative Tribunal has been established in this State with effect from 6-10-1986. On and after the said date every dispute and/or complaint relating to the service matter, whether it arises with respect to recruitment or conditions of service of civil servants of this State, falls exclusively within the jurisdiction of the Karnataka Administrative Tribunal and the jurisdiction of this Court stands excluded in view of Section 28 of the Act.
OA No. 86/2016 7
5. The question as to what is the extent of exclusion of the jurisdiction of the High Courts under Article 226 of the Constitution consequent on the setting up of the Administrative Tribunals under that Act came up for consideration before this Court in S.M. Pattanaik vs. Secretary to Government of India, ILR (1986) 2 kant 3954. In the said decision on interpretation of Article 323A of the Constitution as also the provisions of the Administrative Tribunals Act, 1985, this Court held that all disputes and complaints relating to service matters i.e., either with respect to recruitment or condition of service falls within the jurisdiction of the Administrative Tribunals and further by virtue of Section 28 of the said Act, the jurisdiction of the High Courts in respect of these matters stands totally excluded. This Court further held that only questions relating to constitutional validity of any service law regulating recruitment and conditions of service whether enacted by an appropriate Legislature or by Rules made by the President or the Governor, as the case may be under proviso to Article 309 of the Constitution or by any executive order, were outside the scope of Article 323A and the jurisdiction of the Administrative Tribunals and to that extent the jurisdiction under Article 226 of the Constitution has not been excluded and cannot be excluded.
6. In this petition in which the prayer is for the issue of a Writ of quo-warranto against respondent No. 1 the real question which arises for consideration is whether the appointment of the 1st respondent as the Director of Animal Husbandry and Veterinary Services is legally valid. This is essentially a dispute relating to recruitment and therefore falls within the exclusive jurisdiction conferred on the Administrative Tribunal.
7. In accordance with the view taken in S.M. Pattanaik's case, ILR (1986) 2 Kant 3954 referred to above, we answer the question set out first as follows:
"A petition under Article 226 of the Constitution seeking the issue of a Writ of quo-warranto against a person appointed to a civil post in the State of Karnataka on the ground that he does not possess the qualification prescribed for the post is not maintainable and that the matter falls within the exclusive jurisdiction of the Karnataka Administrative Tribunal."
8. In the result, we make the following order:-
"The Writ Petition is dismissed leaving liberty for the petitioner to approach the Administrative Tribunal, if he is so advised."
Petition dismissed."
In the above cited judgment, the Hon'ble High Court of Karnataka has held that a petition under Article 226 of the OA No. 86/2016 8 Constitution seeking the issuance of a Writ of quo-warranto against a person appointed to a civil post on the ground that he does not possess the qualification prescribed for the post, is not maintainable before the Hon'ble High Court and that the matter falls within the exclusive jurisdiction of the Administrative Tribunal on the ground that the jurisdiction of the High Courts in respect of service matters is excluded by virtue of Section 28 of the Administrative Tribunals Act, 1985.
10. The aforesaid order was passed on 18.07.1990 and the Hon'ble High Court of Karnataka held this view on the basis of the law as it stood on that date. Subsequently, the Constitutional Bench of the Hon'ble Apex Court in the case of L. Chandra Kumar vs. The Union of India and Ors,, reported in (1997) 2 S.C.R. 1186 interpreted the Administrative Tribunals Act, 1985 in particular Section 28 of the said Act regarding exclusion of the jurisdiction of the Hon'ble High Courts in service matters. The Hon'ble Apex Court in the case of L. Chandra Kumar (supra) has held as below (relevant extract): -
"xxxxx sub-Clause (d) of clause (2) of Article 323A and sub-Clause
(d) of clause (3) of Article 323B are unconstitutional to the extent they exclude the jurisdiction of High Courts under Article 226/227 and that of Supreme Court under Article 32.
xxxxx power of judicial review vested in Supreme Court and High Court is an integral and essential feature of the Constitution constituting part of its inviolable basic structure - Tribunals created pursuant to Article 323A and 323B cannot exercise power of judicial review of legislative action to the exclusion of High Courts and Supreme Court. xxxxx However, they are competent to test the vires of statutory provisions except the legislation which creates the particular Tribunal and they may perform a supplemental role in this respect. xxxxx"
OA No. 86/2016 9
The Constitutional Bench of the Hon'ble Apex Court in the aforesaid matter (L. Chandra Kumar) laid down the law that the Writ jurisdiction as well as power of judicial review vested in the High Courts under Article 226 and 227 of the Constitution cannot be excluded and since then the Writ jurisdiction of the High Courts can be invoked even in the service matters.
11. Applicant has also relied upon the judgment of the Hon'ble High Court of Madras dated 07.12.1995 passed in the case of V. Sasitharan and Ors. vs. The Government of Tamil Nadu and Ors. (WP Nos. 19967, 20297, 20454, 20455 and 21153 of 1994) in which while entertaining the writ of quo-warranto, the Hon'ble High Court took the following view (relevant extract): -
XXXXX
19. In the instant case, the writ petition challenges the validity of extension of service to a public office. Therefore, in my opinion, the writ of quo- warranto is maintainable at the instance of any person whether any fundamental or other legal right of such person has been infringed or not, provided he is not. a man of straw set up by someone else. In other words, | am of the view, that in the interest of the public, the legal position with respect to the alleged usurpation of a public office should be judicially declared and this Court can issue a writ of quo warranto at the instance of any member of the public who acts bona fide and is not a mere pawn in the game having been set up by others. The reason is, that in a proceeding for quo warranto, the applicant does not seek to enforce any right of his as such, nor does he complain of non-performance or any duty towards him. Hence, an ordinary citizen can apply for quo warranto to challenge an appointment to a public office even though the applicant himself is not a candidate for that office nor has any other personal interest in such appointment. A proceeding for quo- warranto is thus an exception to the general rule that only a person who has been individually aggrieved can apply under Article 226 of the Constitution. In the case of usurpation of a public office, the person who claims the exercise of the public office is the only proper party to the proceedings. In this case, Thiru N. Haribaskar has been im-pleaded as a party respondent. As in the case of other writs under Article 226 of the Constitution, the jurisdiction to issue quo-warranto cannot be barred by statute.
20. xxxxx As already seen, the present writ petitions have been filed by advocates and a social worker as public interest litigation. A public interest OA No. 86/2016 10 litigation cannot be construed or equated to a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. Therefore, the public interest litigant can only come before the High Court questioning the legality of the appointment by filing a writ ofquo-warranto. XXXXX
80. For the fore-going reasons, | hold that the writ petitions are maintainable in this Court. However, none of the other contentions raised by the petitioners merit acceptance. Consequently, all the writ petitions fail and are dismissed. However, there will be no order as to costs." Though the above cited judgment has been relied upon by the applicant but it supports our view that the writ of quo- warranto lies before the Hon'ble High Court as a public interest litigation cannot be construed or equated to a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal and, hence, the public interest litigation can only come up before the High Court by way of writ of quo-warranto.
12. Applicant has further relied upon the judgment of the Hon'ble Supreme Court passed in the case of The University of Mysore v. C.D. Govinda Rao and Anr., reported in AIR 1965 SC 491, which was considered by the Hon'ble Supreme Court in the case of Rajesh Awasthi vs. Nand Lal Jaiswal and Ors., reported in 2012 AIR SCW 6307: AIR 2013 SC 78, wherein the Hon'ble Supreme Court has held as under:-
"28. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Dr. Kashinath G. Jalmi and another v. The Speaker and others, AIR 1993 SC 1873 : (1993 AIR SCW 1578)."OA No. 86/2016 11
The above cited judgment of the Hon'ble Supreme Court does not help the applicant to invoke the jurisdiction of this Tribunal, it was held in the judgment above that a citizen can claim a writ of quo-warranto and he need not have any specific interest or personal interest. Of course the citizen can claim writ of quo-warranto and need not be an affected party but then before the High Courts, as the writ jurisdiction is specific to the High Courts and not before this Tribunal.
13. Likewise the applicant has relied upon various other judgments in which it has been held that the Tribunal has the power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all questions pertaining to the constitutional validity or otherwise of all such matters. This of course is not denied. However, who can invoke the jurisdiction of this Tribunal is a question here. Can a person who is totally unaffected approach this Tribunal? the answer is "No". He has a remedy by way writ of quo- warranto, which lies before the Hon'ble High Court and not before this Tribunal.
14. Respondents have relied upon the judgment of the Larger Bench of the Hon'ble Supreme Court dated 25% August, 1998 passed in the case of Dr. Duryodhan Sahu and Ors. vs. Jitendra Kumar Mishra and Ors. reported in (1998) 7 SCC 273 : 1998 SCC (L&S) 1802, wherein the Hon'ble Apex Court has at length dealt with the issue of OA No. 86/2016 12 maintainability of public interest litigation at the instance of a total stranger, "person aggrieved" and scope of jurisdiction of Tribunal. The issue before the Hon'ble Larger Bench of the Supreme Court was as follows (relevant extract): -
"2. Two questions have arisen for decision:
(i) whether an Administrative Tribunal constituted under Administrative Tribunals Act, 1985 (hereinafter referred to as "the 'Act") can entertain a public interest litigation, and
(ii) whether on the facts of this case, the Tribunal has exceeded its jurisdiction in passing the impugned order?
12. We have heard counsel on both sides at length. Several rulings have been relied on by them though in none of them, the questing arose directly for consideration. The question as to maintainability of a public interest litigation before the Tribunal depends for its answer on the provisions of the Act. The Tribunal having been created by the Act, the scope and extent of its jurisdiction have to be determined by interpreting the provisions thereof. In S.P. Sampath Kumar versus State of A.P. (1987) 1 S.C.C. 124 it was held that the Tribunal constituted under the Act were effective substitutes to the High Courts in the scheme of aministration of justice and they were entitle to exercise powers thereof. It was observed that they were real substitutes not only in form and dejure but in content and de facto. On that premise the Court held that the power of judicial review exercised by High Courts in service matters under Articles 226 and 227 was completely excluded. It may be noticed that the order of reference dated 15.2.96 extracted in the earlier paragraph makes a specific mention of this aspect of the matter. If that view had continued to prevail, the approach to the question might have been different.
13. But the law has now been declared differently in L. Chandra Kumar versus Union of India (1997) 3 S.C.C. 261 that the Tribunals have to perform only, a 'supplemental as opposed to a substitutional - role' in discharging the powers conferred by Articles 226/227 are not taken away by the Act. it is only against such a backdrop the jurisdiction of the Tribunal under the Act to entertain a public interest litigation has to be decided. xxxxx. As the status of the Tribunals has now been settled in Chandra Kumar (supra), we will discuss the question in the light of the said pronouncement."
18. xxxxx. The definition of 'service matters' found in Section 3
(g) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word 'his' cannot be ignored. Section 3
(b) defines the word 'application' as an application made under Section 19. The latter Section refers to 'person aggrieved'. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the work 'order' has been OA No. 86/2016 13 defined in the explanation to sub-s. (1) of Section 19 so that all matters referred to in Section 3 (q) as service matters could be brought before the Tribunal. It in that context, Sections 14 and 15 are read, there is no doubt that a total stranger to the concerned service cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal the very object of speedy disposal of service matters would get defeated.
19. Our attention has been drawn to a judgment of the Orissa Administrative Tribunal in Smt. Amitarani Khuntia Versus State of Orissa 1996 (1) OLR (CSR)-2. The Tribunal after considering the provisions of the Act held that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal. XXXXX"
The Hon'ble Larger Bench of the Supreme Court has held in the aforesaid case as under (relevant extract):-
"21. In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger."
15. The respondents have also relied upon the judgment of the Hon'ble High Court of Punjab and Haryana at Chandigarh dated 17.07.2024 passed in the case of Sourabh vs. State of Haryana and Ors. (CWP-PIL-138-2024), wherein the Hon'ble High Court dealing with PIL in service matters and considering the Hon'ble Apex Court's judgment in Dr. Duryodhan Sahu (supra), has held as under: -
"4. From perusal of the aforesaid observation of the Apex Court, it reveals that the issue as to whether a service matter can be entertained by way of Public Interest Litigation was though categorized as debatable issue but left open to be decided in an appropriate case. Therefore, there was no adjudication on the said issue and thus, this Court has no manner of doubt that the prevailing law on the issue which is evident from the earlier judgments as quoted above, holds field."OA No. 86/2016 14
16. Section 19 of the Administrative Tribunals Act, 1985 reads as follows: -
"19. Applications 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] [Inserted by Act 19 of 1986, Section 14 (w.r.e.f.
22.1.1986).] 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 the service or execution of processes, as may be prescribed by the Central Government.] [Substituted by Act 19 of 1986, Section 14, for " as may be prescribed by the Central Government" (w.r.e.f. 22.1.1986). ] [(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.] [ Substituted by Act 19 of 1986, Section 14, for sub- Section (3) (w.r.e.f. 22.1.1986).] (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".
It is evident from the abovementioned judgments and reading of Section 19 of the Administrative Tribunals Act, 1985 that a 'person aggrieved', who can invoke the jurisdiction of this Tribunal, does not mean 'any concerned citizen'.
OA No. 86/2016 15
17. In view of the above, we hold that the jurisdiction of this Tribunal cannot be invoked by an unaffected person in general public interest. The exemption of locus is available in filing the writ of quo-warranto and this Tribunal cannot sit in the writ jurisdiction.
18. In the light of the above observations, the present Original Application being not maintainable is dismissed. No order as to costs.
(LOK RANJAN) (RANJANA SHAHI) ADMINISTRATIVE MEMBER JUDICIAL MEMBER