Jharkhand High Court
General Manager vs Smt. Taluka Devi on 18 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1074 of 2020
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1. General Manager, Steel Authority of India Ltd., through its DGM (Law) SAIL, Bokaro Steel Plant, Arvind Kumar Upadhyay, aged about 54 years, son of Sri. S.N. Upadhyay, resident of 242, A, Co-operative Colony, Bokaro Steel Plant, Ispat Bhawan, Bokaro Steel City, Bokaro, P.O. and P.S. - Bokaro, District - Bokaro.
2. Deputy General Manager (Personnel), City Administration, Medical and Education, SAIL, Bokaro Steel Plant, Bokaro Steel City, P.O. and P.S. - Bokaro, District - Bokaro.
... ... Petitioners
Versus
1. Smt. Taluka Devi, wife of Nawal Kishore Rajak.
2. Uttam Rajak, son of Late Nawal Kishore Rajak, both resident of Sector-II, Qtr. No. 1, 335, Bokaro Steel City, P.O. and P.S.
- Bokaro, District - Bokaro. ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioners : Mr. Indrajit Sinha, Advocate.
Mr. Arpan Kumar Mishra, Advocate.
For the Respondents : Mr. Ashok Kumar Singh, Advocate.
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th Order No. 08/Dated 18 January, 2024
1. The writ petition under Article 226 of the Constitution of India, whereby and whereunder the order dated 08.01.2018 passed by learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi, in O.A. No. 051/168/2017 has been assailed, whereby and whereunder the learned Tribunal, while disposing of the original application, has directed the respondent authorities to consider the age mentioned in the matriculation certificate of the applicant no. 2, son of the deceased employee, who has died in harness, for the purpose of grant of compassionate appointment. 2
2. The brief facts which led the writ petitioner to file the writ petition as per the pleading made in the writ petition are as under :-
3. It appears from the pleading that the father of the writ petitioner while working as Ex-Oprt-cum-attendant died on 26.02.2017 in an accident while, in harness. The writ petitioner has made an application for appointment on compassionate ground under the scheme to consider the case for such appointment. The aforesaid application was considered and rejected on the ground that the writ petitioner was having more than the age of 35 years, the maximum age barrier as provided for appointment. Such conclusion has been arrived at by taking into consideration the details of the age referred by the deceased employee in the personal appraisal form, wherein the day when the age of the writ petitioner was given, which was of 21 years, on the date such application was filed, he has already crossed the age of 35 years.
4. While on the other hand, the case of the applicant, respondent herein is based upon the age contained in the matriculation certificate as per which, according to the respondent, the age of the applicant no. 2 is below 35 years.
5. The respondent approached the learned Tribunal assailing the aforesaid decision of the writ petitioner by taking the ground that as per the age stipulated in the 3 matriculation certificate which is the only conclusive evidence of age and the same has not been taken into consideration, rather, the age available in the personal data form has been considered and while doing so, the writ petitioner, respondent before the learned Tribunal, has committed gross illegality.
6. The learned Tribunal has appreciated the rival submissions advanced on behalf of the parties. The learned Tribunal has accepted the ground of the applicant, respondent herein and has disposed of the original application with a direction upon the respondent, writ petitioner herein, to take decision on the basis of the age mentioned in the matriculation certificate of the respondent herein, the applicant for getting an appointment on compassionate ground, the said order is under challenge under the power of judicial review as conferred to this Court under Article 226 of the Constitution of India, in view of the judgment rendered by the Constitution Bench of the Hon'ble Apex Court in the case of L. Chandra Kumar Vs. Union of India & Others, reported in (1997) 3 SCC 261.
7. Mr. Arpan Kumar Mishra, learned counsel appearing for the writ petitioner, Steel Authority of India Limited, has taken the ground that the learned Tribunal has committed gross error in not putting reliance upon the age referred in personal date form, rather has gone into the age mentioned in 4 the matriculation certificate and hence the order impugned suffers from illegality, as such, the same is not sustainable in the eyes of law.
8. While on the other hand, Mr. Ashok Kumar Singh, learned counsel for the respondent, applicant in the original application before the learned Tribunal has defended the order passed as impugned on the ground that the matriculation certificate is only the conclusive proof to establish the age said to be authentic.
9. The learned counsel has submitted that instead of considering the age based upon the matriculation certificate, the age mentioned in the personal date form filled by the deceased-father has been considered and the claim of the writ petitioner has been rejected, which according to him is nothing but based upon the presumption in assessing the age.
10. Heard the learned counsel for the parties, perused the finding recorded by the learned Tribunal in the impugned order as also the pleading as contained in the writ petition.
11. This Court before delving upon the issue of legality and propriety of the impugned order deems it fit and proper to refer about the jurisdiction conferred to this Court under Article 226 of the Constitution of India, as has been held by the Constitution Bench of Hon'ble Apex Court in the case of L. Chandra Kumar Vs. Union of India & Others (Supra) wherein at para-79, it has been held that the High Court in 5 exercise of power conferred under Article 226 of the Constitution of India is to exercise the power of judicial review upon the order passed by learned Tribunal.
12. This Court after having discussed the fact as also the legal position is now proceeding to discuss about the scope of judicial review conferred to the High Court under Article 226 of the Constitution of India in showing interference with the award passed by the adjudicator as has been held by the Hon'ble Apex Court in Syed Yakoob vs. Radhakrishnan, A.I.R. 1964 SC 477. Paragraph no.7 of the said judgment is being reproduced as under:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals :
these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result 6 of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC
233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v.
Bachittar Singh, AIR 1960 SC 1168.
In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme Court has held in paragraph no.21 as under:
"With regard to the character and scope of the writ of certiorari and the conditions under which it can be 7 issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."
In Sawarn Singh and Anr. vs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Article 226 of the Constitution of India for issuance of writ of certiorari, has been pleased to hold at paragraph nos.12 and 13 as hereunder:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction 8 under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos.66 and 67 as hereunder:
"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.
67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh 9 Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."
In the case of West Bengal Central School Service Commission & Others Vs. Abdul Halim & Others reported in (2019) 18 SCC 39, their Lordships have been laid down pleased to hold at paragraph no. 30 that the power of the judicial review must be exercised by the Court after determining that the impugned is vitiated by an error apparent on the face of the record and not the same has been established by a process of reasoning, Para-30 of the aforesaid judgment reads as under:-
"30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the fact of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the fact of the record, as held by this Court in Satyanarayan Vs. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in 10 law, which can be corrected by the writ Court by issuance of writ of Certiorari."
In the case of T.C. Basappa Vs. T. Nagappa reported in (1955) 1 SCR 250, their Lordship hold that the patent error in a decision can be corrected by writ of certiorari, when it is manifested by the error apparent on the face of the proceedings. The relevant portion of the aforesaid judgment is quoted hereunder:-
10. ........... An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the fact of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. ...........
13. The power of judicial review has been dealt by the Hon'ble Apex Court in the aforementioned judgments, wherein such power can be exercised, if the order impugned challenged under the Article 226 of Constitution of India, appears to be error on the face of record is required to be there.
14. This Court is now proceeding to examine legality and propriety of the order in view to asses that the order passed by the learned Tribunal suffers from error apparent on the face of record. The aforesaid issue is only to be decided if the law regarding acceptance of age is to be considered. 11
15. It is settled principle of law that matriculation certificate is a strong material while considering the age. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in the case of Manoj Kumar Vs. Government of NCT of Delhi & Others reported in (2010) 11 SCC 702. Relevant portion of the aforesaid judgment is quoted hereunder:-
12. .......... While the matriculation certificate is a strong material, other equally relevant material cannot be ignored, particularly when the matriculation certificate has been corrected...........
16. The Hon'ble Full Bench of this Court has also held that if there is any dispute in date of birth, the date of birth mentioned in the matriculation certificate is considered to be conclusive piece of evidence, as per judgment rendered in Kamta Pandey Vs. B.C.C.L. reported in [2007(3) JLJR 726 (F.B.)], wherein the Hon'ble Full Bench of this Court taking into consideration catena of judgments render by the Hon'ble Apex Court has come to the conclusion at Para-29, which reads as under:-
29. In view of the above discussion, our answer to the question raised in this case is as follows: The date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board is a conclusive proof of age and no other records, including service records as both the parties are governed by Implementation Instruction No. 76 of National Coal Wage Agreement III.
[Emphasis supplied] 12
17. However, in absence of the matriculation certificate, the same can be assessed by conducting the medical board. But such eventuality is only to be taken in course of in case of non-availability of the matriculation certificate. The reason for acceptance of the conclusive proof of matriculation certificate has been dealt in the said judgment that since the same has been issued by the statutory institution carved out under the force and order of the State.
18. This Court now proceeding to examine the legality and propriety in the impugned order as has been alleged, we have found that the learned Tribunal has discarded the plea of the writ petitioner in showing interference with the impugned order of rejecting the appointment on compassionate ground, since the writ petitioner has relied upon the age referred in the personal data form furnished by the deceased father i.e., as per Annexure-1.
19. The learned Tribunal has accepted the date of birth of the respondent as is available in the matriculation certificate. Accordingly, direction has been passed to consider the case of the respondent based upon the age mentioned in the matriculation certificate.
20. The aforesaid finding, according to our considered view, is based upon the settled proposition of law that the age bearing in the matriculation certificate will have the conclusive evidence of the age as per the judgment passed by 13 the Full Bench of this Hon'ble Court in the case of Kamta Pandey Vs. BCCL (Supra), this Court, therefore, is of the view that it is not a case where it can be said that the order passed by the learned Tribunal suffers from error apparent on the face of record.
21. Accordingly, this Court in exercise of judicial review that it is not such case where any interference is required to be shown in the impugned order, as such, the instant writ petition lacks merit and stands dismissed.
(Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) A.F.R. Sunil/