Uttarakhand High Court
Rajiv Bhartari vs Union Of India & Others on 18 April, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
JUSTICE SHRI MANOJ KUMAR TIWARI
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
WRIT PETITION (S/B) No. 98 OF 2022
18TH APRIL, 2022
Between:
Rajiv Bhartari ...... Petitioner
Vs.
Union of India & others. ...... Respondents
Counsel for the petitioner : Mr. Abhijay Negi, the learned counsel.
Counsel for the Union of India : Mr. Aazmeen Sheikh, the learned Standing
Counsel
Counsel for the State. : Mr. C.S. Rawat, the learned Chief Standing
Counsel.
Counsel for respondent no. 4 : Mr. Arvind Vashistha, the learned Senior
Counsel, assisted by Mr. Ajay Joshi, the
learned counsel.
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT :(per Sri Manoj Kumar Tiwari, J.) Petitioner is a member of Indian Forest Service, who was serving as Principal Conservator of Forest (Head of Forest Force), Uttarakhand. He is aggrieved by the order dated 25.11.2021, passed by Secretary, Department of Forest, whereby he has been transferred to the post of Chairman, Uttarakhand Biodiversity Board, Dehradun. This order has been challenged by petitioner on various grounds, including that he was transferred in the absence of any recommendation by Civil Services Board, which according to petitioner, was mandatory.
12. Per contra, learned counsel for respondents have raised an objection that petitioner is member of an All India Service therefore, he has a statutory remedy available under Section 14(1) (b) of the Administrative Tribunals Act, 1985.
3. Learned counsel for the petitioner also does not dispute that petitioner has remedy of approaching Central Administrative Tribunal constituted under Administrative Tribunals Act, 1985. He, however, submits that since principles of natural justice were violated by the respondents while transferring petitioner and the authority who passed the impugned transfer order was not competent for the purpose, therefore, petitioner can directly approach this Court under Article 226 of the Constitution without approaching the Tribunal. In support of this contention, petitioner's counsel has relied upon a judgment rendered by Hon'ble Supreme Court in the case of Radha Krishnan Industries v. State of Himachal Pradesh and others, reported in (2021) 6 SCC 771.
4. We have gone through the judgment relied by petitioner's counsel. The said judgment is distinguishable on facts, as in that case Hon'ble Supreme Court was dealing with a case under G.S.T. Act. In the present case, we are concerned with the Administrative Tribunals Act, 1985, which contains provision in Section 14(1) which excludes jurisdiction of all Courts except Hon'ble Supreme Court, as regards matters which are within jurisdiction of Central Administrative Tribunal.
5. In the case of Kendriya Vidyalaya Sangathan v. Subhas Sharma, reported in (2002) 4 SCC 145, the issue before Hon'ble Supreme Court was whether a person serving in Kendriya Vidyalaya, which is notified under Administrative 2 Tribunals Act can directly approach High Court bypassing the tribunal constituted under the said Act. Relevant extract of the said judgment is reproduced below:-
"10. Kendriya Vidyalaya is an autonomous body registered under the Societies Registration Act and controlled by the Government of India and that being the position, the Administrative Tribunal has jurisdiction concerning service matters of the employees of Kendriya Vidyalaya in view of sub-clause (iii) of Section 14(1)(b). In this connection, the learned Additional Solicitor-General has also drawn our attention to the notification of the Government of India dated 17-12-1998 issued under sub- section (2) of Section 14 of the Act by which the Central Government specified that the Act shall apply to the organisations mentioned in the schedule to the notification and Kendriya Vidyalaya has also been included in the said notification at Item 34. Therefore, Mr Ahmed has rightly submitted that the service disputes concerning the employees of Kendriya Vidyalaya would come under the jurisdiction of the Central Administrative Tribunal. It does not make any difference that the institution is located in Jammu and Kashmir and the respondent is working there.
11. To appreciate the second submission of Mr Ahmed, we extract below relevant portions from paragraphs 93 and 99 of the decision of the Constitution Bench of this Court in L. Chandra Kumar case2: (SCC pp. 309 & 311, paras 93 & 99) "93. ... We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.
99. ... It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
12. The Constitution Bench of this Court has clearly held that tribunals set up under the Act shall continue to act as the only courts of first instance "in respect of areas of law for which they have been constituted". It was further held that it will not be open for litigants to directly approach the High Court even in cases where they question the vires of statutory legislation (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.
13. In view of the clear pronouncement of this Court, 3 the High Court erred in law in directly entertaining the writ petitions concerning service matters of the employees of Kendriya Vidyalaya as these matters come under the jurisdiction of the Administrative Tribunal. We, therefore, hold that the High Court committed an error by declining to transfer the writ petition to the Central Administrative Tribunal. Consequently, we set aside the impugned orders and direct the High Court to transfer both the writ petitions to the Central Administrative Tribunal, Chandigarh Bench which may, in its turn, make over the case to the Circuit Bench in the State of Jammu and Kashmir for disposal in accordance with law."
6. In view of the legal position, as discussed above, we refrain from exercising our jurisdiction under Article 226 of the Constitution of India, in view of availability of statutory remedy to petitioner.
7. Accordingly, writ petition is dismissed on the ground of alternative remedy.
8. Since pleadings are complete, therefore, in the peculiar facts of this case, we direct that record of this case be transferred to Central Administrative Tribunal, Allahabad. Necessary steps shall be taken by the Registry, within one week, as per rules.
9. We hope and trust that learned Tribunal will make endeavor to decide the matter, as early as possible.
___________________ MANOJ KUMAR TIWARI, J.
______________ RAMESH CHANDRA KHULBE, J.
Dt: 18TH APRIL, 2022 Navin 4