Madras High Court
Union Of India (Uoi) Rep. By The Chief ... vs The Registrar, Central Administrative ... on 14 February, 2001
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER R. Jayasimha Babu, J.
1. The Union of India is aggrieved by the order of Central Administrative Tribunal by which it was directed to open a sealed cover in which the assessment of fitness of the respondent Vasu for promotion to the post of Inspector of Income-tax was kept, in view of the pendency of an inquiry which was then in progress. The inquiry was in relation to the alleged fraud committed by the employee Vasu in having secured an appointment for the post reserved for the Scheduled Tribe on the strength of a certificate issued by the Tahsildar, Dindigul in which it was stated that he belonged to Kattunaicken community, a Schedule Tribe.
2. The annexures to the charge memo issued to the said Vasu set out the facts that according to his S.S.L.C. book his community was described as 'Gavara' which is backward class: that in his Transfer Certificate dated 5.12.1977 issued by the Principal, H.H. The Rajah's College, Pudukottai, his community was mentioned as 'Gavara': that he had been awarded backward class scholarship in the college: that he had produced community certificate dated 21.8.1972 issued by the Headquarters Deputy Tahsildar, Dindigul stating that he belonged to the 'Gavara' community, and that the copy of a document No. 1861/1940 in the name of the applicant's step grandfather showed that he belonged to the 'Gavara' community.
3. Immediately after the charge memo was issued, which was on 7.9.1987 which charge memo incidentally was issued after the department had received a letter from the Tahsildar, Dindigul dated 21.1.1987 in which it was stated that the community certificate which had been produced by Vasu dated 25.4.1978 was not genuine. The said Vasu filed a suit in O.S.No.197 of 1987 in the Sub Court, Pudukottai for a declaration that he belonged to Kattunaicken community and for a permanent injunction restraining the department from taking further action subsequent to the charge memo. He also secured an order of injunction in that suit. The Union of India having questioned the jurisdiction of the Court to entertain the suit, the matter ultimately came up before this Court in Civil Revision Petition No 3335 of 1988 on which a learned single Judge of this Court by order dated 17.3.1989 held that the Civil Court had jurisdiction to grant a declaration, but that it did not have jurisdiction to grant injunction in service matters. Vasu, immediately, thereafter, filed O.A.No.331 of 1989 before Central Administrative Tribunal. The Tribunal held that out of the two charges framed against him the department could proceed only in respect of the first charge. Thereafter, further proceedings took place in the suit. Regarding territorial jurisdiction, it was held by the trial Court that it had no jurisdiction to try the case. That order was made on 26.4.1991. On appeal, the District Court, Pudukottai reversed that order and also proceeded to grant an interim injunction against the holding of the inquiry, despite the order having been made in Civil Revision Petition, in which it was held that Civil Court had no jurisdiction to grant injunction in service matters. That order of the District Court was challenged by the Union in two Civil Revision Petitions in 2810 and 2811 of 1994. During the pendency of those Civil Revision Petitions, the trial Court took up the suit for trial, placed the Union of India ex pane and within about a week, thereafter, recorded evidence of the two witnesses for the plaintiff before it and made an ex parte decree on 12.10.1994 granting the declaration that was sought by the plaintiff in the suit. Union of India, therefore, had to accept the order of dismissal of the Civil Revision Petitions on the ground that suit itself having come to an end, the Civil Revision Petitions did not survive. It, therefore, filed applications in I.As.No.182 of 1997 and 186 of 1998 in the trial Court to condone the delay in filing application to set aside the ex parte decree and to set aside the ex parte decree.
4. Taking advantage of that decree, Vasu filed a fresh application before the Tribunal in O.A.No.1275 of 1995 and the Tribunal relying on the decree which, it did even after it noticed the judgment of the Supreme Court in the case of State of Tamil Nadu v. A Gurusamy, , held that as long as the decree stood, Vasu could not be denied the status of a scheduled tribe candidate and the sealed eover should be opened and the order be passed regarding his promotion one way or the other. That order of the Tribunal was made on 16.2.1998.
5. The applications of Union of India to condone the delay in filing the application for setting aside the ex parte order was considered by the civil Court on 30.7.1998 and the application to condone the delay was dismissed by holding that there was a delay of 753 days and that the delay had not been satisfactorily explained. The Union of India has filed Civil Revision Petition 3362 of 1998 against that order.
6. That Civil Revision Petition also having been placed before us for final disposal along with writ petition in which Tribunal's order 16.2.98 is challenged, we have heard the counsel for the parties in Civil Revision Petition as well as in the Writ Petition and by this order, both the petitions are being disposed of.
7. Learned counsel for the Union of India submitted that the decree on which the employee relied and on which the Tribunal also relied was non est in law, having regard to the ambit of the civil Court's jurisdiction with regard to the declaration of status of a person as belonging to the Scheduled Castes and Scheduled Tribes as set out in the judgment of the Supreme Court in the case of State of Tamil Nadu v. A. Gurusamy, .; That was also a case where the party before the Supreme Court had approached the Civil Court for a declaration that he belonged to Kattunaicken community, a scheduled tribe. It is useful to set out the factual background in which the Supreme Court laid down the law in that case. The facts are set in paragraph 2 of the judgment, which reads thus:
" This appeal by Special Leave arises from the judgment of the single Judge of the Madras High Court made on 23.02.1996 dismissing S.A.No.228 of 1996 on the ground that the declaration granted by the Courts below was a concurrent finding of fact. Admittedly, when the respondent was studying in the school he was described as a member of "Thotti" community. The presidential Notification issued under Article 341(1) of the Constitution read with Article 366(24) of the Constitution notifies "Thotti: to be a scheduled caste as item No.67 of the presidential Notification. Subsequently in 1970, the respondent had obtained a certificate from the Revenue Divisional Officer indicating him to be Kattunaicken community as item No.9 of the list of the Scheduled Tribes in the State of Tamil Nadu issued by the President under Article 342(1) read with Article 366(25) of the Constitution. Subsequently, he had applied for permanent certificate. On that basis an enquiry was conducted and it was found that the respondent was not a scheduled tribe. But he is a scheduled caste. Accordingly the certificate came to be cancelled. Impugning the said cancellation the respondent filed a civil suit for declaration that he is a Kattunaickan, a scheduled tribe. That declaration was granted, by the trial Court and affirmed by the appellate Court. The High Court dismissed the second appeal and thus this appeal by special leave"
8. Having set out the factual background in that manner, the Apex Court dealt with the question which required consideration in the background of those facts at paragraph 3 of the judgment. The relevant portion reads as under:
" The only question is whether the suit is maintainable. By operation of Section 9 of the C.P.C., a suit of civil nature cognizance of which expressly or by implication is excluded cannot be tried by any civil Court. The declaration of the President of India under Article 341 and 342 of the Constitution, with respect of the lists of Scheduled Castes and Scheduled Tribes in relation to a State, that a particular caste or tribe as defined under Article 366(24) or (25) respectively is conclusive, subject to an amendment by parliament under Article 341(2) and 342(2) of the Constitution. By necessary implication the jurisdiction of the civil Court to take cognizance of and give a declaration stands prohibited.
9. There can, therefore, be no doubt that the law laid down by the Supreme Court is that a suit for declaration that a person belongs to the Scheduled Caste or Scheduled Tribe is impliedly barred by Articles 341 and 342 of the Constitution. The learned counsel for the respondent, however, submitted that decision of the Supreme Court has been considered by two learned single Judges of this Court, who have taken the view that even after that judgment of the apex Court, there is no bar to a suit for declaration that a person belongs to the Scheduled Caste or Scheduled Tribe, being entertained by the civil Court.
10. Our attention was invited to the case of State of Tamil Nadu v. Durairaj, . The learned single Judge therein appears to have taken the view that the jurisdiction of the civil Court must be expressly barred and that in the absence of the express bar, the suit for declaration would lie. We cannot approve of that view at all. The jurisdiction of the civil Court may be barred either expressly or impliedly. Such bar, by implication, has been held to be the consequence of Articles 341 and 342 of the Constitution by the judgment of the Supreme Court in the case of State of Tamil Nadu v. Gurusamy. Moreover, when a judgment of the Supreme Court deals with the very question, which the High Court is required to consider, the High Court is bound to follow the law laid down by the Supreme Court and it is not open to the High Court to depart therefrom. The other decision relied upon by the counsel is the case of State of Tamil Nadu v. Navamani, . A learned single Judge of this Court in that case held that the suit for declaration that a person belongs to Kattunaicken community is maintainable. That decision has been rendered without referring to the case of Gurusamy. That decision being clearly inconsistent with the law laid down by the Supreme Court, that decision must be regarded as per incuriam.
11. Though in the revision petition before us, we are concerned with the order by which the application to condone the delay in filing the application to set aside the decree was the subject matter, having regard to the law laid down by the apex Court with regard to the jurisdiction of the civil Court and having regard to the fact that the decree passed by the civil Court is capable of being reopened by reason of the applications that had been filed by Union of India orders made on which are the subject matter of the proceedings in this Court, we consider it to be just, in the circumstances, to set aside that decree, which we hereby do. We do not see any useful purpose being served in directing the civil Court to condone the delay, thereafter, entertain the application to set aside the ex parte decree and thereafter set aside the same: hold a trial once again and then come to the conclusion that it had no jurisdiction to grant the relief prayed for. The decree made by the trial court is, therefore, set aside.
12. The order made by the Tribunal is based entirely upon the decree. The decree having now been set aside, that order of the Tribunal had become untenable. The impugned order of the Tribunal is, therefore, set aside. The revision petition as also two writ petitions are allowed.
13. Learned counsel for the respondent states that the enquiry against the petitioner has been completed and that the only thing that remains to be done is to make a final order. As the matter is old one, we see no reason as to why there should be delay in making the final order. The petitioner is directed to pass final orders on the enquiry instituted against the respondent within a period of four weeks from the date of receipt of a copy of this order. The copy of this order shall be given to the parties within a period of one week from today.
14. The sealed cover in which the assessment of the petitioner has been placed will be opened after the final order is so passed and further steps shall be taken thereafter, in accordance with law.