Calcutta High Court (Appellete Side)
(Sarbeswar Behera & Ors vs Union Of India & Ors.) on 19 March, 2019
1
06 19.03.2019 C.A.N. 11705 of 2017
pg In
M.A.T. 1892 of 2017
(Sarbeswar Behera & Ors. vs. Union of India & Ors.)
Mr. Kaushik Dey
Mr. Sutirtha Das...........for the appellants
Mr. Swapan Banerjee
Mr. Rajendra Chaturvedi......for the respondents
01. Dismissal of W.P. 20793(W) of 2017, presented by the appellants, on the ground of lack of jurisdiction is the subject-matter of challenge in this intra-Court writ appeal. C.A.N. 11705 of 2017 is an application for appropriate order filed in the appeal.
02. While hearing such application, we have heard the parties on the merits of the appeal and proceed to dispose of the same here and now treating it as on day's list.
03. Admittedly, the appellants are members of the Railway Protection Force. They intended to participate in a process for appointment of Chief Law Assistant in South Eastern Railway. They have been refused permission to participate in the examination on the ground that they are not railway employees but the employees of the Railway Protection Force.
04. The learned Judge was of the view that since 2 an order of the South Eastern Railway was under
challenge, the writ Court's jurisdiction could not have been invoked by the appellants; their remedy lay before the Central Administrative Tribunal, Calcutta (hereafter 'CAT', for short).
05. Mr. Dey, learned advocate for the appellants, while assailing the order impugned, has referred to section 2(a) of the Administrative Tribunals Act, 1985 (hereafter the 'Act of 1985'). According to him, since members of the Railway Protection Force are regarded as members of an armed force of the Union, it is not open to the appellants to approach the CAT. Accordingly, it is his contention that the appellants by invoking the writ jurisdiction of this Court had pursued the appropriate remedy and the learned Judge erred in the exercise of his jurisdiction in relegating the appellants to the CAT.
06. We do not agree with Mr. Dey. What section 2(a) of the Act of 1985 ordains is that the same (the Act of 1985) shall not be applicable to any member of the Naval, Military or Air Force or of any other armed forces of the Union. Insofar as members of the Naval, Military or Air Force are concerned, any dispute relating to their service or conditions of service has to be raised before the 3 tribunal constituted in terms of the Armed Forces Tribunals Act, 2007 (hereafter '2007 Act'). Regarding other members of the Armed Forces, it is the writ jurisdiction that has to be invoked for redressal of their grievances.
07. In the present case, we are concerned with recruitment to railway service. The appellants, although are members of an armed force of the Union, are not claiming a right to participate in the recruitment process for appointment on the post of Chief Law Assistant as members of such an armed force but as railway servants in terms of the provisions contained in section 10 of the Railway Protection Force Act, 1957 (hereafter '1957 Act'), which reads as follows:
"10. Officers and members of the Force to be deemed to be railway servants.⎯ 20[Director-General and every member of the Force] shall for all purposes be regarded as railway servants within the meaning of the Indian Railways Act, 1890 (9 of 1890)21, other than Chapter VI-A thereof, and shall be entitled to exercise the powers conferred on railway servants by or under that Act."
08. If indeed the plinth of the appellants' claim is the provision in section 10 of the 1957 Act, which is argued by Mr. Dey as giving the appellants the right to participate in the relevant examination, we fail to see as 4 to how section 2(a) of the Act of 1985 can pose a bar for the appellants to approach the CAT. The appellants cannot, according to their convenience, shift their stand. They wish to be regarded as railway servants for the purpose of participation in the examination but choose to be regarded as members of an armed force while attempting to invoke the writ jurisdiction of this Court. It is clear that the appellants have been blowing hot and cold at the same time, which is impermissible. Since the appellants intend to participate in a process for recruitment initiated by South Eastern Railway, in terms of section 14 of the Act of 1985 the challenge to the order of refusal must be laid before the CAT at the first instance.
09. We, therefore, hold that the learned Judge of the writ Court was right in not entertaining the writ petition and relegating the appellants to the CAT.
10. We uphold the impugned order and dismiss the appeal. In view thereof, the connected application also stands dismissed.
11. It is made abundantly clear that we have not examined the merits of the appellants' claim and all points are left open to be agitated before the CAT for a 5 decision by it in accordance with law.
Urgent photostat certified cpy of this order, if applied for, be furnished to the parties expeditiously. (SAUGATA BHATTACHARYYA, J.) (DIPANKAR DATTA, J.)