Rajasthan High Court - Jaipur
State Of Rajasthan vs Ranglal S/O Late Shri Mool Chand Sharma on 25 April, 2022
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 3704/2022
1. State Of Rajasthan, Through Director General Of Police,
Lalkothi, Jaipur.
2. Commissioner Of Police, Jaipur, Police Commissionerate,
Jaipur.
----Petitioners
Versus
Ranglal S/o Late Shri Mool Chand Sharma, Aged About 49 Years,
Presently Working As Asi, Traffic Police Commissionerate, Jaipur.
----Respondent
Connected With S.B. Civil Writ Petition No. 3705/2022
1. State Of Rajasthan, Through Director General Of Police, Lalkothi, Jaipur.
2. Commissioner Of Police, Jaipur, Police Commissionerate, Jaipur.
----Petitioners Versus Udai Veer Singh S/o Shri Vikram Singh, Aged About 48 Years, R/o Village Pengore Nangla Kumbha, Thana Kumhair, Presently Working As Asi, Police Line, Police Commissionerate, Jaipur.
----Respondent S.B. Civil Writ Petition No. 3706/2022
1. State Of Rajasthan, Through Director General Of Police, Lalkothi, Jaipur.
2. Commissioner Of Police, Jaipur Police Commissionerate, Jaipur.
----Petitioners Versus Vijay Singh S/o Shri Sawai Singh, Aged About 48 Years, Presently Working As Asi, Police Station, Pratap Nagar, Jaipur.
----Respondent S.B. Civil Writ Petition No. 3707/2022
1. State Of Rajasthan, Through Director General Of Police, (Downloaded on 29/04/2022 at 08:54:13 PM) (2 of 12) [CW-3704/2022] Lalkothi, Jaipur.
2. Commissioner Of Police, Jaipur, Police Commissionerate, Jaipur.
----Petitioners Versus Sardar Mal S/o Shri Ram Narayan Yadav, Aged About 43 Years, Presently Working As Asi, Police Commissionerate Jaipur
----Respondent For Petitioner(s) : Mr. M.S. Singhvi, Advocate General assisted by Mr. Sheetanshu Sharma Mr. Pranav Bhansali Mr. Rajesh Maharshi, AAG with Mr. Udit Sharma For Respondent(s) : Mr. Raghunandan Sharma HON'BLE MR. JUSTICE INDERJEET SINGH Reportable Order 25/04/2022 The Sub-rejoinder submitted by the respondents is taken on record.
These writ petitions arise out of the common order passed by the Rajasthan Civil Services Appellate Tribunal (hereinafter to be referred as "Tribunal") dated 15.06.2021 and since common questions of law are involved in these writ petitions, therefore, with consent of the parties these writ petitions have been heard together and are being disposed of by this common order.
The facts have been noticed from CWP No.-3706/2022 (State of Raj. & Anr. Vs. Vijay Singh). The prayer made by the respondent in the appeal filed before the Tribunal reads as under:-
"(i) To pass appropriate order or directions whereby respondents be directed to correctly determine vacancies for the post of Sub-Inspector for vacancy year 2013-
2014, 2014-15 and 2015-16. alongwith all (Downloaded on 29/04/2022 at 08:54:13 PM) (3 of 12) [CW-3704/2022] consequential benefits, with retrospective effect in favour of Appellant.
(ia) To pass an appropriate order or direction whereby, the orders dated 22.9.2020 and 21.7.2020 be quashed and set aside with consequential effects; (ib) To pass an appropriate order or direction whereby, respondents be directed to conduct review promotional exercise prior to vacancy year 2012-13 for the post of SI, in term of Rule 26(iv) of Rajasthan Police Sub-Ordinate Service Rules, 1989, whereby experience for promotional post is to be calculated from the first of April of the year in which the qualifying examination on previous post is held, with all consequences.
(ii) To pass appropriate order or direction whereby the reply letter dated 29.4.2019 be quashed and set aside alongwith all consequential benefits in favour of Appellants, with retrospective effect.
(iii) To pass appropriate order or direction whereby respondent be directed to convene qualification examination for promotion to the post of Sub-Inspector against vacancies of year 2013-14 on vacancies as suggested in writ petition. Further appellants be permitted to participate therein, with all consequential benefits with retrospective effect.
(iv) To pass appropriate order or direction whereby appellant be given opportunity to appear in qualification test for promotion to the post of Sub-Inspector against vacancies for 2013-14 and 2014-15.
(v) To pass appropriate order or direction whereby respondent be directed to undertake review of promotional exercise for the post of Sub-Inspector against vacancies year 2014-15, after convening promotional exam for the year 2013-14, for giving full effect to judgment passed by Learned Tribunal 10.03.2017 in Vijay Singh & Ors. Vs State of Rajasthan & Ors.
(vi) To pass appropriate order or direction whereby respondents be directed to convene promotional exercise for the post of Sub-Inspector for subsequent years, in terms of adjudication done for prayers made in present Appeal.
(vii) Any other appropriate order or direction which the Hon'ble Court may deem just, proper in the facts and circumstances of the case may kindly be passed in favour of the Appellant.
Cost of Appeal Petition may also be awarded in favour of the Appellant."
(Downloaded on 29/04/2022 at 08:54:13 PM)(4 of 12) [CW-3704/2022] Thus the main relief, which the appellant seeking is-
(1) Correct determination of vacancies of Sub-Inspector for the year 2013-14, 2014- 15 and 2015-16;
(2) To hold eligibility or qualifying test for promotion to the post of Sub-Inspector against the vacancies of 2013-14 and provide an opportunity to the appellant to appear in the qualifying test for these years 2013-14 and 2014-15;
(3) To hold a review DPC thereafter against the vacancies of the year 2014-15 (4) To hold the review DPC prior to vacancies of the year 2012-13 in terms of the rule 26(iv) of Police Rules, 1989; and (5) To quash orders dated 22.9.2020 and 21.7.2020."
Brief facts of the case are that the respondents raised the issue for determination of the vacancies of Sub-Inspector under Rule 10 of the Police Subordinate Services Rules, 1989 for the year 2013-2014 and also for the next two years. The appeal filed by the respondents along with other connected appeals were allowed by the learned Tribunal vide order dated 15.06.2021 based on the report submitted by the Expert Committee constituted by the learned Tribunal vide order dated 02.02.2021.
Apart from representation from the Police Department the said committee consisted of two lawyers of the Tribunal. Being aggrieved by the order dated 15.06.2021 these writ petitions have been filed by the petitioners.
Learned Advocate General appearing for the petitioner- State submitted that as per the Scheme of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 (hereinafter to be referred as "Act of 1976"), the Tribunal has to decide the appeal on merits either to accept or reject the same.
He relied upon the provisions contained in Sections 4 & 6 of the Act of 1976, which reads as under:-
4. Duties of the Tribunal:- (1) The Rajasthan Civil Services Appellate Tribunal shall hear an (Downloaded on 29/04/2022 at 08:54:13 PM) (5 of 12) [CW-3704/2022] appeal against the order passed by any officer or authority on any service matter or matters affecting a Government servant in his personal capacity.
(2) The Tribunal shall have power to confirm, vary or reverse the order against which the appeal is preferred or to remand the matter for fresh decision in accordance with the directions given by it.
6. Powers of Tribunal:- (1) The Tribunal shall, for the purpose of the disposal of the appeal under this Act, have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person;
(b) requiring the discovery and production of any documents; and
(c) issuing commissions for the examination of witnesses or documents.
(2) The Tribunal may examine on oath any person supposed to be acquainted with the matter under probe or any fact relevant thereto and may record his evidence.
(3) The proceedings before the Tribunal shall be deemed to be a judicial proceedings within the meaning of Section 193 of Indian Penal code, 1860 (Central Act No.45 of 1860).
(4) The Tribunal shall be deemed to be a Civil Court for the purpose of sections 345 and 346 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and the Contempt of Courts Act, 1971 (Central Act 70 of 1971).
(5) The Tribunal may, on its own motion or on the application of any party interested, review its own decision or order and pass in reference thereto such order as it thinks just and proper.
Provided that the Tribunal shall not review its own decision or order unless it is satisfied that there has been discovery of new and important fact or evidence which, after the exercise of due diligence was not within the knowledge of such party or could not be produced by such party at the time when such decision or order was made, or that there has been some mistake or error apparent on the fact of the record:
Provided further that no application under this sub-section shall lie to the Tribunal after the expiry of thirty days from the date of the decision or order of which review is being sought.
Provided also that an application may be entertained after the said period of thirty days if the applicant satisfied the Tribunal that he had sufficient cause for not filling the application within such time.
(6) Notwithstanding anything contained in any judgment, decree, order or direction of any (Downloaded on 29/04/2022 at 08:54:13 PM) (6 of 12) [CW-3704/2022] Court, the orders of the Tribunal passed before the commencement of the Rajasthan Civil Services (Service Matters Appellate Tribunals) (Amendment) Act, 2005 (Act No.2 of 2005) in pursuance of its purported powers to review its own decisions shall be deemed to have been passed validity under the provisions of sub-sec. (5) and shall have effect accordingly.
Learned Advocate General further submits that as per Section 4 (2) of the Act of 1976, the Tribunal shall have power to confirm, vary or reverse the order against which the appeal is preferred or to remand the matter for fresh decision in accordance with the directions given by it, but there is no provision under the Act of 1976 to appoint Sub-Committees, more particularly, to appoint the lawyers in the Sub-Committee.
He further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Sanghar Zuber Ismail Vs. Ministry of Environment, Forests and Climate Change and Another reported in 2021 SCC Online SC 669, where in paras No.3, 7 & 8, it has been held as under:-
"3. The appeal before the NGT arose from the grant of an environmental clearance on 4 January 2021 in favour of the second respondent for the expansion of the capacity of its refinery situated in the petro-chemical complex at Vadinar, District Devbhumi Dwarka, Gujarat from 20 MMTPA to 46 MMTPA. The main challenge before the NGT, as recorded in paragraph 3 of the decision is that the expansion was likely to cause an adverse impact on the marine environment, both in terms of the mangroves and marine biology. The NGT noted that its attention been drawn to the EIA/EMP study prepared by SCIR-NEERI. Having extracted from the study, the NGT noted the submission of senior counsel for the second respondent that all the EC conditions would be duly complied with and due mitigation measures would be taken to ensure the safety of mangroves and marine environment.
7. Having regard to the nature of its appellate power, the NGT has to apply its mind to the substantive grounds of challenge. The NGT has merely based its conclusion on the statement which has been made by the project proponent (Downloaded on 29/04/2022 at 08:54:13 PM) (7 of 12) [CW-3704/2022] and has not conducted an independent appraisal of the grounds of challenge.
8. As a matter of fact, Mr. Dhruv Mehta, learned senior counsel, who appears on behalf of the second respondent, states that the appellant had not produced a copy of the correct EIA before the NGT and an application has been filed on behalf of the second respondent for clarifying the position. Be that it may, the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees, even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal."
He further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Kantha Vibhag Yuva Koli Samaj Parivartan Trust and Ors. Vs. State of Gujarat and Ors. reported in 2022 SCC Online SC 120, where in para No.18 & 19, it has been held as under:-
"18. Section 15 empowers the NGT to award compensation to the victims of pollution and for environmental damage, to provide for restitution of property which has been damaged and for the restitution of the environment. The NGT cannot abdicate its jurisdiction by entrusting these core adjudicatory functions to administrative expert committees. Expert committees may be appointed to assist the NGT in the performance of its task and as an adjunct to its fact-finding role. But adjudication under the statute is entrusted to the NGT and cannot be delegated to administrative authorities. Adjudicatory functions assigned to courts and tribunals cannot be hived off to administrative committees. In Sanghar Zuber Ismail v. Ministry of Environment, Forests and Climate Change and Another, a three-Judge Bench of this Court noted that the NGT cannot refuse to hear a challenge to an Environmental Clearance under Section 16(h) of the NGT Act and delegate the process of adjudicating on compliance to an expert committee. The Court held:
"8...the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. Constitution of an expert committee does not absolve the NGT of its duty (Downloaded on 29/04/2022 at 08:54:13 PM) (8 of 12) [CW-3704/2022] to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees, even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal."
19. The NGT has in the present case abdicated its jurisdiction and entrusted judicial functions to an administrative expert committee. An expert committee may be able to assist the NGT, for instance, by carrying out a fact-finding exercise, but the adjudication has to be by the NGT. This is not a delegable function. Thus, the order impugned in the appeal cannot be sustained. The consequence of the impugned order is to efface the meticulous exercise which was carried out by the earlier Benches. Valuable time has been lost in the meantime and crucial issues pertaining to the environment in the present case have been placed on the back-burner."
He also relied upon the judgment passed by the Co-ordinate Bench of this Court, at Principal Seat, Jodhpur in the matter of Manoj Kumar Jain Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.12557/2021), decided on 21.09.2021, where in considering the powers and duties of the learned Tribunal, the Court observed as under:-
20. The relevant provisions reads thus:
"4. Duties of Tribunal.- (1) The Rajasthan Civil Services Appellate Tribunal shall hear an appeal against the order passed by any officer or authority on any service matter or matters affecting a Government servant in his personal capacity. (2) The Tribunal shall have power to confirm, vary or reverse the order against which the appeal is preferred or to remand the matter for fresh decision in accordance with the directions given by it."
22. A conjoint reading of Section 4 and 5 of the Act of 1976 clearly suggests that the Tribunal is required to decide each appeal on its merits. The Tribunal does not have any power to issue a mandamus, as it is only an appellate authority created to examine the matters relating to seniority, promotion, confirmation, transfer etc. This Court has witnessed many orders particularly relating to transfer of Government (Downloaded on 29/04/2022 at 08:54:13 PM) (9 of 12) [CW-3704/2022] employees, in which the Tribunal has simply passed direction to consider and decide representation. Such approach of the Tribunal is not legally correct. The Tribunal should refrain from adopting such practice and it should decide appeal on the anvil of legal provisions or judicial precedents instead of leaving the employees at the mercy of the authorities who themselves have passed order(s) of transfer.
He further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Kanwar Singh Saini Vs. High Court of Delhi reported in (2012) 4 SCC 307, where in paras No.22 & 23 it has been held as under:-
"22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. (Vide: The United Commercial Bank Ltd. v. Workmen Nai Bahu v. Lal Ramnarayan, Natraj Studios P Ltd. v. Navrang Studios, Sardar Hasan Siddiqui v. STAT, A.R. Antulay v. R.S. Nayak, Union of India v. Deoki Nandan Aggarwal, Karnal Improvement Trust v. Prakash Wanti, U.P. Rajkiya Nirman Nigam Ltd. v. Indure P. Ltd., State of Gujarat v. Rajesh Kumar Chimanlal Barot, Kesar Singh v. Sadhu, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, CCE v. Flock (India) (P) Ltd.
23. When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act.(See: Doe d. Bishop of Rochester v. Bridges, B & AD P.859, Barraclough v. Brown, Premier Automobiles Ltd. v. K.S. Wadke and Sushil Kumar Mehta v. Gobind Ram Bohra."(Downloaded on 29/04/2022 at 08:54:13 PM)
(10 of 12) [CW-3704/2022]
Learned Advocate General further submits that the
Committee has given suggestion for creation of the certain posts, based thereon the learned Tribunal has issued direction for creation of posts, which would disturb the settled position in the Department with regard to promotions as the candidates of various cadres are eligible for promotion to the higher posts and seniority some of the cadres, Sub-ordinate Cadre posts are maintained at District level and range level.
Counsel for the respondents opposed the writ petitions and submitted that the learned Tribunal is well within its power to appoint the Sub-Committee.
He relied upon the provisions contained in Section 6, B & C of the Act of 1976, which reads as under:-
6. Powers of Tribunal:- (1) The Tribunal shall, for the purpose of the disposal of the appeal under this Act, have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely:-
(b) requiring the discovery and production of any documents; and
(c) issuing commissions for the examination of witnesses or documents.
Counsel further submits that the Committee has only given suggestions to the learned Tribunal to decide the controversy involved in the matters, as the vacancies were not determined properly by the Department. Counsel further submits that once the Department has participated in the process of determining the vacancy and failed to challenge the order passed by the Tribunal appointing Sub-Committee, they are now estopped to challenge the order passed by the learned Tribunal.
Heard counsel for the parties and perused the record.
(Downloaded on 29/04/2022 at 08:54:13 PM)(11 of 12) [CW-3704/2022] The first argument raised by the respondents regarding the participation of the petitioners in the meetings and proceedings of the Sub-Committee and now they are stopped to challenge the same, in my considered view, is not acceptable in view of the fact that the learned Tribunal has no jurisdiction to appoint Sub-
Committee as per the Scheme of the Act, 1976 and in view of the judgment passed by the Hon'ble Supreme Court in the matter of Kanwar Singh Saini (supra).
This writ petition filed by the petitioners deserves to be allowed; for the reasons, firstly, a bare reading of the Scheme of the Act, 1976 clearly shows that the learned Tribunal has no power and jurisdiction to appoint Sub-Committee to determine the year wise vacancies in the Department, while as per the Scheme of the Act, 1976 more particularly, Section 4 of the Act, 1976, the learned Tribunal has power to confirm vary or reverse the order against which the appeal is preferred; secondly, the Committee has directed for creation of the certain posts and in my considered view, the learned Tribunal has committed serious illegality in accepting the report submitted by the Sub-Committee without giving any cogent finding for creation of the posts, lastly, in view of the judgment passed by the Hon'ble Supreme as well as the Co-ordinate Bench of this Court in the matter (supra), the order passed by the learned Tribunal 15.06.2021 deserves to be set-
aside.
Accordingly, these writ petitions are allowed. The order passed by the learned Tribunal dated 15.06.2021 is quashed and set-aside. The appeals preferred before the learned Tribunal are restored. The Tribunal is directed to decide such appeals on merits. The parties are directed to appear before the learned (Downloaded on 29/04/2022 at 08:54:13 PM) (12 of 12) [CW-3704/2022] Tribunal on 09.05.2022. Office is directed to keep copy of this order in each connected file.
Copy of the order be also sent to the learned Tribunal.
(INDERJEET SINGH),J Upendra Pratap Singh /1-4 (Downloaded on 29/04/2022 at 08:54:13 PM) Powered by TCPDF (www.tcpdf.org)