Calcutta High Court
Bimal Sahoo, Secretary, Basudebpur ... vs Gouri Rani Pahari And Others on 20 August, 1990
Equivalent citations: AIR1991CAL120, (1990)2CALLT425(HC), 94CWN1114, AIR 1991 CALCUTTA 120, (1990) 2 CAL LJ 405, (1990) 2 CALLT 425, (1991) 2 CAL HN 36, (1991) 2 LAB LN 373, (1992) 64 FACLR 1047
ORDER
1. The plaintiff filed Title Suit No. 30 of 1989 in the Second Court of Munsif, Contai for a declaration that the plaintiff stood first among the candidates interviewed for selection of an assistant teacher, for other declarations, permanent injunction, both prohibitory and mandatory.
2. The plaintiff alleges that the defendant school sponsored names of some candidates from the employment exchange for filling up a vacancy of an assistant teacher in the school. Since the Ad hoc Committee of the school resolved to eliminate the plaintiff she had to file a writ being C.O. 2538(W) of 1988. In terms of direction in the writ by the High Court Committee interviewed the candidates including the plaintiff. On an illegal assessment of marks one Tapati Khatua was selected although the plaintiff stood first in the selection. The plaintiff preferred an appeal to the District Inspector of Schools who on the basis of an enquiry report cancelled the panel prepared by the Selection Committee and directed the Secretary of the School to prepare panel afresh with the candidates already interviewed. The defendant school did not prepare a fresh panel on a correct assessment of the marks obtained by the candidates in obedience to the order of the appellate authority. In violation of the order of the appellate authority fresh interview was taken on 5-10-89. This is not only illegal but also contrary to rules for interview. The school is bound to recast the panel on the basis of the earlier interview held on 17-4-88. Since the later interview was held in violation of the order of the appellate authority and in contravention of rules the plaintiff filed the suit.
3. She also filed a petition for temporary injunction with a prayer for restraining the school authorities from preparing the panel on the basis of the interview on 5-10-89 and restraining the District Inspector of Schools from approving the panel.
4. The Court by an order dated 2-2-90 granted an ad hoc interim injunction restraining the defendants from preparing any panel of candidates for appointment of an assistant teacher on the basis of interview on 5-10-89 and sending the panel to the District Inspector of Schools for approval till the hearing of the injunction petition.
5. The school authorities figuring as defendants 1(a) to 1(i) did not submit to the jurisdiction of the Court and preferred this revision.
6. Mr. Bhuniya appearing for the revisionists contends that the defendants in the suit will not submit to the jurisdiction of the trial Court since it has no jurisdiction to entertain the suit. According to him the plaintiffs has only a statutory right as distinguished from a common law right. He means to say that the plaintiff can ask for appointment only under statutory rules and therefor she must ask for remedy of her grievances under the rules. Reliance is placed upon a number of decisions to contend that special remedy available under the rule ousts the jurisdiction of the Civil Court. If special right and special remedy are created or provided under the special statute which is adequate civil court cannot entertain jurisdiction. These propositions are well grounded and therefore cannot be questioned.
7. Mr. Bhuniya argues that the plaintiff may ventilate her grievance to the District Inspector of schools under paragraph 7 of "procedure for recruitment of teaching and non-teaching staff...... She cannot maintain an action in Civil Court.
8. Mr. Roychowdhury contends that the defendants cannot invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India on several grounds, viz., (1) an alternative remedy by way of appeal is available, (2) the defendants may submit to the jurisdiction of the Court and ask for rejection of the plaint under Order 7, Rule 11, C.P.C.
9. The power of superintendence under Article 227 of the Constitution is to confine the subordinate Courts and tribunals within their bounds. Mr. Bhuniya contends that this power can be exercised even suo motu. (Ranjit Kr. Ghosh v. Secretary, Indian Psychoanalytical Society, 67 CWN 297, Satyanerain Nathany v. Union of India, ). But the High Court will ordinarily refuse to exercise this power if some other adequate remedy is available (Maneck Gustedji Burjarji v. Sarafasali Nawabali Mirza, , K. K. Srivastava v. Bhupendra Kumar Jain, ). Mr. Roychowdhury contends that the defendants could very well prefer an appeal to question the authority of the trial Court to take cognizance of the Court. Mr. Bhuniya relies upon several decisions Hiralal Show v. State of West Bengal, 87 Cal WN 358; Union of India v. Ad hoc Claims Commissioner, 81 Cal WN 649; State of M. P. v. Babulal, AIR 1977 SC 1718; Paresh Nath Cloth Stores v. Nityananda Pal, 64 Cal WN 663 and Roufan-nesa Bibi v. Union of India, 66 Cal WN 412 to urge that a provision of appeal does not bar the exercise of power under Article 227 of the Constitution. It is normally so. And as a matter of fact, the court will exercise the power in case of patent absence of jurisdiction or exercise of excess jurisdiction, Kiran v. Chaman, .
10. Mr. Roychowdhury invites my attention to the provision in Section 115, C.P.C. as it stood before amendment of 1976 and as it stands after amendment. It is clear that by the amendment of 1976 unlike the preamendment provision a revision shall no more lie if an appeal lies to the High Court. It is urged that Article 227 of the Constitution is fettered with similar limitation. I am unable to subscribe this view. Power of supervision cannot be so equated with power of revision. As a matter of fact Court will strike down a patently illegal exercise of jurisdiction in exercise of the power of superintendence. I am therefore unable to uphold the contention of Mr. Roychowdhury that the Court will not exercise this power of superintendence if an alternative remedy is available particularly when the Court finds inherently want of jurisdiction.
11. In answering the second objection raised by Mr. roychowdhury it is contended by Mr. Bhuniya that the Court must distinguish between maintainability of a suit and entertainability thereof. The suit may not be maintainable on different grounds. The defendant may enter appearance and question the maintainability of the suit. But while entertaining a plaint the Court on examina-
tion of the same may find that cognizance is barred. Relying upon Bakshi Ghulam Mohammed v. G. M. Sadiq, AIR 1968 J & K 98 it is contended that the Court cannot only reject plaint at any stage under Order 7, Rule 11, C.P.C. but also under Section 151, C.P.C. Therefore independent of the appearance of the defendant in the suit the Court is bound to look to the plaint to find that its cognizance is barred.
12. So the whole controversy boils down to a single point, viz. while this Court's jurisdiction under Article 227 of the Constitution is not barred whether in the instant case Court should exercise the power. Court must look to the allegations in the plaint.
13. Admittedly the plaintiff had moved the writ Court for a remedy. The petitioners contend that the opposite party having been refused an interim remedy in the writ Court and having been unsuccessful in the later interview cannot turn round and challenge the same. According to them this is a fit case therefore where this Court should interfere. The scope of dispute in the writ Court and in the suit is different. The remedy asked for in the writ Court had not been asked for in the suit. So interference on that score will be unjust. The second ground is equally untenable. If the second interview is found to be illegal and contrary to rules as alleged her surrender or participation in the interview does not cure it. Secondly, the trial Court will decide on facts as to whether she waived her right to challenge it by participation. She may have explanation for this participation which cannot be investigated in this proceeding.
14. In the plaint it has been alleged that the appellate authority directed to prepare a panel afresh with the candidates already interviewed. According to the plaintiff a fresh interview is unwarranted. She means to say that the appellate authority directed a reassessment of marks. The allegation is that a fresh interview was held in violation of the rules of recruitment and in disobedience to the direction of the appellate authority.
15. Civil Court can interfere if the statutory authority acts in violation of rules or acts in abuse of its authority or in violation of fundamental principles of judicial procedure (Munshi Ram v. Municipal Committee), ; State of West Bengal v. Indian Iron and Steel Co. Ltd., ; Seth Radha Kishan v. Administrator, Municipal Committee, ; Province of Madras v. J. S. Basappa, .
16. In view of the allegation in the plaint it cannot be held prematurely here that the civil court has no jurisdiction to entertain the suit.
17. Now let us turn to the impugned order. The Court has granted an ad interim injunction in its discretion. The defendants may file their written objection against the petition for temporary injunction. Court will dispose of the petition for temporary injunction within two weeks from the date of filing the written objection.
18. The application under Article 227 of the Constitution accordingly fails. Let a copy of this order go down to the Court below forthwith.
19. Order accordingly.