Central Administrative Tribunal - Mumbai
Ananda Ramchandra Lokhande And Ors vs M/O Defence on 30 January, 2019
I E II1, II III 1, I| II' . I _ OANO.55/2019 I CENTRAL ADMINISTRATIVE TRIBUNAL, E MUMBAI BENCH, MUEAI .
I E I O.A. No. 55/2019 | I I | ' PI Qgte Oi____ Qeoisionjfi January,wgQ19. ,
-CORAM: R. VIJAYKUMAR, names (A).
" RAVINDER KAUR, NIEDEER (J) .
I
1)Shri.Ananda Ramchandra Lokhande, I! III 55' I Age 57 Years, Working as JTO(S), CQAIMEI, I Pune, R/At : S.No. 81/1/10, ' I Sudarshan Nagar, Pip1eGurao, Pune 4111 061. . .1
2) Shri Suresh Kroshnarao Kale, Age EY7_Years, Working ems JTOIS), CQA(ME) Pnne, I R/At Dnyanesh Park No. 2, Pune 411061. E E
3) Shri Deepak Baburao Masurkar, I Age 57 Years, working as JTO(S), CQAIME), -
E Pune, R/At A/302, Vikas Sheel Society, Kasarwadi, I Pune 411 054.' _ ' ' I
4) Shri Sunjay Suresh'Purohit, II Age 57 Years, working as JTOISI, CQAIMEI, Pune, R/At B--2/6, Sunshine Residency, New Sangai, Pune 411061.
5) Mrs. Shyamala Maruti Pendekar, Age 57 Years, working as JTO(S), CQAIME), Pune, R/At A-5/104, Planet Millenium, I!
1| I| Pimpa1e.Saudagar_Pune 411 027 I II! I!
1| II
6) Shri Balbir Singh Sabherwal, __ =6» Age 57 Years, working as AE(QA), CQA(A), Khadki, Ii Pune 411027, R/At Flat No. 103/23, Bita Roseland I Residency, Pimple Saudagar, Pune 411 027. - E E
7) Shri Sanjay Madhukar Jadhav, Age 57 Years, working ii-1S PLE(QAI CQPHA) , _Kh61_C1I£i, P1.ll"1€_ 411E127, R/At: 26/62, Sangamwadi, Pune 411 003. '
8) Shri .Ashok; Ramchandra_IKanade Inna 57 Years, workrmg as JE(QA), CQAQA), Khadki, Pane 411027, 1,1, 1, 15' RfiAt 813, Sahakar Nagar 1%» -1, Padmavati, Pune I,1, 1, 411"009. I g I I I " m.Applicants.
I (By.Advocate Shri Vicky'Nhgrani) II E I :
I I Ii I , I'-
I I' I!
2 OA N0. .55/.2019 5 11% Versus " J':-2}
1. Union_of India, Through the Secretary, an 'ii 1;| Ministry of Defence, I Department of Defence Production, II Room No. 136, South Block, I Nirman Bhawan, New Delhi~110 011. *1' *1'
2. The Directorate General cxf Quality *1' *1} Assurance, Department of Defence I Production, Ministry of Defence, *1' South Block No.306~A, D wing, Sena Bhawan,
4| I Nirman Bhawan, New Delhi. 110011.'
3. The Additional DGQA (DQA)(M&E), I. Department of Defence Production 1D, II GQA/M7E~2), Po IchapurNawabganj, I I Dist.24 Paraganas(North), - ' I West Bengal~ 743144 .
4. The Controller, CQA (ME), Aundh Road, Khadki, Puner 411 020
5. The Controller, CQA (A), , ' Aundh Road, Khadki, Pune-- 411 003 m.Respondents Reserved on : 18.01.2019 Pronounced on;: ,§aIal*Ae13~ ORDER. ' P_§R= -,m,B- XI JAZKUM-AR 1 I (1-5.) This application has been filed en ' 15.01.2019 under Section 19 of the Q Administrative Tribunals Act, 1985 and has II been heard an; the stage cxf admission.' The II applicants seeks the following reliefs:
"a. This Hon'ble Tribunal may graciously lma pleased ix: call for the .records tn? the- case .from the Respondents and after examining the same, quash and set: aside the ./\ * H I ;"r I ' 1 In I . . . . . . . . . . . . . . . . . . . . . .- - - - -. . . . . . . . . . , . .... . . . . . . . . . . . . . . . . _ _ . . . . . _ _ _ _~ _- _- _- . . . . . . . . . . . . . . . . . . . . . . . . . . . . > . . . . . . . . . . . . . . . . z - - - - - - - - - - - - - ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' - - - - - - » - - ~ . . , , . . \ , _ , . . . . . :-- §--------_-_-_-_-_-;;;_-;;;;_ --'"' """"'""""""'""'-"""---""--"----------<----------[------- <='-'=-." .-..~,..........-.
F I 1! IIII II ' 3 OAAMUEVHU9 III II II II II! I- Ii orders dated 27.07.2017, 17.07.2017 _ I and 31.05.2018 gua the .App1icants " I:III with all consequential benefits. ' I IIIII '1| b. This Hon'ble Tribunal may further' be _pleased to 1direct the I III Respondents to _ retain the Applicants at their respective IIII establishments at Rune till' their 1I| Retirement in pursuance cu? Una New II Ii RTP 2016 dated 24.11.2016 with all consequential benefits. -
he c. Heavy Costs of the application I be provided for. ' I IIIII 1! Ej. Any other and further order as this Hon"ble Tribunal deems fit in the nature and circumstances of the LI
- case be passed." E 1I| I IIII '4 I
2. The applicants have been transferred in impugned orders _ No. S/1265/4/RT/2017* 18/DGQA/Arm~1 dt. 17.07.2017I in consequence of ai Rotational Transfer Policy relating to theI year '20l7~18. They .had, meanwhile, I:
III II II III challenged the Rotational Transfer_ Policy I III II .
II II established by the respondents as amended and III I1 III I' published cni 10.02.2017. Xi Single Bench of this 'Tribunal iii OA IR)" 305/2017 Iuui heard I I the applicants at' the _admission stage on 15.05.2017 and adopting the precedent of the II IIIIII I II| I Bangalore Bench of this Tribunal, stayed the operation of time policy ani ordered iii the I 1 I I Bangalore "Bench by the following operative I I I I 4 0"
I I I { ....... .. Ii II;
I I 4 - OA N0. 55/2019 order: I1I| I! "6.- In the light of the above, we now" remit the matter to_ the respondents to do the needful within one .month's time. They' imay therefore, differentiate between the sensitive and non--sensitive post in E accordance with the .Ministry's instructions and also- their own II transfer policy, if' ;H: is in compliance with the" -Ministry's instructions, they can pass 1,1, 1,I 1 appropriate order. They may do so III II within one month, till that date and I one week thereafter, none of the I people need rmu:lma.moved from that I I position." _ 'I-
3. Following the Transfer Orders, the .E applicants filed a Contempt Petition No. 41/2017 which was heard on 03.08.2017 and _ respondents submitted, at that time, that the Transfer Orders had not been implemented by way of a Movement Order and they were .E ' awaiting the final decision of this Tribunal. III III II1, I J. All such cases were then heard by the ._,1- -..._,_\\ Principal Bench of this Tribunal an-d'*""""'orders I I 1' were finally jpassed 1 cni 17.12.2018 upholding the Rotational _Transfer .Policy. _ While passing orders, the Principal Bench noted the new A'e following judgments of various Courts and III III 111 III111 Tribunals cited by respondents as below:
".i} P. Pushpakaran Vs. Coir Board & I II111 III 1II.
II ~42
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I I I 5 OA N0. 55/2019 - ih III III III III II III Another, [1979 (1) LLJ 139]. ' III II II
ii) Gujarat _Eleotrio.jity Board E ~5%» 'Another V; Atma Ram Sungomal Poshani, [1982 (2) SCR 357]. ' I E
iii) Shilpi Bose & Others v. State of Bihar & Ors.,[1993 Supp.(2) SCC 659]. III III II IIIII
iv) Union of India & Others v. S.l'1. I1 II Abbas,[(l993) 4 SCC 357];
II II Ii II
v) State of U.P. & Ors. v. Gobardhan Lal,[MANU/SC/0261/2004]. ' - II II I'
vi) All India - DGQA Engineers E Association & Ors. v. Union of India I & Others,[WPC we. 48428*4843l/2017].
Vii) All. India DGQA Engineers ' Associatian & Ors. v. Union of India II I'.
& Ors.,[QA No. 320/2017 Bangalore
Bench]. _ - I
viii) Pawan Jindal v. Union of India as I I II &' 0thers.[OA No. 1339/2_017 Principal '" II III III III I Bench]." - I' I! I
4._ The Principal Bench.ii1:its orders also III II III III II131 III referred to the orders of the Bangalore Bench ;A:.%"% of this Tribunal in OA No. 320/2017 dt.
~
17.10;20l7 in 'identical cases, in "which it
had. dismissed the (Bi and .recorded the
following: "
I
I
W11 a detailed consideration of the I facts -enui circumstances Inf the - I cases, we are of the view that the I contentions raised by the applicants I against the Rotational Transfer I Policy--20l6 do not _ merit any consideration. There -is also no I I ground to interfere in the transfer order cfixi -21.4.20l7= Idrnfli was _ hr 5 't = .. .. . . _____ __1 __________________________ __ I
-\.@*-
I 4 iil 1'! iii 31' ' 6 ' OA N0. 55/2019 issued pursuant to the policy and 3%» whbfli was_agitated_against in; the applicants though not specifically mentioned in idma relief sought. Pfla | therefore hold that the OAs are .E without any merit and-are liable to be dismissed."
-M_ éI The Hon'ble: High. Court then recorded E 1 s 'views _jr1 W.P..-1&3. 48428*4843l/2017 %| In 13' +' =1:
§}1..| decided on 08.02.2018 as under: 1..
E iv ii "8. The learned Central Government ii @%:
1' ii Counsel further submitmai that the i 13'
11|:3| transfer-policy of the year 2011 has been. revised by the' Ministry of Defence £32 its order' dated 24.11.2016. In the said revised-
policy, i;Ui addition tx> _the Technical/Scientific "Group ' 'B officials, Non--Technical Group 'B' officials were also- included. a' :=;
i§| 1413} Various associations u and Trade :;|i:;|1| :;|:1 Unions of DGQA _ Organisation 3 submitted representations with regard to 2016 Transfer Policy. Ministry of Defence in consultation with" the DGQA Head Quarters has carried out certain amendments to the: 2016' Transfer' Policy" which % includes deletion of' non--technica1 staff frmn the purview of transfer policy. The revised transfer policy E is applicable ix) WPs hEn48428-- 48431/2017 Group - 'B' Technical/Scientific staff' of'.DGQA 5 irrespective of whether} they .hold 'sensitive'- or 'non~sensitive' 1 posts. -
9. The petitioners' prayers before the Tribunal _as also this Court are "run; very' clear. In il substance, they have challenged the 2 2016 Transfer Policy and classification of posts as 'sensitive' and -'non--: sensitive', Admittedly, DGQA is an organisation % 5 iil i 11 '1 1' ii ii £1:
Ill .. I *-
i .... .. .... . ........ . . . . . . . . .. .. . . . ... .. . . .. .. ._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ ___ __ _ _ _ _ _ _ _ _ _ _ _ \ ~ . \ » - - - - , » » » - - - - - - - - $ z, . ,§ _ _ _ _ _ _ _ _ \ _ . . . . . . .. . . . .. . . . . . . . .. .. - - - - - - - - » -- - - - - - - - - - - - - - - - - - - - - ' ' ' ' ' * ' ' ' ' - - - - - - - - - - - - - - - » - ~ . . . . .. I E 7 " OA. N0. 55/2019 E 1! . under the hfinistry of Eefence. The classification of posts and l deployment of its personnel remains -
the prerogative of the organisations- l concerned _ and ' Courts cannot substitute their opinion.
E i
10. In the circumstances, these writ petitions must fail and are E _accordingly 'dismissed. Pka make .no §§ order as to costs." - l
6. While passing orders, the Principal 11! 1 Bench also recorded the following orders 'E after' declining to interfere with the New 2 i Rotational ' Policy challenged, by the E applicants as below: - ' "l6. As regards the prayer of the § applicants regarding s¢ay'<xf the transfer' orders dated..19.07.20l7 i2! amd 20.07.2017 it .ha noted that 3! i 2 the dates_ of birth of;'Smt. Alka Chauhan, ' applicant -no.1 and applicant no.2 Ms. Renu Ahuja,_are . 16.01.1961- - and 14.09.1960 respectively. Thus, 'both the - -mi-J1 .2 applicants no. 1 252 2 are due to ii T! superannuate much _before the"
% expiry of the period of three ii +5 years from rnn@._prescribed under i the Inna .RTP,- as amended, to E qualify" for exemption from E transfer. When the transfer orders 'E Z were issued Applicant 'no.1, Smt. 2 Alka Chauhan was about three years and six months short of the age of superannuation and applicant no.2, Ms Renu Ahuja was about three i years and two months short of the i age of superannuation._.Thus, even under the provisions-of the new . RTP as on date they are covered by -Mn the exemption from .RTP =and 1were E 2 fairly close to the prescribed E L i 2 . . ..,. H 'I 5 8 OAAMHEMKU9 | 4" .-_period when "the transfer orders 1
were issued.
E
17. Thus, taking a holistic view, E incorporating the letter and E spirit of the RTP, in the facts
-and circumstances of the case it would km; .h1- the interest of justice if the impugned transfer ' orders dated 20.07.2017 with J.-4'2';-.%~'_h respect to applicant no.1 and é dated 19.07.2017 with respect to applicant no.2 and are set aside. As regards applicant no.3, it has been .informed l3?_ the .1earned i}| :;| :;| Si =i§1| counsel for the applicants, at the 31 §}| i§| time of' arguments, that he has taken VRS. Even otherwise, looking at _his age, his case is on a different footing from that, of applicants 1 anui.2 and merits no intervention. a. ~ :;| :;|:;| :;| iil ii
- 18. The OA is accordingly allowed X to the 'extent that the transfer .
orders with regard' to applicant no. 1 Smt. Alka Chauhan dated 20.07.2017 and applicant no.2 Rm. ' Renu..Ahuja dated_ 19.07.2017 are set aside. No order as to costs."
7; The applicants .in this .OA ' have 71 _ S E ;1| 1;! E! contended tjufi; although they wnnma less than iil 33' | 57 years of age at the-time when the Transfer E \ * ' Orders were passed in the impugned order dt. E' iii 33} E E.1, 1;| iil:3| 12 17.07.2017, they have now crossed the age oi 3%» E 2;| 57 and therefore, in accordance with the New 'I E ii 1,1;.| a;| il 13' El Rotational Transfer Policy, they are exempted i;
i5| ~ 1}| 1:
from transfer especially since the orders of 1}| 21;%|! 1;| e| H the Principal Bench of this Tribunal were m é1 ii El 1}1,.| 1,1,..
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13| III il I 2'I;| 9 OANn5i%W9 I | passed cnflqr on 17.12.2018 anmi were received | by them. thereaftery They" also state that I I their OA No. 305/2017 was' thereafter é dismissed by this Tribunal on.1l.0l;2019 and their' plea :fim: intervening JUE the transfer : Jwm.@ orders was dismissed on the ground that the |-
present applicants had not _challenged the ii Transfer Orders. This has been corrected by II an them in the present application in which they ' II 1*.
rely on the concluding paragraphs of the 3%»L Ii| E orders of the. Principal Bench. as extracted 1%L above. The applicants argue that this is a2 :.E 1}! I' binding precedent on this Bench for the wIi I1,3I.
present case. _ .
8. Ima have heard the learned counsel for II3I the applicant and learned counsel for 'the l=}z2'l2' 2 respondents and cerefully considered the i.
:;|1}:1| :3| I3I 1;, facts and circumstances, law points and rival 1%_a contentions in the case. 1:
;.
9. As is evident from the orders of the I! i l Principal Bench which have been appropriately extracted. in time preceding" paragraphs,' the 1:
:;| iii *3} orders of_ the IPrincipal Bench followed. the 1}| N . %| Ill I. decision as recorded in the judgment dt.
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08.02.2018 of the Hon'ble High Court of
Karnataka and other judgments of Hon'ble Apex Court and other Courts limiting the jurisdiction of. a Court in intervening in ., Transfer Policy and transfer matters. We respectfully note that the interim orders of E II I3! Ell3l 2% this Tribunal granted in (NE No. 305/2017 on E 15.05.2017 tqrea Single Bench chr1;not conform E I:
to the legal position in this respect and in effect, placed a restriction on the' 1.
E
respondents for their administrative
1- ' ' .
operations in ' respect -of the ninety I
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applicants who were recorded as applicants in E
that -Oh" In any event, the._Hon'ble High
3|
Court of Karnataka reiterated these views in E
its orders of 08.02.2018 .and these are
binding in terms of the application of rules E
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and the jurisdiction of Courts and Tribunals' 1I|
isaura
in such matters but was brought to notice of I3!
this Bench iii the previous (N1 of applicants
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only after cmders cm? the Principal Bench in 2;|
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3.
the aforesaid OA. E
10. The learned counsel for applicants E
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1] OA N0. 55/2019 11' refers to Paras 16--18 of the orders of the Principal Bench extracted above to claim that I:
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this was a binding precedent. However, it is J:
I:
, noted" from the reliefs claimed by the E I I. E''.
;.
42% EI applicants in this application, that they have challenged' only the Transfer Order and e:
EI E! run: the Rotational Policy cni which they had 1%».¥L' failed while prosecuting OB No. 305/2017.
That policy as amended on. 10.02.2017 _ establishes the rule that staff above 57 I III I E I! years of age shall" be' exempted from E Rotational Transfer. The cause of action for the previous and present applications arises from the date of these transfer orders and not from the date of decision upholding the EI3| transfer policy by the Bangalore Bench whose E I E Igi E.I. I:
interinl orders luui earlier .been adopted. by E this Bench cni-the judgment of Edna Hon'ble I Ei High Court of Karnataka or the recent orders of' the Principal Bench. Edna age of it2.% ED» I 1 petitioners has, therefore, only to be If E verified 13; reference Ix) that. date cflf the cause of action and any deviation is not 'H If <. < I EI.
I. II :
E If I:
E 1 1 ,_ E1 :5 '12, 0.4 No. 55/2019 In contemplated in the dispensation contained in the policy and could only have been claimed _. _. ,:. .
.|l3l I3I III E' E3'| as an equitable relief. 'However, having accepted this Rule position, the" Transfer _ Orders passed cn1 17.07.2017 aux: strictly in E E conformity with- this policy which has now been upheld. Any deviation can only be sought jJ1 teens of ea specific provisions of these Rules. The guestion- that arises is whether this Tribunal can venture out of the jurisdiction of the extant rules issued under Article 309 (If time Constitution ;n1 a. quest for granting justice that specific applicants consider their due. Further, a plain reading an of the Paras l6~l8 of the orders of the Principal Bench show that this was a decision granted lil equity ix: persons who Iuni yet to complete 57 years of age. '
11. IUi.1ndia, time common-line doctrine <of equity' had.'traditionall§F been followed Ieven after it became independent in 1947.
I However, LU1 1963, time 'Specific Relief zunfl E:
was jpassed kn; "the Parliament anui most 1}| I3l E 'I E E #-
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13 OA N0. 55/2019 V ;i| eguitable_ concepts were codified and made 15% into statutory rights thereby ending athe *}' discretionary role of the Courts to grant *.' | E1.
equitable reliefs. Therefore, where if 1:
equitable reliefs have been codified into rights, they are no longer discretionary upon E | il ?'?
the Courts but are instead enforceable rights 1%| E subject to the .conditions _relevant to the ii circumstances of . those i rights being E satisfied. In the event that there is a gap E in the statute, it is open for a Court or a 1:
1:
1:
E Tribunal to exercise its discretion by virtue é | cxf inherent powers comparable ix: Section 151 of the Code of Civil Procedure. In the general case, only the Hon'ble Apex Court has inherent powers vested with ii: under Article 142 of the Constitution to; grant complete justice in a matter. In A.Venk"ata1nuni Vs. l *1' Union of India & ors. decided by the Full E 5 Bench of this Iiibunal in OA:No. 1917 of 2000 i dt. 06.09.2001 reference is made in CA §}| 1412/93 etc. of the Full Bench of this +' Tribunal at Hyderabad in B.K. Somayejulu & % .
if 3 13 / E ...-..~.. ..............................._............|...................._._..._...-.)-..- -.. . .-.-..._........._..-...,~.--::_..-..-...-)_____H': _______ __ _____ \_ } -----------------\ ._a='=aca-:-'=a<s'/- J4 OA N0. 55/2019 Ors; Vs. The Telecom commission & Ors., which raised inns question cxf whether ii; was permissible at all for the Tribunal to exercise: jurisdiction ll} equity; Time Bench held that jurisdiction in -equity 'does not inhere jjl the Tribunal. The Tribunal ii; to be guided by law in its adjudicatory process, andi not kg; considerations cw? equity' alone.
It cannot_travel into regions cm? equity and innovate remedies. IU1 this connection, the Bench referred to the decision of the Hon'ble Apex Court(Three-Judge Bench) in Union of India & Anr. V. Deoki Nandan Aggarwal (1992) 19 ATC 219 (SC), where the issue of judicial activism. was considered. on _Courts usurping legislative functions. IN: was held.an: Para 14 as below:
"Modifying and altering the scheme and applying it to others who are not otherwise entitled to come under the scheme, " will not also come under the principle of affirmative " action adopted lnr courts sometimes ;n1 order to avoid discrimination."
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12. This aspect was reiterated by the Hon'ble Apex Cknnn; .in CMD/Chairman, ) r ............................................... hi __.,____ ,,:,;_T_-_-_--------------
E 25 a E 15 OA N0. 55/2019 E III 3%! 11 I :. = B.S.N.L. & Ors. Vs. Mishri Lal & Ors. [2011 E STPL 16559 SC] in 'C.A. No. 1405 of 2007 E. E decided CH1 15.04.2011 vdnrfii recorded.an; Para 2 #1 20 as below: . 1.
"20§ We are of the opinion that the E above observations are not E *sustainable. When Rules.are framed E. under Article 309 = of the |'I Constitution, no undertaking' need |'| II 'be given to anybody and the Rules I can ins changed lat ¢nnr_time. For I El instance, if the retirement age is I fixed by rules framed under Article 309, that can be changed
-subsequently*.by ani amendment: even
-in respect of employees appointed before the, amendment. Hence, we I cannot accept the view taken by the I
- High Court. There is no question of I equity in this case because it is well settled that law prevails over' equity if there is a conflict. El Equity can only supplement the law, and not supplant it. As the Latin maxim states "Dura lex sed lex"' which means "The lawrghs hard, but I it is the law". -
_13. This position was . again reiterated in Raghunath Rai Bareja & Anr. vs. Punjab National_Bank &"Ors., 2007 (2) SCC 230 I I as belowi
-J El "When there ;n; a. conflict .between law and equity, it is the law which II _ has to prevail...Equity_ can- only supplement the law; but it cannot supplant or override it," _ I I I z El
14. Therefore, any grant of II I El El I ' I I 1+ I! I i.
I ._ . ::::::::::H___ ___ \ ' __ I_I_I \ _ \ I \ \ < _ ' _ _ _ _ _ _ _ _ _ _ _ _ __ H .. z-I.-.-._-._.-.-_.-_;.-.-.-.-.::::::_:::.-.~-.;::_-¢ ._ ., _ _ _ \ _ _ \\__ g__ ,§_ _ ,. » . ~ -, _-_ -, . » - -; ' _ _ __ I i J6 OA N0. 55/2019 I I equitable~ relief* made by- an Administrative I Tribunal should arise from some language in Ii statute or regulation. Parties arguing cases 5% before administrative tribunals should ensure IIi?| E that the relief they are seeking (or _the I}| relief sought by the other side) has an i arguable home in the Tribunal's enabling legislation. In a more recent matter where E several Division Benches cnf the Hon'ble High E I Court of Bombay had granted benefits E exercising jurisdiction and equity by Pi following the grant of benefits by the Hon'b1e Apex Court' in the case -of Kumari I '2 .Madhuri Patil Vs. .Additional Commissioner, .-
Tribal Development (l994)6 SCC 241, the Hon'ble Apex Court in Chairman and Managing II Director FCI & Ors. V. Jagdieh Balaram Bahira & Ors. in C.A. No. 8928 of 2015 Etc. Etc., held. that: "judicial discretion can Ibe exercised. only innn1 there ¢are inn) or :more igi possible lawful solutions. Courts cannot @535_e give a direction contrary to'a statute in the I III purported exercise of judicial discretion.
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Ii! II § I _,. __ g - - - * I ' -' I='| I! II I IIIII I"! II.
III! I J7 I 0.4 N0. 55/2019 |,I. IIIII I! III |II II I II' II.
-I II I II The power under Article 142 of the II I I:
I=I II III! IIII:
Constitution is one which is wielded with I I III II' I III!W;
HI! III HI! III circumspection and not in a manner which I II would defeat statutory intent, purpose and H I I I H language. Aharon Barak j11 his book titled I III II "Judicial Discretion (1989)" states thus:
"l6..,...Discretion - assumes the freedom to choose among several w-. :w-.--
lawful alternatives... Therefore, E discretion does not exist when there II I is but one. lawful option. In this II I I situation, the Ihnmna.Ls required to II I select that option and has no I freedom of choice. No discretion is III involved in _the choice between -a " lawful act and an unlawful act. The Judge Inust Iohoose the lawful act, and.he is precluded from choosing :|;T. T. :--
the unlawful act. Discretion, on the ' other hand, assumes the lack of an obligation to choose one particular possibility among several." (Id at p. 430). _
15. Inthe present case, the rules have been issued under the proviso to Article ;:ElC'.?;7_ III 309 of the Constitution and have the force of 1-
I I II statute. Inviting - 'the Tribunal's I III jurisdiction in judicial review' to rewrite E I? E E?:
the statute cu: rule 111 terms_ favourable 'U0 I I I the applicant would 'essentially assign I I I functions to "this 'Tribunal that" are Ibeyond I=I I I I the scope of judicial review. As held by the I II :lC_'-W'
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II 18 OA N0. 55/2019 Hon"ble Apex court in Ekta Shalcti Foundation I I vs. Govt. of NCT of Delhi-[(2006) 10 SCC 337] . I F in W}P.(C) No. 232 (Hf 2006 with Nos. 233~34 II of 2006, decided on 17.17.2006: ' I IFI C
- "The scope of judicial enquiry is -
confined to' the question whether the decision taken. by" the I Government is against any statutory |I I provisions or [is violative of] the fundamental .rights (If the Ioitizens I I II or is opposed to the pmovisions of II II II! II the Constitution. - Thus, the ' III III II! _position. is that even if the I II! III |II III I decision taken by the Government _ III I I does not appear"Ix>.be agreeable to the court, it cannot interfere."
I I I6. In our considered view, this Ii I Tribunal has no jurisdiction in equity_and it II I I III |II |II i.
i.
is .compelledI upon this 'Tribunal. to examine I-I E i.
i.
the nature of a proposition made out by an I'i II III II! II!I;I! IIIII III!I III:
III applicant with reference to time rules and to II! IIII IIIII! II! II II IIIII, II! examine iiiea judicial review could elucidate II! III II II II! LI! II some gaps in the rules or availability of any I I discretionary element that could enable I relief Ix) the applicants. 'No such neterial has been brought out by the applicants and.it is plain Ijum; they are cnflqj seeking reliefs in contradiction to the rules applicable to them. I " -
II
I
I.
II
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C19 0.4 Nu. 55/2019
17. Therefore, ill light (IE the lhmv
as settled by the rulings of the Hon'ble Apex Court as discussed above and by which we are 1- bound, in the 'circumstances, the. reliefs sought by the applicants are not maintainable and the (NI is, accordingly dismissed.am: the admission stage 'without any, order as to costs. However, in _ the facts and circumstances, the applicants are directed to report at their new stations in obedience to the transfer" order" by availing" only" actual travel time anui by forfeiting Inn; claims to eligible joining time. ' I (Ravinder "Kau'r)I' . (IE? jay]% T ZQBI I I I Member (J) Mernberefl) a">?"M Ram. I I