Central Administrative Tribunal - Gauhati
Salma Sultana vs Nvs on 24 May, 2023
1
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00105/2023
&
Misc. Application No. 040/00053/2023
Date of order: This, the 24th day of May, 2023
HON'BLE SMT. URMITA DATTA SEN, JUDICIAL MEMBER
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
BETWEEN
Salma Sultana
Aged about 34 years
Daughter of Late Shamsul Haque
Resident of Vill - Tukrapara
Dist. - Kamrup, Assam
Pin - 781136.
...Applicant
By Advocate: Sri H.K. Das, Sri N.K. Sharma,
Sri M. Hussain & Sri U. Pathak
- VS.-
1. The Union of India
Represented by the Secretary
Department of School Education
And Literacy, Shastri Bhawan
New Delhi - 1.
2. The Secretary
Department of Higher Education
And Literacy, Shastri Bhawan
New Delhi - 1.
O.A. No. 105/2023 &
M.A. No. 53/2023
2
3. The Navodaya Vidyalaya Samity
Represented by its Commissioner
Department of School Education
And Literacy, Government of India
B-15, Institutional Area, Sector-62
Noida, District - Gautam Budh Nagar
Uttar Pradesh - 201309.
4. The Recruitment Board
Constituted for Special Recruitment
Drive 2022-23 for Jawahar Navodaya
Vidyalaya of North Eastern Region
B-15, Institutional Area, Sector-62
Noida, District - Gautam Budh Nagar
Uttar Pradesh - 201309.
5. The Deputy Commissioner
Navodaya Vidyalaya Samity
Shillong Region, Temple Road
Barik Point, Lachumiere, Shillong
Pin - 793001.
...Respondents
By Advocate: Smt. R. S. Choudhury, NVS SC
Date of Hearing: 16.05.2023 Date of Order: 24.05.2023
*************************
O.A. No. 105/2023 &
M.A. No. 53/2023
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ORDER
PER URMITA DATTA SEN, MEMBER (J):
The instant Original Application has been filed by the applicant praying for following reliefs:-
"8.1 To direct the respondents to conduct supplementary interview for the applicant allowing her to appear in the said interview for the post of PGT (Chemistry) in pursuance to the advertisement in the employment news dated 09-15, July, 2022 with all consequential benefits.
8.2 To direct the respondents to declare result of the aforementioned supplementary interview and give her appointment, upon her success, in the post of PGT (Chemistry) in the Jawahar Navodaya Vidyalaya at North Eastern Region from the date of appointment of her batchmates with all consequential benefits.
8.3 Cost of the application.
8.4 Pass any such order/orders as Your Lordships may deem fit and proper."
2. As per the applicant, she is a resident of Village- Tukrapara, Chhaygaon, Kamrup, Assam. In response to the advertisement dated 09-15 July 2022 (Annexure-A/2) issued by the Jawahar Navodaya Vidyalaya in the employment notice, she had submitted her candidature for the post of PGT O.A. No. 105/2023 & M.A. No. 53/2023 4 (Chemistry). Accordingly, she participated in the written examination i.e. Computer Based Test (CBT) held in the NEHU campus, Shillong. After being declared successful in the CBT, she was called for interview, which was scheduled to be held on 21.03.2023 at Jawahar Navodaya Vidyalaya, Pachim Marg, Sector 25 (West), Chandigarh vide communication dated 17.03.2023 (Annexure-A/5). In pursuance to that, she went to Chandigarh to participate in the interview, wherein her candidature was cancelled restraining her from appearing in the interview on the alleged grounds that her qualification of M.Sc. (Chemical Science) was not equivalent to M.Sc. (Chemistry) as notified in the advertisement to the understanding of the respondents.
3. Being aggrieved with, initially the applicant had filed WP(C) No. 2083/2023 before the Hon'ble Gauhati High Court. However, the Hon'ble High Court declined to entertain the said Writ Petition vide Order O.A. No. 105/2023 & M.A. No. 53/2023 5 dated 11.04.2023 after considering the objection raised by the Navodaya Vidyalaya Samiti on the ground that the Central Administrative Tribunal is having jurisdiction as a Court of first instance. Thereafter, the applicant has filed the instant O.A. No. 040/00105/2023 praying for a direction to allow her to appear in the interview for the post of PGT (Chemistry) by holding supplementary interview as well as to keep one post of PGT (Chemistry) vacant till the disposal of this O.A.
4. However, the respondents, as first instance, vehemently has raised objection with regard to the jurisdiction of this Tribunal after referring Clause 23 of the said Notification dated 09-15 July 2022, which provides that - "Any dispute regarding the recruitment is subject to the court having jurisdiction in Delhi".
5. It has been strenuously submitted by Smt. R. S. Choudhury, learned NVS Standing counsel for the O.A. No. 105/2023 & M.A. No. 53/2023 6 respondents that the applicant, being fully aware of the provision of Clause 23 of the said Notification, did not enclosed the last page of the advertisement, which amounts to blatant suppression of material facts while approaching this Tribunal, which also amounts to misleading this Tribunal for her personal gain. However, on 25.04.2023, when the matter was initially heard by this Tribunal, during the course of hearing, last page of the advertisement was submitted before this Tribunal. Therefore, applicant is not entitled to any relief in equity since she has approached this Tribunal with unclean hands and non-disclosure of full facts has resulted in deceiving and misleading this Tribunal. In this regard, learned JNV standing counsel for the respondents has referred the following judgments:-
(i) (2008) 12 SCC 481, K.D. Sharma Vs. Steel Authority of India Ltd); and
(ii) (2013) 2 SCC 398 (Kishore Samrite Vs. State of UP & Ors).
O.A. No. 105/2023 & M.A. No. 53/2023 7
6. Learned Standing Counsel for the respondents, Smt. Choudhury has further submitted that Clause 23 of the said advertisement dated 09- 15.07.2022 provides that - any dispute with regard to recruitment shall be subject to the Court having its jurisdiction in Delhi only. The sole reason for providing such ouster clause is to avoid multiplicity of litigation by the candidates assailing different causes pursuant to the recruitment process, which in turn would delay the recruitment process and to avoid discrepancies due to orders that may be passed by different courts from different parts of the country. As per Smt. Choudhury, although applicant is a permanent resident of Assam and recruitment pertains to posting only in North-Eastern Region, however, the fact that, it is an all India Recruitment Drive, candidates could apply from different parts of India and for such reason, it was decided that interview would be held at Chandigarh, where all the candidates were requested to come and appear before the Interview O.A. No. 105/2023 & M.A. No. 53/2023 8 Board. The applicant, in her wisdom, had accepted the terms and conditions as laid down in the advertisement and had accordingly participated in the recruitment process. It is therefore, not open for the applicant to reprobate from the same.
7. Smt. R. S. Choudhury, learned JNV Standing counsel has also referred one O.A. No. 330/00925/2017 filed by one of the candidates before Central Administrative Tribunal, Allahabad Bench which was dismissed by the Co-ordinate Bench vide Judgment and Order dated 27.03.2018 after perusing ouster clause of jurisdiction. Similarly, relying upon two judgments of Hon'ble Apex Court, the Central Administrative Tribunal, Jaipur Bench, also refrained from entertaining one O.A. filed before it in view of the ouster clause provided in the advertisement and dismissed the same vide Order dated 11.01.2023. In both, Co-ordinate Bench, while dismissing the O.As for want of jurisdiction, had relied upon the judgment O.A. No. 105/2023 & M.A. No. 53/2023 9 passed by the Hon'ble Apex Court in the case of Rajasthan State Electricity Board Vs. Universal Petrol Chemicals Ltd., reported in (2009) 3 SCC 107. Therefore, learned JNV Standing counsel for the respondents has prayed for dismissal of this O.A. for want of jurisdiction.
8. Smt. R.S. Choudhury has further submitted that, in Clause 3.1(B)(iv) of the advertisement, it has been very categorically provides that - one of the eligibility criteria for the post of PGT, Chemistry is that the candidates must have the Post Graduation in Chemistry/Bio Chemistry. Clause 5(15) also provides that - candidature shall be summarily rejected if it is found that a candidate is not found eligible even after issuing admit card. Further, in Clause 2(v) of the Call letter dated 17.03.2023, it was specifically stipulated that - in case of claiming equivalence of qualifications with the qualification notified for appointment, candidate must bring relevant O.A. No. 105/2023 & M.A. No. 53/2023 10 documents issued by any competent authority (Registrar in case of University) in support of their claim. However, the applicant, on the day of interview i.e. on 21.03.2023, tried to console and apprise the Recruitment Board by showing the transcript that subjects studied in M.Sc. Chemical Science in Tezpur University is absolutely identical to Chemistry and subsequently, she had come up with the equivalence certificate on 28.03.2023. Therefore, at this belated stage, the applicant is not entitled to any relief on merit also.
9. In reply to the preliminary objections raised by the respondents with regard to non-disclosing/non- enclosing of the last page of the advertisement by which the applicant would not be eligible to get any relief in equity as alleged by the respondents, Sri H.K. Das, learned counsel appearing for the applicant has submitted that, it is an inadvertent mistake for which he sought for apology. Even otherwise also, such O.A. No. 105/2023 & M.A. No. 53/2023 11 inadvertent mistake by not enclosing the last page of the advertisement cannot be construed to be suppression of material information because same does not touch upon the merits of the case and jurisdiction of this Tribunal. The main issue is concerned with the territorial jurisdiction of the Tribunal and the applicant does not gain in any manner by suppressing the said fact by invoking the jurisdiction of the Central Administrative Tribunal, Guwahati Bench as the territorial jurisdiction depends upon the cause of action or part of cause of action arose in the territory of the concerned Court.
10. With regard to the objection on the ground of lack of territorial jurisdiction, learned counsel for the applicant, Sri Das has replied that the same is absolutely baseless. Even from the perusal of the order dated 11.04.2023 of the Writ Petition No. 2083/2022, it would be evident that the respondents purposefully objected the jurisdiction of the Hon'ble High Court on O.A. No. 105/2023 & M.A. No. 53/2023 12 the ground that the Central Administrative Tribunal being first Court of first instance, having jurisdiction but not the Hon'ble High Court. The respondents very cleverly did not raised any such objection that jurisdiction to file any case concerning the recruitment process lies at Delhi not in Assam before the Hon'ble High Court by placing the Clause 23 of the aforementioned Advertisement and the Hon'ble High Court was pleased to relegate the applicant to this Tribunal.
11. Sri H.K. Das, learned counsel for the applicant has further submitted that the Rule 6(ii) of the Central Administrative Tribunal (Procedure) Rules, 1987 provides that an application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction the cause of action, wholly or in part, has arisen. In the instant case, the applicant is a resident of District - Kamrup, she submitted her candidature from Assam and she appeared in the O.A. No. 105/2023 & M.A. No. 53/2023 13 Computer Based Test (CBT) (written test) conducted by respondents at NEHU (Shillong) and after clearing the written examination, for final interview, she was invited to appear before the Interview Board at JNV, Pachim Marg, Sector 25 (West), Chandigarh and in that scenario, part of cause of action had arisen under the territorial jurisdiction of the Central Administrative Tribunal, Guwahati Bench. However, no cause of action had arisen at Delhi. According to the learned counsel, the law does not permit the respondents to restrict the territorial jurisdiction of the forum under which whole or part of cause of action had arisen and since the applicant belongs to economically weaker category, she would be compelled to institute proceeding at Delhi, which is opposed to public policy and in violation of Article 14, 16, 19 and 21 of the Constitution of India.
12. Sri Das, learned counsel for the applicant has further submitted that Clause 23 of the advertisement O.A. No. 105/2023 & M.A. No. 53/2023 14 on the face of the records is void-ab-initio for violation of Rule 6 (ii) of CAT (Procedure) Rules, 1987 as held by the Hon'ble Apex Court in the case of Central Inland Water Transport Corporation Ltd. And another Vs. Brojo Nath Ganguli and another, reported in (1986) 3 SCC 156 as well as against the provisions of Constitution of India. Therefore, the applicant need not make any challenge to the same as the said Clause 23 is an unconscionable contract incorporated without any opportunity of bargaining to the applicant. According to Sri Das, even with consent also, the parties cannot confer territorial jurisdiction to any Court ignoring the settled principle of deriving of territorial jurisdiction based on "cause of action". For determining the territorial jurisdiction, the principle which is of paramount importance is a "cause of action" and in the instant case, not a single cause of action arose within the territory of Delhi. Therefore, the principle of cause of action for determining territorial jurisdiction of O.A. No. 105/2023 & M.A. No. 53/2023 15 a Court cannot be diluted basing on some nonest clause in the advertisement.
13. With regard to the decision of Central Administrative Tribunal, Jaipur Bench in O.A. No. 51/2021 dated 11.01.2023, which has been relied upon by the respondents to sustain the objection is not a binding precedent. In the said decision, the Co- ordinate Bench of Central Administrative Tribunal, Jaipur Bench solely relied on the decision of the Hon'ble High Court of Gujrat in the case of Yuvrajsingh Dilipsingh Zala Vs. Union of India & Ors. In Special Civil Application No. 4528 of 2016 and the fact of the said case is totally different than the instant case.
14. According to Sri H.K. Das, learned counsel for the applicant, the decisions of the CAT, Jaipur Bench is decision sub-silentio because the issue and importance of cause of action followed by the place of vacancy in determining the jurisdiction did not O.A. No. 105/2023 & M.A. No. 53/2023 16 receive consideration thereby losing its precedential value as held by the Hon'ble Apex Court in the case of Arnit Das(1)-Vs. State of Bihar, reported in (2000) 5 SCC 488.
15. It has been further submitted by the learned counsel for the applicant that choice of forum can be limited by incorporating exclusion clause under the agreement but agreement cannot confer jurisdiction on a place where it does not lie otherwise as held by the Hon'ble Apex Court in the case of Patel Roadways Limited, Bombay Vs. Prasad Tading Company, reported in (1991) 4 SCC 270. In the instant case also, even no part cause of action has arisen in Delhi. Therefore, by an agreement, the respondents cannot confer jurisdiction at Delhi.
16. Heard both the parties and perused the records.
17. It is noted that the respondents have preliminarily objected for maintainability of this O.A. O.A. No. 105/2023 & M.A. No. 53/2023 17 on the ground of jurisdiction as per Clause 23 of the Notification/Advertisement dated 09-15 July 2022 as well as suppression of fact by not enclosing the last page of the said Notification, which contains Clause
23. During the course of hearing, when the respondents had raised this preliminary objection on 25.04.2023, Sri H.K. Das, learned counsel for the applicant had verbally asked for apology on the ground of inadvertent mistake for not enclosing the last page of the said Notification. However, as per the learned counsel for the applicant, such non-enclosure of the said last page of the same Notification does not have any effect on the jurisdiction of this Tribunal as part cause of action has already arisen within the territorial jurisdiction of this Tribunal.
18. It has also been urged by the learned counsel for the applicant that since no cause of action has arisen at Delhi, therefore, exclusion of jurisdiction of other place and conferring jurisdiction at O.A. No. 105/2023 & M.A. No. 53/2023 18 Delhi by the respondents cannot create jurisdiction of Delhi, which is void-ab-initio. Thus, even, need not to be challenged. In the above backdrop, let us see whether at the first instance, this Tribunal has territorial jurisdiction or not or whether judgments referred by the respondents for establishing their claim for ouster Clause 23 of the aforesaid Notification except Delhi, all other places are being excluded for the purpose of jurisdiction of adjudication. This Tribunal established under the Administrative Tribunals Act, 1985 are being guided by the Central Administrative Tribunal (Procedure) Rules 1987. Rule 6 (ii) of the said Rules stipulates inter-alia:-
"6.1. Place of filing application. - An application shall ordinarily be filed by an applicant with Registrar of the Bench within whose jurisdiction-
(i) the applicant is posted for the time being, or
(ii) the cause of action, wholly or in part, has arisen:
Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under Section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.
2. Notwithstanding anything contained in sub-rule (1), a person who has ceased to be in service by O.A. No. 105/2023 & M.A. No. 53/2023 19 reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application."
19. From the perusal of the above, it is crystal clear that the respective Benches of the Central Administrative Tribunal is having jurisdiction, where the applicant is posted [which is not applicable in the instant case as the applicant has only applied for the post of Post Graduate Teacher (Chemistry) for Jawahar Navodaya Vidyalayas of North Eastern Region) and/or the cause of action, wholly or in part, has arisen. In the instant case, the applicant is a resident of Kamrup District, Assam has applied for the post of Post Graduate Teacher (Chemistry) and she appeared in the written examination i.e. Computer Based Test conducted by the respondents at NEHU campus, Shillong. Even the applications are being invited from the Indian Citizens to fill up the vacancies of Post Graduate Teachers in the Navodaya Vidyalaya Samiti for Jawahar Navodaya Vidyalayas O.A. No. 105/2023 & M.A. No. 53/2023 20 located at the Shillong Region in the North Eastern Region under the special drive. Since the entire North Eastern Region is under the territorial jurisdiction of the Central Administrative Tribunal, Guwahati Bench and part cause of action has arisen within territorial jurisdiction of this Tribunal, therefore, under Rule 6(ii) of the Central Administrative Tribunal (Procedure) Rules, 1987, this Tribunal has territorial jurisdiction in this present matter.
20. Further the applicant was invited to appear before the Interview Board at Jawahar Navodaya Vidyalaya, Pachim Marg, Sector 25 (West), Chandigarh, which was scheduled to be held on 21.03.2023. Even the Navodaya Vidyalaya Samiti being an Autonomous Organization, is having their Head Office at B-15, Institutional Area, Sector-62, Noida, District - Gautam Budh Nagar, Uttar Pradesh. But in no way, any cause of action has arisen with the jurisdiction of Delhi. It is a settled principle of law that O.A. No. 105/2023 & M.A. No. 53/2023 21 the jurisdiction of a Court cannot be conferred or created neither on the consent of both parties nor at the dictate of the Court if it does not have its jurisdiction over the said issue i.e. no cause of action has arisen under its jurisdiction.
21. During the course of hearing, Smt. R.S. Choudhury, learned NVS Standing counsel for the respondents has vehemently objected to entertain the instant application on the ground of lack of jurisdiction as per Clause 23 of the aforementioned Notification. According to Smt. Choudhury, similar case of jurisdiction on the point of Clause 23 of the pursuant to Recruitment Drive 2019 was considered by the Central Administrative Tribunal, Jaipur Bench vide Order dated 11.01.2023 in O.A. No. 51/2021. After perusal of the said Order dated 11.01.2023, it is noted that the Central Administrative Tribunal, Jaipur Bench had rejected the said O.A. on the basis of the judgment dated 14.06.2016 passed by the Hon'ble O.A. No. 105/2023 & M.A. No. 53/2023 22 High Court of Gujrat in the case of Yuvrajsingh Dilipsingh Zala Vs. Union of India & Ors, in Special Civil Application No. 4528 of 2016.
22. The facts of the aforementioned case of Gujarat High Court at Ahmedabad in the case of Yuvrajsingh Dilipsingh Zala Vs. Union of India & Ors. passed in Special Civil Application No. 4528 of 2016 is that, vide Employment Notice No. 2 of 2012 (Open Market) dated 27.09.2012, applications were invited by the Western Railway Recruitment Cell inviting applications from the eligible candidates of India for various Regions, Divisions and Workshops of the Western Railway. In response to that, applicant submitted his application on 27.09.2012. He appeared in the written examination held on 27.10.2013 at Gurukul Vidhyalaya, Vadodara pursuant to the call letter issued by the respondents. Thereafter, after verification of the documents, he was sent to the Railway Health Unit for medical examination, wherein O.A. No. 105/2023 & M.A. No. 53/2023 23 he received a communication dated 02.07.2014 from the Railway Recruitment Cell informing that since no vacancies were notified for the category of OH-OA (Orthographically Handicapped - One Arm Affected) in the said employment notice dated 27.09.2012, he is not found suitable for any post against the same. Being aggrieved with, applicant submitted appeal before the Chief Medical Director on 21.07.2014, which was rejected by the authority vide Order dated nil/9/2014 and being dissatisfied with the aforementioned two communications, applicant filed O.A. before the Central Administrative Tribunal, Ahmedabad Bench, where the respondents raised objection referring Clause 11 of the Employment Notice dated 27.09.2012, wherein it was mentioned that, in case of any dispute, jurisdiction will be with the Central Administrative Tribunal, Mumbai and High Court, Mumbai only.
O.A. No. 105/2023 & M.A. No. 53/2023 24 In this background, while rejecting the case of the applicant, it was observed by the Hon'ble Hight Court of Gujarat at Ahmedabad inter alia:-
"4.03. Even otherwise, we have considered the issue involved in the petition on merits. There is a logic behind clause 11 in the employment notice. As such, it cannot be disputed that both, Central Administrative Tribunal, Ahmedabad Bench and Central Administrative Tribunal, Mumbai Bench have jurisdiction to decide and consider the dispute between the parties with respect to the appointment arising out of employment notice dated 27/9/2012. However, in view of the specific ouster clause No. 11 in the employment notice dated 27]9/2012, the question posed for consideration is, whether the Original Application before the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad is required to be entertained or not and/or the petitioner is required to be relegated to approach the appropriate forum namely Central Administrative Tribunal, Mumbai Bench and/or High Court, Mumbai in view of the specific ouster clause 11 of the employment notice dated 27/9/2012 restricting territorial jurisdiction at the Central Administrative Tribunal, Mumbai Bench and High Court, Mumbai only."
Therefore, as both Central Administrative Tribunal of Ahmedabad Bench and Mumbai Bench are having jurisdiction and by Clause 11 of the employment notice dated 27.09.2012, with the consent of both parties, one of the jurisdiction was ousted, which is not against public policy since by Clause 11, jurisdiction confer upon, Mumbai Bench also having territorial O.A. No. 105/2023 & M.A. No. 53/2023 25 jurisdiction as part cause of action has arisen there at Mumbai Head Office of the Western Railway.
23. Learned Standing counsel for the respondents further has referred two judgments of the Hon'ble Apex Court passed in the case of A.B.C. Laminart Pvt. Ltd. And Another Vs. A. P. Agencies, Salem, reported in (1989) 2 SCC 163 as well as Rajasthan State Electricity Board Vs. Universal Petrol Chemicals Ltd. reported in (2009) 3 SCC 107.
24. As per the learned counsel for the applicant, the facts of the aforementioned two judgments of the Hon'ble Supreme Court as well as judgment of Hon'ble Gujrat High Court in the case of Yuvrajsingh Dilipsingh Zala are totally different and distinguishable than the present case of the applicant as well as petitioners before the Central Administrative Tribunal, Jaipur Bench and Allahabad Bench and as those facts were not considered by our Co-ordinate Benches, therefore, let us consider whether these O.A. No. 105/2023 & M.A. No. 53/2023 26 judgments would have any binding precedents effect on us or not? In the case of A.B.C. Laminart Pvt. Ltd. (supra). The fact is that - the first appellant is a manufacturer and supplier of metallic yarn under the name and style 'Rupalon Metallic Yarn' having its registered office at Udyognagar, Mohamadabad, Gujarat within the jurisdiction of the civil court of Kaira. The second appellant is a sister concern of the first appellant doing business with it. The respondent is a registered partnership firm doing business in metallic yarn and other allied products at Salem. In this background, the parties had come to an agreement wherein under Clause 11 of the said agreement, it has been stipulated that - 'Any dispute arising out of this sale shall be subject to Kaira jurisdiction'. In the said case, when disputes arisen between the parties out of the said contract, then the respondent/A.P. Agencies filed a suit against the appellants in the Court of Subordinate Judge at O.A. No. 105/2023 & M.A. No. 53/2023 27 Salem. However, the appellants took the plea that as per Clause 11 of the contract, the jurisdiction with regard to all disputes arising out of the contract would be at the Civil Court at Kaira. The said issue whether an agreement which purports to ouster jurisdiction of the Court absolutely is in contrary to public policy or not was under consideration before the Hon'ble Apex Court, wherein it has been observed that:-
"If on the other hand it is found that the jurisdiction agreed would also be a proper jurisdiction in the matter of the contract it would not be said that it ousted the jurisdiction of the court. This leads to the question in the facts of this case as to whether Kaira would be proper jurisdiction in the matter of this contract. It would also be relevant to examine if some other courts than that of Kaira would also have had jurisdiction in the absence of clause 11 and whether that would amount to ouster of jurisdiction of those courts and would thereby affect the validity of the clause.
11. The jurisdiction of the court in matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors.
12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but incudes all the material facts on which it is founded. It does not O.A. No. 105/2023 & M.A. No. 53/2023 28 comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
13. Under Section 20 (c) of the Code of Civil Procedure subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier Section 7 of Act 7 of 1888 added Explanation III as under:
Explanation III.--In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely:
1. the place where the contract was made;
2. the place where the contract was to be performed or performance thereof completed;
3. the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.
15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A sit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract.
But making of an offer on a particular place does not from cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and O.A. No. 105/2023 & M.A. No. 53/2023 29 hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. In the aforesaid background, the Hon'ble Apex Court at para 16 has also observed that:-
"16. So long as the parties to a contract do not oust the jurisdiction of all the courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the court. If under the law several courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy."
25. The Hon'ble Apex Court in the case of Rajasthan State Electricity Board (supra), observed that the appellant Board, which is having its base and operation at Jaipur placed an order for supply of 50 kilolitre of transformer oil with the respondent Company, which is having its registered office and manufacturing unit at Calcutta. Both the parties O.A. No. 105/2023 & M.A. No. 53/2023 30 entered to an agreement at Jaipur and as per condition contained in Clause 31 of the said contract of arbitration, it has been agreed by both the parties that the in case of any dispute, same shall be referred to the Chairman, RSEB, Jaipur or any person appointed by him for the purpose. The said party had also entered in to the another purchase agreement wherein at Claue 7, it has been incorporated that -
"All disputes, differences or questions whatever which may arise between the purchaser and the supplier upon or in relation with or in connection with the contact shall be deemed to have arisen at Jaipur (Rajasthan) and no court other than the court at Jaipur (Rajasthan) shall have jurisdiction to entertain or try the same".
In this backdrop, the Hon'ble Apex Court was required to apprise whether the ouster clause of the agreement between the parties will also be applicable in ascertaining for making reference under Section 21 of the Administrative Tribunal Act, 1985. The Hon'ble Apex Court while considering the case of A.B.C. Laminart (supra) as well as Hakkam Singh Vs. O.A. No. 105/2023 & M.A. No. 53/2023 31 Gammon (India) Limited, reported in AIR 1971 SC 740, it was observed at para 22 that -
"There are a number of decisions of this Court wherein it was held that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agree to vest jurisdiction in one such court to try the dispute which might arise as between themselves, such agreement would be valid and binding."
The agreement was also entered to Jaipur whereas another parties' office was at Calcutta. In that background, the Hon'ble Apex Court in the aforesaid two cases (supra) has held at para 28 that -
"In the light of the aforesaid facts of the present case, the ratio of all the aforesaid decisions which are referred to hereinbefore would squarely govern and apply to the present case also. There is indeed an ouster clause used in the aforesaid stipulations stating that the courts at Jaipur alone would have jurisdiction to try and decide the said proceedings which could be initiated for adjudication and deciding the disputes arising between the parties with or in relation to the aforesaid agreements through the process of arbitration. In other words, even though otherwise the courts at Calcutta would have territorial jurisdiction to try and decide such disputes, but in view of the ouster clause it is only the courts at Jaipur which would have jurisdiction to entertain such proceeding."
26. But in the instant case, no cause of action has arisen at Delhi as observed/noted above.
O.A. No. 105/2023 & M.A. No. 53/2023 32 Therefore, the aforesaid two judgments of Apex Court as well as on the basis of which our Co-ordinate Benches had passed orders are thus distinguishable and have no binding effect with regard to this case.
27. During the course of hearing, with regard to suppression of fact, in support of her contentions, Smt. R.S. Choudhury, learned JNV Standing counsel for the respondents has referred the case of K.D. Sharma Vs. Steel Authority of India Limited and Ors. reported in (2008) 12 SCC 481 wherein the Hon'ble Supreme Court at para 32 & 33 has observed as follows:
"32. We find considerable force in the argument of the learned counsel. From the record, it is clear that Tender Notice 4 was wrongly ignored and no process thereunder was undertaken by SAIL. What was granted to the appellant was a contract under Tender Notice 5. The appellant was working under Tender Notice 5. Meanwhile, the review of Respondent 2 against Tender Notice 4 was allowed and after the order passed by this Court dismissing special leave petitions, SAIL implemented the said order, bid of Respondent 2 was accepted and the contract was given to him. To us, SAIL is right in urging that the appellant cannot insist that even under the contract under Tender Notice 5, he should be allowed to continue the work. We, therefore, see no substance in the argument of the learned counsel for the appellant and the contention is rejected.
O.A. No. 105/2023 & M.A. No. 53/2023 33
33. The learned counsel for SAIL is also right in urging that the appellant has not approached the Court with clean hands by disclosing all facts. An impression is sought to be created as if no notice was ever given to him nor was he informed about the consideration of cases of eligible and qualified bidders in pursuance of the order passed by the High Court in review and confirmed by this Court. The true facts, however, were just contrary to what was sought to be placed before the Court. A notice was issued by SAIL to the appellant, he received the notice, intimated in writing to SAIL that he had authorised Ramesh of Rithwik Projects to appear on his behalf. Ramesh duly appeared at the time of consideration of bids. Bid of Respondent 2 was found to be lowest and was accepted and the contract was given to him (under Tender Notice
4). The said contract had nothing to do with Tender Notice 5 and the contract thereunder had been given to the appellant herein and he had completed the work. Thus, it is clear that the appellant had not placed all the facts before the Court clearly, candidly and frankly."
In the aforesaid case, appellant had suppressed the material fact that he was granted opportunity and worked under Tender Notice 4. However, had tried to mislead/deceive the Court to get the benefit out of Tender No. 5 where the appellant was not party at all. The Hon'ble Supreme Court in the said case of K.D. Sharma (supra), has held that, to get benefits on merit, the appellant did not approach the Court with clean hands by disclosing the fact. Thereafter, the O.A. No. 105/2023 & M.A. No. 53/2023 34 Hon'ble Apex Court, ultimately had observed at para 52 which is as follows:-
"52. In the case on hand, the appellant has not come forward with all the facts. He has chosen to state the facts in the manner suited to him by giving an impression to the writ court that an instrumentality of State (SAIL) has not followed doctrine of natural justice and fundamental principles of fair procedure. This is not proper. Hence, on that ground alone, the appellant cannot claim equitable relief. But we have also considered the merits of the case and even on merits, we are convinced that no case has been made out by him to interfere with the action of SAIL, or the order passed by the High Court."
28. Further, in the case of Kishore Samrite Vs. State of Uttar Pradesh and Ors., reported in (2013) 2 SCC 398, the issue involved in the said case was abuse of process of court and malign the State. However, in the instant case, since this Tribunal has territorial jurisdiction as part cause of action has arisen in the North Eastern Region and no part cause of action has arisen at Delhi, therefore, there is no question of abuse of Court, rather Navodaya Vidyalaya Samiti being knowing fully, did not raise question of territorial jurisdiction of Central Administrative Tribunal, Guwahati Bench and had O.A. No. 105/2023 & M.A. No. 53/2023 35 simply raised the question of jurisdiction of the Hon'ble the Gauhati High Court referring the jurisdiction of Central Administrative Tribunal, which would be evident from the Order passed by the Hon'ble Gauhati High Court passed in WP(C) No.2083/2023 dated 11.04.2023, which reads as follows:-
"Heard Mr. M.A.I. Hussain, learned counsel for the petitioner and Mr. K. Gogoi, learned Central Government Counsel for the respondent Nos. 1 and 2. Also heard Ms. R.S. Choudhury, learned Standing Counsel, Navodaya Vidyalaya for the respondent Nos. 3 to 5.
By placing a Notificaiton No. G.S.R. 748 € dated 17.12.1998 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) published it the Gazette of India Extraordinary Part-II Section 3 Sub Section (i) on Thursday, 17th December, 1998, Ms. Choudhury submitted before the Court that in terms of said Notification dated 17.12.1998, Navodaya Vidyalaya Samity Registered under Societies Registration Act, 1860 is under the jurisdiction of the Central Administrative Tribunal in terms of Section 14 (3) of the Administrative Tribunal Act, 1985.
Ms. Choudhury further submitted that since the matter before the Court relates to recruitment to the post of Teacher in Navodaya Vidyalaya, its jurisdiction is before the Central Administrative Tribunal and not before the Hon'ble High Court in terms of said Notification dated 17.12.1998, noted above.
Considering the above and the Notification dated 17.12.1998, published in the Gazette of India Extraordinary Part-II on 17th December, 1998, noted above, the Court is not inclined to entertain this writ petition.
O.A. No. 105/2023 & M.A. No. 53/2023 36 Accordingly, liberty is granted to the petitioner to approach the appropriate forum for redressal of her grievances."
29. Therefore, the respondents, who are claiming that the applicant did not approach this Tribunal with a clear hand but did not raised the same issue before the Hon'ble Guahati High Court that they could have done at the very first instance before the Hon'ble Gauhati High Court by brining Clause 23 of the Notification (supra).
30. It is further noted that, as per the respondents, as a part of public policy, jurisdiction has been entrusted at Delhi for the convenience of the respondents to deal with any types of disputes, which may have arisen out of the said advertisement and since their jurisdiction vested in the court at Delhi under Clause 23 of the aforesaid notification. Therefore, this Tribunal does not have jurisdiction over the issue.
O.A. No. 105/2023 & M.A. No. 53/2023 37
31. On the other hand, as per the applicant, as the applicant was not in a bargaining situation and in that scenario, said Clause 23 is unconscionable, arbitrary and opposed to the public policy, even, not acceptable as per law. According to the applicant, there is no need of challenging the same. More so, the Hon'ble Apex Court in the case of Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, reported in (1986) 3 SCC 156 has held that - the State being a powerful employer and the candidates who had no power, and in that scenario, inclusion of such clause by which the applicant would be debarred from approaching the competent authority of proper jurisdiction is opposed to public policy and void-ab-initio thus need not to be challenged.
32. Similarly Section 23 of the Indian Contract Act, 1872 stipulates that the consideration or object of an agreement is lawful, unless - it is forbidden by law;
O.A. No. 105/2023 & M.A. No. 53/2023 38 or is of such a nature that if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property or another; or the Court regards it as immoral, or opposed to public policy.
33. In the instant case, though the applicant has not challenged the validity of Clause 23 of the said Notification dated 09-15 July, 2022, but simply approached this Tribunal having territorial jurisdiction on the same. Even then, the respondents had raised preliminary objection on the ouster ground of Clause 23 and has vehemently objected to entertain the instant application. Therefore, in any way, we have to consider the submission of both parties in this regard and we find that, as per law, where no cause of action has arisen, the parties with consent, cannot confer or create jurisdiction of a Court and thus does not have any jurisdiction which is bad in law. Therefore, under Section 23 of the Indian Contract O.A. No. 105/2023 & M.A. No. 53/2023 39 Act, 1872, it is unlawful and obviously opposed to the public policy as held by the Hon'ble Apex Court in the case of Central Inland Water Transport Corporation Limited (supra)
34. Further, it is pertinent to observe that the applicant mentioned this matter under Diary No. 148/2023 on 25.04.2023 after serving an advance copy to the standing counsel for the respondents and had prayed for hearing of the matter showing urgency as the applicant was denied by the respondents to appear before the Interview Board at Chandigarh and the applicant was in apprehension that the post of PGT (Chemistry) may be filled up in the meantime. In that scenario, the Registry was directed to scrutinise the File and if found OK, then to list in a Supplementary List on 25.04.2023. Subsequently, on the prayer of both parties, matter was directed to be listed on 28.04.2023 and on that day, upon hearing both parties on the point of O.A. No. 105/2023 & M.A. No. 53/2023 40 jurisdiction, the matter was reserved for orders with a liberty to both parties to submit their written argument. However, learned counsel for the applicant again mentioned the matter before this Tribunal after giving notice to the learned counsel for the respondents and the matter was listed under "To Be Spoken To" on 02.05.2023, wherein the applicant had submitted that he has already filed an affidavit to bring on records some documents. However, since the matter was already kept as reserved on the question of maintainability with regard to jurisdiction point; learned counsel for the applicant wants to withdraw the said affidavit with liberty to file an M.A. and prayed for de-reserving of the matter for ends of justice in presence of the learned counsel for the respondents.
35. In that background, the O.A. was de- reserved on 02.05.2023 and directed to be listed under the heading for Admission Hearing on O.A. No. 105/2023 & M.A. No. 53/2023 41 16.05.2023 with liberty to the respondents to file objection with regard to such M.A. which they have filed on 15.05.2023 and both O.A. and M.A. were heard on 16.05.2023 and the same was kept reserved with a liberty to both the parties to file their written argument.
36. In view of the above, we are of the opinion that, as per Rule 6(ii) of Administrative Tribunals Act, 1985, this Tribunal has territorial jurisdiction over the issue as part of the cause of action has arisen within the jurisdiction of this Tribunal whereas on the other hand, no cause of action has arisen within the jurisdiction of the Court of Delhi as already observed above. Therefore, objection to allow M.A. to treat the last page of the aforesaid Notification 09-15 July 2022 as part of record is not relevant as the respondents themselves have put before us the said last page of the Notification which contains Clause 23 by which except Delhi, all other Courts has been excluded from O.A. No. 105/2023 & M.A. No. 53/2023 42 the jurisdiction to adjudicate any dispute between the parties. Since the applicant was not in a bargaining position and since this Bench is having territorial jurisdiction, we are not convinced with the arguments advanced by the respondents on the basis of judgments which are distinguishable and sub- silentio in nature.
37. In view of the above, M.A. No. 040/00053/2023 stands allowed.
38. Registry is hereby directed to list the O.A. No. 040/00105/2023 under the heading for Admission on 25.05.2023.
(DR. SUMEET JERATH) (URMITA DATTA SEN)
MEMBER (A) MEMBER (J)
PB
O.A. No. 105/2023 &
M.A. No. 53/2023