Calcutta High Court (Appellete Side)
Transcriber : Nandy vs The State Of West Bengal & Ors on 5 August, 2022
Author: Harish Tandon
Bench: Harish Tandon
05.08.2022
WPST 47 of 2022
Court : 04
Item : 04
Matter : WPST Shukdeb Maiti
Status : OP
Transcriber : nandy Vs.
The State of West Bengal & Ors.
Mr. Uday Narayan Betal, Advocate
Mr. Bhaskar Hutait, Advocate
......for the Petitioners
Mr. S.N. Mookherjee, Learned A.G.
Mr. Amitesh Banaerjee, Advocate
Mr. Tapan Kumar Mukherjee, Advocate
Mr. Sanjay Basu, Advocate
Mr. Piyush Agarwal, Advocate
Ms. Shrivalli Kajaria, Advocate
Ms. Debdooti Dutta, Advocate
......for the Respondent
Mr. Saibal Acharya, Advocate Mr. Dhananjay Banerjee, Advocate ......for the Applicant (in CAN 2 of 2022) CAN 2 of 2022 The instant application has been filed at the behest of seven applicants seeking their addition in the instant proceeding claiming themselves to be the successful candidates in the recruitment process under challenge and, therefore, their presence is necessary for adjudication of the disputes involved in the instant proceeding. Admittedly the applicants herein were not arraigned as party before the Tribunal nor they took out any independent application before the Tribunal raising and agitating their grievances sought to be raised in the instant proceeding.
The application has been filed at the stage when this Court invited the State to clarify the discrepancies discerned from the record produced by them and the disclosures having been made on the eligibility of some candidates including the writ-petitioners. Though it is said that they had no knowledge of the proceeding but it 2 appears that the moment they sensed that some order may yield fruitful result in their favour, immediately an application is taken out for addition of party in the instant proceeding. They never agitated their grievances before the Tribunal nor the alleged information sought to have been derived, is believable.
In Rajeev Kumar & Anr. Vs. Hemraj Singh Chauhan & Ors. reported in (2010) 4 SCC 554, the Apex Court in an similar situation held:-
7. "However, while answering the objection on their locus standi, the appellants referred to the decision of the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and others - (1997) 3 SCC 261 and in particular to paragraph 99, page 311 at placitum f & g of the report and contended that in view of the law declared in Chandra Kumar (supra), they can come before the High Court and raise their grievances against the judgment of C.A.T. as their interests have been affected by that judgment even though they were not parties to the proceedings in which the said judgment was rendered.
8. This Court is of the view that the understanding of the ratio in Chandra Kumar (supra) by the learned counsel for the appellants in this case is not correct and the ratio in Chandra Kumar (supra) is just to the contrary.
9. The Constitution Bench in Chandra Kumar (supra) held that the power of the High Court under Articles 226 and 227 of the Constitution and of this Court under Article 32 of the Constitution is a part of the basic structure of our Constitution (See paragraphs 78 & 79, pages 301 and 302 of the report).
The Constitution Bench also held that various Tribunals created under Articles 323-A and 323-B of the Constitution, will function as Court of first instance and are subject to the power of judicial review of the High Court under Articles 226 and 227 of the Constitution. The Constitution Bench also held that these Tribunals are empowered even to deal with constitutional questions and can also examine the vires of statutory legislation, except the vires of the legislation which creates the particular Tribunal.
310. In paragraph 93, at page 309 of the report, the Constitution Bench specifically held:
"...We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted...."
(Emphasis added) The Constitution Bench explained the said statement of law by reiterating in the next sentence:
"..By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.
11. On a proper reading of these two sentences, it is clear:
(a) The Tribunals will function as the only Court of first instance in respect of the areas of law for which they have been constituted.
(b) Even where any challenge is made to the vires of legislation, excepting the legislation under which Tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court `overlooking the jurisdiction of the Tribunal'.
12. The aforesaid propositions have been repeated again by the Constitution Bench in the penultimate paragraph 99 at page 311 of the report in the following words:
"...The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned...."
13. In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which C.A.T. has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with 4 great respect, fell into an error by allowing the appellants to treat the High Court as a Court of first instance in respect of their service disputes, for adjudication of which C.A.T. has been constituted.
14. The grievances of the appellants in this appeal are that they were not made parties in proceedings before the Tribunal. But in the impleadment application filed before the High Court it was not averred by them that they were not aware of the pendency of the proceeding before the Tribunal. Rather from the averments made in the impleadment petition it appears that they were aware of the pendency of the proceedings before the Tribunal. It was therefore, open for them to approach the Tribunal with their grievances. Not having done so, they cannot, in view of the clear law laid down by the Constitution Bench of this Court in Chandra Kumar (supra), approach the High Court and treat it as the Court of first instance in respect of their grievances by `overlooking the jurisdiction of the Tribunal'. The C.A.T. also has the jurisdiction of Review under Rule 17 of CAT (Procedure) Rules, 1987. So, it cannot be said that the appellants were without any remedy.
15. As the appellants cannot approach the High Court by treating it as a Court of first instance, their Special Leave Petition before this Court is also incompetent and not maintainable."
The aforesaid view has been applied, having a binding force upon us in Dhananjoy Das & Anr. Vs. State of West Bengal & Ors. in WPST 106 of 2019 decided on April 6, 2022, wherein in an identical situation, this Court declined the prayer for addition of party for the first time in the writ-petition filed before this Court.
In view of the law enunciated hereinabove, we do not find that the applicants have made out any case for taking exception to the decision taken by the Supreme Court in Rajeev Kumar case (supra) and, therefore, the instant application deserves dismissal.
5Accordingly, the application for addition of party being CAN 2 of 2022 is dismissed. No order as to costs.
(Harish Tandon, J.) (Shampa Dutt (Paul), J.)