Central Administrative Tribunal - Allahabad
Rupesh Kumar Singh vs Union Of India on 24 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
***
Original Application No. 1380 of 2011
Allahabad, this the 24th day of February , 2012
HONBLE MR. SANJEEV KAUSHIK, MEMBER - J
HONBLE MR. B. K. SINHA, MEMBER - A
Rupesh Kumar Singh, aged about 34 years, S/o Shri Raj Karan Singh, Resident of Permanent address Gram Rannupatti, Post Jigna, Tehsil and District- Mirzapur. Presently residing at 54A/1, New Market, Naini, Allahabad.
.. Applicant
By Advocate : Shri A.K. Dave
Versus
1. Union of India, through General Manager,
Northern Railway, Baroda house, New Delhi .
2. Chairman, Railway Recruitment Board, Chandigarh, S.C.O 34, 2nd Floor, Madhya Marg, Sector 7-C, Chandigarh 160019.
3. Assistant Secretary, Railway Recruitment Board,
Chandigarh, S.C.O 34, 2nd Floor, Madhya Marg, Sector 7-C, Chandigarh 160019 .
. Respondents
By Advocate : Shri Anil Kumar
O R D E R
(Delivered By Honble Mr. Sanjeev Kaushik, Member-J) By means of this instant Original Application filed under section 19 of Administrative Tribunals Act 1985 the applicant has prayed for quashing the order dated 06.09.2011 whereby the candidature of the applicant for the post of Assistant Loco Pilot against the employment Notice No. 01/09 Cat. 19 dated 31.01.2009 & Central Employment Notice 01/10 Cat. 01 has been rejected.
2. In pursuance of the Employment Notice No. 01/ 09 dated 31.01.2009, published in Employment News, the applicant applied for the post of Assistant Loco Pilot. The cut off date for calculation of age was 01.07.2009. The candidates, who belongs to SC/ST were given relaxation in upper age upto 5 years and for OBC it was upto 3 years. The last date of submissions of form was 28.02.2009. The applicant, who belongs to OBS and is having requisite qualification, applied for the post of Assistant Loco Pilot but the respondents did not finalize the selection and issued a fresh Centralize Employment Notification No. 01/10 dated 30.01.2010 including the post of Assistant Loco Pilot advertised through earlier Notification No. 01/09 dated 31.01.2009. Under para 2.07 of the Notification it was mentioned that those candidates who did apprentice course under Apprentice Act 1961, will be given benefit in upper age by reducing the said period while calculating the upper age limit on cut off date. According to the said notification, the candidates, who had already applied in pursuance to the earlier Notification dated 31.01.2009, were not required to full up fresh application. The applicant appeared in the written examination held on 06.06.2010 and declared qualified. Thereafter he was called to appear in the aptitude test to be held on 08.01.2011. The applicant stated to have qualified the aptitude test also. The respondent No. 2 issued a letter on 27.05.2011 directing the applicant to appear in person on 04.07.2001 at Giandeep Model Sr. Secondary School, Chandigarh for verification of documents (Annexure A-10). The applicant appeared as per direction of respondent No. 2. Thereafter the respondent No. 2 vide impugned letter on 06.09.2011 (Annexure A-1) rejected the candidature of the applicant by treating him over age by quoting Clause 6.11 of the Employment Notification No. 01/09 and 01/10. Against the rejection order the applicant submitted his representation on 26.09.2011 to the respondent No. 2 (Annexure A-11). It is averred that the representation of the applicant is not decided and selected candidates were being sent for training. Hence the O.A.
3. Learned counsel for the applicant vehemently argued that the impugned order suffers from legal infirmities as the respondents have passed the impugned order without application of mind. He argued that it is the specific condition under the notification of 2009 that the candidate is eligible for relaxation in upper age for the period spent during training. He argued that the cut off date was fixed as 01.07.2009 and on that date the applicant was 33 years and 19 days. Since the applicant belongs to OBC category, he is entitle for three years relaxation in age and one year for the period spent on training under Apprenticeship Act 1961. Therefore, on the cut off date the applicant was well within the zone of consideration hence the impugned order is illegal, arbitrary and liable to be set aside.
4. Pursuance to the notice, the respondent appeared and resisted the claim of the applicant by filing detailed Counter Reply. Shri Anil Kumar, Learned counsel for the respondents raised preliminary objection by submitting that the O.A is liable to be dismissed on the ground of territorial jurisdiction as the applicant has filed the instant O.A. against order dated 06.09.2011 passed by Chairman, Railway Recruitment Board, Chandigarh. Learned counsel for the respondents invited our attention to Clause 13.08 of the Notification No. 01/09 dated 31.01.2009 and vehemently argued that under Rule 6 of the CAT (Procedure) Rule, the present O.A. is not maintainable as this Tribunal has got no territorial jurisdiction to hear the matter.
5. On merits, in para 15 of the Counter Reply i.e. reply to para 4.20 of the Original Application, the respondents have averred as under: -
..It is submitted that the Minimum Educational Qualification required for the post of Assistant Loco Pilot is given below:-
Matric pass plus ITI/Act Apprenticeship passed in trade (i) Fitter (ii) Electrician (iii) Instrument Mechanic (iv) Mill Wriht/Maintenance Mechanic (v) Mechanic (vi) Mechanic (Radio & TV), (vii) Electronics Mechanic (viii) Mechanic Motor Vehicle (ix) Wireman (x) Tractor Machine (xi) Armature & Coli Winder (xii) Mechanic (Diesel), (xiii) Turner (xiv) Machinist (xv) Refrigeration & Air Conditioner Mechanic OR (B) Diploma in Mechanical/ Electrical / Electronics/ Automobile engineering recognized by AICTE in lieu of ITI..
According to above mentioned Minimum Educational Qualification which was published in Employment News 01/2009 dated 31st January-6 February 2009 (Annexure R-1 of the present Counter Reply), a candidate was required to have qualified in Matriculation + Industrial Training Institute in any of the trades mentioned therein. Else, the applicant should have passed Act Apprenticeship in any of the mentioned trades. In this case, the applicant passed his Industrial Training Institute Test in Electronic from Government Industrial Training Institute , Naini, Allahabad during the period August 1992 to July 1994 as per interim certificate issued by the State Council for Vocational Training, Uttar Pradesh. Therefore, he possesses one of the minimum Educational Qualification i.e Industrial Training Institute. Following this, at different point of time, the applicant has undergone a training at Indian Telephone Industry Ltd, Naini, Allahabad for one year from 05.10.1996 to 04.10.1997 as per certificate of completion of training issued to him. Since the applicant has already passed in Electronic trade from Government Industrial Training Institute, Naini in 1994, he cannot be extended an advantage of age relaxation on account of having undergone Act Apprenticeship Training in 1997. Learned counsel further submitted that for candidates, who have not passed trade qualification from Industrial Training Institute , an alternative in lieu thereof has been provided in the form of Act Apprenticeship Training in the trade. Since such Act Apprenticeship training is of longer duration that the duration of Industrial Training Institute training, age relaxation is, therefore, extended to such candidates, who have passed Act Apprentice Training in the trade. In the instant case, the applicant has wrongly interpreted the provision of Clause 2.08 of Employment Notification 01/09 to claim age relaxation to his advantage which is otherwise not available to him as he passed two year trade from Industrial Training Institute, Naini..
6. Shri A. K. Dave, Learned counsel for the applicant submitted that in the Counter Reply, the respondents have not taken the plea of territorial jurisdiction, therefore, at this stage they cannot take this plea. On the other hand Shri Anil Kumar, learned counsel for the respondents submitted that the legal pleas can be raised at any stage.
7. We have considered the rival submissions and have gone through the record as well as the judgments cited by the respondents with their able assistance.
8. Before discussing the merit of the case, the Preliminary Objection as to the territorial jurisdiction of this Tribunal raised by the Respondents has to be decided first. Rule 6 of the C.A.T. (Procedure) Rules, 1987 deals with jurisdiction of Tribunal which is reproduced hereinbelow:
6.Place of Filing Application: (1) An Application shall ordinarily be filed by an Applicant with the 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 Sec.25, such Application shall be heard and disposed of by the Bench which has jurisdiction over the matter. On a plain reading of sub Rule (2) of the Rule 6, it appears that retired, dismissed or terminated employees can file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing. Since the Applicants case is not coming within sub-Rule (ii), therefore, in terms of this, this Tribunal lacks jurisdiction.
9. Further it can be seen from another angle that in terms of clear indication in Clause 13.08 of Employment Notice 01/09 also, only Chandigarh Bench of C.A.T. is having jurisdiction. Clause 13.08 is reproduced hereinbelow:.
Any legal issued arising out of this Employment Notice shall fall within the legal jurisdiction of Central Administrative Tribunal, Chandigarh which is located neared RRB. From the perusal of the above it is clear that only C.A.T. where a particular R.R.B. is located is having jurisdiction because these Examinations and recruitment processes are held on all India basis. Candidates from different corners of the country appear in these Examination and it is not possible for the RRB to defend so many cases in the different Benches of the C.A.T. located in different corners of the country. It is for this purpose that it was specifically mentioned in the Employment Notice.
10. We have gone through several decisions of Honble Apex Court on the subject. The similar and identical controversy was decided by Honble Supreme Court in the case of (2004) 4 Supreme Court Cases 671- Hanil Era Textiles Ltd. Vs. Puromatic Filters (P) Ltd. The Apex Court after a careful analysis of the case came to the following conclusions:-
7. The effect of clause 17 of the purchase order, which mentions-any legal proceedings arising out of the order shall be subject to the jurisdiction of the courts in Mumbai, has to be examined in the aforesaid background. Under clause (a) and (b) of Section 20, the place f residence of the defendant or where he carries on business or works for gain is determinative of the local limits of jurisdiction of the court in which the suit is to be instituted. Clause (c) of Section 20 provides that the suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part, accrues. As shown above, in the present case, a part of cause of action had accrued in both the places viz. Delhi and Bombay. In Hakam Singh Vs. Gammon (India) Ltd.1 it was held that it is not open to the parties to confer by their agreement jurisdiction on a court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or a proceeding, an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. It was also held that such an agreement does not contravene Section 28 of the Contract Act.
8. The same question was examined in considerable detail in A.B.C. Laminart (P) Ltd. V. A.P. Agencies2 reported in A.I.R.1989 S.C 1239=1989(2) SCC 163.
When the court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or to have been made at a particular place. This would provide the connecting factor for jurisdiction to the courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other courts. Where an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like alone, only, exclusive and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim expressio unius est exclusio alterius- expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. 8.1 This view has also been reiterated in Angile Insulations v. Davy Ashmore India Ltd.3 reported in 1995 (4) SCC 153.
9. Clause 17 says- any legal proceedings arising out of the order shall be subject to the jurisdiction of the courts in Mumbai. This clause is no doubt not qualified by the words like alone, only, or exclusively. Therefore, what is to be seen is whether in the facts and circumstances of the present case, it can be seen is whether in the facts and circumstances of the present case, it can be inferred that the jurisdiction of all other courts except courts in Mumbai is excluded. Having regard to the fact that the order was placed by the defendant at Bombay, the said order was accepted by the branch office of the Bombay, and as per the plaintiffs case the final payment was to be made at Bombay, there was a clear intention to confine the jurisdiction of the courts in Bombay to the exclusion f all other courts. The Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit.
11. In another decision of Honble Supreme Court reported in 2004 (4) SCC 677, New Moga Transport Co., through its proprietor Krishanlal Jhanwar Vs. United India Insurance Co. Ltd. And others. The similar controversy has been resolved in paragraph Nos. 9, 13 and 14 of the said judgment. Paras 9, 13 & 14 of the aforesaid judgment are being reproduced hereunder:-
9. Normally, under clause (a) to (c) the plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the defendant and can file a suit at a place where the cause of action arises. If the defendant desires to be protected from being dragged into a litigation at some place merely because the cause of action arises there it can save itself from such a situation by an exclusion clause. The clear intendment of the Explanation, however, is that where the corporation has a subordinate office in the place where the cause of action arises it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. Clause (a) and (b) of Section 20 inter alia refer to a court within the local limits of whose jurisdiction the defendant inter alia carries on business. Cluase (c) on the other hand refers to a court within the local limits of whose jurisdiction the cause of action wholly or in part arises.
13. The above position was noted in Patel Roadways Ltd. V. Prasad Trading Co. reported in 1991(4) SCC 270.
14. By a long series of decisions it has been held that where two courts or more have jurisdiction under CPC to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in any one of such courts is not contrary to public policy and in no way contravenes Section 28 of the Indian Contract Act, 1872. Therefore, if on the facts of a given case more than one court has jurisdiction, parties by their consent may limit the jurisdiction to one of the two courts. But by an agreement parties jurisdiction to deal with a matter. [See Hakam Singh v. Gammon (India) Ltd.2 and Shriram City Union Finance Corpn. Ltd. V. Rama Mishra3.]
12. We are also guided by the decision rendered by Principal Bench of the C.A.T. New Delhi in O.A. 251/97 decided on 31.1.1997 and also in view of the decision dated 9.4.1998 in CWJC No.2132 of 1998 by the Patna High Court. Not only this, subsequently also the decision of the C.A.T. Patna Bench in O.A. 731/1998 the relevant part of the same is reproduced hereinbelow:
9. To crown, admittedly, there is a clear condition laid down in the Employment Notice No. 1/97 itself that for any legal action arising out of this Employment Notice, the jurisdiction shall be of C.A.T. /Calcutta only. The Applicants have sought for a direction to the respondents to complete the process of selection by RRB, Calcutta, by declaring the results of the selection process under the aforesaid Employment Notice. The aforesaid condition does not appear onerous. The posts advertised were open to all Indian Citizens, hailing from any part of the country. If the contention of the learned counsel for the Applicants is accepted, it would mean that any candidate from any part of the country would be able to file cases in respect of the aforesaid selection process against the RRB. Calcutta, in any Bench of the Central Administrative Tribunal.
13. This Tribunal in O.A No. 650/2009 Mohammad Mohiudding Vs. Union of India decided on 21.12.2010 has taken the similar view and dismissed the O.A on the ground of territorial jurisdiction. The relevant para of the said orders reads as under: -
In view of the foregoing discussion we are of the firm view that Rule 6 (ii) of the C.A.T. (Procedure) Rules 1987 coupled with the stipulation made in the Employment Notice No. 1/03, this Bench of the C.A.T. is not having jurisdiction to entertain the instant Application on merits. Therefore, the same is dismissed for want of jurisdiction as not maintainable. The Applicant is at liberty to approach the appropriate forum, for redressal of his grievance, if he is so advised. The Registry is directed to return the Paper Book to the Learned Counsel for the Applicant for presenting the same before the appropriate forum by retaining one copy. No order as to costs
14. Having given our anxious thought to the preliminarily objection raised by the respondents, we are satisfied that the controversy with regard to the territorial jurisdiction is not longer res-integra in view of the aforesaid decisions of Honble Supreme Court.
15. In view of our aforesaid observations. The territorial jurisdiction in the matter would be before the Chandigarh Bench of the Tribunal. This Bench of the Tribunal, obviously lacks territorial jurisdiction and the O.A. filed by the applicant is liable to be dismissed on the ground of want of territorial jurisdiction. The preliminary objection raised by the respondent is sustained. The O.A. is accordingly dismissed as not maintainable. This order will not however prevent the applicant from approaching the appropriate forum, if so advised. Since it appears that the applicant had been pursuing this application all along in this Bench of the Tribunal, the question of limitation shall not be raised & the O.A., if any, filed before appropriate Bench of this Tribunal shall be decided on merits. No costs.
No order as to costs.
Member (A) Member (J)
/Anand/
??
??
??
??
14