Madras High Court
S.Andrews Ponnuraj Vairamani vs The Chief Secretary on 4 January, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2012
CORAM:
THE HONBLE MR. JUSTICE K.CHANDRU
W.P.No.172 of 2012
& M.P.Nos.1 and 2 of 2012
1 S.ANDREWS PONNURAJ VAIRAMANI [ PETITIONER ]
Vs
1 THE CHIEF SECRETARY
TO GOVERNMENT OF TAMIL NADU
FORT ST. GEORGE
CHENNAI-9.
2 THE UNION OF INDIA
REP. BY THE SECRETARY
MINISTRY OF PERSONEL
& ADMINISTRATIVE REFORMS
NEW DELHI.
3 THE UNION PUBLIC SERVICE COMMISSION
NEW DELHI.
4 THE PRINCIPAL SECRETARY TO
GOVERNMENT OF TAMIL NADU
MICRO, SMALL &
MEDIUM ENTERPRISES DEPARTMENT
FORT ST.GEORGE
CHENNAI-9.
5 THE COMMISSIONER OF INDUSTRIES
AND COMMERCE
CHEPAUK
CHENNAI-5.
[ RESPONDENTS ]
Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondents 1 to 3 to consider the representation of the petitioner during the year 2011 and recommendation of the 5th respondent vide 19021/EE1/2011 dated 30.06.2011 to include the petitioner name in the panel for promotion of Conferment of Indian Administrative Service in the panel of 2011 under Non-State Civil Service Category of Tamil Nadu Government as recommended by the respondents 4 and 5 within a reasonable time.
For Petitioner :: Mr.M.Saravankaumar
O R D E R
In this Writ Petition, the petitioner seeks for a direction to consider his representation and include his name in the panel for promotion and Conferment of Indian Administrative Service yearwise for the year 2011 under Non-State Civil Service Category of Tamil Nadu Government. He also claimed that the 4th and 5th respondents only recommended his case.
2.Though the Writ Petition is for a direction to consider the representation by the 1st respondent, Chief Secretary to the Government of Tamil Nadu, yet the subject matter of the Writ Petition relates to recruitment to the Indian Administrative Service and under Sections 14(1)(a) and 14(1)(b) of the Administrative Tribunals Act, the jurisdiction to entertain such matters vests solely with the Central Administrative Tribunal.
3. The learned counsel for the petitioner though contended that he is only seeking for a direction to the Chief Secretary to the State Government, such a contention cannot be permitted. If the matter relates to recruitment to Indian Administrative Service and the issue arises therefrom, the jurisdiction only vests with the Central Administrative Tribunal and not this Court.
4.Though in L.Chandrakumar Vs. Union of India reported in 1997 (3) SCC 261, the Supreme Court held that the power under Article 226 cannot be divested by any Act of Parliament, in the same judgment, the Supreme Court held that any aggrieved party must approach the Central Administrative Tribunal at the first instance and if he is further aggrieved, he can move the High Court by virtue of Article 226 of the Constitution of India. Even those matters will have to be heard only by a division bench.
5.Subsequently, the Supreme Court in T.K.Rangarajan Vs. Government of Tamil Nadu and others reported in 2003 (6) SCC 581 has held that in an extraordinary circumstance, the Court can entertain a writ petition at the first instance. But that was given in a context that two lakhs Government employees have been dismissed by the Government without enquiry. Such exceptional circumstances do not arise in any of these matters.
6.In this context, it is necessary to refer to the judgment of the Supreme Court in Rajeev Kumar Vs. Hemraj Singh Chauhan reported in (2010) 4 SCC 554. The relevant passages found in paragraphs 7 to 16 of the said judgment may be usefully extracted below:
7.However, while answering the objection on their locus standi, the appellants referred to the decision of the Constitution Bench of this Court in L. Chandra Kumar v. Union of India1 and in particular to para 99, p. 311 at placita f and g of the Report and contended that in view of the law declared in L. Chandra Kumar1, they can come before the High Court and raise their grievances against the judgment of CAT 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 L. Chandra Kumar1 by the learned counsel for the appellants in this case is not correct and the ratio in L. Chandra Kumar1 is just to the contrary.
9.The Constitution Bench in L. Chandra Kumar1 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 paras 78 and 79, pp. 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.
10.In para 93, at p. 309 of the Report, the Constitution Bench specifically held: (L. Chandra Kumar case1) 93. 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: (L. Chandra Kumar case1, SCC p. 309, para 93) 93. 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 the abovequoted 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 L. Chandra Kumar case1) in the penultimate para 99 at p.311 of the Report in the following words:
99. 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 CAT has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with 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 CAT 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 proceedings 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 L. Chandra Kumar1, 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. CAT also has the jurisdiction of review under Rule 17 of the Central Administrative Tribunal (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.
16.The principles laid down in L. Chandra Kumar1 virtually embody a rule of law and in view of Article 141 of the Constitution the same is binding on the High Court. The High Court fell into an error by allowing the appellants to approach it in clear violation of the Constitution Bench judgment of this Court in L. Chandra Kumar.
7. Under the said circumstances, the writ petition stands dismissed with liberty to the petitioner to move the appropriate Bench of the Central Administrative Tribunal. No costs. The connected Miscellaneous Petitions are closed.
04.01.2012 Index:Yes Internet:Yes ajr To 1 THE CHIEF SECRETARY TO GOVERNMENT OF TAMIL NADU FORT ST. GEORGE, CHENNAI-9.
2 THE SECRETARY UNION OF INDIA MINISTRY OF PERSONEL & ADMINISTRATIVE REFORMS NEW DELHI.
3 THE UNION PUBLIC SERVICE COMMISSION NEW DELHI.
4 THE PRINCIPAL SECRETARY TO GOVERNMENT OF TAMIL NADU MICRO, SMALL & MEDIUM ENTERPRISES DEPARTMENT FORT ST.GEORGE, CHENNAI-9.
5 THE COMMISSIONER OF INDUSTRIES AND COMMERCE CHEPAUK, CHENNAI-5.
K.CHANDRU,J ajr W.P.No.172 of 2012 04.01.2012