Patna High Court - Orders
Sarita Rai vs The State Of Bihar & Ors on 16 June, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7777 of 2012
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Sarita Rai Wife of Aman Kumar Singh, D/o Farindra Rai, resident of
village-Fulwariya, P.O.-Fulwariya, P.S.-Sugauli, Dist.-East Champaran.
.... .... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of
Education, Govt. of Bihar, Patna.
2. The Director, Primary Education, Govt. of Bihar, Patna
3. The District Magistrate, East Champaran, Motihari
4. The District Superintendent of Education, East Champaran, Motihari
5. The Block Development Officer, Sugauli, East Champaran, Motihari
6. The Block Education Extension Officer, Sugauli, East Champaran
Motihari
7. Panchayat Secretary, Gram Panchayat Raj, Fulwariya, Block-Sugauli
Dist.-East Champaran
8. The Mukhiya, Gram Panchayat Raj Fulwariya, Sugauli, Distt.-East
Champaran
9. The Member District Teacher Appellate Tribunal, East Champaran
Motihari
10. Rakesh Kumar Singh Son of Rameshwar Prasad Singh, resident of
Mohalla-Shantipuri, Motihari, District-East Champaran.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Madhurendra Kumar, Adv.
For the Respondent/s : Mr. S.A. Alam, SC 3
For Respondent no.10 : Mr. Sanjeev Kumar Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
C.A.V. ORDER
7 16-06-2014Heard learned counsel for the petitioner and the Respondents.
In this case, petitioner is challenging the order dated 27th March 2012 passed by the District Teachers‟ Employment Appellate Tribunal, East Champaran, Motihari in Case No.778/11 whereby and whereunder declared the appointment of the petitioner illegal, accordingly, cancelled her appointment and direction has been issued for the appointment of Rakesh Kumar Patna High Court CWJC No.7777 of 2012 2/41 Singh (Respondent no.10) terminated the services of the petitioner.
In the present case, nine posts of Panchayat Teacher were advertised for Gram Panchayat Raj Fulwariya, Sugauli in the district of East Champaran, out of which one post was meant for visually handicapped female.
The petitioner along with respondent no.10 applied for the post under category of handicapped. The roster point No. 7101 was fixed for unreserved visually handicapped female.
At the first instance, Rakesh Kumar Singh
(Respondent no.10) was not allowed to participate in the
counseling he moved before the Appellate Tribunal in Appeal No. 483 of 2008 and vide order dated 21st July 2010 directed the Panchayat Employment Committee to hold the counseling of respondent no.10 and also directed to prepare the panel as per the merit list of the handicapped candidates. In pursuance of the direction, a special counseling was conducted and respondent no.10 participated but in stead of selecting him, petitioner was selected holding that the roster point no.7101 is meant for unreserved women handicapped and, as such, the respondent no.10 could not be appointed. The same was challenged before the appellate tribunal in Appeal No. 778 of 2011 where the Tribunal has held that roster point no. 7101 is meant for visually Patna High Court CWJC No.7777 of 2012 3/41 handicapped person and there cannot be any sub-class in t he class itself. Fixation of roster point no.7101 for the unreserved handicapped female by the Government is completely illegal and against the rule of reservation as has been interpreted by the Hon‟ble Supreme Court in AIR 2007 3136 (Mahesh Gupta v. Yashwant Kumar Ahirwar) where the Hon‟ble Supreme Court has held that there cannot be reservation on the basis of caste, creed and religion in the class of handicapped because as it constitutes special class of handicapped and there cannot be sub-class and on the basis of that judgment, the Tribunal has declared the roster point no. 7101 fixed for unreserved handicapped female candidates should be read as unreserved handicapped. So he has given a direction that he respondent no.10 has better marks than the petitioner and, as such, declared the appointment of the petitioner to be bad and liable to be set aside and direction has been given to appoint Rakesh Kumar Singh (Respondent no.10) in her place..
Counsel for the petitioner submits that the roster point no. 7101 was fixed for visually handicapped female and the Tribunal has wrongly held that it should be decided on the basis of marks obtained by all the groups of handicapped and leaving aside the handicapped in women. He has further submitted that the handicapped is a class but Bihar Panchayat Primary Teacher Patna High Court CWJC No.7777 of 2012 4/41 (Employment & Condition of Service) 2006 (hereinafter referred to „Panchayat Raj Service Rule‟) has created sub-class by creating reservation of 50 per cent for female and in pursuance thereof the Government has made arrangement to fix the point in roster in terms of the scheme of rule of reservation taking into account Panchayat Raj Service Rule.
He has further submitted that Rule 5 (ka) of the Panchayat Raj Service Rules 2006 itself provides that the appointment has to be made as per the roster clearance and as per the guidelines, roster point 7101 is fixed for female handicapped is not completely de horse to the reservation policy and Bihar Panchayat Teachers (Employment and Condition of Service) Rules 2006, relied on (2013)10 SCC 772: 2013(4) PLJR 427 (SC) (Union of India v. National Federation of the Blind) Counsel for the respondent has submitted that there cannot be any sub-class in class of reservation of handicapped as the handicapped itself is a class person to be appointed whosoever has better marks in the handicapped class irrespective of caste, creed, religion and sex. Candidates will be appointed not on the basis of roster point for female as it cannot be sub-categorized in that manner. The reservation of handicapped is horizontal whereas reservation on caste is vertical reservation. Horizontal reservation is based on the principle of class whereas vertical reservation is Patna High Court CWJC No.7777 of 2012 5/41 based on caste reservation. He has further submitted that it should be interpreted in the manner for example if four persons of handicapped have applied for one post then the panel for the handicapped candidate would be prepared without examining the caste, religion and sex, whosoever male or female has better marks would be appointed and he would be adjusted in their respective category which will satisfy the claim of reservation for handicapped as contained in Annexure-R/1 and R/2 where reservation for the handicapped has been explained eloquently by the State Government. He has further submitted that the Tribunal has not done any wrong and only held that the roster point fixed by the State Government is not in consonance on the principle of horizontal reservation which is apparent from Annexure-R/1 and R/2 as well as against the supreme Court judgment in the case of Mahesh Gupta (supra).
In the court below the issue of plenitude of jurisdiction of the Tribunal was not raised but this Court feels that it is a very crucial issue to decide the scope and ambit of power of the Tribunal to declare the policy of the Government or the roster point fixed for particular caste or class to be bad, unconstitutional and against the Government policy.
Counsel for the respondents has submitted that the Tribunal has all power to decide all such disputes in between the Patna High Court CWJC No.7777 of 2012 6/41 parties, including holding any roster point to be illegal and the Tribunal can decide every dispute arising from the Appointment and Condition Service.
In support of his contention, he has relied on the judgments reported in:
AIR 1991 SC 696 (Para-8) (Union of India v. Paras Laminates (P) Ltd.
2009(4) PLJR 221 (SC) (Para-9 and 10) (State of Madhya Pradesh v. Yogendra Shrivastava) (2010)11 SCC 1 Madra Bar Association v... Union of India (Para-42, 43, 45, 64, 68, 87, 91,100) 2012(4) PLJR 965 (Md. Reyaz Alam v. State of Bihar) (Para-9).
2010(1) PLJR 411 (Para-11) Shiv Prakash Manjhi v. State of Bihar).
(2007)8 SCC 785 (Rajesh Kumar Daria v. Rajasthan Public Service Commission) AIR 2007 SC 3136 (Mahesh Gupta v. Yashwant Kumar Ahirwar) (2010)15 SCC 517 (Para6) (Bhiwani Central Co-op. Bank Ltd. V. Registrar, Co-op. Societies) He has also relied on the order of appellate court of declaring a roster point for SC handicapped is bad in law and that Patna High Court CWJC No.7777 of 2012 7/41 declaration has been upheld by this Court in CWJC No. 12465 of 2012 (Yogendra Ram v. State of Bihar (Para-9).
Counsel for the State has argued in support of petitioner stating that the Panchayat Selection Committee has rightly applied the roster point and the appointment of the petitioner by the Panchayat Selection Committee was legal and the Tribunal has wrongly interfered with it.
In the present case, how the reservation for women as well as handicapped will operate, while selecting the persons for Panchayat Teachers is concerned. It is the duty of court to apply the principle of reconciliation and equilibrium in the matter of granting reservation in employment for the handicapped as class in general and position of women handicapped in that class. Rule 5 of the Bihar Panchayat Elementary Teachers (Employment and Condition of Service) Rules 2006 provides 50 per cent reservation for the female candidates which is apparent from Rule-5 of the Rules and at the same time it also provides reservation for physically handicapped person in the ratio of 1 per cent for visual handicapped, 1 per cent for audio and 1 per cent for loco-motor. It will be appropriate to quote Rule 5 of the aforesaid Rules:
¼d½ „iapk;r izkjfEHkd f"k{kd‟ dk fu;kstu vkj{k.k jksLVj ds vuqlkj fd;k tk;sxkA Patna High Court CWJC No.7777 of 2012 8/41 2 [¼[k½ izR;sd dksfV esa ¼"kkjhfjd f'k{kk f"k{kd dks NksM+dj½ U;wure 50% efgyk vH;fFkZ;ksa dk fu;kstu fd;k tk;sxk A fo'ke la[;k jgus ij vafre in efgyk ds fy, fpfUgr fd;k tk;sxk A "kkjhfjd f"k{kk f"k{kd ds in ds fy, izf"kf{kr efgyk mEehnokj ugha feyus ij mls mlh dksfV ds iq:'k izf"kf{kr mEehnokj ls Hkjk tk ldsxkA ¼x½ iapk;r izkjfEHkd f"k{kd ds izR;sd dksfV esa rhu izfr'kr fodykax ¼n`f'V ckf/kr 1%] Jo.k ckf/kr 1% rFkk vfLFktU; fodykax 1%½ mEehnokjksa dk fu;kstu fd;k tk;sxkA] fVIi.kh& es/kk ds vk/kkj ij p;u gksus dh fLFkfr esa fdlh O;fDr dks fodykax gksus ds dkj.k fu;kstu ls oafpr ugha fd;k tk;sxkA Rule 5 provides that the appointment has to be done as per the roster point out of which 50 per cent would be carved out for female candidates. So, as per the mandate of the Rule-5, 50 per cent reservation is meant for female category candidates. The person with disability (Equal Opportunity of Protection of Rights and Full Participation) Act 1995 has brought a change in the thought of the Society. The idea for reservation for the handicapped is that they can also lead a fair life and may not face any humiliation by the Society and as such they can march side by Patna High Court CWJC No.7777 of 2012 9/41 side along with other citizen of the society.
There are two types of reservation, one is vertical reservation and another is horizontal reservation. The reservation in favour of SC, ST and other backward classes (under Article 16(4) of the Constitution may be called the vertical reservation, whereas reservation in favour of physically handicapped persons under clause(1) of Article 16 of the Constitution can be referred to as the horizontal reservation. Horizontal reservation cuts across vertical reservation is called interlocking reservation. To be more precise, 3 per cent reservation of the vacancy are reserved for physically handicapped persons, this would be reservation relating to clause(1) of Article 16 of the Constitution. The person selected in this quota will be placed in the appropriate category, if he belongs to SC category, he will be placed from that quota by making necessary adjustment. Similarly if he belongs to open competition, he will be placed in that category by necessary adjustment. Even after providing for those horizontal reservation, the percentage of reservation in favour of backward class of citizen remains the same. This is how this reservation will work for the benefit of physically challenged person. Similarly when the reservation for woman would come, it will also be a horizontal reservation. Here while considering the reservation for the women, the same principle will apply as the reservation for the caste will Patna High Court CWJC No.7777 of 2012 10/41 be vertical reservation but the reservation for women is a class reservation and the principle of horizontal reservation will be applicable.
Though it would operate in the reservation of female as class has been explained hereinbelow. The proper procedure would be first to fill up the quota for reserved category in order of merit then to find out the number of candidates among them to belong to special reservation group of reserved category of women. If number of women in such list is equal or more than the number of special quota, then there is no need for further reservation towards the special reservation quota only if there is any short-fall then requisite number of reserved category of women shall have to be taken by deleting the corresponding number of candidates from the bottom of list to the reserved category. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus, the women selected on merit within the vertical reservation quota against horizontal reservation for women, same manner would apply in the matter of appointment of physically challenged person.
For the first time, this issue of reservation of caste as well as for class came for consideration in the case of Indra Sawhney v. Union of India, 1992 Supp.(3) SCC 271 where the Hon‟ble Supreme Court has provided the manner the vertical Patna High Court CWJC No.7777 of 2012 11/41 reservation and horizontal reservation would work for the benefit of weaker Section of the Society as well as for the class such as women, handicapped and others. It will be appropriate to quote Para-812 of the aforesaid judgment which is as follows:
There are two types of reservations, which may, for the sake of convenience be referred to as „vertical reservations‟ and „horizontal reservations‟. The reservations in favour of scheduled caste, scheduled tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause-(1)of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3 per cent of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause(1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category, he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he Patna High Court CWJC No.7777 of 2012 12/41 will be placed in t hat category by making adjustment even after providing for these those horizontal reservations. The per centage of reservations in favour of backward class of citizens remains - and should remain - the same."
Again the said issue came for consideration in Swati Gupta v. State of UP 1995(2) SCC 560 where the petitioner had appeared in the combined pre-medical test held by the St ate. When she was not selected, she challenged the notification on the ground that the reservation to the extent of 65 per cent is not permissible in law and violates Articles 14, 16, 19 and 21 of the Constitution. Relying on the judgment of Indra Shawney case (supra), the Court has clarified that reservation for candidates belonging to other categories such as dependent of freedom fighter, son/daughter of a deceased, disabled soilder, physically handicapped etc. will be given horizontal reservation and the candidates selected in those categories would be adjusted in the categories to which they belong i.e. either reserved category of SC, ST or other backward class or to general category. The Court has further laid down the vertical reservation for reserved category candidates cannot exceed 50 per cent. The reservation for various categories mentioned in the Circular which reduced the share of general category due to vertical reservation has been Patna High Court CWJC No.7777 of 2012 13/41 made as horizontal reservation.
A similar issue came for consideration in the case of Anil Kumar Gupta v. State of UP) (1995)5 SCC 173 and the Court keeping a balance in the reservation in caste and class has held in Para 18 as follows:
"The proper and correct course is to first fill up the OC quota (50 per cent) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises but if it is not so satisfied the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/ accommodation as stated above should be applied separately to each of the vertical Patna High Court CWJC No.7777 of 2012 14/41 reservations. In such a case, the reservation of 15 per cent in favour of special categories, over all may be satisfied or may not be satisfied."
A similar issue about reservation for cast e and class again came for consideration before the Hon‟ble Supreme Court in the case of Shiv Prasad v. Govt. of India (2008)10 SCC 382 where the Court has endorsed the earlier view and accepted the manner how the reservation for caste and class would work for the betterment of the Society so that there would not be any excess reservation to deprive the people of the general category candidates.
Again a similar matter came for consideration for reservation for the women in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission (2007)8 SCC 785 where the Court has provided that proper procedure would be to first fill up the quota for caste in order of merit, then find out the number of candidates belonging to them who belongs to the special reservation category of the socially backward caste. If the member of women in such list is equal to or more than the number of special reservation quota then there is no need for further selection towards the special reservation quota. Only if there is any short- fall in requisite number of women of reserved category shall have to be taken by deleting the corresponding number of candidate Patna High Court CWJC No.7777 of 2012 15/41 from the bottom of the list relating to that category of candidates. The Court has given illustration, the manner the reservation for SC and ST vis-à-vis the reservation for women would work in the following manner:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women"
Patna High Court CWJC No.7777 of 2012 16/41 have been selected in excess of the prescribed internal quota of four.)
10. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 woman candidates, which was equal to the quota for "general category women". There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven woman candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the selection list) and another eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 and 80 of the selection list) included under reservation quota for "general Patna High Court CWJC No.7777 of 2012 17/41 category women". This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation."
The reservation for the handicapped again came for consideration in the case of Union of India v. National Federation of the blind (2013)10 SCC 772 and the Court has provided the manner the reservation would work and the Court has in Para-49 & 50 of the judgment as follows:
"Para-49: Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the work force. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.
Para-50 : The Union of India, the State Government as well as the Union Territories has a Patna High Court CWJC No.7777 of 2012 18/41 categorical obligation under the constitution of India and under various international treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today."
Para:19 Horizontality of reservation for persons with disabilities:
"Reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such as persons with disabilities and ex-servicemen is called horizontal reservation, Horizontal reservation cuts across vertical reservation (in what is called interlocking reservation) and persons selected against the quota for persons with disabilities have to be placed in the appropriate category viz.
SC/ST/OBC/General candidates depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with disabilities and out of two persons with Patna High Court CWJC No.7777 of 2012 19/41 disabilities appointed, one belongs to a Scheduled Caste and the other to general category then the disabled SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate against unreserved point in the relevant reservation roster. In case none of the vacancies falls on point reserved for the SCs, the disabled candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs."
In AIR 2007 SC 3136 (Mahesh Gupta v. Yashwant Kumar Ahirwar ) this issue was raised whether there can be further reservation of physically handicapped on the basis of caste, the Court has given answer that persons suffering from physical disability constitute one class and there cannot be sub-class in the class itself. Para-12 of the judgment is relevant which is quoted below:
"Para-12: Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and policy decision to have horizontal reservation with a view to fulfill its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the Patna High Court CWJC No.7777 of 2012 20/41 basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinabove, the vacant posts were required to be filled up for two categories of candidates; one for scheduled castes and scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates having not been further classified as belonging to Scheduled castes, Scheduled Tribes and general category candidates. .."
In this view of the matter, there cannot be a sub- classification on the basis of caste. The Bihar Panchayat Teachers (Employment and Conditions of Service) Rule 2006 is a special legislation where Rule 5 has provided that 50 per cent reservation will be for woman as a class and not as a caste will be governed on the principle of horizontal reservation. The reservation for the class of physical handicapped and woman would function under horizontal reservation and not vertical. Reservation for caste cannot go beyond 50 per cent but 50 per cent ceiling is not applicable for horizontal reservation. In view of Rule 5, 50 per cent reservation is made for female class. The employment Rule 2006 as well as the Disability Act will have to functions in Patna High Court CWJC No.7777 of 2012 21/41 harmony, so as to achieve the distinct goal and both have to act supplementary and complementary to each other. For its working, a panel of female handicapped of all categories is to be prepared, next step would be to arrange the panel on the basis of marks and female having been once selected will go to its own category (caste category i.e. SC, ST and OBC), handicapped female will form one class and will not be divided on caste. For example, if four females, one for unreserved category, 2nd for SC , 3rd for ST and 4th for backward category apply, in that circumstance, the authorities will be obliged to create a panel of female handicapped they will constitute a class in the category of female, whoever will have highest marks, will be appointed and in view of this proposition, the State Government or its authorities cannot create a sub-class on the basis of backward caste and creed but of course, State will have liberty to fix roster point for the female class.
In view of the above discussion it is clear that if any post has been identified for the women, women or men handicapped will contest in its own group. As in the present case, roster Point No. 7101 is meant for unreserved women handicapped whereas Respondent no.10 is a male candidate claiming to have a better marks than the petitioner who could have been selected in preference to the petitioner of this case. As this Court has already held that if the roster is meant for unreserved Patna High Court CWJC No.7777 of 2012 22/41 women as per Anil Kumar Gupta's case (supra) the handicapped constituted a class in itself. There cannot be a further division on the basis of caste. The Appellate Authority is required to confine to consider the case of female handicapped of all categories arranged them on the basis of marks obtained by them, and the person having highest marks would be empanelled in the selected categories of candidates. In the present case, the petitioner is the only female candidate of handicapped category in that circumstance, her case only be considered for appointment of Panchayat teacher.
Another issue that has to be decided in the present case is the power of Appellate Tribunal constituted under the 2006 Rules, as it has been claimed by the private respondent No.10 that the Appellate Tribunal can pass any order in connection with the employment and conditions of service of the Panchayat Teachers, including even in certain cases, if so required, he can declare the roster point fixed by the State Government for the female handicapped on the basis of the Hon‟ble Supreme Court judgments to be bad and illegal and can give a positive direction not to follow the roster point as has been directed.
In contra, the counsel for the petitioner submits that the Appellate Tribunal does not have plenary jurisdiction, rather Patna High Court CWJC No.7777 of 2012 23/41 the power has been circumscribed in terms of 2006 Rules and has to adjudicate the dispute concerning employment and Condition of Service following the Rules, Regulations and the guidelines framed by the State Government from time to time and he cannot direct or hold that any guidelines or roster point fixed by State Government to be illegal. If he feels not agreeable, he can refer the matter to the Government and may take necessary instructions on the point of confusion. But he cannot declare or hold the roster point fixed by the State in pursuance of 2006 Rules to be bad in law.
The Tribunals are created under different Statutes empowering to adjudicate the lis arising under that Act, power and functions are derived from the provisions of statute. The Tribunals are not a court, though may have trapping of court. It cannot declare any provision of the Statute to be ultra vires or bad in law under which the tribunal has been created. At the same time the Tribunals have no jurisdiction to adjudicate the constitutional issue and to declare any guideline and roster point to be illegal and bad in law. The Tribunals are different than regular courts. In regular courts i.e. the civil courts and criminal courts have been arrayed in a different hierarchy but the Tribunals like Sales Tax Tribunal, Income Tax Tribunal and other Tribunals, all have been created under the Statute and they have been given certain powers Patna High Court CWJC No.7777 of 2012 24/41 substantive and procedural to adjudicate the lis arising under that statute in between the parties. Any judgment unless amenable to appellate authority created under that statute attains finality. The power and functions of Tribunal has come for consideration on different occasions by the Hon‟ble Supreme Court and one of the earliest judgment in down line the cases, Bharat Bank v. Employees of Bharat Bank, reported in AIR 1950 SC 188.
The dispute arose under the Industrial Disputes Act before the Industrial Tribunal where the award was passed, directly challenged before the Supreme Court under Article 136 of the Constitution of India and the Court had an occasion to consider the difference in between the regular courts constituted by law as well as the Tribunal created under the Statute where the Hon‟ble Supreme Court has said that framer of the constitution knew well the fact that there were number of Tribunals were functioning in this country previous to coming into force of the constitution which were performing certain administrative judicial or domestic function that some of them had even trapping of the court but in spite of those trapping could not be designated as court. It has further been opined that it must be presumed that the constitution makers were aware that the highest court in this country has held that all Tribunals discharge judicial function falling within the jurisdiction of „courts‟. If by the word „tribunal‟ in Article 136 the Patna High Court CWJC No.7777 of 2012 25/41 petitioner was to give the same meaning as the „court‟. Then it was redundant to import it in the article because by whatever name described, such a Tribunal, the word „court‟ has welfare meaning in the legislative history. The Hon‟ble Supreme Court while deciding the difference between the regular court and the tribunal has placed reliance on the different judgments of the Privy Council and the Supreme Courts of different countries and ultimately made a distinction. It will be apt to quote Para-23, 24 and 25 of the judgment:
Para 23 As pointed out in Halsbury's Laws of England, the word "Court" originally meant the King's Palace but subsequently acquired the meaning of, (1) a place where justice was administers and (2) the person or persons who administer it. In the Evidence Act, it is defined as including all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This definition is by no means exhaustive and has been framed only for the purposes of the Act. There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law. However, by agreement between parties arbitrators Patna High Court CWJC No.7777 of 2012 26/41 may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a Court. It appears to me that before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State. In R.v. London Country Council (1931) 2 K.B. 215 : (100 L.J. K.B. 760), Savilla L.J. gave the following meaning to the word "Court" or "judicial authority" :
"It is not necessary that it should be a Court in the sense that this Court is a Court ; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court ; if it is a tribunal which has to decide rightly after hearing evidence and application."
As pointed out in ploturesque language by Lord Sankey L.C. in Shell Cc. of Australia v. Federal Commissioner of Taxation, (1931) A.C. 275 : (100 LJ P.C. 55), there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. It seems to me that Patna High Court CWJC No.7777 of 2012 27/41 such tribunals though they are not full-fledged Courts, yet exercise quasi-judicial functions are within the ambit of the word "tribunal' in Art.136 of the Constitution. It was pointed out in the above case that a tribunal is not necessarily a Court in this strict sense because it gives a final decision, nor because it hears witnesses on oath, nor because two or more contending parties appear before it between whom it has to decide, not because it gives decisions which affect the rights of subjects nor because there is an appeal to a Court, nor because it is a body to which a matter is referred by another body. The intention of the Constitution by the use of the word "tribunal" in the article seems to have been to include within the scope of Art. 136 tribunals adorned with similar trappings as Court but strictly not coming within that definition. Various definitions of the phrase "Judicial power" have been given from time to time. The best definition of it on high authority is the one given by Griffith C.J. in Huddari Parker and Co. v. Moorached, (1909) 8 C.L.R. 330 at p. 357, wherein it is defined as follows :
"The words "Judicial power' as used in S. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between it subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does Patna High Court CWJC No.7777 of 2012 28/41 not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. Para 24 : It was conceded that a tribunal constituted under the Industrial Disputes Act. 1947, exercises quasi-judicial powers. That phrase implies that a certain content of the judicial power of the State is vested in it and it is called upon to exercise it. an attempt was made to define the words "Judicial" and "quasi-judicial" in the case of Cooper v. Wilson, (1935) 2 K.B. 309 at p. 340 : (166 L.J. K.B. 728).
The relevant quotation reads thus :
"A true judicial decision presupposes an existing dispute between two or more parties, and then lavolves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute (2) if the dispute between them is a question of fact the ascertainment of the last by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence ; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision Patna High Court CWJC No.7777 of 2012 29/41 which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the fest so found, including where required a ruling upon any disputed question of law. A quasi- judicial decision equally presuppose an existing dispute between two or more parties and invloves (1) and (2), but does not necessarily involve (3) and never involves (4) The place of (4) is in fact taken by administrative sanction, the character of which is determined by the Minister's free choice."
The extent of judicial power exercised by an Industrial Tribunal has been considered hereinafter in the light of the observations cited above.
Para 25 : Reference was made to certain passages from Prof. Allen's back on Law and Order, Chap. IV. P. 69 where mention is made of the kinds of administrative tribunals functioning in various countries today. Porter on Administration Law, 1929 Edn., p. 194 was also relied upon. There can be no doubt that various of administrative tribunals and domestic tribunals are known to exist in this country as well as in other countries of the world but the real question to decide in each case is as to the extent of Patna High Court CWJC No.7777 of 2012 30/41 judicial power of the State exercised by them. Tribunals which do not derive authority from the sovereign power cannot fall with in the ambit of Art 136 The condition precedent for bringing a tribunal within the ambit of Art. 136 is that it should be constituted by the State. Again a tribunal would be outside the ambit of Art. 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. Tribunals, however which are found invested with certain functions of a Court of justice and have some of its trappings also would fall within the ambit of Art. 136 and would be subject to the appellate control of this Court whenever it is found necessary to exercise that control in the interests of justice." In the case of Dhulabhai..v.. Madhya Pradesh reported in AIR 1969 SC 78 ; (1968)3 SCR 662 the Hon‟ble Supreme Court had an occasion to consider the power of the court to declare any provisions of statute to be illegal and ultra vires. The court has held that challenge to provision of particular Act as ultra virus cannot be brought before the tribunal constituted under the act. Even the High Court cannot go into the question in revision or reference from that decision. It will be apt to quote Para -18, 19 Patna High Court CWJC No.7777 of 2012 31/41 and 20 of the judgment which are as follows:
Para 18 "We may examine how the matter was further viewed in this Court. In two cases this Court laid down that the validity of the provisions under which the authorities act is not a matter for those authorities to decide. In Circo's. Coffee Co. v. State of Mysore, (1967) 19 STC 66 (SC) it was contended that Section 40 (2) of the Mysore Sales Tax Act 1957 was ultra vires and beyond the competence of the State Legislature. This Court observed:
''It is true that a question as to the vires of Section 40 (2 of the Sales Tax Act was raised, but it is now settled by decisions of this Court that the question as to the vires of a statute which a taxing officer has to administer cannot be raised before him." The same was again reiterated in C. T. Senthilanthan Chettiar v. State of Madras, C. A. No. 1045 of 1966, D/- 2o-7-1967 (SC) in the following words:
"........this Court has held in Venkataraman and Co. v. State of Madras, 1966-60 ITR 112 = (AIR 1966 SC 1089) that the authorities under a taxing statute are not concerned with the validity of the taxing provisions and the question of ultra vires is foreign to Patna High Court CWJC No.7777 of 2012 32/41 the scope of their jurisdiction. As no such point could be raised before the Income-tax authorities, neither the High Court nor the Supreme Court can go into these questions in a revision or reference from the decision of those authorities. This case was followed in Commissioner of Income-tax v. Straw Products, (1966) 60 ITR 156 = (AIR 1966 SC 1113).
(emphasis supplied) "
The party was loft to 'appropriate proceedings' without specifying what they would be. Perhaps a suit was meant.
Para 19 It follows that the question of ultra vires of the taxing laws is always open to the civil courts for it cannot be the implication of any provision making the decision final that even void or invalid laws must be enforced without any remedy. Therefore, in Pabbojan Tea Co. Ltd. v. Dy. Commissioner, Lakhimpur, AIR 1968 SC 271 after quoting the observations in Viscount Simonds Pyx, Granite Co. Ltd. v. Ministry of Housing and Local Govt, (1960 AC 260 at p. 286):
"It is a principle not by any means to be whittled down that subjects recourse to Her Majesty's Courts Patna High Court CWJC No.7777 of 2012 33/41 or determination of his rights is not to be excluded except by clear words" our brother Mitter added that the extreme proposition in Raleigh Investment Co.'s case, 74 Ind App 50 - (AIR 1947 PC 78) has not found favour with this Court. Our learned brother observed:
"This Court was not prepared to accept the dictum in the judgment (Raleigh Investment Co., 74 Ind App 50 = (AIR 1947 PC 78) to the effect that even the constitutional validity of the taxing provisions would have to be challenged by adopting the procedure prescribed by the Income-tax Act---See (1964) 1 SCR 752 at p. 760 = (AIR 1964 SC 322 at p. 324)."
The position was rather strengthened in 1966-2 SCR 229= (AIR 1966 SC 1089). The question then was whether a suit was not maintainable under Section 18-A of the Madras General Sales Tax Act 1939 (corresponding to Section 67 of the Indian Income- tax Act 1922). The suit followed the decision of this Court in State of Madras v. Ganon Dunkerley and Co. (Madras) Ltd., 1959 SCR 379. = (AIR 1959 SC
560) in which works contracts' of an indivisible nature were held not to fall within the taxing Patna High Court CWJC No.7777 of 2012 34/41 provisions of the Madras General Sales Tax Act 1939. Section 18-A was pleaded as a bar. It was held that since the provisions of the Madras General Sales Tax Act, 1939 were declared ultra vires in their application to 'indivisible works contract's the action of the authorities was outside the said Act and not under the Act for the purposes of Section 18-A. The suit was held not barred. Subbarao, J. (as he then was) speaking for the majority distinguished both the Raleigh Investment Co.s case 74 Ind App 50= (AIR 1947 PC 78) and the Commissioner of I.-T. Punjab North West Frontier and Delhi Provinces, Lahore v. Tribune Trust Lahore, 74 Ind App 306 = (AIR 1948 PC 102) on the ground that no question of the vires of the law was raised in them Referring to B. Kamakshya Narain Singh v. Commr. of Income Tax, Bihar, 1947 FCR 130 = (AIR 1947 FC 48) and 1951 SCR 1 = (AIR 1951 SC 23) Subbarao. J. pointed out that the suit was held maintainable in the latter and three was nothing in the formar to support the @page-SC85 contention that the question of ultra vires of a statutory provision could be canvassed only through the machinery provided under the statute. Patna High Court CWJC No.7777 of 2012 35/41 Referring next to the case of Firm of Illuri Subbayya Chetty and Sons'case, 1964-1 SCR 752 = (AIR 1964 SC 322) the learned Judge said that the question whether Section 18-A of the Madras General Sales Tax Act 1939 could apply where a particular provision of the Sales Tax Act was ultra vires was left open (see p. 243). The learned Judge next quoted the opinion of the majority in Bharat Kala Bhandar Ltd. v. M. C. Dhamangaon, 1965-3 SCR 499 = (AIR 1966 SC 249) to the following effect:
"But, with respect, we find it difficult to appreciate how taking into account an ultra vires provision which in law must be regarded as not being a part of the Act at all, will make the assessment as one "under the Act. No doubt the power to make an assessment was conferred by the Act and, therefore, making an assessment would be within the jurisdiction of the assessing authority. But the jurisdiction can be exercise only according, as well as with reference, to the Valid provisions of the Act. When, however, the authority travels beyond the valid provisions it must be regarded as acting in excess of its jurisdiction. To give too wide a construction to the expression "under Patna High Court CWJC No.7777 of 2012 36/41 the Act" may lead to the serious consequence of attributing to the legislature which owes its existence itself to the Constitution, the intention of affording protection to unconstitutional activities by limiting challenge to them only by resort to the special machinery provided by it in place of the normal remedies available under the Code of Civil Procedure, that is, to a machinery which cannot be as efficacious as the one provided by the general law. Such a construction might necessitate the consideration of the very constitutionality of the provision which contains the expression. This aspect of the matter does not appear to have been considered in Raleigh Investment Co's case".
Para 20 :Having considered these rulings the learned judge examined the remedies provide by the Indian Income-tax Act and found that all authorities were creatures of the statute and functioned under it and could not ignore its provisions since the said Act conferred no such 'right' on them. Whether the provisions were good or bad was not their concern. Pointing out that the reference to the High Court under the Indian Income-tax Act was confined to Patna High Court CWJC No.7777 of 2012 37/41 questions arising from the, order of the Appellate Tribunal, the learned Judge observed that "the question of ultra vires is foreign to the scope of the Tribunal's jurisdiction" and that if such a question were raised the Tribunal could only reject it on the ground that it had no jurisdiction to decide it, and the High Court and the Supreme Court would be equally incompetent on appeal to go into the question. The learned Judge next considered the decisions of the High Courts into which it is not necessary to go here and on the strength of some observations, which supported his view, stated his view in the following words:
"The legal position that emerges from the discussion may be summarized thus: If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the Patna High Court CWJC No.7777 of 2012 38/41 jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder it functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly he in a civil court."
As the head-note correctly states the effect, of the decision was that the foundation laid by the Judicial Committee in Raleigh Investment Co's case, 75 Ind App 50 = (AIR 1947 PC 78) for construing the expression 'under the Act' had no legal basis. The Hon‟ble Supreme Court in the case of Committee of Management and Anr. v. Vice Chancellor and Ors. reported in AIR 2009 SC 1159 has held that statutory authority cannot adjudicate issue of virus of the statute and it can only be tested by the superior courts as like the High court and the supreme Court. It will be relevant to quote Para-16 of the judgment which is as follows:
"Chancellor of the University has been conferred a wide power. Howsoever wide the power Patna High Court CWJC No.7777 of 2012 39/41 may be, the Chancellor, in terms of the provisions of the Act being a creature of the statute itself cannot consider the validity thereof. Constitutionality of a statute, keeping in view the fact that the power of judicial review has been conferred by the Constitution of India only in superior courts of the country, cannot be determined by any other authority howsoever high it may be."
In Rajeev Hitendra Pathak v. Achyut Kashinath Karekar reported in (2011)9 SCC 541 issue was raised about the power of Consumer Forum created under the Consumer Protection Act where issue was raised about the jurisdiction of power of consumer court about the restoration of a case which was dismissed for default. Earlier position was that the Tribunal was declared having inherent power to restore the case dismissed for default but later on the Hon‟ble Supreme Court has arrived to a conclusion that as per the provisions of the Act, it cannot be construed that the Tribunal has inherent jurisdiction. It has to work within the parameter mentioned in the Statute, as the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forum and the State Commission have not been given any power to set aside the ex parte order and the power of review which has not been given by Patna High Court CWJC No.7777 of 2012 40/41 the Statute cannot be exercised and held that District Forum and the State Commission do have power of restoration.
In this view of the matter, it is apparently clear that the Tribunal does not have any power to declare any provision of the Statute to be bad in law as it has been created under the Statute. It has to function in terms of the provision provided under that Statute. He cannot travel beyond it and cannot claim jurisdiction to decide the roster point.
Rule 18 of the Rules 2006 provides that the Tribunal will have power to adjudicate the dispute under the 2006 Rules and Rule 19 provides that if he would feel difficulty in following the provisions, he can take instructions from the Government for the purpose of removing the difficulty. On examination of Rule 18 it is evident that no power has been conferred upon the Tribunal to take evidence, power to enforce the attendance of a witness or call for the record from the Department, rather it is specifically provided that he would be bound by the instructions of the State of Bihar and if he feels difficulty he can seek clarification from the Government for such purpose.
In view of aforesaid discussions, this Court is of the view that the Appellate Authority does not have power to declare any provisions or guidelines or can refuse to follow the roster point fixed by the Government.
Patna High Court CWJC No.7777 of 2012 41/41 In view of the above discussion, this Court is of the view that the Appellate Authority has committed an error in allowing the encroachment of male candidate for the roster meant for the female candidates. In this view of the matter, the order of the appellate Authority is not sustainable in law. Accordingly the same is set aside. The Panchayat Authority is directed that the petitioner being the sole female candidate in the handicapped category be considered for the appointment as a Panchayat Teacher.
With the above observation/direction, this petition is allowed.
Jay/- (Shivaji Pandey, J)