Calcutta High Court (Appellete Side)
Sri Amitava Hati vs The Union Of India & Ors on 2 September, 2016
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
W.P. No.8816(W) of 2011
Sri Amitava Hati..................................Petitioner
Versus
The Union of India & Ors.........Respondents
For the Appellant/ :Mr. Sambhunath Dey Petitioner For the plaintiffs/ Respondents : Mr. Tarunjyoti Tewari Heard on :16.08.2016 Judgment on : 02.09.2016 Debi Prosad Dey, J. :-
Notice was issued for recruitment of a Lower Division Clerk under Commanding Officer, Military Hospital, Panagarh District- Burdwan for holding fresh written test and interview on 23rd May, 2011. The petitioner appeared in written test as well as interview for being recruited as Lower Division Clerk of the aforesaid hospital on 1st December and 2nd December, 2008. The petitioner stood first in the said examination but on the ground of having been failed in the examination for typing test, the respondents did not issue letter of appointment in favour of the petitioner. The petitioner then moved the Hon'ble High Court by filing writ petition being No. 6067(W) of 2009 and His Lordship Hon'ble Justice Jyotirmay Bhattacharya after interpreting the recruitment rules relating to the selection of candidates in the post of Lower Division Clerk observed that even though a candidate, who is otherwise eligible but does not possess the requisite typewriting speed of 30 words per minute in English, can be appointed but the candidate will not be eligible either for drawing increment in the pay scale or for confirmation in the grade till he acquires the proscribed speed in typewriting either in English or Hindi. His Lordship further directed the authorities to complete the said selection process by taking into consideration the performance of the petitioner in the selection test in the light of the observations made by His Lordship within a period of 8 weeks from the date of communication of such order. The respondents in utter violation of His Lordship's direction have again started the process of recruitment and accordingly gave notice for written test and interview scheduled to be held on 23rd May, 2011.
The petitioner has prayed for a direction upon the respondents restraining them from holding any such written test or interview as well as to appoint the petitioner in terms of the interview and written test which was held in the year 2008 and in terms of direction given by this Court in writ petition no. 6067(W) of 2009. All the respondents have jointly filed affidavit in opposition. The specific case of the respondents is that the instant writ application is not at all maintainable before this Hon'ble Court due to lack of jurisdiction in view of the specific provision of Section 14(1) (a) of the Central Administrative Tribunal Act, 1985. The respondents have further disputed the alleged claim of the petitioner that the petitioner stood first in the interview and written test which was held in the year 2008. Lastly, the respondents have categorically stated in paragraph 5(k) that the respondents had cancelled the schedule for written test dated 23rd May, 2011.
Learned Advocate appearing on behalf of the petitioner contended that the petitioners stood first in the interview held in the year 2008 and in terms of the order passed by this Court in writ petition No. 6067(W) of 2009 the petitioner is entitled to get such appointment. Learned Advocate appearing on behalf of the petitioner further contended that contempt application has been pending before the Court of Hon'ble Justice Jyotirmay Bhattacharya for non-compliance of His Lordship's direction given in writ petition no. 6067(W) of 2009. Learned Advocate strenuously argued that a direction be given by this Court for the appointment of the petitioner on the basis of the interview, held in the year 2008.
Learned Advocate for the respondents contended that Writ Court has got no jurisdiction to entertain the instant writ application on the ground that the dispute ought to be raised before Central Administrative Tribunal.
It is further contended on behalf of the respondents that the petitioner never stood first in the written test and interview held in the year 2008 and accordingly the claim of the petitioner cannot be acceded to. In support of his contention learned Advocate for the respondents has drawn the attention of the order passed by Director, MS (civil) of DGMS, Army dated 17th March, 2011 wherefrom it appears that the petitioner stood second even after deduction of the marks awarded for physical test in the interview held on 1st / 2nd December, 2008.
Hon'ble Justice Jyotirmay Bhattacharya never directed the authorities to appoint the petitioner but His Lordship directed the respondents to complete the said selection process by taking into consideration the performance of the petitioner in the selection test in the light of the observations made by His Lordship. Admittedly, it transpires from the annexures of the affidavit in opposition that the petitioner stood second and therefore, it cannot be said that the petitioner had any claim to be appointed for such post of Lower Division Clerk. It is apparent from annexure R5 that there was only one post of Lower Division Clerk. Therefore, the candidate stood first in the said interview being one Sonu Tiwari should be given preference to the claim of the petitioner. Moreover, a contempt application is pending before His Lordship Hon'ble Justice Jyotirmay Bhattacharya. The process of recruitment which was started by the respondents, has already been cancelled by the respondents. Therefore, the prayer of the petitioner regarding cancellation of such recruitment process has already been accepted by the respondents. Lastly, Section 14 of Central Administrative Tribunal Act may reproduced to appreciate the jurisdiction of this Court.
Jurisdiction, Powers and authority of the Central Administrative Tribunal:-
" Section 14 1.Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts [except the Supreme Court( )] in relation to---
(a)recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian."
Section 14(1) (a) of Central Administrative Tribunal Act clearly provides that the matters of recruitment to a post connected with defence or in the defence services being in either case, a post filled by a civilian, the Central Administrative Tribunal shall exercise all the jurisdiction, powers and authority exercisable immediately before that day by all Courts except Supreme Court.
The Central Administrative Tribunal Act, 1985 came into force with effect from 1st July, 1985. The dispute cropped up in respect of filling up of a Lower Division Clerk under Commanding Officer, Military Hospital, Panagarh. Accordingly, any dispute in respect of such recruitment ought to be decided by the Central Administrative Tribunal and without exhausting the said remedy, the petitioner cannot directly file the writ petition. I find sufficient justification in the submission of learned Advocate for the respondents that the matter ought to have been agitated before the Central Administrative Tribunal instead of this Court.
Having considered the submission of both the parties and after going through the materials on record, I do not find any merit in the writ petition.
The writ petition is thus dismissed.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)