Himachal Pradesh High Court
Samriti Gupta And Another vs State Of H.P. And Others on 8 January, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWP No. 4831 of 2015 Judgment reserved on: 4.1.2016 Date of Decision : January 08, 2016 Samriti Gupta and another ...Petitioners of Versus State of H.P. and others ....Respondents.
Coram rt The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? Yes For the Petitioners : Mr. Ajay Mohan Goel, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Mr. Romesh Verma, Addl. Advocate Generals and Mr. J.K.Verma, Deputy Advocate General, for respondents No. 1 and 2.
Mr. Janesh Mahajan, Advocate, for respondents No. 3 to 6.
Tarlok Singh Chauhan, Judge The sole determinative issue which arises for consideration is as to whether the Original Application preferred by the private respondents herein before the State Administrative Tribunal which was more in the nature of Public Interest Litigation was maintainable or not.
The facts, in brief, may be noticed.
2. On 5.10.2015 the Department of Health and Family Welfare issued No Objection Certificate in favour of the petitioners and similarly situated persons to appear as State sponsored candidates for ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 2admission in super specialty courses in All India Institute of Medical .
Science, New Delhi. The private respondents challenged No Objection Certificate (for short "NOC") by filing Original Application No.3854 of 2015 before the learned H.P. State Administrative Tribunal by claiming therein the following reliefs:
of " 1. Quash the impugned order Annexure A-3 bearing No HFW-H(IV) (12)-4/2006-15 (NOC) qua the respondents No. 3 to 8, being arbitrary, discriminatory and illegal.
rt
2. Direct the respondents to withhold sponsorship of respondents No. 3 to 8 for pursuing higher course in MD/MCH at AIIMS, New Delhi.
3. Direct the respondents to follow the guidelines as laid in Annexure A-1. Besides this directing the respondent to widely circulate list of tentative sponsored candidates which only be finalised after affording due opportunity to candidates to object to same."
3. The official respondents in their reply had justified its action in granting NOC to the petitioners and it was averred that the writ petitioners were fully eligible for being considered for grant of NOC.
4. Insofar as the writ petitioners are concerned, they in their separate reply apart from raising other pleas had resisted the petition on the ground of want of jurisdiction of the Tribunal and it was specifically averred that the application filed by the private respondents was in the nature of public interest and therefore not maintainable.
5. The learned Tribunal allowed the Original Application vide judgment dated 23.12.2015 and held that the writ petitioners did not fulfill the eligibility criteria as laid down in Clause 1.4 of the policy dated 02.04.2013 and accordingly quashed the NOC issued in their favour.
::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 3We have heard learned counsel for the parties and have .
gone through the records of the case carefully.
6. At the outset, it may be observed that even the Tribunal was of the view that the private respondents were strangers but it still held that the Original Application preferred by them to be maintainable of after placing reliance upon a judgment of this Court in Arti Gupta vs. State of Himachal Pradesh and others 1997 (2) SLR, 716 wherein it was held:
rt "44. The only other question to be considered is whether the petitioners in CWP No. 1665/96 who have not even applied for the post in question can move the Tribunal for reliefs. On principle, the question has to be answered only in the affirmative. The language used in the provisions of the act clearly shows that the jurisdiction of the Tribunal is in relation to the matter set out in Sections 14 and 15 and it does not depend upon the status or otherwise of the applicant before it. Even an utter stranger can move the Tribunal with reference to the matters set out in those Sections. The wording of Section 28 of the Act, which excludes the jurisdiction of the High Court is also to the same effect. In fact, a question arose before the High Court of Madras in Thanga Maruthamuthu vs. Government of Tamilnadu and others, Writ Appeal No. 116/96, whether a public interest litigation could be dealt with by the Administrative Tribunal. A learned Single Judge of that Court held that in public interest litigation, the Tribunal will have no jurisdiction and it is only the High Court which can entertain such petitions. That judgment was reversed by a Division Bench of that Court vide its judgment dated 6.3.1996. The Division Bench said:
"The contention that it is a public interest litigation and the relief sought is the one for a writ of Quo Warranto, which cannot be granted by the Central Administrative Tribunal, therefore, the petition under Article 226 of the Constitution of India can be maintained, is only stated to be rejected. The said ::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 4 contention fails to take note of the fact that the substance of the relief sought for by the petitioner is to set aside the order of .
the State Government extending the services of the 4th respondent, and thereby preventing the 4th respondent from functioning as a member of the Indian Administrative Service.
The fact that it is a public interest litigation will not clothe this Court with the jurisdiction to hear and decide the Writ Petition of when the very subject matter of the writ petition is excluded from the purview of the jurisdiction of this Court under Article 226 of the Constitution."45.
rt With respect we agree with the view expressed by the Division Bench as above."
7. It would be noticed that the judgment in Arti Gupta case (supra) was rendered by this Court at the time when there was no authoritative pronouncement on the subject by the Hon'ble Supreme Court. But, now the issue is no longer resintegra and is considered to be settled by the three Hon'ble Judges Bench in Dr. Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others (1998) 7 SCC 273 wherein after placing reliance in L. Chandra Kumar vs. Union of India and others (1997) 3 SCC 261 it was held that the Tribunals have to perform only a supplemental as opposed to substitutional role in discharging the powers conferred by Articles 226/ 227and 32 of the Constitution. The powers of this Court under Articles 226 /227 are not taken away by the Administrative Tribunals Act.
8. After examining the various provisions of the Administrative Tribunals Act vis-à-vis the maintainability of the Public Interest Litigation in service matters, it was categorically held that if the Public Interest Litigation at the instance of strangers is allowed to be entertained by the Tribunal the very object of speedy disposal of service matters would get defeated. It was further held that the term ::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 5 "person aggrieved" does not comprehend such categories of persons.
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It shall be profitable to reproduce paras 14 to 19 of the judgment which reads thus:
"14. Section 14 of the Act provides that the central Administrative Tribunal shall exercise all the jurisdiction, powers and authority exercisable by all courts except the Supreme Court immediately of before the appointed day in relation to matters set out in the section. Similarly, section 15 provides for the jurisdiction, powers and authority of the State Administrative Tribunals in relation to matters rt set out therein. Sections 19 to 27 of the Act deal with the procedure. Section 19 strikes the key-note. Sub-sections (1) and (4) of section 19 are in the following terms:
"19 (1) Subject to other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.
Explanation. - For the purposes of this sub-section, 'order' means an order made -
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation (or society) owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation (or society) referred to in clause (a).
* * * *
19.(4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules."
15. Section 20 provides that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant rules. Section 21 provides for a period of limitation for approaching the Tribunal. A ::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 6 perusal of the above provisions shows that the Tribunal can be approached only by 'persons aggrieved' by an order as defined. The .
crucial expression ' persons aggrieved' has to be construed in the context of the Act and the facts of the case.
16. In Thammanna versus K. Veera Reddy and other (1980) 4 S.C.C. 62 it was held that although the meaning of the expression 'person aggrieved' may vary according to the context of the statute of and the facts of the case, nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or rt wrongfully affected his title to something.
17. In Jasbhai Motibhai Desai Versus Roshan Kumar Haji Bashir Ahmed and others (1976) 1.S.C.C. 671 the Court held that the expression 'aggrieved person' donotes an elastic, and to an extent, an elusive concept. The Court observed: The Court observed: (SCC p.677, para 13) "...It cannot be confined within the bounds of a rigid, exact, and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statue of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him"..
18. The constitution of Administrative Tribunal was necessitated because of large pendency of cases relating to service matters in various courts in the country. It was expected that the setting up of Administrative Tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the Courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances. The basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of 'service matters' found in Section 3 (q) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word 'his' cannot be ignored. Section 3 (b) defines the word 'application' as an application ::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 7 made under Section 19. The latter Section refers to 'person aggrieved'. In order to bring a matter before the Tribunal, an .
application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the work 'order' has been defined in the explanation to sub-s. (1) of Section 19 so that all matters referred to in Section 3 (q) as service matters could be brought before the Tribunal. It in that context, Sections 14 of and 15 are read, there is no doubt that a total stranger to the concerned service cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal the very object of speedy disposal of rt service matters would get defeated.
19. Our attention has been drawn to a judgement of the Orissa Administrative Tribunal in Smt. Amitarani Khuntia Versus State of Orissa 1996. (1) OLR (CSR)-2. The Tribunal after considering the provisions of the Act held that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal. The following passage in the judgement is relevant:
"....A reading of the aforesaid provisions would mean that an application for redressal of grievances could be filed only by a 'person aggrieved' within the meaning of the Act.
Tribunals are constituted under Article 323 A of the Constitution of India. The above Article empowers the Parliament to enact law providing for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local or other authority within the territory of India or under the control of the Government and such law shall specify the jurisdiction, powers and authority which may be exercised by each of the said Tribunals. Thus, it follows that Administrative Tribunals are constituted for adjudication or trial of the disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. Its jurisdiction and powers have been well- defined in the Act. It does not enjoy any plenary power."::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 8
9. This legal position has thereafter been reiterated and must .
be considered to have been settled and reference in this regard can conveniently be made to the decisions rendered by the Hon'ble Supreme Court in Ashok Kumar Pandey vs. State of West Bengal (2004) 3 SCC 349, Dattaraj Nathuji Thaware vs. State of of Maharashtra and others (2005) 1 SCC 590. In Girjesh Shrivastava and others vs. State of Madhya Pradesh and others (2010) 10 SCC rt 707 the entire law on the subject was again reiterated as under:
"15. In the case of Dr. Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others (1998) 7 SCC 273, a three judge Bench of this Court held a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and
227. This Court held (SCC p. 281, para 18) "18......If public interest litigations at the instance of strangers are allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get defeated"
Same reasoning applies here as a Public Interest Litigation has been filed when the entire dispute relates to selection and appointment.
16. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and others, reported in (2006) 11 SCC 731 (2), this Court held that in service matters only the non-appointees can assail the legality of the appointment procedure (See SCC p. 755, para 51 of the Report).
17. This view was very strongly expressed by this Court in Dattaraj Nathuji Thaware v. State of Maharashtra and others, reported in (2005) 1 SCC 590, by pointing out that despite the decision in Duryodhan Sahu (supra), PILs in service matters `continue unabated'. This Court opined that High Courts should `throw out' such petitions in view of the decision in Duryodhan Sahu (supra) (Para 16, page 596).
::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 918. Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B., reported in (2004) 3 SCC 349. (SCC at p. 358, .
para16)..
19 . In a recent decision of this Court delivered on 30.8.2010, in Hari Bansh Lal v. Sahodar Prasad Mahto and others, (2010) 9 SCC 655, it has been held that except in a case for a writ of `Quo Warranto', PIL in a service matter is not maintainable of (See SCC para 15).".
10. Further reiteration of the legal position can be found in rt Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others (2013) 4 SCC 465 and State of Punjab vs. Salil Sabhlok and others (2013) 5 SCC 1.
11. Now, what emerges from the aforesaid exposition of law is that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal and the necessary corollary which follows is that it is only "person aggrieved" within the meaning of the Act who can prefer an application for redressal of his grievances before the Tribunal constituted under Article 323-A of the Constitution of India. The Administrative Tribunals are constituted for adjudication or trial of the disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. Its jurisdiction and powers have been well defined in the Act and more importantly it does not enjoy any plenary power.
12. In the result, it can safely be concluded that the Administrative Tribunals constituted under the Act cannot entertain a Public Interest Litigation and the same would amount to defeating the ::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 10 object of speedy disposal of the service matter for which the Tribunals .
have been created.
13. Before parting, we may clarify that the judgment in Arti Gupta case (supra) was rendered by the Hon'ble Full Bench of this Court and would normally in absence of any judgment to the contrary of by the Hon'ble Supreme Court be binding on this Bench and in case of any difference of opinion would be required to be referred to a larger rt Bench. However, no such reference is necessary if the Hon'ble Supreme Court has given a decision in the matter because as soon as the Hon'ble Supreme Court gives its decision all decisions of the High Court on the point are overruled. (Reference in this regard is given to D.D.Basu Commentary on the Constitution of India, 8th Edition and to the judgment of the Hon'ble Supreme Court in D.C.M. vs. Shambhu, AIR 1978 SC 8.)
14. Even otherwise, Article 141 of the Constitution provides that the law declared by the Hon'ble Supreme Court shall be binding on all courts within the territory of India. Therefore, once the Hon'ble Supreme Court has decided the issue by passing a reasoned order, a fortiori, the ratio decidendi declared in the said decision would be binding on all the Courts in the Country for giving effect to it while deciding the lis of the same nature. All the Courts are under legal obligation to take note of the said decision and decide the lis in conformity with the law laid down therein.
15. In view of the aforesaid discussion, we are left with no other option but to allow this writ petition. Consequently, the writ petition is allowed and the order passed by the learned Tribunal dated ::: Downloaded on - 15/04/2017 19:41:56 :::HCHP 11 23.12.2015 (Annexure P-7) is quashed and set-aside. Resultantly, the .
Original Application filed by the private respondents before the Tribunal is ordered to be dismissed, leaving the parties to bear their costs.
Pending application(s), if any, stands disposed of.
of ( Mansoor Ahmad Mir) Chief Justice January 8, 2016.
rt (Tarlok Singh Chauhan),
(GR) Judge
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