Rajeev Kumar & Anr vs Hemraj Singh Chauhan & Ors

as the "Non-SCS Officers"). They filed an

impleadment application in the Delhi High Court

for being impleaded as respondents in Writ

Petition No.19103-04 of 2008 filed by Hemraj

Singh Chauhan and Others before the High Court

whereupon the High Court by an order dated 23rd

1 April 2008 allowed them to intervene and further

allowed them to make submissions at the time of

hearing of the writ petition. They were also

given liberty to file affidavits.

3. Pursuant to the said order of the Hon'ble High

Court, these appellants filed affidavits. After

the High Court passed its impugned judgment

dated 14.11.08 they have filed these appeals

assailing the said judgment.

4. At the outset of their arguments this Court

wanted learned counsel for the appellants to

satisfy this Court about their locus to

participate in the controversy at the stage when

the matter was before the High Court in view of

the fact that admittedly these appellants were

not parties before the Central Administrative

Tribunal (hereinafter, `C.A.T.').

5. Before the C.A.T. there were three applicants

namely, Hemraj Singh Chauhan, Anwarul Haque and

Ram Nawal Singh who were common both in O.A.

No.1097/06 and O.A. No.1137/06. Apart from those

three persons, Ramesh Chandani and K.K. Shukla 2 were also applicants in O.A. No. 1137/06. Both

the original applications were heard together.

6. The C.A.T. in its judgment dated 15.12.2006 held

that O.A. No.1097/06 was without merit and

dismissed the same and O.A. No.1137/06 was

partly allowed and the respondents were directed

to convene the meeting of D.P.C. Selection

Committee to fill-up the posts which ultimately

remain unfulfilled in 2001, 2002 and 2004 and to

consider all eligible SCS Officers in the zone

of consideration in the respective years

including the Officers who were put in the

select list of those years but could not be

appointed in the absence of integrity

certificate. The C.A.T. directed that the said

order be complied within the period of four

months.

7. However, on the said judgment being challenged

before the High Court by Hemraj Singh Chauhan,

the High Court set aside the judgment of the

C.A.T. and the Central Government and the State

Government were directed to undertake the cadre

reviewing exercise with reference to the vacancy 3 position as on 1st January 2004 in the manner

indicated in the High Court judgment within

eight weeks from date.

8. However, while answering the objection on their

locus standi, the appellants referred to the

decision of the Constitution Bench of this Court

in the case of L. Chandra Kumar v. Union of

India and others - (1997) 3 SCC 261 and in

particular to paragraph 99, page 311 at placitum

f & g of the report and contended that in view

of the law declared in Chandra Kumar (supra),

they can come before the High Court and raise

their grievances against the judgment of C.A.T.

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.

9. This Court is of the view that the understanding

of the ratio in Chandra Kumar (supra) by the

learned counsel for the appellants in this case

is not correct and the ratio in Chandra Kumar

(supra) is just to the contrary.

4

10. The Constitution Bench in Chandra Kumar (supra)

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 paragraphs 78 & 79, pages 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.

11. In paragraph 93, at page 309 of the report, the

Constitution Bench specifically held:

"...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...."

5 (Emphasis added)

12. The Constitution Bench explained the said

statement of law by reiterating in the next

sentence:

"..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.

13. On a proper reading of these 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

6 approach the High Court

`overlooking the jurisdiction of

the Tribunal'.

14. The aforesaid propositions have been repeated

again by the Constitution Bench in the

penultimate paragraph 99 at page 311 of the

report in the following words:

"...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...."

15. 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 C.A.T. has

jurisdiction, is not legally sustainable. The

Division Bench of the High Court, with great

respect, fell into an error by allowing the

7 appellants to treat the High Court as a Court of

first instance in respect of their service

disputes, for adjudication of which C.A.T. has

been constituted.

16. 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 proceeding

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

Chandra Kumar (supra), 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'. The C.A.T. also

has the jurisdiction of Review under Rule 17 of

CAT (Procedure) Rules, 1987. So, it cannot be 8 said that the appellants were without any

remedy.

17. 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.

18. The principles laid down in the case of Chandra

Kumar (supra) 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

Chandra Kumar (supra).

19. For the reasons aforesaid the appeals are

dismissed as not maintainable. No costs.

.......................J. (R.V. RAVEENDRAN)

9 .......................J. (ASOK KUMAR GANGULY)

New Delhi March 23, 2010

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