Santosh Malviya And 15 Others V. Union Of India And 2 Others

WRIA/8561/2022

AI Insights

The case involves a writ petition filed by Santosh Malviya and 15 others against the Union of India and two other respondents, challenging specific clauses of an office memorandum and seeking its amendment. The primary legal contention was regarding the maintainability of the writ petition directly in the High Court, given the existence of an alternative remedy through the Central Administrative Tribunal (CAT). The respondents argued that the petitioners should first approach the CAT, as per the precedents set by the Supreme Court in L. Chandra Kumar vs. Union of India and others, which emphasized the role of CAT in handling such service-related disputes. The petitioners attempted to draw a parallel with a Delhi High Court judgment, which was distinguished by the respondents on the grounds that it involved a specific liberty granted by the Supreme Court to approach the High Court, which was not the case here.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 803766 (HC-ALLAHABAD)
• Appeal Type: Others
• Pronouncement Date: 20-09-2022
• Assessment Year: misc
• Other Referred Cases: L. Chandra Kumar Vs. Union of India & others, S.P. Sampath Kumar Etc. vs. Union of India & Others, All India Equality Forum and others vs. Union of India through Secretary and others
• Laws Referred To: The Administrative Tribunals Act, 1985, Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: A S G I; ANKUR GOYAL; GAURAV MAHAJAN
• Assessee Lawyers: RAMESH TIWARI; ADITI PANDEY
• Keywords: Central Administrative Tribunal; Income Tax Department; Maintainability of writ petition; Office Memorandum; Ultra Vires
• Section: 14

Judgement Text

"A.F.R Court No. - 34 Case :- WRIT - A No. - 8561 of 2022 Petitioner :- Santosh Malviya And 15 Others Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Ramesh Kumar Tiwari,Aditi Pandey Counsel for Respondent :- A.S.G.I.,Ankur Goyal,Gaurav Mahajan Hon'ble Neeraj Tiwari,J. Heard learned counsel for the petitioners, Sri Ankur Goyal, learned counsel for the respondent no.1 and Sri Gaurav Mahajan, learned counsel for the respondent nos. 2 and 3. Earlier on 30.6.2022, learned counsel for the respondent no.1 has raised preliminary objection qua the maintainability of the writ petition and Court has passed the following order:- \"Heard learned counsel for the petitioner and Shri Gyan Prakash, learned A.S.G.I. assisted by Shri Ankur Goel, learned counsel for respondent no.1 as well as Shri Gaurav Mahajan, learned counsel for respondent no.2 and 3. By means of present writ petition, the petitioners are challenging para 7 Clause iii and iv of OM no.20011/2/2019-Estt. (D) dated 13.08.2021 issued by respondent no.1 and instruction dated 26.10.2021 issued by respondent no.2. Further prayer has been made to command the respondent no.1 to amend or modify the OM dated 13.08.2021 in accordance with law. At the very outset, Shri Gyan Prakash, learned A.S.G.I. has raised preliminary objection qua the maintainability of the writ petition as the relief is sought against Income Tax Department and the remedy in respect of grievance raised by the petitioner lies before Central Administrative Tribunal. Since such remedy has not been exhausted, the writ petition filed directly before this Court is not liable to be entertained in view of the law laid down by the Apex Court in the case of L. Chandra Kumar Vs. Union of India & others, reported in AIR (1997) 3 SCC Page 261. In the facts and circumstances of the case, it would be appropriate, let a proper response may be filed in the matter. All the respondents are accorded two weeks' time to file objection in the matter. Rejoinder Affidavit, if any, may be filed within a week thereafter. Put up as fresh on 20.07.2022 before appropriate Court.\" Today, learned counsel for the petitioners has placed upon the judgment of Delhi High Court in the case of All India Equality Forum and others vs. Union of India through Secretary and others reported in 2018 DLT 636 (DB) and submitted that present controversy is similar to the aforesaid judgment of Delhi High Court, therefore, this petition is maintainable. Per contra, learned counsel for the respondent no.1 submitted that in the aforesaid judgment of Delhi Court, petitioner went to Supreme Court and Supreme Court has granted liberty to petitioner to approach the High Court, therefore, Delhi High Court entertain the said petition. He next submitted that in light of Section 14 of The Administrative Tribunals Act, 1985 as well as law laid down by the Apex Court in the case of L. Chandra Kumar Vs. Union of India reported in 1997 0 Supreme (SC) 516 & S.P. Sampath Kumar Etc. vs. Union of India & Others reported in 1987 AIR 386, petitioners have efficacious remedy to file original application before the Central Appellate Tribunal (in short CAT). He lastly submitted that CAT is having full power to quash any office memorandum as well as rules and regulations or declare ultra vires, therefore, petition is not maintainable and liable to be dismissed. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as judgment relied by the learned counsel for the parties. There is no dispute on the point that petitioners are Income Tax Inspectors and their services was governed by Central Government. I have perused the judgment of Delhi Court in the case of All India Equality Forum (supra) so relied by the learned counsel for the petitioner. Relevant paragraphs of the said judgment are quoted below:- \"4 The issues raised in the writ petition throw open an expansive jurisprudential vista, and could invite a comprehensive and detailed dissertation on the entire law relating to reservation for Scheduled Castes and Scheduled Tribes, in the context of Articles 16(1), 16(4) and 335 of the Constitution of India. This Court is, however, proscribed from doing so by virtue of an order of the Supreme Court, dated 11th March 2010, passed in a batch of writ petitions, including WP (C) 413/1997, which is stated to have been filed by the present petitioner. The operative portion of the said order reads thus: \"Therefore, we permit the petitioners in these writ petitions to withdraw these writ petitions with liberty to move the High Court and in the event of writ petitions are filed before the High Court the same may be considered in the light of the observations made by this Court in M. Nagaraj and others vs. Union of India and another (supra). The petitioners would be at liberty to seek appropriate interim relief in the High Court.\" 30 Sinha, learned counsel appearing for the respondent, fairly admitted that the controversy, in the present case, stood covered by the judgments of the Supreme Court in M. Nagaraj (supra) and B.K. Pavitra (supra). At the same time, he contended, vociferously, that the writ petition itself was not maintainable, as the petitioner would be required, in the first instance to approach the Central Administrative Tribunal (hereinafter referred to as \"the Tribunal\") in view of the law laid down by the Supreme Court L. Chandra Kumar v U.O.I., (1997) 3 SCC 261. 31. Needless to say, the said objection of Mr.Sinha cannot merit any consideration in the present case, as the petitioner has moved this Court pursuant to the specific liberty, granted by the Supreme Court in this behalf, vide its order dated 11th March, 2010, already referred to hereinabove. In view of the said liberty, it is not open to this Court to travel behind the said judgment and enter into any discussion regarding maintainability of the petition. The brief of this Court this, neatly and squarely, to adjudicate on whether, or not, the impugned OM, dated 13th August 1997 could sustain, in the wake of the law as enunciated in M. Nagaraj (supra). 32. The objection of Mr Sinha is, therefore, overruled.\" From perusal of the same, it is apparently clear that Hon'ble Delhi High Court entertained the writ petition on the ground that Hon'ble Supreme Court has given liberty to petitioner to approach the High Court. I have perused the Section 14 of Act, 1985, which empowers the jurisdiction, powers and authority of the CAT. From perusal of the same, it is clear that Tribunal has absolute power to hear the other cases of Central Government Employee after due notification of Government of India. The Apex Court in the matter of S.P. Sampath Kumar (Supra), has considered the power of Administrative Tribunal and held that Tribunal is the substitute of the High Court and is entitled to exercise the powers. Relevant paragraphs of the said judgement are quoted below:- \"What, however, has to be kept in view is that the Tribu- nal should be a real substitute of the High Court--not only in form and de jure but in content and de facto. As was pointed out in Minerva's Mills, the alternative arrangement has to be effective and efficient as also capable of uphold- ing the constitutional limitations. Article 16 of the Con- stitution guarantees equality of opportunity in matters of public employment. Article 15 bars discrimination on grounds of religion, race, caste, sex or place of birth. The touch- stone of equality enshrined in Article 14 is the greatest of guarantees for the citizen. Centering around these articles in the Constitution a service jurisprudence has already grown in this country. Under Sections 14 and 15 of the Act all the powers of the Courts except those of this Court in regard to matters specified therein vest in the Tribunal--either Central or State. Thus the Tribunal is the substitute of the 'High Court and is entitled to exercise the powers thereof. The High Courts have been functioning over a century and a quarter and until the Federal Court was established under the Government of India Act, 1935, used to be the highest courts within their respective jurisdiction subject to an appeal to the Privy Council in a limited category of cases. In this long period of about six scores of years, the High Courts have played their role effectively, efficiently as also satisfactorily. The litigant in this country has seasoned himself to look upto the High Court as the unfailing protec- tor of his person, property and honour. The institution has served its purpose very well and the common man has thus come to repose great confidence therein. Disciplined, inde- pendent and trained Judges well- versed in law and working with all openness in an unattached and objective manner have ensured dispensation of justice over the years. Aggrieved people approach the Court the social mechanism to act as the arbiter--not under legal obligation but under the belief and faith that justice shall be done to them and the State's authorities would implement the decision of the Court. It is, therefore, of paramount importance that the substitute institution--the Tribunal--must be a worthy successor of the High Court in all respects. That is exactly what this Court intended to convey when it spoke of an alternative mechanism in Minerva Mills' case.\" I have also perused the judgment of Apex Court in the case of L. Chandra Kumar (Supra) and Court has held that CAT has ample power to entertain the original application upon any ground including ultra vires. Relevant paragraphs of the said judgement are quoted below:- \"70. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. 73 Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. 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. 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 concerned Tribunal. 79. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the \"exclusion of jurisdiction\" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. 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 concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.\" Therefore, in light of Section 14 of Act, 1985 as well as law laid down by the Apex Court, there is no dispute on the point that CAT is having absolute power to hear the other cases of Central Government Employee including quashing of office memorandum, rules and regulations or declare ultra vires. Accordingly, the writ petition is not maintainable and dismissed on the ground of alternative remedy. However, petitioner is at liberty to approach the Central Administrative Tribunal, if so desired. Order Date :- 20.9.2022 Junaid Digitally signed by JUNAID AHMAD Date: 2022.09.30 15:51:17 IST Reason: Location: High Court of Judicature at Allahabad "