In The High Court Of Judicature For Rajasthan Bench At Jaipur D.B. Civil [CASE NUMBER] [ENTITY] & another v. [ENTITY] & others D.B. Civil [CASE NUMBER] [ENTITY] & others v. [ENTITY] & others Date of order 23.5.2013 Hon'ble Mr. Justice [ENTITY] Hon'ble Dr. Justice [ENTITY] Reportable Mr. [ENTITY], Sr. Advocate, with Mr. [ENTITY], for petitioners Mr. [ENTITY], Sr. Advocate, with } Mr. [ENTITY] } Mr. [ENTITY], Addl. Advocate General } for respondents
Mr. [ENTITY], Asstt. Solicitor General } By the Court (Per Hon'ble [ENTITY], J.) These two writ petitions are directed against the judgment of Central Administrative Tribunal dated 4.4.2013. By the aforesaid judgment, the Tribunal has allowed two Original Applications filed by 8 applicants with the following direction:-
Thus on the basis of the facts and legal position, we are of the view that the official respondents be directed to re-determine the vacancies year-wise after taking into consideration the retirement of the officers who have been on select list for various years. As we have explained earlier that the select list for the year 1996-97 has nine names and there were seven vacancies for that year. Thus presuming that officers at sr. nos. 1 to 3 (S/Shri [ENTITY], [ENTITY] and [ENTITY]) would have been appointed to the IAS on the basis of that select list, had that select list be drawn at that point of time then they would have retired in the year 2003, 2002 and 2005 respectively. Thus the vacancies arising out of their retirement on superannuation would be accrued in the year of their retirement. The same exercise will be required to be done for each select list year wise. The vacancies are to be re-determined on the basis of this principle, which is according to the rules and regulation on the subject. The respondents will also look into the promotion quota for State Civil Service to IAS for that year and the number of officers in position for promotion quota, then determine the vacancies year wise to be filled from appointment by promotion from the State Civil Service Officers. The respondents are also directed to convene the Review Selection Committee Meeting for each of those years for which the vacancies are re-determined and draw a revised/review select list year wise.
2. The first of these Writ Petitions bearing No.7118/2013, has been filed by [ENTITY] and [ENTITY] and the other [CASE NUMBER], has been filed by as many as 12 petitioners against [ENTITY] and others. Registry of this Court has raised an objection about maintainability of the writ petitions contending that since the writ petitioners were not parties to the Original Applications before the Central Administrative Tribunal, these petitions at their instance are not maintainable.
3. We have heard the learned counsel for the parties on the question of maintainability of the writ petitions.
4. Shri [ENTITY], learned Senior Counsel, appearing for the applicants, has supported the objection citing judgment of Supreme Court in [ENTITY] & another v. Hemraj Singh Chauhan & others, (2010) 4 SCC 554, and contended that the Supreme Court in that case, in identical circumstances where the appellants before it were not party to the proceedings before the Tribunal and were merely allowed to intervene in the writ petition filed against the judgment of the Tribunal before the Delhi High Court, held that they were not competent to maintain the appeal against the judgment of Tribunal and that of the High Court. It is also contended by Shri [ENTITY] that remedy for such persons as per the observations of the Supreme Court, is to approach the Tribunal under [SECTION] of the [ACT], by way of filing review petition. It was also argued that writ petitioners in [CASE NUMBER] did not challenge the order of Tribunal by which their applications for impleadment was not allowed and they were merely permitted to intervene. Learned Senior Counsel argued that an intervenor cannot be treated as necessary party. He can at best be considered a proper party.
5. Learned Senior Counsel for respondents submitted that the interim order was passed by the Tribunal on 15.2.2013 and it was widely published in the newspapers and two of the writ petitioners, in [CASE NUMBER], filed applications for impleadment before the Tribunal on 12.3.2013. Tribunal by its order dated 12.3.2013 allowed them to merely intervene. It cannot be, therefore, contended that the other writ petitioners (in [CASE NUMBER]) were not aware of the proceedings. If despite knowledge they failed to timely approach the Tribunal for impleadment, they cannot be now allowed to contend that they would be affected by the judgment of the Tribunal.
6. Shri [ENTITY], learned Senior Counsel, appearing for the petitioners has cited [ACT] Bench judgment of the Supreme Court in [ENTITY] v. The [ENTITY] & others, 1997 (2) SLR 1, and drew attention of the Court to paras 92 to 95 with particular emphasis on the observation in last two lines of para 93 that the aggrieved party will be entitled to move the High Court under [SECTION] of the [ACT] and from the decision of the Division Bench of the High Court the aggrieved party could move this Court (Supreme Court) under [SECTION] of the [ACT].
7. The learned Senior Counsel also referred to the similar observations made in paras 94 and 95 of the said judgment and contended that petitioners have no remedy except to approach this Court in writ jurisdiction. It is further contended that the directions issued by the Tribunal in the impugned judgment will have far reaching effect on the service career of all the petitioners, inasmuch as, it will have the effect of delaying their promotion from RAS Cadre to IAS Cadre by number of years. The learned counsel has sought to justify his submissions by referring to the directions contained in para 88 of the impugned judgment whereby the Tribunal has directed the respondents to re-determine the year-wise vacancies starting from the year 1996-97 and directed that all those who were placed in the select list, should be deemed to have been promoted and the vacancies should be deemed to have arisen from the date of their retirement and respondents should undertake further year wise exercise of promotion by convening the promotion Board against such assumed vacancies. It is contended that they were not promoted because they were not substantive in the year in which the vacancies became available.
8. As regards [CASE NUMBER], it is contended that writ petitioners made an application before the Tribunal for their impleadment, but the Tribunal vide order dated 22.3.2013 allowed them to intervene in the matter rather than impleading as party respondents. They are, therefore, not strangers to the proceedings before the Tribunal.
9. Shri [ENTITY], learned Senior Counsel also cited the order passed by the Tribunal in Misc. Application filed by one of the petitioners in [CASE NUMBER] viz. [ENTITY], for impleadment, in the morning of 4.4.2013, the day on which judgment in the Original Application was pronounced but the Tribunal did entertain the application on that day. That application was dismissed by the Tribunal by order dated 9.4.2013 on the premise that since the Original Application itself has been decided by judgment dated 4.4.2013, the same has been rendered infructuous.
10. Learned Senior Counsel argued that there would be distinction in the case of these petitioners and the appellants before the Supreme Court in the case [ENTITY] & another (supra) because in that case impleadment application was moved directly before the High Court and not before the Tribunal. It was for this reason that the Supreme Court held that they would not be entitled to challenge the judgment of the High Court because they were not a party before the Tribunal.
11. Learned Senior Counsel for petitioners submitted that filing of review by these petitioners would be a futile exercise because the impugned judgment of the Tribunal, as it is, is the subject matter of scrutiny before this Court at the instance of Ms. [ENTITY] v. [ENTITY] in [CASE NUMBER], who was applicant before the Tribunal in one of the Original Applications ([CASE NUMBER]) and, therefore, relegating the writ petitioners to the remedy of review in this fact scenario, would only lead to multiplicity of litigation and would be futile exercise. The learned Senior Counsel, citing judgment of the Supreme Court rendered in [PRECEDENT], on the scope of jurisdiction in review petition, argued that the Tribunal would have very limited jurisdiction in review proceedings.
12. Having heard the learned counsel for the parties and perused the impugned order as also the cited case law, we find that there is indeed a distinction between the facts of the case of [ENTITY] (supra) and those of the first of these writ petitions. If ratio of the judgment of Supreme Court in [ENTITY]'s case is analysed, it is evident that that was a case in which the appellants before the Supreme Court did not make any application whatsoever for impleadment before the Tribunal. They were fence sitters and directly filed such application before the High Court where the judgment of the Tribunal was challenged by some other party. They were not impleaded as a party but were rather permitted to intervene. In that fact situation, the Supreme Court on analysis of the observations made in para 93 of the judgment rendered in [ENTITY]' case, which observations are sought to be relied now before us by learned Senior Counsel on behalf of the petitioners, held that they could not be permitted to directly challenge judgment of the Tribunal. The ratio of the judgment of Supreme Court in [ENTITY] (supra), thus is founded on the [ACT] Bench judgment in [ENTITY] (supra), in which the Supreme Court observed that the Tribunals will continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted and it would not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations by overlooking the jurisdiction of the concerned Tribunal. The Supreme Court in [ENTITY] (supra), therefore, in the facts of that case where the appellant before it, though was not directly aggrieved by any action or order of the Central Government, but was aggrieved by judgment of the Tribunal held that even such party would not be remedy less. Their remedy would lie in approaching the Tribunal itself by way of review petition under [SECTION] of the [ACT].
13. In the present case, ratio of that judgment can be said to fully apply only to [CASE NUMBER] because the writ petitioners in that petition were neither party to the proceedings before the Tribunal nor were they allowed to intervene. They even on their own showing, submitted application for impleadment on 4.4.2013, the day on which the judgment was pronounced by the Tribunal. Filing of application at such belated stage cannot be appreciated. The Tribunal having pronounced the judgment, rightly dismissed the application on 9.4.2013. In view of the clear law laid down by the [ACT] Bench of Supreme Court in [ENTITY]'s case, the petitioners in [CASE NUMBER] also cannot be permitted to directly challenge judgment of the Tribunal before the High Court, which cannot be treated as the court of first instance in respect of their grievances. Accordingly, that writ petition would not be maintainable. [CASE NUMBER] is, therefore, dismissed with liberty to the petitioners therein to approach the Tribunal by filing review petition under [SECTION] of the [ACT]. In passing this order, we are conscious of the submission made by the learned Senior Counsel for petitioners that filing of review by petitioners would be an exercise in futility but we are not persuaded to countenance it for three reasons. First is that the writ petition which has been filed by Ms. [ENTITY] [CASE NUMBER], is by someone who was not non-applicant before the Tribunal. She was an applicant before the Tribunal and not being satisfied with part of the judgment, has approached this Court. Secondly, we cannot pre-suppose that the review petition filed before the Tribunal would be dismissed. If the petitioners are able to persuade the Tribunal to agree to their view point, the Tribunal can review the matter as well and pass an appropriate fresh order. And thirdly, even if the review petition is eventually dismissed, remedy to the petitioners is again available before this Court under [SECTION] of the [ACT].
14. As far as the [CASE NUMBER] is concerned, we find a distinction in their case because they first approached the Tribunal directly by filing Misc. Application for impleadment and not before the High Court. Even though they were not impleaded as party and were allowed to intervene, the consequence was that they were entitled to advance their submissions before the Tribunal as any other party, who were applicants and non-applicants. At that stage, there was no reason for them to challenge the order refusing to implead them as party and permitting them to only intervene. There was still the possibility of the Tribunal considering their case and upholding their contentions. They could thus legitimately proceed on the belief that the Tribunal might be persuaded to dismiss the Original Application. It cannot, therefore, be said that they have not approached the Tribunal, which has been held to be the court of first instance on the matters covered under its jurisdiction as per ratio of the judgment of Supreme Court in [PRECEDENT]'s case (supra). The objection pointed out by the Registry in [CASE NUMBER], is, therefore, over-ruled.
15. [CASE NUMBER] is, therefore, dismissed as not maintainable, with the aforementioned liberty. [CASE NUMBER] be listed on 27.5.2013 along with [CASE NUMBER] filed by Ms. [ENTITY], the date fixed therein.
16. A copy of this order be placed in the records of [CASE NUMBER].
(Dr. [ENTITY]) J. ([ENTITY]) J. db 152 & 153
[All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] [ENTITY] PS