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Judgment
Issue notice as to why this petition for writ be not accepted,
as prayed. Shri Jagdish Vyas, Advocate accepts notice on behalf of
both the respondents; service, as such, is sufficient. With consent
of the parties the matter is finally heard.
Counsel for all parties pray that the order passed by the
Tribunal by which it has been held that the LARSGESS Scheme is
ultra vires of the Constitution be set aside. Common submissions
have been made by the counsel for all the parties that parties
were not granted opportunity to address arguments with respect
to the vires of the scheme. Counsel also uniformly submit that no
pleading exists on the record of the Tribunal with respect to the
vires of the Scheme. Counsel further submitted that both the
Categories I & II support the scheme and submits that it is for the
safety of the passengers and also for the staff of the Railway.
Counsel for the parties strongly urged before the Court that the
scheme was formulated having regard to the working of Driver
and Gangmen, who play a crucial role with regard to the safe
running of the train and maintenance of the tracks. The scheme
was thereafter extended to three categories all of which are
concerned with the safety of the run of the train. Counsel further
submitted that a complete reading of the scheme would show that
stringent safeguards have been worked out and only thereafter
the scheme would be implemented.
In the case of Mallikarjuna Rao and Ors. (supra), the Apex
Court has frowned upon the observations of the High Court and
observed that it is neither legal nor proper for the High Courts or
the Administrative Tribunals to issue directions or advisory-
sermons to the executive in respect of the sphere which is
exclusively within their domain. Similar view has been expressed
in the case of Sumangala Naganath (supra), wherein it was held
that a matter of policy is not debatable in judicial forum. In the
case of Bharat Amratlal Kotyhari (supra), the Supreme Court of
India after observing that although the provisions of the Code of
Civil Procedure are not applicable to proceedings under Article 226
of the Constitution of India but the general principles of the Code
would apply. The Apex Court also observed that the Court would
also grant those reliefs specifically prayed by the petitioner,
although the High court had wide powers under Article 226 of the
Constitution of India and would be empowered to mould relief to
meet the ends of justice but granting a relief not prayed for would
result in serious prejudice to the rights of interested party.
Having regard to the submission made and the settled
position of the law, we find that the Tribunal has exceeded its
jurisdiction and decided an issue which was neither urged before
the Tribunal nor the parties were heard on this issue. We are
rather surprised that once the observations of the Division Bench
of Jaipur High Court was available with the Tribunal and
reproduced by the Tribunal in para 13 of the impugned order,
there was no reason as to why the Tribunal decided to ignore
those directions, even otherwise, in the absence of the
observations in our view the Tribunal could not have decided an
issue on which there were no pleadings and no opportunity of
hearing granted. Resultantly, we allow these writ petitions and
remand the matters back for fresh hearing. Impugned orders in all
the writ petitions are set aside. All Writ petitions and pending
applications are disposed of.
These matters will be taken up before the Registrar, Central
Administrative Tribunal, Jodhpur Bench, Jodhpur on 3.07.2017 to
fix a date for further proceedings in the original applications
before the Tribunal.