The Chief Secretary, Govt. of West Bengal and Another vs Swapan Kumar Bhattacharya and Others

All these three writ applications were taken up together as by these applications the selfsame order being Order dated November 23, 2006 passed by the Central Administrative Tribunal, Calcutta Bench in Misc. Application No. 619 of 2006 arising out of the original application being No. 419 of 2006 has been challenged.

Re: W.P.C.T. 711 of 2006

The applicant u/s 19 of the Administrative Tribunal Act, who is the respondent No. 1 before us, complained before the Central Administrative Tribunal that in view of illegal grant of promotion to some Juniors in the W.B.C.S. (Executive) entire, his case has not been sponsored for promotion to I.A.S. cadre in accordance with the rules. According to the applicant, the respondent-authority while promoting some of the juniors did not follow all the directions given by a Division Bench of this Court in an earlier writ application wherein the said Division Bench gave certain directions to the respondent-authority while considering the inter se seniority amongst those persons.

In the past, the tribunal after entertaining the application passed an interim order for 14 days thereby restraining the respondents from filling up all the vacancies to the post of I.A.S. by promotion in the State of West Bengal till further orders.

The appellants before us came up with an appeal against such order before a Division Bench presided over by the Hon''ble Chief Justice, but when the matter came up for hearing, by that time 14 days'' time had already elapsed from the date of passing of the order of the tribunal and there was no extension of the said interim order within the said period. In view of the aforesaid fact, the said Division Bench recorded that the appeal preferred by the present appellant had become infructuous as the interim order had already come to an end by operation of law.

Subsequently, the respondent No. 1 before us prayed before the tribunal for extension of the earlier interim order, although on that date, the said order was not subsisting. By the order impugned herein, the tribunal has extended the interim order till December 12, 2006, the date fixed for hearing of the main application.

Being dissatisfied, the Chief Secretary, Government of West Bengal has come up with the present writ application under Article 226/227 of the Constitution of India.

Mr. Roy, the learned Advocate General, appearing for the writ petitioners herein, vehemently contended before us that the learned tribunal acted without jurisdiction in extending the interim order as if there was a subsisting interim order. According to Mr. Roy, when the interim order had come to an end and such fact had been recorded in the appeal preferred by his client earlier, the tribunal could at the most pass fresh interim order after giving opportunity of hearing to the parties.

Secondly, Mr. Roy contends that on the basis of averments made in the application u/s 19 of the Act itself, the tribunal had no inherent jurisdiction to entertain such application, and, as such, the tribunal should not have granted any interim order in the absence of any prima faciecase.

Apart from those points, Mr. Roy also points out that in the past, the respondent No. 1 along with three others filed another application u/s 19 of the Act before the tribunal claiming similar relief, but ultimately, such application was withdrawn with liberty to approach the appropriate forum. Mr. Roy contends that without approaching the appropriate forum, the respondent No. 1 alone has come up with a fresh application before the selfsame forum. The oilier illegalities were also shown by Mr. Roy in support of the present appeal.

Mr. Chaturvedi, the learned Advocate appearing for the respondent No. 1, has, however, opposed all the aforesaid contentions advanced by Mr. Roy. According to Mr. Chalurvedi, his client really sought relief before the tribunal being dissatisfied with the process of recruitment to All India Services, and, as such, the case clearly comes within the purview of Section 14(1)(a) of the Administrative Tribunal Act, 1985.

Mr. Chaturvedi contends that although in the earlier order recorded by the tribunal in the previous application, it was mentioned that the said application was withdrawn with liberty to file application before the appropriate forum, that was a wrong recording and his client really wanted to file fresh application before the selfsame forum. At any rate, Mr. Chaturvedi contended that even if those were properly recorded, the said order dated January 03, 2006 was an order passed per incuriam.

Mr. Chaturvedi further submits before us that the order of promotion to the juniors having been passed in violation of Rule 5(2) of the Indian Administrative Services (Appointment by Promotion) Regulation, 1955, his client was entitled to maintain an application u/s 19 of the Act before the tribunal.

After hearing the learned Advocates for the parties and after going through the materials on record, we are at one with the learned Advocate General that on the basis of averments made in the application u/s 19 of the Act itself, the Central Administrative Tribunal had no inherent jurisdiction to entertain the application inasmuch as the ultimate relief to the respondent No. 1 depends upon his success in the disputing the promotion of the juniors superseding him. As pointed out in Section 15 of the Act, in respect of all service matters concerning a person not being a person referred to in Clause (c) of Sub-section (1) of Section 15 or a member, person or civilian referred to in Clause (b) of Sub-section (1) of Section 14, appointment to any civil service of the State can only be entertained by a State Administrative Tribunal.

In the case before us, the question of sponsoring the name of'' the respondent No. 1 rot-promotion to I.A.S. depends upon his place in the gradation list maintained by the West Bengal Civil Service (Executive) which he has challenged in the said application before the tribunal and unless he can successfully get correction of the said gradation list, his name cannot be considered for promotion to I.A.S., and., thus, the Central Administrative Tribunal had no jurisdiction to decide such question.

We are not at all impressed by the submission of Mr. Chaturvedi that simply because he has alleged violation of Indian Administrative Services (Appointment by Promotion) Regulation, 1955, for that reason, the Central Administrative Tribunal will get jurisdiction to decide illegality in the placement of a cadre in West Bengal Civil Service (Executive)

Therefore even without entering into the question whether the second application is maintainable after withdrawal of an one, we are of the view that on the basis of the averments made in the application u/s 19 of the Act itself, the tribunal ought to have rejected the application on the ground of want of jurisdiction.

In our view, it will be an abuse of process of law to permit the tribunal to proceed with the said application when even on the basis of averments made in the application, it has no such authority. We, therefore, in exercise of our power conferred under Article 227 of the Constitution of India reject the application u/s 19 of the Act filed before the tribunal.

We, however, make it clear that we have not otherwise gone into the merit of the claim made in the said application and this order will not stand in the way of the respondent No. 1 in seeking appropriate remedy before the appropriate forum in accordance with law.

The order impugned and the proceeding before the tribunal being O.A. No. 419 of 2006 are both quashed and set aside.

The writ application is allowed with the aforesaid observation.

In the facts and circumstances of the case, there will be however, no order as to costs.

Re: W.P.C.T. 712 of 2006 and. W.P.C.T. 713 of 2006

In view of this order passed in W.P.C.T. 711 of 2000, the other writ applications, being W.P.C.T. 712 of 2006 and W.P.C.T. 713 of 2006 have become infructuous and the same are disposed of accordingly.

After this order is passed, Mr. Chaturvedi, the learned Advocate appearing for the respondent No. 1, prays for stay of operation of this order.

In view of what have been stated above, we find no reason to stay our order. The prayer for stay is, thus, refused.

If applied for, let xerox-certified copy of this order be given to the parties by Thursday next.