JUSTICE v. NARASINGH DATE OF HEARING AND JUDGMENT
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.33396 of 2022 (An application under Articles 226 & 227 of the Constitution of India). 1. Puspak Nayak 2. Dasharath Mahanta …. Petitioners -versus- …. Opposite Parties 1. Union of India 2. Employees State Insurance Corporation 3. Regional Director, ESIC Regional Office, Bhubaneswar 4. Chairperson of the Interim Commission for Allied & Health Care professions For Petitioners :
Legal Reasoning
Mr. J. Dash, Advocate For Opposite Parties : Mr. S.N. Patnaik, Adv. (O.P.3) CORAM: JUSTICE V. NARASINGH DATE OF HEARING AND JUDGMENT :07.02.2025 V. Narasingh, J. 1. Heard learned counsel for the Petitioners and learned counsel for the Opposite Parties. W.P.(C) No.33396 of 2022 Page 1 of 7 2. The present Writ Petition has been filed seeking the following reliefs; “The petitioners humbly prayed that this Hon'ble court may be graciously pleased to admit this writ petition issue a writ in the nature of certiorari or any other appropriate writ/ writs by quashing the impugned order dated 02.12.2022 under Annexure-6 passed by the Opp. party No. 2 and directing to the Opp-parties to issue an open advertisement for filling up the post of Junior Medical Lab Technologist by direct recruitment as per Recruitment Regulation Rules 2022.” 3. Learned counsel for the Opposite Party Nos.2 and 3, who appeared pursuant to issuance of notice, filed the counter affidavit raising the question of maintainability. The recitals in the counter affidavit relating to maintainability runs thus; in the present writ petition the “9. That, petitioners are aspirants for appointment in the in case of an post of Lab. Assistants advertisement is issued for filling up the said post by direct recruitment instead of filling the same through promotion. Since the petitioners have approached this Hon’ble Court bypassing the learned CAT, Cuttack Bench, the present writ petition is not maintainable and accordingly the same is liable to be dismissed keeping in view the decision of the Hon’ble Supreme Court cited supra.” 4. In response thereof, rejoinder affidavit has been filed by the Petitioners wherein the specific W.P.(C) No.33396 of 2022 Page 2 of 7 stand has been taken that the lis is maintainable before this Court and to fortify his submission, learned counsel for the Petitioners has also relied on the judgment of the learned Single Judge of the Delhi High Court dated 13.09.2023 in W.P.(C) No.8626 of 2023 & CM APPL No.32739 of 2023. 5. Referring to Article 323(A) of the Constitution, it is submitted by the learned counsel for the Petitioners that since they are not an employee of the Employees State Insurance Corporation hereinafter referred to as “Corporation” for clarity and brevity and seeking a direction as quoted above inter alia for issuance of open advertisement by quashing Annexure-6 the Office Memorandum relating to Holding of DPC for the post of Lab Assistant, there is no embargo for this Court to entertain the Writ Petition. 6. Since this Court is seized of the question of maintainability, it desists from entering into the contours merits of the matter in terms of the latest judgment of the Apex Court in the case of L. Chandra Kumar vs. Union of India and others reported in (1997) 3 SCC 261. 7. For convenience of reference, Article 323(A)(1) and Sections 14(1)(a) of the Administrative Tribunal Act, 1985 are extracted hereunder; W.P.(C) No.33396 of 2022 Page 3 of 7 law, provide Administrative complaints with tribunals.-(1) “323-A. Parliament may, by the for adjudication or trial by administrative tribunals of disputes and to recruitment and conditions of service of persons in appointed connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.” to public services and posts respect Section 14(1)(a) of the Administrative Tribunal Act, 1985: “14. Jurisdiction, powers and authority of the Central Administrative Tribunal.- (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) [***] in relation to- a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;” 8. It is also apt to refer to Rule 154 of the Central Administrative Tribunal Rules of Practice, 1993 (hereinafter referred to as “Rules, 1993). W.P.(C) No.33396 of 2022 Page 4 of 7 Under Chapter XXI of the said rules under the heading “Miscellaneous”, Rule 154 of the C.A.T. Rules of Practice, 1993 deals with classification of cases subject-wise/department-wise. Sub-rule (b) of the said rule reads as under; “154. Classification of cases subject- wise/department-wise (a) xxx xxx xxx (b) The Department-wise classification shall be made in accordance with Appendix VI, as may be modified by the Chairman from time to time. (c) xxx xxx xxx (d) xxx xxx xxx (e) xxx xxx xxx” 9. Learned counsel Mr. Pattnaik, appearing for the Corporation, relying on the judgment of the Apex Court in the case of L. Chandra Kumar vs. Union of India and others reported in (1997) 3 SCC 261 and the notification of the list of the Corporations, Societies and Authorities, which come within the purview of CAT in terms of Rule 154(b) of the C.A.T. Rules of Practice, 1993 in which the ESI Corporation figures at Serial No.2 under heading „D‟, submits that on a bare perusal of the provisions of Article 323(A) read with the Administrative Tribunals Act, 1985 and the notification thereunder as per “Rules, 1993” referred to hereinabove, the Writ Petition is not maintainable. W.P.(C) No.33396 of 2022 Page 5 of 7 10. It is apt to note here that Section 14(1)(a) of the Administrative Tribunal Act, 1985 dealing with the Jurisdiction, Powers And Authority of the Tribunals under Chapter III thereof deals with recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian. 11. On going through the language of Article 323(A) under Part XIV-A of the Constitution dealing with creation of Tribunals, it can be seen that the legislature mandated for creation of Tribunal for adjudication of matters “with respect to recruitment and conditions of service” of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. 12. The ambit and scope of the Tribunals jurisdiction have been succinctly stated in the Judgment of L. Chandra Kumar (Supra) in the concluding paragraph, which is respectfully quoted hereunder; “xxx xxx xxx It will not, therefore, be open for litigants to directly approach the High Courts even in cases W.P.(C) No.33396 of 2022 Page 6 of 7 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. xxx xxx xxx” 13. On a conjoint reading of the Article 323(A) and the Administrative Tribunal Act, 1985 and the notification of the Organization of ESIC under category D in terms of the “Rules, 1993” as noted hereinabove, this Court is of the considered view that the Writ Petition before this Court is not maintainable. 14. of. 15. 16. Accordingly, the Writ Petition stands disposed Interim order stands vacated. The Petitioners are at liberty to pursue his remedy before the appropriate Tribunal. 17. In the event such an application is filed, the learned Tribunal shall take into account that the Petitioners bonafide was pursuing the matter before this Court. ( V.Narasingh ) Judge Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 20-Feb-2025 18:56:37 Orissa High Court, Cuttack, Dated the 7th of February, 2025/Santoshi W.P.(C) No.33396 of 2022 Page 7 of 7