Kishan Chand vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The petitioner has invoked the jurisdiction of this Court questioning the order of transfer dated 19.11.2019, and has sought a writ of certiorari to quash the said order contending that the said transfer is contrary to the Indian Forest Service Cadre Rules, 1966 (as amended in the year 2014).

The petitioner is a member of the Indian Forest Service. In terms of Section 14(1) (a) of the Administrative Tribunals Act, 1985, the Central Administrative Tribunal has jurisdiction in relation to 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. Clause (b) of Section 14(1) stipulates that all service matters, concerning a member of an All India Service, shall fall within the jurisdiction of the Tribunal. Section 3 (q) defines 'service matters' to include all matters relating to All India Services.

In L Chandra Kumar vs. Union of India and others : (1997) 3 SCC 261, the Supreme Court observed :-

"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........"

(emphasis supplied)

As held by the Supreme Court, in L Chandra Kumar, the Tribunal, constituted under the Administrative Tribunals Act, 1985, is a Court of first instance in respect of the areas of law for which it has been constituted; and it is not open for litigants to directly approach the High Court. In the light of the law laid down by the Supreme Court, in L Chandra Kumar, the petitioner ought to have approached the Central Administrative Tribunal in the first instance, before invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India.

Mr. Tapan Singh, learned counsel for the petitioner, would rely on Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others : (1998) 8 SCC 1 to submit that mere existence of an alternative remedy, does not bar exercise of jurisdiction under Article 226 of the Constitution of India.

The law declared by the Seven Judge Bench of the Supreme Court in L Chandra Kumar bind us, and since the prohibition therein is for a person to directly invoke the jurisdiction of the High Court without first approaching the Tribunal which is the Court of first instance, we see no reason to entertain this writ petition. Leaving it open to the petitioner to approach the Central Administrative Tribunal for redressal of his grievance, the writ petition fails and is, accordingly, dismissed. No costs.