Yashpal Singh Malik and Others vs State of U.P. and Another

Palok Basu, J.—The learned judgment prepared by my revered brother Hon''ble R. K. Mahajan, J. has been read with interest.

The Petitioners claim the following reliefs:

(a) The Forest Service Rules, 1993 (Annexure 10) be quashed.

(b) Benefits of promotion be given to the Petitioners according to the provincial Forest Service Rules, 1952.

The aforesaid prayers can and should be raised by the petition before the U.P. Public Services Tribunal. In view of the alternative remedy available, this Court fully concurs with the ultimate conclusion of Hon''ble R. K. Mahajan, J., that the writ petition be dismissed because of availability of alternative remedy.

However, the other reasons and directions are the opinions of Hon''ble R. K. Mahajan, J., on which no opinion by this Court is expressed.

R.K. Mahajan J.

When this writ petition came up for the motion of hearing the court raised question of maintainability in view of alternative remedy u/s 4 of U.P. Public Services (Tribunal) Act, 1976 (hereinafter referred to as the Act of 1976) and U.P. Public Services Tribunals (Procedure) Rules, 1992 (hereinafter referred to as the Rules of 1992). The time was sought by the learned Counsel for the Petitioners and was granted sufficient time to address on this point.

To understand the controversy the Petitioner has filed the present writ petition praying for quashing of Forest Service Rule, 1993 (Annexure No. 10 to the writ petition) and issuing of mandamus commanding the Respondents to grant benefit of promotion to the Petitioner of P. F. S. cadre (Provincial Forest Service Cadre) to their respective senior posts according to P. F. S. Rules, 1952. The Petitioners'' grievance is that they were governed by P. F. S. Rules, 1952 and they had a better chances of promotion and by amendment of Rules in 1993, 110 posts of P. F. S. cadre have been taken out of service cadre and they have been merged/absorbed in Indian Forest Service (hereinafter referred to as the I. F. S.) along with incumbents with the consent of the State Government. They further alleged that they have been deprived of promotion as they had legitimate expectation in their cadre to be promoted better than now by way of amendment in Rules in 1993.

Without entering into the controversy of merits and demerits of the case the petition is not maintainable for non-exhaustion of alternative remedy. Learned Counsel for the Petitioner has submitted that since the vires of the Rules of 1992 and 1993 have been challenged so the High Court has Jurisdiction. We are unable to agree with the submission of the counsel for the Petitioner on the following reasonings in view of the Constitution of the Tribunal. We would like to refer Section 4 of the Act of 1975, which is quoted for advantage:

Section 4. Reference of claims to Tribunal---If any person who is or has been a public servant claims that in any matter relating to employment as such public servant his employer or any officer or authority subordinate to the employer has dealt with him in a manner which is not in conformity with any contract, or:

(a) in the case of a Government servant, with the provisions of Article 16 or Article 311 of the Constitution or with any rules or law having force under Article 309 or Article 313 of the Constitution;

(b) in the case of a servant of a local authority or a statutory corporation, with Article 16 of the Constitution or with any rules or regulations having force under any Act of Legislature constituting such authority or corporation,

he shall refer such claim to the Tribunal, and the decision of the Tribunal thereon shall, subject to the provisions of Articles 226 and 227 of the Constitution be final:

Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant.

There is remedy from the order of Tribunal to the High Court under Articles 226 and 227 of the Constitution of India, Section 3 of the Act of 1976 is quoted with advantage:

Constitution of the Tribunal.--

(1) As soon as may be after the commencement of the Uttar Pradesh Public Services (Tribunals)(Amendment) Act, 1992, the State Government shall, by notification, establish a Tribunal to be called the State Public Services Tribunal.

(2) The Tribunal shall consist of a Chairman, a Vice-Chairman and such number of other Judicial and Administrative Member not less than five in each category, as may be determined by the State Government.

(3) A person shall not be qualified for appointment as chairman, unless he:

(a) has been a Judge of a High Court, or

(b) has, for at least two years held the post of Vice-Chairman, or

(c) has been a member of the Indian Administrative Service who has held the post of a Secretary to the Government of India or any

other post under the Central or the State Government equivalent thereto, and has adequate experience in dispensation of Justice.

(4) A person shall not be qualified for appointment as Vice-Chairman, unless he:

(a) has held the post of District Judge or any other post equivalent thereto for at least five years; or

(b) has, for at least two years held the post of a Judicial or an Administrative member; or

(c) has been, a member of the Indian Administrative Service who has held the post of Additional Secretary to Government of India or any other post under the Central or the State Government equivalent thereto and has adequate experience in dispensation of Justice.

(5) A person shall not be qualified for appointment as a Judicial Member, unless he has held the post of District Judge, or any other post equivalent thereto.

(6) A person shall not be qualified for appointment as an Administrative Member, unless he has held, or has been eligible to hold, the post of Commissioner of a Division or Joint Secretary to the Government of India and has adequate experience in dispensation of Justice.

The constitution of the Tribunal shows that the Chairman of the Commission may be appointed from the persons who is retired Judge of the High Court etc. as mentioned above. In this enactment the consultation of the Chief Justice of the Local High Court is missing. Under Consumer Protection Act the Chairman of the State Consumer Protection Forum is appointed in consultation with the Chief Justice of the High Court and the Chairman of Administrative Tribunal and other members are appointed under the Administrative Tribunal Act with the consultation of Chief Justice of India and even for appointment of members there is a high powered committee consisting of the Chief Justice : Chief Secretary; Chairman, Public Service Commission, etc., Chairman of Administrative Tribunal and so many Judicial functionaries are involved to give transparency for the appointment of members of the Tribunal under the Administrative Tribunal Act.

The members of the Bar have certain grievance when this case and other cases was being heard that the Tribunal is not effectively working and it is hoped and trusted that the State Government may go through the procedure under the Administrative Tribunal Act and under Consumer Protection Act for the appointment of members and the State Functionaries may evolve such a system on the pattern envisaged on the lines of those Acts to give transparency and credibility to the litigants of the functioning of the Tribunal. The Hon''ble Supreme Court in S.P. Sampath Kumar and Others Vs. Union of India (UOI) and Others, . suggested certain amendment/proposals in the Administrative Tribunal Act, 1985 and they were carried out for the better administration of Justice and rule of law and to keep the nature of independent working of the Tribunal. If the State Government does not show any interest this Court will not refrain from issuing direction after lapse of six months to give better administration of Justice to the people and also to implement the provision of Article 39(a) read with Article 14 of the Constitution of India. If needed the Act may be amended suitably or may consider the Constitution of Administrative Tribunal under Administrative Tribunal Act, 1985. The Court also expresses hope and trust that the small State like Himachal Pradesh can give facility of holding circuit Benches of Administrative Tribunal at three places. It is very surprising and unusual that facility of holding circuit Bench is not provided at Allahabad which is a Principal seat of High Court not to speak of other places, also look into this matter to give cheap justice to the litigants in order to implement the objects of the Act which are as follows:

The number of cases in the courts pertaining to the employment matters of the Government Servants was constantly on the increase. This, besides increasing the work load in the courts, also delayed considerably the disposal of such cases. Such litigation also involved money and time of the Government servants. In these circumstances it was decided to establish Public Service Tribunals to deal with cases pertaining to employment matters of Government servants and also of the employees of the local authorities and Government corporations and companies, so that the employees may get quick and inexpensive justice. It was also decided that after the establishment or the tribunals such suits be barred from being filed in the subordinate courts.

The High Court has a limitation under Article 226 of the Constitution of India to investigate the dispute question of facts and evaluate it. The principle of natural Justice are to be observed u/s 5 of the Act of 1975 while disposing of the petition and there is no strict observance of C. P. C. It may be also mentioned that under this Section case is to be decided as expeditiously as possible after perusal of the documents and representation and written arguments, if any. Even the provision for stay order has been made with procedural safeguards. Similarly u/s 5(5B) of the Act of 1975 the Tribunal has been debarred to make an interim order in respect of suspension, dismissal, removal reduction in rank etc. of public servant. Section 5(5B) of the Act of 1975 is quoted below for advantage:

5(5B) Notwithstanding anything in the foregoing sub-sections, the Tribunal shall have no power to make an interim order (whether by way of injunction or stay or in any other member) in respect of an order made or purporting to be made by an employer for the suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant, and every interim order (whether by way of injunction or stay or in any other manner) in respect of such matters, which was made by a Tribunal before the date of commencement of this sub-section and which if in force on that day, shall stand vacated.

The Tribunal has power to punish for contempt u/s 5A of the Act of 1976. Civil suit is also not maintainable u/s 6 of the Act of 1976. It is a cardinal principle of law u/s 5 of CPC and it is now settled by the Apex Court that the civil court is not to entertain any suit expressly or impliedly barred by statute or any other provision of law.

Remedy in the nature of writs under Article 226 of the Constitution of India is discretionary and if there is alternative and efficacious remedy the High Court has to stay its hand and is not to assume the role of Tribunal by entertaining petition. The dockets in the High Courts are already full to the brim and if such type of litigation is encouraged perhaps there would be piling up of more litigation and in that event the genuine litigants who are waiting in so many matters for more than fifteen years would be left in the lurch. This would be travesty of justice and the High Court should discourage it.

We are also unable to agree with the counsel for the Petitioner that since the vires of the rule have been challenged and the Tribunal has no jurisdiction.

Article 16 of the Constitution of India is quoted with advantage:

There shall be equality of opportunity for all citizens, in matters relating to employment or appointment to any office under the State.

This Article embraces in its scope equal opportunity in the matter of promotion and vires can be gone by the Tribunal. Merely by jugglery of words or drafting of pleadings in a subterfuge or devious manner or in giving a shape in such a manner to bring within the jurisdiction of Article 226 of the Constitution of India would not confer the jurisdiction to High Court under Article 226 of Constitution of India. High Court is to see the substance of the pleadings and this practice will not be approved by exercising the Jurisdiction of this Court. The substance of pleadings will determine the attraction of the case under Article 226 of the Constitution of India. It is discretionary remedy and the High Court may refuse it, where alternative and efficacious and convenient remedy is available.

The High Court is not to bye-pass or say goodbye to the Legislative enactment. Hon''ble Supreme Court in State of U.P. and another Vs. Labh Chand, , was of the view that:

When a statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well-settled.

In view of the reasons recorded above the writ petition is not maintainable and is dismissed on account of non-exhaustion of alternative remedy available under the Act.

A copy of this order be sent to the Registrar for bringing to the notice of Hon''ble the Chief Justice regarding institution of the cases under this Act and also to Chief Secretary, Government of U.P. for information and necessary action in the light of the observation made by this Court.