Page No.# 1/28

GAHC010106632018

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WA/167/2018

THE STATE OF ASSAM AND 3 ORS

REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR,

GUWAHATI 781006

2: THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI-6

3: THE JOINT SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI-6

4: THE SELECTION COMMITTEE FOR THE SELECTION OF NON SCS

OFFICERS TO THE POST OF IAS

DISPUR

GUWAHATI 78100

VERSUS

ASSAM CIVIL SERVICE OFFICERS ASSOCIATION AND 14 ORS

HAVING ITS REGISTERED OFFICE NEAR STATE FIRE AND EMERGENCY

SERVICES , DISPUR, GUWAHATI -6, REPRESENTED BY ITS GENERAL SECY.

2:SRI MRIDUL KUMAR MAHANTA

GENERAL SECY.

ACS OFFICERS ASSOCIATION

DISPUR

GUWAHATI 6

3:THE UNION OF INDIA

REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA Page No.# 1/28

GAHC010106632018

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WA/167/2018

THE STATE OF ASSAM AND 3 ORS

REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR,

GUWAHATI 781006

2: THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI-6

3: THE JOINT SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI-6

4: THE SELECTION COMMITTEE FOR THE SELECTION OF NON SCS

OFFICERS TO THE POST OF IAS

DISPUR

GUWAHATI 78100

VERSUS

ASSAM CIVIL SERVICE OFFICERS ASSOCIATION AND 14 ORS

HAVING ITS REGISTERED OFFICE NEAR STATE FIRE AND EMERGENCY

SERVICES , DISPUR, GUWAHATI -6, REPRESENTED BY ITS GENERAL SECY.

2:SRI MRIDUL KUMAR MAHANTA

GENERAL SECY.

ACS OFFICERS ASSOCIATION

DISPUR

GUWAHATI 6

3:THE UNION OF INDIA

REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA

Page No.# 2/28

DEPTT. OF PERSONNEL AND TRAINING

MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND PENSION

NORTH BLOCK

NEW DELHI 110001

4:THE UNDER SECY.

DEPTT. OF PERSONNEL AND TRAINING

MINISTRY OF PERSONNEL

PUBLIC GRIEVANCES AND PENSION

NORTH BLOCK

NEW DELHI 110001

5:THE UNION PUBLIC SERVICE COMMISSION

REPRESENTED BY ITS CHAIRMAN

DHOLPUR HOUSE

SHAHJAHAN ROAD

NEW DELHI 110069

6:SMT. MANJULA SAIKIA BHUYAN

ADDL. COMMISSIONER

INDUSTRIES AND COMMERCE

UDYOG BHAWAN

BAMUNIMAIDAM

GUWAHATI 781021

7:SRI RAKESH AGARWALA

JOINT COMMISSIONER OF TAXES

KAR BHAWAN

GANESHGURI

GUWAHATI 781006

8:SMTI ARUNIMA CHOUDHURY

ASST. COMMISSIONER OF TAXES

KAR BHAWAN

GANESHGURI

GUWAHATI 781006

9:SRI BINOD AGARWALA

JOINT ZONAL REGISTRAR OF COOPERATIVE SOCIETIES

TEZPUR ZONE

TEZPUR

ASSAM.

10:DR. DEEPI REKHA KULI

DIRECTOR

DIRECTORATE OF ARCHEOLOGY

Page No.# 3/28

AMBARI

GUWAHATI 781001

11:SRI GHANA PEGU

JOINT REGISTRAR FO COOPERATIVE SOCIETIES

KHANAPARA

GUWAHATI 781022

12:SRI HEMANTA KR. DEWRI

DIRECTOR

FINANCE (ECONOMIC AFFAIRS)

ASSAM

SECRETARIAT

DISPUR

GUWAHATI 781006

13:SRI RAJIB KR. SAIKIA

CHIEF PUBLIC RELATION OFFICER

ASSAM POLICE HEADQUARTER

ULUBARI

GUWAHATI 781007

14:DR. RUNU DUTTA

DIRECTOR (PC DIVISION) TRANSFORMATION AND DEVELOPMENT

DEPTT.

BLOCK F. JANATA BHAWAN

DISPUR 781006

15:SRI SIMANTA TALUKDAR

SUPERINTENDENT OF POLICE (COMMUNICATION)

SB HQ

KAHILIPAR

Advocate for the Petitioner : MR. D NATH

Advocate for the Respondent : MR. D CHOUDHURY

Linked Case : WA/165/2018

SRI RAKESH AGARWALA

S/O SRI LAKSHMINARAYAN AGARWALA

Page No.# 4/28

C/O ACHYUT PARADISE

SIKARIA COMPOUND CHRISTIAN BASTI

G.S. ROAD

GHY-5

KAMRUP (M)

ASSAM.

VERSUS

ASSAM CIVIL SERVICE OFFICERS ASSOCIATION AND 17 ORS

HAVING ITS REGISTERED OFFICE NEAR STATE FIRE AND EMERGENCY

SERVICES

DISPUR

GUWAHATI 781006 REPRESENTED BY ITS GENERAL SECY.

2:MRIDUL KUMAR MAHANTA

GENERAL SECY.

ACS OFFICERS ASSOCIATION

DISPUR

GUWAHATI 781006

3:THE UNION OF INDIA

REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA

DEPTT. OF PERSONNEL AND TRAINING

MINISTRY OF PERSONNEL

PUBLIC GRIEVANCES AND PENSION

NORTH BLOCK

NEW DELHI 110001

4:THE UNDER SECY.

DEPTT. OF PERSONNEL AND TRAINING

MINISTRY OF PERSONNEL

PULBIC GRIEVANCES AND PENSION

NORTH BLOCK

NEW DELHI-110001

5:THE UNION PUBLIC SERVICE COMISSION

RPERESENTED BY ITS CHAIRMAN

DHOLPUR HOUSE

SHAHJAHAN ROAD

NEW DELHI 110069

6:THE STATE OF ASSAM

REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM

DISPUR

GUWAHATI 781006

Page No.# 5/28

7:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI 781006

8:THE JOINT SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI 781006

9:THE SELECTION COMMITTEE FOR SELECTION OF NON SCS OFFICERS

TO THE POST OF IAS

DISPUR

GUWAHATI-06

10:SMTI MANJULA SAIKIA BHUYAN

ADDITIONAL COMMISSIONNER

INDUSTRIES AND COMMERCE

UDYOG BHAWAN

BAMUNIMAIDAM

GUWAHATI 781021

11:SMTI ARUNIMA CHOUDHURY

ASSTT. COMMISSIONER OF TAXES

KAR BHAWAN

GANESHGURI

GUWAHATI 781006

12:SRI BINOD KR. AGARWALA

JOINT ZONAL REGISTRAR OF COOPERATIVE SOCIETIES

TEZPUR ZONE

TEZPUR

ASSAM.

13:DR. DEEPI REKHA KULI

DIRECTOR

DIRECTORATE OF ARCHEOLOGY

AMBARI

GUWAHATI 781001

14:SRI GHANA PEGU

JOINT REGISTRAR OF COOPERATIVE SOCIETIES

KHNAPARA

GUWAHATI 781022

15:SRI HEMANTA KR. DEWRI

DIRECTOR

FINANCE (ECONOMIC AFFAIRS)

ASSAM SECRETARIAT

DISPUR

GUWAHATI 781006

Page No.# 6/28

16:SRI RAJIB KR. SAIKIA

CHIEF PUBLIC RELATION OFFICER

ASSAM POLICE HEADQUARTER

ULUBARI

GUWAHATI 781007

17:DR. RUNU DUTTA

DIRECTOR (PC DIVISION)

TRANSFORMATION AND DEVELOPMENT DEPARTMENTS

BLOCK-F

JANATA BHAWAN

DISPUR-781006

18:SRI SRIMANTA TALUKDAR

SUPERINTENDENT OF POLICE (COMMUNICATION) SB HQ KAHILIPARA

------------

Advocate for : MR. B CHOUDHURY

Advocate for : ASSTT.S.G.I. appearing for ASSAM CIVIL SERVICE OFFICERS

ASSOCIATION AND 17 ORS

Linked Case : WA/166/2018

SMTI MANJULA SAIKIA BHUYAN

ADDITIONAL DIRECTOR

INDUSTRIES AND YOG BHAWAN

BAMUNIMAIDAN

GUWAHATI 781021

VERSUS

ASSAM CIVIL SERVICE OFFICERS ASSOCIATION AND 16 ORS

HAVING ITS REGISTERED OFFICE NEAR STATE FIRE AND EMERGENCY

SERVICES

DISPUR

GUWAHATI 781006 REPRESENTED BY ITS GENERAL SECY.

2:MRIDUL KUMAR MAHANTA

GENERAL SECY.

ACS OFFICERS ASSOCIATION

DISPUR

GUWAHATI 781006

3:THE UNION OF INDIA

REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA

DEPTT. OF PERSONNEL AND TRAINING

MINISTRY OF PERSONNEL

PUBLIC GRIEVANCES AND PENSION

Page No.# 7/28

NORTH BLOCK

NEW DELHI 110001

4:THE UNDER SECY. DEPTT. OF PERSONNEL AND TRAINING

MINISTRY OF PERSONNEL

PUBLIC GRIEVANCES AND PENSION

NORTH BLOCK

NEW DELHI 110001

5:THE UNION PUBLIC SERVICE COMMISSION

REPRESENTED BY ITS CHAIRMAN

DHOLPUR HOUSE

SHAHJAHAN ROAD

NEW DELHI 110069

6:THE STATE OF ASSAM

REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM

DISPUR

GUWAHATI 781006

7:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI 781006

8:THE JOINT SECY. TO THE GOVT. OF ASSAM

PERSONNEL (A) DEPTT.

DISPUR

GUWAHATI 781006

9:THE SELECTION COMMITTEE FOR SELECTION OF NON SCS OFFICERS

TO THE POST OF IAS

DISPUR

GUWAHATI 781006

10:SRI RAKESH AGARWAL

JOINT COMMISSION OF TAXES

KAR BHAWAN

GANESHGURI

GUWAHATI 781006

11:SMTI ARUNIMA CHOUDHURY

ASSTT. COMMISSION OF TAXES

KAR BHAWAN

GANESHGURI

GUWAHATI 781006

12:SRI BINOD KR. AGARWALA

JOINT ZONAL REGISTRAR OF COOPERATIVE SOCIETIES

TEZPUR ZONE

TEZPUR

ASSAM.

Page No.# 8/28

13:DR. DEEPI REKHA KULI

DIRECTOR

DIRECTORATE OF ARCHEOLOGY

AMBARI

GUWAHATI 781001

14:SRI GHANA PEGU

JOINT REGISTRAR OF COOPERATIVE SOCIETIES

KHANAPARA

GUWAHATI 781022

15:SRI HEMANTA KR. DEWARI

DIRECTOR

FINANCE (ECONOMIC AFFAIRS)

ASSAM SECRETARIAT

DISPUR

GUWAHATI 781006

16:SRI RAJIB KR. SAIKIA

CHIEF PUBLIC RELATION OFFICER

ASSAM POLICE HEADQUARTERS

ULUBARI

GUWAHATI 781007

17:DR. RUNU DUTTA

DIRECTOR (PC DIVISION) TRANSFORMATION AND DEVELOPMENT BLOCK

F

JANATA BHAVAN

DISPUR

GUWAHATI 781006

18:SRI SRIMANTA TALUKDAR

SUPERINTENDENT OF POLICE (COMMUNICATION) SB HQ

KHANAPARA

------------

Advocate for : MR D DAS

Advocate for : ASSTT.S.G.I. appearing for ASSAM CIVIL SERVICE OFFICERS

ASSOCIATION AND 16 ORS

BEFORE

HONOURABLE THE CHIEF JUSTICE

HONOURABLE MR. JUSTICE SUMAN SHYAM

JUDGMENT & ORDER (CAV)

Date of hearing : 23.04.2024.

Date of judgment : 03.05.2024

Page No.# 9/28

(Suman Shyam,J)

Heard Mr. D. Saikia, learned Advocate General, Assam assisted by Mr. D. Nath,

learned Senior Government Advocate, Assam appearing for the appellants in Writ

Appeal No.167/2018 and Mr. D. Das, learned senior counsel assisted by Ms. S.

Sharma, learned counsel appearing for the appellants in Writ Appeal Nos.165/2018

and 166/2018. We have also heard Mr. K. N. Choudhury, learned senior counsel

assisted by Mr. T. Chakraborty, learned counsel appearing for the respondents/writ

petitioners in all the three Writ Appeals.

2. These three intra-court appeals arise out of the common judgment and order

dated 26.04.2018 passed by the learned Single Judge in WP(C) No.1149/2018

involving common question of law and facts and therefore, these appeals are being

disposed of by a common order. The facts and circumstances, giving rise to the filing

of these Writ Appeals are briefly narrated here-in-below.

3. The respondent No.1 viz., Assam Civil Service Officers Association, which is an

association of Assam Civil Service Officers, along with its General Secretary, had

instituted WP(C) No.1149/2018 being aggrieved by the decision of the Government of

Assam to recommend the names of 10 officers belonging to the non-State Civil

Service (SCS) category, for nomination to the Indian Administrative Service (IAS) by

contending that the recommendations are in complete violation of the norms as well

as the provisions of the rules. As per the case projected by the writ petitioners, on

28.02.2017 the Secretary to the Government of Assam, Personal (A) Department had

Page No.# 10/28

issued a communication addressed to all the Additional Chief Secretaries, Principal

Secretaries as well as the Commissioner and Secretaries to the Government of Assam,

requesting each of them to forward names of not more than two officers for

appointment to the IAS as per regulation 4 of the IAS (Appointment by Selection)

Regulation, 1997. Pursuant to the communication dated 28.02.2017 names were

forwarded, whereafter a Screening Committee/Selection Committee, headed by the

Chief Secretary, Assam, as its Chairman, constituted for the purpose of selecting and

recommending the candidates, had considered the names of 15 non-SCS officers

and thereafter, recommended the names of as many as 10 officers including the

private respondent Nos.8 and 9 in the writ petition. Thereafter, on 27.10.2017, the

Secretary to the Government of Assam, Personal (A) Department had issued a

notification notifying as many as eight (8) different posts in the non-SCS cadre officers

declaring them to be equivalent to the rank of Deputy Collector of the State Civil

Service. Being inter-alia aggrieved by the minutes of meeting of selection committee

dated 18.09.2017 as well as the equivalence notification dated 27.10.2017, the

Association of Civil Service Officers of the State, along with its General Secretary, had

approached this Court by filing WP(C) No.1149/2018.

4. The primary contention of the writ petitioners, reduced to its essence, are as

follows. Firstly, the private respondents, who were recommended for nomination to

IAS, did not hold posts equivalent to Deputy Collector in the State Civil Service, as is

required under regulation 4(1)(iii) of the Indian Administrative Service (Appointment

by Selection) Regulations, 1997 and as such, none of them could have been

recommended by the Selection Committee for nomination/appointment to the IAS

Page No.# 11/28

cadre. Secondly, the recommendations of the DPC having been made on 18.09.2017

i.e. prior to declaration of the equivalence of the posts on 27.10.2017 and there being

no corresponding amendment to Schedule-I of Assam Civil Service Rules, 1998, such

recommendations were invalid in the eyes of law. To that extent, the notification

dated 27.10.2017 has also been put under challenge in the Writ Petition. Thirdly, the

total number of vacancies being 7 (seven) and in view of Rule 8 of the Indian

Administrative Service (Recruitment) Rules, 1954 not more than 15% of the vacancies

could have been reserved for non-SCS category officers, meaning thereby that not

more than 1 (one) post could have been filled up by nominating any officer from the

non-SCS category. As such, by filling up two vacancies from the officers belonging to

the non-SCS category, the respondents have acted without jurisdiction. It is also the

case of the writ petitioners that none of the officers from the non-SCS category,

recommended by the selection committee vide its resolution dated 18.09.2017, had

rendered 8 (eight) years of service in the relevant post which was a mandatory

requirement of the Rules. On such count the petitioners have sought interference not

only with the minutes of the selection committee dated 18.09.2017 but also the

equivalence notification dated 27.10.2017.

5. On 28.02.2018 the learned Single Judge, while issuing notice to the

respondents in the writ petition, had passed an interim order, the operative part of

which is reproduced herein below for ready reference :-

“7. In the interim, the upgradation of the private respondents to the IAS

should not be made, if the equivalent of their post declared later under the

notification dated 27.10.2017 (Annexure-7)”

Page No.# 12/28

6. It appears that notwithstanding the interim order dated 28.02.2018, the

respondent Nos.8 and 9 in the writ petition, viz., Smti. Manjula Saikia Bhuyan and Sri

Rakesh Agarwala respectively, were nominated to the IAS cadre.

7. The respondents in the writ petition, had questioned the maintainability of the

writ petition by contending that in view of the decision of the Hon’ble Supreme Court

rendered in the case of L. Chandra Kumar Vs. Union of India and others reported in

(1997)3 SCC 261 as well as the decision of this Court in the case of Tajuk Charu Vs.

Union of India and others reported in 2015 (1) GLT 588 it was incumbent upon the writ

petitioners to approach the Central Administrative Tribunal (CAT for short) before

approaching the High Court. As such, the writ petition was not maintainable. The

learned counsel for the respondent Nos.8 and 9 had also questioned the locus standi

of the petitioners to challenge the selection and/or nomination of his clients to the IAS

on the ground that the writ petitioners were not the aggrieved persons due to the

appointment of the respondent Nos.8 and 9 to the IAS cadre and hence, did not

have the locus to institute the writ petition.

8. After hearing the submissions advanced by learned counsel for both the sides

and after discussing the propositions of law, as cited at the Bar, the learned Single

Judge had passed order dated 26.04.2018 holding that the writ petition was

maintainable. The relevant findings and observations of the learned Single Judge, on

the point of maintainability of the writ petition, are reflected in paragraph Nos.18 and

19 of the order dated 26.04.2018, are reproduced herein below for ready reference :-

“18. Let us now examine whether the writ court should entertain this case or

Page No.# 13/28

whether the CAT is the only forum available for the aggrieved party. In L.

Chandra Kumar Vs. Union of India reported in (1997)3 SCC 261, the Supreme

Court even while declaring that the Tribunals will act as the Court of first

instance in respect of areas of law for which they have been constituted,

unequivocally declared that the Tribunals cannot act as substitute for the High

Courts or the Supreme Court. It was also held that the power of juridical review

over legislative action, is an integral and essential feature of the Constitution.

19. On the issue of appropriate forum, it will bear repeatation that the key

challenge here is to the equivalence declaration to posts held by the private

respondents by the impugned notification dated 27.10.2017 (Annexure-7). The

post of Superintendent of Taxes, held by the respondent No.9, is governed by

the Assam Taxation Service Rules, 1995. Similarly, the Assam Industrial Service

Rules, 1997 covers the post of Joint Director of Industries and Commerce, held

by the respondent No.8. As can be seen, the posts which are equivalent to a

post in any other cadre, are included in the Schedule-I of the Assam Civil

Service Rules, 1998 and it is apparent that the two posts of the Non-SCS

category where the respondent Nos.8 and 9 have served, are not declared to

be equivalent to the post of Deputy Collector, in exercise of power under Rule

3(3) of the Assam Civil Service Rules, 1998. The concerned Service Rules

covering those posts held by the respondents, were made in exercise of

powers conferred by the proviso to Article 309 of the Constitution of India and

undoubtedly they are in the domain of legislative function of the State.

Therefore if any change is to be made to the concerned Service Rules, the role

of the State will surely be legislative in character. Logically therefore, even

under the ratio of L. Chandra Kumar (supra), the power of judicial review

vested in the High Court under Article 226 of the Constitution, over legislative

action of the State, cannot in my considered assessment, be ousted in this

matter.”

9. Having held as above, the learned Single Judge went on to make the

Page No.# 14/28

following observations in paragraph 21 of the impugned order, which are as follows :-

“21. The adjudication on disputes which arise out of exercise of power by the

State in the legislative domain relating to changes in the Service Rules framed

under the proviso to Article 309, should best be decided by the High Court.

Even in matters pertaining to recruitment to All India Service, where the Central

Administrative Tribunal is otherwise competent to exercise jurisdiction under

Section 14 of the Tribunals Act, 1985, the assumption of jurisdiction by the

Tribunal will have to be preceded by certain acts to be done by the State

Government. If those very acts of the State Government in the domain of the

legislative function, bring an undeserving Non-SCS incumbent, to the arena of

recruitment to the All India Service and the aggrieved party challenges the

State’s action, the writ court in my considered opinion, would surely be the

better forum to adjudicate on the issue.”

10. The learned Single Judge was, therefore, of the view that availability of

alternative remedy is a rule of discretion and not one of compulsion and as such, in

an appropriate case, even when alternative remedy or forum is available, the writ

court may exercise its discretionary jurisdiction of judicial review if the contingencies

laid down by the Supreme Court in the case of M. P. State Agro Industries

Development Corporation Ltd. Vs. Jahan Khan reported in (2007)10 SCC 88 are

available.

11. On the question of validity of the process of recommendation and short listing

of the 10 officers for nomination to IAS as well as the publication of the equivalence

declaration notification dated 27.10.2017, the learned Single Judge had found the

process to be seriously flawed on the face of the record and hence, had issued a

direction to the State to respond to the facets of the challenge in the writ petition by

Page No.# 15/28

filing counter-affidavit within four weeks. By the impugned order dated 26.04.2018,

the learned Single Judge has also declined the prayer made by the respondent Nos.8

and 9 in the writ petition to vacate the interim order dated 28.02.2018.

12. Assailing the impugned order dated 26.04.2018 Mr. D. Saikia, learned

Advocate General, Assam has argued that in L. Chandra Kumar (supra) it was held

that in service matters, only the Tribunal would have the jurisdiction and power to

entertain the matter and therefore, it would not be open for the litigants to directly

approach the High Court by invoking the jurisdiction under Article 226 of the

Constitution. Mr. Saikia submits that such restriction laid down by the Apex Court

would include even those cases where the vires of legislation are under challenge.

13. Referring to the decision of this Court in the case of Tajuk Charu (supra) Mr.

Saikia has argued that in the said decision, in a similar fact situation pertaining to

selection and recommendation of suitable candidates from the non-SCS category for

nomination to IAS, the learned Single Judge had refused to entertain the challenge

made by an unsuccessful candidate by accepting the objection that after the

decision of the Supreme Court in the case of L. Chandra Kumar (supra), a writ petition

would not be maintainable and accordingly, the petitioner was asked to seek

remedy before the CAT. Mr. Saikia therefore, submits that the decision of the

coordinate Bench in Tajuk Charu (supra) was binding upon the learned Single Judge

in this case. Notwithstanding the same, the learned Single Judge has not followed the

said decision without assigning proper reasons and has erroneously held the writ

petition to be maintainable.

Page No.# 16/28

14. Mr. Saikia has further submitted that the respondent Nos.8 and 9 have not only

been nominated to the IAS during the pendency of the writ petition but they have

also retired from service on attaining the age of superannuation. As such, save and

except the issue of validity of the equivalence declaration notification dated

27.10.2017, no other live issue survives in the writ petition. Contending that if the

petitioners confine their challenge in the writ petition only to the question of legality

and validity of the equivalence declaring notification dated 27.10.2017, then in that

event, the State would not have any objection as to the maintainability of the writ

petition.

15. Mr. Saikia further submits that the learned Single Judge has recorded

elaborate findings on the merit of the claim of the writ petitioners thus, virtually

deciding the writ petition on merits even before the respondents could file their

counter-affidavits. As such, the impugned order is liable to be set aside on such count

as well.

16. Mr. D. Das, learned senior counsel appearing for the appellants in Writ Appeal

Nos.165/2018 and 166/2018 preferred by respondent Nos.8 and 9 in the writ petition,

respectively, has more or less supported the stand of the State in the matter and has

also forcefully assailed the maintainability of the writ petition on similar grounds as

urged by the learned Advocate General, Assam. In addition to the above, Mr. Das

has also questioned the locus standi of the writ petitioners to file the writ petition by

contending that the petitioners are not the aggrieved persons in these matters and

therefore, they had no locus standi to approach the court by filing the writ petition. In

Page No.# 17/28

support of his arguments Mr. Das has relied upon the decision rendered in the case of

Rajeev Kumar and another Vs. Hemraj Singh Chauhan and others reported in (2010)4

SCC 554 and the decision of the Bombay High Court in the case of Gaurav Ganesh

Das Daga and others Vs. Maharashtra Public Service Commission and another

reported in 2022 SCC OnLine Bom 476 to submit that viewed from any angle, the writ

petition was not maintainable in the eyes of law. As such, the impugned order dated

26.04.2018 is unsustainable in law and hence, liable to be set aside by this Court.

17. Mr. K. N. Choudhury, learned senior counsel appearing for the writ

petitioners/respondent Nos.1 and 2, on the other hand, has opposed the submissions

of the appellants’ counsel, by contending that the learned Single Judge has

recorded adequate and sufficient reasons in the impugned order dated 26.04.2018

so as to justify the order holding the writ petition to be maintainable. According to Mr.

Choudhury, the reasons recorded in the impugned order do not call for any

interference by this Court. On the question of findings recorded in the impugned

order, touching upon the merit of the case, Mr. Choudhury has argued that those

findings are tentative in nature and have been recorded merely for the purpose of

deciding the issue of maintainability of the writ petition. However, he would not have

any objection if this Court clarifies that any findings recorded in the impugned order

dated 26.04.2018 on the merit of the case would not have any bearing in the

outcome of the writ petition at the stage of final hearing.

18. We have considered the submissions advanced by learned counsel for both

the sides and have meticulously gone through the materials available on record.

Page No.# 18/28

19. As noted above, the impugned order dated 26.04.2018 has been assailed by

the Writ Appellants primarily on the ground that in view of the decision of the

Supreme Court rendered in the case of L. Chandra Kumar (supra) the Writ Petition

was not maintainable. That apart, the appellants in Writ Appeal Nos.165/2018 and

166/2018 have also urged that the petitioner association did not have the locus to

maintain the writ petition. Since the issues raised in all the three appeals are basically

on the point of maintainability of the writ petition, we make it clear that our

determination in this order would also be confined only to the questions raised in

these appeals and no further.

20. The Administrative Tribunals Act, 1985 (hereinafter the Act of 1985) provides for

setting up of Central Administrative Tribunal (CAT). Section 14 of the Act of 1985 lays

down the jurisdiction, power and authority of Central Administrative Tribunal. For the

sake of ready reference, Section 14 is reproduced herein below :-

“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

1

***) 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;

(b) all service matters concerning--

(i) a member of any All-India Service; or

(ii) a person [not being a member of an All-India Service or a

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person referred to in clause (c)] appointed to any civil service of

the Union or any civil post under the Union; or

(iii) a civilian [not being a member of an All-India Service or a

person referred to in clause (c)] appointed to any defence

services or a post connected with defence,

and pertaining to the service of such member, person or civilian, 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

2

[or society] owned or

controlled by the Government;

(c) all service matters pertaining to service in connection with the

affairs of the Union concerning a person appointed to any service or

post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a

person whose services have been placed by a State Government or any

local or other authority or any corporation

2

[or society] or other body, at

the disposal of the Central Government for such appointment.

Explanation.--For the removal of doubts, it is hereby declared that

references to Union in this sub-section shall be construed as including

references also to a Union territory.]

(2) The Central Government may, by notification, apply with effect from

such date as may be specified in the notification the provisions of sub-

section (3) to local or other authorities within the territory of India or under the

control of the Government of India and to corporations

2

[or societies] owned

or controlled by Government, not being a local or other authority or

corporation [or society] controlled or owned by a State Government:

Provided that if the Central Government considers it expedient so to do

for the purpose of facilitating transition to the scheme as envisaged by this Act,

different dates may be so specified under this sub-section in respect of

Page No.# 20/28

different classes of, or different categories under any class of, local or other

authorities or corporations

2

[or societies].

(3) Save as otherwise expressly provided in this Act, the Central

Administrative Tribunal shall also exercise, on and from the date with effect

from which the provisions of this sub-section apply to any local or other

authority or corporation [or society], all the jurisdiction, powers and authority

exercisable immediately before that date by all courts (except the Supreme

Court) in relation to--

(a) recruitment, and matters concerning recruitment, to any service or

post in connection with the affairs of such local or other authority or

corporation

4

[or society]; and

(b) all service matters concerning a person [other than a person referred

to in clause (a) or clause (b) of sub-section (1)] appointed to any

service or post in connection with the affairs of such local or other

authority or corporation

4

[or society] and pertaining to the service of

such person in connection with such affairs.”

21. In L. Chandra Kumar (supra) the Supreme Court had the occasion to examine

the doctrine of basic structure of the Constitution, as propounded in Kesavananda

Bharati Vs. State of Kerala reported in (1973) 4 SCC 225. While examining the scope of

power of judicial review of the High Courts and the Supreme Court under Articles

226/227 and 32 of the Constitution of India, in L. Chandra Kumar’s case the Supreme

Court had also dealt with the question as to whether, the High Courts should entertain

matters coming within the domain of the CAT. While clarifying that the Tribunals

constituted as per the provisions of Articles 323-A(2)(d) and 323-B(3)(d) will have the

power to entertain all matters for the purpose of which the Tribunals were created,

Page No.# 21/28

including the power to test the vires of subordinate legislation and Rules, save and

except entertaining any question regarding the vires of the parent statute, it was held

that the Tribunals will continue to act as the only court of first instance in respect of

areas of law for which they have been constituted. It was further clarified that the

consequence of the observations made in the decision would mean that it would not

be open for the litigants to directly approach the High Courts even in cases where

any question of vires of statutory legislation, except the exceptions mentioned in the

decision, is under challenge, by overlooking the jurisdiction of the Tribunal concerned.

The Supreme Court has, however, emphatically held in paragraph 99 that the

jurisdiction conferred upon the High Court under Articles 226/227 of the Constitution

and upon the Supreme Court under Article 32 of the Constitution were a part of the

invoiable basic structure of our Constitution. It was further observed that while the

jurisdiction conferred upon the High Courts and the Supreme Court cannot be

ousted, the other Courts and Tribunals may perform a supplementary role in

discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The

observations made by the Supreme Court in paragraph 99 of L. Chandra Kumar

(supra) would be relevant in this case and, therefore, those are reproduced herein

below for ready reference :-

“99. 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.

Page No.# 22/28

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.”

22. A careful reading of the decision of the Supreme Court rendered in the case

of L. Chandra Kumar (supra) would go to show that the observations made therein,

pertaining to the jurisdiction of the Tribunals to act as the Court of first instance with

regard to the areas of law for which they have been constituted, were driven more

out of concern for heavy pendency of cases in the High Courts and in view of the

theory of alternative institutional mechanism, as propounded in the case of S. P.

Sampat Kumar Vs. Union of India and others reported in (1987) 1 SCC 124 rather to

exclude the jurisdiction of the constitutional courts to entertain such disputes. It also

appears from the observations made in L. Chandra Kumar’s case that the Supreme

Court was anxious about preserving the conferment of powers on the Tribunals,

Page No.# 23/28

keeping in mind the unprecedented docket explosions in the superior Courts rather

than to oust the jurisdiction of the High Court under Article 226 and accordingly, had

emphasized on the need to adopt the theory of alternative institutional mechanism,

as highlighted in the case of S. P.Sampat Kumar(supra). In L. Chandra Kumar (supra)

there is no finding or observations of the Apex Court indicating complete ouster of

jurisdiction of the High Court in matters where the Tribunals were also empowered to

entertain the dispute. On the contrary, the Supreme Court has observed that the

Tribunals cannot act as substitute for the High Courts or the Supreme Court. In the

case of L. Chandra Kumar (supra) the Supreme Court has categorically held that

there was no exclusion of jurisdiction of the High Courts and the Supreme Court.

23. L. Chandra Kumar, undoubtedly, emphasizes on the need for the litigants to

first approach the CAT as the court of first instance, if the dispute is one which comes

within the ambit of law for which the Tribunals are created and to that extent, it

would be perfectly justified for the High Courts to refuse to entertain such a dispute in

exercise of powers conferred under Article 226. However, such an approach of the

High Court cannot be interpreted to altogether exclude the jurisdiction of the High

Court to entertain the dispute. 24. Not entertaining a writ petition under Article 226 of

the Constitution in view of availability of alternative remedy is not a rule of law

but a rule of prudence and would depend on the facts and circumstances of each

case. The ratio laid down in the decision of L. Chandra Kumar (supra), therefore, must

be understood to be one wherein, it has been provided that under ordinary

circumstances it is the Tribunal constituted under the statute which will be the court of

first instance to entertain a dispute falling within the area of law for which the Tribunal

Page No.# 24/28

has been constituted. The question arising in these appeals, however, would be as to

whether, in view of the decisions in L. Chandra Kumar’s case, there is complete ouster

of jurisdiction of the High Court to entertain such a dispute. The answer to the said

question, in our considered opinion, has to be in the negative. This we say so in view

of the categorical observations made in paragraph 99 of L. Chandra Kumar (supra).

25. Examining the legality and validity of exercise of power by the executive

would lie within the realm of administrative law. Law is well settled that exercise of

executive power of the State within the domain of Article 162 of the Constitution of

India would be amenable to judicial review by the constitutional courts.

26. Law is equally settled that by issuing office orders/memorandums/ executive

instructions, the executive power of the State cannot be exercised to supplant any

statutory provision but the same can only be used to supplement the statute/rule.

Such orders/ memorandums/executive instructions can also not be issued in

contravention of the statutory rules. [See : Union of India v. Majji Jangamayya [(1977)

1 SCC 606], P.D. Agarwal v. State of U.P. [(1987) 3 SCC 622], Paluru Ramkrishnaiah v.

Union of India [(1989) 2 SCC 541], C. Rangaswamaiah v. Karnataka Lokayukta [(1998)

6 SCC 66]. While exercising the power of judicial review in such matters, the judiciary is

expected to act as the sentinel in qui vive.

27. In the case of State of Bihar and 0thers vs. Subhash Singh reported in (1997) 4

SCC 430 the Supreme Court has observed that the power of judicial review of

administrative actions and also of legislation, is exercised against the action of State.

Since the State or public authorities act in exercise of their executive or legislative

Page No.# 25/28

power, they are amenable to judicial review. The State, therefore, is subject to etat

de droit i.e. the State is submitted to the law which implies that all actions of the State

or its authorities and officials must be carried out subject to the Constitution and

within the limits set by law i.e. constitutionalism.

28. In the present case, the writ petitioners have questioned not only the manner

in which the equivalence declaration notification was issued by the State

Government on 27.10.2017 without circulating the same in the official gazette but

also the manner in which the same was given effect to without amending the

Schedule-I of the Rules of 1998. The aforesaid aspects of challenge in the writ petition

lies in the realm of exercise of administrative and legislative powers of the State and

therefore, in our considered opinion, would raise legal issues which would

undoubtedly transcend beyond the contours of jurisdiction of the CAT, as conferred

under Section 14 of the Act of 1985. If the challenge to the notification dated

27.10.2017 succeeds on merit, then in that event, the same would, in all probability,

have a cascading effect on the other issues raised in the writ petition including the

question of validity of the recommendations of non-SCS category candidates, not

only in the recent past but also for future purposes. Therefore, the views expressed by

the learned Single Judge in paragraphs 18 and 19 of the impugned order dated

26.04.2018, holding the writ petition to be maintainable, appears to be a plausible

view. We are also of the prima-facie opinion that the core issues raised in the writ

petition would lie within the domain of the power of judicial review conferred on the

High Court under Article 226 of the Constitution of India. Therefore, the Writ Petition is

maintainable in the eyes of law.

Page No.# 26/28

29. In the case of Tajuk Charu (supra) relied upon by the appellants, an

unsuccessful candidate, whose name was not included in the list of short listed

candidates from the non-SCS category for nomination to IAS, had approached the

High Court by filing a writ petition raising a dispute which was purely a service matter.

On the face of objection raised by the counsel for the respondents regarding the

maintainability of the writ petition in the light of the decision rendered in the case of L.

Chandra Kumar (supra), the learned Single Judge had upheld the preliminary

objection of the respondents regarding the maintainability of the writ petition and

dismissed the same by giving liberty to the petitioner to approach the CAT in

accordance with law. After going through the decision in Tajuk Charu (supra) we are

of the opinion that although there is some similarity of some of the issues involved in

both the proceedings, yet, the facets of challenge in the instant writ petition lies in a

completely different compass, thus giving rise to dissimilar questions of law and facts.

As such, we find that the decision rendered in the case of Tajuk Charu (supra) is

distinguishable on facts.

30. In so far as the plea of locus standi of the petitioners to institute the writ petition

is concerned, we find that although the learned counsel for the appellants in Writ

Appeal Nos.165/2018 and 166/2018 had specifically raised the said plea before the

learned Single Judge, no finding on the above issue has been recorded in the

impugned order dated 26.04.2018. Since the writ petition is still pending and a

question on the above point has been raised, it would be incumbent upon the

learned Single Judge to decide the question of locus standi of the petitioners at an

appropriate stage. Therefore, we find force in the submission of learned counsel for

Page No.# 27/28

the appellants that a direction to that effect is called for from this Court.

31. We have also taken note of the submissions of Mr. Saikia that the writ

appellants/respondents in the writ petition are yet to file counter affidavit in the writ

petition. Notwithstanding the same, the learned Single Judge has made observations

in the impugned order dated 26.04.2018 touching upon the merit of the case which

deserves to be set-aside by this Court. We find ourselves in agreement with such

submission of the learned counsel for the appellants. Since the writ petition is pending

disposal on merit, any finding and/or observation recorded in the impugned order

dated 26.04.2018 touching upon the merit of the case would cause undue prejudice

to the interest of the parties at the stage of final hearing and therefore, would be

uncalled for.

32. For the reasons stated herein above, we affirm the impugned order dated

26.04.2018 passed by the learned Single Judge, in so far as the maintainability of the

writ petition, despite availability of alternative remedy is concerned. We, accordingly,

request the learned Single Judge to expeditiously decide the writ petition on merit by

considering all the legal objections and/or pleas raised by both the sides, including

the questions of locus standi of the writ petitioners. We also make it clear that the

observations recorded by the learned Single Judge in the impugned order dated

26.04.2018 shall be treated to be of prima facie nature, meant only for the limited

purpose of considering the objections pertaining to maintainability of the writ petition

and the same shall not have any bearing at the stage of final hearing of the writ

petition.

Order downloaded on 24-12-2024 05:59:45 PMPage No.# 28/28

With the above observations, all the three Writ Appeals stand disposed of.

Parties to bear their own costs.

JUDGE CHIEF JUSTICE

T U Choudhury/Sr. PS

Comparing Assistant