Saroj Bhai Patel Vs Union of India through the Secretary Ministry of Personnel Public Grievances and Pensions

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.1513 of 2024

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Saroj Bhai Patel

Petitioner

Versus

1. Union of India through the Secretary, Ministry of Personnel, Public Grievances and Pensions, North Block, Central Secretariat, P.O. North Block, P.S. Sansad Marg, New Delhi, Delhi-110001

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2. The Secretary, Ministry of Environment, Forest and Climate Change officiating at 6^th floor, Prithwi Wing, Indira Paryavaran Bhavan, Jor Bagh Road, Ali Ganj, New Delhi-110003

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3. Appointments Committee of the Cabinet through its Secretary officiating at North Block, Central Secretariat, PO. North Block, P.S. Sansad Marg, New Delhi, Delhi-110001

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4. State of Jharkhand represented through the Chief Secretary officiating at 1^st floor, Project Building, Dhurwa, P.O., P.S. Dhurwa, Ranchi-834004

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5. State of Himachal Pradesh represented through the Chief Secretary officiating at Himachal Pradesh Secretariat, Shimla, Himachal Pradesh-171002.

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6. The Principal Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand officiating at Nepal House, Jharkhand-834002

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7. The Additional Chief Secretary (Forests), Government of Himachal Pradesh officiating at Himachal Pradesh Secretariat, Shimla, Himachal Pradesh-171001

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8. The Principal Chief Conservator of Forests (HoFF), Government of Himachal Pradesh officiating at Forest Headquarters, Thalland, Shimla, Himachal Pradesh-171002

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9. The Principal Chief Conservator of Forests (HoFF), Government of Jharkhand officiating at Van Bhawan, Doranda, Ranchi-834002

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.... .... Respondents

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CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI

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------ For the Petitioner : Mrs. Aprajita Bhardwaj, Advocate For the UOI : Mr. Anil Kumar, Addl. S.G.I. Mr. Abhijeet Kr. Singh, AC to ASGI For the Resp. Nos.4&9 : Mr. Vishal Kumar Rai, AC to GA-IV

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02/Dated: 21.03.2024

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1. This writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the order dated 15.03.2024 passed by the Central Administrative Tribunal, Patna has been questioned,

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whereby and whereunder, the prayer for granting interim relief has been denied.

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2. Much has been argued on behalf of the writ petitioner showing the personal difficulties as per the policy decision of the office memorandum dated 15.11.2022.

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3. While on the other hand, the stand taken by the respondent before the Tribunal, has been taken note in the impugned order, has been reiterated by the learned Addl. S.G.I. by advancing his submission.

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4. The issue which is under question in this writ petition is for refusal of grant of interim relief to the effect that the writ petitioner may be allowed to continue as a “deputationist” in the State of Jharkhand till the final order is being passed on the basis of the recommendation made by the parent cadre State and the home State, i.e., the State of Himachal Pradesh and the State of Jharkhand respectively.

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5. The objection as has been taken, which has been taken note by the learned tribunal that until a decision is being taken to continue beyond the period of deputation, there cannot be any further continuation in the home State, has been taken as a ground to negate the prayer for granting relief by the learned tribunal.

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6. This Court, before proceeding to scrutinize the issue as to whether the interim protection is required to be given at this stage, deems it fit and proper to discuss about the principle of granting interim injunction/interim relief.

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7. Grant of an interim relief with regard to the nature and extent thereof depends upon the facts and circumstances for each case as no straight jacket formula can be laid down. Grant of temporary injunction has three basic principles; balance of convenience and irreparable injury which are required to be considered in a proper perspective in the fact and circumstances of a broad case. In Colgate Palmolive (India) Ltd vs. Hindustan Lever Ltd., AIR 1999 SC 3105 , the Hon‟ble Apex Court has delineated the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunction as under:-

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(i) Extent of damages being an adequate remedy;

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(ii) Protect the plaintiff‟s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;

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(iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party‟s case being stronger than the others;

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(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible.

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(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties‟ case;

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(vi) Balance of convenience or inconvenience ought to be

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considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

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(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.

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8. In Dalpat Kumar and Another vs. Prahlad Singh and Others, reported in AIR 1993 SC 276 , the Hon‟ble Apex Court has explained the scope of interim order i.e. The phrases “prima facie case”; “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man‟s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It is well-nigh impossible to find from facts prima facie case and balance of convenience.

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9. The law is well settled so far as grant of interim relief is there that the requirement to establish the prima-facie case, balance of convenience and irreparable loss has to be seen. The prima-facie case is required to be shown. However, the matter since is pending, therefore, this Court is not delving upon the issue, as to whether the writ petitioner is having the prima-facie case or not, otherwise, the entire lis pending before the tribunal will be prejudiced. 10. But herein, the issue of balance of convenience and irreparable loss is required to be dealt with.

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11. The irreparable loss is to be considered so as to come to the

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conclusion with respect to the principle of balance of convenience. The irreparable loss will be said to be a loss if the loss will not be reversible, meaning thereby, if the loss is irreversible then certainly, the prayer for interim order is to be granted so that the litigant concerned may not be subjected to a loss which cannot be restored to its original position.

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12. The word “irreversible” has been taken care of by the Hon’ble Apex Court in the case of Kihoto Hollohan vs. Zachillhu and Others [1992 Supp (2) SCC 651] , for ready reference, the paragraphs-110 & 111 of the said judgment are being referred as under:-

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“ 110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence. 111. In the result, we hold on contentions (E) and (F): That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable

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constitutional area. The power to resolve such disputes vested

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in the Speaker or Chairman is a judicial power.

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That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.

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That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case [(1965) 1 SCR 413 : AIR 1965 SC 745] to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words ‘be deemed to be proceedings in Parliament’ or ‘proceedings in the legislature of a State’ confines the scope of the fiction accordingly.

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The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

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However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference

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being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.”

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13. Interpreting the aforesaid interpretation of the word “irreversible” and coming back to the facts of the case, wherein, the admitted fact of the writ petitioner is that the decision since has not been communicated or taken, the same creates a right for further continuation in the State of Jharkhand.

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14. But the question is that if the petitioner will join on his post of repatriation and after joining the said post if the order which is to be communicated by the competent authority of the Union of India, if has been found to suffer from an error and if the court of law interferes with the same, then the normal consequence would be that the writ petitioner will again be back to his home State for continuation of further period of two years, if granted.

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15. Therefore, in that eventuality, it cannot be said that if the interim relief has not be granted, the writ petitioner has suffered irreparable loss, said to be not restored.

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16. This Court, therefore, is of the view that it is not a case where the writ petitioner has been able to fulfill the basic parameter for grant of interim relief. 17. As such, this Court is of the view that so far as the finding recorded by the learned tribunal denying the interim relief, requires no interference under the power of judicial review, as has been held by the Hon’ble Apex Court in the judicial pronouncement rendered in the case of L. Chandra Kumar v. Union of India and Others,

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reported in (1997) 3 SCC 261, wherein, at paragraph-99, it has

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been held as under:-

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“ 99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, 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 323-A and 323-B 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 a 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 323-A and Article 323- B 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 Tribunal concerned 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 Tribunal

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concerned. Section 5(6) of the Act is valid and constitutional

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and is to be interpreted in the manner we have indicated.”

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18. However, as has been submitted by the learned Addl. S.G.I., on instruction, that since the matter is pending before the tribunal, hence, the counter affidavit positively will be filed so that the matter be decided on the date fixed, therefore, this Court hereby requests the learned tribunal to decide the matter on the date already fixed on its own merit.

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19. Accordingly, the instant writ petition stands disposed of.

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(Sujit Narayan Prasad, J.)

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(Arun Kumar Rai, J.)

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Rohit/- A.F.R.

Saroj Bhai Patel v. Union of India through the Secretary Ministry of Personnel Public Grievances and Pensions

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Saroj Bhai Patel v. Union of India through the Secretary Ministry of Personnel Public Grievances and Pensions

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