# Santosh Malviya & Ors v. Union of India & Ors

- **Citation:** (2022) 11 ILRA 1000
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-20
- **Case number:** Writ-A No. 8561 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-malviya-ors-v-union-of-india-ors-47926
- **Pages:** 6

## Headnote

Civil Law - Constitution of India,1950 -
Article 15, 16, 16(1), 16(4), 32, 226, 227,
323(a), 323(b) & 335 - Administrative
Tribunal Act, 1985 - Sections 14 & 15 -
Writ Petition - Challenging Office Memorandum
issued by Central Govt. declaring ultra vires - it
is settled law that Central Administrative
Tribunal has absolute power to hear the cases of
Central Govt. Employee including quashing of
office memorandum, rules and regulations or
declare ultra vires - accordingly writ Petition is
not maintainable - dismissed. (Para - 11, 12)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

## Text

1000 INDIAN LAW REPORTS ALLAHABAD SERIES
of Bhim Sain Tyagi v. State of U.P. And
others 1999 (39) ACC 321.

17. Having regard to the facts and
circumstance of the case, prima-facie, we
are convinced that the proceedings initiated
against the petitioner is not only malicious
but to harass the petitioner in respect of the
property in dispute which admittedly vests
with the petitioner lawfully. Further, the
conduct of the respondent, in particular, the
second respondent, District Magistrate,
Gorakhpur, clearly demonstrates that he
has no respect for the rule and law and has
become law unto himself. The second
respondent
declines
to
comply
the
directions of the State Government, the
orders passed by the trial court, High Court,
as well as, the Supreme Court. Failing to
obtain the property in dispute in legal
proceedings, the second respondent has
now resorted to invoke U.P. Goondas Act
against the petitioner misusing the forum of
criminal administration. The facts, noted
herein above, in no uncertain terms,
justifies
the
conduct
of
the
second
respondent. The second respondent has
exposed himself to civil and criminal
consequences.

18. In the circumstance, we are
constrained to quash the impugned notice
dated 11 April 2019, issued by the
District Magistrate, Gorakhpur. A cost
assessed at Rs. 5 lacs is imposed upon the
second respondent, District Magistrate,
Gorakhpur, to be deposited with the High
Court Legal Services Committee within
10 weeks from date. The first respondent
Principal Secretary (Home Department),
Government
of
U.P.,
Lucknow,
is
directed to get the matter inquired and
initiate disciplinary enquiry against the
then
delinquent
District
Magistrate,
Gorakhpur.

19. The writ petition is allowed.
----------
(2022) 11 ILRA 1000
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 8561 of 2022

Santosh Malviya & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ramesh Kumar Tiwari, Aditi Pandey

Counsel for the Respondents:
A.S.G.I., Sri Ankur Goyal, Sri Gaurav
Mahajan

Civil Law - Constitution of India,1950 -
Article 15, 16, 16(1), 16(4), 32, 226, 227,
323(a), 323(b) & 335 - Administrative
Tribunal Act, 1985 - Sections 14 & 15 -
Writ Petition - Challenging Office Memorandum
issued by Central Govt. declaring ultra vires - it
is settled law that Central Administrative
Tribunal has absolute power to hear the cases of
Central Govt. Employee including quashing of
office memorandum, rules and regulations or
declare ultra vires - accordingly writ Petition is
not maintainable - dismissed. (Para - 11, 12)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

1. L. Chandra Kumar Vs U.O.I., 1997 (0)
SU.P.reme(SC) 516,

2. All India Equality Forum & ors. Vs U.O.I. &
ors. (2018 DLT 636(DB),

3. S.P. Sampath Kumar Etc Vs U.O.I. & ors.,
1987 AIR 386

(Delivered by Hon'ble Neeraj Tiwari, J.)
11 All. Santosh Malviya & Ors. Vs. Union of India & Ors.
1001

1. Heard learned counsel for the
petitioners, Sri Ankur Goyal, learned
counsel for the respondent no.1 and Sri
Gaurav Mahajan, learned counsel for the
respondent nos. 2 and 3.

2. Earlier on 30.6.2022, learned
counsel for the respondent no.1 has raised
preliminary
objection
qua
the
maintainability of the writ petition and
Court has passed the following order:-

"Heard learned counsel for the
petitioner and Shri Gyan Prakash, learned
A.S.G.I. assisted by Shri Ankur Goel,
learned counsel for respondent no.1 as well
as Shri Gaurav Mahajan, learned counsel
for respondent no.2 and 3.

By means of present writ petition,
the petitioners are challenging para 7
Clause iii and iv of OM no.20011/2/2019Estt. (D) dated 13.08.2021 issued by
respondent no.1 and instruction dated
26.10.2021 issued by respondent no.2.
Further prayer has been made to command
the respondent no.1 to amend or modify the
OM dated 13.08.2021 in accordance with
law.

At the very outset, Shri Gyan
Prakash, learned A.S.G.I. has raised
preliminary
objection
qua
the
maintainability of the writ petition as the
relief is sought against Income Tax
Department and the remedy in respect of
grievance raised by the petitioner lies
before Central Administrative Tribunal.
Since such remedy has not been exhausted,
the writ petition filed directly before this
Court is not liable to be entertained in view
of the law laid down by the Apex Court in
the case of L. Chandra Kumar Vs. Union of
India & others, reported in AIR (1997) 3
SCC Page 261.

In the facts and circumstances of
the case, it would be appropriate, let a
proper response may be filed in the matter.

All the respondents are accorded
two weeks' time to file objection in the
matter. Rejoinder Affidavit, if any, may be
filed within a week thereafter.

Put up as fresh on 20.07.2022
before appropriate Court."

3. Today, learned counsel for the
petitioners has placed upon the judgment of
Delhi High Court in the case of All India
Equality Forum and others vs. Union of
India through Secretary and others reported
in 2018 DLT 636 (DB) and submitted that
present controversy is similar to the aforesaid
judgment of Delhi High Court, therefore, this
petition is maintainable.

4. Per contra, learned counsel for the
respondent no.1 submitted that in the
aforesaid
judgment
of
Delhi
Court,
petitioner went to Supreme Court and
Supreme Court has granted liberty to
petitioner to approach the High Court,
therefore, Delhi High Court entertain the
said petition. He next submitted that in
light of Section 14 of The Administrative
Tribunals Act, 1985 as well as law laid
down by the Apex Court in the case of L.
Chandra Kumar Vs. Union of India
reported in 1997 0 Supreme (SC) 516 &
S.P. Sampath Kumar Etc. vs. Union of
India & Others reported in 1987 AIR 386,
petitioners have efficacious remedy to file
original application before the Central
Appellate Tribunal (in short CAT). He
lastly submitted that CAT is having full
power to quash any office memorandum as
well as rules and regulations or declare
ultra vires, therefore, petition is not
maintainable and liable to be dismissed.
1002 INDIAN LAW REPORTS ALLAHABAD SERIES

5. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record as well as judgment relied by the
learned counsel for the parties. There is no
dispute on the point that petitioners are
Income Tax Inspectors and their services
was governed by Central Government.

6. I have perused the judgment of
Delhi Court in the case of All India
Equality Forum (supra) so relied by the
learned counsel for the petitioner. Relevant
paragraphs of the said judgment are quoted
below:-

"4 The issues raised in the writ
petition
throw
open
an
expansive
jurisprudential vista, and could invite a
comprehensive and detailed dissertation on
the entire law relating to reservation for
Scheduled Castes and Scheduled Tribes, in
the context of Articles 16(1), 16(4) and 335 of
the Constitution of India. This Court is,
however, proscribed from doing so by virtue
of an order of the Supreme Court, dated 11th
March 2010, passed in a batch of writ
petitions, including WP (C) 413/1997, which
is stated to have been filed by the present
petitioner. The operative portion of the said
order reads thus:

"Therefore,
we
permit
the
petitioners in these writ petitions to withdraw
these writ petitions with liberty to move the
High Court and in the event of writ petitions
are filed before the High Court the same may
be considered in the light of the observations
made by this Court in M. Nagaraj and others
vs. Union of India and another (supra). The
petitioners would be at liberty to seek
appropriate interim relief in the High Court."

30
Sinha,
learned
counsel
appearing for the respondent, fairly admitted
that the controversy, in the present case,
stood covered by the judgments of the
Supreme Court in M. Nagaraj (supra) and
B.K. Pavitra (supra). At the same time, he
contended, vociferously, that the writ petition
itself was not maintainable, as the petitioner
would be required, in the first instance to
approach
the
Central
Administrative
Tribunal (hereinafter referred to as "the
Tribunal") in view of the law laid down by
the Supreme Court L. Chandra Kumar v
U.O.I., (1997) 3 SCC 261.

31. Needless to say, the said
objection of Mr.Sinha cannot merit any
consideration in the present case, as the
petitioner has moved this Court pursuant
to the specific liberty, granted by the
Supreme Court in this behalf, vide its
order dated 11th March, 2010, already
referred to hereinabove. In view of the
said liberty, it is not open to this Court to
travel behind the said judgment and enter
into
any
discussion
regarding
maintainability of the petition. The brief of
this Court this, neatly and squarely, to
adjudicate on whether, or not, the
impugned OM, dated 13th August 1997
could sustain, in the wake of the law as
enunciated in M. Nagaraj (supra).

32. The objection of Mr Sinha is,
therefore, overruled."

7. From perusal of the same, it is
apparently clear that Hon'ble Delhi High
Court entertained the writ petition on the
ground that Hon'ble Supreme Court has
given liberty to petitioner to approach the
High Court.

8. I have perused the Section 14 of
Act,
1985,
which
empowers
the
jurisdiction, powers and authority of the
CAT. From perusal of the same, it is clear
that Tribunal has absolute power to hear the
other
cases
of
Central
Government
Employee
after
due
notification
of
Government of India.
11 All. Santosh Malviya & Ors. Vs. Union of India & Ors.
1003

9. The Apex Court in the matter of
S.P.
Sampath
Kumar
(Supra),
has
considered the power of Administrative
Tribunal and held that Tribunal is the
substitute of the High Court and is entitled
to
exercise
the
powers.
Relevant
paragraphs of the said judgement are
quoted below:-

"What, however, has to be kept in
view is that the Tribu- nal should be a real
substitute of the High Court--not only in
form and de jure but in content and de
facto. As was pointed out in Minerva's
Mills, the alternative arrangement has to
be effective and efficient as also capable of
uphold- ing the constitutional limitations.
Article 16 of the Con- stitution guarantees
equality of opportunity in matters of public
employment. Article 15 bars discrimination
on grounds of religion, race, caste, sex or
place of birth. The touch- stone of equality
enshrined in Article 14 is the greatest of
guarantees for the citizen. Centering
around these articles in the Constitution a
service jurisprudence has already grown in
this country. Under Sections 14 and 15 of
the Act all the powers of the Courts except
those of this Court in regard to matters
specified therein vest in the Tribunal--
either Central or State. Thus the Tribunal
is the substitute of the 'High Court and is
entitled to exercise the powers thereof.

The High Courts have been
functioning over a century and a quarter
and
until
the
Federal
Court
was
established under the Government of India
Act, 1935, used to be the highest courts
within their respective jurisdiction subject
to an appeal to the Privy Council in a
limited category of cases. In this long
period of about six scores of years, the
High Courts have played their role
effectively, efficiently as also satisfactorily.
The litigant in this country has seasoned
himself to look upto the High Court as the
unfailing protec- tor of his person, property
and honour. The institution has served its
purpose very well and the common man has
thus come to repose great confidence
therein. Disciplined, inde- pendent and
trained Judges well-versed in law and
working with all openness in an unattached
and
objective
manner
have
ensured
dispensation of justice over the years.
Aggrieved people approach the Court the
social mechanism to act as the arbiter--not
under legal obligation but under the belief
and faith that justice shall be done to them
and the State's authorities would implement
the decision of the Court. It is, therefore, of
paramount importance that the substitute
institution--the Tribunal--must be a worthy
successor of the High Court in all respects.
That is exactly what this Court intended to
convey when it spoke of an alternative
mechanism in Minerva Mills' case."

10. I have also perused the judgment
of Apex Court in the case of L. Chandra
Kumar (Supra) and Court has held that
CAT has ample power to entertain the
original application upon any ground
including ultra vires. Relevant paragraphs
of the said judgement are quoted below:-

"70. We may first address the
issue of exclusion of the power of judicial
review of the High Courts. We have
already held that in respect of the power of
judicial review, the jurisdiction of the High
Courts under Article 226/227 cannot
wholly be excluded. It has been contended
before us that the Tribunals should not be
allowed to adjudicate upon matters where
the vires of legislations is questioned, and
that they should restrict themselves to
handling matters where constitutional
issues are not raised. We cannot bring
ourselves to agree to this proposition as
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
that may result in splitting up proceedings
and may cause avoidable delay. If such a
view were to be adopted, it would be open
for litigants to raise constitutional issues,
many of which may be quite frivolous, to
directly approach the High Courts and thus
subvert the jurisdiction of the Tribunals.
Moreover, even in these special branches
of law, some areas do involve the
consideration of constitutional questions on
a regular basis; for instance, in service law
matters, a large majority of cases involve
an interpretation of Articles 14, 15 and 16
of the Constitution. To hold that the
Tribunals have no power to handle matters
involving constitutional issues would not
serve the purpose for which they were
constituted. On the other hand, to hold that
all such decisions will be subject to the
jurisdiction of the High Courts under
Articles 226/227 of the Constitution before
a Division Bench of the High Court within
whose territorial jurisdiction the Tribunal
concerned falls will serve two purposes.
While saving the power of judicial review
of legislative action vested in the High
Courts under Article 226/227 of the
Constitution, it will ensure that frivolous
claims are filtered out through the process
of adjudication in the Tribunal. The High
Court will also have the benefit of a
reasoned decision on merits which will be
of use to it in finally deciding the matter.

73 Before moving on to other
aspects,
we
may
summarise
our
conclusions on the jurisdictional powers of
these
Tribunals.
The
Tribunals
are
competent to hear matters where the vires
of statutory provisions are questioned.
However, in discharging this duty, they
cannot act as substitutes for the High
Courts and the Supreme Court which have,
under our constitutional setup, been
specifically
entrusted
with
such
an
obligation. Their function in this respect is
only supplementary and all such decisions
of the Tribunals will be subject to scrutiny
before a Division Bench of the respective
High
Courts.
The
Tribunals
will
consequently also have the power to test
the vires of subordinate legislations and
rules. However, this power of the Tribunals
will be subject to one important exception.
The Tribunals shall not entertain any
question regarding the vires of their parent
statutes following the settled principle that
a Tribunal which is a creature of an Act
cannot declare that very Act to be
unconstitutional. In such cases alone, the
concerned High Court may be approached
directly. All other decisions of these
Tribunals, rendered in cases that they are
specifically empowered to adjudicate upon
by virtue of their parent statutes, will also
be subject to scrutiny before a Division
Bench of their respective High Courts. We
may add that the Tribunals will, however,
continue to act as the only courts of first
instance in respect of the areas of law for
which they have been constituted. By this,
we mean that it will not be open for
litigants to directly approach the High
Courts even in cases where they question
the vires of statutory legislations (except,
as mentioned, where the legislation which
creates
the
particular
Tribunal
is
challenged) by overlooking the jurisdiction
of the concerned Tribunal.

79. 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
11 All. Nand Lal Vs. State of U.P. & Ors.
1005
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."

11. Therefore, in light of Section 14
of Act, 1985 as well as law laid down by
the Apex Court, there is no dispute on the
point that CAT is having absolute power to
hear the other cases of Central Government
Employee including quashing of office
memorandum, rules and regulations or
declare ultra vires.

12. Accordingly, the writ petition is
not maintainable and dismissed on the
ground of alternative remedy. However,
petitioner is at liberty to approach the
Central Administrative Tribunal, if so
desired.
----------
(2022) 11 ILRA 1005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ-A No. 12070 of 2022
Along with
Other Connected Cases

Nand Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Yadav

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 226 & 309 - U.P. St. Aided
Education
Institution
Employees
Contributory Provident Fund Insurance
Pension Rules, 1964 (Applicable Rules) -
Rules 2, 3, 4, 5 (g), 17, 19(a), 19(b), 21 &
34 - U.P. Secondary Education Services
Selection Board Act, 1982 - Section 33-G, -
U.P.
Retirement
Benefit
Rules,
1961
(Government Employees Rules) - Rule 2, 3
& 5(g) - Writ of Mandamus - Vacancies arose -
appointment through selection by Committee of
Management on ad-hoc - financial approval
granted by DIOS - Services of petitioners were
regularized - SU.P.erannuation - claim of retiral
dues including pension - Rejected - hence, writ
petition - court finds that, all the petitioners
were teachers working at St.-aided educational
institutions and not St.-owned institutions -
since Rules of 1964 applicable would be
applicable U.P.on the petitioners, not the Govt.
Employees Rules therefore, they are not,
'Officers' of St. Govt. - Policy St.ment contained
in G.O. was not the law - Moreover, modification