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1993 Supreme(Gau) 144
GAUHATI HIGH COURT
U.L.Bhat, R.K.Manisana Singh, D.N.Baruah, JJ.
Sudhan Chandra Gogoi -Appellant
Versus
Lakhyahira Das -Respondent
Civil Revision No. 293 of 1987
Decided On : 14-06-1993
M.Bhuyan, D.Das , B.K.Das, Y.K.Phukan, N.Ahmed
The civil court has no jurisdiction to entertain a suit in relation to matters which come within the purview of the Assam Administrative Tribunal, as there is an express bar of jurisdiction in section 9 (2) of the Assam Administrative Tribunal Act, 1977, and the statutory remedy provided by way of an appeal to the Tribunal is adequate, effective, and sufficient.
Headnote:
JURISDICTION - CIVIL COURT - BAR OF JURISDICTION - ASSAM ADMINISTRATIVE TRIBUNAL ACT, 1977 - SECTION 9 (2) - EXPRESS BAR OF JURISDICTION - ADEQUACY OF STATUTORY REMEDY - EXCEPTIONS TO THE BAR - CONDITIONS OF SERVICE - DEFINITION - SECTION 2 (E) - SCOPE - PRAYER FOR SETTING ASIDE SELECT LIST - NON-COMPLIANCE WITH FUNDAMENTAL PROVISION OF STATUTE - JURISDICTION OF CIVIL COURT.
Fact of the Case:
Plaintiff, an Assistant Teacher, was allowed to remain in charge of the post of Head Mistress temporarily. Fifth defendant, also an Assistant Teacher, claimed to be senior to the plaintiff and was allowed to remain in charge of the school temporarily. Plaintiff filed an appeal before the Assam Administrative Tribunal (AAT) but later withdrew it and filed a suit in the civil court seeking cancellation of the temporary Head Mistresship of the plaintiff and appointment of the fifth defendant as temporary Head Master, striking down the selection list of the fifth defendant for the post of Head Master, and a declaration that the plaintiff is the senior most teacher and temporary Head Mistress, entitled for selection and appointment as the permanent Head Mistress of the school.
Finding of the Court:
The court held that the civil court has no jurisdiction to entertain the suit in regard to prayers (a) and (c) of the plaint, which relate to the cancellation of the temporary Head Mistresship of the plaintiff and appointment of the fifth defendant as temporary Head Master, and the declaration that the plaintiff is the senior most teacher and temporary Head Mistress, entitled for selection and appointment as the permanent Head Mistress of the school. However, the court held that the civil court has jurisdiction to examine the prayer (b) claimed in the plaint, which seeks to set aside the select list prepared by the Sub-divisional Selection Committee, as the allegation that the Sub-divisional Selection Committee was not constituted by the Director of Elementary Education, as required by the statute, goes to the root of the proceedings of selection and, if upheld, would render the selection and consequent appointment of the fifth defendant a nullity.
Issues: 1. Whether the civil court has jurisdiction to entertain the suit in regard to prayers (a) and (c) of the plaint, which relate to the cancellation of the temporary Head Mistresship of the plaintiff and appointment of the fifth defendant as temporary Head Master, and the declaration that the plaintiff is the senior most teacher and temporary Head Mistress, entitled for selection and appointment as the permanent Head Mistress of the school? 2. Whether the civil court has jurisdiction to examine the prayer (b) claimed in the plaint, which seeks to set aside the select list prepared by the Sub-divisional Selection Committee?
Ratio Decidendi: 1. The court held that the civil court has no jurisdiction to entertain the suit in regard to prayers (a) and (c) of the plaint because: a) Section 9 (2) of the Assam Administrative Tribunal Act, 1977 contains an express bar of jurisdiction of the civil court in relation to matters which come within the purview of the Tribunal. b) The statutory remedy provided by way of an appeal to the Tribunal is adequate, effective, and sufficient. c) The matters relating to seniority and promotion fall within the definition of "conditions of service" in section 2 (e) of the Act and, therefore, come within the jurisdiction of the Tribunal. 2. The court held that the civil court has jurisdiction to examine the prayer (b) claimed in the plaint because: a) The allegation that the Sub-divisional Selection Committee was not constituted by the Director of Elementary Education, as required by the statute, goes to the root of the proceedings of selection. b) If the allegation is upheld, it would render the selection and consequent appointment of the fifth defendant a nullity. c) This falls within one of the judicially recognized exceptions to the bar of jurisdiction of the civil court.
Final Decision: The court set aside the impugned order of the lower court and held that the jurisdiction of the civil court is barred only in regard to prayers (a) and (c) of the plaint and jurisdiction is not barred in regard to prayer (b) claimed in the plaint. The preliminary issues were answered accordingly and the lower court was directed to try the suit in regard to matters within its jurisdiction.
This revision petition under section 115 of the Code of Civil Procedure, 1908 has been referred to Full Bench on account of the importance of the question involved in the case. The revision has been filed against the finding of the Assistant District Judge. Lakhimpur, North Lakhimpur, on the preliminary issue raised in Title Suit No.26 of 1985. In answering the preliminary issue regarding the jurisdiction of Court, the learned Judge held that the civil Court has jurisdiction to try the suit and the suit is maintainable in its present form. The fifth defendant has filed the revision against the preliminary finding.
2. Plaintiff and the defendant have been working as Assistant Teachers in Mingmang Uriamguri Tribal Middle English School. On the post of the Headmaster becoming vacant on resignation of the incumbent, fourth defendant, Deputy Inspector of Schools, Dhemaji, by order dated 20.6 84 allowed the plaintiff to remain in charge of Headmistress on a temporary basis. Fifth defendant, who claimed to be senior to the plaintiff as Assistant Teacher submitted a representation before the fourth defendant putting forward his claim. By order dated 9.8.84, fourth defendant cancelled the earlier order and allowed fifth defendant to remain in charge of the school temporarily. Plaintiff, thereupon submitted a representation or appeal to the second defendant, Director of Elementary Education and the first defendant, State of Assam on 21.3.85. Since no action was taken for over six months, she filed an appeal before the Assam Administrative Tribunal under the provisions of the Assam Administrative Tribunal Act, 1977 (for short 'the Act'). Meanwhile steps were taken departmentally for making regular selection and appointment to the vacant post under the provisions of the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981. Fourth defendant submitted a list of eligible candidates for selection by the Sub-divisional Selection Committee which made the selection. The Committee selected the fifth defendant, but not the plaintiff. The select list dated 13.10.85 was duly published by the third defendant, the District Elementary Education Officer. Fifth defendant was duly appointed Headmaster of the school. Thereupon, plaintiff sought permission of the Assam Administrative Tribunal to withdraw the appeal. Permission was granted and on permission being granted, the appeal was withdrawn on 30.11.85. On 12.12.85, plaintiff filed Title Suit No.22 of 1985 in the Munsiff Court, Dhemaji, which was subsequently transferred to the file of the Assistant District Judge. Reliefs in the plaint are :
(a) Cancellation of the temporary Head Mistresship of the plaintiff and appointment of defendant No.5 as temporary Head Master as illegal and void;
(b) Strike down and set aside the list of the selection of defendant No. 5 for the post of Head Master, prepared by the Sub-divisional Selection Committee.
(c) Declare the plaintiff as senior most teacher and temporary Head Mistress, entitled for selection and appointment as the permanent Head Mistress of the school.
The claim of the plaintiff is based on the allegation that as Assistant Teacher, she is senior to the fifth defendant.
3. Fifth defendant filed written statement denying the claim of the plaintiff to be senior to him and contending that he is senior to her in the grade of Assistant Teacher. On this basis he justified the cancellation of the charge arrangement made in favour of the plaintiff and supported the charge arrangement made in his favour. He also sought to support the selection made by the Selection Committee and his appointment and denied all other allegations contained in the plaint regarding collusion, malafides etc.
4. Defendants 1 to 4 filed what is styled as preliminary written statement denying that there was any cause of action for the suit or that the suit was maintainable and contending that the civil Court has no jurisdiction to entertain and try the
