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2017 Supreme(Gau) 177
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Ashutosh Kundu - Petitioner
Vs
Laksheswar Talukdar & others - Respondents
C.R.P. NO.134 OF 2016
Decided on : 27-02-2017
Advocate Appeared:
For the Petitioner: Mr. B. Bannerjee, Sr. Adv. Mr. RKD Choudhury, Mrs. L. Devi, Mr. J. Laskar, Advs.
For the Respondent: Mr. L. Talukdar, Adv. Ms. J. Dutta, Ms. R. Choudhury, advs
Headnote:
Constitution of India,1950 - Article 227 - Code of Civil Procedure,1908 - Section 80 and 151 - Order VII and 14 - Rule 11(d) and 2 - Assam Administrative & Pension Tribunal Act, 1977 -Section 2 (b) , 2(c) , 6 and 9 (2) - Whole-Time lecturer - Order of termination - Steps for regularization of service - Claim for seniority - Challenged - Respondent No.1 in plaint of TS No. in short for purpose of this present application is that at relevant time when suit was filed respondent No.1 was working as Whole-Time lecturer Law College - Apprehending his termination from service, respondent No.1 approached this court by filing writ petition which was registered and numbered as Civil Rule No - This court by an order dated directed State Respondents therein to take steps for regularization of the service of the respondent No.1 and to complete process within one month from date of receipt of certified copy or order - Petitioner was also deprived from holding charge as the In-charge Headmaster by appointing respondent No.1 to the said post - However, pursuant to order dated passed by this court in the said Cont. Case (C) service of the respondent No.1 was regularized and he was also allowed to hold charge as In-Charge Principal of B.R. Medhi Govt. Law College - Respondent No.1, after issuing notice under section 80 of Code of Civil Procedure, instituted the present suit – Held, it is seen that the matter in issue in the application for rejection of plaint was that in view of the provisions of section 6 & 9 of the 1977 Act, only Administrative Tribunal have jurisdiction to try and decide the matter pleaded by plaintiff and application Order 14 Rule 2 CPC, said petition is based on the ground that the suit is not maintainable as the subject matter would fall within jurisdiction of Assam Administrative Tribunal - Provision states, inter alia that no civil court shall entertain any suit with respect to any of the matters relating to any condition of service which fall within the jurisdiction of the Tribunal with respect to any matter when an appeal could have been preferred under the Act - Therefore, in relation to matters which come within the purview of the Tribunal, there is an express and absolute bar on the jurisdiction of civil court - Language used in the provision is wide and encompasses all kinds of suits in regard to matter which attract the jurisdiction of the Tribunal - Petitioner having elected not to participate in the hearing in the matter relating to rejection of plaint, again in subsequent stage of the suit cannot be permitted to raise same issue by filing an application under Order 14 Rule 2 of CP - This Court finds that the subject matter raised in subsequent petition filed by present petitioner was a matter which was directly and subsequently in issue in previous petition in same proceeding arising in petition for rejection of plaint filed by defendants No.2, 3, 6 & 7 under Order 7 Rule 11(d) of CPC - Therefore, revision petition is dismissed
1. Heard Mr. B. Banerjee, learned Senior Counsel assisted by Mr. J. Laskar, learned counsel for the petitioner, Mr. Laksheswar Talukdar, respondent No.1-in-person, Ms. J. Dutta, learned State Counsel appearing for the respondent No.2 and Mrs. R. Choudhury, learned counsel for the respondents No. 3, 4 and 7, none appears on call for the remaining respondents.
2. By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 9.3.16 passed by the learned Munsiff No.1, Kamrup(M), Guwahati in Title Suit No.487/2012, rejecting the prayer of the petitioner to frame the following preliminary issue:
“Whether the instant suit is maintainable in view of the expressed bar/ jurisdiction of civil court to any of the matters relating to any condition of service which falls within the jurisdiction of the Assam Administrative Tribunal as contemplated u/s 9 (2) of the Assam Administrative & Pension Tribunal Act, 1977?”
3. The case of the respondent No.1 in the plaint of TS No. 487/12 in short for the purpose of this present application is that at the relevant time when the suit was filed, the respondent No.1 was working as the Whole-Time lecturer in B.R. Medhi Law College, Guwahati since 10.10.1987. Apprehending his termination from service, the respondent No.1 approached this court by filing writ petition, which was registered and numbered as Civil Rule No. 885/98. This court by an order dated 27.06.2006 directed the State Respondents therein to take steps for regularization of the service of the respondent No.1 and to complete the process within one month from the date of receipt of certified copy or the order. When no steps was taken by the State Respondents, the petitioner filed a contempt petition, which was registered and numbered as Cont. Case (C) No. 288/07. It is projected for more than 12 (twelve) years, the said college was being run with the petitioner being the sole Whole-Time Lecturer, but by depriving the petitioner of his rightful benefits in terms of the direction issued by this Court, the State Respondents had appointed the petitioner herein as the Whole Time Lecturer. The petitioner was also deprived from holding charge as the In-charge Headmaster by appointing the respondent No.1 to the said post. However, pursuant to order dated 06.04.2011 passed by this court in the said Cont. Case (C) No. 288/07, the service of the respondent No.1 was regularized and he was also allowed to hold charge as the In-Charge Principal of B.R. Medhi Govt. Law College, Guwahati. The Respondent No.1, after issuing notice under section 80 of the Code of Civil Procedure, instituted the present suit, with the prayer for a decree:-
“(a) Of declaration that the plaintiff’s right to take over the charge of the Principal, BRM Govt. Law College, Guwahati on 28.2.2011 could not have legally been curtailed by the defendants by duly complying with the Hon’ble High Court’s judgment dt 27-06-06 in Civil Rule No.885/98.
(a) Declaring that claim for seniority of defendant No.4 over the plaintiff is illegal and that appointment order of defendant No.4 vide Notification No.AHE.111/2004/Pt-II/70 dt. 27-01-10 is illegal, void ab-initio and liable to be cancelled.
(b) Decree of cancellation of said Govt. Notification No.AHE.111/2004/Pt-II/70 dt. 27-01-10 (Plaintiff’s Doc. No. 7) as being illegal and void ab-initio.
(c) Of mandatory injunction against the defendants No. 1 & 2 to wipe off from their official record all documents illegally favouring undue relaxation of age of defendant No.4 in violation of the extant rules/notifications etc.
(d) For all costs of the suit and
(e) For any other relief /reliefs to which the plaintiff is entitled under the law and equity.”
4. The present petitioner is the defendant No.4 in the aforesaid TS No.487/12. It would be pertinent to state that on 29.5.13, the defendants No. 2,3,6 & 7 in the suit by filing an application bearing Petition No.5487 under Order VII Rule 11(d) rea
