The Honourable Lieutenant Governor And ORS v. M. Chandrika And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/27/2024 IA No. CAN/1/2024 The Honourable Lieutenant Governor and Ors.

Vs M.Chandrika and Ors.

Mr.Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the Appellants Mr. Gopala Binnu Kumar ... for the respondents August 2, 2024 [SR] Item No.10 By consent of the parties the appeal and the connected application are taken up for hearing together. The judgment and order dated December 14, 2023, passed by a learned Judge of this Court in the respondent's writ petition being WPA/625/2023 is sought to be assailed by the Administration in this appeal.

The relevant facts are that the respondent herein was working in post B.Pharm(Tutor) under Administration. In May, 2000, by virtue of order No.1768 dated May 1, 2000, issued by the Administration, she was promoted to the Group-B Gazetted post of Chief Pharmacist in the pay scale of Rs.6500 -200-10500 on adhoc basis for a period of six months with immediate effect. It was clarified that the appointment in the promotional post was purely on adhoc basis till the post is filled up by regular appointment in consultation with Union Public Service Commission and upon obtaining its clearance.

A subsequent order dated February 14, 2001 was issued by the Administration extending the adhoc promotion of the respondent in the post of Chief Pharmacist till the clearance of the Union Public Service Commission was received.

Such clearance never came. The respondent retired on September 30, 2017, upon attaining age superannuation.

The respondent approached the learned Single Judge by way of the instant writ petition claiming retrospective confirmation in the promotional post of Chief Pharmacist and consequential benefits.

The learned Judge noted that the respondent herein being the writ petitioner has continuously discharged the duty of Chief Pharmacist from 2000 till 2017. There was no complaint regarding her service from any quarters. Her service must have been satisfactory since the adhoc extension of her appointment in the promotional post was never revoked. The learned Judge disposed of the writ petition with the following observations and directions: "A decision taken by the Administration and the UPSC in consultation with each other was much required.

Since this decision was not taken timely, I direct Andaman and Nicobar Administration to immediately consult the UPSC and concurrently direct UPSC to enter into consultation with Administration within four weeks of communication of this order so as to provide expost facto approval to the appointment of the petitioner within two months of communication of this order. If no clearance is obtained clearance shall be deemed have been made on expiry of two months.

This approval is mandatory because petitioner has rendered uninterrupted satisfactory service for 17 years before retirement on the adhoc appointment.

Mr. Gopala Binnu Kumar further submits that there has been a revision in the scale of pay in the posts of B.Pharm (Tutor) and Chief Pharmacist. In that view of the matter, the respondent no. 3 shall appoint the writ petitioner as Chief Pharmacist with effect from 1st May, 2000, effect revision of the scale of pay of the petitioner, make payment of the arrear salary on such revision, release pension and other retiral benefits payable to her within eight weeks of receiving clearance from UPSC."

Being aggrieved, the Administration has come up by way of this appeal.

We have heard learned counsel for the parties at length.

Mr. Chakraborty, learned advocate appearing for the appellants submitted that the respondent herein was receiving the same pay scale as was applicable to the Chief Pharmacist. Her pension has also been computed on that basis.

Learned counsel further argued that in view of section 14 of the Administrative Tribunals Act, 1985, read with the decision of the Hon'ble Supreme Court in the case of L.Chandra Kumar -vs- Union of India, (1997) 3 SCC 261, learned Single Judge should not have entertained the with petition and should have relegated the writ petitioner to the Central Administrative Tribunal.

Mr.

Gopala Binnu Kumar, learned advocate representing the respondent/writ petitioner says that unless her appointment in the promotional post of Chief Pharmacist is confirmed, the respondent will not be able to enjoy the benefit of future pay scale revision.

We see some logic in the respondent's contention. That is exactly what the learned Single Judge has directed. Hence we do not see any reason to interfere with the order impugned.

As noted above, learned advocate for the appellants argued that a Court which has no jurisdiction in law cannot be conferred with a jurisdiction by applying the principle of res judicata. There cannot be any estoppel on a pure question of jurisdiction or law. The question of jurisdiction is a pure question of law. In this connection the learned advocate relied on a decision of the Hon'ble Supreme Court in the case of Isabella Johnson (Smt.) vs. M. A. Susao (Dead) by Lrs reported in (1991) 1 SCC 494.

Learned advocate for the appellants also argued that the doctrine of res judicata belongs to the domain of procedure. It cannot be exalted to the status of a legislative direction between the parties so as to determine a question relating to interpretation enactment affecting jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. In this connection learned counsel relied on a decision of the Hon'ble Supreme Court in the case

of Mathura Prasad Bajoo Jaiswal and others vs. Dossibai N. B Jeejeebhoy reported in (1971) 1 SCC 613. We notice that the respondent herein had approached the Hon'ble Supreme Court with an application under Article 32 of the Constitution of India with the same grievance as has been ventilated in the present writ petition. By an order dated April 5, 2023, the Hon'ble Court, while dismissing that writ petition observed :

"However, if the petitioner so desires, she may approach the jurisdictional High Court. In which event, the Court will consider the grievance of the petitioner, in accordance with law"

In our considered view, we are not at all concerned with the principle of res judicata or the applicability thereof in the present fact scenario. As we read the order of the Hon'ble Supreme Court, the Hon'ble Court has granted liberty to the respondent herein to ventilate her grievance before the High Court and has been pleased to direct the High Court, if approached, to decide such grievance on merits, in accordance with law.

Therefore, in our view, we cannot say that in view of the decision in L. Chandra Kumar (supra) the learned single Judge should not have entertained the writ petition of the respondents herein. Further, in our view, neither the provisions of the Administrative Tribunal Act, 1985 nor the decision in L.

Chandra Kumar (supra) ousts jurisdiction of a single Judge of the High Court to entertain a writ petition in respect of a subject matter covered by the Administrative Tribunal Act, 1985. As we understand, the Hon'ble Supreme Court in L. Chandra Kumar (supra) directed the High Court not to act as a Court of first instance in matters coming with the purview of the 1985 Act. If in a particular case, the Hon'ble Supreme Court directs the High Court to act as a Court of first instance, in our opinion, the High Court cannot refuse to do so and relegate the writ petitioner to the Tribunal. Hence, we find no irregularity in the learned single Judge entertaining the present writ petition.

However we set aside the portion of the order which says that if no clearance is obtained from the Union Public Service Commission, the clearance shall be deemed to have

been made on expiry of two months. We direct the appellants and the Union Public Service Commission which is a party to this proceeding to comply with the order of the learned Single Judge as soon as possible but positively within six months from date.

The appeal and the connected application are disposed of accordingly.

( Arijit Banerjee J. ) ( Sugato Majumdar, J. )