Hon'ble Saurabh Lavania,J.
(As per Saurabh Lavania,J.) Heard Sri Gibran Akhtar Khan, learned counsel for the petitioner and Ms. Surangama Sharma, learned counsel for the respondent.
Brief facts of the case, as per the writ petition, are to the effect that an advertisement dated 08.10.2010 was issued for inviting the applications to the post of Architect on contract basis for two years on consolidated salary for Rae Bareilly project of the petitioner/Ircon International Limited, New Delhi. The respondent-Deepak Yadav was given appointment vide order dated 28.10.2010 on the post of Architect and his tenure was extended till 31.12.2018.
In the meantime, the respondent filed a Writ Petition No. 32978 (S/S) of 2018 before this Court. The same was dismissed by the order dated 14.11.2018, the same is quoted below:-
"Heard learned counsel for the petitioner and to Sri Shiv P. Shukla, learned Advocate on behalf of the respondents.
Learned counsel appearing on behalf of the respondents raised preliminary objection in regard to the maintainability of writ petition before this Court by making submission that IRCON International Ltd. has been notified under Section 14 of the Central Administrative Tribunals Act, therefore, the petitioner has remedy to approach the Central Administrative Tribunal in view of the judgment rendered in the case of L. Chandra Kumar v. Union of India and others; AIR 1997 SC 1125.
In view of the above, the writ petition is dismissed as not maintainable.
However, petitioner is at liberty to approach the Central Administrative Tribunal, Lucknow for redressal of his grievances."
In view of the aforesaid factual background, the respondent filed Original Application (in short "OA") No. 547 of 2008 [Deepak Yadav v. Union of India] before the Central Administrative Tribunal, Lucknow. The OA was filed for the following main reliefs:-
"(i) Issue a order or direction directing the respondents to regularize the service of the petitioner from date of its entitlement will all consequential benefit in the lights of his representation dated 3.8.2018 (Annexure No. 9) to this writ petition.
(ii) Issue a order or direction directing the respondents to provide the petitioner increased Annual Salary increment and dearness allowance as increased from time to time."
The OA was disposed of vide order dated 16.01.2019. The operative portion of the order dated 16.01.2019 is quoted below:-
"In view of the above, we feel that IRCON is a big organization which deals with several projects. In the interest of justice, if there are other ongoing projects or project to come in future and if the applicant applies for the same and if qualification of the applicant suits in those project, the respondents may take a decision as deem fit.
With the above observations, the O.A. stands disposed of. There shall be no order as to costs."
The order dated 16.01.2019 has been challenged by the petitioner before this Court and the sole ground pressed and argument raised by the learned counsel for the petitioner is to the effect that the petitioner has not been notified under Section 14 of the Central Administrative Tribunal Act, 1985 (in short "Act of 1985"). Hence, the OA filed by the applicant itself was not maintainable before the Central Administrative Tribunal and thus, the order dated 16.01.2019 is nullity being without jurisdiction. The prayer is to cause interference in the order impugned dated 16.01.2019.
Learned counsel for the respondent Ms. Surangama Sharma submitted before us that she does not dispute the fact that the petitioner/Ircon International Limited, New Delhi has not been notified under Section 14 of the Act of 1985.
She further submitted that in view of the order passed by this Court dated 14.11.2018, passed in writ petition No. 32978 (S/S) of 2018 filed by the respondent, which was dismissed by the order dated 14.11.2018 with the liberty to the respondent to approach the Central Administrative Tribunal, Lucknow, for redressal of his grievances, the OA was filed and in view of the same, the Tribunal rightly entertained the OA and thereafter, passed the order dated 16.01.2019, under challenge.
It is further submitted that in view of the order of this Court dated 14.11.2018, the plea of the petitioner based on Section 14 of the Act of 1985 is unjust and unsustainable keeping in view the controversy involved in the present case, which is arbitrary in nature and hit by Article 14 of the Constitution of India. The order passed in OA filed by the respondent before the Central Administrative Tribunal is not liable to be interfered on the ground of maintainability of OA. The prayer is to dismiss the writ petition.
We have heard the learned counsel for the parties and gone through the record.
In order to decide the controversy involved in the present case, it is appropriate to have a glance to the preamble of the Act of 1985 which reads as under:-
"An Act to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of [any corporation or society owned or controlled by the Government in pursuance of article 323A of the Constitution] and for matters connected therewith or incidental thereto."
Further, Section 14 of the Act of 1985, which falls under Chapter III of the Act of 1985, gives the jurisdiction, power and authority of the Central Administrative Tribunal, which reads as under:-
"CHAPTER III JURISDICTION, POWERS AND AUTHORITY OF TRIBUNALS
14. Jurisdiction, powers and authority of the Central Administrative Tribunal.--(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 3) in relation to--
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
(b) all service matters concerning--
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.
[Explanation.--For the removal of doubts, it is hereby declared that references to "Union" in this sub-section shall be construed as including references also to a Union territory.] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controlled by Government, not being a local or other authority or corporation [or society] controlled or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations [or societies].
(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation 1[or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court) in relation to--
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub-section (1)] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs."
From the bare reading of Section 14 particularly Section 14(2) of the Act of 1985, the position which emerges out is to the effect that in order to approach the Central Administrative Tribunal for redressal of grievances, the employer/institution, as provided in the said provision, in which the employee is working, shall be notified under Section 14 of the Act of 1985 and admittedly in the present case, there is no notification in regard to Ircon International Limited, New Delhi under Section 14 of the Act of 1985.
It is settled proposition of law that jurisdiction cannot be conferred upon an authority, which is not otherwise vested, even by consent. For the purpose of Court or Tribunal also, it has been repeatedly held that a jurisdiction cannot be conferred even by acquiescence or consent or by any Court.
As early as in 1951 in United Commercial Bank Limited versus Their Workmen AIR 1951 SC 230 Court held:
"No acquiescence or consent can give a jurisdiction to a court of limited jurisdiction which it does not possess."
In Kiran Singh versus Chaman Paswan AIR 1954 SC 340, Court said:
"A defect of jurisdiction ... strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.
The Apex Court also held that the judgment and decree passed by the Court having no jurisdiction is a nullity and is non-est."
In Benarsi Silk Palace Vs. Commr. of Income Tax [1964] 52 ITR 220 (All), this Court held:
"Jurisdiction could be conferred only by statute and not by consent and acquiescence. Since jurisdiction is conferred upon Income Tax Officer to proceed under Section 34 (1) only if he issues a notice an assessee cannot confer jurisdiction upon him by waiving the requirement of a notice because jurisdiction cannot be conferred by consent or acquiescence."
In Kali Das Wadhwani & Anr. Vs. Jagjiwan Das and another 1985 (2) ARC 533, this Court observed as under:
"It is well settled that a jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is. Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the Court, but these factors have no relevance where the Court lacks inherent jurisdiction which strikes at the very root or authority of the Court to pass any decree and renders the decree, if passed a nullity."
In Sardar Hasan Siddique Vs. State Transport Appellate Tribunal, AIR 1986 All. 132, a Division Bench of this Court observed:
"A Tribunal of limited jurisdiction cannot derive jurisdiction apart from the statute. No approval or consent can confer jurisdiction upon such a tribunal. No amount of acquiescence waiver or the like can confer jurisdiction of a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity."
In Karnal Improvement Trust Vs. Prakashwanti, (1995) 5 SCC 159, Court observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. Vs. Indure Pvt. Ltd., AIR 1996 SC 1373.
In S. Sethuraman Vs. R. Venkataraman and Ors. AIR 2007 SC 2499, Court observed that if jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner. The above authority has been referred to and relied on in AIR 2012 SC 1239 Collector, Distt. Gwalior and another Vs. Cine Exhibitors P. Ltd. and another.
In the case of Chiranjilal Shrilal Goenka v. Jasjit Singh and others reported in (1993) 2 SCC 507, the Hon'ble Apex Court has observed as under:-
"17. We agree with Mr Chidambaram that the applicant had consented to refer the dispute for arbitration of dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute. The other legatees in the will were not parties to it. In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] when a Constitution Bench directed the High Court Judge to try the offences under the Prevention of Corruption Act with which the petitioner therein was charged and the trial was being proceeded with, he questioned by way of writ petition the jurisdiction of this Court to give such a direction. A Bench of seven judges per majority construed the meaning of the word ''jurisdiction'. Mukharji, J. as he then was, speaking per himself, Oza and Natarajan, JJ. held that the power to create or enlarge jurisdiction is legislative in character. So also the power to confer a right of appeal or to take away a right of appeal. The Parliament alone can do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court and divest a person of his rights of appeal or revision. Ranganath Mishra, J. as he then was, held that jurisdiction comes solely from the law of the land and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. Oza, J. supplementing the question held that the jurisdiction to try a case could only be conferred by law enacted by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law. Ray, J. held that the Court cannot confer a jurisdiction on itself which is not provided in the law. In the dissenting opinion Venkatachaliah, J., as he then was, lay down that the expression jurisdiction or prior determination is a "verbal coat of many colours". In the case of a tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a ''legal shelter' and a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Thus this Court laid down as an authoritative proposition of law that the jurisdiction could be conferred by statute and this Court cannot confer jurisdiction or an authority on a tribunal. In that case this Court held that Constitution Bench has no power to give direction contrary to Criminal Law Amendment Act, 1952. The direction per majority was held to be void.
18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh v. Muni Subrat Dass [(1969) 2 SCR 432] an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal [(1969) 1 SCC 59 : AIR 1970 SC 838] . In Ferozi Lal Jain v. Man Mal [(1970) 3 SCC 181 : AIR 1970 SC 794] a compromise dehors grounds for eviction was arrived at between the parties under Section 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. [(1990) 1 SCC 193 : JT 1989 (Suppl) SC 329] the civil court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (11 of 1973). It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune [AIR 1990 Bom 45 : (1989) 3 Bom CR 535] a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned under Section 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is non est. In Ghellabhai case [ILR 21 Bom 336] Sir C. Farran, Kt., C.J. of Bombay High Court held that the probate court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction."
Keeping in view the facts of the case stated hereinabove and the settled legal proposition on the issue of conferring a jurisdiction as well as Section 14 of the Act of 1985, we are of the view that the direction given by this Court vide order dated 14.11.2018, in the writ petition No. 32978 (S/S) of 2018, in absence of notification under Section 14(2) of the Act of 1985, would not confer a jurisdiction on Central Administrative Tribunal constituted under the Act of 1985, to adjudicate the claim of the respondent against the petitioner and being so, the impugned order dated 16.01.2019 being without jurisdiction is nullity.
For the foregoing reasons, the writ petition is allowed. The impugned order 16.01.2019 is hereby set-aside/quashed.
However, looking to the peculiar facts and circumstances of the case, we provide that if the respondent-Deepak Yadav, if so advised and files a writ petition before this Court for redressal of his grievances then in that case, delay and latches would not come into his way.
The liberty is also given to the petitioner to raise objection, if any, on the issue of maintainability of the writ petition except on the ground of delay and latches.
[Saurabh Lavania,J.] [Anil Kumar,J.] Order Date :- 30.7.2019 Arun/-