1978 (1) TMI 174 - HC - Indian Laws

Court clarifies civil suit not a remedy under Article 226(3), orders quota system for Assistant Workshop Superintendents

The court held that the availability of a civil suit does not constitute 'any other remedy' under Article 226(3) of the Constitution, allowing the writ ... Scope of Article 226(3) proviso - alternative remedy by suit vis-a -vis writ jurisdiction - collateral attack versus direct remedy - construction of recruitment rules and application of quota/rotation for promotions - seniority consequent on quota/rotation in promotional postsScope of Article 226(3) proviso - alternative remedy by suit vis-a -vis writ jurisdiction - collateral attack versus direct remedy - Whether the availability of a suit is 'any other remedy' within clause (3) of Article 226 and therefore bars entertaining a writ petition under Article 226. - HELD THAT: - Clause (3) of Article 226 was inserted to direct petitioners to statutory remedies of appeal and revision before approaching the High Court, replacing judicial self-restraint with a statutory limitation directed at statutory (vertical) remedies. A suit is ordinarily a collateral remedy when it attacks an administrative or quasi-judicial decision; it decides merits when used as an ordinary remedy between private parties but, insofar as it attacks administrative action, it goes only to validity and often permits fuller evidence. If clause (3) were read to include suits, sub clauses (b) and (c) of Article 226(1) (which provide specific modes of relief) would be rendered redundant because collateral suits would always permit the same remedies; a proviso cannot be construed to swallow up the principle to which it is a proviso. The legislative purpose, as explained in parliamentary material, was to divert litigants to statutory appeal/revision remedies, not to bar writs wherever a collateral suit could be filed. Accordingly, the words 'any other remedy' in clause (3) must be confined to statutory remedies provided by the statute under which the impugned order is made, and do not include the remedy of a suit attacking administrative action. [Paras 4, 6, 7, 8, 9]The preliminary objection fails; a suit is not 'any other remedy' within clause (3) of Article 226 so as to bar the writ petition.Construction of recruitment rules and application of quota/rotation for promotions - seniority consequent on quota/rotation in promotional posts - Whether the quota system and rotation of vacancies under the Recruitment Rules, 1968 applied separately to the posts of Assistant Workshop Superintendent (AWS) or across the aggregate group of three posts, and the consequential seniority of the petitioner vis-a -vis respondents 3 and 4. - HELD THAT: - The Recruitment Rules, 1968 grouped three posts under a common serial number but gave each a sub number and separately recorded vacancies; separate seniority lists for Assistant Workshop Superintendents existed, indicating intent to keep AWS seniority distinct. The promotion column expressly required promotion from persons with three years' standing 'in the appropriate subject,' and Departmental Promotion Committee records repeatedly interpreted this to confine AWS promotions to persons with suitable mechanical engineering qualifications; successive departmental proceedings treated AWS seniority as separate and recommended amendment to the rules, later effected in 1971. Ad hoc appointments made for temporary needs do not prejudice claims to regular seniority and are not normally reckoned for seniority. Applying the quota/rotation to the AWS posts separately and excluding Shri H. S. Tayal (appointed prior to the 1968 Rules) from the sequence, the first vacancy after the 1968 Rules went to respondent No. 3 as direct recruit, the second to a promotee (the petitioner), and the third to respondent No. 4 as direct recruit. Consequently the petitioner is senior to respondent No. 4 but junior to respondent No. 3. [Paras 8, 9, 10, 11, 12]The quota and rotation are to be applied to the posts of Assistant Workshop Superintendents separately; the seniority list must be corrected to place the petitioner immediately below Shri R. K. Bhatnagar (respondent No. 3) and immediately above Shri H. P. Goel (respondent No. 4).Final Conclusion: The High Court overruled the preliminary contention that a suit is an 'other remedy' under Article 226(3) and on the merits directed correction of the Assistant Workshop Superintendents' seniority list so that the petitioner ranks immediately below respondent No. 3 and above respondent No. 4; transfer orders were left open for reconsideration by the administration in the light of the corrected seniority. Issues Involved:1. Whether the availability of a suit in a civil court is 'any other remedy' under Article 226(3) of the Constitution and if it bars the entertainment of a writ petition.2. Interpretation of the Recruitment Rules of 1968 concerning the quota system and rotation of vacancies for the post of Assistant Workshop Superintendent.3. Validity of the petitioner's appointment as a Foreman.4. Seniority of the petitioner relative to respondents 3 and 4.Issue-wise Detailed Analysis:1. Availability of a Suit as 'Any Other Remedy' under Article 226(3):The court examined whether the availability of a civil suit constitutes 'any other remedy' within the meaning of Article 226(3) and whether it bars the writ petition. The court noted that prior to the insertion of clause (3) by the Constitution 42nd Amendment Act, 1976, Article 226 did not impose any restriction on entertaining writ petitions. The jurisdiction to issue writs was discretionary, and courts usually declined to entertain a writ petition if an alternative statutory remedy was available. The court emphasized that the Constitution intended to provide expeditious relief from superior courts against the State, which could not be achieved through protracted litigation in subordinate courts. The court concluded that 'any other remedy' in clause (3) refers to statutory remedies, not civil suits. Therefore, the preliminary objection to the maintainability of the writ petition failed.2. Interpretation of Recruitment Rules of 1968:The court analyzed whether the quota system and rotation of vacancies should be applied to the totality of posts or separately to the posts of Assistant Workshop Superintendents. The court found that separate seniority lists for different posts, including Assistant Workshop Superintendents, indicated that seniority was intended to be kept separate. The court noted that the Departmental Promotion Committee and the Recruitment Rules emphasized qualifications in the appropriate subject (Mechanical Engineering) for the post of Assistant Workshop Superintendent. The court concluded that the quota system and rotation of vacancies should be applied separately to the posts of Assistant Workshop Superintendents.3. Validity of the Petitioner's Appointment as a Foreman:The respondents argued that the petitioner was not validly appointed as a Foreman and, therefore, not entitled to promotion. The court dismissed this objection as being too late, noting that even if the respondents had filed a writ petition to challenge the appointment, it would have been dismissed as unduly delayed. The court held that it was not permissible to question the validity of the petitioner's appointment as a Foreman ten years after the fact.4. Seniority of the Petitioner Relative to Respondents 3 and 4:The court examined the petitioner's claim that he was senior to respondents 3 and 4 under the quota system. The court found that the first vacancy after the 1968 Rules should go to respondent No. 3 (a direct recruit), the second vacancy to the petitioner (a promotee), and the third vacancy to respondent No. 4 (a direct recruit). Consequently, the petitioner was entitled to rank in seniority above respondent No. 4 but not respondent No. 3. The court directed that the seniority list be corrected accordingly.Conclusion:The writ petition succeeded. The court directed that the seniority list of Assistant Workshop Superintendents be corrected to show the petitioner immediately below respondent No. 3 and above respondent No. 4. The court also noted that respondents 1 and 2 should reconsider the petitioner's transfer orders in light of the revised seniority. There was no order as to costs.