CRP 134/2016. Gauhati High Court

Case NumberCRP 134/2016
Judgement DateFebruary 27, 2021
CourtGauhati High Court

I N THE GAUHATI HI GH COURT

( THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)

C.R.P. NO. 134/ 2016

Ashutosh Kundu

-Vs-

Laksheswar Talukdar & 6 others

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,

BEFORE

HON’BLE MR. JUSTI CE KALYAN RAI SURANA

Date of hearing : 02-02-2017 & 22-2-2017

Date of Judgment : 27-02-2017

JUDGMENT & ORDER( CAV)

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 I ndia, the petitioner has challenged the order dated 9.3.16 passed by the learned Munsiff

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….. Petitioner

…. Respondents

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. I t 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 I n-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 I n-Charge Principal of B.R. Medhi Govt. Law College, Guwahati. The Respondent No.1, after issuing notice under

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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. I t 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 VI I Rule 11(d) read with section 151 CPC had prayed for rejection of plaint on the ground that the intention behind the establishing of the Assam Administrative Tribunal under the Assam Administrative & Pension Tribunal Act, 1977 (for short, ‘1977 Act’) was to create separate judicial appellate Forum for service matters and simultaneously to bar jurisdiction of civil courts in such matters. I t was further urged that as per section 6 & 9 of the 1977 Act shall have the powers of

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civil courts as well as finality of decision and bar of suit, powers of review and for transfer of pending proceeding, and, as such, it was submitted that in such matters, the Assam Administrative Tribunal only has the jurisdiction to try and decide the case of the plaintiff.

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