Bhaskar Bhattacharya, A.C.J.
1. This writ application under Article 226/ 227 of the Constitution of India is at the instance of a respondent in an application under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the Act) and is directed against order dated August 30, 2006 passed by the Central Administrative Tribunal, Kolkata Bench, thereby allowing an application for amendment of the original application under Section 19 of the Act.
2. The facts giving rise to filing of the present writ-application may be summed up thus:
a) The respondent No. 1, a member of West Bengal Civil Service (Executive) filed an application under Section 19 of the Act before the Central Administrative Tribunal, Kolkata Bench, thereby praying for the following relief:
1) A direction upon the respondent authorities to review the selection process de novo for filling up the promotional vacancies in IAS for the year 2003 and 2004 upon the determination of inter se seniority of the officers in WBCS (Executive) in terms of the judgment and order dated 15th December, 1997 of the Hon'ble Division Bench, Calcutta and to prepare and publish a gradation list thereof for the purpose of promotion to vacancies in IAS.
2) A direction upon the respondent authorities concerned to consider the appellant's representations being Annexures A6, A7, A8, A9 and A10 to the instant application in accordance with law and upon granting an opportunity of hearing to the applicant.
3) A direction that the select list of candidates be prepared for the purpose of filling up with vacancies of IAS by promotion for the years 2003 and 2004 is illegal, unlawful and liable to be struck down by this learned Tribunal.
4) An order directing the respondent authorities to consider the case of the applicant for grant of promotion in IAS with retrospective effect from the date on which promotional vacancies in IAS pertaining to the year 2003 were filled up.
b) The writ petitioners before us were made respondent Nos. 3 and 4 respectively in the said original application. The writ petitioners took a preliminary objection as to the jurisdiction of the Central Administrative Tribunal to entertain such application and insisted on determining such question as preliminary issue. The writ petitioners also to be pointed that the respondent No. 1, in the past, having filed another application under Section 19 of the Act but having withdrawn the said application with liberty to seek appropriate remedy before appropriate forum, the second application claiming self-same relief was not maintainable before the Central Administrative Tribunal.
c) After the aforesaid preliminary objection was taken by the writ petitioners, the respondent No. 1 came up with an application for amendment of the original application under Section 19 of the Act, 1985 thereby praying for amending the original relief claimed in the application in the following manner:
1) To delete the words 'upon determination of inter se seniority of officers in WBCS (Executive)'after the numerical '2004' in paragraph 8 (a).
2) To delete the words 'and to prepare and publish a gradation list thereof for the purpose of promotion of vacancies in IAS' after the words 'the Hon'ble Division Bench, Calcutta' in paragraph 8(a) of the original application.
3) To add the words 'accordance with the provisions of IAS (Appointment by Promotion) Regulations, 1955 and further in' before the words 'terms of judgment and order...' in paragraph 8(a) of the original application.
d) The said application for amendment of the original application under Section 19 of the Act was opposed by the present writ petitioners, but the learned Tribunal below by the order impugned herein turned down the objection raised by the writ petitioners and allowed the application for amendment filed by the respondent No. 1.
3. Being dissatisfied, the present writ application has been filed by the Chief Secretary to the Government of West Bengal along with the Secretary to the Government of West Bengal, Personnel and Administrative Reforms Department.
4. Mr. Roy, the learned Advocate General, appearing on behalf of the writ petitioners has vehemently contended before us that his clients having taken specific objection as to the jurisdiction of the Tribunal to entertain the original application, the Tribunal below acted illegality and with material irregularity in allowing the application for amendment of the original application before deciding the question of jurisdiction raised by his clients. Mr. Roy further submits that in the past, the respondent No. 1 having filed a similar application before the selfsame Tribunal but having withdrawn such application with liberty to file fresh application before the appropriate forum, was not entitled to maintain a second application on the identical cause of action. Mr. Roy further submits that in an alike application under Section 19 of the Act a Division Bench of this Court having specifically held that the such application with the original relief claimed herein was not maintainable before the Central Administrative Tribunal, by allowing the application for amendment of the original application, the Tribunal could not bring the matter within its jurisdiction when it had inherent lack of jurisdiction to entertain the original one. Mr. Roy, thus, prays for setting aside the order impugned by allowing the present writ application.
5. Mr. Chaturvedi, the learned Counsel appearing on behalf of the respondent No. 1, has, however, opposed the aforesaid contention raised by Mr. Roy and has contended that his client, for effective adjudication of the dispute involved in the matter, filed an application for amendment of the original application and as such, the learned Tribunal did not commit any illegality in allowing such application. At any rate, Mr. Chaturvedi contends, this Court should not set aside the order allowing an amendment in view of the fact that after such amendment, the application as amended was quite maintainable before the Central Administrative Tribunal. Mr. Chaturvedi further submits that the grievance of his client is that the selecting authority has not properly followed the principles laid down in the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and in such a situation, the application was quite maintainable in view of the provisions contained in Section 14 of the Act.
6. Therefore, the only question that arises for determination in this writ application is whether the Tribunal below was justified in allowing the amendment of the original application in the facts of the present case.
7. Before we proceed to answer the aforesaid question, we cannot lose sight of the settled principle of law that if a Court or Tribunal lacks inherent jurisdiction to entertain a particular litigation even on the basis of averment made in the pleading, by allowing an amendment it cannot bring it within the domain of such Court or Tribunal. [See: Mohammad Jebbas Ali v. Rahima Bibi reported in 1983(2) CHN 7 (DB)] If a Tribunal has inherent lack of jurisdiction to entertain a litigation and in such circumstance, the party who brought such litigation files an application for amendment by deleting the some of the prayers for the purpose of bringing the matter within, the province of the Tribunal, the Tribunal should reject the original application on the ground of want of jurisdiction with liberty to file fresh application before appropriate forum in accordance with law without entering into the merit of the application for amendment of the original application because of the fact that before deciding the question whether it has jurisdiction to entertain the original application as it stands in affirmative, it cannot allow the application when the question of lack of jurisdiction has already been raised by the opposite party. If such a situation arises in the Civil Court where the Code of Civil Procedure applies, the Court can return the original plaint with the application for amendment by invoking Order 7 Rule 10 for presentation before the appropriate forum. But within the scope of the Act and the rules framed thereunder there is no scope of return of the original application once it is found that the Tribunal lacks inherent jurisdiction.
8. Bearing in mind the aforesaid principle, we now propose to consider whether the relief claimed in the original application was enterainable by the Central Administrative Tribunal, Kolkata.
9. After going through the prayers made in the original application we find that the relief claimed in the original application could be granted to the respondent No. 1 only after deciding inter se seniority of the respondent No. 1 in the State Executive Service but Section 15 of the Act vests such power with the State Administrative Tribunal. The Central Administrative Tribunal constituted under the Act is not entitled to decide inter se seniority of the members of the State Administrative Service. Once it is held that the Central Administrative Tribunal had no power to grant the original relief claimed in the application, it acted without jurisdiction in entertaining an application for amendment of the original application. Moreover, it is apparent from the averments made in the application for amendment that the respondent No. 1 fully realised his difficulty in maintaining the application before the Tribunal when point of jurisdiction was taken by the writ petitioners and that objection compelled the respondent No. 1 to file application for amendment of the original application before the Tribunal. Moreover, the respondent No. 1, being quite aware of the aforesaid difficulty for the reason best known to him again came up with similar relief by filing a second application.
10. Therefore, even without entering into other question whether a second application for the self-same relief was maintainable after withdrawal of the earlier application, we are of the view that the Tribunal below transgressed its limit in entertaining an application for amendment when apparently it had no jurisdiction to entertain the original application on the face of the relief claimed therein.
11. We now propose to deal with the decisions cited by Mr. Chaturvedi.
12. In the case of Union of India v. M. G. Dighe and Ors. reported in : [1991]3SCR776 , the Supreme Court was considering an appeal against order of the Central Administrative Tribunal regarding promotion of the members of the State Administrative Service to IAS. In the said case, as it appears from paragraph 3 of the judgment, admittedly the list which was prepared by the selection committee was not according to Regulation 5(1) read with Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955. Regulation 5(2) requires that the cases of the members of State Civil Service which are required to be considered for preparation of the list have to be in number equal to three times the number of the officers to be placed on the select list. As the selection committee did not follow the said Regulation, the Central Administrative Tribunal passed necessary direction upon the selection committee for complying with the provisions contained in the Regulation and the Supreme Court did not interfere with such decision. By relying upon such decision, Mr. Chaturvedi tried to convince us that the said decision is a precedent indicating that the Central Administrative Tribunal is the appropriate forum where any decision of the selection committee under the Regulation can be challenged. We are afraid we are unable to accept the aforesaid contention of Mr. Chaturvedi. In the said case, there was no dispute as regards inter se seniority among the members of the State Civil Service and only challenge that was thrown was the preparation of the list with less number of eligible candidates. In such a situation, the Central Administrative Tribunal is definitely entitled to entertain the dispute; but in a case, where a member of the State Civil Service challenges inter se seniority among the members of the State Civil Service, such seniority cannot be determined by the Central Administrative Tribunal and the respondent No. 1 having realised such difficulty, came up With an application for deletion of the original prayers. The fate of the respondent No. 1 depends upon the prayers which he originally made in the application and subsequently, prayed for deletion by amendment. In the absence of the determination of the seniority of the respondent No. 1 in the State Civil Service, the Central Administrative Tribunal cannot decide the question of selection to IAS. Therefore, the said decision cannot be of any avail to Mr. Chaturvedi's client.
13. As regards the other decision of the Supreme Court in the case of Syed Khalid Rizvi and Ors. v. Union of India and Ors. reported in 1993 Supp (3) SCC 575, the appellants before the Supreme Court were direct recruits of the year 1970 and 1973 into the Indian Police Service and were allotted to UP cadre. The respondent Nos. 3 to 9 and others were appointed as Deputy Superintendents of Police between July 12, 1961 and July 7, 1963 in the substantive capacity in the State Service and were promoted between October 4, 1973 and June 2, 1975 to perform the duties of the cadre post of Superintendent of Police. They continued to occupy the said posts till they were included in the select list and were later appointed and confirmed in the Indian Police Service with effect from various dates between July 29, 1978 and December 6, 1980. When the inter se seniority list was prepared and published showing the respondents as junior to the appellants, they represented to the Government of India that since they had continuously officiated on the cadre posts without break from the respective dates of promotion, their entire continuous officiating period should be counted towards seniority in Indian Police Service. Such question came up for consideration before the Central Administrative Tribunal. By relying upon the said decision, Mr. Chaturvedi tried to impress upon us that the present case was similar to the one involved therein and that the Supreme Court not having interfered with the decision of the Central Administrative Tribunal in the said case, it should be presumed that the Supreme Court approved the proposition of law that the present dispute should also be decided by the Central Administrative Tribunal by necessary implication. In our view, in that case the Central Administrative Tribunal was called upon to decide seniority inter se among the members of the Indian Police Service and as such, the Central Administrative Tribunal was the appropriate authority to decide such question; whereas in the case before us, the respondent No. 1 wants determination of his seniority in the State Administrative Service which can be done only by the State Administrative Tribunal in terms of Section 15 of the Administrative Tribunal Act, 1985 and thus, the said decision does not come in aid of the respondent No. 1. Moreover, unless a point is specifically raised and decided, the decision of a higher forum cannot be relied upon as a precedent in support of a particular proposition of law by the logic that by necessary implication it should be presumed that such was the intention of the Court.
14. On consideration of the entire materials on record we are, therefore, of the view that the Central Administrative Tribunal, Kolkata Bench acted without jurisdiction in allowing an application for amendment of the original application, over which, it had no jurisdiction. We, accordingly, set aside the order impugned and are of the opinion that no purpose will be served by keeping the original application pending before the Central Administrative Tribunal as the same will be an abuse of process of law. We accordingly quash the proceedings before the Tribunal as not maintainable without going into the question of inter se seniority of the respondent No. 1 in the State Civil Service.
15. We, however, make it clear that quashing of the proceedings before the Central Administrative Tribunal will not stand in the way of the respondent No. 1 in seeking his appropriate remedy before appropriate forum in accordance with law.
16. In the facts and circumstances, there will be, however, no order as to costs.
Kishore Kumar Prasad, J.
17. I agree.