W.P.(C)/9234/2014 of SANDEEP KUMAR Vs KALAWATI SARAN CHILDREN'S HOSPITAL

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(C) 9234/2014 and C.M. No.9701/2016 (for directions)SANDEEP KUMAR..... PetitionerThrough:Mr. M.K. Sinha, Advocate.

versus

KALAWATI SARAN CHILDREN'S HOSPITAL & ORS...... RespondentsThrough:Mr. Anurag Kumar, Advocate forGNCTD.Mr. Prashant Jain, Advocate forrespondent Nos.3,4 and 5.

CORAM:HON'BLE MR. JUSTICE VALMIKI J. MEHTAO R R%07.12.2016

1.Petitioner seeks appointment with Kalawati Saran Children’sHospital, and which admittedly has no independent legal entity andpetitioner’s appointment therefore would be with the Union of India. Sincepetitioner claims employment with Union of India, this writ petition will notbe maintainable in this Court because writ petition will have to be filedbefore the Central Administrative Tribunal (CAT), Principal Bench, NewDelhi which has original jurisdiction and only which can decide this petitionas per the ratio of the Constitution Bench judgment of the Supreme Court inW.P.(C) No.9234/2014page 1 of 3

the case of L. Chandra Kumar vs. Union of India & Ors. (1997) 3 SCC

261. Para 99 of this judgment reads as under:-

“99.In view of the reasoning adopted by us, we hold that Clause2(d) of Article 323A and Clause 3(d) of Article 323B, to the extentthey exclude the jurisdiction of the High Courts and the SupremeCourtunderArticles226/227 and 32 oftheConstitution,areunconstitutional. Section28of the Act and the "exclusion ofjurisdiction" clauses in all other legislations enacted under the aegisofArticles 323A and 323B would,tothesameextent,beunconstitutional. The jurisdiction conferred upon the High CourtsunderArticles 226/227 andupontheSupremeCourtunderArticle 32 of the Constitution is part of the inviolable basic structureof our Constitution. While this jurisdiction cannot be ousted, othercourts and Tribunals may perform supplemental role in dischargingthe powers conferred by Articles 226/227 and 32 of the Constitution.The Tribunals created under Article 323A and Article 323B of theConstitutionarepossessedofthecompetencetotesttheconstitutional validity of statutory provisions and rules. All decisionsof these Tribunals will, however, be subject to scrutiny before aDivision Bench of the High Court within whose jurisdiction theconcerned Tribunal falls. The Tribunals will, nevertheless, continueto act like Courts of first instance in respect of the areas of law forwhich they have been constituted. It will not, therefore, be open forlitigants to directly approach the High Courts even in cases wherethey question the vires of statutory legislations (except where thelegislation which creates the particular Tribunal is challenged) byoverlookingthejurisdictionoftheconcernedTribunal.Section 5(6) of the Act is valid and constitutional and is to beinterpreted in the manner we have indicated.” (underling added)

2.In view of the above, instead of dismissing the petition, at the

request of the petitioner, this petition is transferred for decision to CAT,Principal Bench, New Delhi. Parties to appear before the Registrar of CATW.P.(C) No.9234/2014page 2 of 3

on 21[st]December, 2016.Registry will ensure that file of this case isavailable to the Registrar of CAT on the date fixed.

DECEMBER 07, 2016Ne

VALMIKI J. MEHTA, J

W.P.(C) No.9234/2014

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