W.P.(C)/7229/2016 of HEMANT KUMAR Vs UNION OF INDIA & ANR

IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(C) 7229/2016 and C.M. Appl. No. 29745/2016 (for stay)

HEMANT KUMAR

..... PetitionerThrough:Ms. Aditi Sharma, Advocate.versusversus

UNION OF INDIA & ANR

..... RespondentsThrough:Ms.ArchanaGaur, Advocate forUOI.UOI.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

O R R%29.03.2017

1.Petitioner seeks appointment with L.H.M. College and Smt.Suchetakriplani Hospital, New Delhi and which hospital is not anindependent legal entity, but on petitioner getting employmentpetitioner will be the employee of Central Government/respondentno.1.

2.Accordingly, this Court has no jurisdiction to try this petition inview of the definition of service matters under Section 3(q) of theAdministrative Tribunals Act, 1985 and paragraph 99 of the judgmentin the case of L. Chandra Kumar vs. Union of India & Ors. (1997) 3

SCC 261, and which para 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 SupremeCourt under Articles 226/227 and 32 of the Constitution, areunconstitutional. Section 28 of the Act and the "exclusion of2(d) of Article 323A and Clause 3(d) of Article 323B, to the extentthey exclude the jurisdiction of the High Courts and the SupremeCourt under Articles 226/227 and 32 of the Constitution, areunconstitutional. Section 28 of the Act and the "exclusion of

jurisdiction" clauses in all other legislations enacted under theaegis of Articles 323A and 323B would, to the same extent, beunconstitutional. The jurisdiction conferred upon the High CourtsunderArticles 226/227 andupontheSupremeCourtunderArticle 32 of the Constitution is part of the inviolable basicstructure of our Constitution. While this jurisdiction cannot beousted, other courts and Tribunals may perform supplementalroleindischargingthepowersconferredbyArticles 226/227 and 32 of the Constitution. The Tribunals createdunderArticle 323A andArticle 323B oftheConstitutionarepossessed of the competence to test the constitutional validity ofstatutory provisions and rules. All decisions of these Tribunalswill, however, be subject to scrutiny before Division Bench ofthe High Court within whose jurisdiction the concerned Tribunalfalls. The Tribunals will, nevertheless, continue to act like Courtsof first instance in respect of the areas of law for which they havebeen constituted. It will not, therefore, be open for litigants todirectly approach the High Courts even in cases where theyquestion 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)

3.At this stage, counsel for the petitioner prays that this petitionbe transferred to the Central Administrative Tribunal, PrincipalBench, New Delhi.

4.Accordingly, this petition is transferred for decision to CentralAdministrative Tribunal, Principal Bench, New Delhi.Parties aredirected to appear before the Registrar, CAT on 26[th]April, 2017.Registry will ensure that the file of this case is available before theRegistrar, CAT on the date fixed.

MARCH 29, 2017/AK

VALMIKI J. MEHTA, J