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Bimal Sahoo, Secreta... v. Gouri Rani Pahari An...
Summary of Opinion — Title Suit No. 30 of 1989 (Second Court of Munsif, Contai)
Factual and Procedural Background
The plaintiff filed Title Suit No. 30 of 1989 in the Second Court of Munsif, Contai seeking declarations (including that she stood first in selection for an assistant teacher post) and permanent injunctions both prohibitory and mandatory. The plaintiff alleged that the defendant school sponsored candidates from an employment exchange and that an Ad hoc Committee had resolved to eliminate her. She had earlier filed a writ petition (C.O. 2538(W) of 1988). Following directions in that writ, a Committee re-interviewed candidates including the plaintiff; the plaintiff alleged that, despite being first, she was passed over due to illegal assessment in favour of Tapati Khatua.
The plaintiff appealed to the District Inspector of Schools, who, after enquiry, cancelled the Selection Committee's panel and directed the Secretary of the School to prepare a fresh panel using the candidates already interviewed (which the plaintiff interpreted as a reassessment of marks, not a fresh interview). Instead, the school held a new interview on 5-10-1989, which the plaintiff alleged violated the appellate direction and the recruitment rules. The plaintiff therefore sued and sought interim relief restraining the school from using the 5-10-1989 interview to prepare a panel and restraining the District Inspector of Schools from approving such a panel.
By order dated 2-2-1990 the trial Court granted an ad interim injunction restraining defendants from preparing or sending for approval any panel based on the 5-10-1989 interview until the injunction petition was heard. The defendants (school authorities numbered 1(a)–1(i)) did not appear to accept the trial Court's jurisdiction and preferred a revision/application under Article 227 to the High Court challenging the trial Court's jurisdiction and the interim order.
Legal Issues Presented
- Whether the High Court should exercise its power of superintendence under Article 227 of the Constitution to interfere with the trial Court's interim order and to quash or modify the suit taking cognizance of the plaint.
- Whether the trial Civil Court had jurisdiction to entertain the suit (or whether the plaintiff was limited to statutory remedies and remedies before administrative/appellate authorities under recruitment rules).
- Whether the existence of alternative remedies (appeal/revision) or statutory procedures ousts the High Court's power under Article 227 or bars the Civil Court from entertaining the suit.
Arguments of the Parties
Revisionists' (Defendants') Arguments — as presented by Mr. Bhuniya
- The trial Court lacked jurisdiction because the plaintiff's rights arise under a statutory/regulatory scheme (statutory right), and therefore she must pursue the statutory remedies rather than a civil suit.
- Where a special right and special (statutory) remedy exist and that remedy is adequate, the Civil Court's jurisdiction is ousted; reliance placed on several decisions supporting that principle.
- The plaintiff should have pursued grievance redressal before the District Inspector of Schools under the specified recruitment procedure (paragraph 7), rather than the civil suit.
- The High Court's power under Article 227 may be exercised suo motu and a provision of appeal does not necessarily bar Article 227 intervention — cited authorities to support these positions.
Respondent/Plaintiff-side Arguments — as presented by Mr. Roychowdhury
- The defendants cannot invoke Article 227 to displace the trial Court's order because an alternative remedy by way of appeal is available to them.
- The defendants could submit to the trial Court's jurisdiction and seek rejection of the plaint under Order 7, Rule 11, C.P.C. or raise maintainability objections in the trial Court instead of seeking extraordinary relief.
- By analogy to S.115 C.P.C. (revision) amendments, it was argued that supervisory powers should be similarly limited; the Court was urged to treat Article 227 as fettered when an alternative remedy exists — an argument the Court considered and rejected.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ranjit Kr. Ghosh v. Secretary, Indian Psychoanalytical Society (67 CWN 297) | Illustration that power of superintendence (Article 227) can be exercised suo motu. | Cited to show that Article 227 may be exercised suo motu in appropriate cases; Court acknowledged this but considered limits. |
| Satyanerain Nathany v. Union of India, AIR 1971 Cal 167 | Support for the proposition that Article 227 power can be exercised suo motu. | Used to illustrate the scope of Article 227; Court accepted the principle but balanced it against availability of alternative remedies and jurisdictional defects. |
| Maneck Custodji Surjarji v. Sarafasali Nawabali Mirza, AIR 1976 SC 2446 | High Court will ordinarily refuse to exercise Article 227 where another adequate remedy is available. | Relied upon to note the general tendency to refuse Article 227 when alternative remedies exist, but Court held this is not absolute where patent want of jurisdiction appears. |
| K.K. Srivastava v. Bhupendra Kumar Jain, AIR 1977 SC 1703 | Similar proposition — reluctance to exercise Article 227 if adequate remedy exists. | Cited for the same limiting principle; Court acknowledged but distinguished supervision from revision. |
| Hiralal Show v. State of West Bengal, 87 Cal WN 358 | Authority relied on to show that provision of appeal does not necessarily bar Article 227. | Invoked by revisionists to support the availability of Article 227 despite existence of appeal; Court noted this line of authority but examined facts before exercising power. |
| Union of India v. Ad-Hoc Claims Commissioner & Ors., 81 Cal WN 649 | Support for the proposition that an appeal does not bar exercise of Article 227 in appropriate circumstances. | Considered by the Court in assessing whether Article 227 could be invoked despite statutory/appellate remedies. |
| State of M.P. v. Babulal, AIR 1977 SC 1718 | Authority relevant to the interplay between alternative remedies and extraordinary jurisdiction. | Referred to in the discussion of when Article 227 may be exercised notwithstanding available remedies. |
| Paresh Nath Cloth Stores v. Nityananda Pal, 64 Cal WN 663 | Used to support that appeal does not necessarily oust Article 227 jurisdiction. | Noted by the Court in tracing precedent on limits to Article 227. |
| Roufannesa Bibi v. Union of India, 66 Cal WN 412 | Another authority on the proposition that an appeal provision does not bar Article 227. | Referred to by revisionists; Court considered but required presence of patent jurisdictional defect to intervene. |
| Kiran v. Chaman, AIR 1954 SC 340 | Article 227 may be exercised in cases of patent absence of jurisdiction or excess of jurisdiction. | Cited to indicate Article 227 intervention is appropriate where there is clear absence or excess of jurisdiction. |
| Bakshi Ghulam Mohammed v. G.M. Sadiq, AIR 1968 J & K 98 | Support for the proposition that a plaint may be rejected under Order 7, Rule 11 CPC and that courts must examine whether cognizance is barred even before appearance. | Used to underpin the point that a Court can look at the plaint and reject if cognizance is barred, independently of defendant's appearance. |
| Munshi Ram v. Municipal Committee, AIR 1979 SC 1250 (1979 Tax LR 871) | Civil Court's power to interfere where statutory authority acts in violation of rules, abuse of authority or breach of fundamental principles of judicial procedure. | Cited as authority for the proposition that civil courts can intervene where administrative action violates rules or fundamental principles. |
| State of West Bengal v. Indian Iron & Steel Co. Ltd., AIR 1970 SC 1298 | Support for civil interference where administrative action is contrary to rules or fundamental principles. | Relied upon to show instances where civil jurisdiction is appropriate to correct administrative excess/violation. |
| Seth Radha Kishan v. Administrator, Municipal Committee, AIR 1963 SC 1547 | Another authority on civil court interference where statutory authority abuses power or violates rules. | Referred to for the same general principle permitting civil court interference. |
| Province of Madras v. J.S. Basappa, AIR 1964 SC 1873 | Support for the principle that civil courts may intervene against administrative action violating fundamental legal principles. | Cited alongside other authorities to justify civil court jurisdiction in specified circumstances. |
Court's Reasoning and Analysis
The Court framed the core question as whether, although Article 227 is not in principle barred, the High Court should exercise its power of superintendence in the present case. The Court proceeded stepwise:
- The Court rejected the argument that Article 227 must be equated with the pre-1976 limitations on revision under Section 115 C.P.C.; supervision (Article 227) is not identical to revision and cannot be so fettered. The Court retained the ability to strike down a patently illegal exercise of jurisdiction.
- The Court accepted that ordinarily the High Court will refuse to exercise Article 227 if an alternative adequate remedy exists, but emphasized this is not absolute—Article 227 may be used where there is an inherent want of jurisdiction or patent illegality.
- The Court observed that it must look to the plaint itself to determine whether cognizance by the trial Court is barred. Reliance was placed on authority that a plaint may be rejected at the threshold (Order 7 Rule 11 CPC or Section 151 CPC) when cognizance is clearly barred.
- On the facts alleged in the plaint, the Court found it would be premature to hold that the Civil Court had no jurisdiction. The plaint alleges that the appellate authority had directed reassessment/preparation of a panel with already interviewed candidates, and that the trial Court's interlocutory order merely restrained use of a panel prepared after an allegedly illegal fresh interview. These allegations, if proven, could show violation of rules or abuse of authority—situations where civil courts may intervene.
- The Court rejected the contention that the plaintiff's earlier writ proceedings and any participation in the later interview precluded her from challenging the later interview's legality in the civil suit; whether the plaintiff waived rights by participation is a factual question to be decided by the trial Court.
- Given the foregoing, the High Court declined to exercise its Article 227 powers to set aside the trial Court's interlocutory order at that stage. The trial Court's grant of ad interim injunction was an exercise of its discretion and the proper course was to permit the trial process to proceed quickly.
Procedural directions: The defendants were permitted to file written objections to the injunction petition; the trial Court was directed to dispose of the temporary injunction petition within two weeks from the filing of written objections.
Holding and Implications
APPLICATION UNDER ARTICLE 227 OF THE CONSTITUTION FAILED.
Implications and immediate consequences:
- The High Court refused to interfere with the trial Court's interlocutory order granting an ad interim injunction; the application under Article 227 was dismissed.
- The interim injunction granted by the trial Court (restraining defendants from preparing or forwarding any panel based on the 5-10-1989 interview pending hearing) remains in place pending further trial-court proceedings.
- The defendants are permitted to file written objections to the injunction petition in the trial Court; the trial Court was directed to decide the temporary injunction petition within two weeks of filing those objections.
- No broader new legal principle or precedent was laid down by the High Court in this opinion; the Court applied existing principles concerning Article 227, the scope for civil interference where administrative actions violate rules or fundamental procedure, and the interplay with alternative remedies.
Order accordingly.
1. The plaintiff filed Title Suit No. 30 of 1989 in the Second Court of Munsif, Contai for a declaration that the plaintiff stood first among the candidates interviewed for selection of an assistant teacher, for other declarations, permanent injunction, both prohibitory and mandatory.
2. The plaintiff alleges that the defendant school sponsored names of some candidates from the employment exchange for filling up a vacancy of an assistant teacher in the school. Since the Ad hoc Committee of the school resolved to eliminate the plaintiff she had to file a writ being C.O 2538(W) of 1988. In terms of direction in the writ by the High Court Committee interviewed the candidates including the plaintiff. On an illegal assessment of marks one Tapati Khatua was selected although the plaintiff stood first in the selection. The plaintiff preferred an appeal to the District Inspector of Schools who on the basis of an enquiry report cancelled the panel prepared by the Selection Committee and directed the Secretary of the School to prepare panel afresh with the candidates already interviewed. The defendant school did not prepare a fresh panel on a correct assessment of the marks obtained by the candidates in obedience to the order of the appellate authority. In violation of the order of the appellate authority fresh interview was taken on 5-10-89. This is not only illegal but also contrary to rules for interview. The school is bound to recast the panel on the basis of the earlier interview held on 17-4-88. Since the later interview was held in violation of the order of the appellate authority and in contravention of rules the plaintiff filed the suit.
3. She also filed a petition for temporary injunction with a prayer for restraining the school authorities from preparing the panel on the basis of the interview on 5-10-89 and restraining the District Inspector of Schools from approving the panel.
4. The Court by an order dated 2-2-90 granted an ad hoc interim injunction restraining the defendants from preparing any panel of candidates for appointment of an assistant teacher on the basis of interview on 5-10-89 and sending the panel to the District Inspector of Schools for approval till the hearing of the injunction petition.
5. The school authorities figuring as defendants 1(a) to 1(i) did not submit to the jurisdiction of the Court and preferred this revision.
6. Mr. Bhuniya appearing for the revisionists contends that the defendants in the suit will not submit to the jurisdiction of the trial Court since it has no jurisdiction to entertain the suit. According to him the plaintiffs has only a statutory right as distinguished from a common law right. He means to say that the plaintiff can ask for appointment only under statutory rules and therefor she must ask for remedy of her grievances under the rules. Reliance is placed upon a number of decisions to contend that special remedy available under the rule ousts the jurisdiction of the Civil Court. If special right and special remedy are created or provided under the special statute which is adequate civil court cannot entertain jurisdiction. These propositions are well grounded and therefore cannot be questioned.
7. Mr. Bhuniya argues that the plaintiff may ventilate her grievance to the District Inspector of schools under paragraph 7 of “procedure for recruitment of teaching and non-teaching staff………… She cannot maintain an action in Civil Court.
8. Mr. Roychowdhury contends that the defendants cannot invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India on several grounds, viz., (1)an alternative remedy by way of appeal is available, (2) the defendants may submit to the jurisdiction of the Court and ask for rejection of the plaint under Order 7, Rule 11, C.P.C
9. The power of superintendence under Article 227 of the Constitution is to confine the subordinate Courts and tribunals within their bounds. Mr. Bhuniya contends that this power can be exercised even suo motu. (Ranjit Kr. Ghosh v. Secretary, Indian Psychoanalytical Society, 67 CWN 297, Satyanerain Nathany v. Union of India, AIR 1971 Cal 167). But the High Court will ordinarily refuse to exercise this power if some other adequate remedy is available (Maneck Custodji Surjarji v. Sarafasali Nawabali Mirza, AIR 1976 SC 2446, K.K Srivastava v. Bhupendra Kumar Jain, AIR 1977 SC 1703). Mr. Roychowdhury contends that the defendants could very well prefer an appeal to question the authority of the trial Court to take cognizance of the Court. Mr. Bhuniya relies upon several decisions Hiralal Show v. State of West Bengal, 87 Cal WN 358; Union Of India v. Ad-Hoc Claims Commissioner & Ors., 81 Cal WN 649; State of M.P v. Babulal, AIR 1977 SC 1718; Paresh Nath Cloth Stores v. Nityananda Pal, 64 Cal WN 663 and Roufannesa Bibi v. Union of India, 66 Cal WN 412 to urge that a provision of appeal does not bar the exercise of power under Article 227 of the Constitution. It is normally so. And as a matter of fact, the court will exercise the power in case of patent absence of jurisdiction or exercise of excess jurisdiction, Kiran v. Chaman, AIR 1954 SC 340 : (1954 All LJ 546).
10. Mr. Roychowdhury invites my attention to the provision in Section 115, C.P.C as it stood before amendment of 1976 and as it stands after amendment. It is clear that by the amendment of 1976 unlike the preamendment provision a revision shall no more lie if an appeal lies to the High Court. It is urged that Article 227 of the Constitution is fettered with similar limitation. I am unable to subscribe this view. Power of supervision cannot be so equated with power of revision. As a matter of fact Court will strike down a patently illegal exercise of jurisdiction in exercise of the power of superintendence. I am therefore unable to uphold the contention of Mr. Roychowdhury that the Court will not exercise this power of superintendence if an alternative remedy is available particularly when the Court finds inherently want of jurisdiction.
11. In answering the second objection raised by Mr. roychowdhury it is contended by Mr. Bhuniya that the Court must distinguish between maintainability of a suit and entertainability thereof. The suit may not be maintainable on different grounds. The defendant may enter appearance and question the maintainability of the suit. But while entertaining a plaint the Court on examination of the same may find that cognizance is barred. Relying upon Bakshi Ghulam Mohammed v. G.M Sadiq, AIR 1968 J & K 98 it is contended that the Court cannot only reject plaint at any stage under Order 7, Rule 11, C.P.C but also under Section 151, C.P.C Therefore independent of the appearance of the defendant in the suit the Court is bound to look to the plaint to find that its cognizance is barred.
12. So the whole controversy boils down to a single point, viz. while this Court's jurisdiction under Article 227 of the Constitution is not barred whether in the instant case Court should exercise the power. Court must look to the allegations in the plaint.
13. Admittedly the plaintiff had moved the writ Court for a remedy. The petitioners contend that the opposite party having been refused an interim remedy in the writ Court and having been unsuccessful in the later interview cannot turn round and challenge the same. According to them this is a fit case therefore where this Court should interfere. The scope of dispute in the writ Court and in the suit is different. The remedy asked for in the writ Court had not been asked for in the suit. So interference on that score will be unjust. The second ground is equally untenable. If the second interview is found to be illegal and contrary to rules as alleged her surrender or participation in the interview does not cure it. Secondly, the trial Court will decide on facts as to whether she waived her right to challenge it by participation. She may have explanation for this participation which cannot be investigated in this proceeding.
14. In the plaint it has been alleged that the appellate authority directed to prepare a panel afresh with the candidates already interviewed. According to the plaintiff a fresh interview is unwarranted. She means to say that the appellate authority directed a reassessment of marks. The allegation is that a fresh interview was held in violation of the rules of recruitment and in disobedience to the direction of the appellate authority.
15. Civil Court can interfere if the statutory authority acts in violation of rules or acts in abuse of its authority or in violation of fundamental principles of judicial procedure (Munshi Ram v. Municipal Committee), AIR 1979 SC 1250 : (1979 Tax LR 871); State of West Bengal v. Indian Iron and Steel Co. Ltd., AIR 1970 SC 1298; Seth Radha Kishan v. Administrator, Municipal Committee, AIR 1963 SC 1547; Province of Madras v. J.S Basappa, AIR 1964 SC 1873.
16. In view of the allegation in the plaint it cannot be held prematurely here that the civil court has no jurisdiction to entertain the suit.
17. Now let us turn to the impugned order. The Court has granted an ad interim injunction in its discretion. The defendants may file their written objection against the petition for temporary injunction. Court will dispose of the petition for temporary injunction within two weeks from the date of filing the written objection.
18. The application under Article 227 of the Constitution accordingly fails. Let a copy of this order go down to the Court below forthwith.
Order accordingly.
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