KHASIAT ALI CHOUDHURY Vs. ASSAM ADMINISTRATIVE TRIBUNAL AT GAUHATI

JUDGEMENT

(1.) This is an application under Art. 226 of the Constitution of India for an order or Writ in the nature of certiorari to remove into this Court the decision of the Assam Administrative Tribunal, "the Tribunal" for short, constituted under section 3 of the Assam Administrative Tribunal Act, 1977 in Case No. 40 ATA of 1980. By its order dated 5-12-1981, "the Tribunal" has set aside the inter se seniority fixed by the District Judge, Gauhati and confirmed by the Govt, of Assam placing the petitioner as senior to Respondent No. 5 in the grade of Upper Division Assistant, for short "UDA", of the Judgeship.

(2.) Naturally, the petitioner who had been declared senior to Respondent No. 5 by the learned District Judge and confirmed by the Government was aggrieved by the impugned order of the learned Tribunal. It is the common ease of the parties that the question of seniority is a serious business in the service career of the Civil servants. It has been conceded by learned Counsel for the parties that "the Tribunal" is legally competent to determine the question affecting the rights of the parties before it and "the Tribunal" had duties to act judicially or at least quasi-judicially while disposing the appeal. The petitioner has asked for a writ in the nature of certiorari, destined the validity of the order of "the Tribunal" on the ground that "the impugned order" suffers from various infirmities including error of law manifest on the face of the record.

(3.) It is well-known that certiorari can issue to correct an error of law but the error must be something more than a mere error - the error must be manifest on the face of the record. R. Vs. James Bolton, (1841) 1 QB 66 is the land-mark in the history of certiorari as it has summarised in an impeccable form the principles of its application. It was heavily relied on in King Vs. Nat Bell Liquors Ltd., (1922) 2 AC 128 : 1922 All ER (Repr.) 335. However, in R. Vs. Northumberland Compensation Appeal Tribunal; ex parte Shaw, (1952) 1 KB 338 : (1952) 1 All ER 122, the powers to issue an order of certiorari on the ground of error of' law apparent on the face of the record were much extended. It has been held that if the order of a statutory Tribunal or body is erroneous in point of law it may be quashed. The error need not be limited to the jurisdiction of the Tribunal. In Edwards (Inspector of Taxes) Vs. Bairstow, (1955) 3 All ER 48 (53) it has been held that if a Tribunal arrives at a conclusion that no reasonable authority properly instructed in law can arrive at it or the conclusion is erroneous because a wrong legal approach had been adopted, the error would amount to "error of law apparent on the face of the record". Skipping over a number of decisions in point, we find Anisminic Ltd. Vs. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 All ER 208, where it was held that even "no certiorari provision" in the statute could not protect an order which was a nullity or where the decision is "a purported decision" and not ''a real decision". Such orders can be corrected by the Court. It was commonly thought that certiorari was limited to cases of jurisdiction and natural justice but in R. Vs. Northumberland (supra) the impression was removed and the meaning of the expression "error apparent on the face of the record" was explained, and, it was held that the documents initiating the proceedings, the pleadings, if any, and the adjudication, form part of the records. However, in Baldwin & Francis Ltd. Vs. Patents Appeal Tribunal, (1959) AC 663 it has been ruled that "the record" also include all documents which appear from the formal order of the Tribunal to constitute the basis of its decision. Some of the leading cases of our Supreme Court dealing with scope of Writ of certiorari are Nagendra Nath Bora Vs. Commr. of Hills Division, Assam, AIR 1958 SC 398; Kaushalya Devi Vs. Bachittar Singh, AIR 1960 SC 1168; P.T. Services Vs. S.I. Court, AIR 1963 SC 114; Ambica Mills Vs. S.B. Bhatt, AIR 1961 SC 970; Kays Concern Vs. Union of India, AIR 1976 SC 1525; Collector of Customs Vs. Pednekar, AIR 1976 SC 1408; Shafi Vs. Additional D. & S. J., AIR 1977 SC 836 and others. What we cull from the decisions are that certiorari would lie (1) if there is "an error apparent on the face of the record" committed by the Tribunal; (2) if on the face of the record it appears to the Court that in law the grounds or the foundations of the decision of the Tribunal are not such as to warrant the decision; (3) if the Tribunal or the body has failed to proceed in accordance with the essential requirements of law which it was meant to administer; (4) if it is found that there is a patent error of law based on a clear disregard of the law or the decision is based on obvious wrong interpretation of a statutory provision upon which the decision lay or if the material provision of law is overlooked by the authority; and, (5) if the impugned order is not "a real decision" but "a purported decision". Bearing in mind the above constrictions and restrictions, let us proceed to dispose of the grievances of the petitioner and determine whether the petitioner is entitled to any relief.