PRADIP DASTHAKUR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The writ petitioner has challenged the vires of the Recruitment Rules relating to West Bengal Junior Fishery Service (Grade II) which came into force vide notification dated September 24, 2015.

(2.) The Learned Government Pleader has raised a preliminary objection with regard to the maintainability of the instant writ petition. He submitted that the subject matter of challenge in the instant writ petition is the vires of the rule regulating the recruitment to various posts under the Fisheries Department, Government of West Bengal. He further submitted that the Administrative Tribunal Act, 1985 conferred jurisdiction upon the Administrative Tribunal for the State to decide such dispute. He submitted that the Tribunal acts like the court of first instance and the writ petitioner cannot approach the High Court directly in the instant case. In support of his submission, the learned Government Pleader relies upon the judgment of the Hon ble Supreme Court of India in the case of L. Chandra Kumar versus Union of India and ors , 1997 3 SCC 261.

(3.) Per contra, Mr. Soumen Kumar Dutta, learned advocate for the writ petitioner submitted that the Rule, the vires of which has been challenged in the instant writ petition, has been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The Tribunal constituted under Article 323A of the Constitution of India lacks jurisdiction to entertain and decide the matters where the vires of such statutory rules are challenged. He further submitted that Article 323A of the Constitution of India, is silent as to whether the vires of a rule framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India can be entertained. He further submitted that the Administrative Tribunals Act, 1985 also does not confer jurisdiction upon the Administrative Tribunal to entertain and try matters where the vires of a statutory rule is questioned. He submitted that the decision in L. Chandra Kumar (Supra) does not decide the issue as to whether the challenge to the vires of the statutory rule can be entertained and decided by the Administrative Tribunal. As such, according to him, the said decision relied upon by the learned Government Pleader is not applicable in the instant case.