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TMI Blog2023 (8) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court of Orissa, Cuttack in W.P. (C) No. 30620 of 2020 by which the High Court allowed the writ application filed by the original petitioner (respondent No. 1) before us, setting aside the order passed by the Central Administrative Tribunal (CAT), Cuttack Bench, Cuttack and thereby holding that the respondent No. 1 herein, namely, Dr. Bikartan Das is entitled to the benefit of enhancement of retirement age from 60 to 65 years as applicable to the AYUSH doctors working under the Ministry of AYUSH. FACTUAL MATRIX 2. The respondent No. 1 herein was appointed by the Council as a Research Assistant w.e.f. 07.10.1985. The Office Order No. 183 of 1985 dated 11.10.1985 reads thus: "No. P.1-67/86-CRIA/DDSR/Estt./748(5) Dt 11.10.85 OFFICE ORDER No. 183/85 Dr. Bikartan Das is appointed as a Research Assistant (AY) with effect from the forenoon of the 7th October, 1985 until further orders in the Central Research Institute (AY), Unit, Bhubaneshwar-9. He will be on probation for a period of two years from this date. He will draw a basic pay of Rs. 425/- per month in the scale of Rs. 425-15-500 PB-15-560-20-700 with usual allowance admissible under the rules. (Dr. PREM KISHORE) &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r D/o Health & Family Welfare, Dental doctors under Ministry of Railways and of doctors working in Higher Education and Technical Institutions under Department of Higher Education]". 2. The decision of the Cabinet is applicable to the AYUSH doctors directly working under the administrative control of Ministry of AYUSH i.e. AYUSH doctors working under CGHS. The decision of the Union Cabinet is not applicable to autonomous bodies functioning under Ministry of AYUSH i.e. Research Councils/National Institutes. 3. All such representations are therefore being sent to there spective Councils. It is requested that the Councils may inform them accordingly. Yours faithfully, N. K. Lakhanpal Senior Consultant" 6. By order dated 24.11.2017, the Ministry of AYUSH enhanced the age of superannuation to 65 years for the AYUSH doctors working in the Ministry of AYUSH and in CGHS Hospitals w.e.f. 27.09.2017. The order dated 24.11.2017 reads thus: "F.NO. D.14019/4/2016-E-I(AYUSH) Government of India Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy AYUSH Bhawan, 'B' Block, GPO Complex, INA, New Delhi - 110023 Dated, the 24th November, 2017. ORDER The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016-Estt.(A-IV)] GYANENDRA DEV TRIPATHI, Jt. Secy." 8. By letter dated 25.01.2018, the appellant Council circulated the clarification letter issued by the Ministry of AYUSH dated 31.10.2017 referred to in para 5 as above. The letter reads thus: "F 3-8/2017-CCRAS/Vig/3094 Dated: 25 JAN 2018 To All the Heads of Institutes/Centres/Units functioning under this Council. Sub: - Enhancement of superannuation age of 65 years. Sir/Madam The undersigned is directed to circulate herewith the clarification on the subject mentioned above received from Ministry of AYUSH vide letter FTS No.32797/2017 dated 31.10.2017 for information. The contents of Ministry's letter may be circulated among all officers working under your control. Yours faithfully (SB MISRA) Administrative Officer (Vigilance) For Director General" It is pertinent to note that the letter issued by the appellant Council dated 25.01.2018 referred to above was never made a subject matter of challenge. 9. The respondent No. 1 herein preferred a representation dated 22.03.2018 addressed to the appellant No. 2 herein with an appeal to enhance his age of superannuation up to 65 years i.e., up to 30.04.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; x Pending finalization of the Original Application, the Applicant prays to stay the order under Annexure-3 and allow the Applicant to continue in the service." 11. By order dated 17.04.2018 the CAT issued notice, however, declined to grant any interim relief as prayed for by the respondent No. 1 herein. As CAT declined to grant any interim relief and the respondent No. 1 was to retire on 30.04.2018, he went before the High Court of Orissa, Cuttack by filing W. P. (C) No. 6663 of 2018 questioning the order passed by the CAT declining to grant any interim relief. The High Court passed the following order dated 25.04.2018: "SI. No. of Order- 03 Date of Order- 25.04.2018 Heard Mr. B. Senapati, learned counsel for the petitioner and Mr. Bose, learned Asst. Solicitor General. This Writ Petition has been filed by the petitioner challenging the order dated 17.04.2018 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 260/210/2018 wherein the Tribunal while issuing notice directed the opposite parties to file their reply on the interim prayers and regular counter. As it appears th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessity to take a decision in the context of the Ministry of AYUSH, Govt. of India having made it clear that enhancement of retirement age is not applicable to an autonomous body like CCRAS. Therefore, the G.O.I. rule of not extending the enhancement of retirement age to CCRAS compliments the clauses 35 & 47 of the byelaws. We do not find any error in the decision taken by the respondents in terms of the bye laws." (Emphasis supplied) (ii) CAT did not accept the respondent No. 1's argument of Clause 35 and application of the Fundamental Rules mutatis mutandis to the employees of the Council saying that the clause relates to the general applicability of FRs, Supplementary Rule (SRs) and General Financial Rules (GFRs) to the Council employees; the same is subject to the provision specific to Clause 34 governing superannuation of the employees of the Council. There is nothing in Clause 35 of the Bye-Laws to have an overriding effect on Clause 34 regarding retirement age. (iii) Clause 47 of the Bye-Laws makes it clear that for the matters not specifically provided in the Bye-Laws, the rules applicable to the government employees would apply. But since there is a specific provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated patients was to be accepted, such acceptance could not have negated the decision taken by the Ministry of AYUSH in its clarification letter dated 31.01.2017, which was further accepted by the Council in its subsequent letter dated 25.01.2018. 15. The respondent No. 1 feeling dissatisfied with the aforesaid order passed by the CAT challenged the same before the High Court in W.P.(C) No. 30620 of 2020. The High Court allowed the writ application filed by the respondent No. 1 holding as under: "On the analysis of the above factual matrix, we find that though the petitioner is functioning as Researcher under the Research Council/ National Institute, but as a requirement for upgrading the research skill, he treats patients in the OPD and IPD. In fact, he performs similar nature of duties like AYUSH doctor. Though his service condition is covered by different laws, but for all practical purposes, the petitioner is performing like a doctor. Though there is a clear-cut distinguishing features between the AYUSH doctor and that of the petitioner. The petitioner herein is also treating the patients like AYUSH doctors in the OPDs and IPDs on regular basis. The Clause-34 and 35 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. The issue involved in the present case is the entitlement to seek extension in superannuation age as per FR 56(bb) and its applicability to the appellant Council which is an autonomous body. The said FR has been amended from time to time and the rule applicable in the present case i.e. at the time of the retirement of the respondent No. 1 is of 05.01.2018. b. The respondent No. 1 was an employee of CCRAS having joined as Research Assistant and his terms of service were governed under the Rules of CCRAS. Subsequently, he was promoted to the post of Research Officer and at the time of superannuation he was holding the post of an Assistant Director. c. The relevant clauses of CCRAS which are applicable to the facts of the present case are Clauses 25(b), 34, 35 and 47 of CCRAS ByeLaws which are extracted herein for the sake of convenience: "Appointments 25.(a)... (b) Recruitments, appointments and promotions to all posts shall be made according to the recruitment rules laid down by the Governing Body or designated competent authority for the posts. Selection shall be made through the Selection Committees/Departmental Promotion Committees duly constituted with the approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of superannuation of the Respondent. g. No reference has been made by the respondent No. 1 to the aforementioned decision of the governing body in his representation. In fact, the Respondent relied on Clause 34 of the Bye-Laws which on its terms indicates that the rules governing the retirement of employees of Government of India will not apply in the instant case. h. Reliance placed by the respondent No. 1 in its representation on the case of Salma Khatoon is equally inapt as the relevant rule in the said case was different from the Clause 34 of Bye-Laws herein. The said case pertained to the Central Council for Research in Unani Medicine ('CCRUM') which is governed by its own rules and regulation and the applicable rule in that case was worded differently. Moreover, the said case is still pending before the High Court of Delhi. The interim order in favour of Salma Khatoon was vacated by this Court in the case of Central Council for Research in Unani Medicine v. Dr. Salma Khatoon and Others reported as 2020 SCC OnLine SC 1332. i. The Central Administrative Tribunal, Cuttack Bench ('CAT') rightly held that the assumption of the respondent No. 1 that FR 56 is automatically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nhancing the age of superannuation to 65 years was adopted by NDMC for AYUSH doctors but it was applied from a later date which was found to be discriminatory. Whereas, in the present case the appellant is an autonomous body with its own service rules and the government decision was never adopted by the Governing Body at any point of time. n. The reference made to the appointment of Director of the Institute of Teaching and Research in Ayurveda ('ITRA') in context with the retirement age of 65 years is wholly misplaced. The appointments to ITRA are made as per the provisions of the Institute of Teaching and Research in Ayurveda Act, 2020. Section 5(e) of the Act, 2020 provides for the tenure of the Director of 5 years or until the age of 65 years whichever is earlier. Hence, the respondent No. 1 who is not covered under the provisions of the said Act cannot claim parity with the employees of ITRA. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1 19. Mr. Col. R. Balasubramanian, the learned Senior Counsel appearing for the respondent No. 1 made the following submissions: a. His client is an AYUSH Doctor being fully and duly qualified in Bachelor of Ayurvedic Medicine and Surgery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol of the Ministry of AYUSH in the matter of enhancement of retirement age up to 65 years. It is reiterated that only two conditions are required to be satisfied to avail the enhanced age of superannuation up to 65 years of age viz., (i) AYUSH Doctor and (ii) being under the Administrative Control of the Ministry. Therefore, the respondent No. 1 is squarely covered by the Cabinet's decision and is entitled to the enhanced age of retirement of 65 years. f. That accordingly, Rule 56(bb) of the Fundamental Rules, 1922, which is a statutory rule framed under the Proviso to Article 309 of the Constitution of India, was amended vide Gazette Notification dated 05th January, 2018 in terms of which the age of superannuation inter alia of the AYUSH doctors [3rd line of amended Rule (bb) shall be sixty-five years. This was further amended vide the Gazette Notification dated 11.08.2018 categorically laying down that the age of superannuation of doctors belonging to various cadres including AYUSH and working under the Ministry of AYUSH shall be 62 years unless they opt to continue in teaching, consultancy, etc in which case it shall extend up to 65 years. Therefore, even in the 2nd Gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Rules extracted @ Pg 12 of the Judgement by the High Court, on which extensive reliance is placed by the appellants contending that the applicability of the extension of age is dependent upon the decision to be taken by the Governing Body of the autonomous body, and hence the Central Govt rule of age of superannuation is not automatic. This contention is not correct for the following reasons: - Clause 34 is in two parts. The first part is that the rules governing the retirement of employees of the Government of India as amended from to time shall apply to the employees of the Central Council. The plain and simple reading of this part makes it clear and unambiguous that the rules governing the retirement of Central Government employees as amended from time to time shall apply. - The second part of Clause 34 "or as desired by the Governing Body" is merely an enabling provision to enable the Governing Body to take a decision regarding retention of an employee beyond the prescribed age of superannuation. In other words, the 'desire' of Governing Body is to extend the age of an employee even beyond prescribed age if he continues to be physically fit and efficient and it is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to agree with the findings of the Tribunal and the Delhi High Court that the classification is discriminatory and unreasonable since doctors under both segments are performing the same function of treating and healing their patients. The only difference is that AYUSH doctors are using indigenous systems of medicine like Ayurveda, Unani, etc. and CHS doctors are using Allopathy for tending to their patients. In our understanding, the mode of treatment by itself under the prevalent scheme of things, does not qualify as an intelligible differentia. Therefore, such unreasonable classification and discrimination based on it would surely be inconsistent with Article 14 of the Constitution. The order of AYUSH Ministry dated 24.11.2017 extending the age of superannuation to 65 Years also endorses such a view. This extension is in tune with the notification of Ministry of Health and Family Welfare dated 31.05.2016. 24. The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them. Therefore, no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of India (Cabinet) vide its order has granted the benefit of enhancement of superannuation age to 65 years to the doctors under the administrative control of the respective Ministries/Department (Ministry of AYUSH) (AYUSH doctors) which is fully applicable to the doctors working under the appellant council but the Ministry of AYUSH erroneously by their mis-interpretation has excluded the benefits to doctors working under autonomous bodies like the council. It is because of the wrong interpretation made by the Ministry of AYUSH, the said benefit was erroneously denied to the AYUSH doctors like the Intervenors/applicants. f. That the Govt. of India vide its own order dated 02.11.2020 has given the said benefit to the Director of ITRA and enhanced the age of superannuation to 65 years. Therefore, as per own interpretation made by the Ministry of AYUSH, the benefit of enhancement of superannuation of age is fully applicable to all doctors (working in any capacity including researcher) who are under the administrative control of AYUSH and when Govt. of India (Cabinet) did not exclude the autonomous institution like Intervenors/applicants council then the Ministry of AYUSH has no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Bye-Laws deal with superannuation which read as under: "34. The rules governing the retirement of employees of the Government of India as amended from time to time or as desired by the Governing Body shall apply to the employees of the Central Council. Provided that an employee can be retired in service after prescribed age of superannuation if he continues to be physically fit and efficient and it is in the interest of the Central Council to retain him in service. 35. The Fundamental and Supplementary Rules and General Financial Rules of Government of India as amended from time to time shall apply mutatis mutandis to employees of the Central Council." m. That, the clarification of Ministry of AYUSH vide its letter dated 31.10.2017 is not only misconceived but also uncalled for, arbitrary and discriminatory. The same is also contrary to the object for which the Central Council is established. The aforesaid clarification would rather frustrate the objectives for which the Central Council was established. The same is against Public Policy and liable to be struck down and the High Court of Orrisa rightly gave decision in favour of the respondent in the instant appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government servants regarding the general conditions of service, pay, allowances T.A. and daily allowances, foreign service terms, deputation in India and abroad, etc. and orders and decisions issued in this regard by the Central Government from time to time shall apply mutatis mutandis to the employees of the Central Council." (Emphasis Supplied) 25. A plain reading of the aforesaid clauses of the Bye-Laws would indicate that the employees are recruited through a selection committee of the Council. It further indicates that the Fundamental Rules, 1922 will have no direct application in cases where the governing body finalises the rules of superannuation. In terms of Clause 34 of the Bye-Laws, the governing body had decided the age of superannuation to be 60 years on 01.12.1998. The said decision was ratified on 27.01.2000, in the 14th meeting of the governing body of the Council. 26. In our view, the learned Senior Counsel appearing for the appellants is right in his submission that the decision of the governing body dated 27.12.2000 applied on 30.04.2018 i.e., the date of superannuation of the respondent No. 1. It is not in dispute that the respondent No. 1 was workin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion canvassed by Mr. R. Balasubramanian, the learned Senior Counsel appearing on behalf of the respondent No. 1. It was submitted that Clause 34 of the Bye-Laws should be read in two parts. The first part states that the Rules governing the retirement of employees of the Government of India as amended from time to time would apply to the employees of the Central Council. According to the learned Senior Counsel, the second part of the Clause 34 which reads "or as desired by the governing body" is merely an enabling provision empowering the governing body to take a decision whether an employee deserves to be retained beyond the prescribed age of superannuation. According to the learned Senior Counsel such power should not be read in a negative form to clothe the governing body with the power to prescribe lesser age of superannuation than what has been prescribed by the Central Government from time to time. We are afraid, we are not in a position to accept such an argument. The language of Clause 34 is very clear. What is important to note while reading the Clause 34 is the word "or". Thereafter, there is a proviso which says that an employee can be retained in service after prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etation of the Clause 34 of the Bye-Laws. In this context, we may only say that the governing body of the Council is not obliged to take a decision in tune with the decision of the Ministry of AYUSH regarding superannuation more particularly having made it clear that enhancement of retirement age is not applicable to an autonomous body like CCRAS. 35. We are also not impressed by the submission canvassed on behalf of the respondent No. 1 that as the terms and conditions of the services of the employees of the Council on all other aspects like the Provident Fund/GPF, Pension, Gratuity, Leave Rules, Scales of Pay, Conduct Rules and other conditions of services are the same as applicable to the employees of the Central Government as set out in Clauses 31, 32, 33, 42, 44 and 47 respectively of the Bye-Laws, the matter of age of superannuation of the respondent No. 1 should not be treated differently. What should be the age of superannuation is a matter of policy. It is not within the domain of the court to legislate. It is only if a policy decision or a notification is arbitrary it may invite the frowns of Article 14 of the Constitution. In any case, the question of age of retirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recruited through the University Service Commission. Their service conditions were governed under the Patna University Act. At the relevant time, the age of retirement for university teachers was 62 years. However, with effect from 15.08.1992 the age of retirement was reduced to 60 years. The respondent's claim was upheld by the High Court. Allowing the State's appeal, this Court held: "5. The respondents contend that their age of retirement should be the same as the age of retirement of university teachers employed in Bihar Engineering College, Patna. But the terms and conditions of service of teachers in the three engineering colleges of the State are different from the terms and conditions of service of the university teachers employed in Bihar Engineering College at Patna. The authority responsible for recruitment is also different. The method of recruitment is different and service conditions are prescribed under different rules and regulations and/or under a separate Act. We fail to see how in respect of the teachers who are government servants, governed by the Bihar Service Code, the age of superannuation should be different from the age of superannuation for all other g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 28 of NWDA also mandates that the rules and orders applicable to the Central Government employees shall apply mutatis mutandis to the employees of NWDA subject to modification by the Governing Body concerning service conditions and only in case of any doubt, the matter has to be referred to the Governing Body for a decision. Byelaw 26(a) provides for the emoluments structure for all employees that will be adopted by NWDA, with the approval of the Ministry of Finance (Department of Expenditure). Bye-law 28 provides that till such time NWDA frames its rules governing service conditions of the employees, rules and orders applicable to the Central Government employees shall apply mutatis mutandis, subject to such modifications as made by NWDA from time to time. xxx xxx & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 982 Rules did not exist or were not applicable on the date of the OM i.e. 1-5-1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. v. Union of India [(2005) 4 SCC 649], it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression "State" and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on a par with their counterparts in the Central Government under sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable. 17. Even if it is presumed that NWDA is "State" under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in UT, Chandigarh v. Krishan Bhandari [(1996) 11 SCC 348 : 1997 SCC (L&S) 391], the claim to equality can be claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annuation." (Emphasis supplied) 43. In Union of India and Others v. Lieut (Mrs) E. Iacats, reported in (1997) 7 SCC 334, the respondent therein had filed a writ petition in the Guahati High Court challenging her retirement at the age of 55 years on the ground that in other nursing services under the military establishment the age of retirement was 58 years. It was argued before the High Court that it was discriminatory to retire the nurses who were appointed for local service only at the age of 55 years. The Petition was allowed by the High Court. The UOI came before this Court in appeal. This Court while allowing the appeal filed by the UOI, observed as under: "3. ... If different nursing services are constituted under separate army instructions carrying their own separate terms and conditions of service, one cannot complain of discrimination if the ages of retirement prescribed under these different services are different. Each will be governed by its own rules and regulations. The respondent is, therefore, not justified in claiming that she has been discriminated against because she has retired at the age of 55." (Emphasis supplied) 44. The age of superannuation is always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for bestowing the benefit of extended age of superannuation to these two categories of doctors. Hence, the order of AYUSH Ministry (F. No. D. 14019/4/2016EI (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondent doctors, in the present appeals. All consequences must follow from this conclusion." 46. The aforesaid decision of this Court in the case of Dr. Ram Naresh Sharma (supra) upon which strong reliance has been placed on behalf of the respondent No. 1 is of no avail for the simple reason that in the said case, the only question that arose was whether the benefit of enhancement of age of retirement from 60 years to 65 years granted in favour of allopathy doctors was available even for ayurveda doctors or not? The said decision was based upon an order of the Ministry of AYUSH dated 24.11.2017. 47. As seen from paragraph 23 of the said decision referred to above, the age of retirement of allopathy doctors was enhanced by an order dated 31.05.2016 issued by the Ministry of Health and Family Welfare. This was followed by consequential amendment of the Fundamental Rules and Supplementary Rules, 1922. Since, Ayurveda doctors were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court fix the age of superannuation of an employee saying that he is very much devoted towards his job. The age of superannuation is always governed by statutory rules & other service conditions. 49. Before we close this matter, we would like to observe something important in the aforesaid context: Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari. 50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of its exercise; the other is the observance of law in the course of its exercise. .... 9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction." 53. Relying on T.C. Basappa (supra), the Constitution Bench of this Court in the case of Hari Vishnu Kamath (supra), laid down the following propositions as well established: "(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous." 54. This Court explained that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised....." 56. In Surya Dev Rai v. Ram Chandra Rai and Others, reported in 2003 (6) SCC 675, a Bench of two Judges held that the certiorari jurisdiction though available, should not be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice had been occasioned. In exercising the certiorari jurisdiction, the procedure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... setting it up, it had no right to take into account. I do not intend this list to be exhaustive." 59. So far as the errors of law are concerned, a writ of certiorari could be issued if an error of law is apparent on the face of the record. To attract the writ of certiorari, a mere error of law is not sufficient. It must be one which is manifest or patent on the face of the record. Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari. As reminded by this Court time and again, this concept is indefinite and cannot be defined precisely or exhaustively and so it has to be determined judiciously on the facts of each case. The concept, according to this Court in K.M. Shanmugam v. The S.R.V.S. (P) Ltd. and Others, reported in AIR 1963 SC 1626, 'is comprised of many imponderables... it is not capable of precise definition, as no objective criterion could be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element.' A general test to apply, however, is that no error could be said to be apparent on the face of the record if it is not 'self-evident' or 'manifest'. If it requires an examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon such materials which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly undertaken. ..." 63. However, we may clarify that findings of fact based on 'no evidence' or purely on surmises and conjectures or which are perverse points could be challenged by way of a certiorari as such findings could be regarded as an error of law. 64. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as incumbent upon the respondent to have given a notice terminating the tenancy. The Mamlatdar made an order for possession in favour of the respondent. The Collector allowed the appeal and set aside the order of the Mamlatdar. The Bombay Revenue Tribunal, to whom the matter was taken up on appeal, held that as the respondent had failed to terminate the tenancy by notice before instituting the action for ejectment, he was not entitled to entertain the application for recovery of possession. 68. Thereafter, the respondent made an application to the High Court of Bombay under Article 227 of the Constitution of India for the quashing of the order of the Revenue Tribunal and the Collector and for the restoration of the order of the Mamlatdar. The High Court was of the opinion that the Tribunal had committed an error which was apparent on the face of the record in holding that an order of possession could not be made unless a notice terminating the tenancy had been given before the institution of the proceeding and it issued a writ of certiorari quashing the order of the Tribunal and restoring that of the Mamlatdar. 69. An appeal was filed against the order of the High Court and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be questions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them. 13. It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case. As pointed out by Lord Esher, M.R., in R. v. CIT [R. v. CIT, (1888) LR 21 QBD 313 (CA)] , the formula enunciated above is quite plain but its application is often misleading. The learned Master of the Rolls classified the cases under two categories thus : (QBD pp. 319-20) "... When an inferior court or tribunal or body, which has to exercise the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within Class 2 of the classification of the Master of the Rolls [R. v. CIT, (1888) LR 21 QBD 313 (CA)] . In these circumstances, it seems to us that the order of the High Court of Punjab that a writ of certiorari could not be issued to the respondent quashing the order of 13-5-1950, was right. We are further of the opinion that none of the contentions raised has any merit whatsoever." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects legal evidence, or misdirects itself as to the weight of the evidence, or convicts without evidence. Nor will certiorari be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong in matters of fact, and the Court will not hear evidence impeaching the decision on the facts. ...." 75. Similarly in the case reported in - 'Colonial Bank of Australasia v. Willan', (1874) LR 5 PC 417, it is observed by their Lordships thus: "The question is whether the inferior court has jurisdiction to enter upon the enquiry and not whether there has been miscarriage of the procedure in the course of enquiry." At page 443 of the same case, the learned Judges observed - "An adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conclusive of facts stated therein. "The case in (1874) LR 5 PC 417 has been approvingly cited by Fazl Ali, J. who held - 'Rai Brij Raj Krishna and Another v. Messrs S.K. Shaw and Brothers', AIR 1951 SC 115 that an error of law does not constitute an error of jurisdiction and that a wrong decision on facts or law cannot be questioned in a civil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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