Supreme Court: While hearing a civil appeal filed by Central Council for Research in Ayurvedic Sciences (CCRAS) (’appellant’) against the Judgment and order of Orissa High Court, whereby, Central Administrative Tribunal’s (‘CAT’) order was set aside and the respondent was held entitled to the benefit of enhancement of retirement age from 60 to 65 years as applicable to the Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH) doctors working under the Ministry of AYUSH, the division Bench comprising of the Chief Justice of India, Dr. D.Y. Chandrachud and J.B. Pardiwala*, J. allowed the appeal and set aside the impugned order of High Court. The Court also discussed the law around the High Court’s power to exercise extraordinary jurisdiction and issuance of writ of certiorari.
Background
In the matter at hand, the respondent was appointed by the CCRAS as a Research Assistant and sought an appeal to enhance his age of superannuation up to 65 years i.e., up to 30-04-2023 instead of 30-04-2018. However, the representation preferred by the respondent was rejected. The CAT, Cuttack ultimately adjudicated the original application filed by the respondent and rejected the same, holding that the respondent was not entitled to seek parity with AYUSH doctors in regard to the age of superannuation.
The High Court while hearing a challenge against the CAT’s order, found that the decision of the CAT was erroneous and found that though the respondent is functioning as Researcher under the Research Council/ National Institute, but as a requirement for upgrading the research skill, he treats patients in the Out-Patient Departments (‘OPD’) and In-Patient Departments (‘IPD’) and that the respondent herein, was also treating the patients like AYUSH doctors in the OPDs and IPDs on regular basis. Therefore, Clause-34 and 35 of the bye-laws was held to be applicable to the respondent herein, and to be treated as AYUSH doctor, even though he has been appointed as a Researcher. Thus, the CAT’s decision was set aside.
Decision
Regarding the question that whether the High Court committed any error in passing the impugned judgment, the Court found expressed its disappointment and said that the entire approach of the High Court towards the present matter was incorrect and that the High Court dealt with the matter in a very casual manner. The Court said that the impugned order of the High Court was not sustainable in law and hence, was set aside. The Court also found the need to discuss the laws surrounding exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly for the issuance of writ of certiorari.
The Writ of Certiorari
The Court observed two cardinal principles of law governing the issuance of writ of certiorari:
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While issuing the writ of certiorari, the High Court does not exercise the powers of the Appellate Tribunal. The High Court will not review or reweigh the evidence upon which the inferior tribunal’s decision was based. The writ of certiorari can be issued if an error of law is apparent on the face of the record and being a high prerogative writ, it should not be issued on mere asking.
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The extraordinary remedy granted under Article 226 of the Constitution is essentially discretionary. It is completely open for the writ Court, exercising this flexible power to pass orders in public interest and equity. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach than this would render the High Court a normal Court of appeal, which it is not.
The Court also referred to T.C. Basappa v. T. Nagappa, (1955) 1 SCR 250, wherein, essential features of writ of certiorari were explained. It was held that a certiorari writ could be issued in ‘all appropriate cases and in appropriate manner’ so long as the broad and fundamental principles were kept in mind. Further, the Court discussed various authorities that established legal principles surrounding writ of certiorari. The Court reiterated that a Court having jurisdiction over a subject matter gets to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior Court were to rehear the case on the evidence and substitute its own finding in certiorari.
Placing its reliance on Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, the Court said that in case of jurisdictional error, the want of jurisdiction may arise from the nature of subject matter and the inferior Court or Tribunal might not have the authority to enter on the inquiry. The lack of authority can also arise from the absence of some essential preliminary or jurisdictional fact. Regarding the question of error of law, the Court said that if the error of law is apparent on the face of record, the writ of certiorari could be issued. The Court also explained that to attract the writ of certiorari, a mere error of law, formal or technical errors are not sufficient, it must be such which is manifest or patent on the face of the record. It was also said by the Court that 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.
Regarding a general test of ‘self-evident’ or ‘manifest’ to check whether there is an error of law apparent on the face of record, the Court opined that such test should not be applied in a straitjacket formula and may fail because what might be considered by one Judge as an error self-evident, might not be considered so by another Judge. The Court stated that “the purpose of certiorari is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute”.
For the issuance of a writ of certiorari, the Court pointed certain essential conditions:
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The party concerned must make out a definite case for issue of writ of certiorari and is not a matter of course.
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It shall be issued to correct errors of jurisdiction i.e., excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality.
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It shall also be issued to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but not also a wrong decision.
The Court concluded that writ of certiorari is a high prerogative writ and should not be issued on mere asking. The Certiorari is not appellate but only supervisory. The Court also explained that while adjudicating a writ-application for a writ of certiorari, the Court is not sitting as a Court of appeal against the order of the Tribunals to test the legality thereof with a view to reach a different conclusion. If there is any evidence, the Court will not examine whether the right conclusion is drawn from it or not. It is a well-established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits.
[Central Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023 SCC OnLine SC 996, decided on 16-08-2023]
*Judgment Authored by: Justice J.B. Pardiwala
Know Thy Judge | Supreme Court of India: Justice J.B. Pardiwala
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Writ jurisdiction of the Supreme Court of India and High Courts is a frequently discussed topic by jurists. Constitutional Law scholars and practitioners in India analyse Article 226 of the Constitution, especially with reference to writ jurisdiction and powers of the High Court(s). The Supreme Court recently again thought it necessary to discuss the laws surrounding exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly for the issuance of writ of certiorari.
While hearing a civil appeal filed by Central Council for Research in Ayurvedic Sciences (CCRAS) (’appellant’) against the Judgment and order of Orissa High Court, the division Bench comprising of the Chief Justice of India, Dr. D.Y. Chandrachud and J.B. Pardiwala, J, held that writ of certiorari is a high prerogative writ and should not be issued on mere asking. The writ of certiorari can be issued if an error of law is apparent on the face of the record. The Certiorari is not appellate but only supervisory. The Hon. Supreme Court also explained that while adjudicating a writ-application for a writ of certiorari, the Court is not sitting as a Court of appeal against the order of the Tribunals to test the legality thereof with a view to reach a different conclusion. If there is any evidence, the Court will not examine whether the right conclusion is drawn from it or not. It is a well-established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits. This judgment once again reminds all stakeholders to bear in mind nuances and nitty-gritty details while approaching the High Courts under Article 226 of the Indian Constitution.