IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10293 of 2010 1. SAURAV KUMAR S/O LATE LALLAN PRASAD PERMANENT RESIDENT OF MOH-PURANDARPUR, KHAJANCHI ROAD, PATNA-4, P.S.PIRBAHORE, IN THE TOWN AND DISTT-PATNA Versus 1. THE UNION OF INDIA THROUGH THE DEFENCE SECRETARY GOVERNMENT OF INDIA, NEW DELHI 2. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS GOVERNMENT OF INDIA 3. DEFENCE ACCOUNTANT GENERAL ULEN BATAR ROAD, PALAM, DELHI CANT-110010 4. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (CENTRAL COMMAND) LUCKNOW, IN THE STATE OF UTTAR PRADESH 5. DEPUTY CONTROLLER (ADMINISTRATION ) IN THE OFFICE OF PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (CENTRAL COMMAND ) LUCKNOW, IN THE STATE OF UTTAR PRADESH 6. KUMARI SAPNA D/O NOT KNOWN AN EMPLOYEE POSTED IN THE OFFICE OF PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (CENTRAL COMMAND ) LUCKNOW, IN THE STATE OF UTTAR PRADESH with CWJC No.11367 of 2010 1. THE CENTRAL EXCISE AND CUSTOMS GROUP 'D' EMPLOYEES ASSOCIATION , PATNA THROUGH ITS PRESIDENT 2. THE SECRETARY, THE CENTRAL EXCISE AND CUSTOMS EMPLOYEES ASSOCIATION PATNA 3. AWADHESH SHARMA S/O LATE BANSHI SHARMA R/O VILL LAKSHMAN BIGHA, P.S.PARAIYA, P.O.LAKSHMAN BIGHA, VIA-PARAIYA, DISTT-GAYA 4. SATYENDRA KUMAR S/O BAIKUNTH SHARMA R/O BIRANCHAK PHULWARI SHARIF, PATNA 5. SANJAY KUMAR MISHRA S/O SRI UMAKANT MISHRA R/O POSANPURA, KABIRCHAK, IN FRONT OF SADAR BLOCK, DISTT-DARBHANGA 6. MUMTAZ ALAM S/O MOHD. ABBAS R/O MOULINAGAR, MANER, PATNA - 2 - 7. SAMPAT BAITHA S/O LATE SITARAM BAITHA R/O VILL & P.O.SAKRI SARAIYA, VIA-TURKI, DISTT- MUZAFFARPUR Versus 1. THE UNION OF INDIA , THROUGH THE CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS NEW DELHI 2. THE DIRECTOR , CENTRAL EXCISE AND CUSTOMS NEW DELHI 3. THE MEMBER (P &V), CENTRAL BOARD OF CUSTOMS AND EXCISE , NORTH BLOCK NEW DELHI 4. THE CHIEF COMMISSIONER, CENTRAL EXCISE AND SERVICE TAX REGION, PATNA 5. THE COMMISSIONER , CENTRAL EXCISE COMMISSIONER PATNA 6. THE ADDITIONAL COMMISSIONER (P&V) CENTRAL EXCISE AND SERVICE TAX PATNA with CWJC No.9142 of 2009 1. PHULJHARI DEVI, WIFE OF LATE JALIM PRASAD, RESIDENT OF MOHALLA GODA BAZAAR, POST OFFICE DANAPUR CANTT. DISTRICT PATNA 2. SHAMBHU RAM, SON OF LATE JALIM PRASAD, RESIDENT OF MOHALLA GODA BAZAAR, POST OFFICE DANAPUR CANTT. DISTRICT PATNA Versus 1. THE UNION OF INDIA, THROUGH THE GARRISON ENGINEER, DANAPUR CANTT. MILITARY ENGINEERING SERVICE, DANAPUR CANTT. PATNA 2. ENGINEER-IN-CHIEF, ARMY HEADQUARTERS, DHQ, POST NEW DELHI-11 3. CHIEF ENGINEER, CENTRAL COMMAND, LUCKNOW. 4. CHIEF ENGINEER, ARMY HEADQUARTERS, MINISTRY OF DEFENCE, JABALPUR ZONE, JABALPUR (MADHYA PRADESH) 5. CHIEF WORK ENGINEER, MINISTRY OF DEFENCE DIPA TOLI RANCHI, JHARKHAND For the petitioners :Mr. Anjani Kumar, Advocate (in CWJC No. 10293/10) M/s Gautam Bose, Sr. Advocate, Ratna Das & Ajay Kumar, Advocates - 3 - (in CWJC No. 11367/10) Mr. Sunil Kumar, Advocate (in CWJC No. 9142/10) For the Respondents :Mr. Shiv Kumar C.G.C. (in CWJC No. 10293/10) Mrs. Archana Meenakshee & Mrs. Archana Sinha (in CWJC No. 11367/10) Mr. Sarvadeo Singh, C.G.C. (in CWJC No. 9142/10) 06/ 30.08.2010 Heard learned counsel for the petitioners and the counsel for the Union of India. 2. Petitioner in C.W.J.C. No. 10293 of 2010 has challenged the order of the Principal Controller of Defence Accounts (Central Command), Lucknow dated 4.5.2006, Annexure-1, whereunder his request for appointment on compassionate ground has been rejected. He has also challenged the order dated 7.1.2010, Annexure-7, whereunder with reference to the earlier order dated 4.5.2006, the claim of the petitioner for compassionate appointment has again been rejected. 3. In C.W.J.C. No. 11367 of 2010, petitioners are serving as Havildar and Sepoy of the Central Excise and Land Customs Department. It is submitted on their behalf that in terms of the provisions contained in notification dated 17th August, 2007, Annexure-2, they are the members - 4 - of Group C service of the Central Excise and Customs Department, but they are being paid the salary and scale admissible to erstwhile members of the Group D service of the Department and not the same scale and salary which is admissible to the Group C service of the Central Excise and Customs department and other departments of the Union. In other words, they have filed this application for pay parity with the members of the Group C service of the Excise and Customs Department and other departments. 4. Petitioners in C.W.J.C. No. 9142 of 2009 is the wife and son of Safaiwala, who served the office of Garrison Engineer, Danapur Cantonment and died while in harness and they have filed this application for appointment on compassionate ground. 5. Counsel for the Union of India opposed the prayer. He states that father of petitioner in C.W.J.C. No. 10293 of 2010 served as Auditor in the office of the Principal Controller of Defence Accounts, Lucknow was not the member of the Armed Force, his application in this Court praying inter alia to direct the respondent authorities of the Union to consider his case for appointment on - 5 - compassionate ground is not maintainable, as in terms of the provisions contained in Sections 2 and 14 of Administrative Tribunal Act, 1985 (hereinafter referred to as the Act), petitioner should first invoke the jurisdiction of the Administrative Tribunal, Patna Bench, Patna and if the relief prayed for is not granted by the Tribunal then to approach this Court by filing the writ application under Article 226 of the Constitution of India. Same submission is made by the learned counsel for the Union in regard to the case of wife and son of Safaiwala who served in the office of the Garrison Engineer, Danapur Cantonment. 6. Counsel for the petitioners in the two writ cases refuted such submission with reference to judgment of the Hon’ble Supreme Court in the case of Ous Kutilingal Achudan Nair and others Vrs. Union of India and others, reported in AIR 1976 Supreme Court 1179, paragraphs 8 and 11 and in the case of Lekh Raj Khurana Vrs. Union of India, reported in 1971 (1) Supreme Court Cases 780, paragraphs 6 and 7 and submitted that Auditor, Safaiwala serving in the cantonment are the civilian employee attached to the defence establishment may not be active member of - 6 - the Armed Force, but they are integral part of the Armed Force and the writ petition as framed is maintainable. 7. I regret not to accept such submission in view of the clear mandate of Section 2 of the Act which provides in mandatory terms that Act shall not apply to any member of Naval, Military and Air Force or any other Armed Force of the Union and when such mandate is read with Section 14(1) of the Act, it becomes all the more clear that from the appointed day, the Tribunal shall exercise jurisdiction in relation to recruitment and matters connected therewith to any All India Service or to any Civil Service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being in either case, a post filled by a civilian. Father of the petitioner in C.W.J.C. No. 10293 of 2010 and husband/ father of the petitioners in C.W.J.C. No. 9142 of 2009 served as Auditor and Safaiwala in the cantonment i.e. on a post connected with defence, but filled up by a civilian, as such any dispute concerning the service condition of the father and husband/ father of the petitioners in C.W.J.C. No. 10293 of 2010 and C.W.J.C. No. 9142 of 2009, in my opinion, has to be first considered - 7 - by the Tribunal. 8. In view of the aforesaid consideration, I dispose of the three writ applications directing the petitioners to approach the Tribunal constituted under the Act for the grievance raised in the three writ applications, which should be considered in accordance with law. As the petitioners have been pursuing their remedy in this Court, the Tribunal while entertaining their original application may consider their plea for condoning the period of limitation, if any. AFR Arjun/ (V.N. Sinha, J.)