IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 38 OF 2007 (S/S) Suraj Singh Chauhan …………Petitioner. Versus Union of India and others. …….Respondents. Present: Mr. Jitendra Chaudhary, Advocate for the petitioner. Mr. V.P. Bahuguna, Standing Counsel for the Union of India. Hon’ble Sudhanshu Dhulia, J.(Oral) Heard Mr. Jitendra Chaudhary, Advocate for the petitioner and Mr. V.P. Bahuguna, Standing Counsel for the Union of India. The father of the petitioner was an employee of Instrument Research and Development Establishment (from hereinafter referred to as IRDE). IRDE is admittedly a Central Government undertaking which has been notified under Section 14 (2) of the Administrative Tribunals Act, 1985 by which the matters pertaining to the employees of IRDE are cognizable by the Central Administrative Tribunal. The father of the petitioner who was employed in IRDE died while in harness on 24.1.2003. The petitioner being the son of deceased applied for appointment on compassionate ground which was rejected. Consequently the petitioner filed the present writ petition. Counter affidavit and rejoinder affidavit have been filed in the writ petition. The matter is listed today for admission. When the matter was being heard, the counsel appearing for the Union of India Sri V.P. Bahuguna has raised a preliminary objection regarding the 2 maintainability of the writ petition before this Court inasmuch as the father of the petitioner was an employee of IRDE and IRDE is notified under Section 14 (2) of Administrative Tribunals Act, 1985. Therefore, the matter is cognizable by Central Administrative Tribunal and not by this Court at the very threshold by means of a writ petition. Learned counsel for Union of India Sri V.P. Bahuguna has relied upon L. Chandra Kumar vs. Union of India and others AIR 1997 SC 1125, whereby the Constitution Bench has stated in para 100 as under :- “100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the 3 jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.” The counsel appearing for the petitioner Sri Jitendra Chaudhary, on the other hand, rebutting these objections submitted that even though there is a notification of IRDE under Section 14 (2) of the Administrative Tribunals Act, the petitioner cannot approach Central Administrative Tribunal by means of a claim petition inasmuch as the petitioner is not an employee of IRDE but it was his father who was employed in IRDE and the petitioner is not “a member of such service” and therefore it is not a matter pertaining to the service of an employee and as such the matter is cognizable by this Court. Another ground which has been raised by the petitioner is that assuming for the sake of argument that the matter is cognizable by Central Administrative Tribunal even then at this belated stage the writ petition is not liable to be dismissed on the ground of alternative remedy. Regarding first submission of the petitioner, reliance has been placed by the counsel appearing for the Union of India Sri V.P. Bahuguna on certain provisions of the Administrative Tribunals Act. Firstly he has relied upon Section 3 (q) of the Act which reads as follows :- “3. Definition.—In this act, unless the context other wise requires,-- [(a) [(aa) (b) (c) (d) (e) (f) (g) 4 (h) (i) [(ia) (j) (k) (l) (m) [***] (o) (p) (q) “service matters”, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects— (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever;” The counsel has more particularly relied upon “any other matter whatsoever” which is in 3 (q) (v) of the above definition. Apart from the Act, the counsel has relied upon Section 14 (3) (a) of the Act which defines the jurisdiction, powers and validity of Administrative Tribunals Act. “14. Jurisdiction, powers and authority of the Central Administrative Tribunal.— (1) … (2) … (3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or 5 corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court [***]) in relation to— (a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and (b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub-section (1)] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs.” Thereafter the counsel has pressed for the words “recruitments” and “matters concerning recruitments” and submitted that even appointment under compassionate ground will only fall under the pervasive definition of “recruitment” and “matters concerning recruitments”. Thirdly the counsel for Union of India Sri V.P. Bahuguna has relied upon the Central Administrative Tribunals Rules of Practice, 1993, more particularly Rule 154 which reads as follows :- “154. Classification of cases subjectwise/departmentwise.—(a) The scrutiny branch of the Registry shall at the time of scrutiny make classification of the cases as follows:-- (i) Departmentwise; (ii) Subjectwise; and (iii) Cases which can be heard by a Single Member Bench. (b) The departmentwise classification shall be made in accordance with Appendix VI, as may be modified by the Chairman from time to time. (c) Subjectwise classification shall be made in accordance with Appendix VII, as may be 6 modified by the chairman from time to time. (d) Single Member Bench cases shall be classified in accordance with Appendix VII as may be modified by the Chairman from time to time. (e) The classification as above shall be entered in the relevant columns in the report of scrutiny in Form No.2/Form No.3, Order Sheet in Form No. 4 and Facing Sheet of the final cover in Form No. 5, referred to in rules 11 to 13 of these Rules.” Under the aforesaid provision, certain classification has been made regarding the jurisdiction of a Single Bench, Division Bench, etc. In Appendix VIII of Rules which is subject-wise classification of Single Bench cases, one of the classifications is (c) which reads as follows :- “SUBJECT-WISE CLASSIFICATION OF CASES SINGLE BENCH CASES (a) Allotment of Eviction For Government Accommodation (b) Claims of Medical Reimbursement, Leave, Joining Time, L.T.C. and Over-Time (c) Compassionate Appointment / Appointment of Dependents Dying in Harness (d) Crossing of Efficiency Bar (e) Date of Birth (f) Entry in Character Rolls/Confidential Record / Service, record, made otherwise than as a measure of penalty under Central Civil Services (Classification, Control and Appeal) Rules, 1965 (g) Fixation of pay (h) Grant of Passes to Railway Employees (i) Grant of Pension, Family Pension, other Retirement Benefits and Interest on Retirement Benefits (j) Grant or Refusal to Grant Advances / Loans (k) Grant, Refusal or Recovery of Allowances (l) Postings/Transfers (m) Stagnation Increment” 7 The entry no. “c” is “Compassionate Appointment/Appointment of Dependants Dying in Harness”. Looking at all the provisions of law placed before this Court, this Court is clearly of the view that even matter regarding compassionate appointment is a matter cognizable by Central Administrative Tribunal. Regarding second submission of the petitioner that in this petition counter affidavit and rejoinder affidavit have already been exchanged and the petition should not be dismissed at such a belated stage. Counsel for the petitioner has relied upon a catena of decisions of Hon’ble Apex Court as well as this Court. The decision relied upon are :- “Arvind Kumar Singh Vs. Superintendent of Police, Almora and others 2003 U.D. 188; Hukum Chandra Vs. Vivek Singh and another 2004 (1) U.D. 477; Ms. Yogita Kapoor Vs. Union of India and others 2004 (2) U.D. 275; Jaspal Singh and others Vs. State of Uttaranchal and another 2006 (2) U.D. 343; Hare Ram Gupta Vs. State of Uttarakhand and others 2008 (1) U.D. 375; M/s Durga Filling Station, Rainta Vs. Indian Oil Corporation and another 2009 (1) U.D. 361; Matsya Jeevi Sahkari Samiti Ltd. Vs. State and others 2011 (1) U.D. 250 and Infosys Technologies Limited Vs. Jupiter Infosys Limited and another 2011 (1) SCC 125.” Ordinarily what the petitioner is submitting is indeed true that when the matter is admitted and remains 8 pending for a long time, it should not be dismissed on the ground of alternative remedy. However, the same case will not be of any help to the petitioner for two reasons. Firstly we already have a Constitutional Bench judgment in L. Chandra Kumar (supra) where it has been categorically held that such matters which are cognizable by the Central Administrative Tribunal must be sent to the Central Administrative Tribunal in the first instance and High Court will hear a writ petition which is filed against the order of the Tribunal and therefore though ordinarily in other service matters this submission of the petitioner will have some relevance, this Court is not inclined to accept the plea of the petitioner in the present case. Secondly this petition which is presently being argued by the petitioner has not been admitted as yet! It is only at the stage of admission when these arguments are being made. In any case it is not too late in the day to dismiss the matter on the ground of alternative remedy. Learned counsel for the petitioner has further relied upon a decision of learned Single Judge in Smt. Anita Pachauri Vs. Principal, District Institute of Education & Training, Didihat & another 2010 (1) U.D. 473, where the Court has examined the matter of appointment on compassionate ground. Indeed in the above case the matter regarding appointment on compassionate ground was entertained by the learned Single Judge, however, there was no such objection raised in that Court regarding the maintainability of the petition. A categorical objection has presently been raised by the counsel appearing for the Union of India, though orally, before this Court. Therefore, this Court is now bound to adjudicate first upon this legal 9 submission made by the counsel appearing for the Union of India, on the maintainability of the writ petition itself. In view of what has already been held above, writ petition is liable to be dismissed and is presently being dismissed on the ground of alternative remedy. Petitioner is at liberty to file an application/petition before the Central Administrative Tribunal where he may also make a prayer for condonation of delay of his petition. It is hoped and expected that the pendency of the present writ petition before this Court, for all these years, will be taken into consideration by the learned tribunal while disposing of the delay condonation application, if such an application is filed before the Central Administrative Tribunal. For the reasons as stated above, writ petition is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 14.7.2011 Avneet