1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 846 OF 2001 1. Mrs. Santha Rajan ) 2. Mrs. Sunita D’Souza ) 3. Mrs. Bernadine D’Mello ) 4. Mrs. Meenakshy Subramanian ) All C/o Western Railway Divisional ) Office, Mumbai Central, Mumbai - ) 400 008. ) .. PETITIONERS Versus 1. Union of India ) through the Secretary, Ministry ) of Railways, New Delhi ) 2. The General Manager, ) Western Railway, Churchgate, ) Mumbai 400 020. ) 3. Smt. Geeta Menon ) 4. Smt. M. J. Montario ) 2 5. Shri Swaminathan C. ) 6. Kum. S. R. Laxmi ) 7. Shri N. T. Johney ) 8. Shri D. J. Baptista ) 9. Smt. V.G. Jaisinghani ) 10.Smt. P. Rodrigues ) 11.Smt. N. J. Baptista ) 12.Shri M. M. Chandran ) 13.Smt. Chandrika C. ) 14.Smt. Lalithamma K. ) 15.Smt. R.R. Nair ) 16. Smt. Vijaya B. Nair ) All C/o Western Railway, Churchgate) Mumbai 400 020. ) .. RESPONDENTS Mr. Bhavesh Parmar for the petitioner Mr. Suresh Kumar for R-1 & 2. CORAM: SMT. RANJANA DESAI & SMT MRIDULA BHATKAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 17TH NOVEMBER, 2009 3 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 7TH DECEMBER, 2009 JUDGMENT:-(Smt. Ranjana Desai, J.) In this petition filed under Article 226 of the Constitution of India, the petitioners have inter alia prayed that they may be promoted as Personal Assistants with effect from December, 1998 and be given all benefits and privileges with retrospective effect. The petitioners have also prayed for an order quashing the order passed by the respondents dated 19/6/2000 stating that the Competent Authority and General Manager have decentralized the cadre of Personal Assistants (PAs) scale and Confidential Assistants (CAs) scale. 2. The case of the petitioners must be shortly stated. The petitioners joined the Western Railways in 1981 as Stenographers. They were promoted as Senior Stenographers on adhoc basis in 1984-85. They were entitled to be regularized in this promotional post after asserting their speed in a speed test but the 4 respondents did not hold the speed test. After representations were made by the petitioners, the respondents held the speed test and regularized the services of the petitioners in the promoted posts from July, 1993 i.e. the date of their passing in the speed test. The petitioners, therefore, approached the Central Administrative Tribunal, Bombay Bench (“the CAT” for short) praying inter alia for regularization of their services in the post of Senior Stenographers from the date of their initial promotion. The CAT by order dated 21/7/98 allowed the original application and declared that the petitioners are deemed to have been regularized on promotion in the grade of Rs.1400-2600 from the date of their initial adhoc appointment. Other consequential reliefs were also granted. As the respondents did not implement the order dated 21/7/98, the petitioners filed Contempt Petition No. 42 of 1999 in the CAT. In the contempt petition, the respondents took a stand that the posts of Confidential Assistants and Personal Assistants were decentralized. As a result of decentralization each division stood separate and distinct with separate seniority and no avenue for lateral shift 5 between the divisions was available. The respondents contended that there were no vacancies in the Bombay Central Division in the past for the post of Senior Confidential Assistants and Personal Assistants. The CAT by its order dated 25/9/2000 ordered that if the vacancies are available before 29/9/98 in the post of Personal Assistants those vacancies shall be filled from amongst the petitioners. On 27/2/01 the CAT dismissed the contempt petition holding that the matter has been explained by learned counsel for the respondents and it was convinced that no contempt had been committed. 3. As already stated by us the petitioners have challenged order dated 19/6/2000 passed by the respondents stating that the Competent Authority and General Manager have decentralized the cadre of P.As’ scale Rs.6500-10500 and CAs Rs.5500-9900. 4. Mr. Suresh Kumar learned counsel for respondents 1 and 2 has raised a preliminary objection to the petition. According to him this petition is not maintainable. He submitted that the grievance of the 6 petitioners relates to their service conditions and, therefore, as per Section 28 of the Administrative Tribunal’s Act, 1985 (“the said Act” for short), the petitioners must file original application before the CAT. In this connection he relied on L. Chandra Kumar v. Union of India & Ors, (1997) 3 SCC 261. In support of his submissions Mr. Suresh Kumar also relied on Kendriya Vidyalaya Sangathan & Anr. v. Subhas Sharma, (2002) 4 SCC 145, Union of India & Ors. v. Deep Chand Pandey & Anr., (1992) 4 SCC 432, Himachal Pradesh State Electricity Board, Shimla & Ors. v. Tirath Raj & Ors., (1995) 5 SCC 678. 5. Mr. Suresh Kumar submitted that the petition also suffers from laches. He submitted that from the order dated 25/9/00 it is clear that learned counsel for the petitioner had pointed out to the CAT that there was decentralization with effect from 21/9/98. Therefore, the petitioners were aware about decentralization and hence they should have immediately challenged the said order. Instead the petitioners chose to file a delayed petition in this court in March, 2001, which is not maintainable. 6. Mr. Suresh Kumar submitted that merely because this court 7 has admitted this petition and the petition has remained pending for a long time it cannot be said that the original jurisdiction of the CAT is conferred on this court. Mr. Suresh Kumar submitted that on behalf of the respondents objection to the maintainability of the petition was taken by the respondents by filing affidavit. Mr. Suresh Kumar submitted that the petition be dismissed as not maintainable. 7. Mr. Parmar, learned counsel for the petitioners in response to the preliminary objection submitted that the writ petition having been admitted by this court and it having remained pending for a long time, it is not open to the respondents to now contend that the petition should be dismissed as not maintainable. Mr. Parmar submitted that the question of maintainability like question of jurisdiction must be decided at the outset when the petition is heard for admission. He submitted that if a petition is heard on merits and admitted and kept pending for a long time at the final hearing stage the petitioners cannot be deprived of relief by telling them that they have an alternative remedy . In this connection he relied on L. Hirday Narain v. Income-Tax Officer, Bareilly, 1970 (2) SCC 355, Dr. Balkrishna Agarwal v. State of U.P. & Ors., (1995) I SCC 614, T. N. State Transport Corporation v. Neethivilangan, Kumbakonam, (2001) 9 8 SCC 99, State of Haryana & Anr. v. Ankur Gupta, (2003) 7 SCC 704 and Radha Raman Samanta v. Bank of India & Ors., (2004) 1 SCC 605. 8. Mr. Parmar contended that judgment of the Supreme Court in L. Chandra Kumar’s case does not fully exclude the jurisdiction of the High Court. He submitted that in that case the Supreme Court has made it clear that the Tribunals have to perform supplemental role and, therefore, in exceptional cases such as the present case this court should exercise its jurisdiction under Article 226 of Constitution in petitions relating to grievances about service conditions of persons appointed to public services and posts in connection with the affairs of the Union. 9. Since, we are deciding the petition only on the question of jurisdiction and the order which, we propose to pass is not likely to affect respondents 3 to 16 adversely, their presence is not necessary. 10. Admittedly the petitioner is aggrieved by decentralization of the cadre of PA’s scale Rs.6500-10500 and CA’s scale Rs.5500-9900. There is no dispute about the fact that the petition relates to the 9 service conditions of the petitioner. In our opinion, therefore, the petition will lie in the CAT and not in this court. This position is well settled by a long line of Supreme Court judgments . In this connection it will be necessary to refer to L. Chandra Kumar’s case. 11. In L. Chandra Kumar’s case the Supreme Court was inter alia considering whether the power conferred upon Parliament or the State Legislature by Sub clause (a) of clause (2) of Article 323A to exclude jurisdiction of all courts except that of the Supreme Court under Article 136 in respect of disputes and complaints referred to in clause 1 of Article 323A i.e. disputes and differences and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts 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 of any Corporation and/or are controlled by the Government runs counter to the powers of judicial review conferred on the High Courts under Article 226 and 227 and on Supreme Court under Article 32 of the Constitution. Similar question was raised in connection with sub- clause (d) of clause 3 of Article 323B of the Constitution with regard to the matters specified in clause 2 of Article 323B. 10 12. The Supreme Court observed that the jurisdiction of the High Court under Article 226/227 and of the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. The Supreme Court further observed that all decisions of the Tribunal created pursuant to Article 323A or Article 323B of the Constitution will be subject to the High Court’s writ jurisdiction under Article 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. While considering whether the Tribunals are competent to hear the matters where the vires of statutory provisions are questioned, the Supreme Court held that they can do so but they cannot act as substitutes for the High Court and the Supreme Court which have under our constitutional set up, been specifically entrusted with such obligation. The Supreme Court observed that all decisions of the Tribunal will be subject to the scrutiny before a Division Bench of the respective High Courts. The Supreme Court further made it clear that the Tribunal will consequently also have the power to test the vires of subordinate legislations and rules. The Supreme Court clarified that the Tribunal shall not entertain any question regarding the vires of their parent statutes following the settled principle that the Tribunal which is a creature of an Act cannot declare that very Act to 11 be unconstitutional and in such cases alone the High Court concerned may be approached directly. The Supreme Court further clarified that all other decisions of the Tribunals rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of the respective High Courts. The Supreme Court made it very clear that the Tribunals will continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted and it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislation (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. 13. In view of this authoritative pronouncement of the Supreme Court it is not possible for us to hold that ignoring the original jurisdiction of the CAT a person appointed to public service under the Government of India can agitate his grievance about his service conditions in this court under Article 226 of the Constitution. The words ‘supplemental role’ used by the Supreme Court do not mean that the High Court can also act as a court of original jurisdiction for 12 such matters. Such a view will run counter to L. Chandra Kumar. The Tribunals are supplemental to the extent stated by the Supreme Court in L. Chandra Kumar. 14. In Kendriya Vidyalaya’s case as some dispute regarding service conditions of the employees of the Kendriya Sangathan arose, the employees filed two writ petitions under Article 226 of the Constitution before the High Court of Jammu & Kashmir for adjudication. In the said writ petitions Kendriya Vidyalaya filed two applications for transfer of the writ petitions to the CAT on the ground that under the said Act the CAT had jurisdiction to decide the disputes. The High Court dismissed the applications. The Supreme Court held that in view of the clear pronouncement of the Supreme Court in L. Chandra Kumar’s case the High Court committed an error by declining to transfer the writ petitions to the CAT. The Supreme Court set aside the High Court’s order and transferred both the writ petitions to the CAT. 15. Similar view has been taken by the Supreme Court in Deep Chand’s case which was declared prior to the judgment in L. Chandra Kumar’s case. Similar view has also been taken by the 13 Supreme Court in Himachal Pradesh State Electricity Board’s case. It is not, therefore, possible for us to agree with Mr. Parmar that this court can entertain the petition which contains grievance about the service conditions of the petitioners, who are Central Government employees. 16. It is now necessary to deal with the second argument of Mr. Parmar that since this court has admitted the writ petition and kept it pending for a long time this court should hear and dispose it off rather than directing the petitioners to approach the CAT. In this connection Mr. Parmar relied on L. Hriday Narain’s case. In that case the High Court dismissed the petition as not maintainable because the revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35 of the Income-tax Act, 1922. The Supreme Court held that the High Court would not be justified in dismissing as not maintainable the petition which was entertained and heard on merits on the ground that an alternative remedy of revision was open to the petitioner. The Supreme Court observed that if the High Court had not entertained the petition, the petitioner could have moved the Commissioner in revision because on the date on which the petition was moved the 14 period prescribed by Section 33A of the Income-tax Act had not expired. 17. Mr. Parmar also relied on Dr. Balkrishna Agarwal’s case. In that case the question regarding inter se seniority of the appellant, Dr. Agarwal and respondents 4 and 5 therein was involved. By Resolution dated 16/7/1978 the Executive Council of the University had declared respondents 4 and 5 as senior to the appellant. The writ petition was filed in 1988 by the appellant against the said resolution. It was dismissed by the Allahabad High Court on 6/1/94 on the ground that alternative remedy of reference to the Chancellor under Section 68 of the Uttar Pradesh State Universities Act, 1973 was available to the appellant. The Supreme Court held that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 specially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Other cases relied upon by Mr. Parmar emphasise the same point and hence need not be referred to in details. 15 18. In our opinion none of these judgments help the petitioner. These judgments deal with availability of alternative remedy. Here we are not concerned with the availability of alternative remedy. We are concerned here with the original jurisdiction of the CAT. It is not necessary for us to repeat the law laid down by the Supreme Court in L. Chandra Kumar’s case and other cases. In matters pertaining to service conditions of an employee of Central Government, it is only the CAT which has the original jurisdiction and the High court has been divested of its original jurisdiction except where vires of the Act under which the tribunals are created is under challenge. In all the cases cited by Mr. Parmar, an alternative remedy was available to the petitioners. In those cases the Supreme Court was not inclined to non suit the parties therein on the ground that they had not adopted alternative remedy because the question of availability of alternative remedy was not taken into consideration at the outset i.e. when the petitions were heard for admission. In those cases the High Court was not divested of its powers by the judgment of the Supreme Court as in the present case. The facts of those cases, therefore, cannot be equated with the facts of the present case. 19. So far as the time factor is concerned, it is necessary to refer to 16 Deep Chand’s case. In that case the respondents were engaged in the office of Central Railway, Gwalior as casual typist. Their case was that they were wrongly terminated. The respondents challenged the order in writ petition before the Madhya Pradesh High Court which allowed the writ petition. The Union of India challenged the order in the Supreme Court having regard to the provisions of the said Act. The Supreme Court held that the remedy of the respondents was to approach the Tribunal and not the High Court and though the High Court had allowed the petition filed by the respondents it set aside the High Court’s judgment and observed that the remedy of the respondents was before the Tribunal. Similarly in Himachal Pradesh State Electricity Board’s case the respondents were appointed on daily wages with the Himachal Pradesh State Electricity Board. Their grievance was that they were not being paid on par with regular clerks, therefore, they were entitled to it. The High Court accepted the contention and directed payment of equal pay on par with the clerks. The Supreme Court referred to Deep Chand’s case and held that in view of the law laid down therein, the High Court had been divested of the power and jurisdiction under Article 226 of the Constitution and the same vested in the Administrative Tribunal’s constituted in that behalf under the said Act. 17 Therefore, even after the final disposal of the petition in favour of the employee, the Supreme Court thought it fit to set aside those orders and hold that the jurisdiction vested in the Tribunal. It is, therefore, not open to the petitioner to contend that because the petition is admitted and is pending for a long time this court should confer on itself the original jurisdiction of the CAT and deal with the petition. All that this court can do in such a situation to direct the CAT to decide the original application in a time frame. 20. In view of the above, it is not possible for us to entertain this petition. However, if the petitioners file original application in the CAT, the CAT shall deal with it expeditiously. While dealing with the question of condonation of delay in filing the original application, the CAT will have regard to the fact that the petitioners spent time in adopting a wrong remedy. 21. The petition is dismissed. (Smt. Ranjana Desai, J.) (Smt. Mridula Bhatkar, J.) 18