IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 16245 of 2009(S) -------------------------- OA.1029/2000 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: --------------- P.M.RAGHAVANUNNI, AGED 66 YEARS, S/O.PARAMESWARAN NAIR, "SREE LAKSHMI" KUNNATHUR MEDU POST, SRENAGAR COLONY, PALAKKAD. BY ADV. SRI.U.BALAGANGADHARAN RESPONDENTS: --------------- 1. THE UNION OF INDIA REPRESTENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI. 2. CONTROLLER OF DEFENCE ACCOUNTS (PENSION) ALLAHABAD. 3. THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS, WEST BLOCK, NO.5 RK PURAM, NEW DELHI. 4. THE CONTROLLER OF DEFENCE ACCOUNTS, SOUTHERN COMMAND NO.1,FINANCE ROAD,PUNE-1. 5. THE ENGINEER IN CHIEF, ARMY HEAD QUARTERS, NEW DELHI. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------------- W.P.(C) No.16245 OF 2009 ------------------------------------- Dated this the 22nd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner was the applicant in O.A.No.1029/2000 before the Central Administrative Tribunal, Ernakulam Bench. He was an Engineer, who worked in the Military Engineering Service, from 5.1.1976 to 9.1.1982. He was discharged from service on tendering resignation. His resignation was accepted and he was discharged from service on 9.1.1982. The petitioner submits, thereafter, he was representing before the authorities claiming that he should be paid terminal benefits for the service rendered by him. But, the respondents took the stand that since he resigned from service, the service rendered by him before that stood forfeited. Therefore, claiming pension and other terminal benefits, he approached the Central Administrative Tribunal. The C.A.T. dismissed the Original Application on the ground of delay. The writ petitioner moved this Court and this Court found that the claim for pension gives rise to recurring course of action and non-payment is a continuing injury. Therefore, it as held that the claim is not barred by limitation W.P.(C) No.16245/2009 2 and the matter was remitted to the Tribunal for the fresh disposal of the Original Application, in accordance with law. The Original Application was re-heard and by Ext.P5 order it was again dismissed. Aggrieved by Ext.P5, the Writ Petition was filed. 2. The claim of the writ petitioner was rejected by relying on Rule 26(1) of the CCS (Pension) Rules, 1972, as interpreted by the Apex Court in Union of India & others v. Braj Nandan Singh [2005(8) SCC 325]. To get over the decision, the writ petitioner in this Writ Petition challenges the constitutional validity of the Rule 26(1) of the CCS (Pension) Rules, before this Court. But, we notice that the validity of the said Rule was not raised before the C.A.T. When confronted with the said position, learned counsel for the petitioner submitted that the Tribunal being the creation of a Statute cannot consider the challenge against the validity of the aforementioned Rule. Generally, it is an accepted position in law that a Tribunal constituted by an Act cannot consider the validity of the provisions of that Act or the Rules framed thereunder. But, the said principle is not applicable to the C.A.T. constituted under W.P.(C) No.16245/2009 3 the provisions of the Administrative Tribunal's Act, 1985. The said Act was framed by the Parliament invoking its power under Article 323A of the Constitution of India. The Tribunal has been vested with all the powers of the High Court including the power to declare a Rule concerning service matter ultravires. This position is no longer res integra, in view of the decision of the Apex Court in S.P.Sampath Kumar v. Union of India [AIR 1987 SC 386]. The validity of the Rule having not been raised before the C.A.T., cannot be permitted to be raised before this Court for the first time. Accordingly, the Writ Petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps