IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) No. 1765 of 2007 Kundan Singh Bisht ………….Petitioner Versus Director General of Supplies and Transport and others ……...Respondents. Present : Mr. Manoj Tiwari, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner. Mr. Raman Kumar Shah, Standing Counsel present for the Union of India. Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Manoj Tiwari, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner and Ms. Anjali Bhargava, Standing Counsel for the State of Uttarakhand. 2. The father of the petitioner who was Mazdoor (class IV) in the Indian Army had died while in harness on 19.5.2003. The post of “Mazdoor” is admittedly a civil post in the Indian Army. After the death of his father, the petitioner applied for appointment on compassionate grounds under the dying in harness rules applicable in the respondent department, which was rejected. Consequently the petitioner filed the present writ petition. 3. Such matters in the first instance are liable to be heard by the Central Administrative Tribunal and not by this Court by means of a writ petition, particularly in view of the law laid down by the Constitution Bench of the Hon’ble Apex Court in L. 2 Chandra Kumar vs. Union of India and others AIR 1997 SC 1125. 4. Learned Senior Counsel appearing for the petitioner Mr. Manoj Tiwari, on the other hand, submits that the petitioner cannot approach Central Administrative Tribunal by means of a claim petition inasmuch as the petitioner is not an employee of respondent department but it was his father who was employed in the respondent department 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. 5. Regarding first submission of the petitioner, reliance has been placed by the counsel appearing for the Union of India Ms. Anjali Bhargava on certain provisions of the Administrative Tribunals Act. Firstly she 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) … 3 (e) … (f) … (g) … (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;” 6. 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) … 4 (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 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.” 7. 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”. 8. Thirdly, the counsel for the Union of India Ms. Anjali Bhargava 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 5 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 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.” 9. 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 6 (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” 10. The entry no. “c” is “Compassionate Appointment/Appointment of Dependants Dying in Harness”. 11. 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. 12. 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 on the ground of alternative remedy at such a belated stage, is also not acceptable for the reason that 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 7 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. In any case it is not too late in the day to dismiss the matter on the ground of alternative remedy. 13. 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 would be at liberty to plead for condonation of delay of his petition. It is hoped and expected that the pendency of the present writ petition before this Court 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. 14. For the reasons as stated above, writ petition is liable to be dismissed and is hereby dismissed. 15. No order as to costs. (Sudhanshu Dhulia, J.) 24.11.2011 Avneet