IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 WP(C).No. 10220 of 2006(S) -------------------------- OA.839/2002 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. DIRECTOR, VIKRAM SARABHAI SPACE CENTRE, THIRUVANANTHAPURAM. 2. SECRETARY, DOS AND CHAIRMAN, ISRO, BANGALORE. 3. UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF PERSONEL, PUBLIC GRIEVANCES AND PENSION, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERALA RESPONDENT: --------------- SMT.JOSAMMA MATIUS, W/O.MATIUS VENGAL, VENGAL MANAKKAL, KAKKANAD LANE, KESAVADASAPURAM, THIRUVANANTHAPURAM. ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL FOR R1 SRI.S.VISHNU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.10220/2006 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF O.A.NO.839/2002 OF THE C.A.T. ERNAKULAM DT.28.11.2002. EXT.P2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.ANO.839/2002 DT.26.2.2003. EXT.P3: COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS HEREIN O.AN839/2002 DT.05.08.2005. EXT.P4: COPY OF THE ORDER DT.22.12.2005 IN O.A.NO.839/2002 OF THE CAT, ERNAKULAM. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------- W.P.(C) No.10220 OF 2006 ---------------------------------------- Dated this the 12th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in O.A.No.839/2002 before the Central Administrative Tribunal, Ernakulam Bench, are the writ petitioners. Applicant therein is the respondent. 2. The brief facts of the case are the following: The applicant/respondent joined service under the 1st respondent as temporary Laboratory Technician (Medical) on 9.2.1970 in the scale of pay of Rs.150-240/-. Later, as part of categorisation of posts, she was put in the category of Laboratory Technician 'B' on 1.11.1971 in the scale of pay of Rs.170-290/-. Later, she was promoted as Laboratory Technician 'C' with effect from 11.9.1976. She continued in that post till her retirement on 31.5.2002. She claimed the benefit of Assured Career Progression Scheme (ACP Scheme) introduced by the Central Government with effect from 9.8.1999. Seeking W.P.(C) No.10220/2006 2 the said relief, she approached the C.A.T. earlier by filing O.A.No.356/2002. The said Original Petition was disposed by the Tribunal by order dated 30.5.2002, directing the competent authority to consider her representation. Based on the said judgment, the applicant filed a detailed representation before the competent authority. But, the same was rejected. According to the writ petitioners, the applicant was not eligible for the benefit of the ACP Scheme. Challenging the said stand and the order rejecting her representation, the present Original Application was filed. 3. The respondents resisted the application contending that the Para-medical personnel under them are governed by Flexible Complimenting Scheme (FCS) for career advancement. As per that Scheme, every three year, the claims of the employees for promotion are reviewed by the duly constituted DPC and they are promoted to higher grades. Since, in the case of Laboratory Technician, the highest post was Laboratory Technician Grade 'C', there was no further promotional avenue. The applicant was already promoted to that post in 1976. The W.P.(C) No.10220/2006 3 ACP Scheme introduced by the Government of India on 9.8.1999 is not applicable to the employees like the applicant, it was contended. 4. The Tribunal considered the rival submissions. It was noticed that under the FCS, if there is no promotional avenue, the Government have a duty to create new posts to accommodate the persons stagnating in the same post for several years. That was not done by the Government in this case. The benefits under the ACP Scheme were also not extended to the Para- Medical staff. In the above background, the Tribunal upheld the contentions of the applicant and granted relief to her. It was noticed that at the time of her retirement, she was drawing scale of pay of Rs. 5,500 - 9,000/-. The next standard/common promotional scale implemented by the Government of India on the recommendation of the 5th central Pay Commission was Rs.6500-10,500/-. So, it was ordered that the applicant shall be placed in the scale of pay of Rs.6,500 - 10,500/- with effect from 9.8.1999, the date on which the ACP Scheme came into force. The respondents in the Original Application have filed the W.P.(C) No.10220/2006 4 present writ petition, challenging the said order of the C.A.T., which is produced as Ext.P4, in this writ petition. They reiterated the stand they have taken before the C.A.T, in this writ petition also. 5. Having regard to the special facts of the case, we feel that the action of the C.A.T. has to be upheld. She joined the post of the Laboratory Technician 'C' on promotion in 1976. She continued in that post for 26 years and retired from it. The writ petitioners were bound to create a higher post for her under the Flexible Complementing Scheme. They have not done that. Therefore, when the ACP scheme came, its benefit should have been extended to the applicant. The same was also not done. When a statutory authority fails to do something, which it is bound to do, the Court may pass such orders, which the statutory authority should have passed, if it exercised its power properly. This view is supported by the decision of the Apex Court in Comptroller General of India v. K.S.Jagannathan [AIR 1987 SC 537]. The relevant portion of the said decision reads as follows: W.P.(C) No.10220/2006 5 “20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.” W.P.(C) No.10220/2006 6 6. The above declaration of law will apply to the C.A.T. also, as it is exercising the powers of the High Court in relation to service matters of Central Government employees. Technically, it may be contended that the Tribunal has exceeded its jurisdiction and the proper course open to it was to remit the matter to the respondents for appropriate decision. But, having regard to the special facts of the case, we are not inclined to invoke our discretionary jurisdiction in this case, in favour of the writ petitioners, based on their aforementioned technical plea. In the result, the writ petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps