Central Administrative Tribunal - Delhi
Ndmc Avam Karamchari Bachao Morcha vs New Delhi Municipal Council on 5 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. No. 63/2013 (WPC No.5244/2013) Reserved on : 01.11.2013 Pronounced on: 05.12.2013 HONBLE MR. SUDHIR KUMAR, MEMBER (A) HONBLE MR. V. AJAY KUMAR, MEMBER (J) NDMC Avam Karamchari Bachao Morcha, 66, Palika Gram, Sarojini Nagar, New Delhi 110 023 Thr General Secretary Shri Mahatma Mahto .. Applicant (By Advocate : Shri S.C. Jindal) Versus 1. New Delhi Municipal Council, Palika Kendra, New Delhi 110 001 Through its Chairperson. 2. Secretary, New Delhi Municipal Council, Palika Kendra, New Delhi 110 001. 3. Director (Personnel), New Delhi Municipal Council, Palika Kendra, New Delhi 110 001. 4. Shri V.C. Chaturvedi, Advisor (Revenue & Legal), New Delhi Municipal Council, 8th Floor, Palika Kendra, New Delhi 110 001. .. Respondents (By Advocate : Mrs. Jyoti Singh, Sr. counsel with Ms. Tinu Bajwa and Shri Vaibhav Agnihotri) ORDER
Mr. V. Ajay Kumar, Member (J) Heard, Shri S.C. Jindal for the applicant and Mrs. Jyoti Singh, learned senior counsel for the respondents on the issue of maintainability of the present T.A.
2. The applicant, NDMC Avam Karamchari Bachao Morcha, a Registered Union of employees of NDMC under the Indian Trade Unions Act, 1926, through its General Secretary, originally filed the Writ Petition (C) No.5244/2013 before the Honble High Court of Delhi seeking the following reliefs:
(a) To issue a Writ of Quo Warranto holding that the extension of Respondent No.4 as Advisor (Revenue) & Advisor (Legal) NDMC is illegal and void under the New Delhi Municipal Council Act, 1994 and instructions of the Government issued from time to time and the post be filled up by Respondent No.1 in accordance with law.
To set up an independent enquiry into the alleged illegality and conspiracy made by Respondents with other officials of NDMC who are giving extension after extension to Respondent No.4 in violation of statutory provisions as well as Government instructions, resulting in loss to Public Exchequer.
Or Pass any other order or orders as this Honble Court deem fit and proper in the facts and circumstances of the case.
(c) Cost of the Petition be also allowed to the Petitioner.
3. The Honble High Court of Delhi noticing that the subject matter of the Writ Petition pertains to a service matter, instead of dismissing the same, at the request of the counsel for the petitioner, transferred to this Tribunal for its decision vide Order dated 23.08.2013. Accordingly, the Writ Petition is transferred and renumbered as T.A. 63/2013.
4. Shri S.C. Jindal, the learned counsel appearing for the applicant Union submits that the present T.A. is maintainable in the same form and this Tribunal has jurisdiction, power and authority under the Act to adjudicate the matter. The learned counsel would submit that as per Section 14 of the Administrative Tribunals Act, 1985, the Central Administrative Tribunal shall exercise all the jurisdiction, powers and authority exercisable immediately before the notified date by all courts except the Honble Supreme Court, and, hence, this Tribunal has jurisdiction to entertain the present T.A.
5. The learned counsel for the applicant would also submit that once the Honble High Court of Delhi, while transferring the Writ Petition to this Tribunal, observed that the subject matter pertains to a service matter, as envisaged under Section 3(q) of the Administrative Tribunals Act, 1985, and will have to be decided by this Tribunal as per Sections 14 and 19 of the Act, and this Tribunal cannot refuse to entertain the T.A. on the ground of maintainability as the same amounts to violation of the orders of the Honble High Court of Delhi. The learned counsel also submits that since Rule 4(5) of C.A.T. (Procedure) Rules, 1987 permit an Association to file an O.A. on behalf of its Members, and on that ground also, the present T.A. is maintainable.
6. Mrs. Jyoti Singh, the learned senior counsel appearing for the respondents would submit that in view of Sections 14 and 19 of the Administrative Tribunals Act, 1985 read with Section 3(q) of the Administrative Tribunals Act, 1985, the present T.A. is not maintainable and is liable to be dismissed in limine on that ground alone.
7. In view of the aforesaid rival submissions, it is necessary to examine certain provisions of the Central Administrative Tribunals Act and the rules issued thereunder. Sections 2, 3(q), 14 and 19 of Administrative Tribunals Act, 1985 and Rule 4(5) of CAT (Procedure) Rules, 1987 read as under:
2. Act not to apply to certain persons : The provisions of this Act shall not apply to-
(a) any member of the naval, military or air forces or of any other armed forces of the Union;
(b) Clause (b) omitted by Act 19 of 1986, sec. 3 (w.r.e.f. 1.11.1985).
(c) Any officer or servant of the Supreme Court or of any High Court [or courts subordinate thereto;
(d) any person appointed to the secretarial staff of either House of Parliament or to the secretarial staff of any State Legislature or a House thereof of, in the case of a Union Territory having a Legislature, of that Legislature.
3.(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;
14. Jurisdiction, powers and authority of the Central Administrative Tribunal.-
(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation to-
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence service, being, in either case, a post filled by a civilian;
(b) all service matters concerning-
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c) ] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred in clause (c) ] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, 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 [or society] owned or controller by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.
[Explanation - for the removal of doubts, it is hereby declared that references to Union in this sub-section shall be construed as including references also to a Union territory.] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controller by Government, not being a local or other authority or corporation [or society] controller or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dated may be so specified under sub-section in respect of different classes of or different categories under any class of, local or other authorities or corporations [or societies].
(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) 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.
19. Applications to Tribunals (1) Subject to the other provisions of this Act a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.
Explanation - For the purposes of this sub-section, order means an order made
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation [or society] owned or controlled by the Government ; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation [or society] referred to in clause (a).
(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) [in respect of the filing of such application and by such other fees for the service e or execution of processes, as may be prescribed by the Central Government].
[(3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.] (4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.
Rule 4(5) of CAT (Procedure) Rules, 1987 4. Procedure for filing applications xxxxx x xxxxx x xxxxxxx (5) (a) Notwithstanding anything contained in sub-rules (1) to (3) the Tribunal may permit more than one person to join together and file a single application if it is satisfied, having regard to the cause and the nature of relief prayed for that they have a common interest in the matter.
(b) Such permission may also be granted to an Association representing the persons desirous of joining in a single application provided, however, that the application shall disclose the class/grade/categories or persons on whose behalf it has been filed [provided that at least one affected person joins such an application]
8. The examination of the aforesaid provisions would take us to the inescapable conclusion that the TA is not maintainable and the reasons thereof are narrated hereinafter.
9. As per Section 3(q) of the Act, `service matters means, in relation to a person, all matters relating to the conditions of his service. Rule 4(5)(b), referred to above, permits an association to file an Application, provided that at least one affected person joins such an application. The sole applicantUnion filed the present TA, questioning the extension of service of Respondent No.4 as Advisor (Revenue) & Advisor (Legal), by seeking to issue a writ of quo warranto, that to admittedly, without there being any affected person, as one of the applicants. Further, the learned counsel for the applicant, in reply to a specific question put to him that whether any of the members of the applicant - Union, would be claiming or entitled for the post of Advisor (Revenue) and Advisor (Legal) which is in question, in the event of the TA is allowed, answered that none of the members of the applicant-Union would get any personal service benefit, even if the TA is entertained and allowed. In view of the definition of the `service matter under Section 3(q) of the Act, referred to above, and also in view of the disentitlement of the applicant-Union, from maintaining the TA there being at least one affected person joined in the application, the TA is not maintainable.
10. The contention of the learned counsel for the applicant-Union that the Central Administrative Tribunal shall have to exercise all the jurisdiction, powers and authority exercisable by all Courts, before the notified date, under Section 14 of the Act, is untenable, since the same is subject to the pre-fix of the said Section i.e. `Save as otherwise expressly provided in this Act. In view of Section 3(q) read with Rule 4(5)(b), once we hold that the applicant-Union is not an aggrieved person it cannot file the present TA.
11. Similarly, Section 19 of the Act, referred to above, provides for filing an application by the aggrieved persons only. An application in the nature of Public Interest Litigation is not permissible under the Act.
12. In B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association & Others, (2006) 11 SCC 731, the Honble Apex Court held that in service matters, only the non-appointees can assail the legality or correctness of the action and that third party has no locus standi to canvass the legality or correctness of the action.
13. In view of the categorical statement of the learned counsel for the applicant-Union that none of the members of the applicant-Union are neither the claimants or non-appointees for the post of Advisor (Revenue) and Advisor (Legal), in respect of which it is seeking to issue a quo warranto, and even if the T.A. is allowed, no personal service benefit would be gained by any of the applicant-Union members, it is established that the T.A. is filed as a Public Interest Litigation (PIL).
14. In Dr. Duryodhan Sahoo and Others v. Jitendera Kumar Mishra and Others, (1998) 7 SCC 273, the Honble Apex Court while answering a question that whether an Administrative Tribunal constituted under Administrative Tribunals Act, 1985 can entertain a Public Interest Litigation (PIL), while holding that a Public Interest Litigant is not a person aggrieved, in terms of Section 19 of the Administrative Tribunals Act, 1985, held that Administrative Tribunal constituted under the Act cannot entertain a PIL at the instance of a total stranger.
15. The contention of the learned counsel for the applicant-Union that since the Honble High Court of Delhi while transferring the WP (C) to this Tribunal, by its order dated 23.08.2013, has already held that the subject matter is a service matter and has to be decided by CAT, therefore, this Tribunal cannot refuse to entertain the TA by taking a different view, is untenable. We are not holding that the subject matter involved in the TA is not a `service matter. What we hold is that the applicant-Union, being a sole applicant and being not a person aggrieved, cannot file the present TA, which is in the nature of a Public Interest Litigation.
16. Moreover, we are of the considered view that the Honble High Court of Delhi transferred the said WP to this Tribunal for its decision, on merits, obviously, including the preliminary issue of maintainability, which duty cast upon us is discharged by passing the present order.
17. For the aforesaid reasons and in view of the legal dicta referred to above, the TA is dismissed, being not maintainable, under the Administrative Tribunals Act, 1985 and the Rules made thereunder. There shall be no order as to costs.
(V. AJAY KUMAR) (SUDHIR KUMAR) MEMBER (J) MEMBER (A) /Jyoti/nsnrvak/