Central Administrative Tribunal - Mumbai
Rajnarayan Bhagwatiprasadjunior ... vs The Union Of India on 25 September, 2013
1 O.A.No.572, 573, 537/2013 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI O.A. Nos. 573, 572, 537/2013 Date of decision : September 25, 2013 Coram : Hon'ble Shri Justice A.K.Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A) O.A. No. 573/2013 Rajnarayan BhagwatiprasadJunior Engineer Gr.II, Central Railway, Matunga Workshop, Mumbai 400 019 R/at Vastunirman Co. Society, B Wing Room No. 04, Aaajad Nagar, Mira Road, Mumbai 401 105 .... Applicant O.A. No. 572/2013 Vidyadhar Manishankar MhatreJunior Engineer Gr.II, Central Railway, Matunga Workshop, Mumbai 400 019 R/at Central Railway Colony, Matunga Building No. 125, Mumbai. ... Applicant O.A. No. 537/2013 Harishchandra R. Shukla, Junior Engineer Gr.II, Central Railway, Matunga Workshop, Mumbai 400 019 R/at Sudhakar Mama Desai Chawl, Room No. 3, Tulshi papa Pipe Line, Bhandup (West), Mumbai 400 078. ... Applicant (By Advocate Shri D.V. Gangal) Versus 1. The Union of India, 2 O.A.No.572, 573, 537/2013 Through The General Manager, Central Railway, CSTM, Mumbai 400 001. 2. The Chief Workshops Manager, Matunga Workshop, Central Railway, Mumbai 400 019. 3. The Chief Workshop Manager, Locomotive Workshop, Central Railway, Parel Workshop, Parel, Mumbai 400 012.... Respondents common in all the three O.A.s ORDER (ORAL) Per: Justice A.K. Basheer, Member (J)
These three Original Applications are being disposed of by this common order since a common issue is involved in them and the three applicants are similarly situated.
2. Applicants are stated to be working now as Junior Engineer-Grade II at Matunga Workshop under the Central Railway in the scale of pay of Rs. 50008000. They were promoted to the above grade with effect from February 27, 2012. However, they contend that they ought to have been promoted to the above grade with effect from November 1, 2003. They pray for an appropriate direction to prepone their promotions accordingly. The other prayer is to issue a declaration that the Cadre Strength of Mistry/Junior Engineer at Matunga Workshop as on October 30, 2003 was 129 and not 116.
3. But curiously the first and primary prayer in 3 O.A.No.572, 573, 537/2013 these Original Applications is to quash and set aside Annexure A.1 to A.3 communications issued by respondent No.1 and 2 under the Right to Information Act 2005 (hereinafter referred to as the Act). While Annexure A.1 and A.3 are issued by the Deputy Chief Workshop Manager in his capacity as Public Information Officer and in response to the request made under the Act, Annexure A.2 is an order passed by the Additional General Manager/First Appellate Authority under the said act.
4. To a specific query made by us to the learned counsel for the applicant as to whether this Tribunal has jurisdiction to quash the orders passed by the authorities under the Right to Information Act, Shri Gangal insisted that this Tribunal is vested with such power. In his attempt to persuade us to agree with the above proposition, learned counsel has invited our attention to two judgements rendered by their Lordships of the Supreme Court in Centre for PIL vs. UOI and Anr. (2011 (4) SCC 1) and also in S. Rangarajan vs. P. Jagjivan Ram (1989 (2) SCC 574). He also referred to two judgments rendered by the Allahabad High Court in Kum. Asma Anjum vs. Controller of Examinations and Ors. (2010 Lawpaid (All.) 424) and also in Surendra Singh vs. State of U.P. (AIR 2009 All. 106).
4O.A.No.572, 573, 537/2013
5. We will deal with the question whether this Tribunal can entertain such a challenge against orders passed by the authorities under the Right to Information Act, particularly on the face of Sec. 23 thereof, a little later. In our view a brief reference to certain basic and essential facts is necessary to understand the crucial aspects of the pivotal issue involved in these cases.
6. The case of the applicants as discernible from the pleadings is that during 2002-03 they were working as Supervisor/Mistry in the scale of Rs. 4500//7000 with special pay of Rs.100. At that time Senior Technician/Technician Skilled I was placed in the scale of Rs.5000-8000. However, the Senior Technician/Technician Skilled Grade I worked under Supervisor/Mistry, even though the former was placed in higher scale of pay. According to the applicants they were promoted from the post of Supervisor/Mistry to the grade of Senior Technician/Junior Engineer Grade II in the scale of Rs.5000-8000 during October 2003. The above order was challenged by these applicants before this Tribunal in O.A.No.652/2004 contending that it was in effect a reversion and not a promotion. The above case was disposed of by this Tribunal by a common order dated March 11, 2005. It appears that the applicants thereafter continued as Supervisor/Mistry 5 O.A.No.572, 573, 537/2013 in the scale of pay of Rs.4500-7000 with Special Pay ofRs.100 till they were promoted as Junior Engineer Grade II with effect from February 27, 2012. Applicants contend that the cadre strength of Junior Engineer Grade II as on October 30,, 2003 was in fact 129 and not 116 as contended by the Railway Administration at that time and therefore, they were entitled to be promoted as Junior Engineer Gr.II way back in 2003 itself. Is the above contention tenable?
7. It may at once be noticed that the controversy relating to promotion/reversion as well as cadre strength of J.E. II were the subject matter of a batch of Original Applications before this Tribunal which were disposed of by a common order on March 11, 2005. In fact all the three applicants in these cases had filed O.A.No. 652/2004 along with one Shrikant Jagannath Kore. In addition to this, applicant in O.A.No. 572/2013 was a party in O.A.614/2004 also along with two others.
8. For a better understanding of the issues involving in the above batch of cases, it will be apposite to refer to the relevant portions of the common order passed by this Tribunal. 2. The facts in all the cases are that there are no Recruitment Rules (for short R.R) for the post of Mistry. However, promotions to the post have been granted 6 O.A.No.572, 573, 537/2013 after holding a viva-voce test amongst Skilled Artisans Grade-I and Grade II. Those who passed the viva-voce are promoted as Mistry. The pay scale of Mistry is Rs. 4500-7000 (+ Rs.100/-S.A.) It is a supervisory post. The pay scale of Technician/Artisan Grade I is also Rs. 4500-7000/-. The pay scale of Sr. Technician is Rs. 5000-8000/-. However, the post of Technicians/Sr. Technicians Skilled Grade-I and Grade-II are in workers cadre, whereas the posts of Mistry, Junior Engineer Grade-II and Junior Engineer Grade-I are supervisory posts. On 09/10/2003 the Railway Board issued instructions regarding restructuring of certain Group 'C' and Group 'D' cadres with a view to strengthening and rationalizing the staffing pattern of the Railways. In Para 13(a) it has been provided that all the posts of Supervisors (erstwhile Mistries) in the grade of Rs.4500-7000 + Rs.100 Special Allowance (excluding Supervisors (P.Way) should enbloc be upgraded to the posts of Junior Engineer Grade-II in the pay scale of Rs.5000-8000. Subsequently, on 24/03/2004 C.M.W's Office at Mumbai on the subject of 'upgradation of the post of Maistry' intimated various subordinate offices as follows:
Vide this Office letter of even number dated 16/02/2004, 103 posts of Maistry have been upgraded to JE-II Grade Rs.5000-8000 (RSRP) with effect from O.A.No.572, 573, 537/2013 7 01/11/2003. 13 posts of been surrendered with Maistry effect have from 01/11/2003. Now there will be no cadre of Maistry. The present incumbents will continue to work as Maistry till they retire or are promoted. No post of Maistry will be filled in hereafter. This is for information and updating your shop office record. After that, vide order dated 06/09/2004 the applicants were reverted from the post of Supervisors (Mistries) to Senior Technician in the Grade of Rs.5000-8000 and Technician Grade-I in the scale of Rs. 4500-7000 with immediate effect. The reason given was that the sanctioned strength of Supervisors (Mistries) who were in the scale of Rs.4500-7000/-+ 100 Special Allowance was 116 and after the restructuring whereby these Supervisors (Mistries) are to be upgraded to the post of Junior Engineer Grade-II in the scale of Rs.5000-8000, those who are in excess of the sanctioned strength due to erroneous promotion had to be reverted. All the applicants are aggrieved by the said order; whereas the relief sought in O.A. 651/2004 (S.D. Bansode), 652/2004 (H.R. Shukla & 3 Others) and 750/2004 (R.R. Yadav & 2 Others) is mainly against reversion in the other cases i.e. O.A. 614/2004 (H.R. Shukla & 2 Others) and O.A. 316/2004 (M. Tangamuthu & 5 8 O.A.No.572, 573, 537/2013 Others), the prayer is for promotion to the post of Junior Engineer Grade-II as a follow up to the Railway Board order dated 09.10.2003 regarding restructuring. In O.A. No.614/2004 and 652/2004 three applicants are common, namely H.R.Shukla, V.M. Mhatre and S.J. Kore. There is an additional applicant Shri Rajnarayan Bhagwatiprasad in O.A. 652/2004. O.A. No. 316/2004 has been filed by six applicants. The prayer is for promotion. The promotion was given to applicant No.1, 2 and 5 in the case and for the other three i.e. R.R. Yadav, S.J. Khan and R.K. Patil, who were reverted as a result of order dated 06/09/2004 the grievance is against their reversion. For the sake of convenience initially we shall refer to O.A. 651/2004 (S.D. Bansode). (Emphasis supplied)
9. A perusal of the above paragraphs extracted from the common order will show that subsequent to the upgradation of 103 posts of Mistry to J.E. Grade, in the scale of Rs.5000-8000 with effect from November 1, 2003, the cadre of Mistry ceased to exist. However, it was decided by the Administration that the present incumbents (Mistries) will continue to work as Mistries till they retire or were promoted. It can be seen further that the present applicants in these three cases had filed O.A. No. 9 O.A.No.572, 573, 537/2013 652/2004 who were working as Supervisor/Mistry at that point of time challenging their "reversion"
from the post of Supervisor (scale of pay of Rs.4500-7000 + 100 Special Allowance) to Junior Engineer-Gr.II/Senior Technician in the grade of Rs. 5000-8000. Dealing with the above issue the Tribunal in its common order observed thus:
"It was not clarified by any party as to how this so called reversion will effect them financially. Shri Gangal explained that such reversion is from Supervisor Cadre to workers cadre and there is a downward change in the responsibilities and status. In any case, in case they want to continue in the post of Supervisor (Mistry) in the scale of Rs.4500-7000 + Rs.100/-S.A. instead of being reverted to the post of Senior Technician in the scale of Rs.50008000 then they may be continued on the post of Supervisor (Mistry) in the scale where they are at present. However, this should be on the basis of a clear option given by these applicants that they prefer to remain in the scale of Rs. 4500-7000/-+ Rs.100/ S.A. instead of reverting to the post of Senior Technician in the scale of Rs.50008000/-.[ Emphasis supplied]"
10. In this context it is pertinent to note that the present applicants had in the earlier round of litigation (O.A. 652/2004) challenged the order of Restructuring itself and prayed for issue of a 10 O.A.No.572, 573, 537/2013 declaration that they are entitled to continue in the scale of Rs. 45007000. The Tribunal after considering the impact of restructuring and also the rival contentions as regards the cadre strength of J.E. Grade II category held in para No.10 of the common order that the said prayer for promotion to the cadre of Junior Engineer Grade II in the higher pay scale cannot be granted. This view was taken by the Tribunal after holding thus:
....Whereas the respondents have repeatedly stated in all the cases that cadre strength is 116, Shri Gangal stated that the cadre strength should be 134 as some of the trades have not been counted. In view of the categorical statement made by the respondents that the total strength in the cadre of Supervisor (Mistry) is 116, we do not propose to disbelieve them. The order relating to cadre restructuring dated 09.10.2003 mentions that the restructuring is only in relation to cadre strength and this has to be a self financing exercise and savings have to be effected through surrender of posts. (emphasis supplied)
11. The Tribunal had also referred to the relevant clauses in the cadre restructuring order after 11 O.A.No.572, 573, 537/2013 making the above observation. In short, in the earlier round of litigation (O.A.No. 652/2004) it was categorically concluded that
a) the applicants were not entitled to be promoted as J.E. Grade II with effect from year 2003 as claimed by them.
b) the cadre strength of J.E.II in 2003 after restructuring was only 116.
12. The above order passed by the Tribunal was never challenged by the applicants and therefore, they are estopped from raising the same issues yet again. In this context we may, at the risk of repetition, yet again observe that the applicants had continued as Mistry pursuant to the above common order obviously after exercising a clear option as directed in the order.
13. However it is contended by the applicants in the present cases that the issue relating to the cadre strength had been kept alive by the Administration all these years. Applicants have primarily referred to the so called deliberations/discussions held under the auspices of the Permanent Negotiating Machinery comprising the representatives of the Administration and the employees. Applicants have also referred to the so called recommendation made by respondent No.3 for pegging the cadre strength at 129. Applicants 12 O.A.No.572, 573, 537/2013 contend that in view of the discussions held at the meeting of the Permanent Negotiating Machinery, the Railway Board had directed that the issue of promotion of the applicants as J.E should be decided at General Manager level in consultation with local Unions i.e. National Railway Mazdoor Union. But still, the issue was never decided finally. It is further contended by them that they had filed O.A. No. 605 to 608/2011 before this Tribunal praying for a direction to the competent authority to consider the above long pending issue regarding their retrospective promotion as Junior Engineer Grade II with effect from November, 1, 2003.
14. It is true that this Tribunal had, without considering any other relevant aspect of the issue, disposed of the Original Applications by its order dated November 16, 2011 with a direction to the authorities concerned to consider and take a decision in the matter. It is also true that liberty was granted to the applicants "to approach the appropriate forum as per law after receiving final orders from the appropriate respondents."
15. Learned counsel contends that in view of the above order the applicants are still within their rights to agitate this issue afresh. We are afraid that the above contention is wholly unsustainable for reasons more than. It has to be noticed at once 13 O.A.No.572, 573, 537/2013 that both the above issues relating to retrospective promotion and cadre strength had been decided by this Tribunal in O.A.No. 652/2004 filed by the applicants way back in 2004. The said decision had become final as it was never challenged by the applicants. It is true that the applicants now claim that the said issue is still "live" because of the so-called deliberations made at the forum of Permanent Negotiating Machinery. But in our view, applying the principles of estoppel and resjudicata, the applicants cannot reagitate the matter at this belated stage.
16. As regards the so called liberty given by this Tribunal to get the issue reconsidered by the competent authority, we may only refer to the following observations made by Their Lordships of the Supreme Court in C.Jacob vs. Director of Geology and Mining And anr. (2008) 10 SCC 115. 9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any decision on rights and obligations of parties. Little do they realise the consequences of such a direction 14 O.A.No.572, 573, 537/2013 to consider. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to consider. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner,the bar of limitation or the laches gets obliterated or ignored.
10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits 15 O.A.No.572, 573, 537/2013 of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department, or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of acknowledgment of a jural relationship to give rise to a fresh cause of action.
12. ..................................... .........
13. .................................... ........
14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and 16 O.A.No.572, 573, 537/2013 care in issuing directions for consideration. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing consideration of such claims.
17. Having considered the facts and materials available on record, particularly in the light of the above observations made by the apex Court we do not find any reason to entertain this Original Application since we have no hesitation to hold that the applicants are not entitled to get a declaration that the cadre strength of Mistry/Junior Engineer as on 1.10.2003 was 129 and not 116. Consequently they are also not entitled to get their promotions preponed to the post of Junior Engineer Grade II with retrospective effect from November 1, 2003.
18. We will now consider the question whether this Tribunal has got jurisdiction or power under sec. 19 of the Administrative Tribunals Act, 1985 to quash a communication sent by the Information Officer/Appellate Authority under the Right to Information Act, 2005. Admittedly, Annexure A.1 and A.3 communications have been issued by Public Information Officer under Act 2005 on applications submitted before the said authority seeking certain 17 O.A.No.572, 573, 537/2013 information and Annexure A.2 is an order passed by the Appellate Authority under the said Act. According to the learned counsel for the applicants this Tribunal is vested with power to quash such information/communication issued by the Public Information Officer/Appellate Authority under the Act of 2005.
19. We have carefully perused the two decisions of the apex Court cited by the learned counsel in Centre for PIL and in S. Rangarajan (supra). These two decisions do not deal with the issue that arises for consideration in this case in any manner at all. The two decisions rendered by the Allahabad High Court also do not have any relevance to the issue on hand.
20. In this context it may be noticed that the jurisdiction, powers and authority of this Tribunal have been clearly delineated in Chapter III of the Administrative Tribunals Act 1985. Section 14 (1) of the Act postulates that 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 all service matters as well as recruitment and matters concerning recruitment to any All India Service or 18 O.A.No.572, 573, 537/2013 to any Civil Service of the Union or a civil post under the Union etc. Section 3 (q) defines service matters, thus:
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 matters whatsoever;
21. Annexure A.1 to A.3 are undoubtedly some pieces of information pertaining to certain issues in relation to the service of the applicants.
Admittedly these informations were furnished on specific requests made to the competent authority under Act of 2005. The above information gathered by the applicants can undoubtedly be used by them for all collateral purposes in a court of law or before any other competent authority. However, such 19 O.A.No.572, 573, 537/2013 information cannot be sought to be quashed and set aside before this Tribunal in view of the prohibition contained in Sec.23 of Act 2005. Section 23 reads thus:
23: Bar of jurisdiction of courts: No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.
22. The provisions contained in the Section quoted above, will make it abundantly clear that this Tribunal cannot exercise jurisdiction in respect of communication/information furnished by the competent authority under Act of 2005, leave alone quashing of those communications in a proceeding instituted u/s 19 of the Act, 1985.
23. It is pertinent to note that a procedural mechanism has been provided under Act of 2005 to secure access to information. The preamble of the Act itself makes it manifestly clear that the very object of the Act is to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities. As has been mentioned earlier the information so gathered can be used as a tool to preserve the legal rights of the citizens.
20O.A.No.572, 573, 537/2013 The said information will help in promoting transparency and accountability in the working of every Public Authority since such informations are vital to the functioning of any democracy. Annexure A.1 to A.3 in our view, cannot be challenged before this Tribunal under Sec.19 of the Administrative Tribunals Act for the reasons stated hereinabove. Even assuming the information contained in Annexure A.1 to A.3 are adverse to the applicants their remedy is not to seek quashing of those orders under Sec. 19 of the Act 1985.
24. In this context we may also mention that Annexure A.2 order passed by the appellate authority which is common in all these cases is addressed only to the applicant in O.A.537/2013 and that too in response to some information sought by him in relation to his service. Curiously applicants in O.A. 572/13 and 573/13 have also challenged the very same order even though they are not parties to the said proceeding before the appellate authority. Still further, the appellate authority had made it clear in Annexure-A-2 communication that the applicant would be at liberty to prefer an appeal if he was not satisfied with the information furnished to him. Obviously applicants have not exhausted the statutory remedy.
25. Having carefully considered the entire 21 O.A.No.572, 573, 537/2013 materials available on record and having heard the learned counsel for the applicants, we do not find any reason to entertain these Original Applications. Therefore, the Original Applications are dismissed in limine.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) sj*