Central Administrative Tribunal - Ernakulam
A.V. Damodaran vs The Chief Executive Officer on 11 February, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00538/2015
Thursday, this the 11th day of February, 2016
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
1. A.V. Damodaran, S/o. Kunhambu Nambiar,
aged 62, O.S., Cantt. Board, Kannur,
Akshaya House, Near RGM UP School,
Malapattam PO, Kannur - 670 631.
2. E.K. Hemaja, W/o. N. Suresh,
Accountant, Cantt. Board, Kannur,
Aged 62 years, Shivajyothis, Poothapra,
Azhikode, Kannur - 670 009. . . . . . Applicants
(By Advocate : Mr. Abdul Raoof Pallipath)
Versus
1. The Chief Executive Officer,
Cantonment Boad, Kannur - 17.
2. The General Officer Commandant-in-Chief,
Headquarters, Southern Command, Pune-411 001.
3. The Principal Director, Government of India,
Ministry of Defence Estate, Southern Command,
Pune - 411 001.
4. The Union of India, represented by its Secretary,
Ministry of Defence, South Block, New Delhi-
110 011. . . . . Respondents
(By Advocate : Mr. N. Anilkumar, Sr. PCGC)
This application having been heard on 5.2.2016, the Tribunal on
11.2.2016 delivered the following:
ORDER
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member -
The two applicants have approached this Tribunal seeking the following reliefs:
'(i) direct the 2nd and 3rd respondents to give sanction for fourth time bound higher grade to the applicants and to give consequential benefits;
(ii) to grant interest on the due amount on sanctioning the fourth time bound higher grade from the date of accrual till disbursement;
(iii) grant such other relief's as this Hon'ble Tribunal may deem fit and proper as on the facts and circumstances of the case.'
2. In the application the applicants contended that the subject matter of this application is within the jurisdiction of this Tribunal. That is refuted by the respondents.
3. In order to adjudicate the question of jurisdiction, brief facts necessary for the same can be stated thus:
1st applicant retired as Office Superintendent from the office of the 1 st respondent on 30.11.2012. The 2nd applicant retired as Chief Accountant from that office on 31.10.2012. It is stated that as per the provisions contained in the memorandum of settlement (Annexure A1) between the Cantonment Executive Officer (respondent No. 1) and All India Cantonment Board Employees Federation (not a party to this OA), the cantonment board employees are eligible to get the pay and allowances of the equated categories of the State Governments employees in which the cantonment is situated. As per the paragraph (7) of the Memorandum of Settlement (Annexure A1) in the event of revision of pay scales by a State Government after 1.9.1967, the revised pay scales and the formula for fixation of pay in the revised pay scales as specified by the State Government shall mutatis mutandis be made applicable to the cantonment employees in the State from the same date as in the case of State Government employees. The applicants contend that the Government of Kerala by its IXth Pay Revision dated 26.2.2011 sanctioned a 4 th time bound higher grade to employees on completion of 27 years of total service in the entry post and the regular promotion post(s)/time bound higher grade(s) taken together.
4. The respondents contend that since the applicants were admittedly the employees of the 1st respondent Cantonment Board they cannot contend that they are persons of any civil service of the union or a civil post under the union or to a post connected with the defence or in the defence services when only this Tribunal gets jurisdiction under Section 14(1)(a) of the Administrative Tribunals Act, 1985. The relevant portion of Section 14 reads thus:
'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 services, 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 to 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 controlled 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]'
5. It is not disputed that the Central Government can specify the Corporations or Societies or other authorities notified under sub-section (2) of Section 14 in respect of which sub-section (3) of Section 14 of the Act would apply. So far, 207 institutions were notified by the Central Government by virtue of the power conferred under sub-section (2) of Section 14 of the Administrative Tribunals Act. Admittedly the 1 st respondent Cantonment Board is not a corporation or society notified by the Central Government as stated above.
6. It is vehemently argued by the learned counsel for the applicants that the representation or memorandum submitted by the applicants to the 1 st respondent was forwarded to the 2nd and 3rd respondents along with the recommendation of the 1st respondent for grant of higher grade and pay scales to the applicants and others. The 2nd respondent did not approve the claim made in the said representation. It is further submitted by the learned counsel for the applicants that respondents 2 & 3 are the authorities to consider and grant the claims raised by the applicants. The 2nd respondent is the General Officer Commandant-in-Chief, Headquarters, Southern Command and the 3rd respondent is the Principal Director, Government of India, Ministry of Defence Estate, Southern Command. Therefore, according to the learned counsel since respondents 2 & 3 are to consider and grant the request made by the applicants it cannot be said that this Tribunal has no jurisdiction to entertain the petition.
7. This submission is resisted by the learned counsel for the respondents pointing out that even if the fund required for grant of higher pay as claimed by the applicants is provided to the 1st respondent by the Union of India that does not entitle the applicants to claim that they are in the service of the Central Government or any Corporation, Societies or any other authorities notified under the Act. It is true that the claim for higher pay is a service matter but the question is whether this Tribunal has jurisdiction to entertain the same. Admittedly the applicants are not members of all India service. There is nothing to show that the applicants are persons appointed to any civil service of union or any civil post under the union. They are admittedly the employees of the 1st respondent Cantonment Board. Cantonment Board is an independent legal entity created under the provisions of the Cantonment Board Act, 1924. There is a Cantonment Fund Servants Rules, 1937 which deals with the service matters of the employees of the Cantonment Board. The Cantonment Fund Rules, 1937 states that the rule shall apply to all persons employed by any Cantonment Board in India. It is also clarified as per Government of India, Ministry of Defence letter No. 25/63/C/L&C/67, dated 28.10.1967, that Cantonment Fund Servants are not Central Government Servants and they are not governed as a rule by the orders/instructions issued by the Ministry of Defence from time to time for the Defence Civilian Employees unless they are extended to the Cantonment Board employees with the prior approval of Ministry of Defence. In the absence of anything else it cannot be said that the applicants who are the employees of the 1st respondent Cantonment Board are Central Government employees.
8. The learned counsel for the respondents would submit that the Cantonment Board is separate from the Government and its employees are not the employees of the Central Government. Reliance has been placed on the decision rendered by the Hon'ble Supreme Court in Union of India & Ors. v. R.C. Jain & Ors. - AIR 1981 SC 951 where it was held that the employees of the Cantonment Board are employees of the Cantonment Board which is a body corporate. Since that body corporate has not been notified under Section 14(2) read with section 14(3) of the Administrative Tribunals Act, it cannot be said that the employees of the Cantonment Board are the employees of the Central Government. It is also pointed out by the learned counsel for the respondents that, even as per the case put forward by the applicants, the pay and allowances of Cantonment Board employees are to be equated with those of similar categories of State Government of Kerala which also would fortify the contentions raised by the respondents that the employees of the Cantonment Board are not employees of the Central Government.
9. The Cantonment Act, 2006 defines Cantonment Board to mean a Cantonment Board constituted under the Act [see Section 2(b) of the Cantonments Act, 2006]. The Government mentioned therein is the Central Government. It is stated that the Central Government is to constitute a Board within a period of one year in accordance with the provisions of the said Act. It is also stated that the Central Government may by notification in the official gazette direct that in any place declared a cantonment under sub- section (1), the provisions of any enactment relating to local self- government other than this Act (Cantonment Act) shall have effect only to such extent or subject to such modifications, or that any authority constituted under any such enactment shall exercise authority only to such extent, as may be specified in the notification. It can be seen on going through the Cantonment Act also that the Cantonment Board shall be deemed to be a Municipality under clause (e) of Article 243P of the Constitution for the purposes of receiving grants and allocation. Therefore, it can be seen that the Cantonment Board is akin to a Municipality. Though the Board receives grants and allocation from the Central Government such Board cannot be treated as a notified Central Government institution to which the Administrative Tribunals Act is made applicable under Section 14(3) of the Act. It is argued by the learned counsel for the respondents that there are so many institutions to which funds are allocated by the Central Government but all those institutions are not institutions governed by the Administrative Tribunals Act so as to confer on the employees of those institutions the right to approach this Tribunal under Section 14 of the Administrative Tribunals Act.
10. It is argued by the learned counsel for the applicants that in some other matters this Tribunal had entertained petitions under Section 14 of the Act. Admission cannot confer jurisdiction. There can be no estoppel against Statute. If the statute states that this Tribunal does have jurisdiction in view of what is stated in Section 14 of the Act, the contention raised as above cannot be sustained. Only because the respondents 2 and 3 are Central Government offices it cannot be said that the applicants should be treated as employees of the Central Government, nor can it be said that the 1st respondent is a Central Government institution. It is a separate legal entity.
11. To sum up, the Cantonment Board is an independent legal entity separate from the Government of India. Its employees are not employees of the Central Government. Since the Cantonment Board is a separate legal entity a body corporate and since it is not a notified corporation, society or other institute it has to be held that this Tribunal lacks jurisdiction to entertain this petition. It is made clear that we have not said anything about the merits of the claim made by the applicants in this case.
12. In the result this Original Application is dismissed holding that this Tribunal has no jurisdiction to entertain this application. No order as to costs.
(MRS. P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA