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2005 DIGILAW 483 (UTT)

Bharat Ratanand v. Union of India

2005-11-22

CYRIAC JOSEPH, PRAFULLA C.PANT

body2005
JUDGEMENT Cyriac Joseph, C.J. 1. The petitioners belong to Group 'A' Cadre of Indian Telecom Services. They were recruited by the Union Public Service Commission through Indian Engineering Services Examination. All the petitioners are now working with the Bharat Sanchar Nigam Ltd. (BSNL). They are working with BSNL on deputation. 2. On 24'" March 2005, the Government of India, Ministry of Communications and Information Technology issued Annexure 3 Circular Letter inviting options for absorption in MTNL/BSNL, from Group 'A' officers of Indian Telecom Services (ITS)/ Telegraph Traffic Services (TTS), Telecom Factory Services (TFS). As per Annexure 3 Circular dated 24-03-2005, the effective date of absorption will be 01-10-2000. The option once exercised shall be final and would not be allowed to be withdrawn by the officer concerned at a later stage. Officers not exercising any option as prescribed will be deemed to have opted for Government service. No conditional option shall be accepted and any such offer shall be treated as if the officer has not exercised option for absorption in MTNL/BSNL. Department of Telecommunications will consider the option exercised by Group 'A: officers along with the availability of posts in MTNL/BSNL and the personnel requirement of these organisations and make final allocation of officers to MTNL/BSNL or retention in Department of Telecommunications depending on the organizational needs and public interest. The decision of the Department of Telecommunications in this regard shall be final and binding on the officer. MTNL/BSNL will absorb optees as will be allocated by Dot. The right to option is given not only to the officers working in MTNL/BSNL, but also to all serving Group 'A' ITS/TTS/TFS officers who remained in Department of Telecommunications and who were on the rolls of the DOT/DTS/DTO on 30-09-2000. The schedule for seeking and giving options is given in paragraph 5 of the Circular. The general terms and conditions for permanent absorption of Group 'A' officers were enclosed with the option form. 3. Instead of making options under the above mentioned Circular Letter dated 24-03-2005, the petitioners filed this writ petition challenging the said circular and seeking the following reliefs: (i) Issue a writ, order or direction in the nature of certiorari to set aside the wholly illegal, irregular, vague, evasive and arbitrary circular dated 24-03-2005 through which the petitioners are called upon to exercise their option for absorption in MTNL/BSNL or Dot (Department of Telecommunication). (ii) Issue a writ, order or direction in the nature of mandamus commanding the Respondents to provide and come out with a fair, just, proper and comprehensive policy/statement dealing with all the service conditions sought to be altered by the impugned circular/order dated 2403-2005 before the petitioners are called upon to exercise their option in favour of absorption in MTNL/BSNL or continuing in Government service. (iii) Issue a writ, order or direction in the nature of mandamus commanding the Respondents to formulate a just, fair and comprehensive policy for the absorption of petitioners in the Government service who intend to opt in favour of continuing in government services, which shall ensure that the petitioners are not discriminated or put to disadvantage vis-a-vis their counterparts in other Government Departments who had joined the Government services along with the petitioner through Indian Engineering Services conducted at All India Level by the Union Public Service Commission' In the same year through the same batch. (iv) Issue a writ, order or direction in the nature of, mandamus commanding the Respondents to formulate a just, fair and comprehensive policy for the absorption of petitioners in the BSNL or MTNL which shall ensure that the petitioners shall not be discriminated or put to disadvantage vis-a-vis their counterparts in other' Government Departments who had joined the Government Services along with the petitioner through Indian Engineering Services conducted at All India Level by the Union Public Service Commission in the same year through the same batch. (v) Issue any other writ, order or direction which this Hon'ble Court , may deem fit and proper in the facts and circumstances of the case. (vi) Allow the costs of the petition to the petitioners. The writ petition was admitted on 25-05-2005. By an interim order passed on 25-05-2005, a Division Bench of this Court directed that until and unless the Government of India completely clarifies the conditions protecting the interest and status of Group-A posts in which they are working, the last date of exercise of option shan be deferred and some other date shall be fixed after the clarification is made. The learned Assistant Solicitor General was directed to bring sufficient clarifications on record for consideration of the Court. The learned Assistant Solicitor General was directed to bring sufficient clarifications on record for consideration of the Court. By a subsequent order dated 29-09-2005, the respondents were directed not to take any action against the petitioners like declaring them surplus and to deploy retired or military personnel in place of them till the final decision in the writ petition. It was further directed that the petitioners' deemed deputation shall continue till the decision in the writ petition. However, it was made clear that the rights of those 'persons who are eligible to be promoted will not be affected by the said order. 4. Against the said order dated 29-09-2005 of this Court, the respondents filed Petition for Special Leave to Appeal (Civil) No. 21360 of 2005 in the Hon'ble Supreme Court of India. However, the Hon'ble Supreme Court refused to interfere in the matter on the ground that the Special Leave to Appeal was sought from an interim order of the High Court. While dismissing the Special Leave Petition, the Hon'ble Supreme Court requested this Court to dispose of this writ petition as expeditiously as possible and if possible within a period of four weeks. In the light of the said order of the Hon'ble Supreme Court, the case is posted for disposal. 5. Mr. Malhotra, learned Additional Solicitor General appearing for the respondents raised a preliminary objection regarding the maintainability of this writ petition. According to the learned Additional Solicitor General, this writ petition is liable to be dismissed on two grounds without going into the merits of the case. The first ground is that in view of the provisions contained in Section 28 of the Administrative Tribunals Act, 1985 and the decision of the Hon'ble Supreme Court in L. Chandra Kumar Vs. Union of India and others reported in 1997 (3) SCC 261, even assuming that the petitioners have a grievance, they cannot approach this Court directly and they should first approach the Central Administrative Tribunal. The second ground is that the Indian Telecom Service Association, of which the petitioners are members, had filed O.A. No. 1963 of 2005 before the Central Administrative Tribunal raising the same grievance and seeking identical reliefs and the said O.A. was disposed of by the Principal Bench of the Central Administrative Tribunal, New Delhi on 31-10-2005 along with similar applications filed by Group 'A' officers working with the BSNL/MTNL. Since the association representing the petitioners filed an application before the Central Administrative Tribunal and got the dispute adjudicated by the Tribunal, the petitioners are not entitled to assail the impugned Circular through a writ petition before this Court. It is contended that the action of the petitioners in filing this writ petition amounts to an abuse of the process of the Court. 6. If the preliminary objection raised by the Additional Solicitor General is upheld, there is no need for going into the merits of the case and, therefore, we shall straightaway deal with the preliminary objection raised by the learned Additional Solicitor General on behalf of the respondents. 7. Clause (1) of Article 323-A of the Constitution of India authorises the Parliament to make law, providing for the adjudication or trial, by Administrative Tribunals, of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts 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 owned or controlled by the Government. According to Clause (2)(d) of Article 323A, law made under Clause (1) of Article 323-A may exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the dispute or complaints referred to in c1ause(l) of Article 323-A. In the light of the provisions contained in Article 323-A, the Parliament enacted the Administrative Tribunals Act, 1985 to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts 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 in pursuance of Article 323-A of the Constitution and for matters connected therewith or incidental thereto. Section 28 of the Administrative Tribunals Act, 1985 provides as follows : "28. Section 28 of the Administrative Tribunals Act, 1985 provides as follows : "28. Exclusion of jurisdiction of courts except the Supreme Court- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except- (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters:' 8. The validity of the exclusion of the jurisdiction of court by Article 323-A of the Constitution of India and Section 28 of the Administrative Tribunals Act, 1985 was considered by the Supreme Court in L. Chandra Kumar Vs. Union of India and others reported in 1997 (3) SCC 261. After elaborate consideration of the constitutional and statutory provisions, the Hon'ble Supreme Court held as follows : "In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated:' To support his preliminary objection, the learned Additional Solicitor General relied on the categorical statement of the Supreme Court that the Tribunals will continue to act like courts of first instance In respect of the areas of law for which they I have been constituted and that It will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by over looking the jurisdiction of the Tribunal concerned. 9. Even according to the averments in the writ petition, the petitioners belong to Group 'A' of Indian Telecom Services and they are working with BSNL only on deputation. Therefore, they are still employees of the Department of Telecommunications and their permanent lien is still In the Department of. Telecommunications. Even though options were invited through the impugned Circular (Annexure 3), the petitioners have not exercised their option for absorption in BSNL. Therefore, it cannot be disputed that the petitioners are still employees of the Department of Telecommunications who are working with the BSNL on deputation. Telecommunications. Even though options were invited through the impugned Circular (Annexure 3), the petitioners have not exercised their option for absorption in BSNL. Therefore, it cannot be disputed that the petitioners are still employees of the Department of Telecommunications who are working with the BSNL on deputation. From the pleadings in the writ petition, counter affidavit and rejoinder affidavit, it is seen that the whole case of the petitioners is based on of their status and rights as employees of the Department of Telecommunications and their grievance is with regard to the possible consequences of their exercising the option (either to be absorbed in BSNL or to remain in the Department of Telecommunication) on their rights, privileges and future career as employees of the Department of Telecommunications. Therefore, the challenge against Annexure 3 Circular and the grievances raised in the writ petition are matters in relation to which Central Administrative Tribunal can exercise jurisdiction. According to Section 14 of the Administrative Tribunals Act, the Central Administrative Tribunal shall exercise all the jurisdiction, powers and authority, exercisable Immediately before the appointed day by all courts except the Supreme Court in relation to all service matters concerning a member of any All India Service or a person appointed to any civil service of Union or any Civil post under the Union. Since the issues raised in the writ petition are matters falling within the jurisdiction of the Administrative Tribunal, in view of the decision of the' Supreme Court in L. Chandra Kumar's case, it is not open for the petitioners to directly approach the High Court. In other words, the petitioners are bound to approach the Central Administrative Tribunal first and only if they are aggrieved by the decision of the Central Administrative Tribunal, they can approach the High Court under Article 226 of the Constitution of India. Hence, we agree with the contention of the learned Additional Solicitor General that this writ petition is not maintainable. 11. It has not been disputed by the petitioners that they are members of the Indian Telecom Service Association which filed O.A. No. 1963 of 2005 before the Central Administrative Tribunal, Principal Bench, New Delhi. But Mr. Hence, we agree with the contention of the learned Additional Solicitor General that this writ petition is not maintainable. 11. It has not been disputed by the petitioners that they are members of the Indian Telecom Service Association which filed O.A. No. 1963 of 2005 before the Central Administrative Tribunal, Principal Bench, New Delhi. But Mr. Uniyal, learned counsel for the petitioners contended that the said Association is not a registered association and, therefore, it had no locus standi to file a petition on behalf of all the members of the Association and the said aspect was not considered by the Principal Bench of the Central Administrative Tribunal while disposing of O.A. No. 1963 of 2005. Whether or not the Association is a registered association, the petitioners are admittedly members of the said Association and they have no case that they have disassociated with the Association or disapproved its action in filing the O.A. before the Central Administrative Tribunal. Even if the Central Administrative Tribunal did not consider or examine the locus standi of the Association to file the O.A. on behalf of its members, the. practice of the Association moving one forum and individual members moving different forums in the various parts of the country raising identical issues and seeking identical reliefs cannot be encouraged. The Tribunal it self has deprecated the said conduct of the Association and its members in its order passed in O.A. No. 1963 of 2005. In such circumstances, we decline to exercise our jurisdiction under Article 226 of the Constitution of India in this case. 12. Mr. Uniyal then contended that no useful purpose will be served by leaving the petitioners to approach the Central Administrative Tribunal at this stage. Learned counsel pointed out that the Principal Bench of the Central Administrative Tribunal has already rejected the claims and contentions of the Association and another Bench of the Central Administrative Tribunal cannot be expected to take a different view or to give an independent consideration of the claims of the petitioners. It is contended that even if the petitioners now file an application before the Tribunal, it will be dismissed and the petitioners will have to challenge such dismissal by filling anther writ petition in this Court. It is contended that even if the petitioners now file an application before the Tribunal, it will be dismissed and the petitioners will have to challenge such dismissal by filling anther writ petition in this Court. Learned counsel is right in submitting that in the given circumstances any application filed by the petitioners on identical grounds and for identical reliefs may be rejected, by another Bench of the Tribunal, if it is not referred to a larger Bench and in that event the petitioners may have to challenge the order of the Tribunal in another writ petition. Such a course of action cannot unfortunately be avoided in this case in view of the provisions contained in Section 28 of the Administrative Tribunals Act and the decision of the Hon'ble Supreme Court in L. Chandra Kumar Vs. Union' of India and others (supra). If the petitioners think that it will be a waste of time to file application before the Central Administrative Tribunal and to come to the High Court again, they can very well challenge the order of the Principal Bench of the Central Administrative Tribunal in O.A. No. 1963 of 2005 before the appropriate Court. In view of this course open to the petitioners, we do not think that by dismissing this writ petition as not maintainable, serious prejudice or irreparable loss will be caused to the petitioners in respect of their right to seek redressal of their grievances. At any rate, judicial discipline does not permit this Court to ignore order the clear view expressed by the Supreme Court that litigants cannot directly approach the High Court ignoring the Administrative Tribunal. 13. In the order passed by the Principal Bench of the Central Administrative Tribunal O.A. No. 1963 of 2005 and connected cases, the time for" exercising 'option stands extended upto 30th November 2005 and, therefore, the 'petitioners . have still enough time to make up their mind to exercise the option or to challenge the Circular in appropriate proceedings. 14. In the above circumstances, the writ petition is dismissed.