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2006 DIGILAW 108 (GAU)

Union of India v. Thaiu Mag

2006-01-31

BROJENDRA PRASAD KATAKEY, P.G.AGARWAL

body2006
JUDGMENT B.P. Katakey, J. 1. In this appeal, the Appellants, who are the Respondents in WP (C) No. 328 (SH)/2005, has raised the question of maintainability of the writ petition before the High Court in view of existence of adequate efficacious alternative remedy in the form of an application before the Central Administrative Tribunal constituted under the Administrative Tribunal Act, 1985, by challenging the order dated 29.11.2005 passed by the learned Single Judge in the said writ petition. 2. The Respondents herein, who are the members of Group 'A' Officers of the Indian Telecom Service under the Government of India, filed a writ petition being W.P. (C) No. 328 (SH)/2005 before the Shillong Bench of this Court praying for the following reliefs: I. i) Call for the records, ii) Issue notice to the Respondents to show cause as to why a writ of mandamus and or writ of certiorari or any other appropriate writ or order should not be issued to set aside the impugned option circular O.M. dated 24th March, 2005 as illegal, arbitrary and void ab initio; (Annexure-IV) and directing the Respondent to issue a fresh, comprehensive and self-contained memorandum of terms and conditions of service in the BSNL/MTNL/DoT in order to enable the Group A Officer of Indian Telecommunication service to exercise their option to be effective from the date of exercise of such option. iii) To issue direction to the Respondents to prepare a comprehensive and self contained terms and conditions like wise Nuclear Power Corporation of India Limited as per order of the Supreme Court of India in connection with the absorption of the personnel of Department of Atomic Energy in the Nuclear Power Corporation of India, a Govt. Company, so as to enable the officer of all stages to exercise the option as per their career aspiration. iv) To restrain the Respondents form declaring the members of an organized service as surplus. And also restraining the Respondents to post them in some of the other Ministry/Department of the Government, and thereby consigning to the winds the career prospects of the concerned officers. Also restrain the Respondents from dumping such officers in Ministries/Departments, which have no relevance to the area of specialization of the officers of the Service. v) To grant any other relief or relief's as may be deemed fit and proper in the facts and circumstances of the case. 2. Also restrain the Respondents from dumping such officers in Ministries/Departments, which have no relevance to the area of specialization of the officers of the Service. v) To grant any other relief or relief's as may be deemed fit and proper in the facts and circumstances of the case. 2. That the Petitioners also pray that your lordships be pleased to issue an ad-interim order staying the operation of impugned Circular dated 24.3.2005 regarding exercise of option by Group "A" officer pending issue of the self contained memorandum of terms and conditions of service for group "A" officers in BSNL/NTNL and/or till final disposal of the writ petition. 3. In the said writ petition art ad-interim order was passed on 6.10.2005 and thereafter upon hearing the learned Counsel for the parties passed the order dated 29.11.2005 admitting the writ petition for hearing by issuing a Rule Nisi and directing the parties to maintain status quo as on 6.10.2005 i.e. the date when the Respondents/writ Petitioners approached the Court. Hence the present appeal by the Appellants raising the question of maintainability of writ petition as aforesaid. 4. This Court vide order dated 4.1.2006 upon hearing the learned Counsel for the parties decided to take up the appeal for admission and hearing on the question of maintainability of writ petition in view of availability of adequate efficacious alternative remedy to the Respondents herein by way of an application before the Central Administrative Tribunal, fixing 10.1.2006. Accordingly we have heard the arguments of Mr. Pathak, the learned Additional Solicitor General appearing for the Appellants and also Mr. J.L. Sarkar, the learned Counsel appearing for the Respondents herein. 5. Learned additional Solicitor General has submitted that as the Respondents are admittedly the members of Group 'A' Officers of the Indian Telecom Service under the Government of India and having challenged the Office Memorandum dated 24th March, 2005 issued by the Joint secretary (Administration) Ministry of Communication and Information Technology, department of Tele Communication, Government of India, calling upon option for Group 'A' Officers of Indian Telecom Service in MTNL/BSNL and for setting aside the said Office memorandum, they have to approach the Central Administrative Tribunal, constituted under the Administrative Tribunals Act 1985 (in short, 1985 Act) first, the same being the court of first instance. According to the learned Additional Solicitor General the writ petition is not maintainable in view of the availability of such a remedy to the Respondents before the Central Administrative Tribunal. The learned Additional Solicitor General in support of his contention has placed reliance on L. Chandra Kumar v. Union of India and Ors. reported in 1997 (3) SCC 261 and in Kendriya Vidyalaya Sanghathan and Anr. v. Subhas Sharma reported in 2002 (4) SCC 145 . 6. Countering the argument put forward by the learned Additional Solicitor General, Mr. Sarkar, the learned Counsel for the Respondents has submitted that the question of maintainability of the writ petition on the ground of not approaching the Central Administrative Tribunal first having not been raised by the Appellants in the writ proceeding, they cannot be allowed to raise the question in the appellate stage. The further submission of the learned Counsel is that the Respondents, though are the Central Government employees, the writ petition filed by them without approaching the Central Administrative Tribunal is maintainable as they have the grievances against the BSNL for which the said authority has also been added as Respondent in the writ proceeding. According to the learned Counsel, the government of India having not notified applying the provisions of 1985 Act to BSNL, the writ petition filed by the Respondents herein is maintainable as the Central Administrative Tribunal has no jurisdiction over the employees of BSNL. The further submission of Mr. Sarkar is that it is not that the High Court cannot exercise its jurisdiction under Article 226 of the Constitution of India even if there is an equally efficacious alternative remedy available to the writ Petitioners and in exceptional cases and under extra ordinary situation the writ court can entertain such writ petition. Mr. Sarkar submits that non existence of a Division Bench of the Central Administrative Tribunal at Guwahati is an extra ordinary situation and therefore the writ petition filed by the Respondents is maintainable. The learned Counsel in support of his contention has placed reliance on T.K. Rangaranjan v. Government of Tamil Nadu and Ors. reported in AIR 2003 SC 3032 . 7. We have considered the submissions of the learned Counsel for the parties and also perused the pleadings. 8. The learned Counsel in support of his contention has placed reliance on T.K. Rangaranjan v. Government of Tamil Nadu and Ors. reported in AIR 2003 SC 3032 . 7. We have considered the submissions of the learned Counsel for the parties and also perused the pleadings. 8. The 1985 Act was enacted to provide for adjudication or trial by the 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 Government of India or of any Corporation or Society owned or controlled by the Government in pursuance of Article 323A of the Constitution and for matters connected therewith or incidental thereto. 9. Under the provisions of the said Act the Central Administrative Tribunals were established by the Central Government by issuing Notification as required under Section 4(1) of the 1985 Act Such Tribunal has a Bench in Guwahati also. 10. It is an admitted position of fact that the Respondents/writ Petitioners are the employees under the Government of India and therefore the Central Administrative Tribunal has jurisdiction in relation to recruitment and matters concerning recruitment and all service matters pertaining to services of such employees, which includes the conditions of service. The Respondents/writ Petitioners by the present writ petition has challenged the office memorandum issued by the Government of India dated 24th March, 2005 basically on the ground that the conditions stipulated therein are not favourable to them. Though the Respondents in the writ petition has added BSNL as a party Respondent, they are admittedly not the employees under BSNL, which authority has not been notified by the Central Government Under Sections 14(2) of the 1985 Act. 11. The Respondents/writ Petitioners in the writ petition has basically challenged the aforesaid order dated 24th March, 2005 issued by the Government of India alleging that their service conditions are sought to be altered to their prejudice. They admittedly being not the employees under BSNL but being on deputation to the said authority, they still are employees of Government of India and therefore any question relating to their service conditions at the first instance is to be raised before the Central Administrative Tribunal constituted under the 1985 Act. 12. They admittedly being not the employees under BSNL but being on deputation to the said authority, they still are employees of Government of India and therefore any question relating to their service conditions at the first instance is to be raised before the Central Administrative Tribunal constituted under the 1985 Act. 12. It is a settled position of law that the Writ Court should refuse to entertain a writ petition in case there is an efficacious alternative remedy available to the writ Petitioners. Though non-entertainment of the writ petition on the ground of existence of such an alternative remedy is a discretion and self imposed restriction, the writ court normally do not entertain such writ petition on the ground of availability of such alternative remedy and unless such remedy is first exhausted. The High Court may, in spite of existence of alternative remedy, entertain a writ petition if any exceptional circumstances exist or where infringement of fundamental rights has been alleged or there is violation of natural justice or order impugned is passed without jurisdiction or without any authority of law or where vires of an Act is in challenge 13. In L. Chandrakumar, a Constitution bench of the Apex Court has held that the Central Administrative Tribunal constituted under the provision of 1985 Act is to act like courts of first instance in respect of the areas of law for which they have been constituted and therefore it will not be open for the litigants to directly approach the writ court even in case where the question of vires of any statutory legislation, except where legislation which creates the particular Tribunal is challenged, by overlooking the jurisdiction of the Tribunal concerned. The said position has also been reiterated by the Apex Court in Kendriya Vidyalaya Sanghathan (supra). 14. In T.K. Rangarajan (Supra) the Apex Court has held the writ court can entertain an application under Article 226 of the Constitution of India even though an equally efficacious alternative remedy is available to a litigant, if an unprecedented extra-ordinary situation having no parallel exists. It has further been held by the Apex Court that such extra ordinary powers are required to be sparingly used. It has further been held by the Apex Court that such extra ordinary powers are required to be sparingly used. The Apex Court having taking into consideration the fact that the Government of Tamilnadu has dismissed two lakhs government employees for going on strike, held that the said situation was a very exceptional situation and therefore refusal to entertain the writ petition was unjustified. In the instant case neither such extra-ordinary situation nor other ground exist so as to maintain a writ petition by the Respondents/writ Petitioner directly without first approaching the Central Administrative Tribunal. 15. A Division Bench of this Court in W.P. (C) 1603 of 2004 (Bharat Sanchar Nigam Limited and Anr. v. Shri Binay Das and Ors.), on which the learned Counsel for the Respondents has placed reliance, has held that as the writ Petitioners in the said writ petition are seeking relief against the BSNL, the Central Administrative Tribunal Guwahati bench has no jurisdiction over the employees of BSNL, as no notification under Section 14(2) of the 1985 Act has been issued by the Government of India to include the BSNL within the jurisdiction of the Central Administrative Tribunal. The fact and situation of the said case is not applicable in the present case. Moreover, in the said case the plea that the Central Administrative Tribunal has jurisdiction over the Respondents therein has not been raised, as they are employees under the Central Government. There is no dispute to the proposition that the Central Administrative Tribunal has no jurisdiction over the employees of BSNL as no such notification under Section 14(2) of the Act is issued. 16. The contention of the learned Counsel for the Respondents that as the Appellant has not raised the question of maintainability of the writ petition on the ground of having an alternative remedy before the Central Administrative Tribunal, they cannot raise the question in the appellate stage, also cannot be accepted as the question of maintainability can be raised even in the appeal as the same is the continuation of the writ proceeding. Moreover the Respondents were made known by the appellate court vide order dated 4/1/2006 that the said question will be taken up for consideration and hence it is not that they were caught by surprise. Moreover the Respondents were made known by the appellate court vide order dated 4/1/2006 that the said question will be taken up for consideration and hence it is not that they were caught by surprise. The other contention of the learned Counsel for the Respondent is that as no Division Bench of the Tribunal at present available in Guwahati, the writ petition may be entertained cannot also be accepted, the. same being not an extra-ordinary situation, as the Respondent may very well approach the learned Chairman. Principal Bench of the Tribunal for constitution of a Division bench or for transfer of the case to any other Bench. 17. In view of the aforesaid discussions, we are of the view that the writ petition filed by the Respondents/writ Petitioners is not maintainable in view of the existence of an efficacious alternative remedy by way of an Original Application before the learned Central Administrative Tribunal. Therefore, the writ petition filed by the Respondents/writ Petitioners is dismissed. However, this shall not preclude the Respondents/writ Petitioners from approaching Central Administrative Tribunal seeking redressal of their grievances. 18. The appeal is accordingly allowed. Keeping in view the facts and circumstances of the case, we do not make any order as to costs. Petition dismissed