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2006 DIGILAW 794 (RAJ)

S. N. Sharma v. Union of India (UOI)

2006-03-08

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-At joint request and with consent of both the parties, matter has been heard finally and disposed of at admission stage. 2.Instant petition has been filed against Advertisement dated 25.05.2002 (Annexure-13) issued by Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi and prayed for consideration of regular appointment on the post of Recovery Officer in accordance with Debts Recovery Tribunal, Jaipur Group "A" and "B" (Gazetted) and Group B (Non-Gazetted) Posts Recruitment Rules, 2001 ("Rules, 2001") framed under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ("Act, 1993"). 3.Facts, in nut shell, are that petitioner, while substantively holding post of Assistant Legal Remembrancer in Law and Judicial Department, Government of Rajasthan, joined as Recovery Officer on 25.02.2001 after being selected in Debts Recovery Tribunal, Jaipur (“Recovery Tribunal”) vide order dated 14.02.2001 (Annexure-1) on deputation for one year, which came to end on 25.01.2002; consequently, he was relieved on 26.02.2002 from the post of Recovery Officer by Recovery Tribunal. 4.As per facts pleaded on record, petitioner because of his sickness did not join forthwith on repatriation upon expiry or deputation period, but resumed duties as Assistant Legal Remembrancer in his parent department on 09.02.2003 after submitting sickness-cum-fitness certificate for his absence. 5.Basic grievance raised by petitioner is that while he was on deputation in Recovery Tribunal, Central Government in exercise of Clause (a) of Section 36(2) of the Act, 1993 framed Rules, 2001 regulating method of recruitment of Group A and B (Gazetted) and Group B (Non-Gazetted) Posts in Recovery Tribunal, Jaipur, which came into force by its gazette notification viz., 012.2001; and its Rule 7 provides that after enforcement of these Rules, those who were working/holding posts in Recovery Tribunal, either on transfer or on deputation and fulfill qualifications and experience laid down in Rules, 2001 and are considered suitable by departmental promotion committee shall be eligible for regularization or absorption in respective grade subject to condition that they exercise their option for absorption and their parent department does not have any objection to their being absorbed in the Recovery Tribunal. Case of petitioner is that no exercise was undertaken by respondents in terms of Rule 7 of Rules, 2001, ibid, and on completion of period of his deputation, he was relieved which has certainly caused prejudice to him of his fair consideration for regular appointment on the post of Recovery Officer in Recovery Tribunal, Jaipur whereas contrarily respondents issued advertisement (Annexure-13) for making regular appointment on the post of Recovery Officer. Hence, this petition. 6.This Court vide order dated 23.09.2002 directed not to fill up vacancy of Recovery Officer in Recovery Tribunal, Jaipur pursuant to advertisement dated 25.05.2002. 7.Apart from questioning on merits, respondents have raised preliminary objection that jurisdiction for redressal of grievance of petitioner lies by invocation of provisions contained under the Administrative Tribunals Act, 1985 (“Act, 1985”) and it is covered by Section 14(1) (b) asper which all matters relating to recruitment and concerning recruitment to any civil service of the Union or a civil post under the Union are appealable under the Act, 1985; as such this Court has no jurisdiction to examine the controversy raised by petitioner in this petition. 8.I have considered rival contentions of Counsel for the parties and with their assistance examined material on record. Having taken note of preliminary objection about exclusion of jurisdiction of this Court, which has to be examined first before entering into merits, however, I find that there is substance in the objection raised by respondents with regard to maintainability of writ petition, itself by virtue of Section 14 of the Act, 1985. Conclusions are set forth hereunder. 9.Pursuant to Article 323-A of Constitution of India, the Act, 1985 was passed and Administrative Tribunal established under Section 4(1) thereof is available to petitioner in instant case, because by Clause 2(d) of Article 323-A the Parliament was authorized to exclude jurisdiction of all Courts exception jurisdiction of Apex Court under Article 136 of Constitution with respect to dispute and complaints referred to in Clause (1) and consequently, by Section 14 of Act, 1985, all the jurisdiction powers and authority exercisable by all Courts have been vested in the Central Administrative Tribunal. In this context, Apex Court in Union of India vs. Deep Chand Pandey, 1992 (4) SCC 432 held as under:- “3. The expression all Courts’; mentioned in Section 14(1) is comprehensive enough to include the High Court. In this context, Apex Court in Union of India vs. Deep Chand Pandey, 1992 (4) SCC 432 held as under:- “3. The expression all Courts’; mentioned in Section 14(1) is comprehensive enough to include the High Court. If the subject matter of the claim of the respondents is held to be covered by Section 14, it must follow that the High Court is not left with any jurisdiction to deal with the same.” 10.A fervent attempt has been made by Shri S.P. Sharma with vehemence by contending that instant petition will be covered/saved by Section 14 (2) of the Act, 1985 which provides:-“(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 territory of India or under the control of the Government of India and to Corporations or Societies owned or controlled by Government, not being a local or other authority or corporation or society controlled or owned by a State Government.” and in absence of notification under Section 14(2), ibid, remedy of appeal under the Act, 1985 is not available to petitioner. 11.The question arises as to whether claim of petitioner is covered by Section 14 of the Act, 1985 and post of Recovery Officer is civil post or not. Undeniably, Recovery Tribunal Jaipur has been constituted under the Act, 1993. Section 2(k) whereof defines “Recovery Officer”- “2(k) Recovery Officer means a Recovery Officer appointed by the Central Government for each Tribunal under Sub-section (1) of Section 7.” 12. Section 7 of the Act, 1993 deals with Staff of Tribunal and provides -“7. Staff of Tribunal.-(1) The Central Government shall provide the Tribunal with one or more Recovery Officers and such other officers and employees as that Government may think fit. .(2) TheRecovery Officers and other Officers and employees of a Tribunal shall discharge their functions under the general superintendence of the Presiding Officer. .(3) Thesalaries and allowances and other conditions of service of the Recovery Officers and other Officers and employees of a Tribunal shall be such as may be prescribed.” 13.Section 36 of the Act, 1993 confers power to make rules upon Central Government and it provides-“36. Power to make rules-(1) the Central Government may, by notification make rules to carry out the provisions of this Act. Power to make rules-(1) the Central Government may, by notification make rules to carry out the provisions of this Act. .(2) Without prejudice to the generality of the foregoing powers, such rules may, provide for all or any of the following matters, namely; .(a) thesalaries and allowances and other terms and conditions of service of the Chairperson, the Presiding Officers, Recovery Officers and other officers and employees of the Tribunal and the Appellate Tribunal under Sections 7, 12 and 13.” 14.In view of Scheme under the Act, 1993, ibid, it reveals that under Section 2(k) Recovery Officer is appointed by Central Government for each Recovery Tribunal under Section 7(1), pursuant whereto it is Central Government which shall provide the Recovery Tribunal with Recovery Officer and such other officers and employees as the Government may think fit. As regards service conditions, they are framed by Central Government in exercise of Clause (a) of Sub-section (2) of Section 36 of the Act, 1993 - pursuant whereto, Rules, 2001 have also been framed and enforced by its publication in Official Gazette from 012.2001 in order to regulate service conditions and so also method of recruitment of Group A and B (Gazetted) and Group B (Non-Gazetted) Posts in Recovery Tribunal, Jaipur, which includes post of Recovery Officer, as well and as per Schedule appended to Rules, 2001 Post of Recovery Officer is shown at S. No. 3 and is classified as General Central Service, Group A (Gazetted) who are eligible to be considered for appointment against said post. 15.Under Article 311 of Constitution, a member of a civil service of the Union or an all India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil service. .16.In State of Assam vs. Kanak Chandra, AIR 1967 SC 884 , a Constitution Bench of Apex Court explained meaning of “civil post” and observed that a post is a service or employment; and a person holding a post under a State is a person serving or employed under the State under Articles 309, 310 and 311; and further observed- .“…..There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some these indicia, in conjunction with other circumstances and it is a question of fact in each case whether is a relation between the State and the alleged holder of a post.” .17.In Supdt. of Post Offices vs. P.K. Rajamma, 1977 (3) SCC 94 , after taking note of law laid .down in State of Assam vs. Kanak Chandra (Supra), Apex Court observed :“... A post, it was explained, exists apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.” Taking note of what has been observed (Supra), recently Apex Court in Dr. Gurjeevan Garewal vs. Dr. Sumitra Das, 2004 (5) SCC 263 , held that employees of Post Graduate Institute of Medical Education and Research cannot avail the protection of Article 311 since the same be claimed only by members of a civil service of the Union or of all India service or of a civil service of a State or by persons who hold a civil post under the Union or a State and the said Institute cannot be treated as a State for the purpose of Article 311 and its employees are not holding any civil post. 18.It is clearly envisaged from provisions of the Act, 1993 and so also Rules, 2001 framed by Central Government that post of Recovery Officer is created by Central Government and their service conditions are governed and regulated in exercise of powers under Section 36(2)(a) of the Act, 1993 and Section 14 of the Act, 1985 excludes jurisdiction, powers and authority exercisable by all Courts (including High Court) in relation to recruitment and matters concerning recruitment to any civil service of the Union or a civil post under the Union and in other words, jurisdiction lies with Administrative Tribunal under the Act, 1985. However, in view of decision of Apex Court in L. Chandra Kumar vs. Union of India, 1997 (3) SCC 261 , this Court has a power of superintendence to examine Judgment of the Administrative Tribunal in exercise of writ jurisdiction under Articles 226 and 227 of Constitution of India. 19.Judged in this light, in my opinion, “Recovery Officer” in Recovery Tribunal is the holder of a civil post under the Union and the Central Government is empowered to make selection and appoint a Recovery Officer under the statutory Rules, 2001. He is a public servant working under supervision and control of Ministry of Finance. There is a relationship of employer and employee between Central Government and him. Recovery Officer is a responsible officer exercising delegated powers of Union in Recovery Tribunal. Thus, having regard to the existing system of his recruitment, employment and functions under Scheme of Rules, 2001, the Act, 1993 Recovery Officer is a servant and a holder of a civil post under the Union. Hence, in my opinion, Administrative Tribunal only holds jurisdiction to examine dispute which petitioner has raised in relation to matter concerning recruitment under Rules, 2001, by virtue of Section 14 of the Act, 1985 by way of an appeal. 20.In course of arguments, it has been brought to my notice that one of respondents (J.P. Rathore) who was selected as Recovery Officer and posted in Recovery Tribunal (III), Delhi has challenged some of the action of Respondent No. 1 by filing original application before Administrative Tribunal, Principal Seat New Delhi and no objection was raised by either of parties with regard to jurisdiction of Administrative Tribunal. .21.Since, I am of the considered view that remedy is available to petitioner as regards his grievance qua Advertisement (Annexure-13), and so also of his consideration lies before the .Administrative Tribunal. That apart, the Central Government as well as Recovery Tribunal both have raised preliminary objection that the grievance of petitioner is covered by provisions of the Act, 1985, I refrain myself in adjudicating merits of his grievance, which is left to be examined by the Tribunal under the Act, 1985 and accordingly this writ petition is held to be not maintainable under Article 226 of Constitution. 22.Consequently the writ petition is hereby dismissed. However, petitioner will be free to avail remedy available under the Act, 1985 in accordance with law, if so advised. Stay Petition No. 6083/2002 also stands dismissed. No costs.