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Madhya Pradesh High Court · body

2008 DIGILAW 965 (MP)

VINAY SHUKLA v. STATE OF M P

2008-08-04

RAJENDRA MENON

body2008
Judgment ( 1. ) EVEN though notices have been issued to the respondents, but during the course of hearing of this petition today it has transpired that the petitioner is an officer belonging to the All India Service Cadre and as the matter pertains to service dispute of a member of the All India Services, it is only the Central administrative Tribunal which has jurisdiction to deal with the matter. Therefore, learned Senior Advocate representing the petitioner was directed to address this Court on the question of jurisdiction. ( 2. ) SHRI M. N. Krishna Mani, learned Senior Advocate representing the petitioner, argued that even though petitioner is a member belonging to the All india Services, but he seeks enforcement of a Notification issued by the government of India and its compliance by the State of Madhya Pradesh under article 257 (1) of the Constitution of India and as the act of the State government amounts to violating the fundamental rights available to the petitioner under the Constitution, it is argued by him that this Court can interfere in the matter and it is not necessary for the petitioner to take recourse to the remedy available under the Administrative Tribunals Act, 1985 (hereinafter referred to as act of 1985 ). ( 3. ) PLACING reliance on the various judgments and taking me through the observations made by the Supreme Court in the said judgments, learned senior Advocate vehemently argued that this is a fit case where arbitrariness on the part of State of Madhya Pradesh is writ large and as the same amounts to depriving the rights guaranteed to the petitioner, fundamental in nature under the Constitution, interference by this Court exercising writ jurisdiction under article 226/227 of the Constitution, can be made. ( 4. ( 4. ) SHRI M. N. Krishna Mani, learned Senior Advocate, emphasized that when the Government of India has already decided to cancel the allocation of the petitioner earlier made illegally to the State of Chhattisgarh and when allocation of the petitioner is done to the State of Madhya Pradesh, the State of madhya Pradesh is duty bound to follow the aforesaid direction under Section 72 of the State Re-organization Act and in refusing to comply with the mandate of the Union of India, State Government is not only committing breach of article 257 of the Constitution, but is also violating the provisions of Section 72 of the State Re-organization Act and, therefore, interference into the matter is sought for. It is emphasized that the action of the State Government amounts to violating the Fundamental Rights available to the petitioner under Articles 14 and 21 of the Constitution. ( 5. ) RESPONDENTS represented by Shri S. S. Bisen have refuted the aforesaid and it is stated that as the dispute in this case pertains to the service dispute of a Central Government employee, an employee belonging to the All india Services, jurisdiction of this Court is ousted and it is only the Central administrative Tribunal which can deal with the matter. ( 6. ) FOR considering the question of exercise of jurisdiction of this court, it would be relevant to take note of certain facts and the relief that is claimed by the petitioner. According to the petitioner he belongs to the Indian administrative Service, 1974 Batch and has been allocated to Madhya Pradesh cadre. On 1-11-2000, the State of Madhya Pradesh was reorganized by the M. P. State Re-organization Act and a new State of Chhattisgarh was created. By incorrectly mentioning the home town of the petitioner as Bilaspur District, now in the State of Chhattisgarh, petitioners services were allocated to the State of chhattisgarh and on 28-11 -2000 petitioner was illegally relieved from the post of member, Board of Revenue, Gwalior and was directed to join in the State of chhattisgarh. Petitioner did not comply with the order and it seems that the matter went to the Government of India and finally by order dated 24-8-2007 the government of India decided the case of allocation of the petitioner and it was directed that the petitioner shall be reallocated to his original cadre, in the State of Madhya Pradesh. Petitioner did not comply with the order and it seems that the matter went to the Government of India and finally by order dated 24-8-2007 the government of India decided the case of allocation of the petitioner and it was directed that the petitioner shall be reallocated to his original cadre, in the State of Madhya Pradesh. This was done by the Government of India Notification dated 24-8-2007 (Annexure P-l ). Thereafter, an explanatory note with direction was also issued on 28-9-2007 by the Government of India to the State of Madhya Pradesh to implement this order dated 24-8-2007, vide Annexure p-2, dated 28-9-2007. ( 7. ) IT is stated that thereafter on 10-12-2007 and 8-1-2008, petitioner made two representations to the Government of Madhya Pradesh and the central Government for implementing the Notification - Annexure P-l, dated 24-8-2007. In response thereof even though Government of India has issued a second direction on 12-12-2007 and another direction on 15-2-2008 (Annexure p-4), the Government of Madhya Pradesh is deliberately sitting tight over the matter and not taking any action without any rhyme reason. The aforesaid deliberate inaction and non-compliance of the executive orders of the government of India amounts to violating the provisions of Article 257 (1) of the Constitution of India by the State of Madhya Pradesh, which results in depriving the petitioner of his basic human right, i. e. , the right to livelihood. It is stated that for the last eight years petitioner is not being issued with any posting order, salary is not paid to him, he is being made to suffer. ( 8. ) UNDER such circumstances, the relief claimed for in this petition is as under:- " (i) Declare that the change of the cadre of the petitioner from his home State of M. P. to Chhattisgarh was void ab initio as noticed in the GOI Notification dated 24-8-2007 (Annexure P-l) and directed the respondent No. 1 to release the petitioner all the consequential reliefs arising therefrom. (ii) Pass any other order or orders as this Honble Court deems fit and proper in the facts and circumstances of the case. (ii) Pass any other order or orders as this Honble Court deems fit and proper in the facts and circumstances of the case. " Further interim relief claimed is to the following effect:- " (i) Pass an ad interim exparte order directing the respondent No. 1 to fall in line with the decision and the Executive Directions given by the Central Government (repeatedly conveyed) to the State government and give posting to the petitioner effective from the date of his reporting on duty that is from 12-9-2007 with a copy of the Central Government Notification dated 24-8-2007 and accordingly release his emoluments forthwith. (ii) Pass any other order/orders as this Honble Court deems fit in the present facts and circumstances of the case. " ( 9. ) FROM the aforesaid narration of facts, it is clear that the petitioner wants enforcement of an order passed by the Government of India on 24-8-2007 (Annexure P-l), a direction to the respondent No. 1 to release salary and all consequential relief to the petitioner, which includes posting order and other service benefits. The interim order sought for is also to the effect of permitting the petitioner to join duties and to release all the emoluments forthwith. Even though right to wages, livelihood and all other benefits are held to be rights available to a person or an employee under Articles 14, 16 and 21 of the constitution, but when enforcement of the aforesaid rights also results in direction to the respondents to grant certain service benefits to the employee, the question is as to whether this Court has jurisdiction in the matter in the light of provisions of Section 14 of the Act of 1985. ( 10. ( 10. ) SERVICE matter is defined in Section 3 (q) of the Act of 1985, in the following manner:- " (q) 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 matter whatsoever. " The jurisdiction and power of the Central Administrative Tribunal is provided for in Section 14 of the Act of 1985, in the following manner:- "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 a 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 services concerning- (i) a member of any All-India Service; or from a perusal of the definition of service matters and the jurisdiction vested in the Central Administrative Tribunal under section 14, it is clear that service matters in relation to a person means all matters relating to his condition of service in connection with the affairs of the Union or any State or of any local or other authority within the territory of India and the matters relating to the conditions of service are with respect to the persons remuneration, pension, other retiral benefits, tenure, confirmation, seniority, retirement - premature or on superannuation, leave, disciplinary matters or any other matter whatsoever. " (Emphasis supplied) ( 11. " (Emphasis supplied) ( 11. ) FROM the aforesaid, it is clear that all matters relating to payment of remuneration, tenure and any other matter by its nature pertaining to conditions of service would be a service matter. ( 12. ) IN the present case, even though petitioner has stated that action of the State Government amounts to violating his fundamental rights, the basic relief claimed for by the petitioner is to pay his salary and other monetary dues and a order for his posting. The aforesaid comes within the purview of service matters as defined under Section 3 (q) and the jurisdiction to exercise power and authority with regard to matters of recruitment and of service matter concerning a member of All India Service is now vested exclusively with the central Administrative Tribunal constituted under the Act of 1985. ( 13. ) THE jurisdiction of this Court to exercise power pertaining to service matters of a member of the All India Services is ousted and instead the power is conferred on the Central Administrative Tribunal constituted under the Act of 1985, that being so, it is a case where this Court lacks inherent jurisdiction to deal in the matter. After enactment of the Act of 1985, all the powers to be exercised by the High Court under Article 226 of the Constitution pertaining to service matters of an employee pertaining to All India Services is vested with the Central Administrative Tribunal and as the power is vested with the said authority, this Court does not see any reason to interfere with the matter on the grounds raised in this petition. Even if non-payment of salary or not allotting any work amounts to depriving the petitioner of his fundamental rights guaranteed under the Constitution, the dispute being canvassed by the petitioner in this petition pertains to service matter of a member of All India services and it is only the Central Administrative Tribunal which is conferred with the powers to adjudicate such a dispute. In that view of the matter, it is not a fit case where the powers and jurisdiction can be exercised by this Court. ( 14. In that view of the matter, it is not a fit case where the powers and jurisdiction can be exercised by this Court. ( 14. ) IF the arguments advanced by the learned Senior Advocate is accepted then in all cases where salary is denied to a Central Government employee or a member of the All India Services or where any right under the contract of service is deprived, it may also amount to violating some fundamental right or constitutional right of the employee and in such cases the employee would always approach this Court under Article 226 of the Constitution and seek enforcement of his right available under the terms and conditions of his employment and enforcement of his conditions of service on the ground of breach of fundamental right. If such a course is adopted, it would amount to frustrating the scheme formulated for redressal of grievance of such an employee by creation of Central Administrative Tribunal and in that view of the matter, this Court does not deem it proper to enter into the question on merits. ( 15. ) THE constitutional validity and the powers of judicial review with regard to jurisdiction conferred on the High Courts under Articles 226 and 227 of the Constitution and the Supreme Court under Article 32, was subject-matter of adjudication by a Constitution Bench of the Supreme Court in the case of L. Chandra Kumar Vs. Union of India and others, (1997) 3 SCC 261 . In the aforesaid case, the Supreme Court while considering the validity of the Act of 1985 and various other matters pertaining to functioning of the Tribunals under the said Act, has laid down the following principles:- ". . . . . . The jurisdiction conferred upon the High Courts under article 226/227 and upon the Supreme Court under Article 32 of the Constitution is 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 (Para 99)93. . . . . . The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the supreme Court, which have, under our constitutional setup, been specifically entrusted with such an obligation. . . . . . The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the supreme Court, which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall hot entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean 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, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal" (para 93) "we, therefore, hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the constitution, will be subject to the High Courts writ jurisdiction under Article 226/2 (27 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. This will serve two purposes. While saving the power of judicial review of legislative action vested in the High courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunals. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. " (Paras 91) "under the existing system, direct appeals have been provided from the decisions of All Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the constitution, but instead, the aggrieved party will be entitled to move the High Court under Article 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the constitution. " (Para 92) "therefore, 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 concerned Tribunal 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 legislation (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned tribunal. " (Para 99) (Emphasis supplied) ( 16. ) A complete reading of the aforesaid principle makes it amply clear that with regard to service matters and service dispute relating to an employee of the All India Services the Court of first instance where the matter should be agitated is to Central. Administrative Tribunal constituted and created under articles 323-A and 323-B of the Constitution and against the order passed by the said Tribunal matter has to be agitated under Articles 226 and 227 before a division Bench of the High Court. Administrative Tribunal constituted and created under articles 323-A and 323-B of the Constitution and against the order passed by the said Tribunal matter has to be agitated under Articles 226 and 227 before a division Bench of the High Court. When the Tribunal is competent to decide questions pertaining to vires of statutory legislation, the question of breach of fundamental rights resulting upon non-payment of salary or harassment by the employer can very well be adjudicated by the Tribunal at the very first instance and thereafter a remedy of writ petition is available to the petitioner. ( 17. ) ACCORDINGLY, this Court is of the considered view that dispute being agitated by the petitioner pertains to service matter of an employee belonging to the All India Service Cadre and the jurisdiction to deal with the same vests exclusively with the Central Administrative Tribunal under the Act of 1985 and, therefore, this Court lacks jurisdiction to deal with the matter. ( 18. ) ACCORDINGLY, finding no merit in the claim made by the petitioner warranting interference in this petition, this petition is dismissed with liberty to the petitioner to take recourse to the remedy available under the Act of 1985.