Sunday, November 5, 2017

BOMBAY OA No.517/2011

OA No.517/2011 RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION NO.517 OF 2011
DATED THIS , THE DAY OF

AUGUST, 2013.

CORAM : HON'BLE SMT. LEENA MEHENDALE, MEMBER

(A)

Mrs. Afsar Salim Shaikh
Residing at 14/4 'H' Type
Factory Quarters,
Range Hills Khadki,
Pune 411 020 ... Applicant
(By Advocate Shri P.J.Prasadrao)

VERSUS

1. Union of India,
Through the Secretary,
Ministry of Defence,
South Block,
New Delhi 110 011.
2. The General Manager,
Ammunition Factory,
Khadki Pune 411 003
3. The Principal C D A [Pension]
Draupatighat, Allahabad 211 014
4. The Controller of Accounts [Factories]
Kirkee Group of Factories,
Ammunition Factory
Khadki Pune 411 003
5. Smt. Shaheen Tamboli
Managalya Co-operative Society Ltd
Flat No.506, Survey No.44,

C.House No.486,
Elphistone Road,
Khadki Pune 411 003 ... Respondents

(By Advocate Smt. H.P.Shah along with
Smt. J.K.Rehel for respondent Nos.1 to 4 &
Shri V.N.Tayade for respondent No.5)

O R D E R

PER: SMT. LEENA MEHENDALE, MEMBER (A)
This Original Application is filed
by a married Muslim lady on 22.07.2011 under
Section 19 of the Administrative Tribunals
Act, 1985 to claim the benefits of the
family pension and other retiral benefits,
being heirs to the deceased employee Shri
Shaikh Salim Abdul Karim of Ammunition
Factory Khadki, Pune. She is the second
wife of the deceased employee and it is
claimed that the first wife was legally
divorced. Moreover, the first nomination
for family pension earlier filed by the
deceased Shaikh Salim in favour of first
wife was withdrawn by him after his marriage
with the applicant and a second nomination
form has been submitted to the respondents
for Death-cum-Retirement Gratuity way back
on 20.07.2004 clearly indicating the name of
the applicant to be the beneficiary of
DCRG. Another nomination form is also seen
at Annexure R-4, nominating applicant for
family pension.

2. The impugned order at Annexure A-1 dated 01.11.2011 suggest

the ground taken by the respondent-department, who have not yet
granted the family pension and other benefits as per the claim. The
impugned order reads -

“In this connection you are requested to
refer this of ice letter of even no. dt. 03.05.2010.
As late SK. Salim Abdul Karim, Ex. T.No.
QCSAA/235/840278 is survived by two wives it
was decided that terminal benefits will be paid to
the rightful legal heir whoever produces
Succession Certificate from Court of Law.
You are therefore once again requested to
produce Succession Certificate from Court of Law
by making Smt. Shahin a party to the case, to
enable this of ice to take further action in the
matter.”

3. The brief facts of the case are as under
-
Shri Shaikh Salim Abdul Karim was employee
with the respondent-department i.e.
Ammunition Factory, Khadki, Pune, who
expired on 28.01.2010 while in service. His
Death certificate is dated 08.02.2010 as at
Annexure A-2. He had a first wife Shaheen
and second wife Afsar and it is claimed by
the applicant, who is the second wife that
he had given divorce to the first wife. His
nomination for the DCRG dated 14.11.1987 in
favour of first wife Shaheen (Respondent
No.5 in the present OA) is at Annexure R-
8. However, the applicant Afsar has
produced a copy of fresh DCRG nomination
dated 20.07.2004 in favour of herself. This
is produced along with Annexure A-6, which
is actually an admission by the respondents

under RTI to say that they have received
this fresh DCRG nomination in favour of
Afsar. There is also a nomination filled by
deceased Salim for family pension in favour
of Afsar dated 03.11.2006 is at Annexure R-
4, which contains only the name of Afsar and
three children Anees, Naziya and Tehreen.
It is explained by the applicant in OA, para
4.3 that these three children namely Anees,
Naziya and Tehreen are the children of the
first wife but, now staying with Afsar and
Salim. This nomination for family pension
does not mentioned anything about Shaheen.
The applicant has also produced as a part of
Annexure A-1 another document dated
20.07.2004 (page 37 of the OA), which is an
application from the deceased employee to
request that the name of ex-wife Shaheen
should be deleted from his service record as
he has given her divorce on 15.02.2001, with
a further request to add the name of present
wife Afsar. Along with this applications,
he has also enclosed Talaknama, Court order
of settlement, affidavit of Talak, Nikhanama
with Afsar. The applicant has also produced
at Annexure A-6 (collectively) that
nomination for benefit under Government
Employees Group Insurance Scheme and the
nominees are Afsar (wife), Rahmatbi
(mother), Anees (son), Naziya (daughter),
Shabaz (son) and Tehreen (daughter) (it is
explained that Shabaz has died

subsequently). The applicant has also
produced a nomination in her favour for the
purpose of Provident Fund. This nomination
is at page 49 of the OA and it mentions the
name of Anees as a second nominee in case of
invalidity. Thus we find valid nominations
in favour of applicant Afsar for purposes of
Family Pension, DCRG, Provident Fund and
Government Group Insurance, all separately.

4. It is thus seen that approximately six years prior to the deceased
employee, he had properly informed the office about his second
marriage, his divorce from the first wife and filed several nominations
in favour of the second wife Afsar, who is the applicant here. On
behalf of the respondent No.5, the first wife, the learned counsel has
stated that she denies the claim of “talak” with the deceased
employee. However, respondent No.5 is not able to claim that the
nomination filed by the deceased employee is not valid. The
respondent No.5 raises objection to the marriage between the deceased
employee and the applicant. However, she is neither able to explain as
to how it supports her stand of still being the legally married wife, nor
the stand as to how the nomination by the deceased employee in favour
of applicant may be ignored.

5. The learned counsel for Respondent No.5 has relied upon the
judgment in Vidhyadhari and others Vs. Sukhrana Bai and others,
(2008) 1 SCC (L&S) 451, where Vidyadhari and Sukhrana Bai were
each claiming to be the only wife of deceased employee and, therefore,
claiming to be the sole beneficiary. They were demanding succession
certificate for the purpose of movable property. However, the said
case is distinguishable for the reason that the present case will be
governed by the Customary Muslim Law and also by the fact that it is

not a case to settle the succession claim. It is a case to demand family
pension and other retiral benefits, in view of valid nominations in
favour of second wife in supersession of the nomination in favour of
the first wife. The learned counsel for the respondent No.5 has also
cited the case of Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan and
others, 2002 (3) Mh.L.J. 604, in which it was held that if Triple Talak
given by Muslim husband at an earlier date followed by the certificate
by the Qazi at a later date does not amount to the dissolution of
marriage from the date on which such a statement of Triple Talak is
made. However, the said judgment does not negate the fact of Talak
by itself. In the present case in particular we also have to go by the
fact that the first nomination was duly cancelled and a fresh
nomination was filled separately for DCRG, Pension, Provident Fund
and Group Insurance benefits, by the employee much prior to his
death.

6. There are three types of claim against the respondent-
department -

Family Pension.
All Retiral benefits, which
would have normally arisen
after retirement in natural
course such as DCRG.
Other Benefits, which arise
out of the service of the
deceased employee before his
death while in service and as
such, different from retiral
benefits. These are claims
such as salary of that month,
etc.

7. The family pension will accrue fully to
the second wife namely the present
applicant. The retiral benefits such as
DCRG, Provident fund and group insurance
will also accrue as per the nomination
forms. Since the first wife had children
and they have been mentioned in nomination
forms, they have a right to share those
benefits alongwith Afsar, the applicant.
Third type of benefits which are not part of
the retiral benefits, but have arisen due to
sudden death of the employee while in
service will have to be identified by the
respondents No.3 and 4 and will have to be
paid to the applicant and the children of
the first wife with a stipulated that they
will be recoverable if Shaheen is able to
get a succession certificate.

8. The impugned order at Annexure A-1 dated 01.11.2011 is
quashed. Respondent Nos.2, 3 and 4 are directed to ensure that family
pension is fixed in favour of the applicant and all the relevant orders
regarding all other retiral benefits are passed as per nominations within
next four months. The actual payment should be made to the
concerned beneficiary within two months next, a stipulation as
mentioned supra will be kept for those payments where it is due as
discussed above.

9. With these instructions, the OA is
allowed. No order as to costs.

(Smt. Leena

Me
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e
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da
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Me
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(A)

km

BOMBAY OA No.800/2010

BOMBAY OA No.800/2010
(Draft or final ?? Copied from email recd from office on 29-07-2013)

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION NO.: 800 OF 2010
DATED THIS , THE DAY

OF , 2013.

CORAM : HON'BLE SHRI JUSTICE A.K.BASHEER,
MEMBER (J)
HON'BLE SMT. LEENA MEHENDALE, MEMBER
(A)
Mr. Chitranjan Kumar,
R/o B-507-Vaitharna bldg.
Jangid Complex, Mira road (e)
Thane – 401 107 ...
Applicant
(Applicant in person)

VERSUS

1. The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi – 110 069
2. INTERVIEW BOARD
{Roll No.004162 of CS (M) EXM-PT-
2008}
Through,
Smt. Shashi Uban Tripathi (Member
UPSC),
Chairperson Interview Board,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi – 110 069
3. The Secretary,
Union of India,
The Ministry of Personnel,
Public Grievances and Pensions,
North Block,
New Delhi – 110 001 ... Respondents

(By Advocate S/Shri V.S.Masurkar along with
V.Narayanan)

O R D E R

Per: Smt. Leena Mehendale, Member (A)
This Original Application is filed on
13.10.2010 under Section 19 of the
Administrative Tribunals Act, 1985, to
challenge the certain part on the selection
procedure of UPSC for All India Services.

2. The applicant appeared in the Civil Service Main Examination-
2008 (CSME-2008). He qualified the preliminary and the main exam
in 2008 and was called on to appear for the Personality Test
Board of UPSC on 23. .2009, he failed to qualify the CSME final.

3. The personality interview was to be held
in English as per the rules that prescribed
that if the main exam is taken in English
language, then the interview will be
necessarily in English. It is pertinent to
note that for those candidates, who write
the CSME in any regional language are allow
to choose the option of either that
language or English. The main choice is
not available for those writing main exam
in English. Following provision existed at
para 27 (Annexure A-1) as regards language
medium for interview -

“Candidates who have opted for English as
language medium for answering papers on Essay,

General Studies and Optional Subjects will have
to take the interview for Personality Test in
English only. However, those candidates who
opted for an Indian language as language medium
for answering papers on Essay, General Studies
and optional subjects have the option of being
interviewed EITHER in English OR in SAME
language which they have opted for the papers on
Essay, General Studies and optional subjects.”
4. The applicant takes up very interestingly, he makes a distinction
between expertise of written language Vs. expertise of spoken
language. A person may be fluent in writing the language because of
various factors, but not necessary fluent in spoken language. He
quotes a social writer Chetan Bhagat, who divide the English
speaking population of India in two groups called E1 and E-2. He
annexed the copy of the speech of Chetan Bhagat dated 19.11.2009
on topic “English for progress conference speech”. He claimed that
the Board did not allowed the applicant to speak in Hindi, even after
repeated request made seeking permission for speaking in “Hindi
medium” as to ensure effective and powerful communication and to
avoid communication gaps. Interview Board asked the applicant “Do
you have problem in speaking language”. “Applicant said yes”
Chairperson said you don't have choice? Speak only English.
However under such constrain, applicant continued to speak “so
called English” for the sake of interview but perhaps not for
“personality test”. The respondent No.2 asked, you did B.A
Geography Hon's in “Hindi medium” it means what that you are not
going to answer our questions? Then they started asking questions,
which applicant was not able to understand, due to technicalities and
use of jargons in English.

5. Peruse the UPSC MA No.160/2012, which is a Reply to MA
No.534/2011 filed by the applicant. It is stated here that the UPSC

appointed an expert committee under the Chairmanship of Professor
B.B.Bhattacharya to examine the issue of language medium in the
personality test in the CSME. The committee gave its report on
10.06.2011. It is mentioned their that the committee has
considered following important aspects -

Parliamentary Resolution on Official
languages 1968, based on which all
the languages in the 8

th Schedule to
the Constitution, were included as
alternative media for Civil Services
(written) Examination. The
Committee also considered its impact
on the language medium of interview
in the Civil Services (Main)
Examination.

To elicit the views of candidates, a
questionnaire was circulated to a
large number of the candidates, who
had qualified in the written part of
the Civil Services (Main)
Examination, 2010 for interview.
The questionnaire was also
circulated to the probationers
undergoing training in the Lal
Bahadur Shastri National Academy of
Administration (LBSNAA), Mussoorie.
In deference to the observations of
the Hon'ble High Court of Bombay in
its interim order dated 15.3.2011,
the Committee had also called the
Petitioner of the PIL in question
for a personal hearing in its third
meeting held on 19

th of May, 2011.

6. It is mentioned in the Executive Summary that the Committee
evaluated the current policy regarding the choice of languages to the
candidates at different stages of the examination vis-a-vis the
requisite changes needed in the emerging context, keeping in view
the current as well as future needs of the civil services. It also
examined whether the present policy provided adequate opportunity
to the candidates for self expression at the time of personality test.
Finally, the Committee recommended the following -

*a) The candidates, opting for the Indian
Language medium (other than Hindi) for the
written part of the Civil Services (Main)
Examination, may be given the option of choosing
either the same Indian Language or English or
Hindi as the medium for the interview.
b) The candidates, opting to write the Civil
Services (Main) Examination in English, may be
similarly given the option to be interviewed either
in English, or in Hindi, or in any other Indian
Language opted by them for the compulsory
Indian Language Paper in the written part of the
Civil Services (Main) Examination. The
candidates who are, as per present policy,
exempted from the compulsory Indian Language
paper will have to appear for the interview in
English or Hindi only.
c) Irrespective of the language medium chosen by
the candidate for the interview, all candidates
should also be tested for a minimum level of skill
in spoken English as a functional means of
communication. To this end, the Interview Board
may adopt its own suitable strategy to draw out
the best from the candidate.
d) The Committee has felt that the functional
requirement for the Indian Foreign Service
demands a higher level of skill in English
communication. Therefore, the candidates who
wish to be considered for the Indian Foreign

Service would have to appear for the interview in
English only.*

7. Accordingly, Government issued letter No.22012/28/2010-AIS-I
dated 18.07.2011 to the Secretary, UPSC stating as below -

*I am directed to refer to UPSC's letter
No.23/2/2010-E.I.(B) dated 22.6.2011 on the
subject mentioned above and to convey the
approval of Competent Authority on the
recommendations at (a) and (b) accepted by
the Commission for inclusion in Instruction for
the candidates contained in the Detailed
Application Form for the Civil Services (Main)
Examination, 2011.*

8. {Examine the writing replies of UPSC dated 28.09.2011 (page
90 to 96), 05.01.2012 (page 200 to 203), 26.4.2012 (page 302 to
304), 26.4.2012 (page 305 to 309) still holds good and the OA is
misconceived and hence liable to be dismissed as such.}

(Smt. Leena Mehendale) (Shri
Justice A.K.Basheer) Member (A)
Member (J)

km*

Bom OA 444/2010 on ?????

Bom OA 444/2010 on ?????
(Draft received from dictation given to Bala)

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI,
CAMP AT GOA.

ORIGINAL APPLICATION NO.444/2010
This the day of , 2011
Coram : Hon'ble Shri Justice V.K.Bali,
Chairman,

Hon'ble Smt.Leena Mehandale,

Member (A).
Arezhi Sreedharan,
Flat No.1,
Villa Bambina,
Mamgor Hill,
Vasco-da-Gama,
Goa – 403 802. ...Applicant.
(By Advocate Shri G.Vijaychandran)

V/s.
1) Union of India through
The Secretary,
Ministry of Defence,
Room No.198,
South Block,
New delhi – 110 011.
2) Chief Personnel,
Directorate of Civil Personnel
Services, Integrated HQRS,
Ministry of Defence (Navy),
Sena Bhavan,
New Delhi – 110 011.
3) Flag Officer Commanding-in-Chief,
Headquarters,
Western Naval Command,
Shahid Bhagatsingh Road,
Mumbai – 400 001.
4) The Flag Officer Goa Area,
Headquarters, Goa Naval Area,
Vasco-da-Gama,
Goa – 403 802. ...Respondents.
(By Advocate Shri M.Amonkar)
: O R D E R (ORAL) :

{Leena Mehandale, Member (A)}
This OA is filed on 24.6.2010
under Section 19 of the Administrative
Tribunals Act, 1985.
2. The undisputed facts of the case are
that, the applicant who joined his
service in the Civilian Section of
Indian Navy on 27.5.1969 was to
superannuate on 30.6.2009 on attaining
the age of 60 years. During the earlier
part of his service, his date of
increment was falling on 1

st May. His

last promotion received w.e.f. 26

th May,
2008 to the post of Office
Superintendent with respect to which his
next due increment would have been on 1
st
May, 2009. However, in pursuance of the
VIth Pay Commission recommendations, his
pay in the rank of Assistant was fixed
at Rs.12,090/- with Grade Pay of
Rs.4,200/- in the Pay Band – 2 of
Rs.9,300-34,800 w.e.f. 1.1.2006 and the
next date of increment w.e.f. 1.7.2006
as opted by the applicant. Thus, even
though the applicant was promoted as
Office Superintendent on 26.5.2008 and
his pay was fixed at Rs.13,090/-
notionally with Grade Pay of Rs.4,200/-
w.e.f. 25.5.2008. The date of next
increment remained as 1

st July.
Accordingly his pay was refixed at

Rs.14,150/- w.e.f. 1.7.2008. Both the
parties are in agreement about this
factual position.
3. It is, thus clear that, the
applicant got his last increment on
1.7.2008 bringing his pay to Rs.14,150/-
w.e.f. 1.7.2008 and he would have got
his next increment on 1.7.2009. But, he
retired just on the previous day viz.
30.6.2009 after having rendered one
complete year's service with that pay.
4. It is the case of the applicant that
he is entitled to an increment for the
service rendered from 1.7.2008 to
30.6.2009. Had he continued in the
service for just one day, he would have
been able to claim his increment for the
service rendered in future i.e. beyond
1.7.2009. However, the applicant would
like to make a distinction between the
entitlement for increment which is in
respect of rendering future service and
the right to pensionary benefit which is
in respect of the service rendered in
past. This is a peculiar case where the
applicant has rendered one complete year
of service in a particular grade, but
his pensionary benefit would be counted
only as if he had not completed the full
one year service. The argument from the
applicant's side is that since
pensionary benefits are eligible for the

reason of past service rendered,
therefore the applicant should be held
as entitled to the pensionary benefits
as if he had been granted his increment
which was due on 1.7.2009.
5. The argument of the Respondents was
that the Rule for next increment is very
clear and he has not been given
increment on 1.7.2009 as he had already
superannuated from the service on
30.6.2009. The increment accrues only
from 1

st day following that on which it

is earned.
6. Thus, we find that a very fine
distinction is sought to be made in this
case. The applicant claims that the
increment is earned by him at the end of
30.6.2009, whereas the Respondents claim
that the increment accrues only on
1.7.2009. Thus, it is the question that
while the benefits are earned by way of
past one year's service on 30.6.2009.
But the accrual of increment will happen
only on 1.7.2009. The Rule is very
clear that in case he continues in
service further than 1.7.2009, then his
salary will be drawn by giving the
effect of the increment that accrued on
1.7.2009. But, this Rule does not
specifically say anything about the
pensionary benefits which are arising

out of the service rendered and
increment earned which has happened on
30.6.2009.
7. In view of this finer distinction
made out by the applicant and also
following the principles of natural
justice, viz. that when the Rules are
silent on the particular question then
they may be interpreted in such a way as
to give rightful benefit to the
applicant. Here we find that the
applicant has rendered service to the
Government for more than 40 years and in
view of the last one years's service he
has defenitely rendered his service for
one complete year in the scale of
Rs.14,150/- given to him on 1.7.2008.
Hence, we have no hesitation to allow
the application. Ordered accordingly.

(LEENA MEHANDALE)           (V.K.BALI)
MEMBER (A)                              CHAIRMAN


B.

Thursday, September 15, 2016

MA 41/2013 in OA No.512/2009

1) MA 41/2013
in
OA No.512/2009 Date : 23.01.2013
Shri R.R.Shetty, learned counsel for the applicant.
Shri P.J.Prasad Rao, learned counsel for the respondents.
This Misc. Application No.41/2013 has been filed in pursuance of the order passed by this Bench in OA No.512/2009 on 19.04.2011 in which four weeks' time was granted to calculate the Family Pension and arrears and make the payment. A copy of the order was received by the Respondent-Department on 26.04.2011. As against four months, more than 20 months have already passed. The Respondent-Department has already sought two extensions earlier and have now come up for the third time praying for extension for four months.
This matter of Family Pension deals with old people and the department seems to be taking a casual approach towards the settlement of Family Pension of older people. Along with the application the department has not even supplied the details of the delay that has occurred at each desk and has also not supplied any chart giving the estimated delay at all the desks through which the file may move so as to see its future.
Therefore, the MA No.41/2013 is partly allowed.
Four weeks' time is granted for issuing the necessary order of sanction of pension failing which the Joint Secretary of the Respondent-Department should personally remain present along with the affidavit giving a chart of all the desk, who may have seen the file and the time taken at each desk and with the specific proposal as to how the department propose to deal with such delays. The Joint Secretary will also submit the note explaining how the department monitors the orders issued by the CAT.
Call on 26.02.2013.
The copy of this order shall be given to both the learned counsel.
Dasti.

(Smt. Leena Mehendale)
Member(A)

km*


******* History of CAT

History of CAT
In the history of CAT, three core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench.
The validity of the Administrative Tribunals Act 1985 was upheld by the Hon'ble Supreme Court of India in Sampath Kumar Vs. Union of India........... whereby the Hon'ble Supreme Court emphasised the theory that the Administrative Tribunals shall be an effective substitute for the High Courts. However, the theory was discountenanced by the Hon'ble Supreme Court in various subsequent decisions and the matter came to be reviewed by the Constitutional Bench before the Supreme Court of India in L. Chandrakumar Vs. Union of India JT 1997(3) SC – 589.who repudiated the theory in so far as taking away the power of the High Courts to hear writ appeals filed before itself against the orders of the Administrative Tribunals under Article 226 and 227 of the Constitution of India. Their Lordships held that the power of judicial review by the High Courts within their territorial jurisdiction is under Articles 226 and 227 of the Constitution and it is one of the basic features of the Constitution which cannot be taken away by way of an amendment or enactment by the Parliament. However, their Lordships qualified by propounding that only a Division Bench in the High Court can undertake a judicial review of the decisions rendered by the Administrative Tribunals.
In Sampath Kumar Vs. Union of India which is one of the earliest cases, it was held that in the case of recruitment to the Central Administrative Tribunal the appropriate course would be to appoint a High Powered Selection Committee headed by a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India, while in the case of recruitment to the State Administrative Tribunals the High Powered Selection Committee should be headed by a sitting Judge of the High Court to be nominated by the Chief Justice of the High Court concerned. It was further held an Advocate who is qualified to be a Judge of the High Court should also be regarded as eligible as a member of CAT,
But most important part of Sampat kumar vs. union of India judgement was that the Supreme Court upheld the validity of art. 323-A and of the Act itself as the necessary changes suggested by the court were incorporated in the Administrative Tribunal Act. The Bench held that the Service Tribunals created under Article 323-A are  substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal.
In a landmark judgment in L.Chandra kumar vs. union of India (AIR 1997 SC 1125) a seven-member constitutional bench of the supreme court has unanimously while reconsidering the SAMPATH KUMAR'S CASE, has struck down clause 2(d) of articles 323A and clause 3(d) pf art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles 226 and 227 and the Supreme Court under article 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic structure of the constitution.
but also held that, the Tribunals are supplementary in their role and the power of 'Judicial Review' vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the 'Administrative Tribunals Act, 1985' which excludes the jurisdiction of High Courts.
        �To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall.  We are, however, of the view that this may not be the best way of solving the problem.  We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction.  If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them.
        While rejecting the said plea as indicated above, the Apex Court suggested for creation of 'Single Umbrella organisation'  to over see the functioning of the Tribunals in the country.
A second issue that came up before the Apex Court again and again deals with the validity of the judgments passed by a Single Member Bench. In this regard, Section 5(6) of the Act is important which reads
"(6) Notwithstanding anything contained in the foregoing provisions of the section, it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as [a Bench] consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases of such matters or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.
Provided that if at any stage of the hearing of any such case or matter, it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting [two Members], the case or matter may be transferred by the Chairman or as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit."

While examining the position of Section 5(6), it is opined by Shri Shankar Raju, (Judicial Member CAT) -- “It is no more res Integra that Section 5 of the Administrative Tribunals Act, 1985 mutatis mutandis applies to the State Administrative Tribunals in the State.” Thus the chairman of CAT as well as any State tribunal has powers to send matters to a single member bench but subject to the proviso as above.
It has been held again and again that Section 5 of the A.T. Act does not distinguish between Judicial and Administrative Members in the matter of jurisdiction, powers and authority to be exercised by the Benches.
At the same time, the Hon'ble Supreme Court also dispelled the contentions raised from various quarters about advisability of appointing the Administrative Members on these Tribunals and held that (a) there is no illegality in the appointment of the Administrative Members and (b) the Administrative Tribunals are competent to decide the constitutional validity of any statutory provision except in so far as it relates to the statutory provisions of its own Act under which the Hon'ble Members have been appointed.


Earliest, in the Dr. Mahabal Ram's case, the Hon'ble Apex Court has observed the following:
"6. Sub-sections (2) and (6) appearing as limbs of the same section have to be harmoniously construed. There is no doubt that what has been said in Sampath Kumar case would required safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, he many cases before the Tribunal where very often no constitutional issues or even legal points would be involved. Mr. Ramamurthi, Senior Counsel suggested to us in course of the hearing that keeping the principles indicated in the Constitutional Bench judgment in view, the single Member contemplated under sub-section (6) should be meant to cover a judicial member only. That view perhaps not be appropriate to adopt. On the other hand, we are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rationalized."

Upholding this totally, the Constitution Bench in L. Chandra Kumar Vs. Union of India & Ors. (1997), while dealing with the issue of appointment of Administrative Members, concluded as --
"95. We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. It has been pointed out that Administrative Members who have been appointed have little or no experience in adjudicating such disputes. The Malimath Committee has noted that at times IPS officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenure. Fore these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies would, by virtue of their specialized knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grass-root experience would best serve this purpose. To hold that the Tribunal should consist only of Judicial Members would attach the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that Administrative Members are chosen from amongst those who have some background to deal with such cases."
The subject again came up in State of Madhya Pradesh Vs. B.R. Thakare & Ors. - 2002(1) SCSLJ 25 wherein their lordships once again held,
It is thus clear that even at the suggestion of Senior Counsel who urged that Section 5(6) should mean to cover a Judicial Member only, the Apex Court has not been ready and did not consider this view to be appropriate to adopt. On the other hand, they found it sufficient for safeguarding the interests of claimants going before the Tribunal to hold that:-
"........while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rotationalized."

Thus, the Apex Court has not approved the interpretation that the constitution of a Single Bench of Judicial Member alone should be allowed. The Apex Court has clearly laid down "as a ratio of dicidendi that when before single Bench consisting of an Administrative Member the question of law and its interpretation in the context of constitutional provisions is in issue, the matter should not be assigned to a Single Member. Accordingly, the above decision does not distinguish between a Judicial Member and an Administrative Member and uniformly applies to both the categories in so far as complex nature of question of law and interpretation of certain constitutional provisions are concerned. A deemed reference is that except two categories referred to above, a Judicial as well as an Administrative Member are competent to constitute a Single Bench and also within the jurisdiction to decide the matters.
In concluding, the Hon'ble Supreme Court set aside the order passed by an Administrative Member on the ground that firstly the notification of the Chairman of MPAT to delegate All powers of the Tribunal to a single member was questionable as it did not account for the safeguards mentioned in the proviso of sec 5(6), and the Administrative member who passed the order sitting as a single member in any case had no authority under the said notification of the Chairman.
This judgement thus makes it clear that their lordships have gone by the view of the Constitutional bench in L. Chandra Kumar Vs. Union of India & Ors. (1997), in reiterating that there is no distinction between the powers of a member (J) and member (A) while sitting as a single member, when care is taken as per the proviso of sec 5(6)
However, relying on the above judgment the Hon'ble igh Court of Karnataka & the High Court of West Bengal at Calcutta have remanded the cases decided by an Administrative Member sitting as a single member bench, questioning his competency to decide a matter. With due respect to the HC bench, it is our considered opinion that their lordships have gone beyond the view held by the Constitutional bench of the Apex court and further ignored that even if the case State of Madhya Pradesh Vs. B.R. Thakare & Ors. is to be construed as rejecting the jurisdiction of member (A), the facts were peculiar only to that case.
The decision of the two High Courts have resulted in a piquant situation giving rise to a contention whether the notification of Hon'ble Chairman dated December 18, 1991, stands partially nullified so far as the Benches of Bangalore and Kolkata are concerned and whether the Administrative Members in these two Benches are precluded from deciding the cases falling within the subjects covered in the notification of the Hon'ble Chairman, dated December 18, 1991. Fortunately in other Benches, so far there are no such fetters on the powers of the Administrative Members.

The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the membersw of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
© Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizationswhich come under the purview of the CAT under Section 14 of the Act – 202.
All this is not to mention a large number of establishments that have been brought under the provisions of State Administrative Tribunals.
The third issue is about working of State tribunals. A study of the details of the above mentioned case law of L. Chandrakumar Vs. Union of India reported in JT 1997(3) SC – 589, throws light on the impressions created in the mind of the Hon'ble judges about the functioning of the Administrative Tribunals. Without any exception, all the Members of the Bar arguing before the Bench and expressed a view that the functioning of the Tribunals leave much to be desired. The Hon'ble Supreme Court referred at length to the report of Justice V.S. Malimath Committee on the functioning of the Administrative Tribunals in which Hon'ble Justice Malimath has elaborately discussed the short- falls in the functioning of the Tribunals. He has concluded that "Tribunalization of justice in our country is not satisfactory and encouraging."

Although, there is no internal evidence to prove our point, it seems to us that the adverse observations and comments that are raised in the Justice Malimath's report and the judgment of the Hon'ble Supreme Court in L. Chandrakumar's case arose out of a poor performance of some of the State Administrative Tribunals. The following observation of Justice Malimath Committee report which has been extracted by the Hon'ble Supreme Court in the case referred to above is revealing:-

"The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established for their abolition."
In this context, it may be noted that in some States the State Administrative Tribunals have been wound up following the decision by the Hon'ble Supreme Court in L. Chandrakumar's case. These State Governments observed that by reintroducing the jurisdiction of High Courts over the matters in which the State Administrative Tribunals alone had jurisdiction hitherto entails an additional financial burden to the parties thereto, besides dragging the litigation further. It is possible that these states also found that the performance of the State Administrative Tribunals was not quite satisfactory. A joke is told about the UPAT that they decided to summon the Chief Secretary, whereopon the government promptly decided to take away the powers of contempt from them.
We did not come across any such adverse observation made by the Justice Malimath Committee or by the Hon'ble Supreme Court in the above case about the functioning of the CAT or State Tribunals. If someone will study the statistics of the writ of appeals before the High Courts and the Supreme Court where the decisions of the Tribunals were upheld, then alone we will know the percentage of confirmation of the decisions rendered by Tribunals which we feel, will be very high. Such incidence of confirmation of the decisions of the Tribunal will be a great indicator of efficacy, success of the justice rendering mechanism of the Tribunals. We are not aware if any such statistics are available in the DoPT or any other forum, but, we strongly feel that such a mechanism should be created.
In the history of CAT, two core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench. As back as in 1991 the then Chairman of CAT has looked into the question of categorization of cases appearing before the CAT and prescribed guidelines as to what type of cases can be brought and heard before a Single Member Bench. He was careful to include a comprehensive guideline to say that when the parties apply for a case to be heard by a Division Bench, then so shall be done. Also, later in the case of ........... Ram Vs. ICAR, their lordships in case No................... have held that there is no bar on a Single Member Bench hearing and disposing the cases except when there is an issue of constitutional interpretation. This was further quoted in L. Chandra Kumar Vs. UOI in Ors. In which their Lordships held that the vires of Sec. 5(6) is not questionable. However, precaution must be taken that when a question of constitutional interpretation comes, the matter must be referred to a Division Bench of the Tribunal. Subsequently, another case became important in the history of CAT namely ..............Govt. of MP Vs. Thakre & Ors. The case is interesting enough to merit some details at this juncture. First of all, it arose not from any application decided by CAT but from an application decided by MPAT. Therein the Chairman of MPAT had previously issued a notification authorizing Member (Judicial) of MPAT to exercise all the powers of the State Tribunal itself When the case of Shri Thakre & Ors. Came up, it was heard by another Member (Administration) sitting single who disposed it. Hence, the main issue before the Apex Court was whether the said order was ab-initio ultra vires. While deciding the matter, their Lordships came across two issues -
(a) Whether the authority of the Tribunal can at all be delegated to a Single Member Bench?
(b) When it is delegated to one particular Member (Judicial), whether a Member (Administration) can exercise the authority?
Without any need to go into first question, their Lordships have set aside the decision of MPAT on the ground that the matter was disposed of by a Single Member (Administration), who was not authorized by Chairman.
It is pertinent to note that in the said judgment although their lordships have recorded that the quashing of the orders is not merely on the ground that the Chairman had not authorized the Administrative Member. On the other hand, in case of CAT, the notification issued about Single Member Bench cases, no distinction has been made between a Member (Judicial) and a Member (Administration) and this position has been upheld in the case of L. Chandrakumar Vs. Union of India & Ors. Hence, the CAT has to take up a categorical stand in the issues raised by the subsequent judgments of High Courts of Karnataka and Kolkata.

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RA No.26 OF 2012 IN O A No.261 of 2010 on ??-09- 2012

RA No.26 OF 2012 IN O A  No.261 of 2010 on ??-09-  2012

CENTRAL ADMINISTRATIVE TRIBUNAL
BAGALORE BENCH : BANGALORE

REVIEW APPLICATION No.26 OF 2012
IN
ORIGINAL APPLICATION No.261 of 2010

TODAY, THIS THE ............ DAY OF SEPTEMBER, 2012

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR ... MEMBER (J)

C.B. Krishnappa,
S/o late Basappa,
Aged about 41 years,
Post-Graduate Teacher (Chemistry),
Jaahar Navodaya Vidyalaya,
Adilabad, Andhra Pradesh. ... Applicant

(By Advocate Shri B.S. Venkatesh Kumar)

Vs.

1. Union of India, rep. by its Secretary,
Ministry of Human Resources Development,
(Department of School Education and Literacy),
North Block, New Delhi – 110 001.

2. The Commissioner,
Jawahar Navodaha Vidyalaya Samithi,
No.A-28, Kailash Colony,
New Delhi – 110 040.

3. The Deputy Commissioner,
Navodaya Vidyalaya Samithi,
Hyderabad Region,
No.1-1-10/3, S.P. Road,
Secunderabad – 500 003. ... Respondents


O R D E R - (BY CIRCULATION)

Hon'ble Smt. Leena Mehendale, Member (A) :

This R.A. is filed under Section 22(3)(1) of the Administrative Tribunals Act, 1985, seeking review of the order dated 10th December, 2010, in OA No.261/2010.
2. In the R.A., he has made the following prayer:
"To review the order dated 10.12.2010 in OA No.281/10 and thereafter quash the impugned transfer order dated 21.6.2010 and direct the respondents to transfer the applicant back to Navodaya Javahar Navodaya Vidyalaya, Bagalur, Bangalore, and if need be, with a further direction that the present incumbent should be transferred to any other place where vacancy exist."


  1. The applicant is seeking this review in OA No.261/2012, by mentioning the grounds at paras 3.1 to 3.4 and these grounds are new facts and this Tribunal cannot go into new facts and grounds in the Review Application.

  1. The present review is filed under Section 22(3)(f) of the Administrative Tribunals Act, 1985. The scope and power of this Tribunal under this Section is limited and akin to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC. As per the settled principles under the above Section, no new grounds can be urged in a Review Application.

5. The Hon'ble Apex Court in Ajit Kumar Rath Vs. State of rissa and Others – (1999) 9 SCC 596 held that "power of review available to the Tribunal under Section 22(3)(f) is not absolute and the same is given to a Court under Section 114 read with Order 47 Rule 1 of CPC". It has further held that "the scope of review is limited to correction of a patent error of law or fact which stares in the face.

    6. The crux of the Review Application is that the applicant now wants to bring before us a new document. This is a circular bearing F. No.10-66/ 2010-NUS(SA), dated 19.3.2010, which, in a nut-shell, says that if an erroneous staff is to be transferred, first he has to be given a notice, etc. The applicant claims that he was not aware of this circular at the time of disposal of the OA. Thus, this is a new ground that he wants to bring before us. At this stage we are not inclined to go into the merit of whether his claim as having been transferred as an erroneous staff is correct or otherwise. That stage, in our opinion is over since long. At this stage, we cannot take cognisance. Thus, we find that there is no error apparent on the face of the record or any other ground to review the decision in OA No.261.2010.
    7. The OA is therefore, dismissed. No order as to costs.
(LEENA MEHENDALE) (K.B. SURESH)
MEMBER (A) MEMBER (J)





psp.

Interim order in O.A. No. 512/2009

Interim order in O.A. No. 512/2009  (4) 26.02.2013
Applicant by Shri P. J. Prasadrao, Learned Counsel. Respondents by Shri R. R. Shetty, Learned Counsel. 2. The respondents had filed M.A. No. 41/2013 on which certain directions were given as per the Daily Order Sheet dated 23.01.2013.  The respondents have now filed affidavit dated 23.02.2013 submitting that they have issued the necessary order dated 19.02.2013, annexed to the affidavit, whereby the sanction of the President to implement the order of Central Administrative Tribunal dated 19.04.2011 has been communicated.  Para 2 of the order gives further instructions to actually work out the details payable to the applicant duly supported by Audit Report from PCDA, SC, Pune, for processing a separate sanction and for getting the charged expenditure noted by MoD/Fin(Bud) before releasing the amount. The order clarifies that the actual payment shall be released after all these are complete. 3. In view of this, through the affidavit filed by the respondents they make a prayer to grant time up to 31.05.2013.   In view of the first step having been completed by Respondent No. 1, the time up to 31.05.2013, as prayed for is allowed. M.A. is allowed. Respondents No. 2, 3 and 4 will ensure that all the required formalities, as detailed in para 2 of the sanction order dated 19.02.2013, are completed before 15.04.2013 and the payment is actually received by the applicant before 31.05.2013. The Learned Counsel for respondents also undertakes to ensure that a copy of the order dated 19.02.2013 is given
to the present applicant within seven days, which the respondents have not done so far. 4. Call on 10.06.2013.  Copy of this order be given to the parties.
(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)       Member (J) Member (A)