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UNION OF INDIA AND OTHERS versus CENTRAL ADMINISTRATIVE TRIBUNAL AND ANOTHER

High Court of Judicature at Allahabad

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Union Of India And Others v. Central Administrative Tribunal And Another - WRIT - A No. 55109 of 2004 [2007] RD-AH 8740 (8 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Court No. 29

Reserved on 16.4.2007

Delivered on 8.5.2007

Civil Misc. Writ Petition No. 55109 of 2004

Union of India & others

Vs.

Central Administrative Tribunal

& another

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

This writ petition is directed against the order dated 17.8.2004 passed by the Central Administrative Tribunal allowing Original Application no. 640 of 1997 filed by respondent no. 2, directing the Railway authorities to formulate scheme for regularization and conferment of the status of Railway servant to the Ayurvedic/Homeopathic doctors working in Railway Dispensaries run by Staff Benefit Fund Committee and till such scheme is formulated, to ensure payment of such emoluments and honorarium as may be equal to the part time Allopathic doctors and permit them to issue  certificate of Medical Fitness/Sickness as provided in Indian Medicine Counsel Act, 1970 and the Homeopathic Central Council Act, 1975.

Learned counsel for the petitioner submitted that the respondent no. 2 is neither an employee of the Government of India nor a person in any manner aggrieved by his conditions of service but filed the aforesaid original application claiming himself to be the President of Unregistered Association of the Doctors Homeopathic & Ayurvedic System of Medicine, Indian Railway, and thereunder. Section 19 read with 22 of the Administrative Tribunal Act, 1985 (hereinafter referred to as ''Act') and Rule 5 of Central Administrative Tribunal Rules, 1987 (hereinafter referred to as 1987 Rules) the original application itself was not maintainable and the order in question passed by the Tribunal is without jurisdiction.

The facts in brief giving rise to this petition are that the respondent no. 2 Sanjay Kumar Singh filed the aforesaid original application seeking following relief :

(a)That a mandamus be  issued calling upon the opposite parties to grant to the Homeopathic and Ayurvedic Doctors the same conditions of Service as is being given to the Allopathic part time Doctors with facilities of treatment investigation for self and family free travelling facilities with family and to attend conservences accommodation metal pass.

(b)Direction be issued to the Opposite Parties to eliminate and do away with the discrimination being practiced upon the Homeopathic and Ayurvedic Doctors.

(c)Mandamus be issued calling upon the Opposite parties to grant them all the benefits which are admissible to the Railway Servants just as it is being given to the Allopathic Doctors.

(d)Mandamus be issued to the Opposite parties to regularise the services of the Doctors of Homeopathic and Ayurvedic system of Medicine.

(e)Mandamus be issued to the Opposite parties to grant to the Homeopathic and Ayurvedic Doctors the same amount pay, allowances which are given to the part-time Doctors employed by the Railway either employed regularly or on contract and part time.

(f)any other relief which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.

(g)Award cost of the case to the applicant.

The respondent no. 2 disclosed his identity as President of Unregistered Association of the Doctors Homeopathic & Ayurvedic System of Medicine, Indian Railway. In para-1 of the original application while giving details of the order against which the said original application was being filed stated that in exercise of powers given to him by the aforesaid unregistered association to do any and every thing for welfare and well being of the Members of Association, he is filing the said application.

The petitioners filed their counter affidavit before the Tribunal in which at the outset, raised plea of maintainability of the petition and in para-3 thereof, contended as under :

"That in reply to paras 1, 2 and 3 of the petition, it is stated that the present petition has been filed by an unregistered Association of Homeopathic and Ayurvedic Doctors engaged by the Staff Benefit Fund Committee of the Railway and they have not been engaged or appointed by the Railway Administration and are not Railway Servants and as such the present petition is not maintainable in this Hon'ble Tribunal as the petitioner and members of the said Association are not holders of a Civil Post. It is further stated that in a similar case filed by the  homeopathic/ayurvedic  doctors  engaged  by the Staff Benefit Fund Committees. Hon'ble Cuttack Bench of CAT, vide their Order dated 2nd February, 1999 in O.A. No. 408 of 1997 have held that they have no jurisdiction to entertain  the  Application  under  Section  19  of  the Administrative Tribunal Act, 1985. Copy of the Order dated  2-2-1999  is  attached  to this   reply as Annexure-CA-1."

       Moreover, it was also contended that the Homeopathic and Ayurvedic doctors have not been engaged by the Railways Administration, but they have been engaged under the aegis of Staff Benefit Fund, which is a separate entity created as a measure of staff welfare. The Staff Benefit Fund is made out of contributions of Railway employees and the said doctors have been engaged by the Staff Benefit Fund Committee on fixed monthly honorarium basis as per the terms and conditions set out in their letters of engagement. The Staff Benefit Fund Committee consists of the members drawn from Railway as well as recognized unions of Railway and are responsible for administering the scheme. It is also pointed out that besides maintaining the Ayurvedic and Homeopathic Dispensaries, the Staff Benefit Fund Committee also engage various other kind of persons for various other activities. Therefore, the aforesaid Ayurvedic and Homeopathic doctors are not holders of civil posts and Railway servants. Reliance was also placed on the order dated 2.1.1999 of the Central Administrative Tribunal Cuttack Bench on O.A. 408 of 1997, Dr. Satya Prakash & another Vs. Union of India & others holding that the persons employed by the Staff Benefit Fund Committee are not Railway servants and do not hold any civil post under the Railways.

         The Tribunal, however, by the judgment dated 17.8.2004 allowed the original application giving certain directions to the petitioner. The question of maintainability has been considered by the Tribunal in para-8 of the judgment and though it has held that the part time Doctors working in the dispensaries run by the Staff Benefit Fund Committee do not come within the purview of definition of "Railway Servants" under Para 2003(25) of the Railway Establishment Code (Vol.II), but thereafter it has proceeded to hold after referring Section 14 of the Act that since the matter pertains to regularization of part time Ayurvedic and Homeopathic Doctors working in dispensaries run under the aegis of Staff Benefit Fund Committee and this is a "service matter" concerning "recruitment to Railway service" and, therefore, the Tribunal has jurisdiction and accordingly the application is maintainable. It has distinguished the judgment of the Cuttack Bench of the Tribunal on the ground that question of maintainability was not considered therein with reference to Section 14(1) of the Act. In our view, the learned Tribunal has totally ignored to consider maintainability of the original application filed by the respondent no. 2. In fact, whether the Original Application at the instance of respondent no. 2 could have been entertained by the Tribunal was the very issue required to be considered by the Tribunal even for entertaining the Original Application. It was incumbent upon the Tribunal to consider whether the Original Application could have been filed by respondent no. 2 at all under the Act. In this regard, it would be appropriate to refer Section 19(1) of the Act, which reads as under :

"19. Application to Tribunal.-(1) Subject to the other provisions of this Act, a persons aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make any application to the Tribunal for the redressal of his grievance."

A bare reading of Section 19(1) of the Act makes it clear that only "a person aggrieved by an order" pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for "rederessal of his grievance". The words ''a person aggrieved' and ''his grievance' are of utmost importance, which show that it is not any Tom, Dick and Harry who can approach the Tribunal in respect to any service matter relating to the Government of India, though he himself is not aggrieved and has no grievance of his own. The Tribunal being a creation of the statute has limited jurisdiction to exercise its power strictly within the four corners of the statute whereunder it has been created. It cannot exercise inherent jurisdiction which is outside the purview of the Act. It is true that Section 14 lays down jurisdiction, powers and authorities of the Tribunal, but who can file application before the Tribunal is provided under Section 19 of the Act and it is unfortunate that the learned Tribunal has completely ignored to consider the same in the entire judgment and has not only entertained an application filed by a stranger but has also decided and allowed the same. The respondent nos. 2 admits in the Original Application and we have noted, he did not say that he is aggrieved by any order pertaining to any matter, which is within the jurisdiction of the Tribunal for which he is making an application for the redressal of his grievance, but his case was that he is filing the original application on behalf of certain members of an unregistered association whereof, he claims to be president and, for their benefit, he is filing the original application. Virtually, the original application was filed by respondent no. 2 as public interest litigation and we are constrained to observe that the Tribunal has no jurisdiction to entertain a public interest litigation, since it can exercise the jurisdiction  in the manner  provided in the Act. If an application under Section 19 is not filed in the manner provided therein, the Tribunal has no authority to entertain such an application outside the said provision. It is true that sometimes there may be a service matter, which may be raised by a set of persons who are aggrieved and if their number is large and they have formed an association, they may approach the Tribunal through their association for redressal of their grievance in common. The Rule framing authority has anticipated such contingency itself and provided in Rule 4(5) of 1987 Rules permitting more than one person to join single application or to association to file an application before the Tribunal provided it discloses the class/grade/category of the persons on whose behalf, it has been filed and at least one affected person joins such an application. Rule 4(5)  reads as under :

"(5) (a) Notwithstanding anything contained in sub-rules (1) to (3) the Tribunal may permit more than one person to join together and file a single application if it is satisfied, having regard to the cause and the nature of relief prayed for that they have a common interest in the matter.

(b) Such permission may also be granted to an Association representing the persons desirous of joining in a single application provided, however, that the application shall disclose the class/grade/categories or persons on whose behalf it has been filed provided that at least one affected person joins such an application."

In the present case, neither the application was filed by the association or the persons desirous of joining in the single application nor any affected person joined the original application and on the contrary, the respondent no. 2 filed the original application by his name, in his capacity as President of unregistered association. In our view, the original application was not entertainable and could not have been filed under Section 19 of the Act. Therefore, the Tribunal had no jurisdiction to entertain this matter and the judgment impugned in this petition is liable to be set aside on this ground alone.

At this stage, we feel appropriate to point out that a dispute raised by an unregistered association is not entertainable as a matter of course. Even in respect to the public interest litigation, where the jurisdiction of this Court or Supreme Court is sought to be invoked by an unregistered association, it has been held that such association may be permitted to take up cause of little, deprived, and similar categories of persons, who cannot approach the Court. Certain principles which  have emerged in this respect from the Apex Court' judgment in AIR 2006 SC 3106, B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Association & others are as under :

(a) That the members of the said association should have sufficient strength so as to come in the category of a large sect of public.

(b)    That the members should be identifiable.

(c) That the members must be of the category of poor/illiterate/helpless or disabled.

(d) That the individual member must not be capable of filing a writ petition.

(e) That the entire body of the members must authorise the association to protect their legal rights.

(f) That such an association must have its own Constitution, and

(g) That there must be authority to file a writ petition on behalf of all the members.

The Apex Court also held that where the aforesaid grounds are not satisfied, the unregistered association cannot file writ petition in respect to a legal right of such association or of the alleged breach of fundamental right for the reason that the association itself has no fundamental right of its own and so far as the members are concerned, they can take care of their own.

On behalf of respondent no. 2, a written argument has been filed, but it has not adverted at all as to how on behalf of respondent no. 2, the original application under Section 19 of the Act could have been filed before the Tribunal. On the contrary, the respondent no. 2 has sought to argue the matter on merits, namely, the Staff Benefit Fund Committee is an instrumentality and is a "State" within the meaning of Article 12 and, therefore, if there is any violation of fundamental rights, the person(s) aggrieved can approach the Court for protection thereof and, therefore, petition was maintainable. Even if we accept the contention that the Staff Benefit Fund Committee is an instrumentality of the State being wholly owned and controlled by the State and is a State under Article 12 of the Constitution, yet, in our view, Original Application before the Tribunal against the Staff Benefit Fund Committee could not have been filed since, admittedly, it is not a body notified under sub-section 2 of Section 24 and only such societies are within the purview of the Tribunal, which are notified by the Government applying Act thereto. It is not the case of the respondent no. 2 that the Staff Benefit Fund Committee is a society notified under Section 24(2) of the Act. Since we are satisfied that the writ petition is liable to be allowed on the first ground itself that the original application was not maintainable under Section 19 of the Act, it is not necessary to deal with the merits of the issue.

The writ petition, therefore, succeeds and is allowed. The order dated 17.8.2004 passed by the Central Administrative Tribunal is set aside and the original application of respondent no. 2 is dismissed with cost of Rs. 5,000/-.

Dt. 08.05.2007

PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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