'Tribunal Is Not A Wing Of Govt' : CAT Says Ministry Controlling Its Administration Compromises Judicial Independence

LIVELAW NEWS NETWORK

9 Jun 2024 6:34 AM GMT

  • Tribunal Is Not A Wing Of Govt : CAT Says Ministry Controlling Its Administration Compromises Judicial Independence

    The CAT also slammed its Registry for filing a reply on behalf of the Government.

    The Central Administrative Tribunal recently took serious exception to the approach taken by the Union Government in refusing regularisation of the appointment of certain staff of the Tribunal. Terming the stand of the Centre "outrageous", the Tribunal wondered how the Government could object to the appointment of staff made by the Tribunal Chairperson through a proper process.The Principal...

    The Central Administrative Tribunal recently took serious exception to the approach taken by the Union Government in refusing regularisation of the appointment of certain staff of the Tribunal. Terming the stand of the Centre "outrageous", the Tribunal wondered how the Government could object to the appointment of staff made by the Tribunal Chairperson through a proper process.

    The Principal Bench comprising Mr. R.N. Singh, Judicial Member and Mr. Tarun Shridhar, Administrative Member observed that if the Ministry decides the day-to-day administration of the CAT, it will severely compromise judicial independence.

    "..before us is the case wherein day to day administration of the CAT, a judicial body, is being controlled by the Government, ironically, through a Ministry and Department who is respondent before us in most of the cases and whose orders, policies, rules and instructions are put to challenge before us on a day to day basis in innumerable OAs.  Such a situation strikes at the foundation of the rule of law and severely compromises judicial independence," the Tribunal observed in a strongly worded order.

    The Tribunal said it was "certainly not comfortable" with a situation wherein a functionary of the Government questions the decision of the Chairman, a retired High Court judge.

    Referring to the observations made by the Supreme Court in Madras Bar Association cases, the Tribunal stated :

    "The Hon'ble Apex Court had emphatically stated that Tribunals should not function as another department under the control of the executive. Sadly, the position taken by the respondents appears to be different, relegating the Tribunal to just an adjunct of the Department of Personnel & Training (DoP&T)."

    The order, containing several scathing observations against the approach of the Central Government, was passed while allowing the claim for regularisation of three Stenographers of the Tribunal who had been working on an ad-hoc basis since 2012. The applicants were aggrieved by the decision taken by the Ministry of Personnel, Public Grievances & Pensions in 2023 to disengage them and to re-appoint them only on a contractual basis for six months on a fixed remuneration instead of regular scale pay.

    Regarding the Ministry's opposition to their regularization on the ground that their initial appointment was only on an ad-hoc basis with period extensions, the Tribunal noted that the CAT Chairman was constrained to make such appointments in 2012 since Stenographers were not sponsored by the Staff Selection Commission (SSC) despite several requests.  "The applicant was appointed by the approval of the Chairman of CAT, against a sanctioned/vacant post which the organ of the Government i.e. the SSC was not assisting in filing up on regular basis," the Tribunal stated.

    Reckless challenge to judicial authority

    The Tribunal noted that the applicants had been in continuous and uninterrupted service for eleven years. Also, several other similarly placed staff members have been regularized. Hence, the Tribunal found it curious that the Ministry was objecting to the regularization of the applicants.

    "We have before us a case where an appointment made by the Chairman through an open and transparent process is objected to by the PAO(Pay and Accounts Office) who also refuses to disburse the salary of the appointee after holding such appointment to be irregular, that too after more than eleven years of such appointment have already elapsed. Does this not amount to a reckless challenge to the authority of the head of a judicial institution?."

    Expressing strong disapproval of the stand taken by the Department of Personnel and Training, the Tribunal observed :

    "And what does the counter reply state? That a judicial body which exercises powers of all Courts subordinate to the Hon'ble Supreme Court is under the jurisdiction of Central Government and requires its approval for appointment of a Stenographer Grade-D and further disbursal of his/her salary. Could it have been more outrageous?."

    In this regard, reference was made to Section 12 of the Administrative Tribunals Act which outlines that it is the Chairman who shall exercise the financial and administrative powers over all the Benches.

    Tribunal not a Wing of the Govt

    Another curious fact of the case was that a common counter-reply was filed on behalf of the Union Government and the CAT Registrar. This common counter-reply was filed by the Deputy Registrar of the CAT.

    When the Tribunal expressed bewilderment at this development, the counsel for the respondents cited an instruction by the DoPT that in service disputes, a common counter-affidavit should be filed on behalf of all Departments by the Department in which the employee last served.

    Disapproving this justification, the Tribunal observed :

    "We have put a specific query to the learned counsel for the respondents whether this Tribunal is to be considered to be an administrative Ministry or an administrative Department subordinate to the Government. The answer has been in the negative. However, the learned counsel has explained that such a direction does not compromise the judicial independence of the Tribunal since in administrative and financial matters, the DoP&T being the nodal Ministry is to be consulted by the Tribunal in terms of the extant rules. We beg to disagree. The Tribunal is a creation of an Act of Parliament and not a wing of the Government."

    How Registry can file a reply on behalf of the Govt?

    The CAT slammed its Registry for filing the reply on behalf of the Government as well.

    "We fail to understand as to how the Registry of the Tribunal has taken upon itself to file counter reply on behalf of the Government and thus, surrender to the jurisdiction which is squarely its own. The constitutional principle of governance by the Rule of law underscores judicial review of administrative actions; here we are overturning the entire principle by subjecting a judicial body to administrative control of the government. We do appreciate that when it comes to making laws, it is the legislature which is competent. We also recognize that it is the legislature which enjoys the exclusive power to frame appropriate rules. We further appreciate that the power of subordinate legislation vests with the executive. However, before us is the case wherein day to day administration of the CAT, a judicial body, is being controlled by the Government, ironically, through a Ministry and Department who is respondent before us in most of the cases and whose orders, policies, rules and instructions are put to challenge before us on a day to day basis in innumerable OAs. Such a situation strikes at the foundation of the rule of law and severely compromises judicial independence."

    Noting that the applicants have been appointed through an established procedure by way of an open, transparent and fair selection process with the approval of the Chairperson and that they have been working uninterruptedly without any blemish for eleven years, the Tribunal directed the respondents to pass an order for the regular appointment of the applicants as Stenographer Grade-D with effect from the date of their initial appointment/engagement i.e. 22.11.2012.

    Case Title: Mrs Shilpi Gupta vs Union of India and Anr.

    Case Number: OA No. 1987/2023 With OA No. 2081/2023 OA No. 2082/2023

    Advocate for the Applicant: Yogesh Sharma

    Advocate for the Respondent: S.N. Verma

    Date of Judgment: 26th day of April, 2024

    Click here to read the judgment 

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