Union of India & Others v All India Naval Clerks Association & K.G. Lakshmikutty

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **TUESDAY, THE 17TH DAY OF JANUARY 2012/27TH POUSHA 1933** ## **WPC.No. 21384 of 2007 (Z)** **------------------------------------OA.23/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ...........** ## **PETITIONER(S):** ## **-----------------------** **1. UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF DEFENCE, NEW DELHI.** **2. THE CHIEF OF THE NAVAL STAFF, NAVAL HEADQUARTERS, NEW DELHI- 110 011.** **3. THE CHIEF STAFF OFFICER (P&A),** **HQRS, SOUTHERN NAVAL COMMAND, KOCHI- 682 004.** ## **BY ADV. SRI.ALEX VARGHESE, CGC** ## **RESPONDENT(S):** **----------------------------** **1. ALL INDIA NAVAL CLERKS ASSOCIATION NO.XXXIX/6304, ALAPPAT ROAD, RAVIPURAM KOCHI-16, REPRESENTED BY ITS GENERAL SECRETARYKS BABU WORKING AS SECURITY ASSISTANT HEADQUARTERS, SOUTHERN NAVAL COMMAND, KOCHI-4.** **2. K.G.LAKSHMIKUTTY, UDC, INS VENDURUTHY, NAVAL BASE, KOCHI-15.** **R1 & 2 BY SRI.S.RADHAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.21384/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE OA. 23/05 ALONGWITH ANNEXURES.** ## **P2:- COPY OF THE REPLY STATEMENT DTD 6TH JUNE 2005.** **P3:- COPY OF THE ORDER DTD. 10TH OCTOBER 2006 IN OA.23/05 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** ## **RESPONDENT'S EXHIBITS** **R1(a):- COPY OF THE OA. NO.23/05 FILED BY THE RESPONDENTS BEFORE THE CAT WITHOUT ANNEXURES.** **R1(b):- COPY OF THE CERTIFIED COPY OF THE MA 23/05 IN OS. 23/05.** **R1(c):- COPY OF THE CERTIFIED CIP ORDER PASSED BY THE CAT IN MA. 23/05 ON 11.1.05.** **TRUE COPY** **P.S. TO JUDGE** **tss** ## Thottathil B.Radhakrishnan ## & ## C.T.Ravikumar, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## WP(C).No.21384 of 2007-Z = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of January, 2012. ## Judgment ## Thottathil B.Radhakrishnan, J. 1.The Union of India and others under the Ministry of Defence are before us challenging an order of the Central Administrative Tribunal. 2.By order dated 20[th] September, 2002 in O.A.No.755 of 2000 filed by All India Naval Clerks' Association and three others, the Tribunal set aside order dated 30.5.2000 issued by the Flag Officer Commanding in Chief, Southern Naval Command and declared that the applicants are entitled to ACP Scheme on the basis of their regularization from the date of initial appointment(including the services rendered on casual basis). The respondents in that case were directed to grant all consequential benefits of the Scheme in terms of that order within three months from the date of receipt of a copy of that WPC21384/07 -: 2 :- order. - 3.With the passage of time, it happened that different independent original applications came to be filed on individual cases, though the decision dated 30.5.2000 rendered by the Flag Officer Commanding in Chief, stood annulled by the aforesaid order of the Tribunal on O.A.No.755/2000. - 4.Ultimately, All India Naval Clerks Association and one K.G.Lakshmikutty moved the Tribunal filing O.A.No.23 of 2005 for order essentially to the effect that the benefit of the aforesaid order in O.A.No.755 of 2000 should be available to the other employees in the clerical cadre. The Tribunal by the impugned Ext.P3 ordered that all those who are similarly placed like the applicants in O.A.No.755 of 2000 shall be extended the same benefits granted as per the judgment in that case. It also declared that the decision of the Tribunal rendered in O.A.No.755 of 2000 is a judgment in rem so that future WPC21384/07 -: 3 :- litigations on the subject could be avoided. - 5.The department contends that there cannot be any public interest litigation in the field of service law. Reliance is placed on Duryodhan Sahu v. Jitendra Kumar Mishra[(1998) 7 SCC 273], Vinoy Kumar v. State of U.P.[(2001) 4 SCC 734], Faizal Kollali v. Vadakkengara Ali[2005 (2) KLT 1026] and Hari Bansh Lal v. Sahodar Prasad Mahto[(2010) 9 SCC 655] in support of the plea that there cannot be any such public interest litigation. - 6.Faced with the fact that one of the employees, namely, Lakshmikutty, was also an applicant before the Tribunal, it is argued on behalf of the establishment that she is not an affected person for the purpose of Rule 4(5)(b) of the Central Administrative Tribunal(Procedure) Rules, 1987 and therefore, merely by her presence among the applicants, the application did not stand. - 7.Hearing the learned counsel for the establishment and for the employees, we are clear in our mind WPC21384/07 -: 4 :- that having due regard to the parameters of the contents of Sections 19 and 20 of the Administrative Tribunals Act, 1985 and the statutory status of the Central Administrative Tribunal(Procedure) Rules, 1987, the provision in Rule 4(5)(b) of the Rules provides authority for the Tribunal to grant permission to an Association representing the persons desirous of joining in a single application provided, however that, the application has been filed with at least one affected person joining such application. There are certain other conditions to be satisfied. But, when at least one person who is affected joins the application, recourse cannot be had to the provision in Rule 4(5)(b). 8.Therefore, the prime question that had to be traced at the outset by the Tribunal, in the wake of objection of the establishment, ought to have been to find out whether the first applicant Association was representing persons desirous of joining in a single application and whether the second applicant was one who could be treated as WPC21384/07 -: 5 :- affected person for the purpose of Rule 4(5)(b) of the Rules. Such an exercise does not appear to have been pointly taken up in the exercise that has led to the order impugned. 9.While we accept the contention of the establishment that the position of law is as noted above, we anxiously consider whether it is necessary for us to remit the matter for reconsideration of the aforesaid aspect to the Tribunal. We see that with the passage of time involved, what can be called as the currency of service lifetime of a Government servant, needs to be focused upon. 10.The order in O.A.No.755 of 2000 was rendered on 20th September, 2002; more than nine years ago. By that order, as already found, the decision of the Flag Officer Commanding in Chief, impugned in that matter, stood quashed without any conditions. Obviously therefore, that decision stood wiped out from the records and could not have been put against any other employee. This is WPC21384/07 -: 6 :- the effect of the order of the Tribunal in O.A.No.755 of 2000. Different other orders were passed by the Central Administrative Tribunal following the order in O.A.No.755 of 2000. The order now impugned before us was issued by the Tribunal on O.A.No.23 of 2005 on 10th October, 2006. 11.We think it was unnecessary for the Tribunal to declare that the order in O.A.No.755 of 2000 is an order in rem in matters relating to service conditions. The distinction between the judgments in rem and the judgments in persona stands to advise that the decision in O.A.No.755 of 2000 not containing any declaration of a general nature, its legal effect in so far as other employees are concerned, is to the effect that the decision dated 30.5.2002 of the Flag Officer Commanding in Chief stood quashed. Obviously, the consequences will follow on that basis against the establishment. 12.We see that the first respondent Association WPC21384/07 -: 7 :- would have been motivated to filing O.A.No.23 of 2005 because employees had to repeatedly scout the jurisdiction of the Tribunal seeking relief. At the same time, when omnimus directions are issued, that could also lead to administrative contingencies in certain situations, including, allegation of violation of court orders and actions for the alleged contempt of court or authority. 13.The establishment had in fact placed a communication before the Tribunal in CP(C)No.39 of 2003 in O.A.No.755 of 2000 as follows: “Govt. has already approved implementation of CAT order in OA 755/2000 to the applicants as well as those who are members of AINC Association and petitioners to the OA irrespective of their place of work thus fully complying with the CAT (E) order in letter and spirit. Request apprise Hon'ble CAT accordingly through SCGSC. The Association may inform their members of the Govt. decision.” WPC21384/07 -: 8 :- All that is to be done is that the writ petitioner before us, the establishment, gives effect to the aforesaid statement given before the Tribunal. 14.Having regard to the factual matrix and legal position, we order that if any employee entitled to the benefit of the order of the Tribunal dated 20.9.2002 in O.A.No.755 of 2000 is yet to enjoy the benefit of that order, though not a party by name to those proceedings, he may make appropriate representation to the competent authority among the respondents within a period of three months from now and such representation shall be considered and orders issued on a case to case basis considering all relevant aspects within an outer limit of three months from the date of receipt of each of such representation and a copy of this judgment, whichever is later. - 15.We further clarify that the time bound consideration ordered hereby is regarding the WPC21384/07 -: 9 :- cases of persons who are as of now eligible to claim the benefit of ACP in view of the fact that the order dated 30.5.2000 of the Flag Officer Commanding in Chief stands quashed by the Tribunal in O.A.No.755 of 2000. If any person becomes subsequently eligible, it will be open to such employee to move the competent authority in the establishment within a reasonable time limit preferably within three months from the date on which such eligibility arises and seek redressal in accordance with law. The writ petition ordered accordingly. Thottathil B.Radhakrishnan, Judge C.T.Ravikumar, Judge Sha/180112