"Outrageous": CAT slams Centre for argument that tribunal must follow government instructions

The Central Administrative Tribunal (CAT) recently slammed the Union government and its own Registry for attempting to argue that the quasi judicial body was “just an adjunct” of the Department of Personnel & Training (DoPT) and must follow DoPT instructions. .The Principal Bench Member (J) RN Singh and Member (A) Tarun Shridhar rejected the argument that the CAT was required to consult the DoPT, which falls under the Ministry of Personnel, Public Grievances & Pensions in administrative and financial matters.“We take strong objection to the contentions of the respondents that directions issued to Ministries and Departments of the Government are to be followed by the Tribunal. We are at loss to absorb that the deposition of the Tribunal in the affidavit conveys surrender to executive control in blatant disregard to the constitutional principles as interpreted by the Hon’ble Supreme Court,” the bench said..It asserted that the CAT exercises jurisdiction, powers and authority available to other courts, except the Supreme Court, in respect of various service matters.“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?,” the bench asked..The CAT made the remarks in its judgement dated April 26 on the applications moved by three of its stenographers against the change in nature of their appointment and reduction of monthly pay. They had also prayed for regularisation and consequential benefits.The three stenographers had been appointed on an adhoc basis in CAT in 2012 through an employment exchange. While it was stated that their appointment would be for three months only or till the posts are filled on a regular basis, they continued on the positions uninterrupted with a regular scale of pay till February 2023..Last year, they were disengaged and then re-appointed on contract basis on a fixed remuneration of ₹40,000. The decision was challenged before the CAT on the judicial side. In response, the Union Ministry and CAT filed a joint response to oppose the applications. It was argued that the appointments had been made by the CAT Chairman while exercising the power of relaxation of Rules but the Finance and Audit department had raised objections since instructions of DoPT had not been followed.Thus, necessary corrective steps were taken to alter the terms and conditions of appointment to bring them in consonance with the State police, it was submitted..The bench at the outset looked at the orders challenged by the stenographers and found that the decision to change their nature of appointment and salary had been taken on account of “frequent objections raised by the PAO [Pay & Accounts Officer], CAT”.While finding it absurd, the bench asked,“Does the PAO enjoy an authority superior to the Hon’ble Chairman, CAT and could his objection be a sufficient ground to alter the terms and conditions to the disadvantage of the applicant after more than 11 long years of service?”.It also noted that the CAT in 2011 had requested the Staff Selection Commission (SCC) for nomination of candidates for the post of stenographers but despite repeated reminders, there had been no response and only on account of pressing demand, the route of local employment exchange had been taken.On the argument that the appointments were only a stop gap arrangement, the bench observed that the same had continued for more than a decade. It also took a strong exception to the submission that the PAO had objected to the appointments since they had been done without the approval of the government.“Section 6 of the Administrative Tribunals Act, 1985 lays down the qualification for appointment as Chairman and it prescribes that a person shall not be qualified for appointment as the Chairman unless he is or has been a Judge of a High Court. 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 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?” .The bench also questioned how the Deputy Registrar of the CAT had filed the counter reply on behalf of both the tribunal and DOPT. It noted that the same was sought to be justified on the ground that DoPT has issued instructions to ministries and departments that a common reply should be filed before courts on behalf of the Union of India “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,” the order said..The bench disagreed with the argument that such a direction does not compromise the judicial independence of the tribunal “since in administrative and financial matters, the DoPT 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. We have already discussed the provision with respect to the jurisdiction of this Tribunal. To clarify, the matters which engage the attention of the various Benches of this Tribunal, by and large, are those which primarily used to be under the jurisdiction of the Hon’ble High Courts and/or in some cases Courts lower than that. Section 14 of the Administrative Tribunals Act, 1985 makes it abundantly clear,” it said..The CAT also criticised its registry for taking it upon itself to file the counter reply on behalf of the governmentThe CAT called it a surrender of the jurisdiction. “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,” it added.The bench also referred to the fact that the government was a respondent before it in most of the cases of employees, and such surrender of authority strikes at the foundation of the rule of law and severely compromises 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.”.The bench added that it was “certainly not comfortable with a situation wherein a functionary of the Government questions the decision of the Chairman who is a person possessing qualifications set forth in Section 6 of the Administrative Tribunals Act, 1985”.While relying on Supreme Court’s observations on separation of powers, the bench said,“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).”.Considering the cases of three stenographers on merits, the bench found that they have been working for nearly 11 years with no adverse remark or comment on their performance.“Several other similarly placed employees of the CAT have been regularized periodically. Why should applicant's case be treated differently?,” it asked.It, thus, allowed the applications and ordered regular appointment of the stenographers with effect from their initial date of appointment. Further, the bench also ordered a review of the rules to ensure that judicial independence and dignity is not compromised as in the present case. .Advocate Yogesh Sharma represented the applicants.Advocates SN Verma, Gauraan and Dilbagh Singh represented the respondents.[Read Judgment]