Yohannan Sajeevan And Others v. The Lt. Governor And Others

16-06-2021 ct no. 13 Sl.1 sp High Court at Calcutta Civil Appellate Jurisdiction (Circuit Bench at Port Blair) WPA 175 of 2021 (Through Video Conference) Yohannan Sajeevan & Ors.

-VersusThe Lieutenant Governor, Andaman and Nicobar Island & Ors.

Mr. Deep Chaim Kabir, Mr. S. Ajith Prasad, Mr. Mazhar Hossain Chowdhury ....for the petitioners Mr. Krishna Rao, ld. Govt. Pleader ...for the State The petitioners are all employees of the Andaman and Nicobar Administration. They are aggrieved by a sudden withdrawal of H.R.A.

benefit allowed by a previous Lieutenant Governor. The decision of the previous Governor and/or Administration has not only been reversed but departmental proceedings have also been contemplated for alleged wrongful enjoyment of a benefit.

The petitioners contend before this Court that a benefit once given, cannot be recovered and much less can there be departmental

proceedings against the petitioners for receiving the benefit in accordance with law.

Mr.

Rao, learned counsel for Administration takes preliminary objection on jurisdiction. He submits that the petitioners are all employees of the Andaman and Nicobar Administration and the subject matter of the writ petition is a benefit arising out of service. He submits that the Central Administrative Tribunal at Calcutta and its benches alone could have jurisdiction to entertain the instant writ application. In this regard Mr. Rao refers to the decision of the L. Chandra Kumar vs.

Union of India reported in (1997) 3 SCC 261 particularly, paragraph 99 thereof.

Mr. D.C. Kabir, learned counsel for the petitioners in answer to the demurer relies upon two decisions. The first of which is an unreported decision of a Single Bench of this High Court dated March 16, 2021 passed in WPA 1389 of 2018. It is seen that the subject matter there were was a financial benefit granted to teachers of both Government aided and private schools.

No other alternative forum, which the petitioners therein could have approached, was discussed. The said judgment cannot come to the aid of the petitioners.

Mr. Kabir also refers to a decision of the Hon'ble Supreme Court in the case of Abdul Kadir vs. State of Bihar reported in 2009 (3) SCC 475. In the said decision, certain benefits of HRA, to teachers engaged by the State was in question and the Supreme Court and the High Court in that matter, upheld the jurisdiction of the High Court to entertain a dispute with regard to the policy decision of the State. This Court is of the view that the facts of the said case are also quite different from the facts of the instant case and the jurisdiction of the High Court vis-a-vis Central Administrative Tribunal was not in issue therein. The said decision does not have any application in the instant case.

In view of the decision of the Supreme Court in the L. Chandra Kumar (supra) and particularly, paragraph 99 as set out herein below, this Court is of the view that the petitioners have to approach Central Administrative Tribunal to seek redressal of their grievances. The relevant Paragraph of the aforesaid decision is set out hereinbelow:

"99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to extent they exclude jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and of Constitution, are

unconstitutional. Section 28 of the Act and "exclusion of jurisdiction"

clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional.

The jurisdiction conferred upon the High Courts under Articles 226/227 and upon Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution.

While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and of Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking jurisdiction of the Tribunal concerned.

Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."

The Andaman and Nicobar Administration is, however, requested not to give effect to the orders impugned only for a period of 10 days to enable the petitioners to approach the Central Administrative Tribunal. This Court has not entered into the merits of the petitioners' case

and the Tribunal if approached, may deal with the matter independently.

It is made clear that the petitioners shall be entitled to use a copy of the Vakalatnama filed in the instant writ petition duly certified by their advocates also before Central Administrative Tribunal.

With aforesaid observations, instant writ petition is disposed of.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

(Rajasekhar Mantha, J.)