Need for Research support in CAT – An Introspection.
By Smt. Leena Mehendale, Hon'ble Member (A), CAT, Bangalore Bench
As any other prestigious institution of this country, the CAT has come through various ups and downs, and vicissitudes of its fortunes in the 25 years of its history. The CAT has been set up under the Administrative Tribunals Act, 1985 in accordance with Article 323-A of the Constitution of India. The objective of the Act is to provide for adjudication of disputes and complaints with respect to recruitment and service conditions of persons appointed to different cadres and posts in various departments of the Union government. Similarly under Sec 4(2), the Central Govt. may, on receiving a request from State Govt. establish the State Administrative Tribunal which will cater to the needs of employees within employment of the States. The jurisdiction of CAT extends over the territory of India and all offices under the control of Govt. of India. This jurisdiction can be and has been extended over many Corporations or Societies working under the Govt. of India for administrative matters connected therewith or incidental thereto.
The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the membersw of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
(C) Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizations which come under the purview of the CAT under Section 14 of the Act – 202.
All this is not to mention a large number of establishments that have been brought under the provisions of State Administrative Tribunals.
At this stage, we may take a clue from Physics. It is a well-known principle in Physics that the performance of a machine as also of a system can increase by a quantum jump only with an effective feed-back mechanism. The CAT has now come to a standing where such a feed-back mechanism must be introduced. By the time of its Silver Jubilee year, the CAT has accumulated a wealth of valuable judicial material in the form of decisions and judgments rendered by the eminent members of the Tribunal. It is a worthy material for a serious study and research by scholars and senior level students of law. Findings of these researches will be a valuable input for introducing reforms in administration as well as in the rules and practices of various departments from which the cases coming up before CAT get generated. Although, the reportable judgments of this Tribunal are being published in certain law journals, no effort has been made for throwing open the valued materials available from the archives of the Tribunal for encouraging study and research. Such activity is likely to benefit about 40 lacs Central Govt. employees and other nearly 60 lacs employees of the other organizations which have been brought under the purview of the CAT. Such research will also help the cases arising at the level of State Govt. employees and also in the adjudication in private sector.
But first, let us look into a few landmark judgments in the history of CAT. From Apex court they are --
S.P. Sampath Kumar Vs. Union of India – (1987) 1 SCC 124;
Dr. Mahabal Ram Vs. ICAR – (1994) 2 SCC 401'
L. Chandrakumar Vs. Union of India & Ors. - (1997) 3 SCC 261 and
State of Madhya Pradesh Vs. B.R. Thakare & Ors. - 2002(1) SCSLJ 25.
Three other HC cases have also acquired importance, namely,
Thammaiah Chari Vs. State of Karnataka & Ors. - 2005(1) ATJ 324
Divisional Railway Manager, South Central Railway, Hubli & Ors. Vs. Smt. G.L.Patil W.P. No.9551 OF 2003 (S-CAT),
both of the High Court of Karnataka and
-------------------------vs.--------------------------------- Kolkata HC
It has been a matter before the Apex Court again and again as to the validity of the judgments passed by a Single Member Bench. In this regard, Section 5(6) of the Act is important which reads
"(6) Notwithstanding anything contained in the foregoing provisions of the section, it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as [a Bench] consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases of such matters or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.
Provided that if at any stage of the hearing of any such case or matter, it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting [two Members], the case or matter may be transferred by the Chairman or as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit."
while entirely examining the position of Section 5(6).
As opined by Hon'ble Judicial Member CAT Shri Shankar Raju, “It is no more res integra that Section 5 of the Administrative Tribunals Act, 1985 mutatis mutandis applies to the State Administrative Tribunals in the State.” Thus the chairman of CAT as well as any State tribunal has powers to send matters to a single member bench but subject to the proviso as above.
Section 5 of the A.T. Act does not distinguish between Judicial and Administrative Members in the matter of jurisdiction, powers and authority to be exercised by the Benches.
A Constitution Bench of the Apex Court in L. Chandra Kumar Vs. Union of India & Ors. (1997) 3 SCC 261, examined the constitutional validity of statutory provisions of A.T. Act and functioning of the Tribunals and while dealing with the issue of appointment of Administrative Members, the following conclusions have been arrived at.
"95. We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. It has been pointed out that Administrative Members who have been appointed have little or no experience in adjudicating such disputes. The Malimath Committee has noted that at times IPS officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenure. Fore these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies would, by virtue of their specialized knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grassroot experience would best serve this purpose. To hold that the Tribunal should consist only of Judicial Members would attach the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that Administrative Members are chosen from amongst those who have some background to deal with such cases."
S.P. SAMPATH KUMAR versus UNION OF INDIA & ORS
Supreme Court Cases
1987 SCR (3) 233 1987 SCC Supl. 734 JT 1987 (2) 626 1987 SCALE (1)1317
HELD: 1. In the case of recruitment to the Central Administrative Tribunal the appropriate course would be to appoint a High Powered Selection Committee beaded by a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India, while in the case of recruitment to the State Administrative Tribunals the High Powered Selec- tion Committee should be headed by a sitting Judge of the High Court to be nominated by the Chief Justice of the High Court concerned.
In the case of recruitment to the Central Administrative Tribunal the appropriate course would be to appoint a High Powered Selec- tion Committee headed by a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India, while in the case of recruitment to the State Administrative Tribunals, the High Powered Selection Committee should be headed by a sitting Judge of the High Court 235 to be nominated by the Chief Justice of the High Court concerned.
In S.P. Sampat kumar vs. union of India (AIR 1987 SC 271), the Supreme Court upheld the validity of art. 323-A and the Act as the necessary changes suggested by the court were incorporated in the Administrative Tribunal Act.
In a landmark judgment in L.Chandra kumar vs. union of India (AIR 1997 SC 1125) a seven-member constitutional bench of the supreme court has unanimously while reconsidering the SAMPATH KUMAR'S CASE, has struck down clause 2(d) of articles 323A and clause 3(d) pf art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles 226 and 227 and the Supreme Court under article 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic structure of the constitution.
Firstly, the 'Apex Court' by a Five Judge Constitution Bench, headed by the then Hon'ble Chief Justice, Justice P.N. Baghavathi, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others (Reported in A.I.R 1987 � Supreme Court � page 386). The said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal.
Thereafter, a seven Judge Constitution Bench of the Supreme Court in 'L. Chandra Kumar Vs. Union of India and others case (Reported in AIR 1997 Supreme Court � page 1125) while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in 'S.P. Sampath Kumar's case', but also held that, the Tribunals are supplementary in their role and the power of 'Judicial Review' vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the 'Administrative Tribunals Act, 1985' which excludes the jurisdiction of High Courts.
�To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them�.
While rejecting the said plea as indicated above, the Apex Court suggested for creation of 'Single Umbrella organisation' to over see the functioning of the Tribunals in the country.
In the Dr. Mahabal Ram's case, the Hon'ble Apex Court has observed the following:
"6. Sub-sections (2) and (6) appearing as limbs of the same section have to be harmoniously construed. There is no doubt that what has been said in Sampath Kumar case would required safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, he many cases before the Tribunal where very often no constitutional issues or even legal points would be involved. Mr. Ramamurthi, Senior Counsel suggested to us in course of the hearing that keeping the principles indicated in the Constitutional Bench judgment in view, the single Member contemplated under sub-section (6) should be meant to cover a judicial member only. That view perhaps not be appropriate to adopt. On the other hand, we are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rotationalized."
It is thus clear that even at the suggestion of Senior Counsel who urged that Section 5(6) should mean to cover a Judicial Member only, the Apex Court has not been ready and did not consider this view to be appropriate to adopt. On the other hand, they found it sufficient for safeguarding the interests of claimants going before the Tribunal to hold that:-
"........while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rotationalized."
Thus, the Apex Court has not approved the interpretation that the constitution of a Single Bench of Judicial Member alone should be allowed. The Apex Court has clearly laid down "as a ratio of dicidendi that when before single Bench consisting of an Administrative Member the question of law and its interpretation in the context of constitutional provisions is in issue, the matter should not be assigned to a Single Member. Accordingly, the above decision does not distinguish between a Judicial Member and an Administrative Member and uniformly applies to both the categories in so far as complex nature of question of law and interpretation of certain constitutional provisions are concerned. A deemed reference is that except two categories referred to above, a Judicial as well as an Administrative Member are competent to constitute a Single Bench and also within the jurisdiction to decide the matters.
In Govt. of Madhya Pradesh Vs. B.R. Thakare reported in 2002 (1) SCSLJ 25, the Hon'ble Supreme Court set aside the order passed by an Administrative Member on the ground that he is not competent to pass an order.
Relying on the judgment of Hon'ble Supreme Court in Thakare's case, the Hon'ble igh Court of Karnataka & the High Court of West Bengal at Calcutta held that the Administrative Member is not competent to decide a matter. As already stated, the decision rendered by Hon'ble Supreme Court is applicable to the facts circumstances peculiar to the case.
The decision of the two High Courts have resulted in a piquant situation where the notification of Hon'ble Chairman dated December 18, 1991, is partially nullified in the Benches of Bangalore and Kolkata and the Administrative Members in the two Benches are precluded from deciding the cases, falling within the subjects notified by the Hon'ble Chairman, whereas in other Benches, there is no such fetters on the powers of the Administrative Members.
The validity of the Administrative Tribunals Act 1985 was upheld by the Hon'ble Supreme Court of India in Sampath Kumar Vs. Union of India........... whereby the Hon'ble Supreme Court emphasised the theory that the Administrative Tribunals shall be an effective substitute for the High Courts. However, the theory was discountenanced by the Hon'ble Supreme Court in various subsequent decisions and the matter came to be reviewed by the Constitutional Bench before the Supreme Court of India in L. Chandrakumar Vs. Union of India JT 1997(3) SC – 589.who repudiated the theory in so far as taking away the power of the High Courts to hear writ appeals filed before itself against the orders of the Administrative Tribunals under Article 226 and 227 of the Constitution of India. Their Lordships held that the power of judicial review by the High Courts within their territorial jurisdiction is under Articles 226 and 227 of the Constitution and it is one of the basic features of the Constitution which cannot be taken away by way of an amendment or enactment by the Parliament. However, their Lordships qualified by propounding that only a Division Bench in the High Court can undertake a judicial review of the decisions rendered by the Administrative Tribunals. At the same time, the Hon'ble Supreme Court also dispelled the contentions raised from various quarters about advisability of appointing the Administrative Members on these Tribunals and held that (a) there is no illegality in the appointment of the Administrative Members and (b) the Administrative Tribunals are competent to decide the constitutional validity of any statutory provision except in so far as it relates to the statutory provisions of its own Act under which the Hon'ble Members have been appointed.
The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the membersw of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
© Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizationswhich come under the purview of the CAT under Section 14 of the Act – 202.
All this is not to mention a large number of establishments that have been brought under the provisions of State Administrative Tribunals. A study of the details of the above mentioned case law of L. Chandrakumar Vs. Union of India reported in JT 1997(3) SC – 589, throws light on the impressions created in the mind of the Hon'ble judges about the functioning of the Administrative Tribunals. Without any exception, all the Members of the Bar arguing before the Bench and expressed a view that the functioning of the Tribunals leave much to be desired. The Hon'ble Supreme Court referred at length to the report of Justice V.S. Malimath Committee on the functioning of the Administrative Tribunals in which Hon'ble Justice Malimath has elaborately discussed the short- falls in the functioning of the Tribunals. He has concluded that "Tribunalization of justice in our country is not satisfactory and encouraging."
Although, there is no internal evidence to prove our point, it seems to us that the adverse observations and comments that are raised in the Justice Malimath's report and the judgment of the Hon'ble Supreme Court in L. Chandrakumar's case arose out of a poor performance of some of the State Administrative Tribunals. The following observation of Justice Malimath Committee report which has been extracted by the Hon'ble Supreme Court in the case referred to above is revealing:-
"The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established for their abolition."
In this context, it may be noted that in some States the State Administrative Tribunals have been wound up following the decision by the Hon'ble Supreme Court in L. Chandrakumar's case. These State Governments observed that by reintroducing the jurisdiction of High Courts over the matters in which the State Administrative Tribunals alone had jurisdiction hitherto entails an additional financial burden to the parties thereto, besides dragging the litigation further. It is possible that these states also found that the performance of the State Administrative Tribunals was not quite satisfactory. A joke is told about the UPAT that they decided to summon the Chief Secretary, whereopon the government promptly decided to take away the powers of contempt from them.
We did not come across any such adverse observation made by the Justice Malimath Committee or by the Hon'ble Supreme Court in the above case about the functioning of the CAT or State Tribunals. If someone will study the statistics of the writ of appeals before the High Courts and the Supreme Court where the decisions of the Tribunals were upheld, then alone we will know the percentage of confirmation of the decisions rendered by Tribunals which we feel, will be very high. Such incidence of confirmation of the decisions of the Tribunal will be a great indicator of efficacy, success of the justice rendering mechanism of the Tribunals. We are not aware if any such statistics are available in the DoPT or any other forum, but, we strongly feel that such a mechanism should be created.
In the history of CAT, two core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench. As back as in 198....? the then Chairman of CAT has looked into the question of categorization of cases appearing before the CAT and prescribed guidelines as to what type of cases can be brought and heard before a Single Member Bench. He was careful to include a comprehensive guideline to say that when the parties apply for a case to be heard by a Division Bench, then so shall be done. Also, later in the case of ........... Ram Vs. ICAR, their lordships in case No................... have held that there is no bar on a Single Member Bench hearing and disposing the cases except when there is an issue of constitutional interpretation. This was further quoted in L. Chandra Kumar Vs. UOI in Ors. In which their Lordships held that the vires of Sec. 5(6) is not questionable. However, precaution must be taken that when a question of constitutional interpretation comes, the matter must be referred to a Division Bench of the Tribunal. Subsequently, another case became important in the history of CAT namely ..............Govt. of MP Vs. Thakre & Ors. The case is interesting enough to merit some details at this juncture. First of all, it arose not from any application decided by CAT but from an application decided by MPAT. Therein the Chairman of MPAT had previously issued a notification authorizing Member (Judicial) of MPAT to exercise all the powers of the State Tribunal itself When the case of Shri Thakre & Ors. Came up, it was heard by another Member (Administration) sitting single who disposed it. Hence, the main issue before the Apex Court was whether the said order was ab-initio ultra vires. While deciding the matter, their Lordships came across two issues -
(a) Whether the authority of the Tribunal can at all be delegated to a Single Member Bench?
(b) When it is delegated to one particular Member (Judicial), whether a Member (Administration) can exercise the authority?
Without any need to go into first question, their Lordships have set aside the decision of MPAT on the ground that the matter was disposed of by a Single Member (Administration), who was not authorized by Chairman.
It is pertinent to note that in the said judgment although their lordships have recorded that the quashing of the orders is not merely on the ground that the Chairman had not authorized the Administrative Member. On the other hand, in case of CAT, the notification issued about Single Member Bench cases, no distinction has been made between a Member (Judicial) and a Member (Administration) and this position has been upheld in the case of L. Chandrakumar Vs. Union of India & Ors. Hence, the CAT has to take up a categorical stand in the issues raised by the subsequent judgments of High Courts of Karnataka and Kolkata.
Much water has flown under the bridge since the L. Chandrakumar's case. With due respect for the Hon'ble Supreme Courts decision, it may be noted that many State Governments found it unviable proposition to continue with the Administrative Tribunals when the Supreme Court restored to the High Courts the power of judicial review over the decisions of the Administrative Tribunals. It is also pertinent to know that the Law Commission of India has also recommended for reversing the ratio of the Supreme Court in the L. Chandrakumar's case whereby the jurisdiction of the High Courts over the decisions of the Administrative Tribunals was restored. It is learnt that the Law Commission had recommended for an Appellate mechanism under the Administrative Tribunals Act itself so as to obviate the need for judicial review of the High Courts. Although that will not bring down the number of times a litigation will be fought, we feel that it will lessen the already overburdened High Courts. It is satisfying so far, that the CAT has been continuing its journey and no adverse observations have emanated from any of the higher Courts including the Supreme Court about its efficacy and capacity to render justice. There was a time when it would appear that the Central Govt. was contemplating seriously in terms of closing the CAT and the then Cabinet Secretary has gone on record to state the thinking of the Central Govt. on these lines. However, the day is well past. It is now for certain that the Central Administrative Tribunals have come to stay as an alternative form for grievance redressal for the Central Govt. employees. The Administrative Tribunals (Amendment) Act, 2007, has further brought far reaching amendments, the vires of which was challenged before the Hon'ble Supreme Court in ............................................. The Hon'ble Supreme Court has also upheld the validity of the Administrative Tribunals (Amendment) Act, 2007. In its judgment rendered on ....................., now all the Members of the Tribunal appointed after the amendment have been equated with the High Court judges in terms of status and other perquisites by elevating the status of a Member of this Tribunal. It is required that the quality of the output of the Tribunal has also to be comparable to that of the High Court, even though, it is no longer treated as a substitute to the High Court.
For raising the standards of the CAT, however, these amendments in the Act are a necessary but not sufficient condition. We may recount some efforts towards system-improvement. For example, the status and the qualifications of the Presiding Officers of the Tribunal have been raised to a level equal to the High court Judge and the Hon'ble Members have strived to live up to the expectations of the public. Another good idea is that the Hon'ble Chairman has been deputing the newly appointed Members to the Interactive Sessions in the National Judicial Academy, so as to update their knowledge. A third initiative is a system of Annual Conference of Hon'ble Members where serious discussions take place over various administrative and judicial matters and efforts are made to clear all possible bottleneck in the discharge and functions of Tribunals. To these we may add the need for skill upgradation of the administrative staff. The members of the staff as well as officers in the Registry are no doubt quite experienced in the functioning of the Tribunal and in discharging their functions as per law, yet, they require constant updating of their knowledge in administrative and judicial matters. This will be done only by imparting to them the required training in the Administrative Training Institutes as well as judicial Academies. The CAT, Principal Bench may have to bestow their attention and efforts in evolving an arrangement whereby the members of the staff and the officers of the Registry are constantly exposed to the rules and the basic principles of law governing their administrative and quasi-judicial functions.
Having examined these issues, we come back to the question of quantum jump in system building through research. Although our decisions are reported by some journals, there is no instance of any scholarly assessment and presentation of the contribution made by this Tribunal in the area of administrative law. The CAT, has played a pivotal role in the development of administrative law, as a specialized branch of law. If the rate of approval of its judgments on appeal before the Hon'ble High Courts and Hon'ble Supreme Court is any guide, our achievement is of a high order. We have a wealth of precious materials available with us and it should be used more fruitfully for the purpose of research which could be of immense use not only for legal practitioners of Administrative Law, but for the more than 272 services/organizations falling under the jurisdiction of this Tribunal. The Tribunal may engage the services of students prosecuting courses in law in various colleges and Universities for studying and preparing data-bank from the various judgments of this Tribunal. Then comes data sorting and data mining thorough their research and formulate the legal principles and theories that have evolved over a period of time through the decisions of this Tribunal. This study and codification through the senior-level students prosecuting law in the Colleges and Universities may go a long way in tracing the evolution of the legal principles in administrative law. This will serve as a guide for all the Central Govt. officers and other participating institutions in this Tribunal. This may serve not only as a guide for the Central Govt. organizations, but for other similar Tribunals and adjudicating bodies in private sector too. Further, about 38.75 lakh of Central Govt. employees and other employees of organizations under the Tribunal will find the effort and its result very useful. The decisions will serve as a guideline for many administrative reforms. Such research will also give a better career prospect to the students of Law who may specialize in this field.
It would not be amiss to mention some impressions that I collected in my short spell of working as Member CAT for last six months about the nature of cases. First, I find that a number of cases come from Group 'C' and 'D' employees and it is really a good idea of approaching CAT is less expensive for them than approaching High Court. Second, we receive many cases in which a request for compassionate appointment is rejected. These cases when seen together as a group, makes one feel that the departments need to have more transparency and clarity in their Rules. Admittedly, only 5% of the total vacancies can be filled from applicants claiming compassionate appointment. The departments are therefore, required to decide priority based list of cases taking into consideration the economic hardship. Some departments have made very elaborate rules as to how they allocate marks and deal with various grounds for economic hardship. Yet, the fact remains that the concept of economic hardship has lot of intangible angles to it and thee can be no perfect mathematical formula. This factor contributes largely in increasing the number of cases coming up before the Tribunal where the subject matter is the rejection of application for compassionate appointment. Hence, through the Research support as discussed earlier, if it is possible to rise above the daily routine of the work in the Bench, then, a more cogent view can be formulated and proper directives can be given to the administrative departments. Similarly, I have come across large number of cases where the subject matter is merely a request to the department to finish a departmental enquiry within a reasonable time or even worse, to consider a representation either for transfer or some such small issue in which the department has just not bothered to give a reply to the applicant in a reasonable time. These cases are indicative of a certain amount of careless attitude that appears to be cropping up in the administrative system and are a pointer to a certain irreversible malice. It is therefore, a subject matter of a good academic research which needs to be conducted by students or teachers in academia, but with active consultation with the Members in CAT .
We feel that the occasion of the Silver Jubilee of CAT is a right muhurat for launching this type of study by the CAT.
Thursday, March 15, 2012
Wednesday, March 7, 2012
Women in Governance -- Economic Digest- MEDC
Women in Governance
My article " Women in Governance " is published as a cover story in March issue of the Economic Digest of Maharashtra Economic Development Council
here is the text
WOMEN IN GOVERNANCE
The role of women in Indian Governance has become a matter of study only recently. About ten years back I had undertaken to compile small biographical sketches of at least some women IAS Officers, who came in service upto 1970, but could not proceed beyond Anna Malhotra, Pratima Trivedi and Nirmala Buch. Later, I found some short articles in Marathi, pen-sketching a few women IAS from Maharashtra. One study was tried by the Lal Bahadur Shastri. National Academy of Administration at Mussoorie. But none has been persuaded with seriousness it deserves, and none has aimed at a meaningful compilation.
On this backdrop, I was quite pleasantly surprised one day when someone said to me “you women officers, who came in the governance in initial years do not know what yeoman service you have done and for what large number of girls you have been role models." The person was Mr. Jayant Salgaonkar, well known in Maharashtra as an astrologer and publisher of almanac – based calenders and hence presumably an orthodox or conservative personality.
When we talk of women in governance, we cannot restrict ourselves only to the IAS Officers alone, yet undoubtedly they have a major role in the whole theme.
Speaking of India, we have seen women in governance at different levels in different categories. First comes those who played the leader role, such as Indian Gandhi, the Prime Minister, Pratibha Patil – the President of India and a handful of those others who were Chief Ministers of States such as Nandini Satpathi and Sheila Dixit or Governors such as Fatima Bibi. By and large, they have played their leader's role well. In comparison many more women politicians who have served as ministers either in centre, or in the States, have not shown their enterprise or leadership so well – they have not left much of a mark for their ideas or vision or work style or creativity in the departments which they handled as their portfolio. They are not much remembered for their scholarlines or as strategist or as a thinker.
Women in IAS do stand out as a class. Right after the independence, we discontinued the recruitment in Indian Civil Service – that was London – based and meant for 'British Raj'. But Sardar Patel had recognized the importance of the civil services and a robust bureaucracy which could be like a supporting backbone for running the country's Administration. He set up a systematized recruitment channel to Indian Administrative Service right from 1948 itself. And thanks to the participation of a large number of women leaders in the freedom struggle, nothing was considered untoward when in 1949, the first lady IAS namely Anna Kurien (now known as Anna Malhotra) got selected. The trend of having one or two lady officers in subsequent batches continued till 1970 and most of them were Delhi based. The news of this opportunity for women did not reach other parts of the country so early.
Anna was allotted the Tamil Nadu cadre. When initial one year district training was over, she was promptly posted at the secretariat in Madras while other male colleagues were given charge of a sub-division to work as Assistant Collector-cum-SDM. When Anna took up the issue with the then Chief Minister, Chakravarti Rajgopalachari, he turned out to be one orthodox Tamilian and refused to grant that she could handle Law and Order or Stategic Management. Finally, only at the intervention of Delhi and because of her perseverance, she was posted as SDM. What might have happened if she had not fought so well! As many as 30 years passed after her battle, when women IAS officers of Maharashtra had once again to agitate for getting posted as C.E.O. or Collector in a district and 60 years have passed but a women officer is still not considered fit for becoming Chief Secretary, though 3 years back, two got posted as Home Secretary in succession. By now almost every state has seen a women Collector but only 4 have seen a woman Chief Secretary – Madhya Pradesh, Assam, Uttar Pradesh and Tamil Nadu. Although, women officers of Indian Foreign Service have held highly strategic posts such as Ambassador to the USA, none from IAS has yet become Cabinet Secretary and none from IFS as India's Secretary Foreign Affairs.
Looking at women Collectors most of them have carried out this job in such a way that they have been remembered for excellent handing of the districts – thus reconfirming that C. Rajgopalachari or other patriarchs of his type need not have feared when Anna was first posted as SDM.
With a pinch of salt it has to be admitted that some women IAS officers have not lagged behind in corruption – two officers who will always be talked about in this regard are Neera Yadav - Ex Chief Secretary of Uttar Pradesh and Tinu Joshi of Madhya Pradesh. Yet I find that one of their important characteristic is that their husbands were equally high ranking government officers, and whatever corruption they practised was in company of their husbands.
Although the number of women officers in IAS and IFS increased substantially during and after seventies, they still constitute only about fifteen percent of the service.
Coming to Uniformed forces, dealing with internal and external security, an important visible presence of women officers is found in the IPS (Indian Police Service) but not so much in Army. It is unfortunate that women had to fight legal and mental battles to get into these services. But it is through such battles that we could get the inspiring biography of Kiran Bedi-the first lady IPS Officer or the stories of first batch of Naval lieutenants or forest officers or fire brigade officers and so on. The battles are not yet over. It must be said from the experience of these officers that they needed lesser strength and courage to fight criminals and enemies but more mental strength to fight the attitude of their male colleagues who always saw capable women officers as a bigger challenge than capable male officers or smart enemies.
But if the public were to be the judge of the quality of governance and toughness and fairness provided by the women police officers, then ask any lady employee of the subordinate services and her instant reaction is that she feels protected by presence of lady officer in IPS however remote may be her posting. Public of Satara still remember the time when they had Vandana Krishna as Collector and Meera Borwankar as SP and even the Superintendent of district jail at Satara was a lady, and the public perception is that the trio was in no way less competent than any all- male-trio at any time. The per centage of women IPS Officers is still only around ten and needs to increase to a more respectable level.
Another category of a large number of very high ranking women officers is that of other All India Services such as Customs, Railways, Post, Telecommunication, Defence Estate, Defence Accounts, Audit & Accounts, Revenue Service and so on. These officers usually do not have much of public presence and they remain behind the desk. Their presence is about 30-40 percent in these jobs and they have proved equal to their male counterparts in all aspects. Though lacking in visibility, they have still provided high level motivation to youngsters to come in these services.
A very important category would be the Judges in the Supreme Courts and the High Courts. Here again we find a big gap in Supreme Court after Sujata Manohar. The number at the High Courts is also very small. I can recall only women judges in the Supreme Court so far Sujata Manohar, Fatima Bebi and Ranjana Desai as the Judges of Supreme Court and Leela Seth the Chief Justice of High Court. No lady Advocate has become the Solicitor General of India or Advocate General in any State. Similarly, a very few women Advocates have ever been the Presidents of Bar Association. This aspect is important because of a rising number of cases of atrocity against women. Although, I have nevel held that only female judges can appreciate the gravity of atrocity against women, it can be seen at times that the required sensitivity and attitude does not come to male judges as a matter of course but has to be cultivated by them consciously. This is where the women judges make a difference.
After 1985 and particularly after the 79th Constitutional Amendment which allowed 30% reservation of seats at the level of local self government, two important results have taken place. First was to give a similar reservation to women in many subordinate government cadres. This has paved way for recruitment of large number of women in the traditional as well as non-traditional areas. We can now see women employees in such organization as Police Constable, P.S.I, Fire Brigade, Naval Officers, Airplane Pilots, Railway Engine Drivers, Bus Conductors etc. Apart from those is banking, education animal husbandary, agriculture etc. Another effect is seen in the large scale presence of women at political level in the local self- government institutions such as Gram Panchayat Surpanch, Zilla Parishad President, Municipal Corporators and Mehyors in Municipal Corporations. The latest news in this regard which in my opinion must be celebrated as a welcome news is that several housewives have been elected to the Bombay Municipal Corporation. This is a big leap which would provide them a direct opportunity of participation in Governance. Even after their retirement, their political participation as a watch-dog for our democracy would continue. In Indian traditions where 60 to 70% of our women population are still playing the role of housewife and, therefore, by popular perception, not having great insight about the working of Government, this role-switching from housewife to a policy-maker of the largest Municipal Corporation is the most effective way to enlist and ensure the participation of a larger number of women- folk in the protection of our democratic polity.
The presence of women in governance can in last 65 years, therefore, be seen as a step-by-step happening. The initial large scale participation of women folk in our pre-independence struggle had demonstrated that women of India were capable of jumping from the role of a housewife to the role of a political fighter. This spirit went out after independence and we saw the sharp decline of women in political institutions. However, the pre-independence awakening as well as the relevant educational reforms paved way for women to take up such careers which took them to the higher levels of economic freedom and economic participation in country's. This career-oriented role was most prominent in government services but gradually career women also captured Private Sectors and Entrepreneurial challenges. It was felt that their role in political life could be only a sequel to their economic career. This would necessarily limit the number of women in political field. However, the recent BMC Elections would once again start the trend of housewives going straight into political career without any intermediate stage of econonic emancipation. This creates a good possibility of getting many more women-folk into the affairs of governance. I look differently at a fisher-woman getting elected to corporation from a housewife getting elected. For the fisher-women has tasted an economic freedom, but not the housewife. Hence, I consider this result as more fascination and promising.
In this regard it must be pointed out that initially when the participation of women in local self-government was facilitated, a situation was often witnessed where the women would prefer to be accompanied by their husbands for going to the Gram Panchayat's or municiple meeting. This was often quoted as the justification to demand that women should be relegated back into their role as housewife. I personally do not subscribe to this view. In my opinion even if any women today needs to be supported by her male relatives for taking a political decision in a political institution, it is only the initial aberration and over the time all women are bound to understand the importance of their own decision-making and their inherrent capability for taking a decision. This will complete the pyramid of various categories in governance where each level would see presence of woman working with full potential, whether at the level of Gram Panchayat, Municipality, Subordinate Government ranks or still Higher Government Services or Higher Politico-Executive Posts. Such a change would definitely increase the access of women to education, health, employment and a political power. It will also increase the capability of the Nation to take up more challenges and deal with them in confidence to bring success.
----------------------------------------------------------------------
My article " Women in Governance " is published as a cover story in March issue of the Economic Digest of Maharashtra Economic Development Council
here is the text
WOMEN IN GOVERNANCE
The role of women in Indian Governance has become a matter of study only recently. About ten years back I had undertaken to compile small biographical sketches of at least some women IAS Officers, who came in service upto 1970, but could not proceed beyond Anna Malhotra, Pratima Trivedi and Nirmala Buch. Later, I found some short articles in Marathi, pen-sketching a few women IAS from Maharashtra. One study was tried by the Lal Bahadur Shastri. National Academy of Administration at Mussoorie. But none has been persuaded with seriousness it deserves, and none has aimed at a meaningful compilation.
On this backdrop, I was quite pleasantly surprised one day when someone said to me “you women officers, who came in the governance in initial years do not know what yeoman service you have done and for what large number of girls you have been role models." The person was Mr. Jayant Salgaonkar, well known in Maharashtra as an astrologer and publisher of almanac – based calenders and hence presumably an orthodox or conservative personality.
When we talk of women in governance, we cannot restrict ourselves only to the IAS Officers alone, yet undoubtedly they have a major role in the whole theme.
Speaking of India, we have seen women in governance at different levels in different categories. First comes those who played the leader role, such as Indian Gandhi, the Prime Minister, Pratibha Patil – the President of India and a handful of those others who were Chief Ministers of States such as Nandini Satpathi and Sheila Dixit or Governors such as Fatima Bibi. By and large, they have played their leader's role well. In comparison many more women politicians who have served as ministers either in centre, or in the States, have not shown their enterprise or leadership so well – they have not left much of a mark for their ideas or vision or work style or creativity in the departments which they handled as their portfolio. They are not much remembered for their scholarlines or as strategist or as a thinker.
Women in IAS do stand out as a class. Right after the independence, we discontinued the recruitment in Indian Civil Service – that was London – based and meant for 'British Raj'. But Sardar Patel had recognized the importance of the civil services and a robust bureaucracy which could be like a supporting backbone for running the country's Administration. He set up a systematized recruitment channel to Indian Administrative Service right from 1948 itself. And thanks to the participation of a large number of women leaders in the freedom struggle, nothing was considered untoward when in 1949, the first lady IAS namely Anna Kurien (now known as Anna Malhotra) got selected. The trend of having one or two lady officers in subsequent batches continued till 1970 and most of them were Delhi based. The news of this opportunity for women did not reach other parts of the country so early.
Anna was allotted the Tamil Nadu cadre. When initial one year district training was over, she was promptly posted at the secretariat in Madras while other male colleagues were given charge of a sub-division to work as Assistant Collector-cum-SDM. When Anna took up the issue with the then Chief Minister, Chakravarti Rajgopalachari, he turned out to be one orthodox Tamilian and refused to grant that she could handle Law and Order or Stategic Management. Finally, only at the intervention of Delhi and because of her perseverance, she was posted as SDM. What might have happened if she had not fought so well! As many as 30 years passed after her battle, when women IAS officers of Maharashtra had once again to agitate for getting posted as C.E.O. or Collector in a district and 60 years have passed but a women officer is still not considered fit for becoming Chief Secretary, though 3 years back, two got posted as Home Secretary in succession. By now almost every state has seen a women Collector but only 4 have seen a woman Chief Secretary – Madhya Pradesh, Assam, Uttar Pradesh and Tamil Nadu. Although, women officers of Indian Foreign Service have held highly strategic posts such as Ambassador to the USA, none from IAS has yet become Cabinet Secretary and none from IFS as India's Secretary Foreign Affairs.
Looking at women Collectors most of them have carried out this job in such a way that they have been remembered for excellent handing of the districts – thus reconfirming that C. Rajgopalachari or other patriarchs of his type need not have feared when Anna was first posted as SDM.
With a pinch of salt it has to be admitted that some women IAS officers have not lagged behind in corruption – two officers who will always be talked about in this regard are Neera Yadav - Ex Chief Secretary of Uttar Pradesh and Tinu Joshi of Madhya Pradesh. Yet I find that one of their important characteristic is that their husbands were equally high ranking government officers, and whatever corruption they practised was in company of their husbands.
Although the number of women officers in IAS and IFS increased substantially during and after seventies, they still constitute only about fifteen percent of the service.
Coming to Uniformed forces, dealing with internal and external security, an important visible presence of women officers is found in the IPS (Indian Police Service) but not so much in Army. It is unfortunate that women had to fight legal and mental battles to get into these services. But it is through such battles that we could get the inspiring biography of Kiran Bedi-the first lady IPS Officer or the stories of first batch of Naval lieutenants or forest officers or fire brigade officers and so on. The battles are not yet over. It must be said from the experience of these officers that they needed lesser strength and courage to fight criminals and enemies but more mental strength to fight the attitude of their male colleagues who always saw capable women officers as a bigger challenge than capable male officers or smart enemies.
But if the public were to be the judge of the quality of governance and toughness and fairness provided by the women police officers, then ask any lady employee of the subordinate services and her instant reaction is that she feels protected by presence of lady officer in IPS however remote may be her posting. Public of Satara still remember the time when they had Vandana Krishna as Collector and Meera Borwankar as SP and even the Superintendent of district jail at Satara was a lady, and the public perception is that the trio was in no way less competent than any all- male-trio at any time. The per centage of women IPS Officers is still only around ten and needs to increase to a more respectable level.
Another category of a large number of very high ranking women officers is that of other All India Services such as Customs, Railways, Post, Telecommunication, Defence Estate, Defence Accounts, Audit & Accounts, Revenue Service and so on. These officers usually do not have much of public presence and they remain behind the desk. Their presence is about 30-40 percent in these jobs and they have proved equal to their male counterparts in all aspects. Though lacking in visibility, they have still provided high level motivation to youngsters to come in these services.
A very important category would be the Judges in the Supreme Courts and the High Courts. Here again we find a big gap in Supreme Court after Sujata Manohar. The number at the High Courts is also very small. I can recall only women judges in the Supreme Court so far Sujata Manohar, Fatima Bebi and Ranjana Desai as the Judges of Supreme Court and Leela Seth the Chief Justice of High Court. No lady Advocate has become the Solicitor General of India or Advocate General in any State. Similarly, a very few women Advocates have ever been the Presidents of Bar Association. This aspect is important because of a rising number of cases of atrocity against women. Although, I have nevel held that only female judges can appreciate the gravity of atrocity against women, it can be seen at times that the required sensitivity and attitude does not come to male judges as a matter of course but has to be cultivated by them consciously. This is where the women judges make a difference.
After 1985 and particularly after the 79th Constitutional Amendment which allowed 30% reservation of seats at the level of local self government, two important results have taken place. First was to give a similar reservation to women in many subordinate government cadres. This has paved way for recruitment of large number of women in the traditional as well as non-traditional areas. We can now see women employees in such organization as Police Constable, P.S.I, Fire Brigade, Naval Officers, Airplane Pilots, Railway Engine Drivers, Bus Conductors etc. Apart from those is banking, education animal husbandary, agriculture etc. Another effect is seen in the large scale presence of women at political level in the local self- government institutions such as Gram Panchayat Surpanch, Zilla Parishad President, Municipal Corporators and Mehyors in Municipal Corporations. The latest news in this regard which in my opinion must be celebrated as a welcome news is that several housewives have been elected to the Bombay Municipal Corporation. This is a big leap which would provide them a direct opportunity of participation in Governance. Even after their retirement, their political participation as a watch-dog for our democracy would continue. In Indian traditions where 60 to 70% of our women population are still playing the role of housewife and, therefore, by popular perception, not having great insight about the working of Government, this role-switching from housewife to a policy-maker of the largest Municipal Corporation is the most effective way to enlist and ensure the participation of a larger number of women- folk in the protection of our democratic polity.
The presence of women in governance can in last 65 years, therefore, be seen as a step-by-step happening. The initial large scale participation of women folk in our pre-independence struggle had demonstrated that women of India were capable of jumping from the role of a housewife to the role of a political fighter. This spirit went out after independence and we saw the sharp decline of women in political institutions. However, the pre-independence awakening as well as the relevant educational reforms paved way for women to take up such careers which took them to the higher levels of economic freedom and economic participation in country's. This career-oriented role was most prominent in government services but gradually career women also captured Private Sectors and Entrepreneurial challenges. It was felt that their role in political life could be only a sequel to their economic career. This would necessarily limit the number of women in political field. However, the recent BMC Elections would once again start the trend of housewives going straight into political career without any intermediate stage of econonic emancipation. This creates a good possibility of getting many more women-folk into the affairs of governance. I look differently at a fisher-woman getting elected to corporation from a housewife getting elected. For the fisher-women has tasted an economic freedom, but not the housewife. Hence, I consider this result as more fascination and promising.
In this regard it must be pointed out that initially when the participation of women in local self-government was facilitated, a situation was often witnessed where the women would prefer to be accompanied by their husbands for going to the Gram Panchayat's or municiple meeting. This was often quoted as the justification to demand that women should be relegated back into their role as housewife. I personally do not subscribe to this view. In my opinion even if any women today needs to be supported by her male relatives for taking a political decision in a political institution, it is only the initial aberration and over the time all women are bound to understand the importance of their own decision-making and their inherrent capability for taking a decision. This will complete the pyramid of various categories in governance where each level would see presence of woman working with full potential, whether at the level of Gram Panchayat, Municipality, Subordinate Government ranks or still Higher Government Services or Higher Politico-Executive Posts. Such a change would definitely increase the access of women to education, health, employment and a political power. It will also increase the capability of the Nation to take up more challenges and deal with them in confidence to bring success.
----------------------------------------------------------------------
From Vidya Dhopatkar vidyadhopatkar@gmail.com
Dear Madam,
Please find attached a copy of a letter for your article in MEDC’s Monthly Economic Digest for the month of March 2012.
Regards,
Vidya Dhopatkar
Economist – MEDC
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
To February 15th, 2012
Ms. Leena Mehendale, IAS
Sub.:
Request for an Article for MEDC’s Monthly Economic Digest.
Respected Madam,
As you are aware, for the last several years, MEDC has
been publishing the Monthly Economic Digest, which is an update on
global, Indian & Maharashtra’s economic trends & policy-issues. The
Monthly Economic Digest has been widely read and well received by the Govt.
officials, business, industry, academicians & media.
On behalf of Mr. Vithal Kamat,
President, MEDC, and on behalf of the Editorial Advisory Board of the Monthly
Economic Digest, I request you to contribute an article for our Digest on the
subject of
“Women in Governance”
I request you to send your
Article of about 1200-1400 words by the 27th February 2012 , so as to
enable us to publish the same in our next issue slated for March 5, 2012 ,
which will have the Lead Story
on this subject on the occasion of International Women’s Day. The other
authors that are contributing to the cover story are Dr. Vibhuti Patel, (Social
Security and Social Protection), and Dr. Thanksy Thekkekara, (Micro
Finance).
We also
request you to send one page abstract
by February 20th, 2012 for circulation among the Digest Editorial Board Members.
We look forward to your positive response and confirmation
at an early date.
Thanks and with warm regards,
Yours
sincerely,
Dr. C.S. Deshpande
Executive Director
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