(Prayer: This WP is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ order or direction, in the nature of mandamus directing the respondent no.2 to consider the representation submitted by the petitioner on 13.11.2015 as per annexure – e, in the interest of justice. issue a direction to the 2nd respondent to release the monetary benefits of her husband sri. Shivaji kurapi to petitioner and provide compensatory job to the petitioner son Sri. Srikand Shivaji Kurapi, in the interest of justice and equity and etc.,)

Oral Order:

1. The petitioner is before this Court seeking the following prayer.

                  1. Issue writ order or direction, in the nature of mandamus directing the respondent no.2 to consider the representation submitted by the petitioner on 13.11.2015 as per Annexure – E, in the interest of justice.

                  2. Issue a direction to the 2nd respondent to release the monetary benefits of her husband Sri. Shivaji Kurapi to petitioner and provide compensatory job to the petitioner son sri. srikand shivaji kurapi, in the interest of justice and equity.

                  3.       Issue pass such other order/orders as this Hon’ble Court deems fit in the facts and circumstances of the case, including an order to costs, in the interest of justice and equity.

2. The petitioner is seeking appointment on compassionate grounds on account of the death of the husband in harness. The husband is an employee of the Indian Railways and therefore, the remedy for the petitioner would be the Central Administrative Tribunal. The petitioner has preferred the subject petition in the year 2016 for the relief that he had to seek before the Central Administrative Tribunal.

3. In the light of the judgment of the Apex Court in the case of L. Chandrakumar vs. Union of India and others (AIR 1997 1125) , wherein the Apex Court holds as follows

                  “97. It has been brought to our notice that one reason why these Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements. To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Courts 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 adjudicatory 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. The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds arc allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.

                  98.     The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of experts bodies like the LCI and the Malimath Committee in this regard. We, therefore, recommend that the Union of India initiate action in this behalf and after consulting all concerned, place all these Tribunals under one single nodal department, preferably the Legal Department.

                  99.     Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may no pronounce our opinion on this aspect. Though the vires of the provision was not in question in Dr. Mahabal Ram's case, we a believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or a Bench which does not consist of a Judicial Member. So construed, Section 5(6) will no longer be susceptible to charges of unconstitutionality.

                  100.    In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is 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 32 of the Constitution. The Tribunals created under Article 323A and Article 323B 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 concerned Tribunal 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 the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.”

4. The Apex Court holds that the Central Administrative Tribunal to the employees coming under the Union is the Central Administrative Tribunal. Therefore, the petition ought to have been preferred before the Central Administrative Tribunal and reserving liberty to the petitioner to file it before the Central Administrative Tribunal, the petition stands disposed.

5. In the light of the pendency of the subject petition for the last 9 years, the Tribunal shall not insist on limitation and answer the issue on its merit, as the petitioner would be entitled to the benefit of Section 14 of the Limitation Act.

6. For the aforesaid observations, reserving such liberty, petition stands disposed.