Sunita Daulatrao Patil, Prakash ... vs State Of Maharashtra Through ...
2003 Latest Caselaw 325 Bom

JUDGMENT

R.M. Lodha, J.

1. At the outset, Mr. P.M. Pradhan, learned counsel for Respondent No. 1 raised preliminary objection about the jurisdiction of this Court. The submission of Mr. Pradhan is that the reliefs prayed for in the writ petition can be exclusively considered by the Maharashtra Administrative Tribunal constituted under the Administrative Tribunals Act, 1985. The learned counsel submitted that the subject matter in the writ petition lies exclusively within the jurisdiction of the Maharashtra Administrative Tribunal and by virtue of Section 28 of the Maharashtra Administrative Tribunals Act, 1985, the jurisdiction of this Court is expressly excluded.

2. Confronted with the preliminary objection raised by the learned counsel for the 1st respondent, the learned senior counsel appearing for the petitioners submitted that the petitioners are principally aggrieved by Government Resolution dated 1st March, 2000. According to the learned senior counsel, constitutionality and legality of the Government Resolution dated 1st March, 2000 cannot be examined by the Maharashtra Administrative Tribunal and, therefore, it cannot be said that the jurisdiction of this Court under Section 28 of the Maharashtra Administrative Tribunals Act, 1985 is excluded.

3. The prayers made in the writ petition, inter alia, are thus :-

"(b) By an appropriate Writ, Order or direction, it be declared that the Government Resolution dated 1st March, 2000, Exhibit "A" hereto is against the provisions of the Constitution of India, without authority and illegal and consequently, the said Resolution be quashed and set aside.

(c) By an appropriate Writ, Order or direction, the State Government be restrained by an order of injunction from regularising the services of the adhoc appointees made in the posts of Assistant Engineer-Grade II into Public Works Department or Irrigation Department or other organisations, the services of whom will be otherwise governed by the Assistant Engineer (Civil) Grade II in the Maharashtra Service of Engineers (Group B Recruitment) Rules, 1997 and Sectional Engineer (Civil) Group B in the Maharashtra Services of Engineers (Recruitment), Rules, 1997.

3. By Government Resolution dated 1st March, 2000 (Exhibit "A"), the State Government decided to regularise the services of ad-hoc appointees in the cadre of Assistant Engineers, Grade-II, a gazetted post. The principal submission is that the ad-hoc appointees who were appointed by way of locally by-passing Public Service Commission cannot be regularised without going through the selection process. In petitioners view, therefore, Government Resolution dated 1st March, 2000 is unconstitutional and illegal. Besides the unconstitutionality and illegality of the Government Resolution dated 1st March, 2000, the petitioners have prayed that the respondent State Government be restrained from regularising the services of the ad-hoc appointees made in the post of Assistant Engineers- Grade II in the Public works Department or the Irrigation Department or other organizations whose services are otherwise governed by Maharashtra Service of Engineers (Group B Recruitment) Rules, 1997 and Sectional Engineer (Civil) Group B in the Maharashtra Services of Engineers (Recruitment), Rules, 1997.

4. Article 323A of the Constitution reads thus :

323A(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complains with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.

(2) A law made under clause (1) may --

(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more Sates;

(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);

(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal a would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;

(f) repeal or amend any order made by the President under clause (3) of article 371D;

(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force."

By this Article, radical change has been made in the Constitutional law relating to the services by taking out the adjudication of disputes relating to the recruitment and conditions of service of the public services of the union and of the States from the hands of the Civil Courts and to place it before an Administrative Tribunal for the union or of a State, as the case may be and, accordingly, Administrative Tribunals Act, 1985 was enacted. by this enactment, provisions were made for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State and for matters connected therewith or incidental thereto. Section 3 of the Act of 1985 defines various expressions. Clause (q) defines service matters thus :-

(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects --

i) remuneration (including allowances), pension and other retirement benefits;

ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;

iii) leave of any kind;

iv) disciplinary matters; or

v) any other matter whatsoever;

5. Chapter V of the Act of 1985 deals with miscellaneous provisions, inter alia, provides for exclusion of jurisdiction of Court and transfer of pending cases. Section 28 is relevant for our purpose, which reads thus:

"28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution.-- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post [no Court except--(a) the Supreme Court, or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force, shall have ] or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment of such service matters."

6. A survey of aforesaid provisions and the perusal of the reliefs prayed for by the petitioners leave no manner of doubt that the controversy raised in the writ petition is without doubt in relation to recruitment and is concerning to recruitment in civil services in the Maharashtra State or to civil posts under Maharashtra State and is service matter under clause (q) of section 3. In relation to the matters over which the State Administrative Tribunal has jurisdiction, power and authority, the jurisdiction of the High Court under Section 28 was held to be barred in S.P. Sampath Kumar vs. Union of India and others, AIR 1987 SC 386. The Constitution Bench of the Apex Court in S.P. Sampath Kumar held that the exclusion of jurisdiction of High Court does not invalidate the Administrative Tribunals Act, 1985. In paragraph 15 of the report, the Constitution Bench observed thus :-

"15. Exclusion of the jurisdiction of the High Courts in service matters an its propriety as also validity have thus to be examined in the background indicated above. We have already seen that judicial review by this Court is left wholly unaffected and thus there is a forum where matters of importance and grave injustice can be brought for determination or rectification. Thus exclusion of the jurisdiction of the High Courts does not totally bar judicial review. This Court in Minerva Mills (case), did point out that "effective alternative institutional mechanisms or arrangements for judicial review" can be made by Parliament. Thus it is possible to set up an alternative institution in place of the High Court for providing judicial review. The debates and deliberations spread over almost two decades for exploring ways and means for relieving the High Courts of the load of backlog of cases and for assuring quick settlement of service disputes in the interest of the public servants as also the country cannot be lost sight of while considering this aspect. It has not been disputed before us -- and perhaps could not have been -- that the Tribunal under the scheme of the Act would take over a part of the existing backlog and a share of the normal load of the High Courts. The Tribunal has been contemplated as a substitute and not as supplemental to the High Court in the scheme of administration of justice. To provide the Tribunal as an additional forum from where parties could go to the High Court would certainly have been a retrograde step considering the situation and circumstances to meet which the innovation has been brought about. Thus barring of the jurisdiction of the High Court can indeed not be a valid ground of attack."

7. The Apex Court in S.P. Sampath Kumar, thus, held that barring of the jurisdiction of the High Court cannot be a valid ground of attack.

8. In J.B. Chopra and others. v. Union of India and others, relying upon the judgment of the Constitution Bench in S.P. Sampath Kumar, it was held by the Supreme Court that the Administrative Tribunal being a substitute of the High Court had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters excluding the power to deal with all questions pertaining to the constitutionality, validity or otherwise of such laws as offending Articles 14 and 16(1) of the Constitution. The Apex Court overruled the contention that the Administrative Tribunal had no authority or jurisdiction to strike the notification which was impugned in the case before them. The Supreme Court in J. B. Chopras case held :-

"It has further held that the establishment of the Administrative Tribunal under the Act therefore takes away the jurisdiction and power of the High Court to interfere in such matters but it is not violative of the doctrine of judicial review which is a fundamental aspect of the basic structure of our Constitution because S.28 of the Act which bars the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution preserves the jurisdiction and power of the Supreme Court under Arts. 32 and 136 of the Constitution. It accordingly follows that the Administrative Tribunal being a substitute of the High Court had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all questions pertaining to the constitutional validity or otherwise of such laws as offending Arts. 14 and 16(1) of the Constitution. that being so, the contention advanced by the petitioners that the Administrative Tribunal had no authority or jurisdiction to strike down the impugned notification dated March 15, 1980 purporting to amend R.4 of the Central Hindi Directorate (Class III and Class IV) Posts Recruitment Rules, 1961 reserving 100 per cent vacancies to the post of Superintendent to be filled by the Head Clerks and thereby debarring Stenographers (Sr.) from being considered for promotion to that post, as being wholly mala fide, arbitrary and irrational and thus offending Arts. 14 and 16(1) of the Constitution, must therefore fail."

9. The seven Judge Bench of the Apex Court in L. Chandra Kumar v. Union of India and others, in unequivocal terms held that the Tribunals constituted under the Administrative Tribunals Act, 1985 are competent to hear matters where vires of the statutory provisions are questioned. Though they cannot act as substitutes for the High Court and the Supreme Court which have, under our constitutional set up, been specifically entrusted with such an obligation, their functions being supplementary, all such decisions of the Tribunal are subject to scrutiny before the Division Bench of the respective High Courts but the Tribunals will have the power to decide the vires of the subordinate legislations and rules, exception being, they cannot entertain any question regarding the vires of the parent statute. In paragraphs 80, 81, 91, 93 and 99, the Apex Court observed thus :-

80. However, it is important to emphasise that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the high Courts and the Supreme Courts, there no constitutional prohibition against their performing a supplemental - as opposed to a substitutional - role in this respect. That such a situation s contemplated within the constitutional scheme becomes evident when one analyses Clause (3) of Article 32 of the Constitution which reads as under :

"32. Remedies for enforcement of rights conferred by this part--

(1) ....

(2) .. .. .. ..

(3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2). Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2)"

"81. If the power under Article 32 of the Constitution, which has been described as the "heart" and "soul" of the constitution, can be additionally conferred upon "any other Court," there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323B of the Constitution. it is to be remembered that, apart from the authorisation that flows from Article 323A and 323B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose."

"91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the present statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the Constitution. In R.K. Jains case, (1993 AIR SCW 1899), after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the afore-stated contentions, we hold that all decisions of Tribunal, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Courts writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls."

"93. Before moving on to other aspects, we may summarise our conclusions of the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging his duty, they cannot act as substitutes for the high Courts and the Supreme Court which have, under our constitutional set up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division bench of their respective high Court. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the arrears of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach he High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal s challenged) by overlooking the jurisdiction of the concerned Tribunal."

"99. 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 o the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislation enacted under the aegies 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."

10. The seven Judge Bench of the Supreme Court thus, modified the legal position by observing that though the Tribunals shall continue to act as Courts of first instance in respect of areas for which they have been constituted and it will not 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, the exclusion of jurisdiction clauses in all other legislations enacted under the aegis of Articles 323A and 323B would be unconstitutional to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226, 227 and 32 of the Constitution. Since 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 shall be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.

11. In view of the unequivocal law laid down by seven Judge Bench of the Supreme Court in L. Chandra Kumar, it is not open for the present petitioners to directly approach this Court under Article 226 of the Constitution of India questioning the constitutionality and validity of the Government Resolution dated 1st March, 2000. They ought to have approached the Administrative Tribunal for the purpose.

12. We, therefore, have no hesitation in holding that the subject matter raised in the writ petition needs to be gone into in the first instance by the Maharashtra Administrative Tribunal.

13. We accordingly, pass the following order:-

1) The petitioners shall be at liberty to make appropriate applicaton before the Mahaarashtra Administrative Tribunal for redressal of their grievance.

2) Needless to say that if an application is made by the petitoners for condonation of delay, the fact that the writ petiton fled by the petitioners remained pending before this Court from 8.5.2000 until today shall be taken into consideration.

3) The interim order passed in the writ petition stands dissolved. However, we record the statement of Mr. Pradhan, learned counsel for the 1st respondent, that for a period of two weeks, the status quo as obtaining today in respect of the concerned employee would be maintained.

4) No costs.

Parties to act on an ordinary copy of this order duly authenticated by the Court Sheristedar of this Court on payment of usual copying charges.