Sonali Bodraj Moon vs Chief Secretary And Ors
2016 Latest Caselaw 6271 Bom

     Rng                                     1                                                     
                                                                              10884.15.grp.ambedk




                                                                                    
            1.IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                  CIVIL WRIT PETITION NO.10884 OF 2015




                                                       
     Sonali Bodraj Moon                        .. Petitioner
              vs
     The Chief Secretary & ors          .. Respondents 

with CIVIL WRIT PETITION NO.4049 OF 2015

Dhiraj B.Shinde .. Petitioner vs

M.P.S.C. & Ors .. Respondents

with CIVIL WRIT PETITION NO.3948 OF 2015

Prachi Damodar Sable .. Petitioner

vs MPSC & ors .. Respondents

with CIVIL WRIT PETITION NO.3785 OF 2015

Harshada S.Avhad .. Petitioner vs The Chief Secretary & ors .. Respondents

with CIVIL WRIT PETITION NO.3786 OF 2016

Vijaya P.Pawar .. Petitioner vs The Chief Secretary & ors .. Respondents

with CIVIL WRIT PETITION NO.8880 OF 2016

Sunil Baban Kokare .. Petitioner

vs The Chief Secretary & ors .. Respondents

10884.15.grp.ambedk

with WRIT PETITION NO.10052 OF 2016

Ashwini Pawar .. Petitioner vs M.P.S.C.& ors .. Respondents

Mr.A.A.Kumbhakoni Sr.Advocate a/w Mr.V.R.Gaikwad for Petitioner in W.P.NO.4049/2015 Mr.Prakash Ambedkar a/w Mr.P.D.Bagade for Petitioners in W.P.Nos.10884/2015, 3785/2016, 3786/2016

and 8880/2016 Mr.A.A.Karande for Petitioner in W.P.No.3948/2015

Mr.Ashish Kamath for Respondent no.1 in W.P.No.

     3948/2015 and W.P.No.4049/2015 for MPSC
                            
                                   CORAM: ANOOP V.MOHTA &
                                          G.S.KULKARNI,JJ

                                   DATE:     24 OCTOBER 2016
      

     P.C.(Per G.S.Kulkarni, J)
   

1. These batch of petitions raise common issues namely

recruitment and selection under the State service. Some of the

petitions assail State Government circulars issued in relation to the

services under the State Government (State Public Services) on the

ground that that these circulars are unconstitutional and contrary to

the law laid down by the Apex Court on the issue of vertical and

horizontal reservation.

2. The respondent-State has appeared and has raised an

10884.15.grp.ambedk

objection to the maintainability of these writ petitions on the ground

that the petitioners, as are seeking reliefs, in relation to State

services, the petitioners are required to approach the Maharashtra

Administrative Tribunals under the provisions of section 15 of the

Administrative Tribunals Act, 1985. (for short 'the Act'). The

respondent-State supports this submission relying on the decision of

the Supreme Court in the case of L.Chandra Kumar vs Union of

India 1997 (3) Supreme Court Cases 261.

3. The above objection as urged on behalf of the

respondent-State is opposed by the petitioners on two grounds.

Firstly, that the Administrative Tribunals in some similar cases has

held a consistent view, which according to the petitioner is against

the contention of the petitioners as is also contrary to the decisions of

the Apex Court. It is therefore, urged that in any case these cases

would reach the High Court after the Tribunal decides the same, and

thus, it would be appropriate that these petitions be entertained

without the petitioner being called upon to approach the

Administrative Tribunal. The second contention is that the position in

law on the issues as raised in these petitions is clear in view of the

decisions of the Supreme Court as also followed in some of the

10884.15.grp.ambedk

decisions of the Division Bench of this Court thus, the scope of

adjudication of these petitions would be narrow and therefore, the

petitions be heard and decided by this Court without requiring the

petitioner to approach the Tribunal. The State has disputed these

contentions and would urge that each of these cases is required to be

heard on its merits by the Administrative Tribunal.

4. We have perused the prayers as made in these writ

petitions. Admittedly, the petitioners are seeking reliefs against the

State Government and have urged issues pertaining to recruitment

under the State Government. The posts in question in these petitions

inter alia are Sales Tax Inspectors, Police Sub-Inspectors etc which

are admittedly civil posts under the State :

5. Section 15 of the Act provides for jurisdiction, powers and

authority of the State Administrative Tribunals to say that the

Administrative Tribunal for a State shall exercise on and from the

appointed day, all the jurisdiction, powers and authority exercisable

immediately before that day, by all Courts (except the Supreme

Court) in relation to inter alia recruitment and matters concerning

recruitment to any civil service of the State or to any civil post under

10884.15.grp.ambedk

the State as also all service matters concerning a person.

6. Further under section 2 (q) which specifically defines

"service matters" which reads as under :

"2 (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;

7. The above provisions of the Administrative Tribunal Act

clearly demonstrate that the issues inter alia pertaining to

recruitment and matters concerning recruitment to any other service

under the State or any other civil post under the State would

necessarily fall within the jurisdiction of the Tribunal.

8. The position in law as regards the jurisdiction of the

Administrative Tribunals to entertain applications in regard to such

service disputes is well-settled in view of the Constitution Bench

Judgment of the Supreme Court in L.Chandra Kumar vs Union of

10884.15.grp.ambedk

India 1997 3 Supreme Court Cases 261. The Supreme Court has

clearly held that it will not be open to the litigants to directly

approach the High Court even in cases where they question the vires

of statutory legislation (except where the "legislation" which creates

the particular Tribunal is challenged) by overlooking the jurisdiction

of the Tribunal concerned. It would be relevant to note the

observations of the Apex Court in para 99 of the decision which reads

thus :

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 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."

(Emphasis supplied)

10884.15.grp.ambedk

9. We may also usefully refer to the decision of the

Division Bench of this Court in the case of Vijay Ghogare & ors

vs.The State of Maharashtra & ors in Writ Petition No.8452 of

2004 dated 18 June 2013 (Mohit S.Shah,C.J. and M.S.Sanklecha,

J) wherein petitioners who had directly approached this Court under

Article 226 of the Constitution assailing the Constitutional validity of

the Maharashtra State Public Services (Reservation for Scheduled

Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis) Nomadic

Tribes, Special Backward Category and Other Backward Classes) Act,

2001 were held to be not maintainable in view of the settled position

in law in L.Chandrakumar (supra). Notably this order was passed

after the petitions were admitted. This order had attained finality in

view of the dismissal by the Supreme Court a Special Leave Petition

preferred against it. The Court made the following extensive

observations in paras 6,7,8,9,10,11,14,15,16 and 17 which reads

thus:

6. "We may now examine the manner in which these constitutional provisions have been sought to be implemented, the problems that have consequently arisen, and the manner in which Courts have sought to resolve them. Such an analysis will have to consider the working of the two provisions separately.

Article 323 A

7. In pursuance of the powder conferred upon it by Clause (1) of Article 323A of the Constitution, Parliament enacted the

10884.15.grp.ambedk

Administrative Tribunals Act, 1985 (Act 13 of 1985)

[hereinafter referred to as "the Act"]. The Statement of Objects and Reasons of the Act indicates that it was in the express terms of Article 323A of the Constitution and was being

enacted because a large number of cases relating to service matters were pending before various Courts; it was expected that "the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of the various courts and thereby

giving them more time to deal with other cases expeditiously but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances."

8. Pursuant to the provisions of the Act, the Central

Administrative Tribunal, with five Benches, was established on November 1, 1985. However, even before the Tribunal had been established, several writ petitions had been filed in

various High Courts as well as this Court challenging the constitutional validity of Article 323A of the Constitution as also the provisions of the Act; the principal violation

complained of being the exclusion of the jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts under Article 226 of the Constitution. Through an interim order dated October 31, 1985, reported as S.P. Sampath Kumar v. Union of India : (1985)4SCC458 , this

Court directed the carrying out of certain measures with a view to ensuring the functioning of the Tribunal along

constitutionally-sound principles. Pursuant to an undertaking given to this Court at the interim stage by the erstwhile Attorney General, An amending Act (Act 19 of 1986) was enacted to bring about the changes prescribed in the aforesaid interim order.

9. When Sampath Kumar's case was finally heard, these changes had already been incorporated in the body and text of the Act. The Court took the view that most of the original grounds of challenge-which included a challenge to the constitutional validity of Article 323A - did not survive and restricted its focus to testing only the constitutional validity of

the provision of the Act. In its final decision, the Court held that though judicial review is a basic feature of the constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court. Using this theory of effective alternative institutional mechanisms as its foundation, the Court proceeded to analyse the provisions of the Act in order to ascertain whether they passed constitutional muster. The Court came to the conclusion that

10884.15.grp.ambedk

the Act, as it stood at that time, did not measure up to the

requirements of an effective substitute and, to that end, suggested several amendments to the provisions governing the form and content of the Tribunal. The suggested amendments

were given the force of law by an amending Act (Act 51 of 1987) after the conclusion of the case and the Act has since remained unaltered.

10. We may now analyse the scheme and the salient features of the Act as it stands at the present time, inclusive as it is of

the changes suggested in Sampath Kumar's case. The Act contains 37 Sections which are housed in five Chapters. Chapter I ("Preliminary") contains three Sections; Section 3 is the definition clause.

11. Chapter II ("Establishment of Tribunals and Benches

thereof) contains Sections 4 to 13. Section 4 empowers the Central Government to establish : (1) a Central Administrative Tribunal with Benches at separate places; (2)

an Administrative Tribunal for a State which makes a request in this behalf; and (3) a Joint Administrative Tribunal for two or more States which enter into an agreement for the purpose.

Section 5 states that each Tribunal shall consist of a chairman and such number of Vice-Chairmen and Judicial and Administrative Members as may be deemed necessary by the appropriate Government. Sub-section (2) of Section 5 requires every Bench to ordinarily consist of one Judicial Member and

one Administrative Member. Sub-section (6) of Section 5, which enables the Tribunal to function through Single Member

Benches is the focus of some controversy, as will subsequently emerge, and is fully extracted as under:

"Section 5(6) - Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised 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 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 of 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."

14. Section 8 prescribes the terms of office of the personnel of the Tribunal as being for a duration of five years from the date of entering into office; there is also provision for reappointment for another term of five years. The maximum age limit permissible for the Chairman and the Vice-Chairman

10884.15.grp.ambedk

is 65 years and for that of any other Member is 62 years.

Section 10 stipulates that the salaries, terms and conditions of all Members of the Tribunal are to be determined by the central Government; such terms are, however, not to be varied

to the disadvantage of any Member after his appointment.

15. Chapter III ("Jurisdiction, powers and authority of Tribunals") consists of Sections 14 to 18. Sections 14, 15 and 16 deal with the jurisdiction, powers and authority of the Central Administrative Tribunal, the State Administrative

Tribunals and the Joint Administrative Tribunals respectively. These provisions make it clear that except for the jurisdiction of this Court, the Tribunals under the Act will possess the jurisdiction and powers of every other Court in the country in respect of all service-related matters. Section 17 provides that

the Tribunals under the Act will have the same powers in respect of contempt as are enjoyed by the High Courts.

16. Chapter IV ("Procedure") comprises Section 19 to 27.

Section 21 specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay.

17. Chapter V ("Miscellaneous"), the final Chapter of the Act,

comprising Sections 28 to 37, vests the Tribunals under the Act with ancillary powers to aid them in the effective adjudication of disputes. Section 28, the "exclusions of Jurisdiction" clause reads as follows:

28. Exclusion of Jurisdiction of courts.-- 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 or such service matters."

10. Learned counsel for the petitioner in support of his

submissions has placed reliance on the decision of the Division bench

of this Court in Sunil Rajaram Ghosalkar vs State of Maharashtra.

2002 (5) Bom.C.R.189 to contend that in a similar situation when

10884.15.grp.ambedk

the Tribunal had already decided the issues and had formed a

particular view, the Division Bench of this Court in the said case held

that it was not proper to direct the petitioners therein to the alternate

remedy before the Tribunal. The Division Bench held that that as the

view of the Tribunal in regard to the issue/question was already

known in the particular circumstances entertained the writ petitions

directly. In our opinion, reliance on behalf of the petitioner on this

decision is not well-founded. This is for two reasons. The order of the

Division Bench came to be passed in peculiar facts of the case and

secondly and most importantly for the reason that the said decision

does not take into consideration the explicit mandate of the law laid

down by the Supreme Court in L.Chandra Kumar (supra).

11. We are at a pre-admission stage in these batch of

petitions. In the light of the above clear position in law, we are of

the opinion that the petitioners could not have approached this

Court directly and need to approach the Maharashtra Administrative

Tribunal for redressal of their grievances as urged in these petitions.

We thus propose to pass similar directions as in the case of Vijay

Ghogare (supra). We accordingly, pass the following order :

(i) Instead of requiring the writ petitioners to file fresh Original Application before the Maharashtra Administrative

10884.15.grp.ambedk

Tribunal, these Writ Petitions are returned to the petitioners

for presentation before the Maharashtra Administrative Tribunal and it is accordingly directed that the papers of these writ petitions along with the original records be

returned to the counsel for presenting the same before the Maharashtra Administrative Tribunal within two weeks from today.

(ii) For all purposes, the Maharashtra Administrative

Tribunal shall treat these Writ Petitions as transferred Original Applications. Of course, the writ petitioners will be at liberty to make incidental amendments to this Writ Petitions to state that the writ petitions are presented before

the Maharashtra Administrative Tribunal as Original Applications ;

(iii) In view of the fact that these Petition are being transferred, no objection on account of limitation and/or delay in filing the applications would be entertained by the

Maharashtra Administrative Tribunal. As a matter of abundant caution, we condone the delay if any in filing the petitions before the Maharashtra Administrative Tribunal ;

(iv) The Petitioners would be at liberty to request the Maharashtra Administrative Tribunal to seek early hearing.

Writ Petitions are accordingly disposed of in the above

terms. No order as to costs.

     (G.S.KULKARNI, J)                                              (ANOOP V.MOHTA, J)