S.P. Sampath Kumar Vs. Union of India
& Ors [1986] INSC 261 (9 December 1986)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
(CJ) KHALID, V. (J) OZA, G.L. (J) DUTT, M.M. (J)
CITATION: 1987 AIR 386 1987 SCR (1) 435 1987
SCC (1) 124 JT 1986 996 1986 SCALE (2)960
CITATOR INFO:
F 1987 SC 357 (2) F 1987 SC 663 (2) APL 1989
SC 44 (4) RF 1989 SC 653 (11) F 1989 SC1185 (8) R 1989 SC1933 (7) RF 1990
SC1137 (3)
ACT:
Administrative Tribunals Act, 1985: ss. 4, 5,
6 & 28--Exclusion of the jurisdiction of the High Court under Arts. 226 and
227 in service matters-Constitutional validity of--Chairman, Vice-Chairman and
Members-Qualifications and mode of appointment to make the Tribunal equally
efficacious and effective alternative to the High Court-Benches and Circuits of
Tribunal-Setting up of.
Constitution of India, Arts. 226, 227, 32,
136, 323A and 368--Judicial review-Exclusion of-When permissible.
HEADNOTE:
Clause (1) of Art. 323-A, brought in by
Constitution (42nd Amendment) Act, 1976, authorised Parliament to provide by
law for the adjudication or trial by administrative tribunals of disputes and
complaints with respect to recruitment and conditions of service of persons
appointed to public services. Clause (2)(d) of that Article envisaged exclusion
of the jurisdiction of all courts, except the jurisdiction of the Supreme Court
under Art. 136 with respect to the disputes or complaints referred to in cl.
(1).
Section 28 of the Administrative Tribunals
Act, 1985 originally enacted within the ambit of Art. 323-A, provided for
exclusion of jurisdiction of the Supreme Court under Art. 32. The Act as
amended by the Administrative Tribunals (Amendment) Ordinance, 1986, replaced
by Act No. 19 of 1987 now saves the jurisdiction of Supreme Court both under
Art.
32 in respect of original proceedings as also
under Art. 136 for entertaining appeals. Section 6(1)of the Act which lays down
qualifications of Chairman, states that he should be or have been (a) a Judge
of a High Court, or (b) has for at least two years held office of
Vice-Chairman, or (c) has for at least two years held the post of Secretary to
the Government of India. Sub-section (2) provides that a Vice-Chairman should
be or have been (a) a Judge of a High Court, or (b) for at least two years held
the post of a Secretary to the Government of India, or (bb) for at least five
years held the post of Additional Secretary to the Government of India, or (c)
for a period of not less than three years held office as a Judicial Member of
an Administrative Tribunal. Subsection (3) states that the Judicial Member (a)
should or should have been qualified to be a Judge of a High 436 Court, or (b)
has been a member of the Indian Legal Service, Grade 1, for at least three
years. Sub-section (3A) provides that a person to be appointed as
Administrative Member (a) should have for at least two years held the post of
Additional Secretary to the Government of India, or (b) has for at least three
years held the post of a Joint Secretary to the Government of India.
The petitioners in these writ petitions and
transfer petitions challenged the vires of the 1985 Act. It was contended that
the exclusion of the jurisdiction of the High Court under Arts. 226 and 227 in
service matters specified in s.28 of the Act was unconstitutional and void, and
that the composition of the Tribunal and mode of appointment of Chairman,
Vice-Chairman and Members was outside the scope of the power conferred on
Parliament under Art. 323-A.
Allowing the petitions in part, the Court, By
the Court
HELD: It is the High Court which is being
supplanted by Administrative Tribunal. The office of Chairman of the Tribunal,
therefore, for all practical purposes should be equated with the office of the
Chief Justice of a High Court. Judicial discipline generated by experience and
training in an adequate dose is a necessary qualification for that post. It is
thus essential that he should have been a Judge of the High Court or he should
have for at least two years held office as Vice-Chairman. A person who has
merely held the post of Secretary to the Government of India and who has no
legal and judicial experience if appointed Chairman would not only fail to
inspire confidence in the public mind but would also render the Administrative
Tribunal a much less effective and efficacious mechanism than the High Court.
Clause (c) of s.6(1) of the Act, therefore, must be struck down as invalid.
[445 C, 455 DE, 445 ABE] Per Bhagwati, CJ.
1.1 Judicial review is a basic and essential
feature of the Constitution and no law passed by Parliament in exercise of its
constituent power can abrogate it or take it away. It is, however, within the
competence of Parliament to amend the Constitution so as to substitute in place
of the High Court another alternative institutional mechanism or arrangement
for judicial review without in any way violating the basic structure doctrine,
provided it is no less efficacious than the High Court. Then it would be
another authority which would be exercising the power of judicial review with a
view to enforcing the constitutional limitations and maintaining the rule of
law. [441 B, 443 BC] 437 Minerva Mills Ltd. & Ors. v. Union of India &
Ors.
[1981]1 SCR 206, referred to.
1.2 Clause (2Xd) of Art. 323-A specifically
authorises the exclusion of the jurisdiction of the High Court under Arts. 226
and 227 by any law made by Parliament under cl.(1). If this constitutional
amendment were to permit a law to exclude the jurisdiction of the High Court
under Art.
226 and 227 without sating up an effective
alternative institutional mechanism or arrangement for judicial review it would
be violative of the basic structure doctrine and hence outside the constitutent
power of Parliament. It must, therefore, be read as implicit in the amendment
that such a law to be coustitutionally valid must not leave a void but it must
set up another equally effective alternative authority and vest the power of
judicial review in it. [443 F, H, 44 A B]
2.1 What is needed in a judicial tribunal
which is intended to supplant the High Court is legal training and experience.
Service matters which are removed from the jurisdiction of the High Court under
Arts. 226 and 227 and entrusted to the Administrative Tribunal invariably
involve questions of interpretation and applicability of Arts. 14, 15, 16 and
311 which require for their determination not only judicial approach but also
knowledge and expertise in this particular branch of constitutional law. [445
D, 444 D]
2.2 The Chairman of the Administrative
Tribunal should be or should have been a Judge of a High Court or he should
have for at least two years held office as Vice-Chairman. It is the High Court
which is being supplanted by the Administrative Tribunal. Substituting the
Chief Justice of a High Court by a Chairman of the Administrative Tribunal who
has merely held the post of a Secretary to the Government of India and who has
no legal or judicial experience would not only fall to inspire confidence in
the public mind but would also render the Administrative Tribunal a much less
effective and efficacious mechanism than the High Court. Clause (c) of s.6(1)
of the Act, therefore, must be struck down as invalid. [445 A, C, B, E]
3. Since the Administrative Tribunal has been
created in substitution of the High Court, its Vice-Chairman would be in the
position of a High Court Judge. Therefore, a District Judge or an advocate who
is qualified to be a Judge of the High Court should be regarded as digible for
being ViceChairman of the Administrative Tribunal. The provisions of the Act in
regard to the composition of the Administrative Tribunal are weighted in favour
of members of the Services.
This value discounting of the judicial
members does have the effect of making the Administrative Tribunal less
effective and efficacious than the High Court. Unless an amendment to that
effect is carried out on or before 31st March, 1987 the Act would have to be
declared to be invalid because the 438 provision in regard to the composition
of the Administrative Tribunal cannot be severed from the other provisions contained
in the Act. [445 F, 446 A, 445 G, 446 B]
4.1 Under the Act the sole and exclusive
power to make appointment of Chairman, Vice-Chairman and Administrative Members
is conferred on the Government. No obligation is cast on the Government to
consult the Chief Justice of India or to follow any particular selection
procedure in this behalf. Total insulation of the judiciary from all forms of
interference from the coordinate branches of Government is a basic essential
feature of the Constitution. In case of High Court Judges the President cannot
make any appointment without consultation with the Chief Justice of the High
Court and the Chief Justice of India. This check or safeguard is totally absent
in the case of appointment of the Chairman, Vice-Chairman and Administrative
Members of the Administrative Tribunal. If the Tribunal is created in
substitution of the High Court and the jurisdiction of the High Court under
Arts. 226 and 227 is taken away and vested in it, it is but essential that the
same independence from possibility of executive pressure or influence must also
be ensured to the Chairman, Vice-Chairman and Members of the Tribunal. [446 D,
447 D, B, E]
4.2 The appointment o[ Chairman,
Vice-Chairman and Administrative Members, therefore, should be made by the
concerned Government only after consultation with the Chief Justice of India
and such consultation must be meaningful and effective. Alternatively, a High
Powered Selection Committee headed by the Chief Justice of India or a sitting
Judge of the Supreme Court or concerned High Court nominated by the Chief
Justice of India may be set up for making these appointments. If either of
these two modes of appointment is adopted, it would save the impunged Act from
invalidation.
Otherwise, it will be outside the scope of
the power conferred on Parliament under Art. 323-A. [447 F, G, 448 B]
5. The Government should set up a permanent
bench and if that is not feasible having regard to the volume of work, then at
least a circuit bench of the Administrative Tribunal wherever there is a seat
of the High Court on or before 31st March 1987 so that the provisions of the
Act could be sustained. [448 D]
6. Judgment to operate only prospectively and
not to invalidate appointments already made. [448 B] Per Ranganath Misra, J.
1. The Administrative Tribunal Act, 1985, as
amended by Act No. 19 of 1986 saves jurisdiction of the Supreme Court both
under Article 32 in respect of original proceedings as also under Article 136
for entertaining appeals. There is thus a forum where matters of importance and
grave injustice can be brought 439 for determination or rectification. The
exclusion of the jurisdiction of the High Court, therefore, does not totally
bar judicial review. [451 C, 453 A]
2.1 It is open to Parliament to make
effective alternative institutional mechanisms or arrangements in place of the
High Court for providing judicial review. But such an authority or tribunal
must be a worthy successor and real substitute of the High Court--not only in
form and de jure but in content and de facto so as to be effective and efficient
as also capable of upholding the constitutional limitations enshrined in
Articles 14, 15 and 16 of the Constitution. [453 B, 454 C, 453 E]
2.2 The Tribunal under the scheme of the Act
has been contemplated as a substitute and not as supplemental to the High Court.
It is not designed as an additional froum from where parties could go to the
High Court. Under ss. 14 and 15 of the Act all the powers of the Courts, except
those of the Supreme Court, in regard to matters specified therein vest in the
Tribunal--either Central or State. Barring of the jurisdiction of the High
Court under Arts. 226 and 227 cannot, therefore, be said to be ultra vires the
Constitution. [443 CD, FG, 449 A] Minerva Mills Ltd. & Ors. v. Union of
India & Ors., [1981] 1 SCR 206, 287 and K.K. Dutta v. Union of India,
[1980] 3 SCR 811, referred to.
3.1 The Office of Chairman of the Tribunal
should for all practical purposes be equated with the office of Chief Justice
of a High Court. Judicial discipline generated by experience and training in an
adequate dose being a necessary qualification for that post, ordinarily a
retiring or retired Chief Justice of a High Court or when such a person is not
available, a senior Judge of proved ability, either in office or retired should
be appointed. In order that the Tribunal may be acceptable to the litigants,
who are themselves members of the various Services, therefore, s.6(1)(c) of the
Act, which makes a Secretary to the Government of India also eligible for the
post of Chairman, should be omitted. [455 D-F]
3.2 The selection of Vice-Chairman and
Members, when it is not of a sitting Judge or retired Judge of a High Court,
should be done by a high powered committee with a sitting Judge of the Supreme
Court, to be nominated by the Chief Justice of India, as its Chairman. This
will ensure selection of proper and competent people to man these high offices
of trust and help to build up reputation and acceptability. The Central
Government to bring the provisions of the Act in accord within a reasonable
time not beyond March 31, 1987. Or else, the constitution of Tribunal as a
substitute of the High Court would be open to challenge. [455 G, 456 A, H]
3.3 The judgment to operate prospectively and
not to affect the 440 appointments already made to the office of Vice-Chairman
and Members. [456 B]
4. The term of five years prescribed under
s.8 of the Act for Chairman, Vice-Chairman and Members of the Tribunal
requiting them to retire at the end of it is too short, which is neither
convenient to the person selected for the job nor expedient to the scheme. When
amendments to the Act are undertaken this aspect of the matter deserves to be
considered. [456 C, F, G]
ORIGINAL JURISDICTION: Writ Petition No.
12437 of 1985 etc.
(Under Article 32 of the Constitution of
India) Raju Ramachandra, Mukul Mudgal, Mrs. R. Ramachandran, N.J. Mehta, P.H.
Parekh, D. Krishnamurthy, K.N. Rai, K.R. Nagaraja, Ms. Malinio Poduval, N.N.
Verma, S.K. Bhardwaj and P.D. Sharma for the Petitioners.
K. Parasaran, Attorney General, V.P. Sarthy
and Ms. A. Subhashini for the Respondents.
S.K. Sinha and S.K. Verma for the
Respondents.
The Judgment of the Court was delivered by
BHAGWATI, CJ. I am in entire agreement with the judgment prepared by my learned
brother Ranganath Misra, but since the questions involved in these writ
petitions are of seminal importance affecting as they do, the structure of the
judicial system and the principle of independence of the Judiciary, I think I
would be failing in my duty if I did not add a few words of my own.
There are two questions which arise for
consideration in these writ petitions and they have been succinctly set out in
the judgment of Ranganath Misra, J. The first question is whether the exclusion
of the jurisdiction of the High Court under Articles 226 and 227 of the
Constitution in service matters specified in section 218of the Administrative
Tribunals Act, 1985 (hereinafter referred to as the impugned Act) and the
vesting of exclusive jurisdiction in such service matters in the Administrative
Tribunal to be constituted under the impugend Act, subject to an exception in
favour of the jurisdiction of this Court under Articles 32 and 136, is
unconstitutional and void and in any event, even if the first question be
answered against the petitioners and in favour of 441 the Government, the
second question required to be considered is, whether the composition of the
Administrative Tribunal and the mode of appointment of Chairman, ViceChairmen
and members have the effect of introducing a constitutional infirmity
invalidating the provisions of the impugned Act. I agreed with the answers
given to these questions in the judgment of Ranganath Misra, J. I would
articulate my reasons as follows:-It is now well-settled as a result of the
decision of this Court in Minerva Mills Ltd. & Others v. Union of India and
Ors. [1981] 1 S.C.R. 206 that judicial review is a basic and essential feature
of the Constitution and no law passed by Parliament in exercise of its
constituent power can abrogate it or take it away. If the power of judicial
review is abrogated or taken away the Constitution will cease to be what it is.
It is a fundamental principle of our constitutional scheme that every organ of
the State, every authority under the Constitution, derives its power from the
Constitution and has to act within the limits of such power. It is a limited
Government which we have under the Constitution and both the executive and the
legislature have to act within the limits of the power conferred upon them
under the Constitution. Now a question may arise as to what are the powers of
the executive and whether the executive has acted within the scope of its
power. Such a question obviously cannot be left to the executive to decide and
for two very good reasons. First, the decision of the question would depend
upon the interpretation of the Constitution and the laws and this would
pre-eminently be a matter fit to be decided by the judiciary, because it is the
judiciary which alone would be possessed of expertise in this field and
secondly, the constitutional and legal protection afforded to the citizen would
become illusory, if it were left to the executive to determine the legality of
its own action. So also if the legislature makes a law and a dispute arises
whether in making the law, the legislature has acted outside the area of its
legislative competence or the law is violative of the fundamental rights or of
any other provisions of the Constitution, its resolution cannot, for the same
reasons, be left to the determination of the legislature. The Constitution has,
therefore created an independent machinery for resolving these disputes and
this independent machinery is the judiciary which is vested with the power of
judicial review to determine the legality of executive action and the validity
of legislation passed by the legislature. The judiciary is constituted the
ultimate interpreter of the Constitution and to it is assigned the delicate
task of determining what is the extent and scope of the power conferred on each
branch of Government, what are the limits on the exercise of such power under
the Constitution and whether any action of any branch transgresses such limits.
It is also a basic principle of the rule of law which permeates every provision
of the Constitution and which forms its very core and essence that the exercise
of power by the executive or any other authority must not only be conditioned
by the Constitution but also be in 442 accordance with law and it is the
judiciary which has to ensure that the law is observed and there is compliance
with the requirements of law on the part of the executive and other
authorities. This function is discharged by the judiciary by exercise of the
power of judicial review which is a most potent weapon in the hands of the
judiciary for maintenance of the rule of law. The power of judicial review is
an integral part of our constitutional system and without it, there will be no
Government of laws and the rule of law would become a teasing illusion and a
promise of unreality.
That is why I observed in my judgment in
Minerva Mills'Ltd. case (supra) at pages 287 and 288:--"I am of the view
that if there is one feature of our Constitution which, more than any other, is
basic and fundamental to the maintenance of democracy and the rule of law, it
is the power of judicial review and it is unquestionably, to my mind, part of
the basic structure of the Constitution. Of course, when I say this I should
not be taken to suggest that however effective alternative institutional
mechanisms or arrangements for judicial review cannot be made by Parliament.
But what I wish to emphasise is that judicial review is a vital principle of
our Constitution and it cannot be abrogated without affecting the basic structure
of the Constitution. If by a Constitutional amendment, the power of judicial
review is taken away and it is provided that the validity of any law made by
the legislature shall not be liable to be called in question on any ground,
even if it is outside the legislative competence of the legislature or is
violative of any fundamental rights, it would be nothing short of subversion of
the Constitution, for it would make a mockery of the distribution of
legislative powers between the Union and the States and render the fundamental
rights meaningless and futile. So also if a constitutional amendment is made
which has the effect of taking away the power of judicial review and providing
that no amendment made in the Constitution shall be liable to be.questioned on
any ground, even if such amendment is violative of the basic structure and,
therefore, outside the amendatory power of Parliament, it would be making
Parliament sole judge of the constitutional validity of what it has done and
that would, in effect and substance, nullify the limitation on the amending
power of Parliament and affect the basic structure of the Constitution. The
conclusion must therefore inevitably follow that clause (4) of the Article 368
is unconstitutional and void as damaging the basic structure of the
Constitution." 443 It is undoubtedly true that my judgment in Minerva
Mills Ltd. case (supra) was a minority judgment but so far as this aspect is
concerned, the majority Judges also took the same view and held that judicial review
is a basic and essential feature of the Constitution and it cannot be abrogated
without affecting the basic structure of the Constitution and it is equally
clear from the same decision that though judicial review cannot be altogether
abrogated by Parliament by amending the Constitution in exercise of its
constituent power, Parliament can certainly, without in any way violating the
basic structure doctrine, set up effective alternative institutional mechanisms
or arrangements for judicial review. The basic and essential feature of
judicial review cannot be dispensed with but it would be within the competence
of Parliament to amend the Constitution so as to substitute in place of the
High Court, another alternative institutional mechanism or arrangement for
judicial review, provided it is no less efficacious than the High Court.
Then, instead of the High Court, it would be
another institutional mechanism or authority which would be exercising the
power of judicial review with a view to enforcing the constitutional
limitations and maintaining the rule of law.
Therefore, if any constitutional amendment
made by Parliament takes away from the High Court the power of judicial review
in any particular area and vests it in any other institutional mechanism or
authority, it would not be violative of the basic structure doctrine, so long
as the essential condition is fulfilled, namely that the alternative
institutional mechanism or authority set up by the parliamentary amendment is
no less effective than the High Court.
Here, in the present case, the impugned Act
has been enacted by Parliament in exercise of the power conferred by clause (1)
of Article 323A which was introduced in the Constitution by Constitution (42nd Amendment)
Act, 1976.
Clause (2) (d) of this Article provides that
a law made by Parliament under clause (1) may exclude the jurisdiction of
courts, except the jurisdiction of the Supreme Court under Article 136, with
respect to the disputes or complaints referred to in clause (1). The exclusion
of the jurisdiction of the High Court under Articles 226 and 227 by any law
made by Parliament under clause (1 ) of Article 323A is, therefore,
specifically authorised by the constitutional amendment enacted in clause (2)
(d) of that Article. It is dear from the discussion in the preceding paragraph
that this constitutional amendment authorising exclusion of the jurisdiction of
the High Court under Articles 226 and 227 postulates for its validity that the
law made under clause (1) of Article 323A excluding the jurisdiction of the
High Court under Articles 226 and 227 must provide for an effective alternative
institutional mechanism or authority for judicial review. If this
constitutional amendment were to permit a law made under clause (1) of Article
323A to exclude the jurisdiction of the High Court under Articles 226 and 227
without setting up an effective alternative 444 institutional mechanism or
arrangement for judicial review, it would be violative of the basic structure
doctrine and hence outside the constituent power of Parliament. It must,
therefore, be read as implicit in this constitutional amendment that the law
excluding the jurisdiction of the High Court under Articles 226 and 227
permissible under it must not leave a void but it must set up another effective
institutional mechanism or authority and vest the power of judicial review in
it. Consequently, the impugned Act excluding the jurisdiction of the High Court
under Articles 226 and 227 in respect of service matters and vesting such
jurisdiction in the Administrative Tribunal can pass the test of
constitutionality as being within the ambit and coverage of clause (2) (d) of
Article 323A, only if it can be shown that the Administrative Tribunal set up
under the impugned Act is equally efficacious as the High Court, so far as the
power of judicial review over service matter is concerned. We must, therefore,
address ourselves to the question whether the Administrative Tribunal
established under the impugned Act can be regarded as equally effective and
efficacious in exercising the power or judicial review as the High Court acting
under Articles 226 and 227 of the Constitution.
It is necessary to bear in mind that service
matters which are removed from the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution and entrusted to the Administrative
Tribunal set up under the impugned Act for adjudication involve questions of
interpretation and applicability of Articles 14, 15, 16 and 311 in quite a
large number of cases. These questions require for their determination not only
judicial approach but also knowledge and expertise in this particular branch of
constitutional law. It is necessary that those who adjudicate upon these
questions should have same modicum of legal training and judicial experience
because we find that some of these questions are so difficult and complex that
they baffle the minds of even trained Judges in the High Courts and the Supreme
Court. That is the reason why at the time of the preliminary hearing of these
writ petitions we insisted that every bench of the Administrative Tribunal
should consist of one judicial member and one administrative member and there
should be no preponderance of administrative members on any bench. Of course,
the presence of the administrative member would provide input of practical
experience in the functioning of the services and add to the efficiency of the
Administrative Tribunal but the legal input would undeniably be more important
and sacrificing the legal input or not giving it sufficient weight age would
definitely impair the efficacy and effectiveness of the Administrative Tribunal
as compared to the High Court. Now section 6 provides that the Chairman of the
Administrative Tribunal should be or should have been a Judge of the High Court
or he should have for at least two years held office of Vice-Chairman or he
should have for at least two years held the post of 445 Secretary to the
Government of India or any other post under the Central or State Government
carrying a scale of pay which is not less than that of a Secretary to the
Government of India. I entirely agree with Ranganath Misra, J. that the
Chairman of the Administrative Tribunal should be or should have been a Judge
of a High Court or he should have for at least two years held office as
Vice-Chairman. If he has held office as Vice-Chairman for a period of at least
two years he would have gathered sufficient experience and also within such
period of two years, acquired reasonable familiarity with the constitutional
and legal questions involved in service matters, But substituting the Chief
Justice of a High Court by a Chairman of the Administrative Tribunal who has
merely held the post of a Secretary to the Government and who has no legal or
judicial experience would not only fail to inspire confidence in the public
mind but would also render the Administrative Tribunal a much less effective
and efficacious mechanism than the, High Court. We cannot afford to forget that
it is the High Court which is being supplanted by the Administrative Tribunal
and it must be so manned as to inspire confidence in the public mind that it is
a highly competent and expert mechanism with judicial approach and objectivity.
Of course, I must make it clear that when I say this, I do not wish to cast any
reflection on the members of the Civil Services because fortunately we have, in
our country, brilliant civil servants who possess tremendous sincerity, drive
and initiative and who have remarkable capacity to resolve and overcome
administrative problems of great complexity. But what is needed in a judicial
tribunal which is intended to supplant the High Court is legal training and
experience. I am, therefore, of the view, in agreement with Ranganath Misra, J.
that clause (c) of section 6 (1) must be struck down as invalid.
I also fail to see why a District Judge or an
advocate who is qualified to be a Judge of a High Court should not be eligible
to be considered for appointment as Vice-Chairman of the Administrative
Tribunal. It may be noted that since the Administrative Tribunal has been
created in substitution of the High Court, the Vice-Chairman of the
Administrative Tribunal would be in the position of a High Court Judge and if a
District Judge or an advocate qualified to be a Judge of the High Court, is
eligible to be a High Court Judge, there is no reason why he should not equally
be eligible to be a Vice-Chairman of the Administrative Tribunal. Can the
position of a Vice-Chairman of the Administrative Tribunal be considered higher
than that of a High Court Judge so that a person who is eligible to be a High
Court Judge may yet be regarded as ineligible for becoming a Vice-Chairman of
the Administrative Tribunal? It does appear that the provisions of the impugned
Act in regard to the composition of the Administrative Tribunal are a little
weighted in favour of members of the Services. This weight age in favour of the
members of the Services and value-discounting of the judicial members does have
the effect of 446 making the Administrative Tribunal less effective and efficacious
than the High Court. I would therefore suggest that a District Judge or an
Advocate who is qualified to be a Judge of the High Court should be regarded as
eligible for being Vice-Chairman of the Administrative Tribunal and unless an
amendment to that effect is carried out on or before 31st March, 1987, the
impugned Act would have to be declared to be invalid, because the provision in
regard to composition of the Administrative Tribunal cannot be severed from the
other provisions contained in the impugned Act.
That takes me to another serious infirmity in
the provisions of the impugned Act in regard to the mode of appointment of the
Chairman, Vice Chairman and members of the Administrative Tribunal. So far as
the appointment of judicial members of the Administrative Tribunal is
concerned, there is a provision introduced in the impugned Act by way of
amendment that the judicial members shall be appointed by the Government
concerned in consultation with the Chief Justice of India. Obviously no
exception can be taken to this provision, because even so far as Judges of the
High Court are concerned, their appointment is required to be made by the
President inter alia in consultation with the Chief Justice of India. But so
far as the appointment of Chairman, Vice-Chairmen and administrative members is
concerned, the sole and exclusive power to make such appointment is conferred
on the Government under the impugned Act.
There is no obligation cast on the Government
to consult the Chief Justice of India or to follow any particular selection
procedure in this behalf. The result is that it is left to the absolute
unfettered discretion of the Government to appoint such person or persons as it
likes as Chairman, Vice-Chairman and administrative members of the Administrative
Tribunal. Now it may be noted that almost all cases in regard to service
matters which come before the Administrative Tribunal would be against the
Government or any of its officers and it would not at all be conducive to
judicial independence to leave unfettered and unrestricted discretion in the
executive to appoint the Chairman, Vice-Chairmen and administrative members, if
a judicial member or an administrative member is looking forward to promotion
as Vice-Chairman or Chairman, he would have to depend on the goodwill and
favourable stance of the executive and that would be likely to affect the
independence and impartiality of the members of the Tribunal. The same would be
the position vis-a-vis promotion to the office of Chairman of the' Administrative
Tribunal. The administrative members would also be likely to carry a sense of
obligation to the executive for having been appointed members of the
Administrative Tribunal and that would have a tendency to impair the
independence and objectivity of the members of the Tribunal. There can be no
doubt that the power of appointment and promotion vested in the executive can
have prejudicial effect on the 447 independence of the Chairman, Vice-Chairmen
and members of the Administrative Tribunal, if such power is absolute and
unfettered. If the members have to look to the executive for advancement, it
may tend, directly or indirectly, to influence their decision-making process
particularly since the Government would be a litigant in most of the cases
coming before the Administrative Tribunal and it is the action of the
Government which would be challenged in such cases. That is the reason why in
case of appointment of High Court Judges, the power of appointment vested in
the executive is not an absolute unfettered power but it is hedged in by a
wholesome check and safeguard and the President cannot make an appointment of a
High Court Judge without consultation with the Chief Justice of the High Court
and the Chief Justice of India and a healthy convention has grown up that no
appointment would be made by the Government which is not approved by the Chief
Justice of India. This check or safeguard is totally absent in the case of
appointment of the Chairman, Vice-Chairmen and administrative members of the
Administrative Tribunal and the possibility cannot be ruled out-indeed the
litigating public would certainly carry a feeling--that the decision making
process of the Chairman, Vice-Chairmen and members of the Administrative
Tribunal might be likely to be affected by reason of dependence on the
executive for appointment and promotion. It can no longer be disputed that
total insulation of the judiciary from all forms of interference from the
coordinate branches of Government is a basic essential feature of the Constitution.
The Constitution makers have made anxious provision to secure total
independence of the judiciary from executive pressure or influence. Obviously,
therefore if the Administrative Tribunal is created in substitution of the High
Court and the jurisdiction of the High Court under Articles 226 and 227 is
taken away and vested in the Administrative Tribunal, the same independence
from possibility of executive pressure or influence must also be ensured to the
Chairman, Vice-Chairmen and members of the Administrative Tribunal. Or else the
Administrative Tribunal would cease to be an equally effective and efficacious
substitute for the High Court and the provisions of the impugned Act would be
rendered invalid. I am, therefore, of the view that the appointment of
Chairman, Vice-Chairmen and administrative members should be made by the
concerned Government only after consultation with the Chief Justice of India and
such consultation must be meaningful and effective and ordinarily the
recommendation of the Chief Justice of India must be accepted unless there are
cogent reasons, in which event the reasons must be disclosed to the Chief
Justice of India and his response must be invited to such reasons. There is
also another alternative which may be adopted by the Government for making
appointments of Chairman, Vice Chairmen and members and that may be by setting
up a High Powered Selection Committee headed by the Chief Justice of India or a
sitting Judge of the Supreme Court or concerned High Court nominated by the
Chief Justice of 448 India. Both these modes of appointment will ensure
selection of proper and competent persons to man the Administrative Tribunal
and give it prestige and reputation which would inspire confidence in the
public mind in regard to the competence, objectivity and impartiality of those
manning the Administrative Tribunal. If either of these two modes of
appointment is adopted, it would save the impugned Act from invalidation.
Otherwise, it will be outside the scope of the power conferred on Parliament
under Article 323-A. I would, however hasten to add that this judgment will
operate only prospectively and will not invalidate appointments already made to
the Administrative Tribunal. But if any appointments of Vice-Chairmen or
administrative members are to be made hereafter, the same shall be made by the
Government in accordance with either of the aforesaid two modes of appointment.
I may also add that if the Administrative
Tribunal is to be an equally effective and efficacious substitution for the
High Court on the basis of which alone the impugned Act can be sustained, there
must be a permanent or if there is not sufficient work, then a Circuit Bench of
the Administrative Tribunal at every place where there is a seat of the High
Court. I would, therefore, direct the Government to set up a permanent bench
and if that is not feasible having regard to the volume of work, then at least
a Circuit Bench of the Administrative Tribunal wherever there is a seat of the
High Court, on or before 31st March, 1987. That would be necessary if the
provisions of the impugned Act are to be sustained. So far as rest of the
points dealt with in the judgment of Ranganath Misra, J. are concerned, I
express my entire agreement with the view taken by him.
RANGANATH MISRA J: The challenge raised to
the vires of the Administrative Tribunals Act, 1985, (hereinafter referred to
as 'the Act') in an application under Article 32 of the Constitution and the
other connected matters has been referred to the Constitution Bench for
adjudication. Indisputably the Act has been framed within the ambit of Article
323A which was brought into the Constitution by the FortySecond Amendment Act
in 1976. In exercise of power vested under Section 1(3) of the Act, the Central
Government appointed 1.11.1985 as the date from which the Act would come into
force. Thereupon Sampat Kumar and others (W.P. 12460 of 1985) moved this Court
and the connected matters were brought before this Court or different High
Courts which have since been transferred' to this Court to be analogously
heard. On 31.10. 1985 a Division Bench of this Court gave certain interim
directions including stay of transfer of the pending applications under Article
32 which were liable to be transferred to the Tribunal and also for continuance
of exercise of jurisdiction under Article 32 in regard to disputes covered
under the Act notwithstanding the bar provided in Section 28.
449 In the writ applications as presented the
main challenge was to the abolition of the Jurisdiction of this Court under
Article 32 in respect of specified service disputes. Challenge was also raised
against the taking away of the jurisdiction of the High Court under Articles
226 and 227. It was further canvassed that establishment of benches of the
Tribunal at Allahabad, Bangalore, Bombay, Calcutta, Gauhati, Madras. and Nagpur
with the principal seat at Delhi would still prejudice the parties whose cases
were already pending before the respective High Courts located at places other
than these places and unless at the seat of every High Court facilities for
presentation of applications and for hearing thereof were provided the parties
and their lawyers would be adversely affected. The interim order made on
October 31, 1985, made provisions to meet the working difficulties.
Learned Attorney General on behalf of the
Central Government assured the Court that early steps would be taken to amend
the law so as to save the jurisdiction under Article 32, remove other minor
anomalies and set up a bench of the Tribunal at the seat of every High Court.
By the Administrative Tribunals (Amendment) Ordinance, 1986, these amendments
were brought about and by now an appropriate Act of Parliament has replaced the
Ordinance. Most of the original grounds of attack thus do not survive and the
contentions that were canvassed at the hearing by the counsel appearing for
different parties are these (1) Judicial review is a fundamental aspect of the
basic structure of our Constitution and bar of the jurisdiction of the High
Court under Articles 226 and 227 as contained in Section 28 of the Act cannot
be sustained;
(2) Even if the bar of jurisdiction is
upheld, the Tribunal being a substitute of the High Court, its constitution and
set up should be such that it would in fact function as such substitute and
become an institution in which the parties could repose faith and trust;
(3) Benches of the Tribunal should not only
be established at the seat of every High Court but should be available at every
place where the High Courts have permanent benches;
(4) So far as Tribunals set up or to be set
up by the Central or the State Governments are concerned, they should have no
jurisdiction in respect of employees of the Supreme Court or members of the
subordinate judiciary and employees working in such establishments inasmuch as
exercise of jurisdiction of the Tribunal would interfere with the control
absolutely vested in 450 the respective High Courts in regard to the judicial
and other subordinate officers under Article 235 of the Constitution.
After oral arguments were over, learned
Attorney General, after obtaining instructions from the Central Government
filed a memorandum to the effect that section 2(q) of the Act would be suitably
amended so as to exclude officers and servants in the employment of the Supreme
Court and members and staff of the subordinate judiciary from the purview of
the Act. In the same memorandum it has also been said that Government would
arrange for sittings of the benches of the Tribunal at the seat or seats of
each High Court on the basis that 'sittings' will include 'circuit sittings'
and the details thereof would be worked out by the Chairman or the
Vice-Chairman concerned.
With these concessions made by the learned
Attorney General, only two aspects remain to be dealt with by us, namely, those
covered by the first and the second contentions.
Strong reliance was placed on the judgment of
Bhagwati, J (one of us---presently the learned Chief Justice) in Minerva Mills
Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206, 287 where it
was said:
"The power of judicial review is an
integral part of our constitutional system and without it, there will be no
Government of laws and the rule of law would become a teasing illusion and a
promise of unreality. I am of the view that if there is one feature of our
Constitution which, more than any other, is basic and fundamental to the
maintenance of democracy and the rule of law, it is the power of judicial
review and it is unquestionably, to my mind, part of the basic structure of the
Constitution. Of course, when 1 say this I should not be taken to suggest that,
however effective alternative institutional mechanisms or arrangements for
judicial review cannot be made by Parliament. But what I wish to emphasise is
that judicial review is a vital principle of our Constitution and it cannot be
abrogated without affecting the basic structure of the Constitution. If by a
constitutional amendment, the power of judicial review is taken away and it is
provided that the validity of any law made by the Legislature shall not be
liable to be called in question on any ground, even if it is outside the legislative
competence of the Legislature or is violative of any 451 fundamental rights, it
would be nothing short of subversion of the Constitution, for it would make a
mockery of the distribution of legislative powers between the Union and the
States and render the fundamental rights meaningless and futile. So also if a
constitutional amendment is made which has the effect of taking away the power
of judicial review." Article 32 was described by Dr. Ambedkar in course of
the debate in the Constituent Assembly as the 'soul' and 'heart' of the
Constitution and it is in recognition of this position that though Article
323A(2)(d) authorised exclusion of jurisdiction under Article 32 and the
original Act had in Section 28 provided for it, by amendment jurisdiction under
Article 32 has been left untouched. The Act thus saves jurisdiction of this
Court both under Article 32 in respect of original proceedings as also under
Article 136 for entertaining appeals against decisions of the Tribunal on grant
of Special Leave. Judicial review by the apex court has thus been left in tact.
The question that arises, however, for
consideration is whether bar of jurisdiction under Articles 226 and 227 affects
the provision for judicial review. The right to move the High Court in its writ
jurisdiction--unlike the one under Article 32, is not a fundamental right. Yet,
the High Courts, as the working experience of three and a half decades shows
have in exercise of the power of judicial review played a definite and positive
role in the matter of preservation of fundamental and other rights and in
keeping administrative action under reasonable control. In these thirty six
years following the enforcement of the Constitution, not only has India's
population been more than doubled but also the number of litigations before the
courts including the High Courts has greatly increased. As the pendency in the
High Courts increased and soon became the pressing problem of backlog, the
nation's attention came to be bestowed on this aspect. Ways and means to
relieve the High Courts of the load began to engage the attention of the
Government at the Centre as also in the various States. As early as 1969, a
Committee was set up by the Central Government under the chairmanship of Mr.
Justice Shah of this Court to make recommendations suggesting ways and means
for effective, expeditious and satisfactory disposal of matters relating to
service disputes of Government servants as it Was found that a sizable portion
of pending litigations related to this category. The Committee recommended the
setting up of an independent Tribunal to handle the pending cases before this
Court and the High Courts. While this report was still engaging the attention
of Government, the Administrative Reforms Commission also took note of the
situation and recommended the setting up of Civil Services Tribunals to deal
with appeals of Government servants against disciplinary action. In certain
States, Tribunals of this type came into existence and started functioning. But
the Central 452 Government looked into the matter further as it transpired that
the major chunk of service litigation related to matters other than
disciplinary action. In May 1976, a Conference of Chief Secretaries of the
States discussed this problem. Then came the Forty-Second Amendment of the
Constitution bringing in Article 323A which authorised Parliament to provide by
law "for the 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 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." As already stated this Article
envisaged exclusion of 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). Though the Constitution now contained the
enabling power, no immediate steps were taken to set up any Tribunal as
contemplated by Article 323A. A Constitution Bench of this Court in K.K. Dutta
v. Union of India, [1980] 3 SCR 811 observed:
"There are few other limitative areas
than disputes between members of various services inter se, where the principle
that public policy requires that all litigation must have an end can apply with
greater force. Public servants ought not to be driven or required to dissipate
their time and energy in court-room battles. Thereby their attention is
diverted from public to private affairs and their inter se disputes affect
their sense of oneness without which no institution can function effectively.
The constitution of Service Tribunals by State Governments with an apex
Tribunal at the Centre which in the generality of the cases, should be the
final arbiter of controversies relating to conditions of service, including the
vexed question of seniority, may save the courts from the avalanche of writ
petitions and appeals in service matters.
The proceedings of such Tribunals can have
the merit Of informality and if they will not be tied down to strict rules of
evidence, they might be able to produce solutions which will satisfy
many...." In the meantime the problem of the backlog of cases in the High
Courts becomes more acute and pressing and came to be further discussed in
Parliament and in conferences and seminars. Ultimately in January 1985, both
Houses of Parliament passed the Bill and with the Presidential assent on 27th
February, 1985, the law enabling the long awaited Tribunal to be constituted
came into existence. As already noticed, the Central Government notified the
Act to come into force with effect from 1.11.1985.
453 Exclusion of the jurisdiction of the High
Courts in service matters and 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 Court 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.
What, however, has to be kept in view is that
the Tribunal should be a real substitute of the High Court--not only in form
and de jure but in content and de facto. As was pointed out in Minerva's Mills,
the alternative arrangement has to be effective and efficient as also capable
of upholding the constitutional limitations. Article 16 of the Constitution
guarantees equality of opportunity in matters of public employment. Article 15
bars discrimination on grounds of religion, race, caste, sex or place of birth.
The touchstone of equality enshrined in Article 14 is the greatest of
guarantees for the citizen. Centering around these articles in the Constitution
a service jurisprudence has already grown in this country. Under Sections 14
and 15 of the Act all the powers of the Courts except those of this Court in
regard to matters specified therein vest in the Tribunal--either Central or
State. Thus the Tribunal is the substitute of the 'High Court and is entitled
to exercise the powers thereof.
The High Courts have been functioning over a
century and a quarter and until the Federal Court was established under the
Government of India Act, 1935, used to be the highest courts within their
respective jurisdiction subject to an appeal to the Privy Council in a limited
category of cases.
In this 454 long period of about six scores
of years, the High Courts have played their role effectively, efficiently as
also satisfactorily. The litigant in this country has seasoned himself to look
upto the High Court as the unfailing protector of his person, property and
honour. The institution has served its purpose very well and the common man has
thus come to repose great confidence therein. Disciplined, independent and
trained Judges well-versed in law and working with all openness in an unattached
and objective manner have ensured dispensation of justice over the years.
Aggrieved people approach the Court the social mechanism to act as the
arbiter--not under legal obligation but under the belief and faith that justice
shall be done to them and the State's authorities would implement the decision
of the Court. It is, therefore, of paramount importance that the substitute
institution--the Tribunal--must be a worthy successor of the High Court in all
respects. That is exactly what this Court intended to convey when it spoke of
an alternative mechanism in Minerva Mills' case.
Chapter II of the Act deals with
establishment of Tribunals and Benches thereof. Section 4 provides for
establishment while Section 5 deals with composition of the Tribunal and
Benches thereof. Section 6 lays down the qualifications of Chairman,
Vice-Chairman and members. So far as the Chairman is concerned, sub-section (1)
requires that he should be or have been-(a) a Judge of a High Court; or (b) has
for at least two years, held office as Vice-Chairman; or (c) has, for at least
two years, held the post of a Secretary to the Government of India or any other
post under the Central or a State Government carrying a scale of pay which is
not less than that of a Secretary to the Government of India.
Sub-section (2) prescribing the qualification
for ViceChairman provides that he should be or have been(a) a Judge of a High
Court; or (b) for at least two years, held the post of a Secretary to the
Government of India or any other post under the Central or a State Government
carrying a scale of pay which is not less than that of a Secretary to the
Government of India; or (bb) for at least five years, held the post of an
Additional 455 Secretary to Government of India or any other post carrying
equivalent pay; or (c) for a period of not less than three years held office as
a judicial member of an Administrative Tribunal.
Sub-section (3) prescribes the qualification
of a judicial member and requires that: (a) he should be or should have been or
qualified to be a Judge of a High Court; or (b) has been a member of the Indian
Legal Service and has held a post in Grade I of that service for at least three
years.
Sub-section (3-A) provides the qualification
for appointment as administrative member and lays down that such person should
have, for at least two years, held the post of an Additional Secretary to the
Government of India or any other post under the Central or a State Government
carrying a scale of pay not less than that of an Additional Secretary to
Government of India; or (b) has, for at least three years, held the post of a
Joint Secretary to the Government of India or any other post under the Central
or the State Government carrying a scale of pay which is not less than that of
a Joint Secretary to Government of India. So far as the Chairman is concerned,
we are of the view that ordinarily a retiring or retired Chief Justice of a
High Court or when such a person is not available, a Senior Judge of proved
ability either in office or retired should be appointed. That office should for
all practical purposes be equated with the office of Chief Justice of a High
Court. We must immediately point out that we have no bias, in any manner,
against members of the Service. Some of them do exhibit great candor, wisdom,
capacity to deal with intricate problems with understanding, detachment and
objectiveness but judicial discipline generated by experience and training in
an adequate dose is, in our opinion, a necessary qualification for the post of
Chairman. We agree that a Vice-Chairman with these qualifications and
experience of two years may be considered for appointment as Chairman but in
order that the Tribunal may be acceptable to the litigants who are themselves
members of the various services, section 6(1)(c) should be omitted. We do not
want to say anything about Vice-Chairman and members dealt with in subsections
(2), (3) or (3A) because so far as their selection is concerned, we are of the
view that such selection when it is not of a sitting Judge or retired Judge of
a High Court should be done by a high powered committee with a sitting Judge of
the Supreme Court to be nominated by the Chief Justice of India as its
Chairman. This will ensure selection of proper and competent people to man
these high offices of trust and help to build up reputation and acceptability.
Once the qualifications indicated for
appointment of Chairman are adopted and the manner of selection of
Vice-Chairman and members is followed, we are inclined to think that the
manning of the Tribunal would be proper and conducive to appropriate
functioning. We 456 do not propose to strike down the prescriptions containing
different requirements but would commend to the Central Government to take
prompt steps to bring the provisions in accord with what we have indicated. We
must state that unless the same be done, the constitution of the Tribunal as a
substitute of the High Court would be open to challenge.
We hasten to add that our judgment shall
operate prospectively and would not affect appointments already made to the
offices of Vice-Chairman and Member--both administrative and judicial.
Section 8 of the Act prescribes the term of
office and provides that the term for Chairman, Vice-Chairman or members shall
be of five years from the date on which he enters upon his office or until he
attains the age of 65 in the case of Chairman or Vice-Chairman and 62 in the
case of member, whichever is earlier. The retiring age of 62 or 65 for the different
categories is in accord with the pattern and fits into the scheme in comparable
situations. We would, however, like to indicate that appointment for a term of
five years may occasionally operate as a dis-incentive for well-qualified
people to accept the offer to join the Tribunal. There may be competent people
belonging to younger age groups who would have more than five years to reach
the prevailing age of retirement. The fact that such people would be required
to go out on completing the five year period but long before the superannuation
age is reached is bound to operate as a deterrent. Those who come to be Chairman,
Vice-Chairman or members resign appointments, if any, held by them before
joining the Tribunal and, as such, there would be no scope for their return to
the place or places from where they come. A five year period is not a long one.
Ordinarily some time would be taken for most
of the members to get used to the service-jurisprudence and when the period is
only five years, many would have to go out by the time they are fully
acquainted with the law and have good grip over the job. To require retirement
at the end of five years is thus neither convenient to the person selected for
the job nor expedient to the scheme. At the hearing, learned Attorney-General
referred to the case of a member of the Public Service Commission who is
appointed for a term and even suffers the disqualification in the matter of
further employment. We do not think that is a comparable situation.
On the other hand, membership in other
high-powered Tribunals like the Income-tax Appellate Tribunal or the Tribunal
under the Customs Act can be referred to. When amendments to the Act are
undertaken, this aspect of the matter deserves to be considered, particularly because
the choice in that event would be wide leaving scope for proper selection to be
made.
We hope and trust that within a reasonable
period not beyond 31st 457 March, 1987, the amendments indicated shall be
brought about so as to remove the defects found in the Act.
Khalid, Oza and Dutt 3.3.
We have read both the Judgments just
delivered--the main judgment of learned Brother Ranganath Misra and the other
of Hon'ble the Chief Justice. We agree with both.
P.S.S.
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