All India NIC S&T Officers Association v. Union of India & Ors.

16. Plain reading of Section 14(1)(b)(ii) of the Act shows that Tribunal shall exercise all jurisdiction, power and authority in relation to all service matters concerning inter alia a person appointed to any ‘civil post’ under the Union. ‘Service matters’ has been defined under Section 3(q) of the Act as follows:

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;”

17. Therefore, once a person is holder of a civil post under the Union and his grievance relates to a service matter, he is clearly amenable to the jurisdiction of the Tribunal.

18. The questions that beg answers at this stage are if the members of the Petitioner-Association are holders of civil post and whether the grievances ventilated in the present petition fall under the definition of ‘service matters’. Answers to both the questions are in the affirmative as Petitioner does not dispute that members of the Petitioner- Association are holders of civil posts or that the disputes raised are service matters. Be that as it may, for the sake of completeness, I may refer to the judgment of the Supreme Court in case of State of Assam and Others v. Shri Kanak Chandra Dutta, AIR 1967 SC 884, wherein the Supreme Court delineated the parameters of a ‘civil post’ and the relevant passage from the judgment is as follows:

19. It is also useful to refer to the judgment of the Supreme Court in State of Gujarat and Another v. Raman Lal Keshav Lal Soni and Others, (1983) 2 SCC 33, relevant para of which is as follows:

20. From the conspectus of the aforesaid judgments, the inevitable conclusion is that the expression ‘civil post’ is not formally defined and is broadly understood to mean a post not connected with the Defence side of the administration. It bears repetition to state that learned Senior Counsel for the Petitioner had not disputed that members of the Petitioner-Association are holders of civil posts and this is fortified by the fact, as rightly pointed out by learned counsel for the Respondents, that 47 employees under Respondent No.1 have already approached the Tribunal by filing O.A. No. 1391/2022, titled ‘Anil Kumar Yenni & Ors. v. Union of India & Anr’, raising disputes pertaining to their non-promotion in reference to the O.M. dated 19.09.2016. Therefore, beyond a scintilla of doubt, members of the Petitioner are amenable to the jurisdiction of the Tribunal. In fact, Rule 4(5)(b) permits even the Association to file an Original Application before the Tribunal.

21. The next issue that requires consideration and really speaking is the main plank of the argument of the Petitioner, is that the writ petition can be entertained even if the Petitioner has a remedy of approaching the Tribunal under Section 14(1) of the Act since power of judicial review conferred on the High Court is a part of the basic structure of the Constitution and can never be ousted and present case is a fit case, for exercising the same, where in view of the urgent relief sought, the alternative remedy before the Tribunal is not efficacious.

22. To examine the contention, I may allude to the judgment of the Constitution Bench of the Supreme Court in L. Chandra Kumar (supra) and at the outset profitably extract the questions of law that were framed by the Court for consideration, as under: “(1) Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article 323-A or by sub-clause (d) of clause (3) of Article 323-B of the Constitution, to totally exclude the jurisdiction of ‘all courts’, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article 323-A or with regard to all or any of the matters specified in clause (2) of Article 323-B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution? (2) Whether the Tribunals, constituted either under Article 323-A or under Article 323-B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule? (3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?”

23. Thereafter, the Supreme Court set out the historical backdrop to the case referring to Article 323-A and 323-B in Part XIV-A of the Constitution of India inserted through Section 46 of the Constitution (42nd Amendment), Act, 1976. Article 323-A which deals with constitution of the Administrative Tribunals, is as follows: “323-A. Administrative tribunals.—(1) Parliament may, by law, provide 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. (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 States; (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);”

24. Pertinently, the Supreme Court also took note of the statement of Objects and Reasons of the Act, which is reproduced as under:

27. In order to answer the question as to whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32, respectively, is a part of the basic structure of Constitution, the Supreme Court posed itself the question as to what constitutes the ‘Basic Structure’ and relying on the observations in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, wherein the Doctrine of Basic Structure was evolved, as well on the judgment in the case of Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1, the Supreme Court observed as follows: “78. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. [ See Chapter VII, “The Judiciary and the Social Revolution” in Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, 1972; the chapter includes exhaustive references to the relevant preparatory works and debates in the Constituent Assembly.] These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.”

28. After an in-depth analysis of the issue, the Supreme Court made significant observations, which are relevant and crucial in deciding the controversy involved in the present case, pertaining to the maintainability of the writ petition before this Court. The Supreme Court held that though subordinate judiciary or tribunals created under ordinary Legislations cannot exercise power of judicial review of legislative action to the exclusion of the Supreme Court and High Courts, there is no Constitutional prohibition against their performing a supplemental, as opposed to substitutional role in this respect. Clause (3) of Article 32 makes it clear that such a situation is envisaged and contemplated within the Constitutional Scheme. The Supreme Court also held that if the power under Article 32 of the Constitution, which is being 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 jurisdiction conferred upon the High Courts. It is significant to note another observation of the Court that so long as jurisdiction of the High Court under Article 226/227 is retained, there is no reason why power to test the validity of the Legislations cannot be conferred upon Administrative Tribunals. Relevant para of the judgment is as follows: “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 Court, there is no constitutional prohibition against their performing a supplemental — as opposed to a substitutional — role in this respect. That such a situation is 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).” (emphasis supplied)

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 323-B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 323-A and 323-B, 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.”

29. In paras 82 to 84, the Supreme Court emphasised the pressing need to preserve the conferment of powers on the Tribunals and I may extract the said paras hereunder, for ready reference:

30. The observations of the Supreme Court in paras 90 to 94, in my view, are a complete answer to the arguments raised by the Petitioner before this Court. Paras 90 to 94 are as under: “90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.

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 parent 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 the Tribunals under Article 227 of the Constitution. In R.K. Jain case [(1993) 4 SCC 119: 1993 SCC (L&S) 1128: (1993) 25 ATC 464], after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunal 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 aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's 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.

92. We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.

93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this 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 High Court concerned 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 Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that 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, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.

94. The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered.”

31. Therefore, it is palpably clear from the aforementioned observations of the Supreme Court that the jurisdiction of the High Court under Article 226/227 of the Constitution is no doubt a part of the inviolable basic structure of the Constitution and cannot be ousted, other Courts and Tribunals may perform supplemental role in discharging the said powers. Significantly, it was also held that Tribunals will continue to act as Courts of first instance and it would not be open for litigants to directly approach the High Courts overlooking the jurisdiction of the concerned Tribunal. These observations are in para 99 of the judgment, as under:

32. The principles that can be broadly culled out from the observations of the Supreme Court can be aptly encapsulated as follows: (a) Powers of judicial review of the High Courts under Articles 226/227 cannot wholly be excluded; (b) Tribunals are competent to hear matters where the vires of Statutory provisions and Subordinate Legislations are questioned. However, in discharging this duty, they cannot act as substitutes for the Supreme Court and the High Courts, which have under the Constitutional set up specifically been 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;

(c) Tribunal shall not entertain any question regarding vires of the Parent Statute under which it is created on the principle that being a creature of an Act it cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly;

(d) The Tribunals shall continue to act as the Courts of first instance in respect of the areas of law for which they had been constituted. It is not open for litigants to directly approach the High Courts even in cases where they question the vires of Statutory provisions and Legislations, by overlooking the jurisdiction of the Tribunal.

33. Therefore, the inexplorable conclusion that can be drawn is that when an applicant (individual/Association) covered under Section 14 of the Act raises a dispute with respect to service matter as defined under Section 3(q) thereof, the Forum that is available for redressal of the grievance is the Tribunal as a Court of first instance albeit there can be no quarrel with the proposition of law that writ jurisdiction of a High Court under Article 226 of the Constitution can never be ousted and can certainly be exercised in exceptional circumstances and sparingly. Petitioner cannot, therefore, urge that this remedy can be bypassed as it is only an ‘alternative’ remedy.

34. One of the concerns expressed by learned Senior counsel for the Petitioner was that since there is a challenge to the O.M. dated 19.09.2016 and the Circular dated 10.12.2021, the Tribunal will not have the power to exercise jurisdiction to interfere with the same and quash them. The apprehension and the fear expressed by the Petitioner on this count, according to this Court, is without any basis. In para 99 of the judgment in L. Chandra Kumar (supra), the Supreme Court has clearly observed that the Tribunal will have the power to test the vires of all statutory legislations, except where the legislation which creates the particular Tribunal is questioned. The O.M. and the Circular in question are merely Executive Instructions and this Court sees no reason why a challenge to the same cannot be laid before the Tribunal.

35. Reliance by the Petitioner on the judgments in State of Uttar Pradesh (supra), A.V. Venkateswaran, Collector of Customs, Bombay (supra), Calcutta Discount Co. Ltd. (supra) and Dr. (Smt.) Kuntesh Gupta (supra), is misplaced as all these judgments are distinguishable on facts and the legal issues involved, besides the fact that they are prior to the judgment of the Constitution Bench in

36. At this stage, I may add that if the persons amenable to the Tribunal’s jurisdiction are permitted to bypass the remedy of approaching the Tribunal on grounds of time taken to decide the disputes or pendency thereof and/or necessity of urgent relief, without a caveat of existence of unprecedented circumstances, this would open a floodgate of litigation before the High Courts, which would be directly against the judgment in L. Chandra Kumar (supra,) where it was emphasised by the Supreme Court that the avowed purpose of creating the Tribunals was to filter cases to the High Courts so that backlogs, which had reached colossal levels, were cleared and pendency reduced. Therefore, in view of the binding and enduring dicta of the Supreme Court in L. Chandra Kumar (supra), writ petition cannot be entertained.

37. For all the aforesaid reasons, the writ petition is dismissed as not maintainable, with liberty to the Petitioner to take recourse to the appropriate remedy available in law before the appropriate Forum, if so advised.

38. It is made clear that the writ petition has been dismissed only on the ground of maintainability and this Court has not expressed any opinion on the merits of the dispute.

JYOTI SINGH, J DECEMBER 14, 2022/shivam