Bombay High Court
Rekapally Laxminarayana Rao Naidu vs Union Of India And Others on 12 September, 1986
Equivalent citations: 1987(1)BOMCR31, (1987)ILLJ360BOM
JUDGMENT Qazi, J.
1. The petitioner is a Central Government employee working as a Time Scale Clerk with the Divisional Engineer, Telegraphs, Nagpur. It is contended that on 15th March, 1967 the Post Master General, Maharashtra Circle, Bombay, issued a direction for the fixation of seniority of those clerks who were recruited before 27th January, 1959 but have passed confirmation test at fifth or sixth attempt. In view of these instructions, the petitioner was relegated to the bottom for that particular year of recruitment on the basis of the date of confirmation. It is contended that on 10th August, 1970 the Director General issued a circular for preparation of common gradation list of the then T.R.A. personnel and the personnel already working in the Engineering division on the basis of continuous service in either of the units. In pursuance of the said circular, the Divisional Engineer, Telegraphs, Nagpur, prepared and issued a common gradation list of seniority working in the cadre, scale and same grade of time scale. According to the petitioner, the aforesaid directions and circular resulted in his supersession. The petitioner made a representation dated 1st February, 1971 to the Post Master General, Maharashtra Circle, Bombay, making a grievance about his supersession on account of the directions and circulars referred to supra. However, the representation was rejected and hence he approached this Court by a petition under Article 226 of the Constitution of India. It appeared that during the pendency of the petition certain developments took place and the respondents considered the question of refixation of seniority of all the categories of employees including the Time Scale Clerks working under the control of the Post Master General and the Divisional Engineer, Telegraphs, Nagpur, in the light of the decision of the Supreme Court of India, , Union of India others Vs. G. S. Ganapathi Kini, Inspector of Central Excise Hassan & others. The principles for revision of seniority in the light of the aforesaid decision of the Supreme Court were evolved by the Government finally by its memo dated 28th April, 1978 (Annexure P). However, it appears that the petitioner was not even then satisfied and, therefore, he amended the petition and also challenged the memo, dated 28th April, 1978.
2. Mr. Pillai, learned counsel appearing on behalf of the petitioner, submitted that the present petition will have to be heard by this Court itself, notwithstanding the establishment of Central Administrative Tribunal. According to Mr. Pillai, certain circulars are under challenge and the same cannot be decided by the Administrative Tribunal. According to him, the Administrative Tribunal has no jurisdiction to adjudge the validity of the circulars or notifications issued by the Government. He has heavily relied on the decision of the Allahabad High Court reported in 1986 Labour and Industrial Cases, July Issue, 1034, M. B. Shukla & others Vs. Union of India & others.
3. Since the question involved is of some importance, we also heard Mr. Bobde, Senior Advocate. He invited our attention to the decisions Keshvanada Bharati Sripadgalvaru & Others Vs. State of Kerala & another, Minerva Mills Ltd. & others Vs. Union of India & others, and Umaji Keshao Meshram & others Vs. Smt. Radhikabai & another. According to him, the constitutional powers of the High Court such as the one contained in Article 226 of the Constitution of India cannot be affected in any manner by an ordinary law made by the Parliament. Therefore, according to him, the Act itself is unconstitutional. He has also submitted that Article 323-A is violative of the basic structure of the Constitution, in as much as it excludes the jurisdiction of the High Court in respect of the matters relating to recruitment and conditions of civil servants.
4. The question that fell for consideration before he Allahabad High Court (reported in 1986 Labour and Industrial Cases, July Issue, 1034) cited supra, was about the jurisdiction of the High Court to hear an decide petition under Article 226 after the establishment of Central Administrative Tribunal. The Allahabad High Court observed :-
"The High Courts under the Constitution exercise two powers one arising out of law framed by the appropriate legislature Central or State and the other constitutional. Former can be regulated, withdrawn, withheld or expanded but latter, prerogative in nature essential for society governed by rule of law, for upholding fairness, for keeping the balance between State and individual even, for keeping stream of national life clean, establishing harmonious and cohesive society, saving individual from tyranny, promoting social change cannot be rendered dormant by legislation express or implied."
According to this decision, the Central Administrative Tribunal has not been conferred with jurisdiction to issue writs under Article 226 and, therefore, this power the High Court to issue writs cannot be excluded by section 28 of the Administrative Tribunals Act. It has been further held that what has been debarred is the power and jurisdiction of Courts to entertain disputes in respect of service matters and not the enforcement of constitutional rights guaranteed to an employee by Part III. With great respect, we may say that it is not possible for us to agree with the view taken by the Allahabad High Court in the aforesaid decision. This view has not been followed even by the Allahabad High Court itself in a subsequent decision in Udaibhan Singh Chauhan Vs. Union of India and others (Civil Misc. Writ Petition No. 19135 of 1985 decided by K. C. Agarwal and R. P. Shukla, JJ. on 4th December, 1985).
5. Mr. Natu on behalf of the respondents submitted that after the establishment of the Administrative Tribunal this Court has no jurisdiction to entertain any matter of a civil servant in respect of recruitment and conditions of service. He has invited our attention to Article 323-A of the Constitution of India, the relevant portion of which reads thus -
"323-A (1) Parliament may, by law, provide for the adjudication or trial by administration tribunals of disputes and complaints with respect of 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) xx xx xx xx
(d) exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any Court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(3) The provisions of this Article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force ....."
6. In view of this Article, Mr. Natu submitted that the Constitution itself authorises the Parliament to make an enactment providing for the adjudication by Administrative Tribunal of all disputes and complaints with respect to recruitment and conditions of service of civil servants. He has further submitted that the Administrative Tribunals Act, 1985, has been enacted by the Parliament in pursuance of its legislative power conferred on it by the Constitution itself. The Constitution itself authorises Parliament that while making such an enactment it can exclude the jurisdiction of all Courts except the Supreme Court of India. Therefore, according to Mr. Natu, it cannot be said that the Parliament has exceeded its legislative powers or competence in enacting Act No. 13 of 1985 and providing therein that the jurisdiction of all Courts except that of the Supreme Court is excluded. He has further submitted that Article 323-A has been given over-riding power on all other provisions of the Constitution and that it shall have effect notwithstanding anything in any other provisions of the Constitution or in any other law for the time being in force. This would also mean that this Article shall have over-riding effect even as against Article 226 of the Constitution.
7. He has also invited our attention to Article 225 of the Constitution of India. According to him, it is this Article which confers jurisdiction on the High Court and Article 226 confers powers on the High Court to issue certain writs. Therefore, according to him, if the High Court has no jurisdiction to entertain certain matters there can be no question of exercising power of issuing writs in respect of such matters. It is in this context that he invited our attention to the wordings used in section 14 of the Administrative Tribunals Act. Section 14 of the Administrative Tribunals Act reads as under :-
14. Jurisdiction, powers and authority of the Central Administrative Tribunal - (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal 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 -
(a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being in either case, a post filled by a civilian.
(b) and service matters concerning.
(i) a matter of any All India Service; or
(ii) a person (not being a member of an All India Service or a person referred to in clause (c) appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian (not being a member of an All-India Service or a person referred to in clause (c) appointed to any defence services or a post connected with defence.
and pertaining to the service of such member, person or civilian, 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 or society owned or controlled by the Government." According to Mr. Natu, the words used in section 14 completely cover the jurisdiction, powers and authority which is conferred on the High Courts under Article 255 and 226 of the Constitution of India. Therefore, according to him, it is unthinkable that any power is left with the High Court in the matter of adjudication of the matters in relation to recruitment and conditions of service.
8. Mr. Natu has also invited our attention to section 28 of the Administrative Tribunals Act, which is reproduced below -
28. Exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution -
On and from the date from which any jurisdiction, powers and authority become exercisable under this act by the 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, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or such service matters."
It is submitted that the jurisdiction of Courts except that of the Supreme Court of India is excluded and, therefore, the present petition will have to be transferred to the Tribunal as required by section 29. In our view, there is much substance in the submission of Mr. Natu. We have pointed out above, the Act No. 13 of 1985 is enacted by the Parliament pursuant to the power conferred on it by Article 323-A of the Constitution of India. We have also shown above that this Article over-rides all other provisions of the Constitution or for that matter of any other law for the time being in force. Therefore, it is obvious that it also overrides Article 226 of the Constitution of India. The entire arguments of Mr. Pillai as well as Mr. Bobde are essentially based on the hypothesis that the constitutional powers of the High Court such as the one contained under Article 226 of the Constitution cannot be affected in any manner by an ordinary law made by the Parliament. We have already shown above that Article 323-A(2)(d) itself authorises the Parliament to exclude the jurisdiction of all Courts except that of the Supreme Court of India with respect to recruitment and conditions of service of the civil servants. Therefore, it would not be correct to argue that the constitutional power of the High Court as contained in Article 226 of the Constitution has been affected by an ordinary law made by the Parliament. In view of Article 323-A, it cannot be argued that the Administrative Tribunals Act is in excess of the legislative powers conferred upon the Parliament.
9. The question that falls for our consideration in the present petition is no more res integra. The learned Single Judge of this Court in Writ Petition No. 800 of 1981 with Writ Petition No. 623 of 1985 decided on 26th June, 1986 held as under :
"Article 323-A is as much a part of the Constitution as Article 226. It cannot, therefore, be argued that Article 323-A cannot legitimately exclude the jurisdiction of the High Court under Article 226 even if that jurisdiction relates to the enforcement of fundamental rights. If clause (2)(d) of Article 323-A permits a law to be made to exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court, then the Tribunals Act, which can be regarded as validly enacted under Article 323-A, can provide for the exclusion of the jurisdiction of the High Courts in respect of disputes or complaints referred to in clause (1) of the said Article. The Act must be regarded as a valid piece of legislation."
The learned Single Judge has further observed in para 17 that -
"Section 14 of the Tribunals Act, invests the Tribunal with the power to decide all questions in relation to recruitment and all other service matters in relation to All India Service and services in connection with the affairs of the Union. When, therefore, the Tribunal proceeds to decide such questions it has to decide all incidental questions. Whenever a Court or a Tribunal has been invested with the jurisdiction to adjudicate upon any complaint or grievance it has necessarily the jurisdiction to decide all questions incidental to the main adjudication. When, therefore, the Tribunal proceeds to decide any question in relation to a service matter and if it is called upon to decide that any action taken by the authorities is in contravention of the Constitution or any statute or any rules made under the Constitution or the statute, it will have to necessarily go into that question. It will have to decide whether there has been such a contravention. Without deciding this question it will naturally be unable to give the relief which it is entitled to give to the concerned civil servant. Even when questions relating to the contravention of Articles 14 and 16 of the Constitution arise in an application by a civil servant the Tribunal has to decide those questions because it will be unable to give the relief or it will be unable to decide the application properly unless it adjudicates on the question of the contravention of Articles 14 and 16 of the Constitution. This must necessarily follow, as mentioned above, from the fact that a Court or a Tribunal adjudicating upon any issue as the jurisdiction should decide all incidental questions arising in that adjudication."
We are in full agreement with the observations of the learned Single Judge. In our view, the provisions of the Administrative Tribunals Act completely exclude the jurisdiction of the High Court under Article 226 of the Constitution, notwithstanding whether the challenge is based on the breach of statute, rules or orders or notifications or relating to contravention of fundamental rights such as those contained under Articles 14 and 16 of the Constitution. In fact, there is nothing in the Administrative Tribunals Act to suggest that the Parliament intended that only a part of the jurisdiction of the High Court under Article 226 of the Constitution in so far as that jurisdiction relates to the service matters of the Union be excluded.
10. Mr. Palshikar submitted that the writ petitions in which the rule has been issued have been saved by the Administrative Tribunals Act and they cannot, therefore, be transferred. He has further submitted that since the appeals have been saved, the writ petitions must also be taken to have been saved by necessary implication. In our view, there is no substance in these submissions. There is nothing either in sections 14, 28, or 29 of the Administrative Tribunals Act, which would justify this interpretation placed by Mr. Palshikar. On the contrary, section 29 specifically states that every suit or other proceeding pending before a Court or other authority immediately before the date of establishment of a Tribunal under this Act, shall stand transferred. There can be no doubt that the word 'proceeding' shall include also the writ petitions. The words used in section 29 specifically refer to the proceeding pending and does not make any distinction as sought to be made by Mr. Palshikar, that it would not cover the petitions which are already admitted. The second limb of his submission that since the appeals have been saved the writ petitions must also be taken to have been saved, is wholly without substance. Section 29 specifically saves the appeals pending before the High Court. If the Legislature also wanted to save the writ petitions which are admitted, then surely it would have been so mentioned.
11. In our view, section 28 read with section 14 of the Administrative Tribunals Act completely excludes the jurisdiction of all the Courts except that of the Supreme Court of India. We, therefore, hold that we cannot proceed to hear and dispose of this petition and the same is being transferred to the Central Administrative Tribunal Bombay, forthwith.