Madhya Pradesh High Court
Dr. Pawan Kumar vs Union Of India on 20 April, 2015
1
Writ Petition No.8442/2014
20.04.2015
Shri Amit S. Agrawal, advocate with Shri Rohit
Mangal, advocate for the petitioner.
Shri Deepak Rawal, Assistant Solicitor General for
the respondent - Union of India.
They are heard.
2. By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for the following relief: "7. RELIEF PRAYED FOR:
It is, therefore, prayed that the present petition may kindly be allowed and Rules 2013 (Annexure P/6) may be declared to be ultravires Article 14, 16 and 320 (3) of the Constitution of India as also ultravires to the Clause XVI.1(2) of the award (Annexure P/2) and Clause 2 (a) of the Scheme (Annexure P/3) flowing from InterState River Water Disputes Act, 1956 enacted under Article 262 of the Constitution with costs."
3. The petitioner is challenging the constitutional validity of Narmada Control Authority and the Executive Member; Member (Environment & Rehabilitation);2
Member (Civil) and Member (Power) Recruitment Rules, 2013 (for short, the Rules, 2013), which have been framed by the Central Government in exercise of the powers under the provisions of a Scheme called Narmada Water Scheme, 1980 notified under Section 6 (A) of the InterState Water Disputes Act, 1956. Under Section 2 (2), (3) and (4) of the Scheme, the Central Government has framed the Rules, 2013. The vires of the Rules, 2013 is challenged essentially on the ground that for constitution of Narmada Control Authority as per Clause XVI.1(2) of the Award and as per Clause 2(a)(ix) to (xi)
(a) of the Scheme, the manner of appointment of Members prescribed in the earlier Rules, 2010 laid down under Column 5, the criteria of "selection by Seniority on Merit", which has since been completely omitted in Rules, 2013. The Rules, 2013 are contrary to Clause xvi.1 (2) of the Award of the Tribunal, inasmuch as, the same contemplates three independent Members to be appointed from amongst the candidates not lower than the rank of Chief Engineer by the Central Government whereas the Rules, 2013 contemplate appointment of the officers much lower in rank to the one specified in the 3 Award and Scheme contrary to the provisions of the Award, which is deemed to be a decree of the Apex Court of India.
4. He submits that Schedule of Rules, 2013 lays down in Column 11, the details of feeder posts of Executive Members. It says a Chief Engineer or an equivalent post in Pay Band4 (PB4) of Rs.37,40067,000 and Grade Pay of Rs.10,000/. However, the Schedules of Rules, 2013 regarding Members (Environment & Rehabilitation), (Civil) and (Power) respectively lay down feeder Cadre to include officers holding post in Junior Administrative Grade in Pay Band3 (PB3) of Rs.15,60039,100/ with Grade Pay of Rs.7,600/ and Rs.8,700/, which are below the rank of Chief Engineer and / or Joint Secretary, Government of India.
5. Considering these facts, we issued show cause notice to the respondent. The respondent - Union of India has filed its reply and raised preliminary submissions regarding maintainability of the writ petition and submitted that in view of the law laid down by the Apex Court in the case of L. Chandrakumar v. Union of India & others reported in (1997) 3 SCC 261, the 4 petitioner has to approach the Central Administrative Tribunal, at the first instance, in case he wishes to challenge the Recruitment Rules, 2013 for the appointment of independent Members in the Narmada Control Authority, since the matter related to disputes pertaining to service jurisprudence is exclusively exercisable before the Central Administrative Tribunal.
6. Paragraphs No.79, 81, 90, 91, 92, 94 and 99 of the judgment delivered by the Apex Court in the case of L. Chandrakumar v. Union of India & others (supra) reads, as under: "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.
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 5 jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 232A and 323B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose.
90. In the years that have passed since the Report of the Malimath Committee was delivered, the pendency in the High Courts has substantially increased and we are of the view that its recommendation is not suited to our present context. That the various Tribunals have not performed upto expectations is a self evident and widely acknowledged truth. However, to draw an inference that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. The reasons for which the Tribunals were constituted still persist; indeed, those reasons have become even more pronounced in our times. We have already indicated that our constitutional scheme permits 6 the setting up of such Tribunals. However, drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them.
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 Tribunals under Article 227 of the Constitution. In R.K. Jain's case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no followup 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 7 pursuant to Article 323A or Article 323B 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 abovementioned 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.
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.
99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and 8 Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be 9 interpreted in the manner we have indicated."
7. It is also submitted that Division Bench of the Central Administrative Tribunal, which includes Administrative Member and Judicial Member are coming every month at the Bench of the Central Administrative Tribunal, Jabalpur. The next date of hearing the matters by a Division Bench of the Central Administrative Tribunal, Jabalpur is 30.04.2015. The petitioner can raise his grievance by filing an original application before the Central Administrative Tribunal at Jabalpur and prayed for dismissal of the writ petition for want of jurisdiction.
8. To counter the aforesaid submissions, learned counsel for the petitioner very fairly submitted that in view of the law laid down by the Apex Court in the case of L. Chandrakumar v. Union of India & others (supra), the Central Administrative Tribunal is fully competent to decide the dispute in question, as observed by the Constitutional Bench of the Apex Court, but at present Division Bench is not functioning in the Central Administrative Tribunal at Jabalpur, whereas the 10 question of constitutional validity of service Rules, 2013 is required to be heard and adjudicated by a Division Bench of the Central Administrative Tribunal, with a further precondition that one of the Members constituting a Division Bench must be a Judicial Member. At present, no Judicial Member is available in the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (Madhay Pradesh), and therefore, the petitioner does not have any other alternative and equally efficacious remedy to challenge the validity of the Rules, 2013; hence, he has filed the present writ petition.
9. On due consideration of the aforesaid and considering the fact that the learned Central Administrative Tribunal has fixed the cases before a Division Bench (consisting of Administrative Member and Judicial Member) of the Central Administrative Tribunal, Jabalpur Bench, we instead of deciding the question in this writ petition, direct the petitioner to file an appropriate OA before the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (MP) within one week from today, as Shri Deepak Rawal, learned Assistant Solicitor General has informed that a Division 11 Bench of the Tribunal is available at Jabalpur Bench for a period of one week with effect from 27 th April, 2015. We also direct the learned Division Bench of the Central Administrative Tribunal, Jabalpur to decide the question of grant of interim relief, at the earliest, preferably within four weeks from the date of its listing i.e. in the last week of April, 2015.
10. With the aforesaid directions, writ petition is disposed of.
(P.K. Jaiswal) (Tarun Kumar Kaushal)
Judge Judge
Pithawe RC