Allahabad High Court
Justice (Retd.) Sudhir Kumar Saxena vs State Of U.P. Thru. Chief Secy., Govt. Of ... on 16 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2042, (2019) 11 ADJ 652 (ALL) (2020) 1 ALL WC 329, (2020) 1 ALL WC 329
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 1 Case :- MISC. BENCH No. - 18001 of 2019 Petitioner :- Justice (Retd.) Sudhir Kumar Saxena Respondent :- State Of U.P. Thru. Chief Secy., Govt. Of U.P.,Lucknow & Anr Counsel for Petitioner :- Gaurav Mehrotra,Laltaprasad Misra Counsel for Respondent :- C.S.C. Alongwith Case :- MISC. BENCH No. - 19139 of 2017 Petitioner :- Kishan Singh Atoria & Another Respondent :- State Of U.P. Thru. Chief Secy. & Others Counsel for Petitioner :- Laltaprasad Misra Counsel for Respondent :- C.S.C. Alongwith Case :- MISC. BENCH No. - 19102 of 2017 Petitioner :- Rohit Nandan & 5 Others Respondent :- State Of U.P. Thru. Chief Secretary, Govt. Of U.P. & 2 Ors. Counsel for Petitioner :- Dhruv Mathur Counsel for Respondent :- C.S.C. Alongwith Case :- P.I.L. CIVIL No. - 13388 of 2019 Petitioner :- Santosh Kumar Srivastava Respondent :- State Of U.P. Thru Chief Secretary & Ors. Counsel for Petitioner :- Rajesh Chandra Sinha,Birendra Kumar Yadav,Santosh Kr. Yadav "Warsi" Counsel for Respondent :- C.S.C. ****** Hon'ble Pankaj Kumar Jaiswal, J.
Hon'ble Jaspreet Singh, J.
(Per Hon'ble Jaspreet Singh, J.) These batch of writ petitions raises a challenge to the amendment brought in the Uttar Pradesh Public Services (Tribunal) Act, 1976 (hereinafter referred to the Principal Act) by means of Uttar Pradesh Public Services Tribunal Amendment Act No.4 of 2017 (hereinafter referred to the Amending Act of 2017) by which Section 3 sub-section (8) of the Principal Act has been amended. Prior to the Amending Act of 2017, the Principal Act, provided that the Chairman, Vice-Chairman or Members shall not hold office after attaining the age of 70 years in the case of Chairman and 65 years in the case of Vice-Chairman or any other members. However, by means of Amending Act 2017, this age of superannuation has been reduced to 65 years in the case of Chairman and 62 years in the case of Vice-Chairman or any other members.
Another sub-section (8-c) has also been introduced by the Amending Act of 2017 whereby it provides that the provisions of sub section (8) as amended by Amendment Act of 2017 shall also apply to the Chairman, Vice-Chairman or Member holding office on date of the commencement of the said Act.
For clarity the provision of Section 3 (8) as it stood prior to the enactment of the Amending Act No.4 of 2017 and after its amendment is being reproduced here-in-after:-
Section 3(8) - prior to Amending Act of 2017 Section 3(8) - After the Amending Act of 2017 (8) The Chairman, Vice-Chairman or other member shall hold office as such for a term of five years from the date on which he enters upon his office but shall be eligible for re-appointment for another term of five years:
Provided that no Chairman, vice-Chairman or member shall hold office as such after he has attained, [(a) in the case of Chairman, the age of seventy years, and
(b) in the case of Vice-Chairman or a other member, the age [of sixty five years.] [(8-a) The Provisions of sub-section (8) as amended by the Uttar Pradesh Public Services (Tribunal Amendment) Act, 2007 shall apply also to the Chairman, the Vice-Chairman and other members holding office on the commencement of the said Act] [(8-b) The Provisions of sub-section (8) as amended by the Uttar Pradesh Public Services (Tribunal Amendment) Act, 2013 shall apply also to the Chairman holding office on the commencement of the said Act] (8) The Chairman, Vice-Chairman or other member shall hold office as such for a term of five years from the date on which he enters upon his office but shall be eligible for re-appointment for another term of five years:
Provided that no Chairman, vice-Chairman or other member shall held office as such after he has attained, [(a) in the case of Chairman or Vice-Chairman, the age of sixty-seven years, and
(b) in the case of any other member the age of sixty-five years.] [(8-a) The provisions of sub-section (8) as amended by the Uttar Pradesh Public Services (Tribunal)(Amendment) Act, 2007 shall apply also to the Chairman, the Vice-Chairman and other members holding office on the commencement of the said Act] [(8-b) The Provisions of sub-section (8) as amended by the Uttar Pradesh Public Services (Tribunal Amendment) Act, 2013 shall apply also to the Chairman holding office on the commencement of the said Act] [(8-c) The provisions of sub-section (8) as amended by the Uttar Pradesh Public Service (Tribunal) (Amendment) Act, 2017 shall apply also to the Chairman, Vice-Chairman, or a member holding office on the commencement of the said Act.] It is this Amending Act No.4 of 2017 which has been challenged before this Court by means of the four writ petitions which have been clubbed together as they all involve similar questions of law hence they have been heard together.
The leading petition No.18001 (M/B) of 2019 has been preferred by Justice (Retd.) Sudhir Kumar Saxena who is the Chairman of the Tribunal and since his term has been curtailed in terms of the Amending Act thus being an aggrieved party, he has preferred the aforesaid petition. The other petition filed by Rohit Nandan and 5 others bearing Writ Petition No.19102 (M/B) of 2017 [is on behalf of the Vice-Chairman (Administrative), Vice-Chairman (Judicial), 2 Members (Judicial) and 2 Members (Administrative)] and Writ Petition No.19139 (M/B) of 2017 has been filed by Kishan Singh Atoria and another who are the Members (Administrative) in the Services Tribunal. Another Writ Petition bearing No.13388 (M/B) of 2019 has been preferred in the nature of a Public Interest Litigation, also assailing the amendment introduced by the Amending Act of 2017.
Since all the aforesaid petitions assail the provisions of Amending Act 2017 thus they have been clubbed together. However, for the sake of convenience, the facts relating to the leading petition No.18001 (M/B) of 2019 have been noticed. However, wherever required, the facts of other petitions have also been taken note of, since the grounds for challenge in all the petitions are based on legal footing and moreover the factual matrix is not much in dispute between the parties.
To put the controversy in a perspective, certain background facts are being noticed first.
Back Ground facts:-
The Uttar Pradesh Public Services (Tribunals) Act, 1976 after receiving the assent of the President on 30th of April, 1976 was duly published in the Uttar Pradesh Extraordinary Gazette on 1st of May, 1976 and thus the aforesaid Act came into existence. The aforesaid Act was promulgated to provide for the constitution of a Tribunals to adjudicate disputes in respect of matters relating to employment of all public servants of the State.
Sub-section (1)(3) provides that the Act shall be deemed to have come into force on 24th of November, 1975. Section 3 of the Principal Act provides for the constitution of Tribunal. In sub-section (4) it states that one of the Members of the Tribunal as designated by the State Government to be the Chairman of the Tribunal provided that where the judicial member is a person who is or has been a judge of the High Court, he shall be the Chairman. Sub-section (5) provided that no person shall be appointed or continue to hold office as a Member of the Tribunal, in the case of retired High Court Judge, he has attained the age of 65 years and in any other case he has attained the age of 61 years.
Subsequently, the Uttar Pradesh Public Services Tribunal Act, 1976 came to be amended by the Amendment Act No.7 of 1992. The prefatory, note-statements of object and reasons of the Amendment Act No.7 of 1992 indicates that the same was initiated on account of the fact that the constitution and working of the Tribunal was challenged in the High Court by means of a writ petition. The High Court by issuing a mandamus required a change in the constitution of the aforesaid Tribunal which thereafter was assailed before the Apex Court. The petition before the Supreme Court was disposed of with the observations requiring immediate amendment and it is thus taking into consideration the observations and the mandamus issued, the Amendment Act No.7 of 1992 was promulgated.
Amongst the various aims and objects and reasons, it also provided to fix the qualification for appointment to the office of the Chairman, Vice-Chairman and Members as well as to provide the maximum term of appointment to such office. It also empowered the State Government to direct the Tribunal, its benches and Members for transacting business at places other than Lucknow. To empower the Tribunal to punish for its contempt as well as to provide for the execution of decisions of the Tribunal. It also empowered the State Government to prescribe the salaries and allowances and other conditions of service of the officers and other employees of the Tribunal.
That Section 3 of the Principal Act was amended and sub-section (3) provided that a person shall not be qualified for appointment as Chairman unless he has been a Judge of the High Court or has for at least two years held post of the Vice-Chairman or has been a Member of the Indian Administrative Service who has held the post of a Secretary to the Government of India or any other posts under the State or the Central Government equivalent thereto and has adequate experience in dispensation of justice.
Similar condition was prescribed in sub-section (4) for the purposes of appointment as Vice-Chairman. Sub-section (7) provided that the Chairman, Vice-Chairman and every other Members shall be appointed by the State Government. Sub-section (8) provided that the Chairman, Vice-Chairman or other Members shall hold office for a term of five years from the date on which, one, enters upon his office but shall be eligible for re-appointment for another term of five years provided that no Chairman, Vice-Chairman or other Members shall hold office after he has attained the age of 65 years in the case of Chairman or Vice-Chairman and the age of 62 years in case of any other Members.
The Uttar Pradesh Public Services Tribunal Act again came to be amended by the Uttar Pradesh Amendment Act No.4 of 2007. By means of Amending Act 2007, the proviso appended to sub-section (8) was substituted and it provided that no Chairman, Vice-Chairman or other Members shall hold office after he has attained the age of 67 years in the case of Chairman and 65 years in the case of Vice-Chairman and other members are concerned. A new sub-section (8-a) was also inserted which provided that the provisions of sub-section (8) as amended by the Uttar Pradesh Public Services Tribunal Amendment Act, 2007 shall apply also to the Chairman, Vice-Chairman and other Members holding office on the date of commencement of the said Act.
The effect of the Amending Act 2007 was that the age of superannuation of the Chairman was enhanced from 65 to 67 and that of Vice-Chairman and Members was enhanced from 62 to 65 years and it became applicable even in respect of those who were already holding office on the date of commencement of the Amending Act, 2007.
Yet again, the Uttar Pradesh Public Services Tribunal Act came to be amended by the Uttar Pradesh Public Services Tribunal Amendment Act No.15 of 2013 and by virtue of the Amending Act, 2013, the proviso appended to sub-section (8) was again substituted and its effect was that the age of superannuation in the case of the Chairman was further enhanced to 70 years from 67 years and the provisions of sub-section (8) as amended by the Amending Act, 2013 was made applicable to the Chairman holding office on the commencement of the said Act, by inserting sub section (8-b) to Section 3(8) of the Principal Act.
Now again the Uttar Pradesh Public Services Tribunal Act has come to be amended by the Uttar Pradesh Public Services Tribunal Amendment Act No.4 of 2017 and by virtue of this Amending Act of 2017, the age of superannuation of the Chairman has been reduced to 65 years from 70 years and in case of Vice-Chairman and other Members to 62 years from 65 years. Sub-section (8-c) of the Amendment Act of 2017 provides that the same shall be applicable to the Chairman, Vice-Chairman and Members holding office on the commencement of the said Act, thus the petitioners Justice (Retd.) Sudhir Kumar Saxena, Shri Rohit Nandan and 5 others, Shri Kishan Singh Atoria & another who are the Chairman, Vice-Chairman and Members of the Public Services Tribunal, whose tenure has been reduced/curtailed, which has prompted them to assail the aforesaid amendment.
Heard Dr. L.P. Mishra, learned Counsel alongwith Shri Gaurav Mehrotra Advocate for the petitioners in Writ Petition No.18001 (M/B) of 2019, Shri Jaideep Narain Mathur, learned Senior Counsel alongwith Shri Dhruv Mathur Advocate on behalf of the petitioners in Writ Petition No.19102 (M/B) of 2017 and Shri O. P. Srivastava, learned Senior Counsel alongwith Shri Shikhar Anand Advocate for the petitioners in Writ Petition No.13388 (M/B) of 2019. In the other connected petitions, learned counsel appearing, have primarily adopted the submissions of the learned Senior Counsel hence for the sake of brevity they are not being mentioned separately.
Submissions of the petitioners Learned counsel for the petitioners have argued that the Amending Act of 2017 is violative of the provisions of the Constitution. They have formulated their submissions and for the sake of convenience it has been put under the following headings:-
A. Violative of the Basic Structure of the Constitution:-
It is argued by the petitioners that the Amending Act of 2017, in effect, curtails the tenure of the Chairman, Vice-Chairman and Members of the Tribunal and it affects the service condition and that in turn has affected the independence of judicial functioning of the Chairman, Vice-Chairman and Members and this amounts to tinkering with the basic structure. Tribunal being an independent body and under the provisions of the Act is required to adjudicate disputes primarily between the employees who are private citizens against the employer who is the State and a party in each case before the Tribunal, thus by bringing in the aforesaid Amendment the independence and the functionality of the Tribunal has been adversely affected and thus independence of the judiciary and adjudicating Authority/Tribunal, which is an essential part of the basic structure of the Constitution, has been affected, consequently the Amending Act of 2017 is violative of the provisions of the Constitution, thus bad.
B. Violative of Article 14 of the Constitution:- under this heading, the arguments put forth have been segregated under the following sub headings.
(i) The Amending Act takes away the vested right of the petitioners and works retrospectively, which is bad.
(ii) The Amending Act is a piece of colourable legislation.
(iii) The proviso amended by the Amending Act of 2017, in effect, makes on inroad in the main section which is impermissible.
(iv) The amending Act is unreasonable as it has no nexus with the object it seeks to achieve and against public interest, hence bad.
B (i) Vested Right taken away:-
To elaborate the submission under this heading, it is argued that the Amending Act takes away the vested right of the petitioners; inasmuch as at the time of appointment they were assured of the tenure of five years with a chance re-appointment for a like term and the proviso appended thereto indicated that the age of superannuation was 70 years which has now been reduced to 65 years in the case of Chairman and from 65 to 62 years in the case of Vice-Chairman and Members, thus the right which vested in the petitioners has been taken away by introducing sub-section (8-c) of the Amending Act, 2017 it works retrospectively. Thus such divesting of right by the amendment and that too retrospectively is bad and consequently deserves to be declared as such.
B (ii) Colourable piece of legislation:-
It has been urged by the learned Senior Counsel that this introduction of the Amending Act, 2017 is a colourable piece of legislation which has prejudiced the rights of the petitioners; inasmuch as by making the Act applicable to the Chairman, Vice-Chairman and Members who were working at the time of commencement of the Amending Act, it has directly amounted to removal of the Chairman, Vice-Chairman and Members and it has a stigma attached whereas the petitioners have been working with an unblemished record throughout their service career.
It has further been urged that where the Principle Act provides for removal of the Chairman, Vice-Chairman and other Members in a stipulated manner then it is not permissible to bypass the said procedure and the State has deviced a novel method to remove the Chairman, Vice-Chairman and other Members by resorting to this legislative process by introducing the amendment which is mala fide and not not permissible.
B. (iii) Proviso makes an inroad into the main sub section:-
It has further been urged that the proviso appended to sub-section (8) of Section 3 does not have any nexus and rather the proviso has the effect of eating away the provision of main sub-section (8) and this is not the scope and width of a proviso hence it is bad.
B(iv) The Amending Act is unreasonable and is not based on intelligible differentia nor it bears any reason to the object of the Principal Act and also against public interest also indirectly it amounts to removal of the petitioners accordingly deserves to be declared ultra vires.
Submissions of the Respondent Per contra Shri Manish Goyal, learned Senior Counsel alongwith with Shri Ashok Bajpai for the State has vehemently urged that the Sate has the legislative competence to enact the Amending Act 2017. It is further argued that the courts must proceed with the assumption with the constitutionality/ validity of the Act. It has been submitted that the Tribunal is created by a statute and it cannot go beyond the function entrusted to it under the statute. By prescribing the conditions of service, neither the same has the effect of tinkering with the independence of the tribunal nor with the basic structure of the constitution It has further been urged that whosoever raises an argument that an Act is not valid, then the onus is very heavy on such a person to satisfy that the said Act or the provision is ultra vires to any provision of the constitution or any particular scheme or the aims and object and purpose of the Act is contrary to the provisions of the constitution.
It has also been argued that the concept, constitution and function of a Court is different from that of a Tribunal, thus what may be true regarding the independence of judiciary as far as the Courts are concerned, the same may not necessarily apply in case case of Tribunal.
It has also been argued that merely by reducing the age, the independence and functioning of the tribunal is not affected nor can it be said to affect the basic structure and to that extent the argument of the petitioners is bad and misconceived.
Shri Manish Goyal has also argued at length to indicate that the Amending Act is not violative of Article 14 of the Constitution; inasmuch as the reduction of age is based upon intelligible differentia and has a nexus to the object which is achieved under the Act.
Shri Goyal has also argued that there is no vested right involved; inasmuch as in the legislative scheme, the Members of the Tribunal at no stage had any vested right nor there is any lien created upon the appointment for the person as a Chairman, Vice-Chairman or Members. It is only an office of status and that they hold office during the pleasure of the Governor as is evident from the proviso appended to Section 3(9) of the Act. He has tried the differentiate and explain that the vested right is one which devolves upon a person permanently and cannot be taken away. However, in the present case, it is not applicable as no permanent right accrues upon the Chairman, Vice-Chairman or Members of the Tribunal.
Shri Goyal has further argued that from the legislative history it would indicate that the legislature has enhanced the age of superannuation of the Chairman, Vice-Chairman and Members of the Tribunal and thus if the age of the superannuation can be enhanced by an Amending Act as has been done in the year 2007 and 2013 so can the age be reduced by an Amending Act and the same cannot be said to be bad or in excess of legislative competence or arbitrary.
Shri Goyal has further submitted that the submissions of the petitioners that the proviso has the effect of eating out the main section is also misconceived; inasmuch as the proviso is the qualification of the preceding enactment which is expressed in term too general, to be accurate. The purpose of a proviso is different in different situation. It has also been urged that the proviso to Section 3(8) cannot be considered to be retrospective in its application as alleged by the petitioners rather the provision is prospective in nature. It has been submitted that merely because a provision becomes applicable to a person who is holding the office at the time when the Amendment Act comes into force, does not make it retrospective.
From the previous legislative history similar provisions were introduced by adding Section 3(8-a) in the year 2007 and again Section 3(8-b) was introduced by Amending Act 2013 which was not called in question earlier, thus, it has been submitted that the ground upon which the challenge has been raised to the Amendment Act, 2017 are bad in the eyes of law and the writ petition deserves to be dismissed.
In rejoinder, learned counsel for the petitioners have sought to indicate arbitrariness of the Amending Act, 2017. It has been urged that apart from the Chairman, two Vice-Chairman and six members were functioning in the Tribunal, on the date of commencement of the Amending Act i.e. on 14.08.2017. The position would be that the Chairman who otherwise would complete his tenure of 5 years in the year 2022 but with coming into effect of the Amendment Act 2017 by prescription of law he becomes ineligible on 04.07.2019 as he would have completed the age of 65 years. This tenure of 5 years under the main section 3(8) of the Principal Act is affected.
In so far as the Vice-Chairman (Judicial) is concerned, he would also become ineligible on 14.08.2017 as he would have completed the age of 62 years. As far as Vice-Chairman (Administrative) is concerned, he would complete his age of 62 years on 26.01.2019. However, on account of Amending Act, he again would be ineligible on 14.08.2017 and thus even the other Members both Judicial and Administrative would by virtue of the Amending Act, would become ineligible and thus from 14.08.2017, all would be deemed to be ineligible and some of them would be ineligible even on the date when they were appointed, and it would amount to the ineligible persons being appointed is the first place. It would also have deep ramification; inasmuch as decisions rendered by the Members of the Tribunal on the judicial side which may have been assailed before the High Court and the Supreme Court and may have attained finality would be rendered nugatory, and this is all because of the offending amendments which is neither reasonable nor in public interest.
It has also been urged that by the Amending Act of 2007 and 2013, the age of superannuation was enhanced by the amendment and it was made applicable to the persons holding office on the date of its commencement it does not necessarily mean and imply that it can be reduced in the same manner. The enhancement of age by an Amending Act has different ramification than reduction in age and therefore the State cannot take the advantage that if the age can be enhanced by an amendment so it can be reduced accordingly.
It has also been urged by the learned counsel for the petitioners that in the State Public Services Tribunal, the State is the largest litigator; inasmuch as in all the cases before it one of the parties is the State. In such a case, the State by reducing the age for holding office of Chairman, Vice-Chairman and Members indirectly exercises power to remove a person from office which hampers and obstruct the independence and the working and functionality of such persons manning the Tribunal and accordingly it affects the independence and is hit by the basic structure theory.
Decisions cited by the respective parties Learned counsel for the petitioners have relied upon the decision of the Apex Court in the case of L. Chandra Kumar Vs. Union of India, 1997 (3) SCC page 261, S. P. Sampat Kumar Vs. Union of India 1987 (1) SCC page 124, Public Services Tribunal Bar Association Vs. State of U.P. & others 2003 (4) SCC page 104, Union of India Vs. R. Gandhi, President Madras Bar Association, 2010 (11) SCC page 1, Madras Bar Association Vs. Union of India and another 2014 (10) SCC page 1, Dwarka Prasad Vs. Dwarka Das Sarraf 1976 (1) SCC page 128, Rajer Mathew Vs. South Indian Bank Limited 2018 (16) SCC page 341 and K. Nagraj & others Vs. State of Andra Pradesh & another 1985 (1) SCC page 523.
Learned counsel for the respondents has relied upon the decisions of the Apex Court in the case of Bishun Narain Mishra Vs. State of U.P. AIR 1965 SC page 1567, A. K. Behera Vs. Union of India 2010 (11) SCC page 322, Shankar Raju Vs. Union of India 2011 (2) SCC page 132, State of U.P. Vs. Harendra Pal Singh 2011 (5) SCC page 305, Durga Das Purkaystha Vs. Union of India 2002 (6) SCC page 242, Kashmir Singh Vs. Union of India 2008 (7) SCC page 259, S. Sundram Pillai & other Vs. V. R. Pattabiranan 1985 (1) SCC page 591 and he has also relied on the decision of L. Chandra Kumar, S.P.Sampatt Kumar and Madras Bar Association Vs. Union of India which has been cited by the learned counsel for the petitioners.
The reference to the aforesaid decisions shall be made at the appropriate place while dealing with the submissions of the learned counsel for the respective parties.
Discussions Now in light of the rival submissions noted above, let us test the grounds of challenge raised by the petitioners as to whether the same can be sustained or not.
At this stage before proceeding further it will be apposite to note the scope, width and parameters within which a challenge to a legislation can be tested by the Court while exercising its power of judicial review.
The answer to the above can be found in the decision of the Apex Court in the case of Namit Sharma Vs. Union of India 2013 (1) SCC 745. The relevant paras of the said report reads as under:-
8. The Constitution of India expressly confers upon the courts the power of judicial review. The courts, as regards the fundamental rights, have been assigned the role of sentinel on the qui vive under Article 13 of the Constitution. Our courts have exercised the power of judicial review, beyond legislative competence, but within the specified limitations. While the court gives immense weightage to the legislative judgment, still it cannot deviate from its own duties to determine the constitutionality of an impugned statute. Every law has to pass through the test of constitutionality which is stated to be nothing but a formal test of rationality.
9. The foundation of this power of judicial review, as explained by a nine-Judge Bench in Supreme Court Advocates-on-Record Assn. v. Union of India [(1993) 4 SCC 441] , is the theory that the Constitution which is the fundamental law of the land, is the "will" of the "people", while a statute is only the creation of the elected representatives of the people; when, therefore, the "will" of the legislature as declared in the statute, stands in opposition to that of the people as declared in the Constitution--the "will" of the people must prevail.
10. In determining the constitutionality or validity of a constitutional provision, the court must weigh the real impact and effect thereof, on the fundamental rights. The Court would not allow the legislature to overlook a constitutional provision by employing indirect methods. In Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625] this Court mandated without ambiguity, that it is the Constitution which is supreme in India and not Parliament. Parliament cannot damage the Constitution, to which it owes its existence, with unlimited amending power.
11. An enacted law may be constitutional or unconstitutional. Traditionally, this Court had provided very limited grounds on which an enacted law could be declared unconstitutional. They were legislative competence, violation of Part III of the Constitution and reasonableness of the law. The first two were definite in their scope and application while the cases falling in the third category remained in a state of uncertainty. With the passage of time, the law developed and the grounds for unconstitutionality also widened. D.D. Basu in Shorter Constitution of India (14th Edn., 2009) has detailed, with reference to various judgments of this Court, the grounds on which the law could be invalidated or could not be invalidated. Reference to them can be made as follows:
"Grounds of unconstitutionality.-- A law may be unconstitutional on a number of grounds:
(i) Contravention of any fundamental right, specified in Part III of the Constitution. (Ref. Under Article 143: Special Reference No. 1 of 1964, In re [AIR 1965 SC 745 : (1965) 1 SCR 413] .)
(ii) Legislating on a subject which is not assigned to the relevant legislature by the distribution of powers made by the Seventh Schedule, read with the connected articles. (Ref. Special Reference No. 1 of 1964, In re [AIR 1965 SC 745 : (1965) 1 SCR 413] .)
(iii) Contravention of any of the mandatory provisions of the Constitution which impose limitations upon the powers of a legislature e.g. Article 301. (Ref. Atiabari Tea Co. Ltd. v. State of Assam [AIR 1961 SC 232] .)
(iv) In the case of a State law, it will be invalid insofar as it seeks to operate beyond the boundaries of the State. (State of Bombay v. R.M.D. Chamarbaugwala [AIR 1957 SC 699] .)
(v) That the legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body. (Hamdard Dawakhana v. Union of India [AIR 1960 SC 554 : 1960 Cri LJ 735] .")
12. On the other hand, a law cannot be invalidated on the following grounds:
"(a) That in making the law (including an Ordinance), the law-making body did not apply its mind (even though it may be a valid ground for challenging an executive act), (Ref. Nagaraj K. v. State of A.P. [(1985) 1 SCC 523 : 1985 SCC (L&S) 280] ) or was prompted by some improper motive. (Ref. Rehman Shagoo v. State of J&K [AIR 1960 SC 1 : 1960 Cri LJ 126 : (1960) 1 SCR 680] .)
(b) That the law contravenes some constitutional limitation which did not exist at the time of enactment of the law in question. (Ref. STO v. Ajit Mills Ltd. [(1977) 4 SCC 98 : 1977 SCC (Tax) 536] )
(c) That the law contravened any of the directive contained in Part IV of the Constitution. (Ref. Deep Chand v. State of U.P. [AIR 1959 SC 648] )
13. Since great emphasis has been placed on the violation of fundamental rights, we may notice that no prejudice needs to be proved in cases where breach of fundamental rights is claimed. Violation of a fundamental right itself renders the impugned action void (Ref. A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] ).
14. A law which violates the fundamental right of a person is void. In such cases of violation, the Court has to examine as to what factors the Court should weigh while determining the constitutionality of a statute. First and the foremost, as already noticed, is the competence of the legislature to make the law. The wisdom or motive of the legislature in making it is not a relative consideration. The Court should examine the provisions of the statute in light of the provisions of the Constitution (e.g. Part III), regardless of how it is actually administered or is capable of being administered. In this regard, the Court may consider the following factors as noticed in D.D. Basu, Shorter Constitution of India (14th Edn., 2009):
"(a) The possibility of abuse of a statute does not impart to it any element of invalidity.
(b) Conversely, a statute which violates the Constitution cannot be pronounced valid merely because it is being administered in a manner which might not conflict with the constitutional requirements.
In Charan Lal Sahu v. Union of India [(1990) 1 SCC 613] , SCC at p. 667, para 13, Mukharji, C.J. made an unguarded statement viz. that ''13. In judging the constitutional validity of the Act, the subsequent events, namely, how the Act has worked itself out, have to be looked into.' It can be supported only on the test of ''direct and inevitable effect' and, therefore, needs to be explained in some subsequent decision.
(c) When the constitutionality of a law is challenged on the ground that it infringes a fundamental right, what the Court has to consider is the ''direct and inevitable effect' of such law.
(d) There is presumption in favour of constitutionality of statutes. The law courts can declare the legislative enactment to be an invalid piece of legislation only in the event of gross violation of constitutional sanctions."
(emphasis supplied)
15. It is a settled canon of constitutional jurisprudence that the doctrine of classification is a subsidiary rule evolved by courts to give practical content to the doctrine of equality. Overemphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. (Ref. LIC v. Consumer Education & Research Centre [(1995) 5 SCC 482] .) It is not necessary that classification in order to be valid, must be fully carried out by the statute itself. The statute itself may indicate the persons or things to whom its provisions are intended to apply. Instead of making the classification itself, the State may lay down the principle or policy for selecting or classifying the persons or objects to whom its provisions are to apply and leave it to the discretion of the Government or administrative authority to select such persons or things, having regard to the principle or policy laid down by the legislature.
16. Article 14 forbids class legislation but does not forbid reasonable classification which means:
16.1. It must be based on reasonable and intelligible differentia; and 16.2. Such differentia must be on a rational basis.
16.3. It must have nexus with the object of the Act.
17. The basis of judging whether the institutional reservation fulfils the abovementioned criteria, should be:
17.1. There is a presumption of constitutionality;
17.2. The burden of proof is upon the writ petitioners, the person questioning the constitutionality of the provisions;
17.3. There is a presumption as regards the State's power on the extent of its legislative competence;
17.4. Hardship of a few cannot be the basis of determining the validity of any statute.
18. The principles for adjudicating the constitutionality of a provision have been stated by this Court in its various judgments. Referring to these judgments and more particularly to Ram Krishna Dalmia v. Justice S.R. Tendolkar [AIR 1958 SC 538] and Budhan Choudhry v. State of Bihar [AIR 1955 SC 191 : 1955 Cri LJ 374] , the author Jagdish Swarup in his book Constitution of India (2nd Edn., 2006) stated the principles to be borne in mind by the courts and detailed them as follows: (Ram Krishna Dalmia case [AIR 1958 SC 538] , AIR pp. 547-48, para 11) "(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."
19. These principles have often been reiterated by this Court while dealing with the constitutionality of a provision or a statute. Even in Atam Prakash v. State of Haryana [(1986) 2 SCC 249] the Court stated that whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule is to look to the Preamble to the Constitution as the guiding light and to the directive principles of State policy as the book of interpretation. The Constitution being sui generis, these are the factors of distant vision that help in the determination of the constitutional issues. Referring to the object of such adjudicatory process, the Court said: (SCC p. 257, para 5) "5. ... we must strive to give such an interpretation as will promote the march and progress towards a Socialistic Democratic State. For example, when we consider the question whether a statute offends Article 14 of the Constitution we must also consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the Preamble and the Directive Principles enumerated in Part IV of the Constitution."
20. Dealing with the matter of closure of slaughterhouses in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat [(2008) 5 SCC 33] , the Court while noticing its earlier judgment Govt. of A.P. v. P. Laxmi Devi [(2008) 4 SCC 720] , introduced a rule for exercise of such jurisdiction by the courts stating that the court should exercise judicial restraint while judging the constitutional validity of the statute or even that of a delegated legislation and it is only when there is clear violation of a constitutional provision beyond reasonable doubt that the court should declare a provision to be unconstitutional. Further, in P. Laxmi Devi [(2008) 4 SCC 720] , the Court has observed that even if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must prevail and the court must make efforts to uphold the constitutional validity of a statute, unlike a policy decision, where the executive decision could be rendered invalid on the ground of mala fides, unreasonableness and arbitrariness alone.
21. In order to examine the constitutionality or otherwise of a statute or any of its provisions, one of the most relevant considerations is the object and reasons as well as the legislative history of the statute. It would help the court in arriving at a more objective and just approach. It would be necessary for the court to examine the reasons of enactment of a particular provision so as to find out its ultimate impact vis-à-vis the constitutional provisions. Therefore, we must examine the contemplations leading to the enactment of the Act of 2005."
In light of the above extracted principles, it is well settled that the power of the legislature to introduce an amendment in an Act is not an executive function but a legislative function and as such no restriction can be put on the powers of the legislature to amend any law. The Court can strike down a legislation only on limited grounds:- (I) lack of legislative competence; (II) the law so framed is violative of the fundamental rights or Constitutional provisions.
In the present case, it is not disputed by the petitioners that the legislature did possess the competence to frame the aforesaid amendment in the Act of 1976. Thus the only ground which is available to the petitioners and to establish is, that the law so framed is violative of fundamental rights or Constitutional provisions or that the law as amended is unreasonable and hit by Article 14 of the Constitution.
It is also well settled that the burden is on the person who alleges that the law is violative of the fundamental rights or Constitutional provisions and thus the grounds raised by the petitioners shall be examined by the Court in light thereof and it shall examine the submissions under the heads as mentioned hereinabove first.
A. The violation of the Basic Structure of the Constitution:-
First and foremost, it has been submitted by the learned counsel for the petitioners that the law as amended has the effect of tampering with the basic structure. It has also been urged that the Tribunal is essentially an organ of the judiciary and is involved in dispensation of justice.
It has further been urged that at the time when 1992 amendment to the U.P. Public Services Tribunal Act was assailed and it had reached the doors of the Supreme Court in the case of Public Services Tribunal Bar Association Vs. State of U.P. & another reported in 2003 (4) SCC 104. It was noticed in the said case that the State has taken the stand, that the amendment brought into the Act of 1976 was to make it at par with the Administrative Tribunals Act, 1985. In the Administrative Tribunals Act, 1985, the tenure and age of the Chairman, Vice-Chairman and Members have been fixed and it is keeping in view thereof that the legislative amendments were made in the Act of 1976 wherein the age of the Chairman, Vice-Chairman and Members was enhanced from 65 to 67 and later to 70 years for the Chairman and 62 to 65 as far as the Vice-Chairman and Members were concerned.
Learned counsel for the petitioners has laid much stress that independence of the judiciary is the basic structure of the Constitution. Impartiality, independence fairness and reasonableness in decision making are the hallmarks of the judiciary and in case if this is to be achieved then the persons involved in making the decisions have to be insulated from the executive action both in terms of tenure by providing them security as well as freedom from ordinary monetary worries.
Learned counsel for the petitioners have referred to the decision of Union of India Vs. R. Gandhi, President Madras Bar Association, 2010 (11) SCC page 1 (supra) and has also taken the Court through various paragraphs from the decision of L. Chandra Kumar Vs. Union of India (supra) wherein the issue regarding the independence of judiciary has been recognized as the part of the basic structure of the Constitution.
Learned counsel for the petitioners has also relied upon recent decision of the Apex Court in the case of Rajer Mathew Vs. South Indian Bank Limited and others (supra) wherein relying upon the decision of Union of India Vs. R. Gandhi, President Madras Bar Association (supra), it was noticed that the legislature could constitute a Tribunal but there is limitation of power on the legislature to prescribe qualification and such limitation has to be read into the competence of the legislature to provide such qualifications. Standard expected from judicial member and standard applied for appointment should be as nearly as possible same as applied to appointment of Judges who are sought to be substituted. Experience of administration may make a member of civil servant or a good administrator but not necessarily an able and impartial adjudicator.
It further went on to hold that in order to insure better working of Tribunal it was necessary that only if judicial independence is assured, can the Tribunal discharge its judicial function. It also noticed that all courts are Tribunal, however, any Tribunal to which any existing jurisdiction of courts is transferred, should also be a judicial Tribunal. Meaning thereby that such Tribunal should have as Member, person of rank, capacity and status as merely as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.
On the strength of the aforesaid decision, it has been argued by the petitioners that upon the enactment of the Act of 1976 all such matters which unto then were being decided by the High Court were now transferred to be adjudicated by the Tribunal constituted under the U.P. Public Services Tribunals Act of 1976. Accordingly, it would indicate that amendments have been brought in the Principal Act from time to time to make the Tribunal as far as possible the substitute of the court from where the cases have been transferred for adjudication. It is in view thereof that the Chairman of the Tribunal is appointed and its qualification essentially being as provided in Section 3(3) of the Act indicating that a person shall not be qualified for appointment as Chairman unless he has been a Judge of a High Court or at least two years held the post of Vice-Chairman or has been a Member of the Indian Administrative Service who has held the post of Secretary to the Government of India or other posts under the Central of the State Government equivalent thereto and has adequate experience in dispensation of justice. It is for the said reason that the Tribunal is manned by the Chairman who is usually a retired High Court Judge.
The appointment procedure as provided in Section 3(7) of the Act further indicates that a person who is appointed as a Chairman, Vice-Chairman and every other Members shall be appointed by the State Government after consultation with Chief Justice of the High Court. The Tribunal in terms of Section 5-A has also been conferred with the power to punish for contempt of the orders passed by it and Section 6-C indicates that the Chairman, Vice-Chairman and Members shall be deemed to be Judges for the purposes of Judges Protection Act, 1985 and the Judicial Officers Protection Act, 1850. The scheme of the Act is such that the Members of the Tribunal so appointed after consultation with the Chief Justice and involved in dispensation of justice where one of the parties is the State, thus, it is absolutely imperative and in order to achieve independence and impartiality of the Tribunal which can be achieved only if the security of tenure is preserved. Any attempt by the legislature to tamper with the security of tenure is directly or indirectly an attack on the judicial independence of the Tribunal.
This arguments of the petitioners has been refuted by the State and Shri Manish Goyal learned Senior Counsel has also relied upon the decision of L. Chandra Kumar Vs. Union of India (supra) to indicate what would be the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure and in order to examine the same, it is in each individual case, the place and purpose of the particular feature in the scheme of our Constitution, its object and the consequences of its denial on the integrity of the Constitution as a fundamental instrument for the Government of the country, is to be seen. The relevant para extracted from L. Chandra Kumar Vs. Union of India (supra)reads as under:-
"76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The doctrine of basic structure was evolved in Kesavananda Bharati case [(1973) 4 SCC 225] . However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat and Grover, JJ., Hegde and Mukherjea, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi case [1975 Supp SCC 1] , Chandrachud, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country. (supra at pp. 751-752). This approach was specifically adopted by Bhagwati, J. in Minerva Mills case [(1980) 3 SCC 625] (at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law."
It was urged that the subordinate judiciary or Tribunals created under the ordinary legislation do not exercise the power of judicial review of legislative action and thus there is no constitutional prohibition against their performing a supplemental role as opposed to a substitutional role in this aspect. The relevant portion of the decision of L. Chandra Kumar reads as under:-
"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."
Shri Manish Goyal has also drawn the attention of the Court to paragraphs 81 and 82 of the decision of L. Chandra Kumar to emphasis that the Parliament and State Legislature does possess legislative competence to affect changes in the original jurisdiction of the Supreme Court and the High Court. This power is available to the Parliament under entries 77, 78, 79 and 95 of list I and the State legislature under entries 65 of list II and entry 46 of list III appended to the 7th Schedule of the Constitution, which can be availed both by the Parliament and the State legislature for this purpose.
The Apex Court had also noticed that the decision in the case of Sampat Kumar was rendered against a backdrop where the Constitution Bench of the Apex Court was adopting a theory of alternate institutional mechanism looking into the alarming situation that had arisen at the time and noticed in the said decision.
Shri Goyal has also drawn the attention of the Court to the case of Madras Bar Association (supra) and it has been urged that though all courts are Tribunals but all Tribunals are not court. He has emphasized that the difference in creation of both the courts and the Tribunal must be accepted; inasmuch as Tribunal are created under specific statute whereas the proceedings of the court are manned by persons of exclusive judicial intellect who are trained to dispense justice based upon traditional form of administrating justice in the field of law. The relevant portion of Union of India Vs. R. Gandhi, President, Madras Bar Association, 2010 (11) SCC 1 (paras 38 to 45) reads as under:-
"38. The term "courts" refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the State for administration of justice that is for exercise of the judicial power of the State to maintain and uphold the rights, to punish wrongs and to adjudicate upon disputes. Tribunals on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law. Courts refer to civil courts, criminal courts and the High Courts. Tribunals can be either private tribunals (Arbitral Tribunals), or tribunals constituted under the Constitution (Speaker or the Chairman acting under Para 6(1) of the Tenth Schedule) or tribunals authorised by the Constitution (Administrative Tribunals under Article 323-A and tribunals for other matters under Article 323-B) or statutory tribunals which are created under a statute (Motor Accidents Claims Tribunal, Debt Recovery Tribunals and Consumer Fora). Some Tribunals are manned exclusively by Judicial Officers (Rent Tribunals, Motor Accidents Claims Tribunal, Labour Courts and Industrial Tribunals). Other statutory tribunals have judicial and technical members (Administrative Tribunals, Tdsat, Competition Appellate Tribunal, Consumer Fora, Cyber Appellate Tribunal, etc.)
39. This Court had attempted to point out the difference between court and tribunal in several decisions. We may refer a few of them.
40. In Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala [AIR 1961 SC 1669 : (1962) 2 SCR 339] , Hidayatullah, J. succinctly explained the difference between the courts and the tribunals, thus: (AIR pp. 1680-81, paras 30-34) "30. ... All tribunals are not courts, though all courts are tribunals. The word ''courts' is used to designate those tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish ''wrongs'. Whenever there is an infringement of a right or an injury, the courts are there to restore the vinculum juris, which is disturbed. ...
31. When rights are infringed or invaded, the aggrieved party can go and commence a querela before the ordinary civil courts. These courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the Constitution or some Act of legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of ''courts of civil judicature'. There can thus be no doubt that the Central Government does not come within this class.
32. With the growth of civilisation and the problems of modern life, a large number of administrative tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary courts of civil Judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to courts, but are not courts. When the Constitution speaks of ''courts' in Articles 136, 227 or 228 or in Articles 233 to 237 or in the Lists, it contemplates courts of civil judicature but not tribunals other than such courts. This is the reason for using both the expressions in Articles 136 and 227.
By ''courts' is meant courts of civil judicature and by ''tribunals', those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. ...
33. In my opinion, a court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the State under its constitution to exercise the judicial power of the State. These courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word ''judicial', be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [(1892) 1 QB 431 (CA)] , in these words: (QB p. 452) ''... The word "judicial" has two meanings. It may refer to the discharge of duties exercisable by a Judge or by Justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind--that is, a mind to determine what is fair and just in respect of the matters under consideration.' That an officer is required to decide matters before him ''judicially' in the second sense does not make him a court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest.
34. Courts and tribunals act ''judicially' in both senses, and in the term ''court' are included the ordinary and permanent tribunals and in the term ''tribunal' are included all others, which are not so included."
(emphasis supplied)
41. In Jaswant Sugar Mills Ltd. v. Lakshmi Chand [AIR 1963 SC 677 : 1963 Supp (1) SCR 242] , this Court observed that in order to be a tribunal, a body or authority must, besides being under a duty to act judicially, should be invested with the judicial power of the State.
42. In Associated Cement Companies Ltd. v. P.N. Sharma [AIR 1965 SC 1595 : (1965) 2 SCR 366] , another Constitution Bench of this Court explained the position of the tribunals thus: (AIR p. 1599, paras 7-9) "7. ... The expression ''court' in the context denotes a tribunal constituted by the State as a part of the ordinary hierarchy of courts which are invested with the State's inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant provisions. The Constitution recognised a hierarchy of courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These courts can be described as ordinary courts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions.
8. In every State there are administrative bodies or authorities which are required to deal with matters within their jurisdiction in an administrative manner and their decisions are described as administrative decisions. In reaching their administrative decisions, administrative bodies can and often do take into consideration questions of policy. It is not unlikely that even in this process of reaching administrative decisions, the administrative bodies or authorities are required to act fairly and objectively and would in many cases have to follow the principles of natural justice; but the authority to reach decisions conferred on such administrative bodies is clearly distinct and separate from the judicial power conferred on courts, and the decisions pronounced by administrative bodies are similarly distinct and separate in character from judicial decisions pronounced by courts.
9. Tribunals which fall within the purview of Article 136(1) occupy a special position of their own under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense, they share with the courts one common characteristic; both the courts and the tribunals are ''constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions'. (Vide Durga Shankar Mehta v. Raghuraj Singh [AIR 1954 SC 520 : (1955) 1 SCR 267] .) They are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed and in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedure which the tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the tribunals is substantially the same, and there is no essential difference between the functions that they discharge. As in the case of courts, so in the case of tribunals, it is the State's inherent judicial power which has been transferred and by virtueof the said power, it is the State's inherent judicial function which they discharge."
(emphasis supplied)
43. In Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] , a Constitution Bench reiterated the above position and added the following: (SCC p. 707, para 99) "99. Where there is a lis--an affirmation by one party and denial by another--and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a tribunal, if it does not have all the trappings of a court."
44. In S.P. Sampath Kumar v. Union of India [(1987) 1 SCC 124 : (1987) 2 ATC 82] , this Court expressed the view that Parliament can without in any way violating the basic structure doctrine make effective alternative institutional mechanisms or arrangements for judicial review.
45. Though both courts and tribunals exercise judicial power and discharge similar functions, there are certain well-recognised differences between courts and tribunals. They are:
(i) Courts are established by the State and are entrusted with the State's inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are tribunals. But all tribunals are not courts.
(ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a judicial member and a technical member who is an "expert" in the field to which the tribunal relates. Some highly specialised fact-finding tribunals may have only technical members, but they are rare and are exceptions.
(iii) While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and the Evidence Act, requiring an elaborate procedure in decision making, tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act."
Shri Goyal has submitted that it would be seen that as far as the security of tenure is concerned, the same has not been touched since Section 3(8) which provides the tenure of the Chairman, Vice-Chairman and other Members to hold office for a term of five years has not been amended. It has also been urged that the proviso appended to sub-Section (8) which states that no Chairman, Vice-Chairman or Members shall hold office as such after he has attained the age of 70 years in the case of Chairman has been amended and reduced to 65 and in the case of Vice-Chairman and other Members, the age of 65 has been reduced to 62 years. Thus by fixing an outer age limit it does not affect the tenure nor does it in any fashion encroach upon the independence of the Chairman, Vice-Chairman and Members and accordingly the entire argument does not stand to reason at it does not affect the independence of functioning of the Tribunal.
Considering the rival submissions and going through the relevant cases cited by the respective parties, this Court is of the undoubted opinion that though the independence of judiciary is a basic structure and feature of the Constitution but merely because there is a change in the outer age limit, it cannot be said that it infringes or compromises the independence and functionality of the Chairman, Vice-Chairman or members of the Tribunal. The legislature has been given the complete freedom to legislate for fixing such age limit and merely because the legislature fixes the age limit, it cannot be said that the judicial independence is in the hands of the executive. It would be seen that the Tribunal has been created by the statute exercising its powers of the State legislative which is referable to entry 41 in list II of the 7th schedule of the Constitution.
From the perusal of the Amending Act, it indicates that the power to fix the age limit for a person to be appointed or rather an outer limit till when he shall hold office, has not been delegated to any executive authority.
In this regard, the observation of the Apex Court in the case of L. Chandra Kumar Vs. Union of India (supra) shall be relevant where suggestion have been given and has held that because the Tribunals which are created under a State legislature but its supervision must be in the hands of an independent supervisory body. The relevant paragraphs are being reproduced hereinafter.
"96. It has been brought to our notice that one reason why these Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements. To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our constitutional scheme requires that all adjudicatory bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot, in any manner, be of assistance to them. The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.
97. The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of expert bodies like the LCI and the Malimath Committee in this regard. We, therefore, recommend that the Union of India initiate action in this behalf and after consulting all concerned, place all these Tribunals under one single nodal department, preferably the Legal Department."
Similarly the Apex Court in the case of Kashmir Singh Vs. Union of India reported in 2008 (7) SCC page 259 also considering the aspect of prescription of age in the matter of Judicial Commission which was challenged and the relevant paras 47, 48, 53, 56, 58, 64 and 65 are being reproduced for ready reference.
"47. Undoubtedly, the Commission exercises a judicial function but the same would not mean that in the name of independence in its functioning, the members will continue to hold office in perpetuity.
48. It is not for us to prescribe age of superannuation. A recommendation undoubtedly was made in that behalf by the Full Bench of the High Court in Shiromani Gurdwara Parbandhak Committee [AIR 1970 P&H 40] but the recommendations having not been accepted and we, having been called upon to determine only the question with regard to construction of statute, will have to do so independent of the said observations.
53. Article 310 of the Constitution of India provides for a tenure. It does not contemplate a life tenure. It does not contemplate a permanent term. Article 16 of the Constitution of India which is a species of the equality clauses contained in Articles 14 and 16 of the Constitution of India, speaks of grant of equal opportunity to all. Allowing a person to hold public office indefinitely would be opposed to the constitutional scheme, irrespective of any misconduct or other contingencies. Constitution of India does not envisage holding of any office in perpetuity.
56. Before the Act was enacted, the office of the Commission was hereditary. The rule of perpetuity was, therefore, very much in the mind of the legislature as would appear from Para 5 of the Objects and Reasons of the said Act. We are aware that the said paragraph related to the Tribunal but then evidently the composition of the holder of a hereditary office was very much in the mind of the legislature.
58. We have noticed hereinbefore that in view of the number of cases having gone up, for all intent and purport the Commission has been functioning continuously. If the contention of Mr Patwalia is to be accepted, the same would lead to an absurd situation viz. the members of the Commission would hold office in perpetuity. They may even abuse their position to keep one or the other matter pending before it. If the contention of Mr Patwalia is to be accepted that having regard to the doctrine of independence of judiciary, the State Government will have no role to play in the matter of constitution of the Board, the Government will never be in a position to dissolve the Commission unless case is made out under one or the other provisions of the Act. The doctrine of "independence of judiciary" has nothing to do when the tenure is fixed by a statute. Even in relation to selection of the members of the Board, the State has a limited role to play.
64. For the aforementioned purpose, we must bear in mind two salient principles i.e. the "power to appoint" carries with it the "power to remove" under the General Clauses Act. If the Commission is to be constituted from time to time, it must be held that to effectuate this power it would be reasonable to conclude that such power can be exercised as and when a necessity arises therefor.
65. It may be true that the court shall not interfere with the judicial authority. It should be allowed to function independently and impartially, but at the same time it cannot be allowed to continue in perpetuity. A balance, thus, must be struck. Whereas, on the one hand, the discretionary jurisdiction of the State would not lightly be assumed having regard to the nature of the office held by the appellant, it cannot also be held that no tenure is fixed therefor at all."
In light of the observations of the Apex Court in various cases as noted above and considering the fact that the decision of L. Chandra Kumar (supra) which has been rendered by a Constitution Bench of 7 Hon'ble Judges of the Apex Court has laid down a binding precedent whereas the observations of the Apex Court in the case of Madras Bar Association which is no doubt a later decision of 2014 but of a coram 5 Hon'ble Judges, therefore, this Court is of the view that in so far as the submissions regarding the amendment tampering with the basic structure and affecting the independence and impartiality of the judicial independence of the Members of the Tribunal is concerned, does not hold water as neither the term has been reduced and merely fixing on outer age by legislative amendment it does not affect the independence of the tribunal and accordingly this submission of the petitioners is turned down.
B(i) The Amendment takes away the vested right and works retrospectively:-
It has been argued that certain rights which had vested with the petitioners once they assumed office could not be divested and by making the amended provisions applicable to the persons already holding office, it deprives the petitioners of their valuable vested rights which is violative of Articles 14 and 16 of the Constitution of India.
If this submission of the petitioners is examined it would have been seen that the petitioners are appointed as per the legislative scheme contained in the Act. There is no particular lien created upon the appointment being made as the Chairman, Vice-Chairman or the Members. They enjoy the office during the pleasure of the Governor. The petitioners could not substantiate as to how and what permanent rights vested with the petitioners. The petitioners have taken the ground that the Amending Act comes into effect and is made retrospective and in support of their contentions, the petitioners have relied upon the case of Ex Captain K. C. Arora 1984 (3) SCC page 281. The Court upon considering the aforesaid case of K.C. Arora (supra) finds that the Apex Court in the said case held that an amendment which is brought in retrospectively to take away the right is not valid. In the said case the amendment was brought on 2nd of March, 1976 whereas it was made effective from 1st of November, 1966 as shall be evident from para 10 of the said report.
However, in the present case, there is no retrospectivety provided to the amendment, it only provides that the said amendment shall also apply to the Chairman, Vice-Chairman or a Member holding office on the date of commencement of the said Act. Therefore, the submission that the amendment is having a retrospective effect is not quite correct and for the said reason the decision of K.C.Arora does not come to the rescue of the petitioners as the said case is clearly distinguishable and has no applicability in the present scenario.
Thus in view of the above this ground raised by the petitioners does not impress this Court accordingly it is turned down.
B (II) Colourable legislation The next submission of the petitioners is that the Amending Act is a colourable legislation as it has prejudiced the rights of the petitioners and in effect it is targeted at the present incumbents and a novel method to remove the petitioners have been adopted without complying with the statutory provisions as contained in Section 3(10) of the Act of 1976. This submission of the petitioners does not have any flavour nor it could legally be supported. The Apex Court in the case of State of Tamilnadu & others Vs. K. Shyam Sunder reported in 2011 (8) SCC 737 while hearing an appeal against a verdict of the Madras High Court, which had stuck down Section 3 of the Tamil Nadu Uniform System of School Education Act of 2011, had the occasion to consider the challenge to an amendment in an Act on the ground of being a piece of colourable legislation and in para 36 and 37 of the said report, it noted as under:-
36. In State of Punjab v. Gurdial Singh [(1980) 2 SCC 471 : AIR 1980 SC 319] , this Court held that when power is exercised in bad faith to attain ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal, it is called colourable exercise of power. The action becomes bad where the true object is to reach an end different from the one for which the power is entrusted, guided by an extraneous consideration, whether good or bad but irrelevant to the entrustment. When the custodian of power is influenced in exercise of its power by considerations outside those for promotion of which the power is vested, the action becomes bad for the reason that power has not been exercised bona fide for the end design.
37. It has consistently been held by this Court that the doctrine of mala fides does not involve any question of bona fide or mala fide on the part of legislature as in such a case, the Court is concerned to a limited issue of competence of the particular legislature to enact a particular law. If the legislature is competent to pass a particular enactment, the motives which impelled it to an act are really irrelevant. On the other hand, if the legislature lacks competence, the question of motive does not arrive at all. Therefore, whether a statute is constitutional or not is, thus, always a question of power of the legislature to enact that statute. Motive of the legislature while enacting a statute is inconsequential: "Malice or motive is beside the point, and it is not permissible to suggest parliamentary incompetence on the score of mala fides." The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. This kind of "transferred malice" is unknown in the field of legislation. (See K.C. Gajapati Narayan Deo v. State of Orissa [AIR 1953 SC 375] , STO v. Ajit Mills Ltd. [(1977) 4 SCC 98 : 1977 SCC (Tax) 536 : AIR 1977 SC 2279] , SCC p. 108, para 16, K. Nagaraj v. State of A.P. [(1985) 1 SCC 523 : 1985 SCC (L&S) 280 : AIR 1985 SC 551] , Welfare Assn., A.R.P. v. Ranjit P. Gohil [(2003) 9 SCC 358 : AIR 2003 SC 1266] and State of Kerala v. Peoples Union for Civil Liberties [(2009) 8 SCC 46] .)"
Thus in view of the above mentioned decision coupled with the fact that the petitioners could not establish as to how mala fides can be attributed and whereas the Apex Court as noted above has held that motive is besides the point and it is not permissible to urge incompetence on the score of mala fide thus how the Amending Act can be said to be a colourable piece of legislative could not be established, nor such a plea can be countenanced. Thus the submission of the petitioners challenging the Amending Act as being a colourable legislation is devoid of merits and is rejected.
B-(iii) The proviso amended by the Amending Act of 2017, in effect makes inroad in the main section:-
The challenge to the Amending Act is also on the ground that the provisions appended eats into the main Section 3(8). To elaborate it has been submitted that the tenure of 5 years has been provided by the main enacting section, however, the proviso by reducing the age as provided therein from 70 to 65 in the case of Chairman and from 65 to 62 in case of Vice Chairman and Members amounts to eating out the main section and such could not be the scope of a proviso, which is primarily on exception to the enacting section and cannot be extended beyond the main section to nullify it.
The Supreme Court in the case of Dwarka Prasad Vs. Dwarka Das Saraf reported in 1976 (1) SCC 128 considering the scope of a proviso has held as under:-
"17. While rulings and text books bearing on statutory construction have assigned many functions for provisos, we have to be selective, having regard to the text and context of a statute. Nothing is gained by extensive references to luminous classics or supportive case-law. Having explained the approach we make to the specific "proviso" situation in Section 2(a) of the Act, what strikes us as meaningful here is that the Legislature by the amending Act clarified what was implicit earlier and expressly carved out what otherwise might be mistakenly covered by the main definition. The pioviso does not, in this case, expand, by implication, the protected area of building tenancies to embrace "business" leases.
18. We may mention in fairness to Counsel that the following, among other decisions, were cited at the Bar bearing on the uses of provisos in statutes: CIT v. Indo-Mercantile Bank Ltd, [AIR 1959 SC 713 : 1959 Supp (2) SCR 256, 266 : (1959) 36 ITR 1] ; Ram Narain Sons Ltd. v. Asstt. CST [AIR 1955 SC 765 : (1955) 2 SCR 483, 493 : (1955) 6 STC 627] ; Thompson v. Dibdin [(1912) AC 533, 541 : 81 LJKB 918 : 28 TLR 490] ; Rex v. Dibdin [1910 Pro Div 57, 119, 125] and Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp (2) SCR 875, 893 : 1959 Cri LJ 1231] . The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. "Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context" (Thompson v. Dibdin, 1912 AC 533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction.
"The proper course is to apply the broad general Rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest.
The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. (Maxwell on Interpretation of Statutes, 10th Edn., p. 162)""
Then again, the Apex Court in the case of Delhi Metro Rail Corp. Vs. Tarun Pal Singh reported in 2018 (14) SCC page 161 reviewing the earlier authorities on the purpose, scope and interpretation of a proviso has held in para 21 as under:-
"21. What follows from the aforesaid enunciation is that effect of a proviso is to except all preceding portion of the enactment. It is only occasionally that proviso is unrelated to the subject-matter of the preceding section, it may have to be interpreted as a substantive provision. Ordinarily, a proviso is not interpreted as stating a general rule. Provisos are often added as saving clauses. A proviso must be construed with reference to the preceding parts of the clause to which it is appended. The proviso is ordinarily subordinate to the main section. A construction placed on proviso which brings general harmony to the terms of the section should prevail. A proviso may sometime contain substantive provision. Ordinarily, proviso to a section is intended to take out a part of the main section for special treatment. Normally, a proviso does not travel beyond the main provision to which it is a proviso. A proviso is not interpreted as stating a general rule, it is an exception to the main provision to which it is carved out as a proviso. Proviso cannot be construed as enlarging the scope of enactment when it can be fairly and properly constructed without attributing that effect. It is not open to read in the words of enactment which are not to be found there and which would alter its operative effect."
The above extracted principles if applied in the instant case would indicate that the proviso so appended is in no manner offensive to the main section nor it expands the main section rather it only takes out part of the main section for a special treatment; inasmuch as the enactment provides a tenure of 5 years and by the proviso the age has been prescribed, beyond which one may cease to hold office. This does not dilute or nullify the main enacting section. Thus the submission of the petitioners on the aforesaid count also does not merit consideration and is accordingly rejected.
B (iv) The Amending Act is unreasonable nor it bears of reason to the object of the Principal Act and also against public interest:-
The next argument raised by the learned counsel for the petitioners is that the amendment impugned has got no nexus with the object sought to be achieved by 1976 Act.
It has primarily been urged that 'experience' has been noticed as an integral qualification for the person to mann the Tribunal and it is considering the aforesaid that amendments have been brought in by the Amending Act of 2007 and 2013. While bringing the amendment of 2017, there has been no reason or prefatory note of the object and reason nor does it disclose any application of reasonableness as to why such an amendment has been brought in. It has further been urged that though the legislature is competent to bring and legislate as per the Amending Act, however, in case if the Act has the effect of introducing something indirectly which cannot be done directly, then it amounts to misuse of the power.
Elaborating the aforesaid submissions, it has been submitted that for the Chairman, Vice-Chairman and Members of the Tribunal, the Act secures a tenure of five years. One of the essential qualification for the Chairman is that a person should have been a Judge of the High Court. It has been submitted that a person demits office of the High Court at the age of 62 years whereas usually it takes minimum six months for the purposes of issuance of advertisement and to complete the selection process and at the earliest a person who may be appointed as the Chairman his age would be around 62 1/2 years in an ideal situation. If the tenure of five years is to be completed by such a person then he would necessarily hold office upto the age of 67 years.
The legislature had enhanced the age as provided in the proviso to Section 3(8) and thus the basic purpose of the Section 3(8) was being achieved by enhancing the age mentioned in the said proviso. The age as noted was enhanced from 65 to 70 and thus it would be seen that the person who is appointed after he demits office from the High Court and is appointed as a Chairman of the Tribunal is able to serve his tenure of five years. So, is the situation in respect of Vice-Chairman or the other members who being members of the Administrative Service or the Higher Judicial Service demit office at the age of 60 years and since they are given a tenure of five years and the proviso also indicates that the Vice-Chairman or the Members shall not hold office beyond the age of 65 years it implies that reasonable tenure of five years can be given to a Vice-Chairman and the Members of the Tribunal.
It has been stressed by the learned counsel for the petitioners that by introducing the Amendment of 2017 and reducing the age from 70 to 65 for the Chairman and 62 from 65 for Vice-Chairman and other Members, in effect, it erodes the security of tenure which has been introduced in Section 3(8). It has been submitted that in case if the aforesaid amendment is sustained then in any case it can never be possible for the Chairman of a Tribunal to serve his full tenure of five years which is provided in the main Section 3(8) of the Act.
It cannot be conceived that a person who is holding the office of the Judge of the High Court would resign prior to his superannuation and take up his assignment at the Tribunal in order to complete his tenure of five years. Thus, in all circumstances, neither the Chairman nor the Vice-Chairman or any Member would be able to secure the tenure and the basic purpose for which the tenure of five years has been fixed and as noticed from time to time in various committee reports as well as the decisions of the Apex Court providing the aforesaid security of tenures stands diluted.
The fallacy of the amendment as brought in in the year 2017 is exposed by taking a look at the Chart which is being incorporated herein after.
Sl. No. Name Post Date of appointment Tenure of 5 years Age of 65 Age of 70
1.
Justice Sudhir Kumar Saxena Chairman 30.01.2017 In 2022 July 2019 2024 For Vice-Chairman and Members Age 62 Age 65
2. Shri Radhey Shyam Singh Vice-Chairman (Judicial) 31.01.2017 (retired as per existing rule after completing) In 2022 2016 July 2019
3. Shri Rohit Nandan Vice-Chairman (Admin) 31.012017 2022 Jan. 2019 2022
4. Shri Brijesh Kumar Member (Judicial) 01.08.2015 completed term 2020 2016 2019
5. Mohd. Babar Member (Judicial) 01.08.2015 completed term 2020 2016 July 2019
6. Shri Jai Mangal Sharma Member (Judicial) 31.01.2017 2022 Jan. 2019 2022
7. Shri Jagdish Prasad Member (Admin) 07.08.2014 completed term 2019 2016 June 2019
8. Shri Kishan Singh Atoria Member (Admin) 31.01.2017 2022 Jan. 2019 2022
9. Shri Satyendra Kumar Raghuvanshi Member (Admin) 31.01.2017 2022 2016 Nov. 2019 This chart would indicate (if amendment is upheld then Vice-Chairman Judicial + 4 members cease to hold office on 14.08.2017 and out of these Shri Radhey Shyam Singh, Shri Satyendra Kumar Raghuvanshi would incur ineligibility. on 14.08.2017.
From perusal of the same, it would indicate that the petitioner Justice (Retd.) Sudhir Kumar Saxena who was appointed as the Chairman of the Tribunal on 31.01.2017 would complete his tenure of five years in the year 2022. As per the proviso, he would attain the age of 70 years in 2024, subject to his re-appointment. However, the fact is that in case the provision of reappointment has any meaning then the reduction in the age from 70 to 65 is completely redundant; inasmuch as in no circumstance will it be possible for any Chairman to be considered for reappointment specially once the age of superannuation is reduced from 70 to 65.
Similar would be the situation in so far as Radhey Shyam Singh who is the co-petitioner in Writ Petition No.19102 (S/B) of 2017. Radhey Shyam Singh was appointed on 31.01.2017 and would complete his five years tenure in 2022. Though he completed his 65 years in 2019, however, the amendment which has now reduced the age to 62 years would indicate that Radhey Shaym Singh could not have held office beyond 2016 and thus on the date of his appointment i.e. 31.01.2017 he was ineligible. Though Radhey Shaym Singh retired on 09.07.2019. A perusal of the chart indicates that Brijesh Kumar, Mohd. Babar, Jagdish Prasad, Kishan Singh Atoriya and Satendra Kumar Raghuwanshi all would suffer from the similar malaise.
The petitioners who had accepted the office of the Chairman, Vice-Chairman and the other Members were assured for reasonable tenure coupled with the fact that in terms of being eligible for pensionary benefits they are required to complete two years of service. By virtue of the aforesaid amendment, then some petitioners would stand superannuated even without completing two years of service and would be deprived of their substantial rights which was assured to them in term of the service conditions which was applicable to them when they had assumed the office.
The counsel for the petitioners have urged that 3 (8-c) of the Act has been specifically designed to make the amendment applicable to the petitioners as in effect it would render the entire tribunal as vacant and the decisions rendered by the Chairman, Vice-Chairman and the Members since the time the amendment is made effective i.e. with effect from 14.08.2017 would render all such judicial decisions, even though having been upheld by the High Court and Supreme Court as the case may be, as nugatory.
It has further been urged that there is a process for removal of the Chairman, Vice-Chairman and other Members as contemplated in the Act of 1976. However, in order to by-pass the same, a novel method has been introduced by reducing the age from 70 to 65 in the case of Chairman and 65 to 62 in the case of Vice-Chairman and other Members thereby trying to achieve something indirectly which could not have been done directly by the respondents.
While Shri Manish Goyal has urged that the apprehensions of the petitioners are completely misfounded; inasmuch as if the age can be enhanced by legislative action so can it be reduced. As far as the security of tenure is concerned, there has been no change but only the outer limit of the age for which an incumbent can hold office has been reduced and moreover by reducing the same from 70 to 65 in the case of Chairman and 62 from 65 in the case of Vice-Chairman and other Members, the Amending Act has only tried to streamline and restore the position as it existed earlier.
Initially the said age limit was enhanced, it was not challenged. Now by the same reasoning, once the legislature reduced the age, the same is also unassailable as this exercise has been done by the State legislature in its wisdom and the same is not open to be adjudged by the Court once the legislative competence to bring the amendment has not been disputed by the petitioners.
It has also been urged by Shri Goyal that the statement of object and reasons alone cannot form the basis for interpreting the statute. Since the Amending Act by reducing the age is based on intelligible differentia which bears nexus to the object sought to be achieved under the Act, thus the same cannot be assailed by the petitioners.
This Court upon considering the submissions in so far as the ground raised by the petitioners regarding, the amending section indirectly amounts to removal of the petitioners without following the procedure as provided in Section 3(10) of the Principal Act is concerned does not merit consideration for the following reasons.
Section 3(10) of the U.P. Public Services Tribunal Act, 1976 provides that the Chairman, Vice-Chairman or any other Member shall not be removed from his office except by an order made by the Governor on the ground of proved mis-behaviour or incapacity, after an inquiry made by the Chief Justice or such Judge of the High Court as may be nominated by the Chief Justice in the prescribed manner in which such Chairman, Vice-Chairman or other Member as the came may be, has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges.
Removal from service is a different concept having different connations whereas the concept of superannuation does not have any stigma nor does it amount to removal as understood in the service jurisprudence.
Removal from office and cessation from office are two separate phrases which cannot be interchanged nor can be given one and the same meaning. Section 3(10) of the U.P. Public Services Tribunal Act, 1976 expressly provides that the Chairman, Vice-Chairman or any Member cannot be removed from office unless the prescription contains in the said Section is met out.
In the present case, neither the State has adopted any prescription as provided in Section 3(10) of the Act rather it has only introduced Section 3(8-c) which states that the Amending Act shall apply to the Chairman, Vice-Chairman and other Members who are in office on the date of commencement of the said Amending Act. This in any sense or by any stretch of imagination cannot be termed as removal from office. Cessation of office is on account of expiry of the tenure and this is within the domain of the legislature to prescribe the service conditions. Once the tenure as prescribed comes to an end the incumbent in office ceases to function and this cannot be termed as removal from office.
In the instant case, it is clearly a case of cessation of office and therefore the submission of the learned counsel for the petitioners that by means of the amendment, the petitioners are being removed for which a separate provision has been carved out and thus by not resorting to the same and by taking the indirect route of incorporating Section 3(8-c) through legislative recourse is bad, is a submission which has no legs to stand and accordingly rejected.
The last limb of the contention as raised by the learned counsel for the petitioners that the Amending Act is unreasonable and does not bear any nexus to the aims and objects is concerned, the Court finds that from the legislative history it can be discerned that there has been a conscious effort to ensure that the Tribunal work effectively and that as held in the cases of L. Chandra Kumar and Sampat Kumar (supra) that unless a security of tenure is provided and that sufficient number of the years is given to an incumbent to enable him to effectively carry out his functions only then the purpose for which the Tribunal is created could be achieved, apart from various other aspects regarding independence of thought, finances and freedom from executive interference.
From the perusal of the material available on record, it would indicate that in the case of Public Services Tribunal Bar Association Vs. State of U.P. & others reported in 2003 (4) SCC page 104, the State had categorically taken a stand that an effort is being made to bring the Act of 1976 at par with the Administrative Tribunals Act, 1985. It is in view thereof that legislative amendments were resorted to by the State and the Act of 1976 was amended in 2007, 2013 and 2017. By the Amending Act of 2007, in the case of Chairman, the age of superannuation was enhanced from 65 to 67 years and in the case of Vice-Chairman and other Members it was enhanced to 65 years.
Similarly by the Amending Act of 2013, the age of superannuation of the Chairman was further enhanced to 70 years whereas the age for the Vice-Chairman and other Members remained stagnant at 65 years.
This would indicate that the State being conscious of the recommendations as contained in the MaliMath Committee as well as 232nd of Law Commission Report on the retirement of age of Chairperson and Members of Tribunal, introduced the amendment in 2007 and 2013. Thus so also the stand taken before the Apex Court in the case of Public Services Tribunal Bar Association (supra), once the amendments were brought in place, it would be seen that the Chairman who is appointed for a tenure of five years who generally happens to be retired High Court Judge, who after demitting office from the High Court at the age of 62 years, thereafter assumes the charge of the Chairman of the Tribunal, if promptly appointed would be able to secure a complete tenure of five years.
The provision contained in the Act Section 3(8) which also provides for reappointment of the Chairman for a like term can be achieved if the age of superannuation as provided in the proviso is pegged at 70 years. Thus, in this fashion the legislature is able to achieve its own intentions and the proviso appended to Section 3(8) being in consonance with the aforesaid objective and works in the direction of achieving what the main section prescribes. So would be the situation in so far as the Vice-Chairman and other members of the Tribunal are concerned who retire from the judicial services and from the administrative services at the age of 60 while their age of superannuation has been fixed at 65 years.
However, considering the fact that the Amendment of 2017 has reduced the age from 70 to 65, in effect it has brought in the same situation as it prevailed when the U.P. Public Services Tribunal Act, 1976 was enacted, at the initial stage.
On one hand, the Amending Act, 2007 which came into being and its prefatory, note statement of object reasons as mentioned, indicate the intention and being relevant is being reproduced hereinafter for ready reference:-
"Prefatory Note- Statement of Objects and Reasons Sub-section (6) of Section 3 of the Uttar Pradesh Public Services (Tribunal) Act, 1976 provides that a person shall not be qualified for appointment as an Administrative Member, unless he has held, or has been eligible to hold, the post of Commissioner of a Division or Joint Secretary to the Government of India and has adequate experience in dispensation of Justice and the proviso to sub-section (8) of the said section provides that no Chairman, Vice-Chairman or other member shall hold office after he attained, in the case of Chairman or Vice-Chairman, the age of sixty-five years and in the case of any other member the age of sixty-two years. Sub-section (3) of Section 4-A provides that a bench consisting of two members shall include a Judicial Member and an Administrative Member, and the Explanation thereto provides that the Chairman who has been a High Court Judge or a District Judge or a Vice-Chairman who has been a District Judge shall be deemed to be a Judicial Member and the Chairman or Vice-Chairman who has been the member of the Indian Administrative Service shall be deemed to be an Administrative Member after due consideration of the requests made to the State Government from various sources and the Chairman, Public Services Tribunal for amending the said provisions in accordance with the present situations, it has been decided to amend the said Act to provide that an officer of the Indian Administrative Service or an officer of the Provincial Civil Service (Executive Branch) in the pay scale of Rs.18400-22400 or above shall been qualified for appointment as an Administrative Member and the superannuation age of the Chairman shall be 67 years and the superannuation age of the Vice-Chairman and other members shall be 65 years and to clarify that the Chairman who has been a High Court Judge or a District Judge or a Vice-Chairman who has a member of the Indian Administrative Services or an officer of the Provincial Civil Service (Executive Branch) in the pay scale of Rs.18400-22400 or above shall be deemed to be an Administrative Member."
From the perusal of the same, it would indicate that 'adequate experience in the dispensation of justice' has been a prevailing factor for the purposes of enhancing the age of superannuation of the Chairman and the Vice-Chairman. Similarly the Amending Act 2013 also contains the preparatory note of the statement of objects and reasons which is also being reproduced hereinafter for ready reference:-
"Prefatory Note-Statement of Object and Reasons-The Uttar Pradesh Public Services (Tribunals) Act, 1976 (U.P.Act No.17 of 1976) has been enacted to provide for the constitution of tribunals to adjudicate disputes in respect of matters relating to employment of all public servants of the State of Uttar Pradesh. Section 3 of the said Act provides for the constitution of the tribunal. This section inter alia provided that the maximum age for holding the office of the Chairman shall be sixty-seven years. Generally the maximum age for holding the office of the Chairman of the Tribunal is seventy years and usually the retired judge of the Hon'ble High Court having wide and extensive experience of judicial work is appointed to the office of the Chairman. On the said basis the maximum age for holding the office the Chairman of the said tribunal should be seventy years. After due consideration is was decided to amend the said Act to increase the maximum age for holding the office of the Chairman of the said tribunal from sixty-seven years to seventy years.
Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Public Services (Tribunal)(Amendment) Ordinance, 2013 (U.P. Ordinance No.9 of 2013) was promulgated by the Governor on July 19, 2013."
From the perusal of the same, it would indicate that the 'extensive judicial experience regarding dispensation of justice' have been a key factor, in bringing about the Amending Act to enhance the age of superannuation in the case of Chairman of the Tribunal.
In contra distinction to the above, the Amending Act of 2017 contains the statement of objects and reasons which is at complete variance from the statement and object as mentioned in the Amending Act of 2007 and 2013. The statement of objects and reasons of the Amending Act, 2017 reads as under:-
"STATEMENT OF OBJECTS AND REASONS Uttar Pradesh Public Services (Tribunal) Act, 1976 (U.P. Act No.17 of 1976) has been enacted to provide for the constitution of a tribunal to adjudicate disputes in respect of matters relating to employment of all public servants of the State of Uttar Pradesh. Proviso to sub-section (8) of Section 3 of the said Act provides that the chairman shall not hold office after attaining the age of seventy years and a member shall not hold office after attaining the age of sixty five years. With a view to giving an opportunity to other talented officers so as to ensure efficiency in the working of the tribunal, it has been decided to amend the said Act to reduce the maximum age for holding office of the Chairman from seventy years to sixty-five years and Vice-Chairman and Member from sixty-five years to sixty-two years.
The Uttar Pradesh Public Services (Tribunal)(Amendment) Bill, 2017 is introduced accordingly."
From the perusal of the above, it would indicate that what has been considered relevant is that "that an opportunity be given to other talented officers so as to ensure efficiency in working of the Tribunal, it has been decided to amend the said Act to reduce the maximum age of holding office of the Chairman from 70 years to 65 years and in the case of Vice-Chairman and other Members from 65 years to 62 years."
Though it is true that statement of objects and reasons cannot be relied upon to interpret the Act, however, it is equally true that the statement, object and reasons can be considered by the Court to consider the object what legislature had in mind. Despite a plea having been taken by the petitioners. The State in its counter-affidavit has not brought any material on record by which it could justify the purpose, aim and object of the Amending Act of 2017 and what is the rationale behind it.
In the given situation, the Court can take note of the statements as mentioned in the Amending Act for the purposes of ascertaining the object which the legislature had in mind and in the present case it only refers to giving opportunity to other talented officers to assure efficiency in the working of the Tribunal.
The observation of the Apex Court in the case of Sanghi Jeevraj Ghewer Chand & Ors. Vs. Secretary, Madras Chillies, reported in 1969 (1) SCR page 366 shall be useful which is reproduced hereunder:-
"Though the Court refused to look at the statement of objects and reasons for the, purpose of construing sec. 2(d), it held that "having regard to the history of the legislation, the declared object thereof and the wording of the statute" the words had to be, given a restricted meaning. In Central Bank of India v. Their Workmen (2 the Court in construing sec. 10(1) (b) of the Banking Companies Act, 10 of 1949, again looked at the legislative history to ascertain Jr the object of passing the Act and the mischief it sought to remedy,but declined to use the statement of objects and reasons to construe the section on the -round that the statement could not control the actual words used in the section. (Cf. also State of West Bengal v. Union of India, [1964] 1 S.C.R. 371, 382. In S. Azeez Basha & Ors. v. Union of India, Writ Petition Nos. 84, 174, 188, 241 and 244 of 1966, decided on 20.10.1967 the, petitioners challenged the validity of the Aligarh Muslim. University (Amendment) Act, 62 of 1951 and the Aligarh Muslim University (Amendment) Act, 19 of 1965 as violating Art. 30(1) of the Constitution. This Court went into the history of the establishment of the University to ascertain whether it was set up by the Muslim minority and as such entitled to rights under Art. 30 and held that it was not set up by the minority but in fact established by the Government of India by passing the Aligarh Muslim University Act, 1920 of. Crawford on Statutory Construction (3rd Ed.) pages 482-483]. There is thus sample authority justifying the Court in looking into the history of the legislation, not for the purpose of construing the Act but for the limited purpose of ascertaining the background, the conditions and the circumstances which led to its passing, the mischief it was intended to prevent and the remedy it furnished to prevent such mischief. The, statement of objects and reasons also can be legitimately used for ascertaining the object which the legislature had in mind, though not for construing the Act. "
At this juncture, it will also be relevant to point out that as far as the present incumbents are concerned i.e. the petitioners, they have been appointed in pursuance of the provisions contained in the Act in consultation with the Chief Justice of the High Court. There has been no material brought on record to indicate that the Tribunal is not functioning efficiently.
On the other hands, the reports of the Mali Math Committee and 232nd, Law Commission Report which has been referred in the judgments of the Apex Court in the case of L. Chandra Kumar and Madran Bar Association and Rajer Mathew (supra) it has noted that the working of the Tribunal has been found to be wanting for the reason that it does not have a secure tenure of its Member which is different for different Tribunals whereas the expert bodies have given recommendation for bringing in uniformity to the tenure and in order to enhance the efficiency, it has been thought that extensive experience of the members is the key in achieving the efficiency. The relevant paras of the decision of the Apex Court in the case of Rojer Mathew (supra) is being gainfully reproduced as under:-
"15. In R.K. Jain v. Union of India [R.K. Jain v. Union of India, (1993) 4 SCC 119 : 1993 SCC (L&S) 1128] , a Bench of this Court called for taking stock of the situation of working of tribunals [ Id, para 8] . It was observed that the personnel appointed to man the tribunals discharge judicial/quasi-judicial powers and thus, persons who adjudicate upon such powers must have legal expertise, judicial experience and legal training [ Id, para 67] . Independence of judiciary is a must for fair justice [ Id, para 68] . Institution of tribunals being a substitute for courts could not be less effective than the courts to uphold faith of litigant public [ Id, para 70] .
17. In L. Chandra Kumar v. Union of India [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] , a Bench of 7 Judges referred to the reports of Expert Committees and Commissions which dealt with the problem of arrears. 124th Report of the Law Commission (1988) analysed the situation existing in High Courts and recommended specialised tribunals. The Malimath Committee Report (1989-1990) noted that not all the tribunals inspired confidence in public mind on account of lack of competence, objectivity and judicial approach. Constitution, power and method of appointment needed to be reviewed [ Id, para 88; Functioning of Tribunals, 8.63 to 8.66] . This Court noted that various tribunals have not evolved up to the expectations which is self-evident and widely acknowledged. Drastic measures were required to elevate the standards [ Id, para 89] . Exclusion of judicial review by the High Courts and direct appeals to this Court was too costly and inaccessible and thus ineffective. The decisions of the tribunals should be amenable to scrutiny before a Division Bench of the High Court. [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, paras 92 to 94] Short tenure of members of tribunal was not proper. Non-judicial members must have judicial experience [ Id, para 95] . There was need to review the competence of persons manning the tribunals and oversight mechanism. Wholly independent agency was required for administration of all the tribunals. A single umbrella organisation could remove the ills of the present system [ Id, para 96] ."
In the above backdrop, it would be seen that the petitioner of Writ Petition No.18001 (M/B) of 2019 as from the chart incorporated would indicate that after he demitted office as a Judge of the High Court, he was appointed as a Chairman with the consultation of the Chief Justice in January 2017. Merely eight months down the line, the State has brought an amendment reducing the age of superannuation from 70 to 65 and making it applicable to the Chairman, Vice-Chairman and other Members who were holding office on the date of commencement of the said Amending Act i.e. 14.08.2017. Thus practically all the petitioners of all the connected petitions (except the PIL) were affected by the said Amending Act of 2017.
The Legislature does have the power to legislate and Amend the Act, however, the amendment in the present case as examined by this Court, does not have a retrospective effect but at the same time if does have the effect of changing the Rules of the game, once the game has commenced as far as the petitioners are concerned. This has the effect of taking away from the petitioners certain rights which they were assured when they accepted the assignment of their appointment.
The State can make the Rule effective to the persons to be appointed as the Chairman, Vice -Chairman or other Members henceforth from the date when the post become vacant but by taking recourse to such an amendment, it cannot render the tenure which is available to the petitioners to be made redundant. To that extent particularly Section 3(8-c) of the Amending Act of 2017 appears to be unreasonable in the eyes of law.
The submission of the learned Senior Counsel Shri Manish Goyal that similar amendments were incorporated as Section 3(8-a) and Section 3(8-b) which have been upheld and, therefore, similar provision incorporated by Section 3(8-c) by the Amending Act of 2017 is insulated also does not sound to reason; inasmuch as the provision of 3(8-a) and 3(8-b) were introduced to enhance the age of the Chairman and the Members respectively and in such circumstance there was really no challenge to the said provision either before the Court to decide its validity. Neither there was any occasion to assail the such provision; inasmuch as granting a benefit has a positive connation and ramification and it is only when there is negative connation which has a detrimental effect upon the person concerned whose right is taken away only then will a provision be assailed and may be called in question.
In the present case, the provisions have been assailed as it has the effect of taking away right available with the petitioners to continue in office for a term of 5 years and upto the age of 70 years and 65 years which has been reduced to 65 and 62 years.
That by the aforesaid amendment the effect is that on 14.08.2017 when the Amending Act came into force, by then all Members who had attained the age of 62 years on the said date would immediately cease to function. So far as the Chairman is concerned, he would cease to function from the date he attains the age of 65 years. At the time when this writ petitions came to be filed, this Court in its order dated 29.08.2017 had recorded the statement given by the learned Advocate General that the State Government is reconsidering about the amended provisions inserted as Section 3(8-c) and such reconsideration would take such time. He further submitted that after re-consideration by the Government, it may choose to either withdraw the said amendment or may take a stand to contest the petition. Until such time the Government take the decision the working of the exiting Chairman, Vice-Chairman and Members of the U.P. Public Service Tribunal shall not be interfered with and they may continue to discharge a judicial and administrative functioning. This order was recorded in the petition of Rohit Nandan and five others and Kishan Singh Atoriya and another.
It is in this backdrop that the Chairman, Vice-Chairman and Members continued to function and discharge their judicial and administrative function. It is only on 12.07.2019 an order was issued under the signatures of the Principal Secretary removing the Chairman, Vice-Chairman and Members of the U.P. Public Services Tribunal, a copy of which has been brought on record by way of an amendment of the writ petition as Annexure no.7 with the amended writ petition. The amendment assailing the said order was allowed.
At this stage it will be apposite to revisit the decision of the Apex Court in respect of Article 14 of the Constitution of India.
In the case of Ajai Hasia Vs. Khaild Mujib Sehravardi reported in 1981 (1) SCC page 722 in para 16 the Apex Court held as under:-
"16. ... The true scope and ambit of Article 14 has been the subject-matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3, 38 : 1974 SCC (L&S) 165, 200 : (1974) 2 SCR 348] that this Court laid bare a new dimension of Article 14 and pointed out that that article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p. 200, para 85] "The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., ''a way of life', and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case [(1975) 1 SCC 485 : 1975 SCC (L&S) 99 : (1975) 3 SCR 616] and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India [(1980) 4 SCC 95] where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7) "Now the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this Article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence."
This was again reiterated by this Court in International Airport Authority case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621] at p. 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any [ Under Article 32 of the Constitution] action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."
In the case of State of Tamil Nadu Vs. K. Shyam Sunder & others, reported in (2011) 8 SCC 737 in paras 50 to 53 the Apex Court has held as under:-
"VIII. Legislative arbitrariness
50. In Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S) 258 : AIR 1981 SC 487] , this Court held that Article 14 strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. Whenever therefore, there is arbitrariness in State action, whether it be of the legislature or of the executive, Article 14 immediately springs into action and strikes down such State action. (See also E.P. Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555] and Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] .)
51. In Sharma Transport v. Govt. of A.P. [(2002) 2 SCC 188 : AIR 2002 SC 322] , this Court defined arbitrariness observing that a party has to satisfy that the action was not reasonable and was manifestly arbitrary. The expression "arbitrarily" means, act done in an unreasonable manner, as fixed or done capriciously or at pleasure without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.
52. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group [(2006) 3 SCC 434 : AIR 2006 SC 1489] , this Court held that: (SCC p. 511, para 205) "205. Arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness."
53. In Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board [(2007) 6 SCC 668 : AIR 2007 SC 2276] and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd. [(2009) 5 SCC 342 : (2009) 2 SCC (L&S) 10 : AIR 2009 SC 2337] , this Court held that a law cannot be declared ultra vires on the ground of hardship but can be done so on the ground of total unreasonableness. The legislation can be questioned as arbitrary and ultra vires under Article 14. However, to declare an Act ultra vires under Article 14, the Court must be satisfied in respect of substantive unreasonableness in the statute itself."
In Royappa's case it was held both Arts. 14 and 16 deal with equality and inhibition against discrimination. It was declared that principle of equality should not be subjected to a narrow pedantic or lexicographic approach. "We cannot countenance any; attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positive point of view, equality is ante thesis to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14 and if it affects any matter relating to public employment, it is also violative of Art. 16. It was held though mala fide exercise of power and arbitrariness are different lethal radiation emanating from the same vice, both are inhibited by Arts. 14 and 16.
From perusal of the aforesaid decisions, it would be clear that whenever there is an action of State which is arbitrary in nature then the long arms of the Court can reach all such places from where the mischief arises to rectify the same.
The entire matter needs to be seen from another angle. The total strength of the Tribunal consists of total 13 members as per Section 3(2) of the Act of 1976.
Chairman Vice-Chairman (Judicial) Vice Chairman (Admin) Member (Admin) 5 Member (Judicial) 5 Total:- 13 There has never been a stage, when the entire strength of the members have been achived. From the perusal of the preceding aims, objects and prefatory notes to the previous amendments indicate that an emphasis is laid on experience being a relevant criterion and this has been recognized by introducing the amendments of 2007 and 2013. Also to be noted, that the appointment of Chairman, Vice-Chairman and Members is with consultation with the Chief Justice. The present incumbents have been appointed by this process while it cannot be presumed that while the appointments made with consultation with the Chief Justice has taken note of only experience and talent was not considered.
The submission that the amendment of 2017 brings in the concept of talent does not please to reason and prudence. There is no material on record provided by the State to indicate that the talent has been compromised while making the appointments which has affected the functioning of the tribunal. Moreover the State, if had the vast pool of talent available with it, it would have filled up the vacant posts rather than disrupt the already functioning tribunal by introducing and making Section 3(8-c) provisions applicable on present members by virtue of Section 3(8-c), the effect of which on the date of enactment of the amendment i.e. on 14.08.2017 would be to render the tribunal almost non-functional which could never be treated as being reasonable nor in public interest nor having any rational basis to the object sought to be achieved.
If the current position is analyzed it would indicate that as per the amendment, as of today, the entire tribunal shall cease to hold office and out of these Shri Radhy Shyam and Shri Satendra Kumar Raghuvanshi would incur ineligibility on 14.08.2017 and even otherwise the situation would be that out of the 9 working members 4 would stand superannuated after completing their term as per unamended section and as per amended section as of today all the members including the Chairman, Vice-Chairman (Judicial) and Vice-Chairman (Administrative) would cease to function.
Thus this would give rise to a situation where the tribunal shall stand paralyzed on account of action of the State, which can neither be considered to be reasonable nor in public interest especially when there are large numbers of matters pending and as already noted above the tribunal has been constituted to supplement to work of the High Court, which prior to the constitution of the tribunal, was traditionally dealing with all such service matters. Thus one complete segment of cases shall be hugely affected and this is where the arbitrariness of State is reflected and if tested on the touch stone of prudence, one would find that an effort should be to achieve the full working strength rather then to erode the existing strength and thus section 3(8-c) does not appear to be reasonable and is arbitrary and is hit by Article 14 of the Constitution.
Thus on the overall consideration and detailed discussions, this Court is of the considered opinion that Section 3(8-c) as incorporated by Amending Act No.4 of 2017 works unreasonably and it effects the functionality of the Tribunal which renders it against the public interest and also being arbitrary and not having any rational and nexus with the object and purpose for which the Tribunal was formed consequently untenable.
In view of the above mentioned discussions, this Court records its conclusion as under:-
(i) The Uttar Pradesh Public Services Tribunal Amendment Act No. 4 of 2017 as far as it amends the proviso appended to Section 3(8) of the Principal Act by which it has reduced the age fixed earlier at 70 years to 65 years in the case of Chairman and reduction in the age from 65 to 62 years in the case of Vice-Chairman and other Members is upheld.
(ii) The introduction of Section 3 (8-c) by the Amending Act, 2017 is declared as ultra vires and it is struck down by this Court.
(iii) All the above connected writ petitions to the above extent shall stand partly allowed. However, there shall be no order as to costs.
(Jaspreet Singh, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- November 16, 2019 ank/-