Bombay High Court
Vijay Ghogare & Ors. vs The State Of Maharashtra & Ors. on 18 June, 2013
Author: Chief Justice
Bench: Mohit S. Shah, M.S. Sanklecha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.8452 OF 2004
Vijay Ghogare & Ors. ).. Petitioners
Versus
The State of Maharashtra & Ors. ).. Respondents
Dr. Rajeev Dhawan, Senior Advocate with Mr. Girish Kulkarni and Mr.
A.Y. Chitale, Senior Advocate i/b. M/s. K.K. Associates for Petitioner in
Writ Petition No.8452 of 2004.
Mr. D.J. Khambata, Advocate General along with Mr. P.P. Rao, Senior
Advocate, Mr. V.A. Gangal, Special Senior Counsel, Mr. Nitin P.
Deshpande, AGP, Mr. Anup N. Deshmukh, Mr. Aksheet Kurushetra and
Mr. Afroz Shah for respondent State.
Mr. M.M.Vaidy for intervenors respondent Nos.14 and 15.
Mr. R.S. Apte, Senior Advocate with Ms. S.M. Modle for respondent
BMC.
Mr. S.G. Aney, Senior Advocate with Mr. Girish Kulkarni for petitioner
in Writ Petition No.470 of 2005.
Mr.N.R. Prajapati along with Mr. Y.S. Bhate for respondent No.1.
Mr. P.M. Palshikar with Ms. Kavita Poojari for respondent No.4.
Mrs. Anjali Purav for respondent in NMW No.454 of 2010.
CORAM : MOHIT S. SHAH, C.J. &
M.S. SANKLECHA, J.
DATE : 18 JUNE 2013
ORAL ORDER
(PER CHIEF JUSTICE) This Writ Petition challenges the constitutional validity of the Maharashtra State Public Services [Reservation for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), 1 of 16 ::: Downloaded on - 27/08/2013 20:51:31 ::: upa WP-8452-04.sxw Nomadic Tribes, Special Backward Category and Other Backward Classes] Act, 2001 (Maharashtra Act No.VIII of 2004) and the Government Resolution No.BCC-2001/1887/PR. KR.640/01/16-B dated 25 May 2004.
2. When this Writ Petition was called out, Mr.Khambatta, learned Advocate General, appearing for the State of Maharashtra raised a preliminary objection about maintainability of these Writ Petitions. This was on the ground that as per the law laid down by a Bench of Seven Judges of the Supreme Court in L. Chandra Kumar vs Union of India and others, (1997) 3 SCC 261, only the Maharashtra Administrative Tribunal established under the Administrative Tribunals Act, 1985 enacted by the Parliament in exercise of the powers under Article 323A of the Constitution of India is to function as the Court of first instance in respect of the areas of law for which it has been constituted. Further the Court held that even where any challenge is made to the vires of legislation (excepting the legislation under which the Tribunal has been constituted), the litigants will not be able to directly approach the High Court overlooking the jurisdiction of the Tribunal.
3. The learned Advocate General has also relied on the decisions of the Supreme Court in Kendriya Vidyalaya Sangathan and another vs Subhas Sharma, (2002) 4 SCC 145 and Rajeev Kumar and another vs Hemraj Singh Chauhan and others, (2010) 4 SCC 554.
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4. On the other hand, Mr.Rajeev Dhawan and Mr.Aney, learned Senior Counsel for the petitioners, have vehemently opposed the above submissions and made the following submissions :-
(a) This petition was filed in the year 2004 and at that time no such preliminary objection was raised on behalf of the State Government. In fact, when this Petition being Writ Petition No.8542 of 2004 was admitted by the Division Bench of this Court on 6 December 2004, the State Government was represented by the then Advocate General and Rule was issued. This was after hearing the learned Advocates for the parties and no such objection was taken at that time would be clear on perusal of the order, which reads as under :-
"PC :
1. Heard advocates.
2. Rule. Respondents waive notice.
3. Rule on interim relief returnable on 17 th January 2005. State Government is directed to file reply on or before 10th January 2005. Rejoinder, if any, to be filed within one week thereafter."
(b) It is further submitted that after hearing the learned Counsel for the parties, the Division Bench of this Court by an order dated 22 February 2005 took the view that this was not an ordinary service matter and observed as under :-
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"5. ..... We have considered the submission and what is required to be referred to the Tribunal is the dispute regarding service matter. In our prima facie opinion, what arises when implementation of impugned resolution takes place is not a service matter. It is therefore not correct in our opinion, again prima facie that the dispute is likely to or should go before the tribunal. There is yet another aspect which we would like to emphasis and that is what is the extent to which the contentions in this petition would be affecting the entire service class in the State of Maharashtra.
Even if it is assumed that such jurisdiction may be with Tribunal to avoid multiplicity of litigation, to avoid further writ petition flowing out of the order of the Tribunal, relying on the judgment of Chandrakumar's case on which reliance is placed by Shri Anturkar for holding and canvassing that the Tribunal has jurisdiction, keeping this submission open for further argument and adjudication, we feel that we must address ourselves to grant of interim relief."
(c) It is further submitted that after hearing the learned Counsel for the parties extensively, this Court by the above order dated 22 February 2005 granted interim relief staying the implementation of the Government Resolution dated 25 May 2004 which was issued for implementation of the provisions of the above Act. By an order dated 20 April 2005 this Court refused to modify the interim order dated 22 February 2005. The respondent carried the matter in appeal to the Supreme Court which by its order dated 5 August 2005 refused to interfere with the order of this Court dated 20 April 2005.
(d) Thereafter, by order dated 9 March 2007 this Court permitted the promotions to be made to the promotional posts in accordance with the impugned Act except to the extent of 13% 4 of 16 ::: Downloaded on - 27/08/2013 20:51:31 ::: upa WP-8452-04.sxw reserved for denotified tribes except backward classes. However, the State Government carried the matter before the Supreme Court.
Even the Supreme Court vide order dated 28 March 2008 in Petition(s) for Special Leave to Appeal (Civil) No(s) 18534- 18537/2007, while modifying the High Court's order and permitting promotions to be made from amongst the reserved candidates observed, ".... subject to the final decision of the pending writ petition before the High Court". It is, therefore, submitted that the matter was entertained and because of its importance, interim relief was granted and even the Supreme Court expected this Court to hear this Writ Petition on merits.
(e) Reliance is also placed on decisions of the Supreme Court taking the view that once Writ Petition is admitted, the preliminary objection about maintainability or alternative remedy should not be allowed to be raised.
(f) As far as the decision of the Supreme Court in L. Chandra Kumar's (supra) case is concerned, the learned Senior Counsel for the petitioners have placed strong reliance on the decision of the Supreme Court in T.K. Rangarajan vs Government of TN and others, (2003) 6 SCC 581, and particularly the observations made in paragraph 10 of the said decision, which read as under :-
"10. There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this Court and we respectfully
5 of 16 ::: Downloaded on - 27/08/2013 20:51:32 ::: upa WP-8452-04.sxw agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier, because of very very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute."
(g) Learned Counsel also submitted that in this case also large number of employees in the State Government service have been denied their legitimate rights to be promoted to the higher posts only because of the reservations provided under the impugned Act. This is in itself an extra-ordinary situation which would warrant this Court taking up this Writ Petition for final hearing and redress the injustice meted out to the thousands of employees without relegating them to the remedy of approaching the Administrative Tribunal.
5. We have given anxious consideration to the rival submissions on the question of preliminary objection.
6. The Maharashtra Administrative Tribunal has been constituted by Notification issued by the State Government under the provisions of the Administrative Tribunals Act, 1985. The said Act has been enacted in exercise of the powers under Article 323-A of the Constitution of India. As per the provisions of the Administrative Tribunals Act, 1985, as originally enacted, Appeal against the decision of the Tribunal would lie before the Supreme 6 of 16 ::: Downloaded on - 27/08/2013 20:51:32 ::: upa WP-8452-04.sxw Court and the jurisdiction of the High Court was completely ousted. The Supreme Court upheld the constitutional validity of Article 323-A of the Constitution and the aforesaid provisions of the Administrative Tribunals Act, 1985 in S.P. Sampath Kumar vs Union of India and others, (1985) 4 SCC 458. However, the question again came to be re-examined by the Supreme Court in L. Chandra Kumar (supra). After considering the reasons which had appealed to the Supreme Court for upholding the constitutional validity of the Act in Sampath Kumar's case (supra), and after considering functioning of the Tribunal, the Supreme Court laid down the principles in respect of the power of the Tribunal to examine the challenge to the constitutional validity of a legislation in the context of the power of judicial review vested in the High Courts under Article 226/227 of the Constitution of India as being part of the basic structure of the Constitution. The Supreme Court held in terms that the power of judicial review vested in the High Courts under Article 226 and in the Supreme 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.
7. The Supreme Court further held that the power of the Supreme Court under Article 32 of the Constitution and of the High Courts under Articles 226/227 of the Constitution to test the 7 of 16 ::: Downloaded on - 27/08/2013 20:51:32 ::: upa WP-8452-04.sxw validity of legislations against the provisions of the Constitution can also be entrusted to the Administrative Tribunals constituted under legislations framed in exercise of the power under Articles 323-A and 323-B of the Constitution. However, having examined the functioning of the Tribunals, the Supreme Court in Chandra Kumar's case (supra) held that to hold that the Tribunals have no power regarding matters involving constitutional matters would not serve the purpose for which they were constituted. Moreover, all such decisions of the Tribunal will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution will serve two purposes - while saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal and the High Courts will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.
Proceeding on the basis of the above reasoning, the Supreme Court made it clear in paragraphs 93 and 99 in Chandra Kumar's case (supra) that, "the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for the litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."
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8. Again, in paragraph 99 of the decision in L.Chandra Kumar's case (supra), the Supreme Court laid down the following principles :-
"99. ..... .... ..... The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned".
(emphasis supplied)
9. The aforesaid decision of the Supreme Court in L.Chandra Kumar's case (supra) came to be explained by the Supreme Court in its two subsequent decisions in Kendriya Vidyalaya Sangathan (supra) and Rajeev Kumar (supra).
10. In Rajeev Kumar's case (supra), the Supreme Court, after quoting the statements of law made in paragraphs 93 and 99 of the judgment in Chandra Kumar's case (supra), culled out the ratio of the decision in Chandra Kumar's case in the following words :
"11. On a proper reading of the abovequoted two sentences, it is clear that :
(a) The tribunals will function as the only court of first instance in respect of the areas of law for which they have been constituted.
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(b) Even where any challenge is made to the vires of legislation, excepting the legislation under which tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court "overlooking the jurisdiction of the tribunal."
11. After making aforesaid pronouncement, the Supreme Court made the following observations :-
"13. In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which CAT has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with great respect, fell into an error by allowing the appellants to treat the High Court as a court of first instance in respect of their service disputes for adjudication of which CAT has been constituted.
.... .... .....
15. As the appellants cannot approach the High Court by treating it as a court of first instance, their special leave petition before this Court is also incompetent and not maintainable.
16. The principles laid down in L. Chandra Kumar virtually embody a rule of law and in view of Article 141 of the Constitution the same is binding on the High Court. The High Court fell into an error by allowing the appellants to approach it in clear violation of the Constitution Bench judgment of this Court in L. Chandra Kumar."
12. Mr.Rajeev Dhawan, learned Senior Counsel for the Petitioners, however, vehemently submitted that even though the above principles would apply in ordinary cases, there may be exceptional cases where a litigant is not precluded from 10 of 16 ::: Downloaded on - 27/08/2013 20:51:32 ::: upa WP-8452-04.sxw approaching this Court directly in the primary writ jurisdiction of this Court under Article 226 of the Constitution. It is submitted that in T.K. Rangarajan case (supra) where thousands of employees had gone on strike, the Supreme Court took the view that thousands of employees should not be directed to approach Administrative Tribunal as the Tribunal would not be in a position to render justice to the cause and that in very very exceptional circumstances, the High Court may and ought to entertain Writ Petitions and grant appropriate reliefs.
13. It is submitted that in the facts of the present case also the impugned legislation has been causing grave injustice to thousands of employees who are not able to get promotions to the higher posts only on account of reservations made in favour of employees belonging to certain categories and that this impugned legislation affects the entire services of the State Government. It is submitted that it was for the this reason that even after the attention of this Court was invited to L.Chandra Kumar's case (supra) in the year 2004, this Court had decided to entertain the petition and even to grant interim relief. It is also submitted that no such preliminary objection was raised on behalf of the State Government when orders admitting and granting interim relief was passed and that it was only Mr.Anturkar appearing for Intervenor (private employees) who had raised the preliminary objection about jurisdiction. It is also submitted that far from not raising such a preliminary objection, the learned Counsel appearing for the State 11 of 16 ::: Downloaded on - 27/08/2013 20:51:32 ::: upa WP-8452-04.sxw Government on 15 September 2008 requested this Court that all petitions filed by the employees of the Municipal Corporation for Greater Mumbai including BEST officers be heard along with this Writ Petition filed by the employees of the State Government. It is, therefore, submitted that if this Court were not to hear the Writ Petitions on merits and require the petitioners to move the Maharashtra Administrative Tribunal, there would be further delay in the State Government employees getting justice.
14. It is true that, if the preliminary objection had been raised and upheld earlier, the writ petitioner would have moved the Maharashtra Administrative Tribunal at the relevant time.
However, the Division Bench while granting interim relief on 22 February 2005, did not give any final ruling on the preliminary objection, but kept the submissions open for further arguments and adjudication. For this reason, it cannot now be contended by the writ petitioners that the preliminary objection ought not to have been raised or could not have been raised today when the matter is listed for final hearing.
15, Having carefully gone through the decisions of the Supreme Court in L. Chandra Kumar (supra), Kendriya Vidyalaya Sangathan (supra), Rajeev Kumar (supra) as well as in T.K. Rangarajan (supra), we are of the view that this Court will not exercise the jurisdiction to entertain a writ petition as a Court of first instance where Administrative Tribunal has been conferred 12 of 16 ::: Downloaded on - 27/08/2013 20:51:32 ::: upa WP-8452-04.sxw such jurisdiction under the provisions of the Administrative Tribunals Act, 1985 enacted in exercise of the powers under Article 323-A of the Constitution. It is true that in T.K. Rangarajan's case (supra), the Supreme Court, in the facts of that particular case held that because of very very exceptional circumstances that arose in that case, there was no justifiable reason for the High Court not to entertain the petition on account of alternative remedy provided under the Administrative Tribunals Act, 1985.
16. It is, therefore, necessary to refer to those "very very exceptional circumstance" in that case. Paragraphs 2, 3 and 4 indicate those very very exceptional facts, which read as under :-
"2. Unprecedented action of the Tamil Nadu Government terminating the services of all employees who have resorted to strike for their demands was challenged before the High Court of Madras by filing writ petitions under Articles 226/227 of the Constitution. Learned Single Judge by an interim order inter alia directed the State Government that suspension and dismissal of employees without conducting any enquiry be kept in abeyance until further orders and such employees be directed to resume duty. That interim order was challenged by the State Government by filing writ appeals. On behalf of the government employees, writ petitions were filed challenging the validity of the Tamil Nadu Essential Services Maintenance Act, 2002 and also Tamil Nadu Ordinance 3 of 2003.
3. The Division Bench of the High Court set aside the interim order and arrived at the conclusion that without exhausting the alternative remedy of approaching the Administrative Tribunal, writ petitions were not maintainable. It was pointed out to the Court that the total detentions were 2211, out of which 74 were ladies and only 13 of 16 ::: Downloaded on - 27/08/2013 20:51:33 ::: upa WP-8452-04.sxw 165 male and 7 female personnel have so far been enlarged on bail, which reveals the pathetic condition of the arrestees. The arrestees were mainly clerks and subordinate staff. The Court, therefore, directed that those who were arrested and lodged in jails be released on bail.
4. That order is challenged by filing these appeals. For the same reliefs, writ petitions under Article 32 are also filed."
17. As is indicated in paragraph 4, apart from appeals filed against the orders of the High Court, Writ Petitions under Article 32 of the Constitution were also filed before the Supreme Court and, therefore, the decision of the Supreme Court in T.K. Rangarajan case (supra) was rendered in the Appeals along with Writ Petitions under Article 32 of the Constitution. In the facts of the present case, it is true that a large number of employees may have a grievance against denial of or delay in their promotions to the higher posts on the basis of reservations in favour of candidates belonging to certain communities and may be awaiting the result of this petition. However, the very fact that 9 years have passed by since the provisions of the impugned Act were brought into force, it is not possible to hold that the present case is comparable with the facts in T.K. Rangarajan case (supra) and that there is an emergent situation calling for immediate relief.
18. At the same time, having regard to the fact that the pleadings in this Writ Petition is complete, we are of the view that the interests of justice would be served by passing the following order :-
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(a) Instead of requiring the writ petitioners to file fresh Original Application before the Maharashtra Administrative Tribunal, this Writ Petition is returned to the petitioners for presentation before the Maharashtra Administrative Tribunal and it is accordingly directed that the papers of this Writ Petition along with the original records be returned to the writ petitioners Counsel for presenting the same before the Maharashtra Administrative Tribunal within one month from today.
(b) The Maharashtra Administrative Tribunal shall thereafter take up this Writ Petition for final hearing as expeditiously as possible and preferably commence final hearing within one month from the date of receipt of the papers and the original records of these matters, without raising any objection about limitation or any other technical and/or administrative issues.
(c) For all purposes, the Maharashtra Administrative Tribunal shall treat this Writ Petition as transferred Original Application. Of course, the writ petitioners will be at liberty to make incidental amendments to this Writ Petition to 15 of 16 ::: Downloaded on - 27/08/2013 20:51:33 ::: upa WP-8452-04.sxw state that the Writ Petitions are presented before the Maharashtra Administrative Tribunal as Original Applications.
(d) In view of the fact that this Petition is being transferred, no objection on account of limitation and/or delay in filing the applications would be entertained by the Maharashtra Administrative Tribunal. As a matter of abundant caution, we condone the delay, if any, in filing the Petition before the Maharashtra Administrative Tribunal.
(e) We request the Maharashtra Administrative Tribunal to conclude the final hearing within three months from the date of receipt of the papers of this Writ Petition and to render the decision as expeditiously as possible and in any case within six months from the date of receipt of papers in these Writ Petitions.
18. Writ Petition is accordingly disposed of.
Maharashtra Administrative Tribunal to act on an authenticated copy of this order.
CHIEF JUSTICE M.S. SANKLECHA, J.
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