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11. Yet another development, as has been noted in the judgment in L. Chandra Kumar was that a Full Bench of the Andhra Pradesh High Court in Sakinala Harinath v. State of Andhra Pradesh (1994 (1) APLJ (HC) 1 declared Article 323A (2) (d) of the Constitution as unconstitutional to the extent it empowered Parliament to exclude the jurisdiction of the High Courts under Article 226 of the Constitution; additionally, Section 28 of the AT Act was held to be to unconstitutional to the extent it divested the High Courts of jurisdiction under Article 226 of the Constitution in relation to service matters. Additionally it was held that the Constitutional Courts i.e. the High Courts and the Supreme Court were alone competent to exercise the power of judicial review to pronounce upon the constitutional validity of statutory provisions and rules. Accordingly, the decision of the Supreme Court in S.P.Sampath Kumar (supra) was held to be 'per incuriam' and not binding on the High Courts. The Full Bench of the AP High Court noted that in any event the issue of constitutionality of Article 323- A (2) (d) was not in question in Sampath Kumar (supra) and, therefore, the said decision could not be held to be an authority on that aspect. The Full Bench of the AP High Court in Sakinala Harinath (supra) further held that the remedy of an SLP under Article 136 to the Supreme Court was not a real safeguard and the jurisdiction of the Supreme Court under Article 32 of the Constitution was also not a help in such matters. Accordingly, the AP High Court held that although the judicial power could be vested in a Court or a Tribunal, the power of judicial review of the High Courts under Article 226 of the Constitution could not be excluded even by the Constitution.

65. Therefore, the word 'may' is used both in Articles 323A (1) as well as Article 323A (2), underscores the nature of the provision being directory and not mandatory. Again, this gets reflected in the wording of Sections 4 (1) and 4 (2) of the AT Act which read thus:

―4. Establishment of Administrative Tribunals.--

(1) The Central Government shall, by notification, establish an Administrative Tribunal, to be known as the Central Administrative Tribunal, to exercise the jurisdiction, powers and authority conferred on the Central Administrative Tribunal by or under this Act.

67. While the decisions in Sampath Kumar and L. Chandra Kumar do discuss the efficacy of the CAT and the SATs, there is nothing in those decisions to say that an SAT, once established, cannot be abolished. In other words, the decisions in Sampath Kumar and L. Chandra Kumar do not suggest that a State Government, which may have initially felt the need to establish an SAT, cannot subsequently decide to re-visit that decision and ask for its abolition.

68. The other decisions cited by counsel for the Petitioners are also not supportive of the propositions advanced by them on the interpretation of Article 323-A (1) of the Constitution. The decision in Madras Bar Association (supra) focused on the independence and efficacy of the National Company Law Tribunal, as an adjudicatory body, insofar as it was expected to take over the jurisdiction and functions of a Company Court in the High Court in the matter of winding up of, and mergers and amalgamations of companies. The question whether a statutory Tribunal set up in terms of a law under Article 323-A (1) could be abolished was not an issue that arose there. The decisions in Gujarat Urja Vikas Nigam Limited (supra) or even Rojer Mathew (supra) are also not helpful in understanding the scope and ambit of Article 323A (1) of the Constitution of India vis-à-vis the issue of the abolition of the Tribunals established thereunder. The central question in the latter two decisions was whether it was desirable to have provisions in the statutes creating such Tribunals which envisage a direct appeal to the Supreme Court from the decisions of those Tribunals. The question there was not whether the word 'may' in Article 323A (1) was directory or mandatory or whether under Section 4 (2) of the AT Act a State Government which had requested the Central Government to establish an SAT could at a subsequent point in time withdraw such request and ask for rescinding the notification establishing the SAT.

77. All of the above factors have to be kept in view while interpreting the word 'may' occurring in Article 323A (1) of the Constitution. When viewed in that context it cannot be said that Article 323A (1) was intended to make it mandatory for either the Central Government or the State Government to establish an SAT irrespective of the actual need for such a tribunal and for it to be effective in achieving the object of securing fair and speedy justice.