TMI Blog1986 (12) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances to meet which the innovation has been brought about. Thus barring of the jurisdiction of the High Court can indeed not be a valid ground of attack. - 12437, 12460 of 1985, 238 of 1986 - - - Dated:- 9-12-1986 - P.N. Bhagwati, C.J., Ranganath Misra, V. Khalid, G.L. Oza, M.M. Dutt, JJ. S/Shri K. Parasaran, Attorney General, V.P. Sarthy, Sr. Advocate and Ms. A Subhashini, Adv. with them for the Respondents. Mr. S.K. Sinha and Mr. S.K. Verma, Advs. for the Respondents. [Judgment per : Bhagwati, C.J.]. - I am in entire agreement with the judgment prepared by my learned Brother Ranganath Misra, but since the questions, involved in these writ petitions are of seminal importance affecting, as they do, the structure of the judicial system and the principle of independence of the Judiciary, I think I would be failing in my duty if I did not add a few words of my own. 2. There are two questions which arise for consideration in these writ petitions and they have been succinctly set out in the judgment of Ranganath Misra, J. The first question is whether the exclusion of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution in service m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legality off its own action. So also if the legislature makes a law and a dispute arises whether in making the law, the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be left to the determination of the legislature. The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. The judiciary is constituted the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of Government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. It is also a basic principle of the Rule of Law which permeates every provision of the Constitution and which forms its every core and essence that the exercise of power by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that clause 4 of the Article 368 is unconstitutional and void as damaging the basic structure of the Constitution. 4. It is undoubtedly true that my judgment in Minerva Mills Ltd. case (supra) was a minority judgment but so far as this aspect is concerned, the majority Judges also took the same view and held that judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution and it is equally clear from the same decision that though judicial review cannot be altogether abrogated by Parliament by amending the Constitution in exercise of its constituent power, Parliament can certainly, without in any way violating the basic structure doctrine, set up effective alternative institutional mechanisms or arrangements for judicial review. The basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e outside the constituent power of Parliament. It must, therefore, be read as implicit in this constitutional amendment that the law excluding the jurisdiction of the High Court under Articles 226 and 227 permissible under it must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the High Court under Articles 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being within the ambit and coverage of clause (2)(d) of Article 323A, only if it can be shown that the Administrative Tribunal set up under the impugned Act is equally efficacious as the High Court, so far as the power of judicial review over service matter is concerned. We must, therefore, address ourselves to the question whether the Administrative Tribunal established under the impugned Act can be regarded as equally effective and efficacious in exercising the power of judicial review as the High Court acting under Articles 226 and 227 of the Constitution. 6. It is necessary to bear in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal questions involved in service matters. But substituting the Chief Justice of a High Court by a Chairman of the administrative Tribunal who has merely held the post of a Secretary to the Government and who has no legal or judicial experience would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the High Court. We cannot afford to forget that it is the High Court which is being supplanted by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity. Of course, I must make it clear that when I say this, I do not wish to cast any reflection on the members of the Civil Services because fortunately we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and who have remarkable capacity to resolve and overcome administrative problems of great complexity. But what is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience. I am, therefore, of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no exception can be taken to this provision, because even so far as Judges of the High Court are concerned, their appointment is required to be made by the President inter alia in consultation with the Chief Justice of India. But so far as the appointment of Chairman, Vice-Chairman and administrative members is concerned, the sole and exclusive power to make such appointment is conferred on the Government under the inpugned Act. There is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf. The result is that it is left to the absolute unfettered discretion of the Government to appoint such person or persons as it likes as Chairman, Vice-Chairman and administrative members of the Administrative Tribunal. Now it may be noted that almost all cases in regard to service matters which come before the Administrative Tribunal would be against the Government or any of its officers and it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the executive to appoint the Chairman, Vice-Chairman and administrative members, if a judicial member or an administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The Constitution makers have made anxious provision to secure total independence of the judiciary from executive pressure or influence. Obviously, therefore, if the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Articles 226 and 227 is taken away and vested in the Administrative Tribunal, the same independence from possibility of executive pressure or influence must also be ensured to the Chairman, Vice-Chairman and members of the Administrative Tribunal. Or else the Administrative Tribunal would cease to be an equally effective and efficacious substitute for the High Court and the provisions of the impugned Act would be rendered invalid. I am, therefore, of the view that the appointment of Chairman, Vice-Chairman and administrative members should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be invited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r adjudication. Indisputably the Act has been framed within the ambit of Article 323A which was brought into the Constitution by the Forty-Second Amendment Act in 1977. In exercise of power vested under Section 1(3) of the Act, the Central Government appointed 1-11-1985 as the date from which the Act would come into force. Thereupon Sampat Kumar and others (W.P. 12460 of 1985) moved this Court and the connected matters were brought before this Court or different High Courts which have since been transferred to this Court to be analogously heard. On 31.10.1985 a Division Bench of this Court gave certain interim directions including stay of transfer of the pending applications under Article 32 which were liable to be transferred to the Tribunal and also for continuance of exercise of jurisdiction under Article 32 in regard to disputes covered under the Act notwithstanding the bar provided in Section 28. 11. In the writ application as presented, the main challenge was to the abolition of the jurisdiction of this Court under Article 32 in respect of specified service disputes. Challenge was also raised against the taking away of the jurisdiction of the High Court under Articles 226 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er oral arguments were over, learned Attorney General, after obtaining instructions from the Central Government filed a memorandum to the effect that Section 2(q) of the Act would be suitably amended so as to exclude officers and servants in the employment of the Supreme Court and members and staff of the subordinate judiciary from the purview of the Act. In the same memorandum it has also been said that Government would arrange for sittings of the benches of the Tribunal at the seat or seats of each High Court on the basis that sittings will include circuit sittings and the details thereof would be worked out by the Chairman or the Vice-Chairman concerned. 12. With these concessions made by the learned Attorney General, only two aspects remain to be dealt with by us, namely, those covered by the first and the second contentions. 13. Strong reliance was placed on the judgment of Bhagwati, J. (one of us - presently the learned Chief Justice) in Minerva Mills Ltd. ors. v. Union of India Ors. - (1981) 1 SCR 206, 287 where it was said: The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a half decades shows have in exercise of the power of judicial review played a definite and positive role in the matter of preservation of fundamental and other rights and in keeping administrative action under reasonable control. In these thirty-six years following the enforcement of the Constitution, not only has India s population been more than doubled but also the number of litigations before the courts including the High Courts has greatly increased. As the pendency in the High Courts increased and soon became the pressing problem of backlog, the nation s attention came to be bestowed on this aspect. Ways and means to relieve the High Courts of the load began to engage the attention of the Government at the Centre as also in the Various States. As early as 1969, a Committee was set up by the Central Government under the chairmanship of Mr. Justice Shah of this Court to make recommendations suggesting ways and means for effective, expeditious and satisfactory disposal of matters relating to service disputes of Government servants as it was found that a sizable portion of pending litigations related to this category. The Committee recommended the setting up of an independen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions of service, including the vexed question of seniority, may save the courts from the avalanche of writ petitions and appeals in service matters. The proceedings of such Tribunals can have the merit of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many..... 14. In the meantime the problem of the backlog of cases in the High Courts becomes more acute and pressing and came to be further discussed in Parliament and in conferences and seminars. Ultimately in January 1985, both Houses of Parliament passed the Bill and with the Presidential assent on 27th February, 1985, the law enabling the long awaited Tribunal to be constituted came into existence. As already noticed, the Central Government notified the Act to come into force with effect from 1-11-1985. 15. Exclusion of the jurisdiction of the High Courts in service matters and its propriety as also validity have thus to be examined in the background indicated above. We have already seen that judicial review by this Court is left wholly unaffected and thus there is a forum where matters of importance and grave injustice can be brought for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and is entitled to exercise the powers thereof. The High Courts have been functioning over a century and a quarter and until the Federal Court was established under the Government of India Act, 1935, used to be the highest courts within their respective jurisdiction subject to an appeal to the Privy Council in a limited category of cases. In this long period of about six scores of years, the High Courts have played their role effectively, efficiently as also satisfactorily. The litigant in this country has seasoned himself to look upto the High Court as the unfailing protector of his poerson, property and honour. The institution has served its purpose very well and the commonman has thus come to repose great confidence therein. Disciplined, independent and trained Judged well-versed in law and working with all openness in an unattached and objective manner have ensured dispensation of justice over the years. Aggrieved people approach the Court - the social mechanism to act as the arbiter - not under legal obligation but under the belief and faith that justice shall be done to them and the State s authorities would implement the decision of the Court. It is, therefore, of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of India or any other post under the Central or the State Government carrying a scale of pay which is not less than that of a Joint Secretary to Government of India. So far as the chairman is concerned, we are of the view that ordinarily a retiring or retired Chief Justice of a High Court or when such a person is not available, a Senior Judge of proved ability either in office or retired should be appointed. That office should for all practical purposes be equated with the office of Chief Justice of a High Court. We must immediately point out that we have no bias, in any manner, against Members of the Service. Some of them do exhibit great candour, wisdom, capacity to deal with intricate problems with understanding, detachment and objectiveness but judicial discipline generated by experience and training in an adequate dose is, in our opinion, a necessary qualification for the post of Chairman. We agree that a Vice-Chairman with these qualifications and experience of two years may be considered for appointment as chairman but in order that the Tribunal may be acceptable to the litigants who are themselves members of the various services, Section 6(l)(c) should be omitted. We d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , held by them before joining the Tribunal and, as such, there would be no scope for their return to the place or places from where they come. A five year period is not a long one. Ordinarily some time would be taken for most of the members to get used to the service-jurisprudence and when the period is only five years, many would have to go out by the time they are fully acquainted with the law and have good grip over the job. To require retirement at the end of five years is thus neither convenient to the person selected for the job nor expedient to the scheme. At the hearing, learned Attorney-General referred to the case of a member of the Public Service Commission who is appointed for a term and even suffers the disqualification in the matter of further employment. We do not think that is a comparable situation. On the other hand, membership in other high-powered Tribunals like the Income-tax Appellate Tribunal or the Tribunal under the Customs Act can be referred to. When amendments to the Act are undertaken, this aspect of the matter deserves to be considered, particularly because the choice in that event would be wide leaving scope for proper selection to be made. 20. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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