ORDER
1. In this Writ Petition in which the petitioner, a member of the Indian Administrative Service (IAS for short), has questioned the constitutional validity of Clauses (b) and (c) of the proviso to Rule 5(a) of the Indian Administrative Service (Pay) Rules, 1954, (‘the Rules’ for short), the following question of law arises for consideration :
“Whether on the coming into force of the Administrative Tribunals Act, 1985 (‘the Act’ for short) and the establishment of the Central Administrative Tribunal, the jurisdiction of the High Court under Article 226 of the Constitution of India to retain or entertain petitions presented under that Article before it, challenging the constitutional validity of any law regulating recruitment and conditions of persons appointed to public services and posts in connection with the affairs of the Union, and decide such petitions stood excluded and got vested in the Central Administrative Tribunal ?”
2. The facts of the case, in brief, are as follows :
(i) The petitioner is a member of the Indian Administrative Service, borne on the Karnataka Cadre. By order dated 8th March, 1982 of the State Government, he was appointed as the Commissioner of the Corporation of the City of Bangalore, which is a non-cadre post, declared as equivalent in rank to that of the Divisional Commissioner included in Schedule – III of the Rules. He assumed office of the Commissioner on 12th March, 1982. On this taking charge of the said post, pay slip was given to him by the Accountant General, permitting him to draw the initial salary of Rs. 2,500/- in the Supertime pay scale of Rs. 2500-125/2-2750. After the expiry of two years from the date of his appointment to the said post on 8th March, 1984, the petitioner claimed by his letter dated 19th March, 1984 that he should be given the first increment in the said pay scale. This request of the petitioner was turned down in view of clauses (b) and (c) of the proviso to Rule 5(a) of the Rules. It was pointed out that according to the above Rules, the petitioner would be entitled to count his service for purpose of drawing increments in the Supertime scale only from the date on which his junior in the I.A.S. was appointed to the Supertime scale and as his junior Sri G. Muniyappa was appointed to the cadre post in Super-time scale on 28th February, 1983, the petitioner would be entitled to count his service only from the said date for the purpose of grant of increment in the Super-time scale. The petitioner does not dispute that the above view taken by the Accountant General is correct according to the Rule referred to above. The petitioner, however, has challenged the constitutional validity of the said provision on the ground that as the provision denies to a member of the service appointed to an ex-cadre post the benefit of a part of the service rendered by him in a Supertime scale post, i.e., till the date on which a junior of his is promoted to a cadre post to which the concerned ex-cadre post is declared equivalent, for the purpose of eligibility for drawing increment, is discriminatory and therefore violative of Articles 14 and 16(1) of the Constitution. This Writ Petition was prescribed before this Court on 11th September, 1984.
(II) During the pendency of this Writ Petition, the Administrative Tribunals Act, 1985 (Act No. 13 of 1985) enacted by the Parliament, pursuant to the power given to it under Article 323A of the Constitution, came into force. The Central Government constituted the Central Administrative Tribunal w.e.f. 1st November, 1985 under Section 4(1) of the Act and a Bench of the said Tribunal has been established in the State of Karnataka, at Bangalore. Section 14 of the Act specifies the jurisdiction, powers and authority of the Central Administrative Tribunal. According to the said provision, all matters relating to the grievance of civil servants regarding recruitment to any All India Service and all service matters concerning members of All India Service and holding civil posts under the Union, which were prior to its coming into existence, exercisable by all the Courts except the Supreme Court of India are vested in the said Tribunal. Section 15 is a similar provision regarding the jurisdiction and powers of a State Administrative Tribunal constituted under Section 4(2) of the Act in respect of Members of State Civil Service of the concerned State. Section 28 of the Act provides for exclusion of jurisdiction of all Courts except the Supreme Court under Article 136 of the Constitution, in respect of all matters which fall within the jurisdiction of the Central and the State Administrative Tribunal under Sections 14 and 15 respectively. Section 29 of the Act provides for transfer of every suit or other proceedings pending before any Court or other Authority immediately before the date of the establishment of a Tribunal, to the Central Administrative Tribunal or the State Administrative Tribunal as the case may be. In view of the provisions contained in Sections 14, 28 and 29 of the Act, the question set out first arises for consideration.
3. As the question is of vital importance affecting the jurisdiction of this Court under Articles 226 and 228 of the Constitution and the answer to the question would apply equally in respect of the jurisdiction of the Karnataka Administrative Tribunal, when the matter came up on 20th October, 1986, Sri Santhosh Hegde, the learned Advocate General, was directed to appear in the case and to place his views on the question and the matter was adjourned to 4th November, 1986. Accordingly, the learned Advocate General has made his submissions. For the reasons furnished by him, which are set out in detail later in this order, he submitted that the answer to the question should be in the negative. This was also the submission made by the learned Counsel for the Petitioner Sri G. P. Shivaprakash.
4. As this question arises in several other cases also, I permitted such of the Advocates who were desirous of addressing arguments with reference to the question, for an against, to make their submissions. Accordingly, Sarvashri K. R. D. Karanth, B. Veerabhadrappa, N. B. Bhat, Mahadeva Menon and A. V. Albal, made their submissions. All of them supported the stand taken by the learned Advocate General and the learned Counsel for the Petitioner. Sri Shivashankar Bhat, learned Senior Standing Counsel for the Central Government, appearing for the first respondent made his submission which according to him could constitute the basis for answering the question in the affirmative.
5. (1) Before considering the contentions urged by the learned Counsel appearing for the parties, it is necessary to set out the provisions of Articles 323A and 323B of the Constitution, which were introduced into the Constitution by Section 46 of the Constitution 42nd Amendment Act, 1976 as also to set out the salient aspects of the Act. The two Articles read :
Administrative Tribunals :
“323A (1) Parliament may, by law, provide for the adjudication or trial by the administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government.
(2) A law made under Clause (1) may –
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in Clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any Court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are bases had arisen after such establishment;
(f) repeal or amend any order made by the President under Clause (3) of article 371D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of such tribunals.
(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
Tribunals for other matters.
323-B (1) appropriate legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in Clause (2) with respect to which such legislature has power to make laws.
(2) The matters referred to in Clause (1) are the following, namely :-
(a) levy, assessment, collection and enforcement of any tax;
(b) Foreign exchange, import and export across customs frontiers;
(c) Industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in Article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;
(e) ceiling on urban property;
(f) election to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in Article 329 and Article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;
(h) offences against laws with respect to any of the matters specified in sub-clauses (a) to (g) and fees in respect of any of those matters;
(i) any matters incidental to any of the matters specified in sub-clause (a) to (h).
(3) A law made under Clause (1) may –
(a) provide for the establishment of a hierarchy of tribunals;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136, with respect to all or any of the matters falling within the jurisdiction of the said tribunals;
(e) provide for the transfer to each such tribunal of any cases pending before any Court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such Tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate Legislature may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of such tribunals.
(4) The provisions of this article shall have effect notwithstanding anything in any other provisions of this Constitution or in any other law for the time being in force.
Explanation : In this article, “appropriate Legislature”, in relation to any matter means Parliament or, as the case may be, a State Legislature competent to make laws with respect to such matter in accordance with the provisions of Part XI.”
Article 323 provides for the constitution of Administrative Tribunals for adjudicating disputes and complaints with respect to recruitment and conditions of service of civil servants of the Union as well as of the States. Clause 2(d) of the Article, provides that the Parliament may by such law exclude the jurisdiction of all Courts except the jurisdiction of the Supreme Court under Article 136 of the Constitution with respect to the disputes and complaints referred to in clause (1). Clause (3) provides that the article would have effect notwithstanding any other provision in the Constitution. Article 323B provides for constitution of Tribunals in respect of various matters specified in clause (2) thereof. The said clause also provides that the constitution of each of the Tribunals contemplated by the article is for adjudication of disputes, complaints or offences with respect to all or any of the matters specified in clause (2). Clause 3(d) of Article 323B provides for exclusion of jurisdiction of all Courts except the jurisdiction of the Supreme Court under Article 136 with respect to all or any of the matters falling within the jurisdiction of the Tribunals so constituted. Clause (4) is similar to clause (3) of Article 323A and gives overriding effect to the Article.
(2) It is pursuant to the power conferred on the Parliament under Article 323A, the Act has been enacted. This is evident from the wording of the Preamble. The wording of the Preamble to the Act when the Act was first enacted repeated verbatim the language of Article 323A. By Act 19 of 1986, the Preamble was amended making a specific reference to Article 323A of the Constitution. The Preamble, as amended, reads :
“An Act to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local or other Authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government in pursuance of Article 323A of the Constitution and for matters connected therewith or incidental thereto.”
The salient aspects of the Act are as below :
Section 2(q) of the Act defines ‘service matters’. It reads :
“‘service matters’, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation (or society) owned or controlled by the Government, as respects –
(i) remuneration (including allowances, pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matters whatsoever.”
Sub-section (1) of Section 4 of the Act provides for the establishment of Central Administrative Tribunals. Sub-section (2) of Section 4 of the Act empowers the Central Government to establish an Administrative Tribunal for any State on receipt of such a request from the State Government. Section 5 of the Act provides for the composition of Tribunals and Benches thereof. According to sub-section (1) of Section 5 of the Act, each Tribunal shall consist of a Chairman and such number of Vice-Chairman and other members as the appropriate Government may deem fit and subject to the provisions of the Act, the jurisdiction, powers and authority of the Tribunal may be exercised by the Benches thereof. Section 5(2) provides that a Bench shall consist of one judicial member and an administrative member. Section 5(4)(b) authorities the Chairman to transfer the Vice-Chairman of a Bench or other member thereof to any other Bench. Section 6(1), (2) and (3) of the Act prescribed the qualification for appointing a Chairman. Vice-Chairman and judicial member and administrative member. It reads :
“6. Qualification for appointing Chairman, Vice-Chairman or other members –
(1) A person shall not be qualified for appointment as the Chairman unless he –
(a) is, or has been, a Judge of a High Court; or
(b) has, for at least two years, held the office of Vice-Chairman; or
(c) has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India.
(2) A person shall not be qualified for appointment as the Vice-Chairman unless he –
(b) is, or has been, a Judge of a High Court; or
(b) has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than of a Secretary to the Government of India; or
(bb) has, for at least five years, held the post of an Additional Secretary to the Government of India or any other post under Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or
(c) has, for a period of not less than three years, held office as a judicial Member or an Administrative Member.
(3) A person shall not be qualified for appointment as a Judicial Member unless he –
(a) is, or has been, or is qualified to be, a Judge of a High Court; or
(b) has been a member of the Indian Legal Service and has held a post in Grade I of that service for at least three years.
(3A) A person shall not be qualified for appointment as an Administrative Member unless he –
(a) has, for at least two years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or
(b) has, for at least three years, held the post of a Joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India;
and shall, in either case, have adequate administrative experience.”
Sub-section (4) of Section 6 of the Act designates President as the appointing authority to appoint Chairman, Vice-Chairman and Members of the Central as well as the State Tribunals. Section 6(7) provides that appointment of Chairman or Vice-Chairman or Member possessing the qualification specified in sub-section (3) of Section 6 should be made only after consultation with the Chief Justice of India. Section 8 of the Act fixes the tenure of office of Chairman, Vice-Chairman as five years or 65 years of age whichever is earlier and of the Member as five years or 62 years of age whichever is earlier. Section 9 provides for the procedure for resignation and removal of Chairman, Vice-Chairman and other members of Tribunal. Section 4 of the Act, which confers jurisdiction, powers and authority on the Central Administrative Tribunal reads :
“14. Jurisdiction, powers and authority of the Central Administrative Tribunal : (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to –
(a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by civilian;
(b) all service matters concerning :-
i) a member of any All-India Service; or
ii) a person not being a member of an All-India Service or person referred to in Clause (c) appointed to any civil service to the Union or any civil post under the Union; or
iii) a civilian not being a member of an All-India Service or a person referred to in Clause (c) appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government;
(c) All service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) or Clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of the Central Government for such appointment.”
(d) Section 15 of the Act is similarly worded and specifies powers and authority of State Administrative Tribunals in relation to service matters and recruitment to State Civil Services and posts. Section 17 of the Act confers power on the Tribunal to punish for contempt of itself in the same manner as the High Court has under the provisions to the Contempt of Courts Act. Section 18 of the Act provides for distribution of business amongst the Benches. Clause (1) of Section 18 provides that the power to distribute the work could be made by a Notification by the appropriate Government. Clause (2) of Section 18 provides that if any question arises as to whether any matter falls within the purview of the business allocated to a Bench of a Tribunal, the decision of the Chairman thereon, shall be final. Section 19 provides for making the applications before the Tribunals. Section 20 provides that ordinarily the Tribunal shall not admit an application unless the applicant has exhausted the remedy available under the Service Rules. Section 21 prescribes the period of limitation as one year for making an application from the date on which the final order was made. Section 22 prescribes the procedure and powers of the Tribunals. According to the said provision, the Tribunal is not bound by the procedure laid down by the C.P.C., but it is required to act in conformity with the rules of natural justice. Sub-section (3) of Section 22 confers on the Tribunal the power available to a Civil Court under the C.P.C. in respect of matters specified in clauses (a) to (i) thereof. Section 23 provides that every applicant before the Tribunal has a right to take the assistance of a legal practitioner. Under Section 24, normally, the Tribunal cannot pass any interim order unless copies of the application are served on the opposite parties and opportunity is given to such parties of being heard, but under certain circumstances the Tribunal can dispense with the above requirement and grant an interim order for a period not exceeding 14 days. Section 25 of the Act confers power on the Chairman to transfer cases from one Bench to another. Section 26 provides that the decision of the Bench shall be taken by majority. Section 27 provides for the execution of the orders of the Tribunal. Section 28 of the Act provides for exclusion of jurisdiction of all Courts except the Supreme Court under Article 136 of the Constitution and Section 29 provides for transfer of all pending cases before any Court which falls within the jurisdiction of the Tribunal under Section 28 of the Act. Sections 28 and 29 read :
“28. Exclusion of jurisdiction of Courts except the Supreme Court :- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matter concerning members of any Service, or persons appointed to any Service or post, no Court except –
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force.
shall have, or be entitled to exercise any jurisdiction, powers of authority in relation to such recruitment or matters concerning such recruitment or such service matters.”
“29. (1) Transfer of pending cases :- Every suit or other proceeding pending before any court or other authority immediately before date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal :
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.
(2) Every suit or other proceeding pending before a court or other authority immediately before the date with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation or society, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after the said date, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal.
Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.”
6. It is common ground that the answer to the question, which arises for consideration in this case, depends upon the true meaning of the words ‘disputes and complaints’ used in Article 323A of the Constitution, for the reason that it is pursuant to the said Article the Parliament has enacted the Act, providing for the establishment of Administrative Tribunals for the purpose of adjudication of disputes and complaints relating to recruitment and conditions of service of Civil Servants as clearly indicated in the Preamble. Therefore, the jurisdiction, power and authority conferred on the Tribunal must necessarily fall within the scope and ambit of Article 323A of the Constitution. In other words, the ambit of the expressions ‘Service matters’ defined in Section 2(r) of the Act and of the jurisdiction, power and authority conferred on the Tribunal under Section 14 or 15 of the Act and of exclusion of jurisdiction of other Courts provided for under Sections 28 and 29 of the Act must also be ascertained only having due regard to the meaning of the words ‘disputes and complaints’ used in Article 323A of the Constitution. It is also pertinent to note that the provision for exclusion of jurisdiction under clause (d) is expressly stated to be only with respect to the disputes and complaints referred to in clause (1).
7. The submissions made by Shri G. P. Shivaprakash, learned Counsel for the Petitioner, are as follows :- Disputes and complaints for the adjudication of which an Administrative Tribunal could be constituted under Article 323A was in respect of disputes and complaints arising out of violation of the law regulating the conditions of service or recruitment of civil servants. Such law could be either by or under an Act of Legislature or the Rules made under an Act of Legislature or by the Rules made by the President or the Governor, as the case may be, under the proviso to Article 309 of the Constitution or in the absence of law made by the appropriate Legislature or Rules made by the President or the Governor, as the case may be, by an order made by the appropriate Government in exercise of its executive power which is co-existance with that of the power of the Legislature. A question as to whether any such law so enacted or the rule or order so made, which regulates the conditions of service of civil servant, is itself void or invalid on the ground that it is violative of the provisions of the Constitution, does not fall within the expression ‘disputes and complaints relating to service matters for the adjudication of which Tribunal is required to be constituted. There is no warrant for the interpretation of Article 323A or the provisions of the Act so as to exclude the jurisdiction conferred on the High Court under Article 226 of the Constitution which undoubtedly includes the power of judicial review of legislation with reference to the constitutional framework and the restrictions and conditions imposed on the Legislature and/or the executive by the provisions of the Constitution. Therefore, on the coming into force of the Act and the establishment of the Central Administrative Tribunal, the jurisdiction of the High Court under Article 226 of the Constitution is not ousted in so far it relates to judicial review of legislation pertaining to service matters. The provisions of the Act do not confer any power on the Central or State Administrative Tribunal to decide constitutional validity of the laws.
8. Sri Shivshankar Bhat, learned Senior Standing Counsel for the Central Government, submitted that even the question as to whether a provision of law regulating the condition of service or recruitment is constitutionally valid or not, could also be regarded as a dispute, or a complaint to the extent the said provision violates any constitutional provision. If that was so, the Tribunal constituted pursuant to the specific power given under Article 323A could exercise such jurisdiction and as the power of deciding constitutional validity of the provisions of any law is vested on the High Court by Article 226 of the Constitution that power could be exercised by the Tribunal and consequently the constitutional jurisdiction of the High Court to that extent gets automatically excluded in view of clauses 2(d) and (3) of Article 323A. The Article saves only the jurisdiction of the Supreme Court under Article 136.
9. The learned Advocate General, however, maintained, that except the Supreme Court and the High Courts established under the Constitution on whom the jurisdiction to decide constitutional validity of any law is conferred by the provisions of the Constitution themselves, no other Court or Tribunal has got the power to decide the constitutional validity of any law and the provisions of Article 323A did not make any departure from that basic and inviolable scheme under the Constitution. Elaborating his submission, he said as follows : Under the scheme of the Constitution, the power and responsibility to decide the constitutional validity of the laws is exclusively vested in the Supreme Court and the High Courts established by the Constitution itself. The qualification of persons eligible to be appointed as Judges of the High Court and the method and procedure for appointment and the essential conditions of service of the Judges are all prescribed by the Constitution itself. Further, the security of tenure of the Judges of the High Court is ensured by Article 217(1)(b) of the Constitution, accordingly to which it is the same as the security of tenure of the Judges of the Supreme Court vide Article 124(4) of the Constitution. Article 226 confers jurisdiction on the High Court to issue prerogative Writs or to make order for the enforcement of fundamental rights and for any other purpose. This power includes both power of judicial review of administrative action as also judicial review of Legislative action of the State and to issue Writs appropriate to the case concerned. Article 228 of the Constitution clearly indicates that the power and obligation to decide the constitutional validity of the laws is exclusively conferred and imposed on the High Courts. (See Raja Ganga Pratap Singh v. Allahabad Bank Limited) (AIR) 1958 SC 293. Under the provisions of the Act, person who is, or is eligible to be appointed as a Judge of the High Court is made eligible to be appointed to the Tribunal. But persons who are not Judges of the High Court, who do not possess the qualification to be appointed as Judges of the High Court, who had held civil posts of the stature referred to in Section 6 of the Act are eligible to be appointed as Members of the Tribunal. Further, as far as the security of tenure is concerned, a member of the Tribunal could be removed by the President if such member is found guilty of any misbehaviour on an enquiry to be held by a Supreme Court Judge, nominated by the President. It is impossible to attribute an intention to the Parliament to confer the power to decide the constitutional validity of the laws on a Tribunal to be established and constituted by the executive under an Act of Legislature. In this behalf, it is pertinent to refer to Article 323B, which is similarly worded and introduced to the Constitution by Constitution 42nd Amendment Act. Under that Article the power to constitute Tribunals in respect of matters specified in the said Article could be exercised either by the Parliament or by the Legislature of the State concerned. Whatever interpretation is given to Article 323A, in view of the similarity of wordings, would equally be applicable to Article 323B. If Article 323A were to be understood as conferring jurisdiction on the Parliament to exclude jurisdiction of the High Courts under Articles 226 and 228 of the Constitution relating to the decision on questions of constitutional validity of the laws, it would mean any Legislature of a State would also have the power to impair the jurisdiction of the High Court conferred by Article 226 in that behalf. It could not be, and was not, the intention of the Parliament to arm the State Legislature with the power to exclude the jurisdiction of the High Courts conferred by the Constitution to decide the constitutional validity of the laws and confer it on a Tribunal to be constituted under a law enacted by it. Further, it is also pertinent to note that a Tribunal constituted within the territory of a State cannot be completely outside the purview of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. Therefore, even on the basis that in respect of specified matters referred to in Articles 323A and 323B, the intention of the Parliament was to provide for the establishment of a Tribunal to decide cases whose decision would be final in the specified cases subject only to the appellate jurisdiction of the Supreme Court under Article 136 of the Constitution so as to ensure speedy disposal of such disputes and avoiding multiplicity of proceedings, it cannot have the effect of depriving the High Courts of their jurisdiction under Articles 226 and 227 of the Constitution to ensure that all Court and Tribunals within the territorial limits of the High Court in respect of which it exercises jurisdiction, do not exceed their jurisdiction. He said that if in a given case, the Tribunal constituted under Article 323A or 323B entertains a case which is not within its jurisdiction and a writ of prohibition is sought for from the High Court to prevent the Tribunal from proceeding with the case, the High Court not only would have the power, but also would be under a duty to issue a writ of prohibition preventing such Tribunal from exercising jurisdiction not vested in it. This is evident from a comparison of Articles 323A and 323B, with Clause (7) of Article 371D which provides for exclusion of power of superintendence of the High Court of Andhra Pradesh over the Andhra Administrative Tribunal, but there is no corresponding clause in Article 323A or 323B. Any other view would result in affecting the basic structure of the Constitution and consequently Section 46 of the Constitution 42nd Amendment Act, which introduced Articles 323A and 323B into the Constitution, itself would be liable to be struck down as affecting the basic structure of the Constitution, for, judicial review of Legislative action and maintenance of rule of law which means that all Courts and Tribunals must function within the framework of law under which it is constituted and if they exceed their jurisdiction, it is the function of the High Court within whose territorial jurisdiction they function to prevent such exceeding of jurisdiction, constitutes the basic structure of the Constitution as expounded by Supreme Court in Keshavanand Bharathi v. Union of India and reiterated in Smt. Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India .
The learned Advocate General received support for his submission regarding the status and jurisdiction of the High Courts under the Constitution from the following two decisions of the Supreme Court :
(1) In East India Commercial Co. v. Collector of Customs (AIR) 1962 SC 1903 at 1905. In that case a customs authority took the liberty of disregarding the law declared by the High Court within whose territory it was exercising power. The Supreme Court analysed the scheme of the Constitution regarding the powers and jurisdiction of the High Courts under the Constitution and said that even in the absence of an Article similar to Article 141 in the Constitution in respect of the law declared by the High Court, the law declared by the High Court would be binding on all the Tribunals in the State coming within the scope of Article 227. Relevant portion of the Judgment reads :
“This raises the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared. Under Article 215, every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Under Article 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Article 227, it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a Tribunal can do so, all the subordinate Courts can equally do so for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working : otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.”
(2) In the case of Jugal Kishore v. Sitamarhi Central Co-operative Bank the Supreme Court considered the question as to whether a Tribunal situated within the territorial jurisdiction of the High Court which is not a subordinate Court within the meaning of that expression used in Article 228 of the Constitution is not a Tribunal which is amenable to the jurisdiction of the High Court, under Article 227. The relevant portion reads :
“In our opinion, Article 228 of the Constitution does not indicate that unless a High Court can withdraw a case to itself from another Court for disposing of a substantial questions of law as to the interpretation of the Constitution, the latter Court is not subordinate to the High Court. This Article is only intended to confer jurisdiction and power on the High Court to withdraw a case for the purpose mentioned above from the ordinary Courts of law whose decision may, in the normal course of things, be taken up to the High Court by way of an appeal. Article 227 is of wider ambit : it does not limit the jurisdiction of the High Court to the hierarchy of Courts functioning directly under it under the Civil Procedure Code and Criminal Procedure Code but it gives the High Court power to correct errors of various kinds of all courts and tribunals in appropriate cases. Needless to add that errors as to the interpretation of the Constitution is not out of the purview of Article 227 although the High Court could not, under the powers conferred by this Article, withdraw a case to itself from a tribunal and dispose of the same or determine merely the question of law as to the interpretation of the Constitution arising before the tribunal.”
For these reasons the learned Advocate General said that the question should be answered in the negative.
10. Sri V. Albal, learned Counsel, invited my attention to the Writ Petition filed by him, which is pending before this Court in which he has challenged the constitutional validity of Section 46 of the 42nd Amendment Act, by which Article 323A was introduced into the Constitution on the ground that the said Section was void as it affected the basic structure of the Constitution. In that Writ Petition, the petitioner therein has challenged the constitutional validity of Article 323A which enables the Parliament to provide for transfer of Writ Petitions pending before the High Courts under Article 226 of the Constitution either for enforcement of fundamental rights or for any other purpose presented by civil servants regarding recruitment and conditions of service and to exclude the jurisdiction of the High Courts to retain or entertain such petitions, affected the basic structure of the Constitution.
11. The learned Counsel, who supported the stand taken by the learned Advocate General, submitted as follows :- A careful consideration of the scheme of Article 323A and the Act would indicate that though undoubtedly the Tribunal constituted under the Act in pursuance of the power given to the Parliament under Article 323A of the Constitution, is certainly a high power Tribunal of exclusive jurisdiction in respect of matters falling within its jurisdiction and its decisions are only appealable to the Supreme Court, still the fact remains that it is not invested with jurisdiction to decide the questions relating to constitutional validity of the laws enacted by Legislature or Rules made by the President or the Governor, who derive their power under the Constitution. They also pointed out that as the power of the Parliament and of State Legislature to make laws was subject to the provisions of the Constitution having regard to entry 95 of List-I, entry 65 of List-II and entry 46 of List-III of the seventh schedule which are the entries which specify the topic relating to jurisdiction of all courts except the Supreme Court also expressly state that the topic was only in respect of the matters in the list, and therefore by such laws the jurisdiction conferred by Acts of Legislature could only be affected and not the jurisdiction conferred by the Constitution itself.
12. The submissions made by the learned Advocate General and the other learned Counsel, raise several other important issues as are discernible from the submissions. The most important among them are :
(1) Whether the High Court could exercise power of superintendence over the Administrative Tribunal under Article 227 in view of the ratio, in the case of Jugal Kishore (supra) as the said power is not excluded by any of the clauses in Article 323A as have been done under clause (7) of Article 371D.
(2) Whether the Administrative Tribunal or its Bench is bound by the law declared by the High Court within whose territorial jurisdiction it functions, in view of the ratio in the case of East India Commercial Co. (supra).
(3) Whether Section 46 of the Constitution 42nd Amendment Act by which Articles 323A and 323B were inserted into the Constitution is itself invalid on the ground that it affected the basic structure of the Constitution in view of the ratio in the case of Keshavanand Bharati (supra).
As these questions do not directly arise for consideration in this case, it is unnecessary for me to consider them. Therefore, I confine, the consideration to the question set out in the first paragraph.
13. The answer to the said question depends upon the true scope and ambit of Article 323A, Sections 14, 28 and 29 of the Act. Before undertaking the interpretation of these provisions, it is necessary in the first instance to set out the basic principles of interpretation.
(1) In the case of T. K. Mudaliar v. Venkatachalam , the Supreme Court stressed the important of the Preamble thus :
“In order to ascertain the scope and purpose of impugned section reference must first be made to the Act itself. The Preamable of a Statute is said to be a good means of finding out its meaning and as it were a key to the understanding of it.”
(2) In the case of Moti Ram v. N. E. Frontier Railway (1964-II-LLJ-467) Subba Rao, J., (as he then was), enunciated the general rule of interpretation thus :
“The general rule of interpretation which is common to statutory provisions as well as to constitutional provisions is to find out the expressed intention of the makers of the said provisions from the words of the provisions themselves. It is also equally well settled that, without doing violence to the language used, a constitutional provision shall receive a fair, liberal and progressive construction so that its true objects might be promoted.”
(3) In the case of Madhav Rao Scindia v. Union of India the Supreme Court stated thus :
“But a constitutional provision will not be interpreted in the attitude of a lexicographer, with one eye on the provision and the other on the lexicon. The meaning of the word or expression used in the Constitution often is coloured by the context in which it occurs : the simpler and more common the word or expression, the more meanings and shades of meanings it has. It is the duty of the Court to determine in what particular meaning and particular shade of meaning the word or expression was used by the Constitution makers and in discharging the duty the Court will take into account the context in which it occurs, the object to serve which it was used, its collocation, the general congruity with the concept or object it was intended to articulate and a host of other considerations. Above all, the Court will avoid repugnacy with accepted norms of justice and reason. The expression “provision of this Constitution relating to” in Article 363 means ‘provisions having a dominant and immediate connection with’ : it does not mean merely having a reference to. A wide meaning of the expression may exclude disputes from the jurisdiction of the Courts in respect of rights or obligations, however indirect or tenuous the connection between the constitutional provision and the covenant may be.”
(4) These basic principles were reiterated in the case of Keshavanand v. Union of India (supra).
(5) In the case of Chief Justice of Andhra Pradesh v. Dikshitulu , which decision is the most opposite to this case, the question for consideration was whether the officers and servants of the High Court of Andhra Pradesh and of subordinate Courts in that State falling under the exclusive control of the Chief Justice and the High Court under Article 229 and 235 of the Constitution respectively fell within the expression of ‘civil servants’ and therefore came within the exclusive jurisdiction conferred on the Andhra Administrative Tribunal constituted under Article 371D of the Constitution to decide disputes relating to their conditions of service raised by them. The Supreme Court laid down the principles of interpretation applicable to such a case and interpreted the expression ‘civil servants’ as not including the officers and servants of the High Court and the members of judicial service and officers and servants of the subordinate Courts and consequently jurisdictional bar for the High Court of Andhra Pradesh enacted in the Article must be held to be restricted. Relevant part of the Judgment reads :
“63. The primary principle of interpretation is that a constitutional or statutory provision should be construed “according to the intent of those that made it” (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meanings more than one, the rule of strict grammatical contraction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
64. Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These cannons of construction apply to the interpretation of our constitution with greater force, because the Constitution is a living, integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic frame work can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us (Chandrachud, J., as he then was) put it in Kesavananda Bharati’s case (supra) while interpreting words in a solemn document like the Constitution, one must look at them not in a school masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in ‘a single complex instrument in which one part may throw light on the other’ so that the construction must hold a balance between all its parts.
65. The phrase ‘civil service of the State’ remains more or less an amorphous expression as it has not been defined anywhere in the Constitution. Contrasted with it, the expressions ‘judicial service of the State’ and ‘District Judge’ have been specifically defined in Article 236, and thus given a distinctive, definite meaning by the Constitution makers. Construed loosely, in its widest general sense, this elastic phrase can be stretched to include the ‘officers and servants of the High Court’ as well as members of the Subordinate Judiciary. Understood in its strict narrow sense, in harmony with the basic constitutional scheme embodied in Chapters V and VI, Part VI and centralised in Articles 229 and 235 thereof the phrase will not take in High Court staff and the Subordinate Judiciary.
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76 ….. Article 371D as its heading itself proclaims – which derogates from the general scheme of the Constitution for a specific purpose general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. Conversely, had it been the intention of Parliament to include ‘Officers and servants of the High Court’ and members of the ‘judicial service of the State’ and of the cadre of ‘District Judges’ in the phrase ‘civil service of the State’ occuring in Clause (3) of Article 371D, and thereby depart from the basic scheme of Chapters IV and VI, Part VI, the language commonly employed in sub-clauses should have read like this :- “Class or classes of posts in the civil services of the State including posts in the ‘judicial service of the State’, and of ‘District Judges’ in the State; class or classes of posts of ‘officers and servants of the High Court.”
77. In our opinion, non-use of the phrases ‘judicial service of the State’ and ‘District Judges’ (which have been, specifically defined in Article 236) and ‘officers and servants of the High Court’ which have been designedly adopted in Articles 235 and 229, respectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate judiciary were advisedly excluded from the purview of clause (3) of Article 371D. The scope of the non-obstante provision in sub-article (10) which gives an overriding effect to this Article is co-terminus with the ambit of the preceding clauses.
78. The ‘officers and servants of the High Court’ and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3), the non-obstante provision in Clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Articles 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371D, such as Article 229 and 235. Provisions not otherwise covered by Article 371D, cannot be brought within its sweep because of the non-obstante Clause (10). It follows as a necessary corollary that nothing in the order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary.”
14. Bearing in mind the above principles, we have got to construe the words ‘disputes and complaints’ used in Article 323A of the Constitution. Under the said Article, the Parliament is given the power to establish Administrative Tribunals for deciding disputes and complaints in respect of recruitment and conditions of service of civil servants. Clause 2(d) of the Article enables the Parliament to exclude the jurisdiction of all Courts except the Supreme Court under Article 136 of the Constitution with respect to the above matters. The words ‘disputes and complaints’ have not been defined either in the Constitution or in the Act. The words ‘service matter’ is defined vide Section 2(r) of the Act, which indicates that every type of dispute or complaint which a civil servant might raise, relying on the law regulating any of his conditions of service or recruitment, would be a service matter and therefore falls within the jurisdiction of the Tribunal. Neither Article 323A nor Section 2(r), which defines ‘service matter’ nor Sections 14, 28 or 29, provide that disputes and complaints which could be raised before the Tribunal would include questions relating to the constitutional validity of the law regulating the conditions of service and recruitment of civil servants. A jurisdiction of that magnitude has to be conferred and cannot be inferred. Therefore, the very absence of a provision in Article 323A of the Constitution which enables the Parliament to confer on an Administrative Tribunal the jurisdiction to decide the constitutional validity of the laws constitutes a strong ground to say that judicial review of legislation, which is expressly conferred on the Courts established by the Constitution itself, namely, the High Courts and the Supreme Court, which was exclusive before the insertion of Article 323A continues to be exclusive even after its insertion. As pointed out by the Supreme Court in the case of Dikshitulu, (supra) if the Parliament intended to include officers and servants of High Court and the subordinate Courts and members of judicial service in the expression ‘civil servants’ the Parliament would have expressly stated so. Similarly in this case if the Parliament intended that the Administrative Tribunal to be constituted under a law enacted by the Legislature, should be invested with the jurisdiction to decide constitutional validity of the laws regulating the conditions of service, it would have used the words “including questions relating to the constitutional validity of laws regulating recruitment and conditions of service after the words ‘disputes and complaints’ used in Article 323A of the Constitution, particularly when the jurisdiction to decide the constitutional validity of all laws was vested in the High Court by virtue of Articles 226 and 228 and continued to be vested in the High Court by Article 228A, introduced by Section 42 of the 42 nd Amendment itself. The very fact that such words are not included in Article 323A(1) after the words ‘disputes and complaints’ takes the jurisdiction to decide the constitutional validity of the laws outside the purview of Clause (1) and consequently outside the purview of the Administrative Tribunal constituted pursuant to a law made pursuant to the power given under the Article and therefore the exclusion of jurisdiction of the High Court which could be provided for in view of Clause (d) and the overriding effect given to Article 323A by Clause (3) thereof, would not operate in respect of the jurisdiction of the High Court to decide constitutional validity of any law regulating recruitment and conditions of service.
Further, a careful analysis of some of the new Articles, which affected the jurisdiction of the Supreme Court and the High Courts and also imposed conditions on the exercise of their jurisdiction and powers, which were inserted into the Constitution by the Constitution 42nd Amendment Act, which brought about far reaching changes in the structure of the Constitution by which Article 323A was also inserted into the Constitution, would also show that such a conclusion is correct and irresistible. Those Articles read :
“32A. Notwithstanding anything in Article 32, the Supreme Court shall not consider the constitutional validity of any State law in any proceedings under that article unless the constitutional validity of any Central Law is also in issue in such proceedings.
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"131A. (1) Notwithstanding anything contained in any other provision of this Constitution, the Supreme Court shall, to the exclusion of any other Court, have jurisdiction to determine all questions relating to the constitutional validity of any Central law.
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144A. (1) The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any question as to the constitutional validity of any Central law or State law shall be seven.
(2) A Central law or a State shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two thirds of the Judges sitting for the purpose of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid.
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226A. Notwithstanding anything in Article 226, the High Court shall not consider the constitutional validity of any Central law in any proceedings under that Article.
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228A. (1) No High Court shall have jurisdiction to declare any Central law to be constitutionally invalid.
(2) Subject to the provisions of Article 131A, the High Court may determine all questions relating to the constitutional validity of any State law.
(3) The minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law shall be five; Provided that where the High Court consists of less than five Judges, all the Judges of the High Court may sit and determine such question.
(4) A State law shall not be declared to be constitutionally invalid by the High Court unless :-
(a) where the High Court consists of five Judges or more, not less then two-thirds of the Judges sitting for the purpose of determining the validity of such law, hold it to be constitutionally invalid; and
(b) Where the High Court consists of less than five Judges, all the Judges of High Court sitting for the purpose hold it to be constitutionally invalid.
(5) The provisions of this Article shall have effect notwithstanding anything contained in this part.
Explanation : In computing the number of Judges of a High Court for the purpose of this Article, a Judge who is disqualified by reason of personal or pecuniary bias shall be excluded."
The vital changes brought about by the Articles in respect of the jurisdiction of the Supreme Court and the High Courts and regarding its exercise were :
(1) In a petition under Article 32 of the Constitution, the Supreme Court could not decide constitutional validity of the State law except in a case in which the validity of any Central law was also involved.
(2) In a petition under Article 226 of the Constitution, the High Courts had no jurisdiction to decide the constitutional validity of Central laws but could decide the validity of State laws.
(3) Only a Bench consisting of a minimum of Seven Judges of the Supreme Court could decide the constitutional validity of law that too only by a two-thirds majority.
(4) Only a Bench consisting of not less than Five Judges of the High Court could decide the constitutional validity of law that too only by a two-thirds majority.
Thus, it may be seen, conditions which were not existing from the date of commencement of the Constitution on the exercise of jurisdiction of the Supreme Court and of the High Courts in relation to the adjudication of cases involving constitutional validity of the laws were imposed by the Parliament by enacting the 42nd Amendment to the Constitution. Having incorporated such conditions even on the Supreme Court and the High Courts for the exercise of the jurisdiction and power to decide the constitutional validity of the laws, it is difficult, any impossible, to agree that Articles 323-A and 323-B of the same Act intended to authorise the appropriate Legislature to constitute a Tribunal and to confer on it the jurisdiction to decide the constitutional validity of the laws, on the topics specified in the two Articles. No doubt that all the above Articles which imposed such conditions on the exercise of the power of the Supreme Court and the High Courts to decide the constitutional validity of the laws, were deleted, by the Constitution 43rd Amendment and thereby the status quo ante 42nd Amendment was restored. However, in view of the well settled principles of interpretation discernible from the decisions of the Supreme Court, extracted earlier, for the purpose of ascertaining the true scope and ambit of Articles 323A and 323B of the Constitution, the other provisions introduced by the 42nd Amendment Act as a part of single legislative scheme are relevant and they throw a flood of light on the crucial point arising for consideration and give a conclusive indication that the jurisdiction to decide constitutional validity of a law was not at all intended to be conferred on a Tribunal to be constituted under a law enacted by the Parliament or State Legislature under Article 323B.
15. Further, a contrary view would lead to astounding results. There can be no doubt that the power to decide constitutional validity of laws includes the power to decide as to whether an amendment to the Constitution is invalid on the ground that it affected the basic structure of the Constitution. Take for instance a civil servant, who is dismissed from service, while challenging the legality of the order, by which he was dismissed, on the ground that second opportunity after the findings were recorded by the Inquiring Authority was not given, chooses to challenge the constitutional validity of Section 44 of the 42nd Amendment Act on the ground that the amendment of Article 311(2) deleting the requirement to give second opportunity affects the basic structure of the Constitution, the Tribunal constituted under the Act could also decide such question, and to the exclusion of the High Courts.
16. Similarly, a State Legislature, in view of the provisions of Article 323B, which is similarly worded as Article 323A, could enact a law constituting a Tribunal to decide disputes arising, inter alia under Land Reforms Laws or Taxation Laws and exclude the jurisdiction of the High Court in such matters, in which event such a Tribunal would also be invested with the jurisdiction to decide the constitutional validity of the provisions of such law but not the High Court. Further, such a Tax Tribunal could also decide the validity of the 46th Amendment to the Constitution by which the definition of the word ‘sale’ was expanded which is the subject matter of several Writ Petitions before this Court. Certainly such a result was not intended.
17(1). Therefore, I am convinced that the interpretation placed on Article 323A by the learned Advocate General, the learned Counsel for the petitioner and other learned Counsel who supported them to the effect that the exclusion of jurisdiction of all Courts except the Supreme Court, which certainly includes High Courts, by a law enacted by the Parliament which could be provided for under Article 323-A(2)(d), was only in respect of matters relating to adjudication of disputes and complaints by civil servants concerning their conditions of service or recruitment as regulated by law and not in respect of the jurisdiction of High Courts to decide questions of constitutional validity of any law which regulate the recruitment and conditions of service of civil servants is unexceptionable.
(2) Once we ascertain the true meaning and ambit of the constitutional provision, the extent of divesting of the jurisdiction of the High Court which it had under Article 226 and its conferment on the Administrative Tribunal, gets clearly demarcated and the High Courts and the Tribunal have to exercise their jurisdiction within the respective field. In this behalf, it is of utmost importance to always bear in mind that supremacy of the Constitution is the very basis of our constitutional structure. This aspect is forcefully expounded by Justice Gajendragadkar, former Chief Justice of India thus :
“The Commission believes that in a democratic country like India which is governed by a written Constitution, supremacy can be legitimately claimed only by the Constitution. It is the Constitution which is paramount, which is the law of laws, which confers on Parliament and the State Legislatures, the Executive and the Judiciary their respective powers, assigns to them their respective functions and prescribes limitations within which the said powers and functions can be legitimately discharged.”
46th Report of the Law Commission on The Constitution (Twenty-fifth amendment) Bill 1971, page 3, paragraph 7.
18. With this background, if we examine the definition of the word ‘service matters’ or ‘matters relating to recruitment’ used in the Act, the conclusion which is irresistible is that all disputes and complaints relating to service matters and recruitment, could only be disputes and complaints falling within the purview of Article 323A of the Constitution. The words used and defined in the Act cannot have wider meaning than the words ‘disputes and complaints’ used in Article 323A for the reason that the Act is enacted in pursuance of Article 323A and therefore the scope and ambit of the powers of the Tribunal cannot be wider than the one contemplated under Article 323A of the Constitution.
19. For these reasons, after anxious and careful consideration of the matter, I answer the question set out in the first paragraph of the order, as follows :
“On the coming into force of the Administrative Tribunals Act, 1985, and the establishment of the Central Administrative Tribunal the jurisdiction of the High Court under Article 226 of the Constitution of India to retain or entertain petitions presented under that Article before it, challenging the Constitutional validity of any law regulating recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union, and decide such petitions stand excluded and did not get vested in the Central Administrative Tribunal.”
20. I must, however, add that the discussion which yielded the answer as above, itself indicates that the Administrative Tribunal constituted under Section 4(1) or 4(2) of the Act has exclusive jurisdiction in respect of all disputes and complaints relating to conditions of service or recruitment, raised by civil servants of the Union and the concerned State respectively within the framework of the law regulating the conditions of service and consequently the jurisdiction of the High Courts in respect of such matters even under Article 226 which could be affected only by another provisions in the Constitution, stands denuded to that extent by the force of constitutional provision, namely, clause 2(d) and (3) of Article 323A.
21. I am aware of the view taken by the Allahabad High Court in the case of, M. B. Shukla v. Union of India , in which a Division Bench of that Court has taken a contrary view on this point. Relevant portion of the judgment reads :
“What was urged was that since word ‘proceeding’ is very wide, it includes a Writ Petition, therefore, the same stood automatically transferred to Tribunal after its constitution. The Learned Counsel urged that ommission of word ‘proceeding’ from proviso is clinching of Parliament’s intention of transferring a Writ Petition to Tribunal in respect of Central Government employees. Prior to amendment of Civil Procedure Code by Act 104 of 1976 many High Courts had taken the view that Writ Petition was proceeding within the meaning of Section 141 of the Code. This doubt was dispelled when explanation was added to the Section excluding any proceeding under Article 226 of the Constitution. The Parliament shall be deemed to have been aware of it, therefore, it should be deemed to have used the word ‘proceeding’ in the sense it is normally understood and not as including Writ Petition. Remedy of approaching High Courts by way of judicial review of Legislative Acts or Administrative action as explained is an extraordinary remedy, a superior or a prerogative jurisdiction exercised under the Constitution to protect and maintain individual liberty and freedom, create social and economic harmony and save people from tyranny. To equate such remedy and argue that it is included in word ‘proceeding’, used in Section 29, which dictionarily means a step in or for taking judicial action would be both incorrect and inappropriate. Moreover if Parliament would have intended to transfer Writ Petitions pending in High Courts there was no difficulty in mentioning it along with suit or proceeding. In Udai Bhan Singh v. Board of Revenue (1974 RD 107) a question arose if the the word ‘proceeding’ used in Section 5 of U.P. Consolidation of Holdings Act included Writ Petition and it could also be abated after issuance of notification under Section 4 of the Act. The answer given was in the negative by the Full Bench.
8. Proviso to Section 29(1) further if read in proper perspective leaves hardly any scope for doubt that it was never the legislative intent to transfer a Writ Petition. By it, appeals pending in High Courts have been retained. It does not mention Writ Petition, obviously because exception has been created in respect of what is covered in sub-section (1), which but for the proviso would have deemed to be included in it. As Writ Petition cannot be deemed to be included in the word, ‘proceeding’ the omission to mention it in proviso cannot by indirect process of reasoning lead to conclusion that it shall be deemed to be included in it. The preliminary objection, therefore, is overruled.”
It may be seen from the above extract of the Judgment, the view that the word ‘proceeding’ used in Sections 28 and 29 of the Act does not include Writ Petition, was taken on the basis of the explanation to Section 141 of the Civil Procedure Code inserted by 1976 Amendment, which provides that any proceeding under Article 226 would not fall within the meaning of word ‘proceeding’ used in the Section.
22. With-great respect, I find it difficult to persuade myself to agree to that view. As pointed out earlier, Article 323A expressly empowers the Parliament to constitute Administrative Tribunals for deciding disputes and complaints by civil servants in respect of their conditions of service or recruitment. It is a matter of common knowledge that there have been large number of cases of civil servants pending before the High Courts in the various States and in view of heavy docket load on the High Courts, it has not been possible or practicable to dispose of these cases within a reasonable time. Obviously, the intention of the Parliament in introducing Article 323A was to reduce the pendency in the High Courts by providing for the constitution of Administrative Tribunal. The Article, therefore, empowered the Parliament to exclude the jurisdiction of the High Court, so as to ensure that there would be only one challenge only by way of appeal to the Supreme Court against the decision of the Tribunal. That being the clear intention and purpose of Article 323A, Clause (d) provides for exclusion of jurisdiction of all Courts except the Supreme Court and clause (3) of Article 323A gives overriding effect to the Article over other provisions of the Constitution which includes Article 226. Therefore, I hold that after the constitution of the Tribunal, the High Courts can neither retain nor entertain Writ Petitions in respect of disputes and complaints in service matters falling within the jurisdiction of the Tribunal. In fact, the very circumstance that the explanation was inserted into Section 141 of the C.P.C. would indicate that but for the explanation writ proceedings would also fall within the meaning of the word ‘proceeding’ used in Section 141 of the C.P.C. Therefore, the absence of such a restrictive explanation to the word ‘proceeding’ used in Sections 28 and 29 of the Act, make it clear that the word ‘proceeding’ used in the two Sections of the Act includes Writ Petitions in which disputes and/or complaints in respect of service matters are raised.
23. In view of the respective and mutually exclusive jurisdiction of the High Courts and of the Administrative Tribunals, it is necessary to clarify as to the categories of cases which fall within the exclusive jurisdiction of the High Courts and of the Administrative Tribunals. In this behalf, it is necessary to note that there is a clear difference between enforcement of fundamental rights and other provisions of the Constitution as reflected in the laws enacted or otherwise, while questioning the legality of an order imposing penalties on a civil servant or affecting any of his conditions of service or any of his rights in matters relating to recruitment, and, enforcement of the fundamental rights and other provisions of the Constitution by way of challenging the constitutional validity of the law regulating the conditions of service or recruitment. The first category would be squarely within the jurisdiction of the Tribunal and therefore excluded from the jurisdiction of the High Court and the second category is exclusively within the jurisdiction of the High Courts and not included in the jurisdiction of the Tribunal.
24. A few illustrations would show the clear difference between the two categories :
(1) Articles 14 and 16 confer right to equality and equal opportunity in matters relating to employment under the State :
(a) A challenge to an order of termination of service on the ground that it is discriminatory and violative of Articles 14 and 16 of the Constitution does not involve constitutional validity of any law but only would involve question of constitutional validity of the order. (See : Government Branch Press, Mercara v. D. B. Belliappa (1979-I-LLJ-156).
(b) A challenge to an order of termination of service on the ground that the rule which authorised termination of service without assigning any reason, itself was violative of Articles 14 and 16, would be a case involving constitutional validity of the law, for, unless the rule is held to be void the termination of service cannot be set aside. (See : Motiram Deka’s Case, supra and also T. C. Srinivasa Murthy v. Union of India (1982-I-LLJ-268) and, Central Inland Water Transport Corporation Limited v. Brojonath (1986-II-LLJ-170).
(2)(a) A complaint that a selection and appointment made was in violation of the order providing for reservation of posts in favour of backward classes, whether by exceeding reservation or not giving effect to the reservation and thereby the right guaranteed under Articles 14 and 16 was denied, is a matter which does not involve any question of constitutional validity of the law.
(b) But a complaint that reservation order itself is unconstitutional on the ground of arbitrary classification or excessive reservation would be a matter involving constitutional validity of the law.
(3)(a) If a civil servant says that though he was senior his case was not considered for promotion as required under the rules and seeks a direction for his promotion, it is only case of enforcement of the relevant rule as also the right guaranteed under Articles 14 and 16 of the Constitution. (See District Registrar v. N. B. Koyya Kutti (1979-I-LLJ-356) and Union of India v. M. L. Capoor .
(b) If non-promotion of a civil servant is challenged on the ground that the rule which denied him the promotion was violative of Articles 14 and 16, it would be a case involving the question of constitutional validity. (See : N. S. Mehta v. Union of India and Smt. Juthika Bhattacharya v. The State of M. P. and S. L. Sachdev v. Union of India .
(4) Article 311(2) of the Constitution ensures security of tenure of civil servants.
(a) If an order imposing penalty of dismissal or removal from service is challenged on the ground that it was violative of Article 311(2) and/or the rules regulating disciplinary proceedings, it would be a case of enforcement of the rule concerned as also Article 311(2).
(b) If an order which brought about the termination of service of a civil servant is challenged on the ground that the Rule or Law pursuant to which determination of tenure was brought about is violative of Article 311(2), it would be a case of challenge to the constitutional validity of the law. (See : Motiram Deka’s case (supra) and also G. S. Sidhu v. State Punjab (1965-I-LLJ-323)
25. To put it in a nut shell, all cases in which the legality of an order adversely affecting the recruitment or any of conditions of service of civil servants as regulated by law and/or the relevant provisions of the Constitution is challenged, they would be matters falling within the words ‘disputes and complaints’ used in Article 323A and squarely fall within the jurisdiction of the Tribunal and stands excluded from the jurisdiction of the High Courts and that all cases in which the legality of such an order is challenged on the ground that the rule or law under which it was made was violative of any of the provisions of the Constitution, they would be cases involving questions of constitution validity of the law and therefore would be within the exclusively jurisdiction of the High Courts.
26. Therefore, a clear distinction must be made between :
(1) the cases in which the provisions of Article 14 or 16 or 311 or any other provision of the Constitution are invoked while challenging the legality of an order or action on the ground that the provision of a law intended to give effect to those Articles of the Constitution had been violated, or in the absence of any such law, the provision of the Constitution itself was violated and,
(2) the cases in which the provisions of a law regulating recruitment and conditions of service under which an order or action the legality of which is challenged was made or taken, itself is challenged on the ground that it is violative of Article 14 and 16 or 311 or any other provision of the Constitution.
It is only the second category of cases which could be retained or entertained by the High Courts.
27. It is also necessary to observe that in order that a petition by a civil servant in respect of his service matter is maintainable before the High Court, the relief sought for should be such as could be granted only upon a declaration that the law validity of which is challenged in the petition, is invalid. Therefore, by merely adding a prayer in a Writ Petition for declaring a provision of service law invalid, though the relief sought for does not depend upon its invalidity, jurisdiction of this Court cannot be invoked.
28. Before concluding the discussion on the jurisdiction of the Administrative Tribunal it is necessary to notice the amendment to Section 28 of the Act by which the jurisdiction of Labour Courts and Industrial Tribunals, are saved, in addition to that of the jurisdiction of the Supreme Court under Article 136. Therefore in respect of proceedings initiated before Labour Courts or Industrial Tribunals, by such of the civil servants who are also workmen as defined in the Industrial Disputes Act, Writ Petitions could be filed before the High Courts against the final award or interim order of the Labour Courts or Industrial Tribunal made under Section 10 or 33 of the Industrial Disputes Act by the Management/Government or by civil servant whoever is aggrieved by the award or order, for the jurisdiction of the High Court to entertain writ petition against the order or award of Labour Court and Industrial Tribunal remains unaffected.
29. Now coming to the merits of the case, the grievance of the petitioner is that the service rendered by him in a post declared equivalent to the super-time scale, namely, as the Commissioner of the Corporation of City of Bangalore, was not given full benefit for the purpose of counting increments.
30. The facts relevant to the question raised by the petitioner are as follows : The number of posts in the cadre of Indian Administrative Service are fixed by the Rules both for the Union and for each State. There can be no appointment to a cadre post unless there is a vacancy. But under Regulation 9, the State Government is given the power to appoint a member of the Indian Administrative Service to any other post subject to the following conditions :
(i) The post to which a member is posted must be declared equivalent to the cadre post, and
(ii) It must carry the same pay scale as that of the cadre post.
The State Government has declared three posts, namely, the post of the Commissioner of the Corporation of City of Bangalore, the Commissioner of the Bangalore Development Authority and the Managing Director of the Karnataka State Small Industries Development Corporation as posts equivalent to super time scale in the Indian Administrative Service cadre carrying a pay-scale of Rs. 2,500-125/2-2750. The petitioner was appointed as Commissioner of the Corporation of the City of Bangalore on 8th March, 1982 and he joined duty on 12th March, 1982. He claimed that he should be given the first increment in the said pay scale with effect from the date on which he completed two years of service in the supertime scale. This claim was rejected and he was allowed to earn increment only with effect from 28th February, 1983, the date when his junior Sri Muniyappa was promoted to super-time scale and appointed against a vacancy in a cadre post. The rejection of the claim of the petitioner was in view of the impugned rule. It reads :
“5(a). The increments admissible to a member of the service in the scale of pay other than the time-scale of pay specified in rule 3 shall be regulated with reference to the length of his service in that scale of pay; previous service, if any, shall count for increment, if it is :
(i) Service in a cadre post; or
(ii) Service in a permanent or temporary post (including a post in a body incorporated or not, which is wholly or substantially owned or controlled by the Government) in the said scale or higher scale of pay :
Provided that service in a post outside the cadre including service in a post under the Central Government, shall count for increment on reversion to the cadre, subject to the following conditions, namely :
(a) The member of the service should have been approved by the Government of the State on the cadre of which he is borne, for appointment to posts in the said scale :
(b) All his seniors in the cadre except those regarded as unfit for such appointment, were serving on posts carrying pay in the said scale in which benefit is to be allowed or in higher posts, and at least one junior was holding a cadre post under the Government of the State on the cadre of which he is borne carrying pay in the said scale;
(c) The service shall count from the date on which his junior is promoted and the benefit shall be limited to the period during which he would have held a post under the Government of the State on the cadre of which he is borne, had he not been appointed to a post outside the cadre.
NOTE : The pay of a member of the service under this proviso shall be regulated with reference to the pay drawn by his junior holding a cadre post in the said scale without the condition of ‘one for one’ being satisfied.”
31. There is no dispute that it was only on 28th February, 1983 a vacancy arose in the super-time scale in a cadre post. According to the impugned rule, it is only from the date on which a junior is promoted to a cadre post a senior member of the service who had been appointed to an ex-cadre post would become entitled to count his service for the purpose of earning increments. The rule so provides because if the senior member concerned had not been appointed to an ex-cadre post, the date of promotion of the junior would be the date on which in the normal course he would have got promotion. As can be seen from the information furnished by the petitioner himself, only one officer who was junior to the petitioner and to one of his senior, namely, Sri M. C. Sathyavadi was promoted on 28th February, 1983 to the super-time scale post and he was Sri G. Muniyappa. But for the appointment of the petitioner to the super-time scale on the equivalent post, the petitioner would have not secured promotion to the super-time scale post even on 28th February, 1983 for the reason that it was Sri Sathyavadi who was senior to the petitioner who would have secured promotion on 28th February, 1983. In fact, the note below Rule 5(a) of the Rules provides that the pay of a member of the service under the proviso shall be regulated with reference to the pay drawn by his junior holding a cadre post in the said scale without the condition of ‘one for one’ being satisfied. Under the general and well known rule governing conditions of service called ‘NEXT BELOW RULE’, when more than one senior officer are appointed to posts outside the cadre either on deputation or otherwise, only the senior-most among them would get the benefit of pro-forma promotion from the date on which the junior officer is promoted in the regular line. (See : State of Mysore v. M. H. Bellary . In other words, the benefit of proforma promotion under the ‘NEXT BELOW RULE’ is restricted to the actual number of junior officers promoted in the regular cadre. This is what is called ‘one to one’ rule. In fact under the impugned rule, the rule of ‘one to one’ is relaxed and the benefit of service outside the cadre for the purpose of earning increments is extended to all the seniors appointed to ex-cadre posts even if one member who is junior to all of them is appointed to the higher cadre post. Therefore, the rule is actually beneficial to the petitioner far from being discriminatory.
32. Learned Counsel for the petitioner, however, submitted that when the post of Commissioner, Corporation of the City of Bangalore, had been declared equivalent to the post in a super-time scale cadre post and the petitioner had discharged the duties and functions of the said post, the rule should have allowed him the benefit of that service for the purpose of increments. It appears to me that whether the Government should have framed a rule providing for counting the entire service in an ex-cadre post for earning increments instead of framing a rule as the one impugned in this petition, is a matter concerning wisdom of the rule making authority and not its competence or validity. The rational basis discernible from the Rule is, the day on which in the normal course a member of the service would have been appointed to super-time scale but for his appointment to an ex-cadre post earlier would be the day from which the service rendered in a equivalent ex-cadre post for the purpose of increment counts and that day is fixed under the impugned rule with reference to the promotion of a junior. Therefore, the rule provides that when a junior member is promoted in the cadre post, a senior member serving in the ex-cadre post would be entitled to count his service for increment from the date on which the junior in the cadre post is promoted. In fact, if a provision, as the one suggested for the petitioner is made, it might lead to a situation in which a junior member of the service if appointed to an ex-cadre higher post, much earlier to the date on which a senior who is not so appointed, is appointed to a cadre post, would be drawing more salary than his senior though such junior was appointed to cadre post later. Therefore, the contention that the rule is arbitrary or discriminatory and therefore violative of Articles 14 and 16 of the Constitution is devoid of any merit.
33. In the result, I make the following order.
(i) The writ petition is dismissed.
(ii) No Costs.