Full Judgment Text
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CASE NO.:
Appeal (civil) 3946 of 2001
PETITIONER:
Public Services Tribunal Bar Association
RESPONDENT:
State of U.P. & Another
DATE OF JUDGMENT: 29/01/2003
BENCH:
CJI & Ashok Bhan
JUDGMENT:
J U D G M E N T
With
Civil Appeal Nos. 3947 of 2001 and 3948 of 2001
BHAN, J.
These appeals are directed against a common order passed by a Full
Bench of Five Judges of the High Court of Allahabad in Civil Writ Petition
No. 4285 (MB) of 1999, Public Services Tribunal Bar Association Vs. State
of U.P. & Anr., Civil Writ Petition No. 871 (MB) of 2000, Afzal Ahmad
Siddiqui Vs. State of U.P. & Ors., and Civil Writ Petition No. 1262 (MB) of
2000, Shireesh Kumar Vs. State of U.P. & Ors., wherein the High Court has
dismissed the writ petitions challenging the vires of the U.P. Public Services
(Tribunal) Act, 1976, as amended from time to time. The High Court has
upheld the constitutional validity of the Act as well as the subsequent
amendments made therein.
To effectively adjudicate the dispute arising in these appeals it would
be necessary to have a look at the events in a chronological order which are
given in brief as under:
The U.P. Public Services (Tribunal) Act, 1976 ( for short "the Act")
was promulgated relating to public servants of the State Government and the
employees of the government undertakings, local bodies etc. having power
to grant interim relief as well. Before the coming into force of the Act the
public servants were approaching civil courts for redressal of their
grievances arising out of their service matters by filing civil suits before the
civil court of competent jurisdiction or by approaching the High Court under
Article 226 of the Constitution of India. After the coming into force of the
Act the jurisdiction of the Civil Court was taken away. The decision to have
a separate service Tribunal was taken by the State Government after
considering the increasing workload of the civil courts and the delay in
disposal of the service matters. The purpose for creating the Tribunal has
been indicated in the statement of objects of the Act, which reads as under:
"The number of cases in the courts pertaining to
the employment matters of the Government
servants was constantly on the increase. This,
besides increasing the workload in the courts also
delayed considerably the disposal of such cases.
Such litigation also involved money and time of
government servants. In these circumstances, it
was decided to establish Public Services Tribunals
to deal with cases pertaining to employment
matters of government servants and also of the
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employees of the local authorities and Government
Corporations and Companies, so that the
employees may get quick and inexpenses justice.
It was also decided that after the establishment of
the Tribunals such suits be barred from being file
in the subordinate courts."
Under the original Act the State Government constituted five
Tribunals each comprising of an IAS Officer as a Chairman and a Judicial
Officer of the rank of District Judge as a Judicial Member. Each Tribunal
was vested with the jurisdiction over service matters of different
departments to the State Government. Under Section 4 of the Act any
person who is or has been a public servant could file a claim petition in any
manner relating to employment as such public servant if his employer had
dealt with him in a manner which was not in conformity with any contract or
provisions of Article 16 or Article 311 of the Constitution of India or with
any rules or law having force under Article 309 or Article 313 of the
Constitution. Under Section 5 (5) (j) of the original Act the Tribunals had
the power to pass interim orders in respect of all matters within their
jurisdiction including orders of dismissal, removal, reduction in rank,
termination, reversion and compulsory retirement.
The Act was amended by the U.P. Public Services (Tribunal)
(Amendment) Act (U.P. Act No. 1 of 1977). By the said amendment after
sub-section (5) of Section 5, sub-sections (5-A) and (5-B) were inserted.
Under Section 5 (5-A) the Tribunal could pass an interim order in specific
type of cases, but under Section 5 (5-B) the Tribunal was prohibited from
passing interim orders in respect of the order made or purporting to be made
by an employer for the suspension, dismissal, removal, reduction in rank,
termination, reversion and compulsory retirement.
In the year 1982 a proviso was added to Section 4 of the Act by the
U.P. Public Services (Tribunal) (Amendment) Act (U.P. Act No. 2 of 1982)
divesting the Tribunal of the jurisdiction to deal with petitions arising out of
orders of transfer of a public servant.
In 1985 the Administrative Tribunals Act (Act No. 13 of 1985) was
enacted by the Parliament under Article 323-A of the Constitution providing
a Central Administrative Tribunal with benches for adjudicating disputes in
respect of recruitment and conditions of service of persons appointed under
the Central Government and its undertakings in connection with the affairs
of the Union. Under Section 5(1) of the said Act Tribunal was to consist of
a Chairman, Vice-Chairman, Judicial and Administrative Members. Under
Section 6(1)(c) of the said Act a person who had held the post of Secretary
to the Government of India or any other post under Central or State
Government carrying a scale of pay which was not less than that of a
Secretary to the Government of India could be appointed as the Chairman of
the Tribunal. The original Act vested the entire power of appointment of
Chairman, Vice-Chairman, Administrative & Judicial Members of the
Tribunal in the Central Government without providing for their
appointments being made in consultation with the Chief Justice of India.
Writ Petition No. 12437 of 1985, S.P. Sampath Kumar v. Union of
India and other connected cases were filed in this Court under Article 32 of
the Constitution of India challenging the validity of the Administrative
Tribunals Act, 1985 including Section 28 of the said Act whereby the High
Courts were divested of their jurisdiction under Articles 226 and 227 of the
Constitution in respect of matters within the jurisdiction of the
Administrative Tribunals, i.e., in respect of service matters pertaining to
employees of the Central Government, State Government or any undertaking
which were brought within the jurisdiction of the Tribunals. S.P.Sampath
Kumar’s case and other connected cases were referred to and disposed of by
a Constitution Bench of this Court and the same is reported in 1987 (1) SCC
124. By the said decision, this Court upheld the constitutional validity of the
Administrative Tribunals Act but directions were issued to the Central
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Government to amend the Act, inter alia, to delete the provisions providing
for IAS Officers to be appointed as Chairman of the Tribunal and providing
for appointment of Chairman, Vice-Chairman and other members of the
Tribunal in consultation with the Chief Justice of India. Thereafter in 1987
by Administrative Tribunals (Amendment) Act, section 6(1)(c) of the said
Act were omitted and section 6 (7) was substituted providing for
appointment of Chairman, Vice-Chairman and members of the Tribunal in
consultation with the Chief Justice of India.
In Krishna Sahai v. State of U.P. [1990 (2) SCC 673] and Rajendra
Singh Yadav v. State of U.P. [1990 (2) SCC 763], this Court directed the
State of U.P. to consider the feasibility of setting up an appropriate Tribunal
under the Central Tribunal Act, 1985 in place of the Services Tribunals
functioning at present, and in case the existing State Tribunals were
continued. This Court observed:
"......it would be appropriate for the State of Uttar
Pradesh to change its manning and a sufficient
number of people qualified in Law should be on
the Tribunal to ensure adequate dispensation of
justice and to maintain judicial temper in the
functioning of the Tribunal..."
In the later decision in Rajendra Singh Yadav’s case(supra), this
Court reiterated its earlier view, a few other observations to improve the
functioning of the Services Tribunal were made. The said observations read
as under:
"We have been told that the Services Tribunal
mostly consists of Administrative Officers and the
judicial element in the manning part of the
Tribunal is very small. As was pointed out by us
in S.P. Sampath Kumar v. Union of India, the
disputes require judicial handling and the
adjudication being essentially judicial in character
it is necessary that an adequate number of judges
of the appropriate level should man the Services
Tribunals. This would create appropriate temper
and generate the atmosphere suitable in an
adjudicatory Tribunal and the institution as well
would command the requisite confidence of the
disputants. We have indicated in the connected
matter that steps should be taken to replace the
Services Tribunals by Tribunals under the
Administrative Tribunals Act, 1985. That would
give the Tribunal the necessary colour in terms of
Article 323-A of the Constitution. As a
consequence of setting up of such Tribunals, the
jurisdiction of the High Court would be taken
away and the Tribunals can with plenary powers
function appropriately. The disputes which have
arisen on account of the Services Tribunals not
having complete jurisdiction to deal with every
situation arising before it would then not arise.
We have pointed out that notice has been
issued in a later case for the State’s response to the
question of Tribunals to be located at different
parts of the State. State of Uttar Pradesh
territorially is the second largest State in India but
considering the population it comes first. Almost
every part of the State is well advanced and service
litigation in such setting is likely to arise
everywhere. To locate the seat of the Tribunals at
the State capital in such a situation is not
appropriate. The accepted philosophy relevant to
the question today is that justice should be taken to
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everyone’s doors. This, of course, is not a
statement which should be taken literally but
undoubtedly the redressal forum should be
available near about so that litigation may be cheap
and the forum of ventilating grievance may not be
difficult to approach. Keeping that in view which
is a legitimate consideration it would be
appropriate for the State Government to consider,
firstly, increase in the number of benches of the
Tribunal and secondly, to locate them not at the
same station but at various sectors or depending
upon the number of institution of disputes and
pendency at the level of independent
Commissionerate or by clubbing two or three of
them together. This, of course, is a matter which
would require further examination at the
administrative level and, therefore, we express no
opinion regarding location of such Tribunals
although we are of the definite view that there
should be Tribunals available in different parts of
the State and all the benches of the Tribunal should
not be located at one place."
Thereafter in 1992 the U.P. Public Services (Tribunals) (Amendment)
Act (U.P. Act No. 7 of 1992) was promulgated amending drastically the
provisions of the original Act. Only one Tribunal with separate division and
single member benches replaced the several Tribunals constituted under the
original Act. According to section 3(2) of the Amending Act the Tribunal
was to consist of one Chairman, one Vice-Chairman, Judicial and
Administrative Members. Under section 3(3)(c) of the Amending Act an
IAS Officer could be appointed as Chairman of that Tribunal. Similarly,
under section 3(4) (c) of the Amending Act an IAS officer could also be
appointed as Vice-Chairman of the Tribunal. Another significant change
brought about by the Amending Act was that vide Section 5-A of the
Amending Act the Tribunal was vested with the powers of punishment for
its contempt in the same manner as the High Court has under the provisions
of the Contempt of Courts Act. Thereafter in 1993 Sri S.Venkat Ramani, an
IAS officer was appointed by the State Government as Chairman of the
Tribunal. Sanjai Kumar Srivastava filed writ petition No.1619(MB) of
1993 before the Allahabad High Court challenging the appointment of Sri
Venkat Ramani as Chairman of the Tribunal as well as challenging the
constitutional validity of the provisions of section 5(3) (c) and 5(4)(c) of the
Act as amended in 1992 whereby an IAS officer could be appointed as
Chairman and Vice-Chairman of the Tribunal. A Full Bench of the
Allahabad High Court by its judgment dated 26th May, 1995 struck down
the provisions of Section 5 (3) (c) and 5(4) (c) of the Act and quashed the
appointment of Sri Venkat Ramani an IAS officer as Chairman of the
Tribunal.
In 1994 the U.P. Public Services (Tribunal) (Amendment) Ordinance
(U.P. Ordinance No. 23 of 1994) was promulgated whereby sub-section 5-C
was inserted to section 5 of the Act divesting the Tribunal from passing any
interim order in respect of an adverse entry awarded to a public servant and
providing that all interim orders passed in respect of any such adverse entry
before the promulgation of the Ordinance would stand vacated. This
Ordinance in due course of time lapsed and thereafter in the year 1995 again
the same Ordinance was promulgated by U.P. Ordinance No. 8 of 1995
introducing the same amendments as were in U.P. Ordinance No. 23 of
1994. This Ordinance also lapsed in due course of time and thereafter on
25th August, 1995 the U.P. Public Services (Tribunal) (Amendment)
(Second) Ordinance, 1995 (U.P. Ordinance No.32 of 1995) was promulgated
by the Governor re-promulgating U.P. Ordinance No. 8 of 1995 which had
lapsed on expiry of the period specified in Article 213(2) of the Constitution.
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In February, 1997 a former Judge of the Allahabad High Court,
Justice K.L. Sharma (retd.) was appointed as the Chairman of the Tribunal.
Justice Sharma retired as Chairman of the Tribunal on 10th July, 1999.
On 10th of September, 1999 U.P.Public Services (Tribunal)
Amendment Ordinance, 1999 (U.P. Ordinance No. 17 of 1999) was
promulgated by the Governor of U.P. and published vide notification dated
9th September, 1999. By Ordinance No. 17 of 1999 Section 4(1) was
substituted in place of section 4 of the Act, further Section (5-C) was added
to Section 5. Writ Petition No. 4285(MB) of 1999 was filed by the U.P.
Public Services Tribunal Bar Association. The constitutional validity of
newly added Section 4(1), sub-section (5-C) and Section 5(5-B) was
challenged being ultra vires the Constitution. A further prayer was made
that a writ in the nature of mandamus be issued commanding the State
Government to modify the Act strictly in conformity with the Central
Administrative Tribunals Act, 1985 as per the law laid down by this Court in
S.P.Sampath Kumar’s case(supra) and L.Chandra Kumar v. Union of India
[1997 (3) SCC 261]. Lastly it was prayed that the U.P. Public Services
Tribunal be given comprehensive powers to grant interim relief to make the
Tribunal more efficient and effective. Subsequently the impugned U.P.
Ordinance No. 17 of 1999 was replaced by U.P. Act No. 5 of 2000.
Thereafter an application for amendment of the writ petition challenging the
U.P. Act No. 5 of 2000 was moved which was allowed.
Sri Satish Chand Shukla, a practising advocate of Allahabad High
Court filed writ petition No. 5103 (MB) of 1999 challenging the
constitutional validity of the U.P. Public Services (Tribunal) Act, 1976 on
the ground that the same was beyond the legislative competence of the State
Legislature.
Shri Afzal Ahmad Siddiqui, a practising advocate filed writ petition
No. 748 (MB) of 1999 challenging the constitutional validity of Section
3(5), (7) and (8) of the Act with a prayer to annul the above sections in order
to remove the infirmities of the Act as pointed out by this Court in
S.P.Sampath Kumar’s case (supra). The same advocate Shri Afzal Ahmad
Siddiqui filed another writ petition No. 1636 (MB) of 1999 challenging the
constitutional validity of the U.P. Ordinance No. 17 of 1999. After the
coming into force of the U.P. Act No. 5 of 2000 replacing the Ordinance
No.17 of 1999 Shri Afzal Ahmad Siddiqui filed writ petition No. 871 (MB)
of 2000 challenging the provisions of the U.P. Act No. 5 of 2000. Relief
claimed in writ petition No. 871 (MB) of 2000 was the same as had been
claimed in writ petition Nos. 748 (MB) of 1999 and 1636 (MB) of 1999 filed
by him in which he had challenged the provisions of the Ordinance.
The provisions of the Act which are under challenge and other
relevant provisions are reproduced below for reference:
"Section 3. Constitution of the Tribunal -(1) As
soon as may be after the commencement of the
Uttar Pradesh Public Services (Tribunals)
(Amendment) Act, 1992, the State Government
shall, by notification, establish a Tribunal to be
called the State Public Services Tribunal.
(2) The Trbinual shall consist of a Chairman, a
Vice Chairman(Judicial), A Vice-
Chairman(Administrative) and such number of
other Judicial and Administrative Members not
less than five in each category, as may be
determined by the State Government.
(3) A person shall not be qualified for
appointment as Chairman, unless he-
(a) has been a Judge of a High Court, or
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(b) has, for at least two years held the post of
Vice-Chairman, or
(c) has been a member of the Indian
Administrative Service who has held the
post of a Secretary to the Government of
India or any other post under the Central
or the State Government equivalent
thereto, and has adequate experience in
dispensation of justice.
(4) A person shall not be qualified for
appointment as Vice-Chairman(Judicial) unless
he,--
(a) has held the post of District Judge or any
other post equivalent thereto for at least
five years; or
(b) has, for at least two years, held the post
of a Judicial Member.
(4-A) A person shall not be qualified for
appointment as Vice-Chairman(Administrative)
unless he-
(a) has, for at least two years, held the post
of an Administrative Member; or
(b) has, for at least two years, held the post
of 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 and has, in the
opinion of the State Government,
adequate experience in dispensation of
Justice.
(5) A person shall not be qualified for
appointment as a Judicial Member, unless he has
held the post of District Judge, or any other post
equivalent thereto.
(6) A person shall not be qualified for
appointment as an Administrative Member, unless
he has held, or has been eligible to hold, the post
of Commissioner of a Division or Joint Secretary
to the Government of India and has in the opinion
of the State Government, adequate experience in
dispensation of justice.
(7) The Chairman, Vice-Chairman and every
other member shall be appointed by the State
Government after consultation with the Chief
Justice for which proposal will be initiated by the
State Government:
Provided that no person shall assume the Office of
Chairman, Vice-Chairman or other member, as the
case may be, unless he has resigned or retired
from, as the case may be, the Judgeship of the
High Court, or the Indian Administrative Service
or the Uttar Pradesh Higher Judicial Service or any
other service in which he was serving except the
service as Vice-Chairman or Member.
Section 4. Reference of claim to Tribunal-(1)
Subject to the other provisions of this Act, a person
who is or has been a public servant and is
aggrieved by an order pertaining to a service
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matter within the jurisdiction of the Tribunal, may
make a reference of claim to the Tribunal for the
redressal of his grievance.
Explanation - For the purpose of this sub-section
"order" means an order made by the State
Government or a local authority or any other
Corporation or company referred to in clause (b) of
Section 2 or by an officer, committee or other body
or agency of the State Government or such local
authority or Corporation or company:
Provided that no reference shall, subject to the
terms of any contract, be made in respect of a
claim arising out of the transfer of a public servant.
Section 5. Powers and procedure of the
Tribunal-(1)(a) The Tribunal shall not be bound
by the procedure laid down in the Code of Civil
Procedure, 1908 (Act 5 of 1908), or the rules of
evidence contained in the Indian Evidence Act,
1872 (Act 1 of 1872), but shall be guided by the
principles of natural justice, and subject to the
provisions of this section and of any rules made
under Section 7, the Tribunal shall have power to
regulate its own procedure (including the fixing of
places and times of its sittings and deciding
whether to sit in public or private):
Provided that where, in respect of the subject-
matter of a reference, a competent court has
already passed a decree or order or issued a writ or
direction, and such decree, order, writ or direction
has become final, the principle of res judicata
shall apply.
Section (5-B) Notwithstanding anything in the
foregoing sub-sections, the Tribunal shall have no
power to make an interim order (whether by way
of injunction or stay or in any other manner) in
respect of an order made or purporting to be made
by an employer for the suspension, dismissal,
removal, reduction in rank, termination,
compulsory retirement or reversion of a public
servant, and every interim order (whether by way
of injunction or stay or in any other manner), in
respect of such matter, which was made by a
Tribunal before the date of commencement of this
sub-section and which if in force on that day, shall
stand vacated.
Section (5-C) Notwithstanding anything in the
forgoing sub-sections, the Tribunal shall have no
power to make an interim order (whether by way
of injunction or stay or in any other manner) in
respect of an adverse entry made by an employer
against a public servant, and every interim order
(whether by way of injunction or stay or in any
other manner) in respect of an adverse entry,
which was made by a Tribunal before the
commencement of the Uttar Pradesh Public
Services (Tribunal) (Amendment) Act, 2000 and
which is in force on the date of such
commencement shall stand vacated."
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The validity of Section 4(1) inserted by Act NO.5 OF 2000 has been
challenged on the ground that a public servant could not approach the
Tribunal for ’in action’ on the part of the authorities in respect of his legal
rights. If there was inaction on the part of the employer a public servant had
no remedy before the Tribunal and further the incumbent could not approach
the Civil Court for the reason that the jurisdiction of the Civil Court had
already been barred under Section 6 of the Act. That by the amendments
made in the impugned Act the powers of the Tribunal regarding judicial
review of administrative in-action deprives the litigants of their valuable
right. Divesting of power of judicial review too was ultra vires to the
Constitution of India. Judicial review being basic and essential feature of
the Constitution as held by this Court in Minerva Mills Ltd. vs. Union of
India reported in 1980 3 SCC 625. The object of the Act was not to leave
a public servant without any remedy. It was further averred that initially
there were provisions in the Act conferring powers upon the Tribunal to
grant interim relief. However, in due course of time on one pretext or the
other the jurisdiction of the Tribunal to grant interim reliefs has gradually
been taken away. Firstly embargo was put with respect to grant of interim
relief in certain matters. Subsequently the jurisdiction with respect to
transfer was taken away and lastly the power to make interim order in
respect of an adverse entry made by an employer against a public servant
has been taken away. By the impugned action of the respondents the whole
concept of the aims and objects of the Act have been diluted. If the Tribunal
is not conferred with full powers of the court and the authority to grant
effective relief to the public servants then it cannot be the real substitute of
the courts. If the Tribunal is not empowered to deal with every situation
with respect to the services of the public servants then it will loose its
identity. If the rule of law is to prevail the Tribunal has to play effective
role
in administration of justice and in the process the Tribunal should have all
powers as are vested in courts. Challenging the later part of sub-section (c)
to the effect that "every order made whether by way of injunction or stay or
any other manner in respect of an adverse entry which was made by the
Tribunal before the date this sub-section came into force and which was in
force on that date shall stand vacated", it was contended that the interim
orders granted by the Tribunal before the coming into force of section (5-C)
with retrospective effect could not be nullified by exercise of legislative
power and only the provisions which are the basis of the judicial orders
could be amended. That the complete ouster of jurisdiction in the matter of
grant of interim relief from the Tribunal in specified cases was ultra vires to
the Constitution as there was no judicial remedy open for the incumbent.
For example in the matter of suspension the Tribunal does not have the
power to grant any interim relief whereas the order may suffer from legal
infirmity, error of jurisdiction, mala fide and arbitrary exercise of power. In
view of these circumstances it was submitted that a public servant does not
have any judicial redress and continues under suspension during the period
of disciplinary proceedings. Similarly, it was submitted that right of
livelihood is a fundamental right of a government servant and by illegal
termination of his service the said right is infringed. The order of
termination on the face of it may be without jurisdiction and bad in law but
since the Tribunal did not have the power to grant interim relief such
incumbent would go without relief till the matter is finally heard and
decided. It takes considerably long period before the dispute is finally
decided and during this period the incumbent faces financial and mental
torture. Another submission made was that judgment and orders of the
Tribunal before the promulgation of the amended Act could be executed
after issuance of a certificate by the Tribunal to the principal civil court
under sub-section (7) of Section 5 of the Act. However, by the amendment
made in the impugned Act by U.P. Act No. 7 of 1992, sub-section (7) of
Section 5 was substituted by the following provisions:--
"(7) The order of the Tribunal finally disposing of
a reference shall be executed in the same manner
in which any final order of the State Government
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or other authority or officer or other person
competent to pass such order under the relevant
service rules as to redressal of grievances in any
appeal preferred or representation made by the
claimant in connection with any matter relating to
his employment to which the reference relates
would have been executed."
In view of the aforesaid substituted sub-section (7) of Section 5, the
orders and judgment of the Public Services Tribunal cannot be executed as a
decree of civil court and they are executable only as orders of the State
Government or other authority or officer or other person competent to pass
such orders under relevant service rules. It was also contended that powers
and functions of the Tribunal as they stand today under the Act are not in
consonance with the dictum of this Court in S.P. Sampath Kumar’s
case(supra) and L.Chandra Kumar’s case(supra).
The validity of Section 3 and especially an appointment of an
Administrative Member as Vice-Chairman of the Tribunal was challenged
on the ground that the same was contrary to the decision of this Court in
S.P. Sampath Kumar’s case(supra). That an IAS officer could not be made
Vice-Chairman because in the absence of a Chairman or Vice-
Chairman(Judicial), a Vice-Chairman(Administration) could officiate as a
Chairman which would be contrary to the law laid down by this Court in
S.P. Sampath Kumar’s case(supra).
In the written statements filed by the respondents a preliminary
objection was taken regarding the maintainability of the writ petition
challenging the vires of the Act by the Tribunal Bar Association which was
not an aggrieved party. On merits it was submitted that the amendments
brought out in the Act are in consonance with the directions issued by this
Court in S.P. Sampath Kumar’s case(supra) and various other
judgments/orders rendered by the Allahabad High Court. The amendments
have been made to bring the U.P.Public Services (Tribunal) Act, 1976 at par
with the Administrative Tribunals Act, 1985. That the appointment of the
Chairman, Vice-Chairman (Judicial) as well as Vice-Chairman
(Administration) as well as Members has now to be made in consultation
with the Chief Justice of the High Court. That it has been done in pursuance
to the directions issued by the Allahabad High Court in Writ Petition No.
1619(MB) of 1993 Sanjai Kumar Srivastava vs. State of U.P. and others by
a Full Bench of the Allahabad High Court wherein the provisions of sub-
section 3( c ) and 4 ( c ) of Section 3 of the unamended Act were struck
down. These sub-sections (as they stood on the statute book) provided that
an IAS officer could be appointed as Chairman. Now the appointment of the
Chairman, the two Vice-Chairmen and Members has to be made by the State
Government after effective consultation with the Chief Justice of the High
Court on the basis of parameters indicated in Sanjai Kumar Srivastava’s
case(supra) of the Allahabad High Court. That the State Legislature was
competent to enact the U.P. Public Services (Tribunal) Act as well as to
carry out the amendments in it in exercise of its legislative power.
In regard to challenge of sub-section (1) of Section 4 that only an
’order’ passed by the authority could be challenged and not the ’in-action’
on the part of the government to pass an order, it was submitted that order
also would mean omission and inaction on the part of the authority
concerned for which a public servant could move the Tribunal. Advocate
General who had appeared before the High Court on behalf of the State very
fairly stated that the ’inaction’ or ’omission’ to Act could also be challenged
before the Tribunal. Since no explanation/clarification had come in the Act,
the High Court observed:
"Now it is certain that there is no remedy provided
in the Act to the Government employee to
approach the Services Tribunal as far as non-action
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of the State Government is concerned. Therefore
we are of the considered opinion that now the
remedy open to such incumbent is under Article
226 of the Constitution of India. It could be a
blessing in disguise to such employees as this
Court can even grant interim relief under Article
226 of the Constitution of India."
After detailed examination of the various submissions made before it,
the High Court upheld the constitutional validity of the Act as well as the
subsequent amendments made therein. In the concluding portions the High
Court culled out the conclusions as follows:
"(i) The composition of the Tribunal as
provided by the impugned Act is
constitutional and valid.
(ii) The State Legislature is competent to
enact, revalidate on re-enact any provision
of law.
(iii) The impugned Act (U.P.Act No.5 of
2000) does not suffer from any colourable
exercise of power.
(iv) The impugned Act is not inconsistent
with the rights guaranteed in Part III of the
Constitution.
(v) By issuance of the impugned Act
there has neither been violation of
fundamental rights nor violation of the
principles of basic structure of the
Constitution.
(vi) For non-action on the part of State
Government in relation to service matters of
the State employees the remedy open is only
under Article 226 of the Constitution of
India."
Shri Venugopal, learned senior advocate appearing in Civil Appeal
No. 3946 of 2001 did not raise the point regarding the legislative
competence of the State Legislature to enact the Act or the various
amendments brought therein. The only submission made by him is that the
amendments brought about in the Act are violative of fundamental rights
guaranteed to a public servant in the spirit of Social Justice and Welfare
State concepts which constitute the backbone of the Indian Constitution and
basic structure of the Constitution. For effective adjudication to a cause of
action complete jurisdiction to grant relief including the interim relief should
vest in one and the same forum. Single cause of action cannot be split and
divided for getting the interim and final relief in two different forums. A
public servant is required to approach the Tribunal to challenge the order of
its termination whereas for getting an interim relief against the order of
termination he is forced to approach the High Court. Right to get interim
relief is ancillary to the main relief and therefore should vest in one and the
same forum. Splitting of the cause of action for getting the relief interim
and the final works out to be iniquitous, onerous and oppressive. More often
and so, the High Court may not intervene for giving interim relief as it is
precluded from going into the dispute on merits at the first instance which
practically leaves the litigant from getting any immediate relief against an
order of transfer, termination, suspension, removal, dismissal etc. It also
results in additional expenses to the litigant thus defeating the purpose of the
Act itself. For the said reasons, according to him, sub-section 5B and 5C are
violative of Article 14 and 16 of the Constitution being arbitrary.
Shri Ranjit Kumar, learned senior advocate appearing in Civil Appeal
Nos. 3947 & 3948 of 2001 contended that object of the amendments was to
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bring the U.P. Public Services (Tribunal) Act, 1976 in tune with the
Administrative Tribunals Act, 1985 whereas it is to the contrary. That the
impugned judgment does not deal with the question regarding holding of the
post of a Vice-Chairman by a non judicial member. In other respects he
adopted the submissions made by Shri Venugopal.
Shri P.P.Rao, learned senior counsel appearing for the respondents
contraverted the submissions made by the respective counsels appearing for
the appellants in the two sets of appeals. It was contended by him that a
litigant is not left without any remedy. He has a right to approach the High
Court under Article 226 of the Constitution of India for redressal of his
grievance for interim relief. Power to grant interim relief from the Tribunal
has not been taken away completely. It has only been taken away partially.
Referring to the following judgments viz. (i) Delhi Cloth & General Mills
Co. Ltd. v. Shri Rameshwar Dyal & Another reported in 1961 (2) SCR 590,
(ii) U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan reported in
1993 Supp. (3) SCC 483; and (iii) State of Haryana v. Suman Dutta reported
in 2000 (10) SCC 311, it was contended that this Court has consistently been
of the view that final relief could not be given at the interim stage. In case
the order of suspension or termination or dismissal or removal is stayed at
the interim stage it amounts to allowing the petition itself at the interim
stage. This Court in State of Haryana’s case(supra) has held that order of
termination could not be stayed by interim order. In case any public servant
is finally ordered to be reinstated after quashing the order of termination,
removal, dismissal, suspension etc., he can be compensated by the courts by
appropriately moulding the relief whereas in cases where the order of
removal, dismissal, termination etc. is stayed at the interim stage but later on
the petition is dismissed then the courts cannot mould the relief to undo the
mischief resulting from the interim order passed. That constitution of the
forum to get redressal of grievance, the procedure prescribed and the right to
file an appeal, revision etc. are all creations of statute and the State
Legislature was competent to enact such a law. The same was not violative
of Articles 14 & 16 of the Constitution. Under the circumstances it was
contended by him that taking away of the jurisdiction to grant interim relief
against an order of suspension, dismissal, removal, deduction of rank,
compulsory retirement or reversion of a public servant or to grant interim
relief against an order of transfer or against an adverse entry made in the
record is not violative of Article 14 & 16 of the Constitution.
The constitutional validity of an Act can be challenged only on two
grounds, viz., (i) lack of legislative competence; and (ii) violation of any of
the fundamental rights guaranteed in Part III of the Constitution or of any
other constitutional provisions. In State of Andhra Pradesh v. McDowell &
Co. & others, 1996 (3) SCC 709, this Court has opined that except the
above two grounds there is no third ground on the basis of which the law
made by the competent legislature can be invalidated and that the ground of
invalidation must necessarily fall within the four corners of the
aforementioned two grounds.
Power to enact a law is derived by the State Assembly from List II of
the Seventh Schedule of the Constitution. Entry 41 confers upon a State
Legislature the power to make State Public Services: State Public Services
Commission. Under this Entry, a State Legislature has the power to
constitute State Public Services and to regulate their service conditions,
emoluments and provide for disciplinary matter etc. The State Legislature
had enacted the U.P. Public Services Tribunals Act, 1976 in exercise of the
power vested in it by Entry 41 of List II of seventh schedule. Power to enact
would include the power to re-enact or validate any provision of law in the
State Legislature provided the same falls in a entry of List II of the VII
Schedule of the Constitution with the restriction that such enactment should
not nullify a judgment of the competent court of law. The legislative
competence of the State to enact the U.P.Public Services Tribunal has not
been questioned in these appeals. The challenge put forth is to various
amendments made is that the same are violative of Articles 14 and 16 of the
Constitution being arbitrary as they are onerous and work inequitably. In the
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present appeals legislative action of the State is under challenge. Judicial
system has an important role to play in our body politic and has a solemn
obligation to fulfil. In such circumstances it is imperative upon the courts
while examining the scope of legislative action to be conscious to start with
the presumption regarding the constitutional validity of the legislation. The
burden of proof is upon the shoulders of the incumbent who challenges it.
It is true that it is the duty of the Constitutional Courts under our
Constitution to declare a law enacted by the Parliament or the State
Legislature as unconstitutional when the Parliament or State Legislature had
assumed to enact a law which is void, either from want of constitutional
power to enact it or because the constitutional forms or conditions have not
been observed or where the law infringes the fundamental rights enshrined
and guaranteed in Part III of the Constitution.
In State of Bihar & Others v. Bihar Distillery Ltd. & Others reported
in 1997 (2) SCC 453, this Court indicated the approach which the Court
should adopt while examining the validity/constitutionality of a legislation.
It would be useful to remind ourselves of the principles laid down which
read:
"The approach of the court, while examining the
challenge to the constitutionality of an enactment,
is to start with the presumption of constitutionality.
The Court should to try to sustain its validity to the
extent possible. It should strike down the
enactment only when it is not possible to sustain it.
The court should not approach the enactment with
a view to pick holes or to search for defects of
drafting, much less inexactitude of language
employed. Indeed any such defects of drafting
should be ironed out as part of the attempt to
sustain the validity/constitutionality of the
enactment. After all, an Act made by the
legislature represents the will of the people and
that cannot be lightly interfered with. The
unconstitutionality must be plainly and clearly
established before an enactment is declared as
void. The same approach holds good while
ascertaining the intent and purpose of an
enactment or its scope and application (para 17)."
In the same paragraph the Court further observed as follows:
"The Court must recognize the fundamental nature
and importance of legislative process and accord
due regard and deference to it, just as the
legislature and the executive are expected to show
due regard and deference to the judiciary. It
cannot also be forgotten that our Constitution
recognizes and gives effect to the concept of
equality between the three wings of the State and
the concept of "checks and balances" inherent in
such scheme."
In the light of what has been stated above, we proceed to examine the
challenge to the various provisions of the Act.
The newly added sub-section (1) of Section 4 contemplates that
subject to the provisions of the Act a person who is and has been public
servant being aggrieved by an "order" pertaining to the service matters
within the jurisdiction of the Tribunal may make a reference to the Tribunal
for redressal of his grievances. Counsel appearing for the respondents fairly
stated before us as had been stated by the Advocate General appearing for
the State before the High Court that an "order" would also mean "omission"
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and "inaction" on the part of the authority concerned for which the public
servant can move the Tribunal. In the written statement filed by the
respondents in the High Court it was stated that an order would include an
"omission" or "inaction" on the part of the authority concerned and open to
challenge. Since no such amendment or clarification had come in the Act,
the High Court observed that an "omission" and "inaction" on the part of the
authority could be challenged by filing a writ petition under Article 226 of
the Constitution of India in the High Court. It was observed that there is no
remedy provided in the Act to the Government employee to approach the
Services Tribunal as far as non-action of the State Government is concerned.
The only remedy open is under Article 226 of the Constitution of India.
We agree with the view taken by the High Court that unless a
clarification is made by the Legislature in the Act clarifying that an order
would include an "omission" or "inaction" on the part of the authority, the
"inaction" on the part of the authority can be challenged in High Court by
filing the writ petition under Article 226 of the Constitution of India. It
cannot be said that the public servant is left without a remedy to challenge
any omission or inaction on the part of the authority. Inaction by itself is an
independent cause of action and the High Court can effectively deal with the
same.
Sub-sections (5-B) of Section 5 was introduced earlier in the principal
Act by Act No. 1 of 1977 after the same was assented to by the President of
India on 10th January, 1977. The same was challenged in the High Court in
the year 1978 by filing a Writ Petition No. 4255 of 1978. The validity of
Sub-section (5-B) was upheld which decision was not challenged in appeal.
The High Court relying upon the reasons recorded in the earlier writ petition
upheld the vires of sub-Section (5-B). Since a point has been raised that
earlier decision by the two Judges and the now the matter was being
considered by a larger Bench of five Judges, the full Bench should have
examined the point afresh and record an independent reason instead of
upholding the validity of Sub-Section (5-B) for the reasons recorded in the
earlier judgment by two Judges. We proceed to examine the validity of
Sub-sections (5-B) and(5-C) of Section 5 independently of what had been
held by the High Court in Writ Petition No. 4255 of 1978.
Before we make a reference to the various provisions of that Act
under challenge and examine their validity it would be useful to refer to
certain decisions of this Court wherein the grant of interim stay in cases of
dismissal, termination or suspension has been examined.
In Delhi Cloth and General Mills Co. Ltd. case (supra) this Court
examined the point as to whether a workman could be ordered to be
reinstated as an interim measure pending final adjudication by the Tribunal
under the Industrial Disputes Act. In the said case the employer dismissed
the workman for disobeying the orders of the managing authority. The
workman filed an application before the Industrial Tribunal under Section
33-A of the Industrial Disputes Act, 1947 contesting his dismissal on various
grounds, whereupon the Tribunal passed an order to the effect that as an
interim measure the workman be permitted to work and if the management
failed to take him back his full wages be paid from the date he reported for
duty. The employer challenged the order of the Tribunal by filing a writ
petition before the High Court which was dismissed. On appeal by a
certificate of the High Court it was held that the order of reinstatement could
not be given as an interim relief because that would be giving the employee
the very relief which he would get if order of dismissal is not found to be
justified. Order passed by the Tribunal was held to be manifestly erroneous
and set aside. It was observed:
"...We are of opinion that such an order
cannot be passed in law as an interim relief,
for that would amount to giving the
respondent at the outset the relief to which
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he would be entitled only if the employer
failed in the proceedings under s. 33-A. As
was pointed out in Hotel Imperial’s case
(1960(1) SCR 476, ordinarily, interim relief
should not be the whole relief that the
workmen would get if they succeeded
finally. The order therefore of the Tribunal
in this case allowing reinstatement as an
interim relief or in lieu thereof payment of
full wages is manifestly erroneous and must
therefore be set aside... "
In U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. case (supra) it
was held by this Court that it was desirable that an order of suspension
passed by a competent authority should not be ordinarily interfered by an
interlocutory order pending the proceeding. It was observed:
"...Whether the employees should or should not
continue in their office during the period of inquiry
is a matter to be assessed by the authority
concerned and ordinarily, the Court should not
interfere with the orders of suspension unless they
are passed mala fide and without there being even
a prima facie evidence on record connecting the
employees with the misconduct in question..."
In Suman Dutta’s case (supra) this Court set aside the order passed by
the High Court staying the order of termination as an interim measure in the
pending proceeding. It was observed:
"...We are clearly of the opinion that the High
Court erred in law in staying the order of
termination as an interim measure in the pending
writ petition. By such interim order if an
employee is allowed to continue in service and
then ultimately the writ petition is dismissed, then
it would tantamount to usurpation of public office
without any right to the same...."
Transfer is an incident of service and is made in administrative
exigencies. Normally it is not to be interfered with by the courts. This
Court consistently has been taken a view that orders of transfer should not be
interfered with except in rare cases where the transfer has been made in a
vindictive manner.
From the above quoted decisions, it is evident that this Court has
consistently been of the view that by way of interim order the order of
suspension, termination, dismissal and transfer etc. should not be stayed
during the pendency of the proceedings in the Court.
Sub-section (5-B) provides that the Tribunal shall have not the power
to make an interim order (whether by way of injunction or stay or in any
other manner) in respect of an order made or purporting to be made by an
employer for the suspension, dismissal, removal, reduction in rank,
termination, compulsory retirement or reversion of a public servant.
Dismissal, removal, termination and compulsory retirement puts an end to
the relationship of employer and employee. In case of suspension,,
reduction in rank or reversion the relationship of employer and employee
continues. Interference at the interim stage with an order of dismissal,
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removal, termination and compulsory retirement would be giving the final
relief to an employee at an interim stage which he would have got in case the
order of dismissal, removal, termination and compulsory retirement is found
not to be justified. If the order of dismissal, removal, termination and
compulsory retirement is set aside then an employee can be compensated by
moulding the relief appropriately in terms of arrears of salary, promotions
which may have become due or otherwise compensating him in some other
way. But in case the order of dismissal, removal, termination and
compulsory retirement is found to be justified then holding of the office
during the operation of the interim order would amount to usurpation of an
office which the employee was not entitled to hold. The action becomes
irreversible as the salary paid to the employee cannot be taken away as he
has worked during that period and the orders passed by him during the
period he holds office (because of the interim order) cannot also be put at
naught. The Legislature in its wisdom thought it proper not to confer the
power to grant interim relief on the Tribunal. State Legislature had the
legislative competence to constitute a service tribunal and it was for it to
define the parameters of the jurisdiction of the Tribunal. An employee is not
left without any remedy. Judicial review of an order regarding which the
jurisdiction of the Tribunal is barred would be available by approaching the
High Court by filing petition under Article 226 or 227 of the Constitution of
India. In an extreme and rare case where the order is passed mala fide or
without following the procedure under the law then the employee can
certainly approach the High Court under Article 226 of the Constitution for
the interim relief. The High Court in such an extreme and rare case may in
its wisdom stay the operation of the said order. In the case of suspension,
reduction in rank or reversion the relationship of employer and employee
remains. Normally, the suspension is made during a contemplated or a
pending enquiry. During the suspension period the employee is entitled for
the suspension allowance. If the suspension continues for indefinite period
or order of suspension is passed mala fide then it would be open to the
employee to challenge the same by approaching the High Court under
Article 226 of the Constitution of India. In case the order of reduction in
rank or reversion is set aside then the employee can be compensated by
adequately moulding the relief while giving the relief at the final stage.
Power of the Tribunal to grant interim relief has been taken away qua
certain matters not completely. The power has been taken away in matters
where the grant of said relief at the interim stage would result in giving the
relief which would normally be given while disposing of the case finally.
Simply because in a rare cases of microscopic number a case is made out for
stay of orders of suspension, transfer, reduction in rank, reversion or
termination, dismissal and compulsory retirement and the employee is liable
to approach the High Court for interim stay by itself is no ground to strike
down the law enacted by a Legislative which is within its competence to
enact.
Sub-section (5-C) of Section 5 contemplates that the Tribunal shall
have no power to make an interim order in respect of an adverse entry.
Adverse entry in the confidential report does not affect the conditions of
service of a public servant. Making of an entry in the confidential report is
an administrative act based on the subjective satisfaction of the superior
officer done on the objective criteria. It is an assessment of the performance
of the Government servant in one year. Assessment of performance in the
past year may become a criteria affecting the future prospectus of the
employee. Invariably an adverse entry results in the passing of an order by
the employer at a later stage and such an order may result in giving rise to a
cause of action. Sub-section (5-C) does not debar the public servant to
challenge the adverse entry made in the record. The adverse entry made in
the service record is open to challenge and a public servant can approach the
Tribunal to challenge the adverse entry made in the confidential report.
Tribunal if satisfied can set aside the adverse entry by way of a final order
but stay of the adverse entry at the interim stage may not be an appropriate
relief. The reasons given by us for upholding the validity of Sub-section
(5-B) would equally apply for upholding the validity of Sub-section (5-C) as
well.
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Sub-sections (5-B) and (5-C) are not arbitrary as contended by the
counsel for the appellant as this Court in earlier cases has taken the view
that orders of suspension, dismissal, removal, reduction in rank,
termination, compulsory retirement or reversion of a public servant
normally should not be interfered with at an interim stage as the employee
can be suitably compensated in case the order of suspension, dismissal,
removal, etc. is found not to be in order. The cases in which the operation
of orders of dismissal, removal, termination etc. is stayed by way of
interim order is later on upheld at the final stage then it results in wrong
usurpation of the office by the employee during the operation of the interim
order. This act becomes irreversible and the employer cannot be suitably
compensated by moulding the relief at the final stage. In an extreme and
rare case where the order is prima facie on the face of it is mala fide or bad
in law then it is open to a public servant to approach the High Court by
filing a writ petition under Article 226 of the Constitution of India for stay
of such an order. The employee is not left without any remedy. In an
extreme and rare case an employee is to approach the High Court for
interim relief resulting in some extra expense by itself is no reason to strike
down the Sub-section (5-B) being arbitrary and violative of Articles 14 and
16 of the Constitution of India.
The Principal Act was promulgated in 1976 for adjudication of the
disputes pertaining to employment matters of public servants of the State
Government and the employees of the Government Corporations and
Companies, local authorities etc. and the jurisdiction of the civil courts for
redressal of their grievances was taken away. It was set up with five
Tribunals and each Tribunal was independent and consisted of one Judicial
member and one administrative member. Out of them one member was the
Chairman. Constitution of the Tribunal was challenged in the High Court
successfully. Consequently, the Original Act was amended by U.P. Act No.
7 of 1992. Sub-sections 3 (1), (2) (3) and (6) were amended. The
Tribunal was constituted of one Chairman, a Vice Chairman at least five
Judicial Members and Five Administrative Members which were to
function at different Benches consisting of a Single Member or two
members for the disposal of such references of claims and other matters as
may be specified by the Chairman. Under the Act 7 of 1992 an
Administrative Member could be appointed as Chairman and in fact Shri
Venkatramani, IAS was appointed as the Chairman. This Act was
challenged by filing a writ petition in Sanjai Kumar Srivastava in the High
Court. It was contended that administrative member could not become a
Chairman and the appointment of Chairman, Vice Chairman and members
could not be made without consulting the Chief Justice of the State. This
objection was upheld and accordingly Section 3 (3)(c ) and Section 3 (4)(c)
of the Act were struck down. State was permitted to make suitable
amendments to bring about suitable amendments in the Act. It was also
directed that in future all appointments to the Tribunal be made only after
effective consultation with the Chief Justice of the State. Special Leave
Petition filed against the judgment was dismissed by this Court. The
Government thereafter deleted the offending clauses of Section 3(3)(c) and
Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was
promulgated which culminating in the passing of Act 5 of 2000. Section 3
(2) of the Principal Act was substituted for the words "a Vice-Chairman",
the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)".
From now onwards there are two Vice chairmen instead of one Chairman.
In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-
section (4-A) was inserted which prescribed the qualification for
appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was
the same as was earlier in Sub-section 4 (b) by deleting the words "or an
Administrative". The new Sub-section (4-A) (b) was an addition now
added in 1999. This is in pari materia of Section 6 (2)(b) of the
Administrative Tribunals Act, 1985 except the words "Additional
Secretary" instead of "Secretary" to the Government of India. Sub-Section
(4-A) (b) is the same as the original Section 3 (6) except adding the words
as under:
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" "has adequate experience", the words
"has, in the opinion of the State
Government, adequate experience" have
been added. "
Challenge to Sub-Section (4-A) (b) of Section 3 that the same is not in
conformity with the judgment in Sanjai Kumar Srivastava case is unfounded
because this sub-section is in pari materia with Section 6(2)(b) of the
Administrative Tribunals Act, 1985. Sub-Section (7) in Section 3 was also
substituted by adding the words "State Government after consultation with
the Chief Justice for which proposal will be initiated by the State
Government." In other words, the power of appointments with the State
Government has been retained but the same has to be exercised in
consultation with the Chief Justice of the High Court as directed by the High
Court in Sanjai Kumar Srivastava case.
Appointment of the Chairman, Vice-Chairmen (Judicial) and
(Administrative) and members has now to be made in consultation with the
Chief Justice of the High Court. Submission that the amendment carried out
in Section 3 regarding appointment of Chairman, Vice-Chairmen (Judicial)
as well as (Administrative) and members is not in conformity with the
corresponding provisions of Administrative Tribunals Act, 1985 has no
substance.
For the reasons stated above, we find that the State Legislature was
competent to enact the impugned provisions. Further that the provisions
enacted are not arbitrary and therefore not violative of Articles 14, 16 or any
other provisions of the Constitution. They are not against the basic structure
of the Constitution of India either. Accordingly, we do not find any merit in
these appeals and the same are dismissed with no order as to costs.