K SURESH NAYAK Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) (on the questions referred by the Division Bench) The two questions which have been referred to the Full Bench are asfollows:" (1) Whether the following question namely-'whether on the coming into force of the Administrative Tribunals Act, 1985 ('the Act' for short) and the establishment of the Administrative Tribunal, the jurisdiction of the High Court underarticle 226 of the Constitution of India to retain or entertain petitions presented under that Art. 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 or State and decide such petitions stood excluded andgot vested in the Administrative Tribunals'. WHICH was answered in the negative by this court in S. M. Pattanaik v Secretary to Government of India, ILR 1986 Kar. 3954, can be regarded ashaving been decided in the affirmative by the Supreme Court in the case ofs. P. Sampath Kumar v Union of India, AIR 1987 SC 386 : 1986 JT (SC) 996 (2) If the answer to the above question is in the negative, 'whether the statement contained in the order of the Supreme Court inchopra's case to the effect that in the case of Sampath Kumar that such aquestion had been decided in the affirmative'can be regarded as law declared within the meaning of Art. 141 of theconstitution, and therefore the ratio of the decision of this court in S. M. Pattanaik's case should be regarded as overruled or no longer good law -they arise in the following circumstances: in W. Ps. 21018 and 21019 of 1986, the petitioners are Surgeons in thedepartment of Health and Family Welfare of the State Government, and theyquestion the Constitutional validity of the Karnataka Medical Departmentservice (Recruitment) (Amendment) Rules, 1986. In W. Ps. 21492 and 21493 of1986, the petitioners are Second Division Clerks in the Revenue Department ofthe State Government, and they question the Constitutional validity of thekarnataka Revenue Subordinate Branch Services (Recruitment) Rules, 1977. The contention is that these Rules are void on the ground of violation ofarticles 14 and 16 of the Constitution of India. The writ petitions themselvescame to be referred to a Division Bench under Sec. 9 of the Karnataka Highcourt Act, 1961. The question that arose before the Division Bench forconsideration was whether on the coming into force of the Administrativetribunals Act, 1985, (hereinafter referred to as the 'act') , and theestablishment of the State Administrative Tribunal, the jurisdiction of the Highcourt under Art. 226 of the Constitution of India could still be invokedwhen a challenge is made to the Constitutional validity of any law relating torecruitment and conditions of service of persons appointed to public servicesand posts in connection with the affairs of the State, and further whether suchwrit petitions should be excluded from the purview of Art. 226 so as to beagitated before the Administrative Tribunal the Administrative Tribunals Act, 1985, was enacted by the Parliament byvirtue of the power given to it under Art. 323-A of the Constitution whichwas introduced by the Constitution (Forty-second Amendment) Act. As aresult, the Karnataka Administrative Tribunal was constituted with effect from6-10-1986. Sections 15 and 28 of the Act read as follows: "15. Jurisdiction, Power and Authority of Stale Administrative Tribunals. (1) Save as otherwise expressly provided in this Act, theadministrative Tribunal for a State shall exercise, on and from theappointed day, all the jurisdiction, powers and authority exercisableimmediately before that day by all courts (except the Supreme Court) inrelation to, (a) recruitment and matters concerning recruitment, to any civilservice of the State or to any civil post under the Slate; (b) all service matters concerning a person [not being a personreferred to in clause (c) of this sub-section or a member, person orcivilian referred to in clause (b) of sub-section (1) of Sec. 14] appointed to any civil service of the State or any civil post under the Stateand pertaining to the service of such person in connection with the affairsof the State or of any local or other authority under the control of thestatement or of any corporation or society owned or controlled by thestate Government; (c) all service matters pertaining to service in connection with theaffairs of the State concerning a person appointed to any service or postreferred to in clause (b) , being a person whose services have been placedby any such local or other authority or corporation or society or otherbody as is controlled or owned by the Slate Government at the disposal ofthe State Government for such appointment. (2) The State Government may, by notification, apply with effect fromsuch date as may be specified in the notification the provisions ofsub-section (3) to local or other authorities and corporations or societiescontrolled or owned by the State Government: provided that if the State Government considers it expedient so to do forthe purpose of facilitating transition to the scheme as envisaged by this Act,different dates may be so specified under this sub-section in respect ofdifferent classes of, or different categories under any class of, local or other authorities or corporations or societies. (3) Save as otherwise expressly provided in this Act, the Administrativetribunal for a State shall also exercise on and from the date with effect fromwhich the provisions of this sub-section apply to any local or other authorityor corporation or society, all the jurisdiction, powers and authorityexercisable immediately before that date by all courts (except the Supremecourt) in relation to, (a) recruitment, and matters concerning recruitment to any service orpost in connection with the affairs of such local or other authority or corporation or society; and (b) all service matters concerning a person [other than a personreferred to in clause (b) of sub-section (1) of this section or a member,person or civilian referred to in clause (b) of sub-section (1) of Sec. 14] appointed to any service or post in connection with the affairs of suchlocal or other authority or corporation or society and pertaining to theservice of such person in connection with such affairs. (4) For the removal of doubts, it is hereby declared that the jurisdiction,powers and authority of the Administrative Tribunal for a State shall notextend to, or be exercisable in relation to, any matters in relation to whichthe jurisdiction, powers and authority of the Central Administrativetribunal extends or is exercisable. ""28. Exclusion of jurisdiction of courts except the Supreme Court underarticle 136 of the Constitution. On and from the date from which anyjurisdiction, powers and authority become exercisable under this Act by atribunal in relation to recruitment and matters concerning recruitment toany service or post or service matters concerning members of any service orpersons appointed to any service or post, no court except (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constitutedunder the Industrial Disputes Act, 1947 (14 of 1947) orany other corresponding law for the time being in force,shall have, or be entitled to exercise any jurisdiction, powers or authority inrelation to such recruitment or matters concerning such recruitment orsuch service matters. "in the light of the above provisions, the question would be whether the writpetitions, in which the Constitutional validity of service laws had beenchallenged, could be decided only by the Administrative Tribunal, as a result ofwhich the jurisdiction of the High Court under Art. 226 of the Constitutionwould stand excluded. In other words, whether notwithstanding theseprovisions, the writ jurisdiction of the High Court still continue to be exercised this aspect, in so far as it related to Central Administrative Tribunal,came to be considered in S. M. Pattanaik v Secretary to Governmentof India, ILR 1986 (4) Kar. 3954, in which it was held by Rama Jois, J. , as follows:"neither Art. 323-A nor Sec. 2 (r) which defines 'service matter' norsection 14, 28 or 29, provide that disputes and complaints which could beraised before the tribunal would include questions relating to the constitutionalvalidity of the law regulating the conditions of service and recruitmentof civil servants. A jurisdiction of that magnitude has to be conferredand cannot be inferred. Therefore, the very absence of a provision in Article323-A of the Constitution which enables the Parliament to confer onan Administrative Tribunal the jurisdiction to decide the Constitutional validityof the laws, constitutes a strong ground to say that judicial review of legislation,which is expressly conferred on the courts established by the Constitutionitself, namely, the High Court and the Supreme Court, which wasexclusive before the insertion of Art. 323-A continues to be exclusiveeven after its insertion. As pointed out by the Supreme Court in the case ofdikshitulu, if the Parliament intended to include officers and servants ofhigh Court and subordinate courts and members of judicial service in theexpression 'civil servants' the Parliament would have expressly stated so. Similarly in this case if the Parliament intended that the Administrativetribunal to be constituted under a law enacted by the Legislature, should beinvested with the jurisdiction to decide Constitutional validity of the lawsregulating the conditions of service, it would have used the words 'includingquestions relating to the Constitutional validity of laws regulating recruitmentand conditions of service' after the words 'disputes and complaints' used inarticle 323-A of the Constitution, particularly when the jurisdiction todecide the Constitutional validity of all laws was vested in the High Court byvirtue of Art. 226 and 228 and continued to be vested in the High Courtby Art. 228-A introduced by Sec. 42 of the 42nd Amendment itself. The very fact that such words are not included in Art. 323-A (1) after thewords 'disputes and complaints' takes the jurisdiction to decide theconstitutional validity of the Laws outside the purview of Clause (1) andconsequently outside the purview of the Administrative Tribunal constitutedpursuant to a law made pursuant to the power given under the Art. andtherefore the exclusion of jurisdiction of the High Court which could beprovided for in view of clause (d) and the overriding effect given to Article323-Aby Clause (3) thereof, would not operate in respect of the jurisdictionof the High Court to decide Constitutional validity of any law regulatingrecruitment and conditions of service. "this decision has become final since it was not appealed against. It is this view which has been reiterated by the Division Bench. However, in S. P. Sampath Kumar v Union of India, AIR 1987 SC 386 : 1986jt (SC) 996 decision of a Constitution Bench, though several contentions wereurged, ultimately the contentions canvassed at the time of hearing were thefollowing:" (1) Judicial review is a fundamental aspect of the basic structure of ourconstitution and bar of the jurisdiction of the High Court under Articles 226 and 227 as contained in Sec. 28 of the Act cannot be sustained. (2) Even if the bar of jurisdiction is upheld, the tribunal being asubstitute of the High Court, its constitution and set up should be such thatit would in fact function as such substitute and become an institution inwhich the parties could repose faith and trust. (3) Benches of the tribunal should not only be established at the seat ofevery High Court but should be available at every place where the Highcourts have permanent Benches. (4) So far as tribunals set up or to be set up by the Central or the Stategovernments are concerned, they should have no jurisdiction in respect ofemployees of the Supreme Court or members of the subordinate judiciaryand employees working in such establishments inasmuch as exercise ofjurisdiction of the tribunal would interfere with the control absolutelyvested in the respective High Court in regard to the judicial and othersub-ordinate officers under Art. 235 of the Constitution. In answering the first of the contentions it was held that havingregard to the express provisions contained in Art. 323-A, the conferment of power ofjudicial review in respect of matters falling under the said Article, viz. , disputes andcomplaints relating to service matters, on the Administrative Tribunal andthereby excluding the jurisdiction of the High Court under Art. 226, couldnot be regarded as affecting the basic structure of the constitution. As regards contentions 2 to 4, observations were made in regard to the constitution of the tribunal and the qualification of the members of the tribunal, and that does not concern us in this case. The matter does not rest here. In J. B. Chopra v Union of India, AIR 1987 SC357, which came to be decided by a Division Bench consisting of two learned Judges, special leave was sought on the ground that the Administrative Tribunal had struck down certain rules framed under Art. 309 of theconstitution by the President and the tribunal had no such jurisdiction. This argument was repelled, and in so doing, reference was made to Sampath Kumar's case, and in paragraph-2 it was observed as under:"2. In S. P. Sampath Kumar v Union of India, 1986 JT (SC) 996: AIR 1987sc 386, the Constitution Bench has held that the Act is a law made byparliament under Clause (1) of Art. 323-A to exclude the jurisdiction ofthe High Courts under Articles 226 and 227 of the Constitution. Sec. 28of the Act which bars the jurisdiction of all courts except the Supreme Courtis relatable to Clause 2 (d) of Art. 323-A for adjudication of servicematters including questions involving the validity or otherwise of such lawson the ground that they abridge the fundamental rights under Articles 14and 16 (1) of the Constitution, and that the Administrative Tribunal set upunder Sec. 4 of the Act is a substitute of, and not supplemental to, thehigh Court providing an equally efficacious alternative remedy foradjudication of such disputes. It has further held that the establishment ofthe Administrative Tribunal under the Act therefore lakes away thejurisdiction and power of the High Court to interfere in such matters but itis not violative of the doctrine of judicial review which is a fundamental aspect of the basic structure of our Constitution because Sec. 28 of the Act which bars the jurisdiction of the High Court under Articles 226 and 227 of the Constitution preserves the jurisdiction and power of the Supremecourt under Articles 32 and 136 of the Constitution. It accordingly followsthat the Administrative Tribunal being a substitute of the High Court had thenecessary jurisdiction, power and authority to adjudicate upon all disputesrelating to service matters including the power to deal with all questions pertaining to the Constitutional validity or otherwise of such laws as offending Articles 14 and 16 (1) of the Constitution. That being so, the contention advanced by the petitioners that the Administrative Tribunal had no authorityor jurisdiction to strike down the impugned notification dated March 15,1980,purporting to amend Rule 4 of the Centra! Hindi Directorate (Class III andclass IV) Posts Recruitment Rules, 1961, reserving 100 per cent vacancies tothe post of Superintendent to be filled by the Head Clerks and thereby debarring Stenographers (Sr. ) from being considered for promotion to that post, as beingwholly mala fide, arbitrary and irrational and thus offending Articles 14 and16 (1) of the Constitution, must therefore fail" (emphasis supplied) THE Division Bench which has made this reference to us, proceeded to considerwhether the statement contained in Cnopra 's case, could be regarded as adeclaration of law within the meaning of Art. 141 of the Constitution. Thedivision Bench also referred to Municipal Corporation of Delhi v Gurunamkaur, 1989 SCC 101, and ultimately concluded that having regard to the greatconstitutional importance of the question which affects the jurisdiction of thehigh Courts, the two questions will have to be referred to a Full Bench. Thus,the matter is before us.

(2.) The learned counsel for the petitioners submitted that in Sampath Kumar's case, the precise question which arises in this case, viz. whetherthe Administrative Tribunal constituted under Art. 323-A of the Constitutioncould decide the Constitutional validity of service laws, was not decided. Theobservation in Chopra's case to the effect that such a question has been decidedin the affirmative in Sampath Kumar's case is not warranted. Therefore, it isurged before us that the decision of the learned single Judge in S. M. Pattanaik'scase must be held to be good law. As a matter of fact, that is thecorrect approach; otherwise, the consequences would be startling. Further, if really thejurisdiction to decide the Constitutional validity as well, was intended to beconferred on the Administrative Tribunal, it would have specifically slated so. In so far as that not having been done, it cannot be assumed. Art. 323-Amerely states 'disputes and complaints'. Only concerning this, the jurisdictionof the High Court would stand excluded, but not with regard to the adjudicationof Constitutional validity of Service Laws.

(3.) The learned Attorney-General of India, on notice from this court, submits that this is an extremely important question and the power of judicialreview being one of the basic structures of the Constitution is vested in thesupreme Court and the High Courts. In this regard, he draws our attention tothe proviso to Sec. 113, CPC, as well as Sec. 395, Cr. P. C. Under boththese provisions, the function of declaring the unconstitutionality is only withthe High Court. He then draws our attention to Art. 32 of the Constitution,particularly to Clause (4) , where without prejudice to the powers of thesupreme Court the Parliament may empower any other court to exercise suchpower. In this context, Art. 226 (4) will have to be seen because that clearlystates that the power conferred on the High Court to issue certain writs is not tobe in derogation of the power conferred on the Supreme Court by Clause (2) ofarticle 32. The power of superintendence by the High Court under Art. 227is not available over a tribunal constituted under law. Then again, under Article228 the High Court could withdraw to its file any case pending in a courtsubordinate to it if a substantial question of law as to the interpretation of theconstitution is necessary to be determined for the disposal of the case. Art. 371-D, Clause (7) makes it clear and states that the High Court shall have no powerof superintendence over the Administrative Tribunal and no other court thanthe Supreme Court could exercise the jurisdiction with regard to any matterconferred on the Administrative Tribunal. When Art. 323-Astatesadjudication or trial, whether it will take within its ambit the Constitutional validity ofany law is the question; Clause (2) , sub-clause (d) again refers to disputes andcomplaints referred to in Clause (1) ; further, Clause (3) is a non-obstanteclause. While constituting the Administrative Tribunal under the Act, thepreamble itself refers to Art. 323-A. In Sec. 3 (q) while defining 'servicematters' it says that such a jurisdiction is conferred exclusively on the tribunal. No doubt in S. M. Pattanaik 's case, the learned single Judge took the view thatthe exclusion must be express and it cannot be by way of implication. Theexclusive jurisdiction talked of in that case must be understood in the backgroundset up in paragraph-14 of the judgment. It is true that in Sampath Kumar's case, the specific question whether thehigh Court's jurisdiction under Art. 226 stands excluded did not come up forconsideration. The observations in that case must be understood as having beenmade when the court wanted to repel an argument that such exclusion would beopposed to the basic structure. It did hold that the Administrative Tribunal is asubstitute for the High Court. Based on this, in Chopra's case, when a specificquestion which has now arisen before us was sought to be decided, it was heldthat such jurisdiciion of the High Court would stand excluded. In other words,the Administrative Tribunal was competent to decide all questions pertainingto the Constitutional validity as well, as violalive of Articles 14 and 16 of theconstitution. In Union of India v Parma Nanda, AIR 1989 SC 1185, it was heldin paragraph 18 that the tribunal could exercise such powers which the civilcourt or High Court could have exercised by way of judicial review; it is neitherless nor more. As a matter of fact, in Union of India v A. I. S. Pensioners' Asociation,air 1988 SC 501, it has been held that where there is an order dismissinga special leave petition giving reasons therefor such a decision would be bindingas a precedent under Art. 141. Therefore, this court is bound by the same andit is not open to this court to hold that this is not a declaration of law underarticle 141 of the Constitution. In Chopra's case, the Supreme Court has chosento interpret Sampath Kumar's case in a particular manner. Whether thatinterpretation was warranted or not, this court cannot decide. Till, of course, thesupreme Court interprets in future and lays down a contrary ruling, it ischopra's case, which will govern the field.