BHARAT RAM GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner is a public servant as defined in Section 2 (b) of the Uttar Pradesh Public Services (Tribunals) Act, 1976 (hereinafter referred to as the Act). Against the order of his reversion he made a claim before the State Public Services Tribunal. He also made an application for staying the operation of the order of reversion. This application was dismissed by the Tribunal on 31st March, 1978, on the ground that in view of Section 5 -B of the aforesaid Act it was not open to it to stay the operation of the order of reversion. Aggrieved by this order the petitioner has Instituted the present writ petition.

(2.) HAVING heard counsel for the petitioner and the Standing Counsel for the respondents we, however, find ourselves unable to agree with this sub ­mission. Section 5 -B was inserted in the Act by the Uttar Pradesh Public Services (Tribunals) (Amendment) Act, 1976 (U. P. Act No. 1 of 1977). This Act received the assent of the President on January 10, 1977, and was published in the U. P. Gazette Extraordinary dated January 15, 1977. Reliance by counsel for the petitioner was placed on Article 323 -A of the Constitution inserted by Section 46 of the Constitution (42nd Amendment) Act, 1976. By notification No. G. S. R. 2 (E) dated 3rd January, 1977, published in the Gazette of India (Extraordinary), Part III, on the same date, the 3rd day of January, 1977, was appointed as the date on which Section 46 of the Constitu ­tion (42nd Amendment) Act, 1976, was to come into force. This notification was issued in exercise of the powers conferred by sub -section (2) of Section 1 of the Constitution (42nd Amendment) Act, 1976. It was urged by counsel for the petitioner that in view of Article 323 -A inserted by Section 46 as aforesaid, which came into force on 3rd of January. 1977, the State legislature ceased to be competent after the said date to enact any law in regard to administrative tribunals. According to counsel for the petitioner in inserting Article 323 -A in the Constitution it was clearly intended to cover the whole field in regard to administrative tribunals and consequently the State legislature in exercise of the powers conferred on it by Entry 41 (State public Services, State Public Service Commission) of List II of the 7th Schedule to the Con ­stitution ceased to be competent to enact any law in regard to Administrative Tribunals. Article 323 -A reads : -

(3.) ON a perusal of Article 323 -A, however, we are not inclined to accept the submission made by counsel for the petitioner that the intention of the Parliament in inserting Article 323 A was to take away the legislative com ­petence of the State legislature of enacting law in regard to administrative tribunals under Entry 41 aforesaid and to confer the said power exclusively on the Parliament. On a plain reading of Article 323 -A it is apparent that power has been conferred on Parliament also by the said Article entitling it by law to provide for the adjudication or trial by the administrative tribunals of disputes or complaints referred to therein. The use of the word "may" after the word "Parliament" and before the words "by law" is significant. We are aware that "may" can in certain circumstances be also read as "shall", but in the context in which the said word has been used in Article 323 -A we find no justification to read the word "may" as "shall". The intention in enacting Article 323 -A seems to us to be that in case the Parliament in exercise of the power conferred on it by the said Article chooses to make a law as contem ­plated by the said Article, the provisions contained in Article 254 of the Constitution will be attracted. The view which we take finds support from the circumstance that even though by Section 57 of the Constitution (42nd Amendment) Act; 1976, certain new Entries were inserted in the various lists of the 7th Schedule to the Constitution and certain amendments were also made therein, but no entry in List I conferring exclusive power on the Parlia ­ment to make laws in regard to the administrative tribunals was inserted. This indicates that it was not the intention of the Parliament to cover the whole field in regard to the Administrative Tribunals. Under article 323 -A of the constitution there is no obligation on the Parliament to make a law in regard to administrative tribunals. If the submission made by counsel for the petitioner is accepted the State Legislature would cease to be competent to enact laws in regard to the administrative tribunals in spite of entry 41 of List 2 of the 7th Schedule to the Constitution being allowed to remain intact by the Constitu ­tion (42nd Amendment) Act, 1976, even if the Parliament does not choose to make any law in exercise of the power conferred on it by Article 323 -A. There is nothing in Article 323 -A including its clause (3) referred to above which may have the effect of repealing the parent Act enacted by the State legislature. So it continues to be in force. As already seen Parliament is not bound to pass an Act on the subject. Suppose some lacuna is pointed out and it becomes necessary to amend the parent Act but the Union Government is for some reason not inclined to introduce the necessary legislation in Parlia ­ment, it would create a stalemate if the interpretation placed by counsel for the petitioner on Article 323 -A is accepted. This does not seem to be the intention of the Parliament in inserting Article 323 -A in the Constitution and an interpretation which is likely to create such an anomalous situation and render an enactment validly passed by the State legislature and still in force unworkable cannot be accepted. The only reasonable interpretation of Article 323 -A including its clause (3), in our opinion, seems to be that if Parliament chooses to enact a law on the subject the provisions of Article 254 of the Constitution, as already pointed out above, will be attracted. U. P. Act No. 1 of 1977. by which Section 5 -B was inserted in the Act, as already seen above, was assented to by the President on January 10, 1977. We are consequently unable to take the view that Section 5 -B of the Act is ultra vires the powers of the State legislature. In the result the writ petition fails and is dismissed but there will be no order as to costs.