Writ Petition (Civil) Nos. 261 and 539 of 2007. Case: 1. A.K. Behra, 2. P.K. Gaikwad Vs Union of India (UOI) and Anr.. Supreme Court (India)
| Case Number | Writ Petition (Civil) Nos. 261 and 539 of 2007 |
| Judges | K.G. Balakrishnan, C.J., J.M. Panchal and Dalveer Bhandari, JJ. |
| Issue | Administrative Tribunal (Amendment) Act, 2006 - Sections 8(2), 12 and 12(2); Administrative Tribunals Act, 1985 - Sections 2, 6, 6(2), 6(3), 8, 8(2), 10A, 12, 12(2), 14, 15, 16, 17 and 18; Industrial Disputes Act, 1947; Government of India Act, 1935; Equal Remuneration Act, 1976 - Sections 1(2), 4(3), 13 and 14; Indian Succession Act, 1925 - ... |
| Citation | 2010 (5) AWC 4488 (SC) , JT 2010 (5) SC 290 , 2010 (5) SCALE 473 , 2010 (5) UJ 2685 (SC) |
| Judgement Date | May 06, 2010 |
| Court | Supreme Court (India) |
Judgment:
J.M. Panchal, J.
1. In the Writ Petition (C) No. 261 of 2007, the petitioner, who is a practicing lawyer and Honorary Secretary of the Central Administrative Tribunal, Principal Bench, Bar Association, prays (1) to quash the decision of the respondents to abolish the post of Vice Chairman in the Central Administrative Tribunal as reflected in the Administrative Tribunal (Amendment) Act, 2006 and to direct the respondents to restore the said post in the Central Administrative Tribunal, (2) to declare that the newly inserted Section 10A of the Administrative Tribunals Act, 1985 to the extent it prescribes different conditions of service for the Members of the Central Administrative Tribunal on the basis of their appointment under the unamended Rules and under the amended Rules, as unconstitutional, arbitrary and not legally sustainable, (3) to direct the respondents to accord all conditions of service as applicable to the Judges of High Court to all the members of the Central Administrative Tribunal irrespective of their appointment under the unamended or amended Rules, (4) to declare that the newly inserted Section 10A of the Administrative Tribunals Act, 1985 as unconstitutional to the extent it stipulates that the total term of office of the member of the Central Administrative Tribunal shall not exceed 10 years, (5) to direct the respondents to continue all the members appointed under the unamended or amended Rules till they attain the age of superannuation of 65 years, (6) to declare, the newly inserted qualifications for appointment as administrative members as reflected in the amended Section 6(2), as arbitrary and unsustainable, and (7) to quash the newly added Section 12(2) of the Administrative Tribunals Act, 1985 authorising the appropriate Government to designate one or more members to be the Vice Chairman for exercise of financial and administrative powers as impinging upon the independence of judiciary.
2. Writ Petition (C) No. 539 of 2007 is filed by a judicial member of Maharashtra Administrative Tribunal and he prays to set aside the decision of the respondents requiring Members of the Administrative Tribunal appointed before the coming into force of Administrative Tribunals (Amendment) Act, 2006 to seek fresh appointment in accordance with the selection procedure laid down for such appointments as being arbitrary and violative of Articles 14 and 16 of the Constitution. He also prays to declare that newly introduced Section 10A, so far as it relates to consideration of members of the Administrative Tribunal for reappointment by Selection Committee, is not applicable to those, who were duly appointed as members prior to February 19, 2007. Another prayer made by him is to direct the respondents to restore his continuance as Member of Maharashtra Administrative Tribunal till he attains the age of superannuation of 65 years and to direct the respondents to accord all conditions of service, as applicable to the Judges of the High Court, to him.
3. Article 323A of the Constitution, stipulates that Parliament may by law, provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and the 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. The establishment of Administrative Tribunals under the aforesaid provisions of the Constitution had become necessary since the large number of cases relating to service matters were pending before the various courts. It was expected that the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of various courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons coming under the jurisdiction of Administrative Tribunals, speedy relief in respect of their grievances. Therefore, a Bill was introduced in the Parliament for setting up the Central Administrative Tribunal. The Bill sought to give effect to Article 323A by providing for the establishment of an Administrative Tribunal for the Union and a separate Administrative Tribunal for a State or a joint Administrative Tribunal for two or more States. The Bill inter alia provided for - (a) the jurisdiction, powers and authority to be exercised by each Tribunal, (b) the procedure to be followed by the State Tribunals, (c) exclusion of the jurisdiction of all courts, except that of the Supreme Court under Article 136 of the Constitution relating to service matters, and (d) the transfer to each Administrative Tribunal of any suit or other proceedings pending before any court or other authority immediately before the establishment of such Tribunal as would have been within the jurisdiction of such Tribunal the causes of action on which such suits or proceedings were based had arisen after such establishment.
4. The Parliament, thereafter enacted The Administrative Tribunals Act, 1985. It received the assent of the President on February 27, 1985.
5. The Central Administrative Tribunal with five Benches was established on November 1, 1985 in pursuance of the provisions of the Administrative Tribunals Act, 1985. Prior to its establishment, writ petitions were filed in various High Courts as well as in the Supreme Court challenging the constitutional validity of Article 323A of the Constitution and the provisions of the Administrative Tribunals Act. The main contention in the writ petitions was that the writ jurisdiction of the Supreme Court under Article 32 of the Constitution as well as that of the High Courts under Article 226 of the Constitution could not have been taken away even by an amendment of the Constitution. Although the Supreme Court, by an interim order stayed the transfer of writ petitions filed in the Supreme Court under Article 32 of the Constitution to the Central Administrative Tribunal, it did not stay transfer of writ petitions under Article 226 of the Constitution subject to the condition that the Government would make certain amendments in the Act. One of the amendments suggested by the Supreme Court was that each case in the Tribunal must be heard by a Bench consisting of one judicial member and one non- judicial member and the appointment of judicial members should be done in consultation with the Chief Justice of India. An undertaking was given to the Supreme Court that a Bill to make suitable amendments in the Act would be brought before the Parliament as early as possible. The Central Administrative Tribunal had also started functioning in Benches in accordance with the above directions of the Supreme Court. As the writ petitions referred to above were to come up for hearing in January, 1986, the President promulgated the Administrative Tribunals (Amendment) Ordinance, 1986 on January 22, 1986 so as to give effect to the assurance given to the Supreme Court and to make some other amendments found necessary in the administration of the Act. The Ordinance inter alia provided for the following matters, namely:
(a) The concept of Judicial Member and Administrative Member was introduced in the Act. The Bench of Administrative Tribunal was to consist of one Judicial Member and one Administrative Member instead of three members Bench to be presided over by the Chairman or by the Vice Chairman. It was also provided that the appointment of a Judicial Member would be made after consultation with the Chief Justice of India.
(b) The jurisdiction of the Supreme Court in service matters under Article 32 of the Constitution was preserved. The Principal Act had intended to confer this jurisdiction also on the Tribunals.
(c) A provision was included to designate, with the concurrence of any State Government, all or any of the members of the Bench or Benches of the State Administrative Tribunal established for that State as Members of the Bench or Benches of the Central Administrative Tribunal in respect of that State.
(d) The jurisdiction of the Tribunal was also extended to persons, who were governed by the provisions of the Industrial Disputes Act, 1947 without affecting the rights of such persons under the Act.
Subsequent to the promulgation of the Ordinance, few doubts were expressed in respect of some of the provisions of the Act and the Ordinance. It was, therefore, proposed to include in the Bill a few clarificatory amendments, to make certain provisions included in the Ordinance retrospective from the date of establishment of the Central Administrative Tribunal and to validate certain actions taken by the said Tribunal. The amendments included in the Bill were explained in the memorandum attached to the Bill. Accordingly, the Act of 1985 was amended by Act 19 of 1986 which was deemed to have come into force on January 22, 1986. By the amendment in the Act of 1985 it was proposed (1) to exclude from the jurisdiction of an Administrative Tribunal the powers to adjudicate disputes with respect to officers and employees of the subordinate courts and to make a provision for transfer of cases pending in the Administrative Tribunals to the Courts concerned; (2) that the appointment of the Chairman, Vice-Chairman and other Members of the Administrative Tribunals would be made in consultation with the Chief Justice of India. The Act, before its amendment, provided for consultation with the Chief Justice of India only in respect of Judicial Members; (3) that the Chairman, Vice- Chairman and other Members of the Administrative Tribunals would be eligible for re-appointment for a second term of office; (4) that the Central Government and the appropriate Government should be empowered to frame rules relating to salary...
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