In recent decisions, the Single Bench of the J&K High Court & Delhi High Court held that, in service matters the High Court lacks original jurisdiction under Article 226 of Constitution of India to entertain service writ petition or even try and adjudicate the pending service matters.

A Bench of Justice Ali Mohammad Magrey of J&K High Court in Writ Petition (C) No. 47-A/2020 titled Fehmeeda Akhter Vs UT of J&K & Ors., Vide its Judgment dated 20.05.2020 and The Bench of Justice Jyothi Singh of Delhi High in W. P (C) 3334/2019 titled Prabhat Ranjan Deo Vs Union Public Service Commission & Ors. Vide its Judgment dated 13.07.2020, while placing reliance on the landmark Apex Court decision L.Chandra Kumar (supra) observed that:
It is clear that after the authoritative pronouncement of the Constitution Bench of the Supreme Court, High Court cannot entertain the service writ petition and remedy lies only before the Central Administrative Tribunal.

The principles laid down in L. Chandra Kumar (supra) are binding on High Courts in view of Article 141 of the Constitution of India. Reliance is also placed on the Judgement of the Supreme Court in [Kendriya Vidyalaya Sangathan & Anr. Vs. Subhas Sharma, (2002) 4 SCC 145], where the Supreme Court, relying on [L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261], held that the High Court erred in law in directly entertaining the Writ Petition concerning service matters of employees of Kendriya Vidyalaya, as these matters directly come under the jurisdiction of the Central Administrative Tribunal.

Introduction
Administrative Tribunals have existed in a rudimentary form for quite some time. In 1958, in order to relieve the Courts, from the burden of service litigation, the Law Commission recommended the establishment of Tribunals consisting of Judicial and Administrative Members to decide service matters. The Central Government appointed a Committee under the Chairmanship of Justice J. C. Shah of the Supreme Count of India in 1969, which also made similar recommendations. In 1975, Swaran Singh Committee again recommended the setting up of Service Tribunals. The idea of setting up of Service Tribunals is to save the Courts from the avalanche of Writ Petitions and appeals in service matters.

This also found favour with the Supreme Court of India in [Kamal Kanti Dutta & Ors. Vs. Union of India & Ors, AIR 1980 SC 2056]. It was against this backdrop that the Parliament passed the Constitution (42nd Amendment) Act, 1976 which added Part XIV – A to the Constitution of India. Article 323-A of Constitution of India enabled Parliament to constitute Administrative Tribunals for dealing with certain matters like recruitment and conditions of service of persons appointed to Public Services and Posts in connection with the affairs of 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; while Article 323-B of Constitution of India empowers the appropriate legislature i.e. both the Parliament and the State legislatures to establish Tribunals for the adjudication or trial of any disputes, complaints or offences with respect to matters like levy, assessment, collection and enforcement of any tax, ceiling on urban property, elections to the Houses of Central or State legislatures and any other matter. Parliament was further empowered to prescribe by law the jurisdiction, power, authority and procedure of such Tribunals and also to exclude the jurisdiction of all the Courts except that of the Supreme Court under Article 136 of Constitution of India. Considering these provisions of the Constitution of India, Parliament enacted Administrative Tribunals Act, 1985 which came into effect on November 01, 1985 for the establishment of Central Administrative Tribunals for deciding service disputes of civil servants of the Centre as well as of the States.

Establishment of the Central Administrative Tribunal under the Administrative Tribunals Act, 1985 is one of the important steps taken in the direction of development of Administrative Law in India. The Act has been passed by the Parliament in pursuance of Article 323-A of the Constitution of India.

This Article, empowers the Parliament to establish Administrative Tribunals for dealing exclusively with service matters of Government servants, and also provides for exclusion of jurisdiction of all the Courts excepting the Supreme Court. Even before Article 323-A of Constitution of India was enacted Tribunals existed in various areas and their existence was recognised by the Constitution of India, but they were not intended to be an exclusive forum, and therefore, they were subject to Judicial Review by the High Courts' under Articles 226 and 227 of Constitution of India.

Distinct from this existing Tribunal System, a new experiment has been introduced by Article 323-A of Constitution of India which provides for exclusion of the jurisdiction of the High Courts' under Articles 226 and 227 of Constitution of India, notwithstanding any other provisions in the Constitution of India. The object of this experiment is to lessen the backlog of cases pending before the High Courts and to provide an expert and expeditious forum for disposal of disputes of Government servants relating to service matters.

As this experiment was to affect the existing constitutional arrangement relating to Tribunal System, it was introduced as a constitutional provision through the Forty-Second Amendment of the Constitution of India. Whatever might have been the motive and peculiarities of the circumstances in which the Forty-second Amendment was passed, it cannot be denied that Article 323-A of Constitution of India was one of the plus points of this Amendment.

That is why even one of the critics of the Forty-Second Amendment, Dr Rajeev Dhavan, said something positive about the new Tribunal System, envisaged under Article 323-A of Constitution of India. He observed:
The Forty-Second Amendment envisaged a Tribunal structure and limited review powers by the High Courts. In the long run, this could mean a streamlined system of Tribunal Justice under the superintendence of the Supreme Court. Properly worked out such a system is not a bad one. It would be both an Indian and a Common Law Adaptation of the French System of droit administrative.

The Tribunal System as envisaged by Article 323-A of Constitution of India has been established under the Administrative Tribunals Act, 1985 and the Central Administrative Tribunal started working since 1st. November, 1985. While the Act makes it clear that it is the Tribunal, the forum of first instance to consider and decide the services matters of employees of Central Government and the Union Territories, the statutory provisions about the power, jurisdiction and authority of the Tribunal are as follows:
While the Act makes it clear that it is the Tribunal, the forum of first instance to consider and decide the services matters of employees of Central Government and the Union Territories, it also provides for exemption of few where the Act will not apply.

The Section 2 of Central Administrative Tribunal Act, 1985 providing for exemption of its applicability, is being reproduced, for facility of reference, as hereunder:
2. Act not to apply to certain persons- The provisions of this Act shall not apply to:

1. Any member of the naval, military or air forces or of any other armed forces of the Union;
2. Any officer or servant of the Supreme Court or of any High court [or Courts subordinate thereto];
3. Any person appointed to the secretarial staff of either House of Parliament or to the secretarial staff of any State Legislature or a House thereof or, in the case of Union Territory having a Legislature, of that Legislature.

Section 14 (1) which vests in the Tribunal the jurisdiction of all the Courts in respect of service matters, says:

Section 14 - Jurisdiction, power and authority of the Central Administrative Tribunal;

1. Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to:
   
   
   1. recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
      
      
   2. all service matters concerning:
      
      1. a member of any All-India Service; or
      2. a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or
      3. a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;
         
         
   3. all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.

Section 28 (1) which excluded jurisdiction of the Courts says:

Exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution of India.

Section 28:

On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no Court except:

1. the Supreme Court; or
2. any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have], or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.

Section 29 (1) which provides for transfer of the pending cases says:

Section 29 - Transfer of pending cases:

1. Every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:
   Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.
   
   
2. Every suit or other proceeding pending before a Court or other authority immediately before the date with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation [or society], being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after the said date, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:
   Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.
   
   Explanation:
   For the purposes of this sub-section date with effect from which jurisdiction is conferred on a Tribunal, in relation to any local or other authority or corporation [or society], means the date with effect from which the provisions of sub-section (3) of section 14 or, as the case may be, sub-section (3) of section 15 are applied to such local or other authority or corporation [or society].
   
   
3. Where immediately before the date of establishment of a Joint Administrative Tribunal any one or more of the States for which it is established, has or have a State Tribunal or State Tribunals, all cases pending before such State Tribunal or State Tribunals immediately before the said date together with the records thereof shall stand transferred on that date to such Joint Administrative Tribunal.
   
   Explanation:
   For the purposes of this sub-section, State Tribunal means a Tribunal established under sub-section (2) of Section 4.
   
   
4. Where any suit, appeal or other proceeding stands transferred from any Court or other authority to a Tribunal under sub-section (1) or sub-section (2):
   
   1. the Court or other authority shall, as soon as may be after such transfer, forward the records of such suit, appeal or other proceeding to the Tribunal; and
   2. the Tribunal may, on receipt of such records, proceed to deal with such suit, appeal or other proceeding, so far as may be, in the same manner as in the case of an application under Section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.
      
      
5. Where any case stands transferred to a Joint Administrative Tribunal under sub-section (3), the Joint Administrative Tribunal may proceed to deal with such case from the stage which was reached before it stood so transferred.
   
   
6. Every case pending before a Tribunal immediately before the commencement of the Administrative Tribunals (Amendment) Act, 1987 (51 of 1987), being a case the cause of action whereon it is based is such that it would have been, if it had arisen after such commencement, within the jurisdiction of any Court, shall, together with the records thereof, stand transferred on such commencement to such court.
   
   
7. Where any case stands transferred to a Court under sub-section (6), that Court may proceed to deal with such case from the stage which was reached before it stood so transferred.]
   Constitutional validity of Section 28 of the Act was challenged before the Supreme Court in [S. P. Sampath Kumar Vs. Union of India & Ors., (1987) 1 SCC 124]. It was argued mainly that judicial review is a fundamental aspect of the Constitution and as the impugned provision takes away judicial review by the High Courts' under Articles 226 and 227, it affects the basic structure of the Constitution.

This argument was rejected by the Court. Speaking on this point (for himself, V. Khalid, G. S. Oza and M.M. Dutt, JJ.) Ranganath Misra, J. (as he then was) held that the judicial review envisaged as the basic structure of the Constitution does not suggest that effective alternative institutional arrangements cannot be made. Therefore, once the judicial review by the Supreme Court is left wholly unaffected, the exclusion of the jurisdiction of the High Courts' under Articles 226 and 227 does not render the impugned provision of the Act as unconstitutional because it does not affect the basic structure. Similar view has been expressed by P. N. Bhagwati, C.J. in his concurring judgment.

Also, referring to the various provisions of the Act, Ranganath Misra, J. pointed out that the Act has been enacted to implement the object of Article 323-A of the Constitution which itself provides for exclusion of the High Court's power of judicial review, and, therefore, Section 28 of the Act is not violative of the Constitution.

Referring to Article 323-A, constitutional validity of which was not questioned, P. N. Bhagwati, C.J. and Ranganath Misra, J. further clarified that this Article impliedly requires that the alternative institutional arrangement must be equally effective and efficacious as the High Courts. Consequently the Court struck down Section 6 (1)(c) of the Act, and also directed certain amendments in it, before a specified date. Through this holding the Court mainly ensured that:

1. the Tribunal shall have as its Chairman a legally trained person who is equal to the Chief Justice of a High Court with respect to qualifications;
2. the Tribunal has Benches at the seat of all the High Courts';
3. a Bench of the Tribunal should consist of at least one Judicial member and one Administrative member;
4. the appointments to the Tribunal should be fair and objective so that the impartiality of its Chairman, Vice-Chairman, and members is assured.

Speaking about the status of the Tribunal, thus created, Ranganath Misra, J. rightly observed:
Thus the Tribunal is a substitute of the High Court and is entitled to exercise the powers thereof.

The Constitution Bench of the Supreme Court in [L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261] laid down that the Tribunals created pursuant to Article 323-A or under Article 323-B of the Constitution of India are competent to hear matters entrusted to them and will continue to act as only Courts of 'first instance' in respect of the areas of law for which they have been constituted. Supreme Court categorically observed that it will not be open for litigants to directly approach the High Court even in cases where there is a challenge to the vires of statutory Legislation, by overlooking the jurisdiction of the concerned Tribunal, with a cautious caveat that the Tribunal shall not entertain a challenge regarding the vires of the Parent Statute, following the settled principle that a Tribunal, which is a creature of an Act, cannot declare that very Act to be unconstitutional. In the latter case alone, Supreme Court observed, that the High Court concerned may be approached directly.

This observation of the Supreme Court made in Para 93 of the Judgement was reiterated in the penultimate Paragraph 99, holding that the Tribunals will continue to act as Courts of 'first instance' and will have the competence and jurisdiction to test the constitutional validity of Statutory provisions and Rules.

Insofar as the jurisdiction of the High Courts' is concerned, Supreme Court further observed that the jurisdiction conferred upon the High Courts' under Articles 226/227 of Constitution of India and upon the Supreme Court under Article 32 of the Constitution of India, is a part of the inviolable basic structure of the Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred on the High Courts and the Supreme Court.

It was thereafter held that while the Tribunals would function as Courts of first instance, all decisions of these Tribunals will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.

The conundrum of jurisdiction of the High Courts' under Articles 226/227 of the Constitution of India vis-à-vis Tribunals created under Articles 323-A and 323-B of the Constitution, was resolved by the Supreme Court by its legal enunciation in the following words:
93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation.

Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception.

The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts.

We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts' even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.

99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323- B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323- A and 323-B would, to the same extent, be unconstitutional.

The jurisdiction conferred upon the High Courts' under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules.

All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts' even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.”

It is clear from the above observation of the Supreme Court that the Tribunal is a substitute of the High Court and has inherited the power to issue Any Direction, Order or Writ .... under Articles 226 and 227 of the Constitution of India with respect to the service matters.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
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