Courts Update Supreme Court issues notice in appeal filed by Orissa...

Supreme Court issues notice in appeal filed by Orissa Administrative Tribunal Bar Association

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New Delhi Sept 15(ILNS): The Supreme Court today issued a notice in an appeal filed by the “Orissa Administrative Tribunal Bar Association” challenging the abolition of the Odisha Administrative Tribunal (OAT) by a notification dated August 2, 2019, issued by the Department of Personnel Training (DoPT). 

The bench comprised of Justice L Nageswara Rao, Justice Sanjiv Khanna, and Justice BR Gavai has made an observation that the present issue consists of a ‘question of law’ that must be decided and issued notice to the Government returnable within 8 weeks.

The Petitioners have submitted in the petition that the Central government violating the provisions contained in the Administrative Tribunals Act, 1985 (AT Act) had issued a notification to abolish OAT by invoking Section 21 of the General Clauses Act, 1897 as  AT Act does not provide any of such power. 

This is not the first time when petitioners had approached the Court. Petitioner approached the concerned High Court regarding the same by filing a Writ Petition which has been dismissed against which the petitioners had approached the Apex Court.

BRIEF FACTS 

The matter arose with the amendment done in the Constitution of India with the Constitution (42nd Amendment) Act 1976. With this amendment parliament had inserted Article 323-A in the Constitution of India which states that,

“Parliament, by law, may provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and 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.”

Further, Article 323- A (2) spells out what such a law made by the Parliament should provide for and Article 323- A (3) contains a non obstante clause that states that the said provision would have effect notwithstanding anything contained in any other provision in the Constitution, or in any other law, for the time being in force. The Statement of Object and Reasons (SOR) appended to the 42nd Amendment Bill explained the objects of the insertion of Article 323-A of the Constitution of India being, inter alia, the reduction of “mounting arrears in High Court” and “to secure the speedy disposal of service matters”. 

Thus, in terms of Article 323-A (1) and (2) of the Constitution of India, the Parliament enacted the Administrative Tribunals Act, 1985 (‗AT Act‘) and it came into effect on 27th February, 1985. While Section 4 (1) of the AT Act talks of the establishment of the Central Administrative Tribunal (CAT), Section 4 (2) provides for the establishment of the State Administrative Tribunal (SAT). 

In Odisha, the Central Government established the OAT, by a notification dated 4th July, 1986 published in the Gazette of India that starts functioning from 14th July, 1986. 

Meanwhile several writ petitions were filed in the High Court as well as the Supreme Court of India challenging the constitutional validity of Article 323-A as well as the provisions of AT Act. 

After a long series of events ultimately, the Supreme Court in L. Chandra Kumar held 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. 

On 17th July 2013, the State of Odisha Cabinet met to consider abolition of the OAT, but this was not considered expedient at that point in time. However, when it met on 9th September 2015, the State Cabinet approved in principle the proposal for abolition of the OAT with the following observations: 

“(i) Since this proposal will lead to an increased work load for the High Court, it was decided in principle that the entire establishment of the Tribunal could be transferred to the High Court.

 (ii) Government of India will also be moved after discussing with the High Court for creating a few more judgeships in the High Court to deal with the extra work. The State Government will be totally supportive to the proposal for increasing judgeship of our High Court. Discussions will also be held with the High Court regarding the pending cases in the Tribunal.”

It may be noted at this stage, that after the decision of the Government of Odisha to abolish the OAT became public, it ceased to make appointments to fill up the vacancies in the OAT. This led to the OAT Bar Association, Cuttack filing W.P.(C) No.15693 of 2017 in this Court seeking a mandamus to the Government of Odisha to fill up the vacancies in the OAT. Another W.P.(C) No.22635 of 2017 was filed by the OSAT Bar Association, Bhubaneswar in this Court on 27th October, 2017 seeking a similar relief. 

While the said writ petitions were pending, the DoPT published in the Official gazette dated 2 nd August, 2019 the impugned notification which reads as under:

“…. in exercise of the powers conferred by sub-section (2) of section 4 of the Administrative Tribunals Act, 1985, read with section 21 of the General Clauses Act, 1897 (10 of 1897), the Central Government hereby rescinds the said notification number G.S.R. 934 (E), dated the 4th July, 1986, except as respects things done or omitted to be done before such rescission, with effect from the date of publication of this notification in the Gazette of India.”

Against this notification, petitioners moved to the High Court challenging the constitutional validity of the above notification.

High Court after going through a long hearing and placing its reliance on the Judgement given by Supreme Court in the MPAT Abolition case wherein Apex court had held that; 

“In our judgment, if a decision is illegal, unconstitutional, or ultra vires, it has to be set aside irrespective of the laudable object behind it. But once we hold that it was within the power of the State Government to continue or not to continue State Administrative Tribunal and it was open to the State Government to take such a decision, it cannot be set aside merely on the ground that such a decision was not advisable in the facts of the case or that other decision could have been taken. While exercising the power of judicial review, this Court cannot substitute its own decision for the decision of the Government.”

Accordingly, the High Court of Odisha had observed that there were sufficient materials on record to support the decision of the State of Odisha to seek the abolition of the OAT, it cannot be said that the said decision is arbitrary, irrational, or violative of Articles 14, 19 and 21 of the Constitution. 

Thus, the High Court had dismissed the petition having a view that no ground is there to interfere with the impugned notification dated August 2, 2019./ILNS/KR/SNG

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