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PETITIONER: P. SAMBAMURTHY & ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ANR.

DATE OF JUDGMENT20/12/1986

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) MISRA RANGNATH KHALID, V. (J) OZA, G.L. (J) DUTT, M.M. (J)

CITATION:  1987 AIR  663            1987 SCR  (1) 879  1987 SCC  (1) 362        JT 1987 (1)    20  1986 SCALE  (2)1168  CITATOR INFO :  R          1988 SC 334  (1)  RF         1988 SC1089  (18)  F          1989 SC  44  (9)  R          1992 SC 522  (17)

ACT:     Constitution  of India, 1950--Art. 371-D, cls.  (3)  and (5)--  Amending  Power  of  Parliament--Exclusion  of   High Court’s power of judicial review by an enactment--Not viola- tive of basic structure doctrine--If the enactment  provides for an equally effective and efficacious alternative  mecha- nism  or  authority  for  judicial  review--Proviso  to  cl. (5)--Conferring  power  on State  Government--To  modify  or annul final order of Administrative Tribunal--Held,   viola- tive of basic structure doctrine, against concept of justice and  principle of rule law--Held, ultra vires  the  amending power  of  Parliament--Main part of cl. (5),  being  closely inter-related with the proviso, held, also  unconstitutional and void.     Administrative Law: State Administrative Tribunal--Power conferred  on government to modify or annul order of  Tribu- nal--Held,  violates  rule of law as  also  basic  structure doctrine and declared unconstitutional.

HEADNOTE:     Article 371-D was introduced in the Constitution by  the Constitution (Thirty-Second Amendment) Act 1973, which  came into force with effect from 1st July, 1974, and pursuant  to c1.(3) thereof the President of India made an order on  19th May,  1975 constituting a, Administrative Tribunal  for  the State  of  Andhra  Pradesh with jurisdiction  to  deal  with service matters specified in that order.     In these petitions under Art. 32, the petitioners  chal- lenged the validity of ds. (3) & (5) of Art. 371-D. However, challenge to cl. (3) was not pressed and arguments  confined only to cl. (5). Allowing the Petitions,     HELD:  (1) Clause (5) of Art. 371-D of the  Constitution

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along with the Proviso is declared to he unconstiutional and void. The Government of India is directed to ensure that the necessary amendment is carried out in the Presidential Order dated 19th May, 1975 so as 880 to  bring  it in conformity-with the law laid down  by  this Court  in  the instant case. The Orders made  by  the  State Government  in  exercise of the power  conferred  under  the Proviso  to cl. (5) of Art. 371-D shall be quashed  and  set aside. [890G-H]     (2) Clause (5) of Art. 371-D provides that the order  of the  Administrative Tribunal finally disposing of  the  case shall  become effective upon its confirmation by  the  State Government or on the expiry of three months from the date on which  the order is made, whichever is earlier. This  clause by itself could not be regarded as in any way rendering  the Administrative Tribunal less efficacious than the High Court because it would not be an extra-ordinary or unusual  provi- sion to lay down a period of time during which an order made by a Tribunal may not be given effect to, enabling the State Government either to make arrangements for implementing  the order of the Tribunal or to prefer an appeal against it, but what really introduces an infirmity in cl. (5) is the provi- sion  enacted  in  the Proviso, which says  that  the  State Government may by special order made in writing for  reasons to be specified therein, modify or annual ally order of  the Administrative  Tribunal before it becomes effective and  in such a case, the order of the Administrative Tribunal  shall have  effect only in such modified form or be of no  effect. [887D-G]     (3) Invariably the State Government would be a party  in every  service  dispute brought  before  the  Administrative Tribunal  and  the effect of the Proviso is that  the  State Government  which  is a party to the proceeding  before  the Administrative Tribunal and which contests the claim of  the public servant who comes before the Administrative  Tribunal seeking  redress of his grievance against the State  Govern- ment  would have the ultimate authority to uphold or  reject the  determination of the Administrative Tribunal. It  would be  open to the State Government, after it has  lost  before the  Administrative Tribunal, to set at naught the  decision given  by  the Administrative Tribunal against  it.  Such  a provision  is,  to say the least, shocking  and  is  clearly subversive  of  the principles of justice. A  party  to  the litigation  cannot  be  given the  power  to  over-ride  the decision  given by the Tribunal. It would be  violating  the basic  concept of justice and make a mockery of  the  entire adjudicative process. Not only is the power conferred on the State  Government  to modify or annul the  decision  of  the Administrative Tribunal starting and wholly repugnant to the notion of justice but it is also a power which can be abused or misused. [888B-E]     (4)  In the last about three years this power  has  been exercised  by the State Government in large number of  cases and even interim orders 881 made by the Administrative Tribunal have been set at  naught though  no such power is conferred on the State  Government. It  is only an order of the Administrative Tribunal  finally disposing  of the case which can be modified or annulled  by the  State Government and not an interim order made  by  the Administrative Tribunal. The record shows that this  limita- tion has been completely brushed aside and the State Govern- ment  has behaved in a most extravagant manner in  modifying or  annulling  orders made by  the  Administrative  Tribunal

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which  were found inconvenient. Even the Parliament  debates show that the bill envisaged exercise of this power in  most exceptional cases. However, this power has been  indiscrimi- nately used by the State Government. [888E-H]     (5) It is a basic principle of the rule of law that  the exercise  of power by the executive or any  other  authority must  not only be conditioned by the Constitution  but  must also  be  in accordance with law and the power  of  judicial review  is  conferred  by the Constitution with  a  view  to ensuring  that the law is observed and there  is  compliance with the requirement of law on the part of the executive and other  authorities.  It  is through the  power  of  judicial review  conferred on an independent institutional  authority such  as the High Court that the rule of law  is  maintained and  every organ of the State is kept within the  limits  of the law. If the exercise of the power of judicial review can be set at naught by the State Government by over-riding  the decision  given against it, it would sound the  death  knell the rule of law. The rule of law would be meaningless as  it would  be open to the State Government to defy the  law  and yet  to get away with it. The Proviso to c1.(5) of  Art.  37 1-D  is,  therefore, violative of the basic  structure  doc- trine. [889B-E]     (6)  Clause (3) of Art. 371-D empowers the President  by order  to provide for the setting up of  the  Administrative Tribunal  and  vesting in it the jurisdiction  of  the  High Court  in  respect of the specified  service  matters.  This constitutional amendment authorising exclusion of the juris- diction of the High Court and the vesting of such  Jurisdic- tion  in  the  Administrative Tribunal  postulates  for  its validity that the Administrative Tribunal must be as  effec- tive  an institutional mechanism or authority  for  judicial review as the High Court. If the Administrative Tribunal  is less  effective and efficacious than the High Court  in  the matter of judicial review in respect of the specified  serv- ice matters, the constitutional amendment would fail foul of the  basic  structure doctrine. Undisputedly  the  provision enacted in the Proviso to cl. (5)of Art. 371-D deprives  the Administrative  Tribunal of its effectiveness  and  efficacy because it enables the State Government which is a party  to the  litigation before the Administrative Tribunal to  over- ride its decision. The 882 power  of  judicial review vested in the  High  Court  under Arts.  226 and 227 does not suffer from any  such  infirmity because  whatever the High Court decides is binding  on  the State  Government,  abject only to a right of  appeal  to  a Court  of  superior jurisdiction and  the  State  Government cannot,  for any reason, set at naught the decision  of  the High  Court. But the power of judicial review  conferred  on the Administrative Tribunal is, by reason of the Proviso  to Cl.  (5)  of Art. 371-D, subject to the veto  of  the  State Government  and  it is not at all effective  or  efficacious because the State Government can defeat its exercise by just passing an order modifying or nullifying the decision of the Administrative  Tribunal.  The Proviso to Cl.  (5)  has  the effect of emasculating the striking power of the Administra- tive Tribunal and the State Government can make the decision of the Administrative Tribunal impotent and sterile.  There- fore,  the  Proviso to Cl. (5)  renders  the  Administrative Tribunal a much less effective and efficacious institutional mechanism  or  authority for judicial review than  the  High court  in  respect  of the specified  service  matters.  The conclusion  is that the Proviso to Cl. (5) of Art. 371-D  by which  power has been conferred on the State  Government  to

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modify or annul the final order of the Administrative Tribu- nal  is violative of the basic structure doctrine and it  is only by striking down that provision that cls. (3) to (8) of Art. 371-D can be sustained. [889E-H; 890A-E]     (7)  Therefore, the Proviso to Cl. (5) of Art. 371-D  is unconstitutional as being ultra vires the amending power  of Parliament and if the Proviso goes, the main part of cl. (5) must  also  fall alongwith it, since it  is  closely  inter- related  with the proviso and cannot have any rationale  for its  existence apart from the Proviso. The main part of  cl. (5)  of  Article  371-D would, therefore, also  have  to  be declared unconstitutional and void. [890E-F]     (8)  If any constitutional amendment made by  Parliament takes away from the High Court the power of judicial  review in  any particular area and vests it in any  other  institu- tional mechanism or authority, it would not be violative  of the  basic  structure  doctrine, so long  as  the  essential condition  is fulfilled that the  alternative  institutional mechanism or authority set up by the parliamentary amendment is no less effective than the High Court. [887A-B]     (9) Parliament was, therefore, competent by enacting cl. (3)  of Art. 371-D to provide for setting up an  Administra- tive  Tribunal  and excluding the jurisdiction of  the  High Court  in regard to the matters coming within the  jurisdic- tion of the Administrative Tribunal, so long 883 as  the  Administrative Tribunal was not less  effective  or efficacious  than the High Court in so far as the  power  of judicial review is concerned. [887B-D]     S.P. Sampath Kumar v. Union of India and Ors., [1987]  1 SCC  124,  followed  and Narasimha Rao v.  State  of  Andhra Pradesh,  [1970]  SCR  115 and Director  of  Industries  and Commerce v. V.V. Reddy, [1973] 2 SCR 562, referred to.     (R.S Pathak C J, Ranganath Misra v. Khalid, G.L. Oza and M.M. Dutt, JJ.)                                                5th May, 1987 Disposing of the review Petitions,     HELD:  1. The operation of the judgment and order  dated December  20,  1986 shall extend to those cases  only  which were considered by this Court. [891A-B]     2. The cases in which Petitions were filed directly will now stand remanded to the Administrative Tribunal for  judi- cial  consideration in accordance with the  observations  of this Court in the judgment of December 20, 1986. [89lB-C]     3.  This direction will also cover those writ  petitions which  were transferred from the High Court to  this  Court. They shall stand transferred to the Administrative  Tribunal and be considered similarly. [891C-D]     4. Those cases in which the State Government modified or superseded  the orders of the Administrative Tribunal  shall be treated as concluded by the relative orders of the Admin- istrative Tribunal as they stood before the said orders were interfered with by the State Government. [891D-E]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 90 of 1977 etc. (Under Article 32 of the Constitution of India.)                             AND Review Petition No. 4 17-454/87 etc. T.S. Krishnamurthi Iyer, C. Sitaramiah, L.N. Sinha, A.S. 884 Nambiar.  G. Narayana Rao, K. Ramkumar, K. Ram  Mohan.  M.S. Guru.  Raj  Rao, Subodh Markandeya, Ashok  K.  Sharma,  M.S.

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Ganesh.  P.N.  Misra, D.C. Taneja,  B.  Parthasarathi,  B.B. Sawhney,  P.  Krishna Rao, B. Krishna  Prasad,  Ms.  Malini, T.V.S.N-.  Chari,  Ms.  Vrinda Grover, S.  Wasim  A.  Qadri, Naresh  Mathur, Ms. Sunita, P.P. Singh and Ms. S. Relan  for the appearing parties. The Judgment of the Court was delivered by     BHAGWATI,  C.J. These writ petitions challenge the  con- stitutional  validity of clause (5) of Article 371-D of  the Constitution.  Though original when the writ petitions  were filed. the constitutional validity of clause (3) of  Article 371-D  was also assailed, this challenge was not pressed  on behalf  of the petitioners and the arguments  were  confined only to the challenge against the constitutional validity of clause  (5) of that Article. But in order to understand  the true scope and ambit of the controversy raised before us  in regard  to the constitutional validity of clause (5), it  is necessary  for us to refer also to the provision enacted  in clause (3) of Article 371-D. Clauses (3) and (5) of  Article 371-D read as follows:- "The  President may, by order, provide for the  Constitution of  an Administrative Tribunal for the State of Andhra  Pra- desh  to  exercise such jurisdiction, powers  and  authority including any jurisdiction, power and authority which  imme- diately   before  the  commencement  of   the   Constitution (Thirty-Second Amendment) Act, 1973, was exerciseable by any Court  (other than the Supreme Court) or by any Tribunal  or other  authority as may be specified in the order  with  re- spect to the following matters, namely:-  (A) ........  (B) ........  (C) ........ (5)   The order of the Administrative Tribunal finally  dis- posing of any case shall become effective upon its confirma- tion  by  the  State Government or on the  expiry  of  three months  from the date on which the order is made.  whichever is earlier; 885          Provided that the State Government may. by  special order  made in writing for reasons to be specified  therein, modify  or  annul any order of the  Administrative  Tribunal before it becomes effective and in such a case, the order of the  Administrative Tribunal shall have effect only in  such modified form or be of no effect, as the case may be." Article  371-D  was introduced in the  Constitution  by  the Constitution  (Thirty-Second Amendment) Act 1973 which  came into  force with effect from 1st July 1974. The  genesis  of this  Amendment made in the Constitution by introduction  of Article  371-D lay in the formation of the State  of  Andhra Pradesh  on 1st November 1956. The State of  Andhra  Pradesh was  constituted of portions of territories drawn  from  the erstwhile  State, of Andhra and Hyderabad.  The  territories from the erstwhile State of Hyderabad which were included in the State of Andhra Pradesh commonly known as the  Telengana area.  Before  the territories of the  Telengana  area  were amalgamated with the other territories to form the State  of Andhra Pradesh, there was a set of rules known as the  Mulki Rules in operation in the Telengana area under the regime of the Nizam of Hyderabad and these rules provided for residen- tial clarification for all public employment. Soon after the formation of the State of Andhra Pradesh Parliament  enacted Public  Employment  (Requirement as to Residence)  Act  1957 making special provision for requirement as to residence for public employment and brought it into force with effect from 21st March 1957. The constitutional validity of this Act was challenged by some of the persons employed in the ministeri-

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al  services of the Andhra Pradesh Government  in  Narasimha Rao  v. State of Andhra Pradesh, [1970] 1 SCR 115  and  this Court  by its judgment dated 28th March 1969 held Section  3 of  this Act in so far as it related to the  Telengana  area ultra vires clause (3) Article 16 of the Constitution.  This Court, however left open the question whether in view of the constitutional invalidity of this Act the Mulki Rules exist- ing in the Telengana area could be said to be continuing  in force  by virtue of Article 35(b) of the Constitution.  This question,  however,  came up for consideration  before  this Court in Director of Industries and Commerce v. V.V.  Reddy, [1973]  2  SCR  562. This Court held that  the  Mulki  Rules continued in force even after the formation of the State  of Andhra  Pradesh  under Article 35(b)  of  the  Constitution. Meanwhile,  however, there were two  wide-spread  agitations one in the Telengana area and the other in the Andhra region of  the  State between 1969 and 1972, creating  a  political turmoil  and virtually the paralysing administration of  the State. The political leaders of the State were  considerably exercise over this situation and they made 886 concerted  effort to find an endeavouring solution  to  this problem  in order to secure full emotion integration of  the people  of  the State. On. 21st September 1973  a  six-Point Formula was evolved by the political leaders to provide  for a uniform approach for promoting accelerated development  of the  backward  areas of the State so as to  secure  balanced development of the State as a whole and providing  equitable opportunities to different areas of the State in the  matter of  education and employment in public services. The  imple- mentation  of  this Six Point Formula envisaged  inter  alia amendment of the Constitution conferring power on the Presi- dent  of India in order to secure smooth  implementation  of the measures based upon the Six-Point Formula without giving rise  to  litigation and consequent uncertainty. It  was  in pursuance of this requirement that Article 371-D was  intro- duced  in  the Constitution in order to give effect  to  the Six-Point  Formula. One of the measured contemplated in  the Six-Point  Formula related to the setting up of an  Adminis- trative  Tribunal with jurisdiction to deal with  grievances relating to public services and clauses (3) to (8) of  Arti- cle 371-D gave effect to this proposal and provided for  the establishment of an Administrative Tribunal and its  consti- tution and powers. Pursuant to Clause (3) of Article  371-D, the  President of India made an order on 19th May 1975  con- stituting an Administrative Tribunal for the State of Andhra Pradesh  with jurisdiction to deal with the service  matters specified in that order.     No  constitutional objection to the validity  of  Clause (3)  of Article 371-D could possibly be taken since we  have already  held  in S.P. Sampath Kumar v. Union of  India  and Ors.,  [1987]  1 S.C.C. 124, decided on 9th  December,  1986 that judicial review is a basic and essential feature of the Constitution  and it cannot be abrogated  without  affecting the basic structure of the Constitution, but Parliament  can certainly  without in any way violating the basic  structure doctrine amend the Constitution so as to set up an effective alternative  institutional  mechanism  or  arrangement   for judicial  review. One of us (Bhagwati, CJ.) pointed  out  in the  judgment  delivered in that case that: "the  basic  and essential  feature  of judicial review cannot  be  dispensed with but it would be within the competence of Parliament  to amend  the Constitution so as to substitute in place of  the High  Court, another alternative institutional mechanism  or arrangement  for  judicial review, provided it is  not  less

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efficacious than the High Court." We summarised the  consti- tutional  position in regard to the power of  Parliament  to amend  the Constitution with a view to taking up the  juris- diction of the High Court in the following words:- 887  " .....  if any constitutional amendment made by Parliament takes away from the High Court the power of judicial  review in  any particular area and vests it in any  other  institu- tional mechanism or authority, it would not be violative  of the  basic  structure  doctrine, so long  as  the  essential condition is fulfilled, namely, that the alternative  insti- tutional mechanism or authority set up by the  parliamentary amendment is no less effective than the High Court." Parliament was therefore competent by enacting Clause (3) of Article  371-D to provide for setting up  an  Administrative Tribunal and excluding the jurisdiction of the High Court in regard to the matters coming within the jurisdiction of  the Administrative  Tribunal,  so  long  as  the  Administrative Tribunal was not less effective or efficacious than the High Court  in  so far as the power of judicial  review  is  con- cerned. The constitutional validity of Clause (3) of Article 371-D  could not therefore be successfully assailed  on  the ground  that it excluded the jurisdiction of the High  Court in regard to certain specified service matters and vested it in the Administrative Tribunal.     But  the real controversy between the  parties  centered round  the constitutional validity of Clause (5) of  Article 371-D.  This clause provides that the order of the  Adminis- trative Tribunal finally disposing of the case shall  become effective  upon its confirmation by the State Government  or on  the expiry of three months. from the date on  which  the order  is  made, whichever is earlier. Standing  by  itself, this  clause could not be regarded as in any  way  rendering the  Administrative Tribunal less efficacious than the  High Court  because it would not be an extraordinary  or  unusual provision to lay down a period of time during which an order made by a tribunal may not be given effect to presumably  in order to enable the State Government either to make arrange- ments  for  implementing  the order of the  tribunal  or  to prefer  an appeal against it. But what really introduces  an infirmity  in Clause (5) of Article 371-D is  the  provision enacted in the proviso which says that the State  Government may  by special order made in writing and for reasons to  be specified therein, modify or annul any order of the Adminis- trative  Tribunal before it becomes effective and in such  a case,  the order of the Administrative Tribunal  shall  have effect  only in such modified form or be no effect,  as  the case  may  be. The State Government is given  the  power  to modify  or  annul any order of the  Administrative  Tribunal before  it becomes effective either by confirmation  by  the State Government or on the expiration of the period of three months from the date of the order. The State Government  can at 888 any time before the expiry of three months from the date  of the  order  modify or annul the order unless it  has,  by  a prior  signification  of its will, confirmed the  order.  It will  thus be seen that the period of three months from  the date  of  the order is provided in Clause (5)  in  order  to enable  the  State  Government to decide  whether  it  would confirm the order or modify or annul it. Now almost invaria- bly  the State Government would be a party in every  service dispute  brought before the Administrative Tribunal and  the effect  of the proviso to Clause (5) is that the State  Gov- ernment which is a party to the proceeding before the Admin-

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istrative  Tribunal  and  which contests the  claim  of  the public servant who comes before the Administrative  Tribunal seeking  redress of his grievance against the State  Govern- ment, would have the ultimate authority to uphold or  reject the  determination of the Administrative Tribunal. It  would be  open to the State Government, after it has  lost  before the  Administrative Tribunal, to set at naught the  decision given  by  the Administrative Tribunal against  it.  Such  a provision  is,  to say the least, shocking  and  is  clearly subversive of the principles of justice. How can a party  to the litigation be given the power to over-ride the  decision given  by the Tribunal in the litigation, without  violating the basic concept of justice? It would make a mockery of the entire adjudicative process. Not only is the power conferred on  the State Government to modify or annul the decision  of the  Administrative Tribunal startling and wholly  repugnant to our notion of justice but it is also a power which can be abused  or  misused. It is significant to note that  in  the last about three years this power has been exercised by  the State  Government in an inordinately large number  of  cases and even interim orders made by the Administrative  Tribunal have  been set at naught by the State Government  though  no such  power is conferred on the State Government  under  the proviso to Clause (5). It is clear on a proper  construction of the proviso read with Clause (5) that it is only an order of the Administrative Tribunal finally disposing of the case which  can be modified or annulled by the  State  Government and  not an interim order made by the Administrative  Tribu- nal.  But we find from the record that this  limitation  has been completely brushed aside by the State Government and it would  be no exaggeration to say that the  State  Government has  behaved  in a most extravagant manner in  modifying  or annulling  orders made by the Administrative Tribunal  which were  found inconvenient. We may point out that even at  the time when Article 371-D was introduced in the  Constitution, Parliament  debates show that the Home Minister who  piloted the bill did not envisage exercise of this power save in the most  exceptional  cases. Here, however, we find  that  this power  has been indiscriminately used by the  State  Govern- ment. But that apart, we do think that this power 889 conferred  on the State Government is clearly  violative  of the basic concept of justice.     It  is obvious from what we have stated above that  this power of modifying or annulling an order of the  Administra- tive  Tribunal conferred on the State Government  under  the proviso to Clause (5) is violative of the rule of law  which is  clearly a basic and essential feature of  the  Constitu- tion.  It is a basic principle of the rule of law  that  the exercise  of power by the executive or any  other  authority must  not only be conditioned by the Constitution  but  must also  be  in accordance with law and the power  of  judicial review  is  conferred  by the Constitution with  a  view  to ensuring  that the law is observed and there  is  compliance with the requirement of law on the part of the executive and other  authorities.  It  is through the  power  of  judicial review  conferred on an independent institutional  authority such  as the High Court that the rule of law  is  maintained and  every organ of the State is kept within the  limits  of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by  over-tiding the   decision  given  against  it,  it  would   sound   the death/knell of the rule of law. The rule of law would  cease to  have any meaning, because then it would be open  to  the State  Government to defy the law and yet get away with  it.

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The  Proviso  to Clause (5) of Article  371-D  is  therefore clearly violative of the basic structure doctrine.     The  question of constitutional validity of the  Proviso to Article 37 I-D can also be looked at from another  angle. Clause (3) of Article 37 I-D empowers the President by order to provide for the setting up of the Administrative Tribunal and vesting in the Administrative Tribunal the  jurisdiction of  the High Court in respect of the specified service  mat- ters. This constitutional amendment authorising exclusion of the  jurisdiction  of  the High Court and  vesting  of  such jurisdiction  in the Administrative Tribunal postulates  for its  validity that the Administrative Tribunal must  be   as effective an institutional mechanism or authority for  judi- cial review as the High Court. If the Administrative  Tribu- nal is less effective and efficacious than the High Court in the  matter of judicial review in respect of  the  specified service  matters,  the constitutional amendment  would  fall foul  of the basic structure doctrine. Now it can hardly  be disputed that the provision enacted in the Proviso to Clause (5) of Article 371-D deprives the Administrative Tribunal of its effectiveness and efficacy because it enables the  State Government  which  is a party to the litigation  before  the Administrative  Tribunal to over-fide the decision given  by the  Administrative Tribunal. The power of  judicial  review vested in the 890 High  Court under Articles 226 and 227 does not suffer  from any  such infirmity because whatever the High Court  decides is binding on the State Government, subject only to a  right of appeal to a court of superior jurisdiction and the  State Government  cannot, for any reason, set at naught the  deci- sion  of  the High Court. But the power of  judicial  review conferred on the Administrative Tribunal is by reason of the Proviso  to Clause (5) of Article 371-D subject to the  veto of  the State Government and it is not at all  effective  or efficacious  because  the State Government  can  defeat  its exercise  by just passing an order modifying  or  nullifying the decision of the Administrative Tribunal. The Proviso  to Clause  (5) of Article 371-D has the effect of  emasculating the  striking power of the Administrative Tribunal  and  the State Government can make the decision of the Administrative Tribunal impotent and sterile. It is therefore obvious  that the  Proviso  to  Clause (5) of Article  371-D  renders  the Administrative  Tribunal a much less effective  and  effica- cious  instiutional  mechanism  or  authority  for  judicial review  than  the  High Court in respect  of  the  specified service  matters.  In the circumstances  the  conclusion  is inescapable that the proviso to Clause (5) of Article  371-D by which power has been conferred on the State Government to modify or annul the final order of the Administrative Tribu- nal is violative of the basic structure doctrine since it is that  which makes the Administrative Tribunal a less  effec- tive  and efficacious institutional mechanism  or  authority for  judicial  review and it is only by striking  down  that provision as being outside the constitutent power of Parlia- ment  that Clauses (3) to (8) of Article 371-D can  be  sus- tained.  We must therefore hold that the Proviso  to  Clause (5)  of  Article 371-D is unconstitutional  as  being  ultra vires  the amending power of Parliament and if  the  Proviso goes,  the main part of clause (5) must also fall  alongwith it,  since it is closely inter-related with the proviso  and cannot have any rationable for its existence apart from  the Proviso.  The  main  part of clause (5) of  Article  37  I-D would, therefore, also have to be declared  unconstitutional and void.

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   We  accordingly  allow the writ  petitions  and  declare clause  (5)  of Article 371-D alongwith the  Proviso  to  be unconstitutional  and void. The Government of India  is  di- rected to ensure that the necessary amendment is carried out in  the Presidential Order, so as to bring it in  conformity with  the law laid down by us in this judgment.  The  Orders made  by the State Government in exercise of the power  con- ferred  under the proviso to clause (5) of Art. 371-D  shall be  quashed  and  set aside. There will be no  order  as  to costs. 891                            ORDER     We  direct that the operation of the Judgment and  Order dated  December  20,  1986 pronounced by  this  Court  shall extend  to those cases only which were made the  subject  of consideration by this Court by virtue of these petitions and appeal having been filed in this Court.     We  direct further that in those cases where  the  peti- tions were filed directly and without having been  processed judicially  and decided by the Administrative Tribunal,  the Order  will operate insofar that those cases will now  stand remanded to the Administrative Tribunal for judicial consid- eration in accordance with the observations of this Court in the Judgment of December 20, 1986.     This  direction  will also cover  those  Writ  Petitions which  were transferred from the High Court to  this  Court. They shall stand transferred to the Administrative  Tribunal and be considered similarly.     In  all  those  cases where Writ  Petitions  were  filed against  the  Orders of the State  Government  modifying  or superseding  the Orders of the Administrative  Tribunal,  we direct that those cases shall be treated as concluded by the relative orders of the Administrative Tribunal as they stood before  the  said orders were interfered with by  the  State Government.     We may add that Mr. L.N. Sinha, learned counsel  appear- ing  for the Union of India in all these cases,  sought  the permission  of the Court to urge a ground in respect of  the interpretation  of  Article 371-D of  the  Constitution.  He contended that the power of Judicial review, even  construed as a basic feature of the Constitution, was not precluded by the  provisions  of Article 371-D of  the  Constitution  and therefore  the Judgment of this Court called for review.  We are not satisfied, however, that we should interfere. The Review Petitions are disposed of accordingly. A.P.J.                                             Petitions allowed. 892