17 September 2004
Supreme Court
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M.P. HIGH COURT BAR ASSOCIATION Vs UNION OF INDIA .

Bench: CJI R.C. LAHOTI,C.K. THAKKER
Case number: C.A. No.-005327-005327 / 2002
Diary number: 13350 / 2002


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CASE NO.: Appeal (civil)  5327 of 2002

PETITIONER: M.P. HIGH COURT BAR ASSOCIATION

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT: 17/09/2004

BENCH: CJI R.C. LAHOTI & C.K. THAKKER

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL No. 5328 OF 2002, CIVIL APPEAL  NO.          OF 2004 @ S.L.P.(C) No. 22648 of 2002,  CIVIL APPEAL NOs.        OF 2004 @ S.L.P.(C)  Nos. 23615-23616 of 2002, CIVIL APPEAL Nos.  8292-8295 OF 2002, WRIT PETITION (C) Nos. 369  OF 2003 AND 374 OF 2003

 Thakker, J.

       Leave granted in Special Leave Petition (Civil) Nos. 22648 of  2002 and 23615-23616 of 2002.         In the present group of matters, common questions of fact and  law have been raised by the parties.  It is, therefore, appropriate to  decide all the matters by a common judgment.          To appreciate the controversy raised and questions agitated in  these matters, few relevant facts in the first matter, i.e., Civil Appeal  No. 5327 of 2002 may be stated.  The appeal arises out of a judgment  and order dated May 14, 2002 passed by the High Court of Madhya  Pradesh at Jabalpur in Writ Petition No. 3531 of 2001.

The said petition was filed by the Madhya Pradesh High Court  Bar Association and another against the Union of India, State of  Madhya Pradesh, State of Chhattisgarh and the Chief Ministers of  both the States.  The case of the petitioners is that the petitioner No. 1  is an Association of Advocates practising at the High Court of  Madhya Pradesh, Madhya Pradesh State Administrative Tribunal at  Jabalpur as also Central Administrative Tribunal (Jabalpur Bench).   The Association was constituted to look after and protect the interests  of its members.  One of the prime duties of the Association, asserted  the petitioners, is to ensure that legal system in the State is not  attacked by an outside agency.  Its aim is also to advance the cause of  justice by speedy trial.  It has, therefore, locus standi to file a petition.   Petitioner No.2 is the President of the Madhya Pradesh Bar  Association.  He is a practising lawyer at the High Court as well as at  two Tribunals.  He is a citizen of India.   

The petitioners have stated that Parliament amended the  Constitution by the Constitution (42nd Amendment) Act, 1976 by  which several changes had been made.  As a consequence thereof,  Article 323A came to be inserted in the Constitution with effect from  January 3, 1977.  The said Article provided for constitution and

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establishment of Administrative Tribunals.  Those Tribunals were  empowered to adjudicate and decide disputes and complaints relating  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.   It also declared that the  provisions of the said Article would have effect notwithstanding  anything in any other provision of the Constitution or in any other law  for the time being in force.  The Article further provided for exclusion  of jurisdiction of all courts, "except the jurisdiction of the Supreme  Court under Article 136", with respect to disputes or complaints to be  dealt with by such tribunals.  Article 323A, however, is not self- executory inasmuch as it did not take away the jurisdiction of courts.   It merely enabled Parliament or appropriate legislature to make laws,  to set up such tribunals and to exclude jurisdiction of all courts except  the Supreme Court.          In exercise of the power conferred by Article 323A of the  Constitution, Parliament enacted an Act, called the Administrative  Tribunals Act, 1985 (hereinafter referred to as "the Act").  In the  Statement of Objects and Reasons, it was stated that with a view to  give effect to the constitutional provision by providing for the  establishment of an Administrative Tribunal, the Act has been  enacted.  The Preamble of the Act also recites that with a view to  provide for the adjudication or trials 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, the Act has been enacted.  Whereas Section 4  provides for establishment of Administrative Tribunals, Section 5  deals with composition of Tribunals and Benches.  Provisions relating  to qualifications for appointment as Chairman, Vice-Chairman and  other Members as also their terms of office, salaries and allowances,  etc. have been made in Sections 6 to 13.  Sections 14 to 18 deal with  jurisdiction, power and authority of Tribunals.  Sections 19 to 27 lay  down the procedure to be followed by such Tribunals.  Section 28  excludes jurisdiction of all courts except the Supreme Court.          Sub-section (2) of Section 4 of the Act enabled the Central  Government, on receipt of a request from the State Government to  establish by a notification an Administrative Tribunal for the State to  exercise the jurisdiction, powers and authority conferred on the  Administrative Tribunal for the State.  According to the petitioners, a  request was made by the State of Madhya Pradesh for the  establishment of an Administrative Tribunal for the State.  The  Central Government, in exercise of power under sub-section (2) of  Section 4 of the Act, therefore, issued a notification on June 29, 1988  for establishment of a Tribunal known as the Madhya Pradesh  Administrative Tribunal with effect from August 2, 1988.  The  petitioner stated that in pursuance of the notification, the State  Administrative Tribunal had been established.  It was having a  Principal seat at Jabalpur and four Benches at Gwalior, Indore, Bhopal  and Raipur.   

The petitioners further stated that Parliament enacted an Act  called the Madhya Pradesh Re-organisation Act, 2000, (Act 28 of  2000) (hereinafter referred to as "the Act of 2000").  The said Act has  been enacted with a view "to provide for the re-organisation of the  existing State of Madhya Pradesh and for matters connected  therewith".  Part II deals with re-organisation of the State of Madhya  Pradesh into two States to be known as the State of Madhya Pradesh  and the State of Chhattisgarh and their territorial divisions.  Part III  provides for representation in the Legislatures.  Part IV relates to  administration of justice.  Part VIII deals with services.  It provides

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for All-India services, services in Madhya Pradesh and Chhattisgarh  and other services as also power of the Central Government to issue  directions. Section 74 of the Act touches jurisdiction of Commissions,  Authorities, Tribunals, Universities, Boards and other statutory  bodies, constitutional validity and vires whereof has been challenged.   It is, therefore, appropriate to re-produce the said section in extenso.         "74. Jurisdiction of the Commissions,  Authorities and Tribunals.\027(1) Notwithstanding  anything contained in any law for the time being in force,  every Commission, Authority, Tribunal, University,  Board or any other body constituted under a Central Act,  State Act or Provincial Act and having jurisdiction over  the existing State of Madhya Pradesh shall on and from  the appointed day continue to function in the successor  State of Madhya Pradesh and also exercise jurisdiction as  existed before the appointed day over the State of  Chhattisgarh for a maximum period of two years from  the appointed day or till such period as is decided by  mutual agreement between the successor States:

(i)     to continue such body as a joint body for the  successor State or (ii)    to abolish it, on the expiry of that period, for either  of the successor States; or (iii)   to constitute a separate Commission, Authority,  Tribunal, University, Board or any other body, as  the case may be, for the State of Chhattisgarh.   

(2)     No suit or other legal proceeding shall be  instituted, in case such body is abolished under clause (ii)  of sub-section (1), by any employee of such body against  the termination of his appointment or for the enforcement  of any service conditions or for securing absorption in  alternative public employment against the Central  Government or any of the successor States.

(3)     Notwithstanding anything contained in any law for  the time being in force or in any judgment, decree or  order of any court or Tribunal or contract or agreement,  any Chairman or member of any body abolished under  clause (ii) of sub-section (1) shall not be entitled to any  compensation for the unexpired period of his tenure.

(4) Notwithstanding anything contained in this section or  any law for the time being in force, the Central  Government shall, in accordance with any mutual  agreement between the successor States or if there is no  such agreement, after consultation with the Government  of the successor States, issue directions for the resolution  of any matter relating to any body referred to in sub- section (1) and falling within the jurisdiction of any of  the successor State within any period referred to in sub- section (1).

       Section 85 declares that the provisions of the Act shall have  overriding effect "notwithstanding anything inconsistent therewith  contained in any other law."                   Bare reading of sub-section (1) of Section 74 makes it clear that  it declares that all Commissions, Authorities, Tribunals, Universities,  Boards or other bodies constituted under an Act of Parliament will  continue to function in the State of Madhya Pradesh as also in the  State of Chhattisgarh.  It, however, states that they will continue to  function for a maximum period of two years or "till such period as is

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decided by mutual agreement between the successor States".  Sub- sections (2) and (3) enumerate circumstances pursuant to the abolition  of such Tribunal.  Sub-section (4) allows the Central Government to  issue directions.          The petitioners stated in the petition that in purported exercise  of the powers under sub-section (1) of Section 74 of the Act, a  decision was taken by the State of Madhya Pradesh as well as the  State of Chhattisgarh to abolish State Administrative Tribunal.  A  notification was issued on 25th July, 2001 by the State of Madhya  Pradesh by which the Madhya Pradesh State Administrative Tribunal  had been abolished.  By a circular of even date issued by the State, it  had been ordered that existing Chairman, Vice-Chairman and  Members of the Tribunal would cease to function with immediate  effect irrespective of unexpired period of their tenure, if any.  By an  order of even date, the State Government terminated the services of all  officers and employees other than those on deputation with immediate  effect as their services were "no longer required".   

       Being aggrieved by the said actions, the petitioner-Association  approached the High Court of Madhya Pradesh by invoking Articles  226 and 227 of the Constitution.  A writ of Mandamus was sought to  declare Section 74 of the Act of 2000 unconstitutional and ultra vires.   In the alternative, a prayer was made to issue a writ of Mandamus to  hold that Section 74 would not apply to State Administrative Tribunal.   A further prayer was made to quash and set aside a notification, a  circular and an order dated July 25, 2001 by which the State  Administrative Tribunal was sought to be abolished and consequential  actions were taken.          Similar petitions were filed being W.P. No.3529 of 2001 by  A.K. Shrivastava, a Member of the Administrative Tribunal, W.P.  No.3525 of 2001 by Sanjay Kumar Misra, W.P. No. 3551 of 2001 by  Kamal Joshi, W.P. No.3554 of 2001 by Nemi Chand, all employees of  the State Administrative Tribunal, W.P. No. 3597 of 2001 and W.P.  No.4129 of 2001 by Madhya Pradesh Class III Government  Employees Association.   

Notices were issued to the State of Madhya Pradesh and other  respondents.  The respondents appeared.  An affidavit-in-reply was  filed by the State of Madhya Pradesh supporting the actions taken by  the Government.  It was asserted in the counter that establishment of  State Administrative Tribunal was not obligatory.  The State  Government was not bound to constitute the Tribunal.  It was,  therefore, open to the State Government to create, continue or abolish  such Tribunal.  Since the power exclusively vested in the State  Government to create, continue or abolish the Tribunal, the Central  Government had no voice in the matter.  It was also stated that the  Council of Ministers of the State of Madhya Pradesh took a decision  on November 21, 1985 for the establishment of State Administrative  Tribunal in the State of Madhya Pradesh.  A request was, therefore,  made to the Central Government to constitute State Administrative  Tribunal and, accordingly, a notification was issued on June 29, 1988  and the Tribunal was constituted on August 2, 1988.  Initially there  was only a Principal seat at Jabalpur.  Later on, three Benches were  established at Gwalior, Indore and Bhopal.  In 1997, even the fourth  Bench was established at Raipur.  The deponent stated that over and  above State of Madhya Pradesh, seven other States had established  State Administrative Tribunals.  In the affidavit in reply, it was the  case of the respondent-State that despite very laudable object behind  the establishment of Administrative Tribunals, the performance of the  Tribunals always remained "far from satisfactory and the Tribunals  failed to achieve the objects and goals for which they were  established".  Reference was made to the report of the Arrears  Committee (1989-90), known as "Malimath Committee" which

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elaborately dealt with the functioning of Tribunals in the country.   Citing extensively the working of the Tribunals in the report of  Malimath Committee, it was asserted by the State that the State  Administrative Tribunal failed to fulfill the object for which it was  established.  Moreover, after the landmark decision of the Supreme  Court in L. Chandra Kumar v. Union of India (1997) 3 SCC 261 :  AIR 1997 SC 1125, wherein it has been held by the Apex Court that  the decisions rendered by the Tribunals constituted under Articles  323A and 323B of the Constitution of India would be subject to the  writ/supervisory jurisdiction of the High Courts under Article 226/227  of the Constitution within whose territorial jurisdiction the particular  Tribunal is functioning, there was virtually no need to continue such  Tribunal.  It was the case of the respondent-State that in the light of  declaration of law in L. Chandra Kumar, Administrative tribunals  became "intermediate/additional adjudicatory stratum", "leading to  substantial increase in number of pending cases at the level of High  Court".  Several matters decided by such Tribunals were challenged  before High Courts.   

Other problems had also been highlighted by the respondent- State in the counter-affidavit which necessitated the State to take a  decision to abolish it.  It included steep increase in pendency of cases,  construction of infrastructure, huge finance, maintenance of recurring  expenses, etc.  The policy makers of the State had been continuously  monitoring the Tribunal’s progress and performance as dispensation  of justice was an important priority of the State.

Parliament meanwhile passed the Act of 2000 on 18th  September, 2000 providing re-organisation of the erstwhile State of  Madhya Pradesh into two States.  Sub-section (1) of Section 74 of the  Act allowed both the States to continue functioning of the Tribunal in  the successor States. It, however, authorized them to take a decision to  abolish State Administrative Tribunal by mutual agreement.  Thus, the  power had been conferred by Parliament on States of Madhya Pradesh  and Chhattisgarh to take an appropriate decision with regard to  continuation or abolition of State Administrative Tribunal.  Such  action, therefore, cannot be said to be illegal or contrary to law.  The  Act of 2000 has been enacted by Parliament in exercise of powers  under Articles 2 to 4 of the Constitution of India.  The Act, therefore,  cannot be said to be unconstitutional or ultra vires.

Respondent No.1 Government of India also filed a counter- affidavit confirming that the State of Madhya Pradesh was "free to  recommend abolition of the Madhya Pradesh Administrative  Tribunal".  It was stated that the Central Government would examine  the proposal of the State Government to abolish State Administrative  Tribunal keeping in view several factors, such as, alternative forum  proposed by the State Government for disposal of pending cases,  compensation/rehabilitation of various functionaries of the Tribunal,  etc.  On interpretation of Section 74 of the Act of 2000, the Central  Government stated that the State of Madhya Pradesh cannot of its own  abolish State Administrative Tribunal which was set up by the Central  Government under Section 4(2) of the Administrative Tribunals Act,  1985.  According to the deponent, Section 74(1) of the Act of 2000  was "only an enabling provision to facilitate the State Government to  take a decision about the continuance or otherwise of the Madhya  Pradesh Administrative Tribunal".   

Further affidavit was also filed by the State of Madhya Pradesh  wherein a reference was made to an order of Council of Ministers  dated 8th March, 2001 to abolish the Madhya Pradesh Administrative  Tribunal.   

The Division Bench of the High Court of Madhya Pradesh,  after hearing the parties, held that the provisions of sub-section (1) of

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Section 74 of the Act of 2000 are intra vires the Constitution and the  State of Madhya Pradesh possessed power to abolish the State  Administrative Tribunal.  No direction from the Central Government  as envisaged by sub-section (4) of Section 74 was required.   According to the Court, Section 74(1) conferred unfettered power on  both successor States to take a decision in regard to the abolition of  Tribunal.  It was thus in the exclusive discretion of the successor  States and no power or authority had been given to the Central  Government in the said process.  The Court also indicated that  Parliament appeared to have granted "an opportunity of re- determination to both the successor States in view of substantial  changed circumstances necessitating review of all existing bodies  keeping the experience of the old State".

Regarding sub-sections (2) and (3) of Section 74 of the Act of  2000, however, after considering Articles 309 and 310 of the  Constitution of India and Sections 8, 9 and 10 of the Administrative  Tribunals Act, 1985, the High Court held that the State could not have  ignored statutory and constitutional provisions.  Sub-sections (2) and  (3) of Section 74 were thus ultra vires Articles 14, 16 and 21 of the  Constitution.  The High Court, however, recorded the statement of the  learned Advocate General of the State of Madhya Pradesh that the  State Government shall abide by the decision of the court with regard  to officers and employees of the Government.

The High Court  also held that after taking a decision to abolish  the Madhya Pradesh State Administrative Tribunal, the State  Government had to request the Central Government for issuance of  necessary notification for abolition of such Tribunal since it has been  established by the Central Government.  According to the Court,  however, the Central Government had no option but to accept the  request of the State Government.   In the light of the said decision,  notification, circular and order dated 25th July, 2001 were quashed by  the Court.   In the operative part of the judgment, the High Court issued  following directions:- (i)     The State Government of Madhya Pradesh is  empowered under Section 74(1) of the M.P. Re- organisation Act to abolish the State  Administrative Tribunal. (ii)    No directions from the Central Government as  envisaged under sub-section 4 of Section 74 of the  Act of 2000 are necessary to take the above  decision to abolish the Tribunal. (iii)   After taking decision to abolish the State  Administrative Tribunal, the State Government  will have to make request to the Central  Government to issue notification for abolish of the  State Administrative Tribunal. (iv)    The Central Government has no option but to  accept the request received from the state  Government to abolish the State Administrative  Tribunal and accordingly issue a notification  rescinding the earlier Notification establishing the  same. (v)     The sub-sections (2) and (3) of Section 74 of the  M.P. Reorganisation Act are declared ultra vires. (vi)    Since the notification (Annexure P-1) abolishing  the State Administrative Tribunal has been issued  by the State Government itself, and not by the  Central Government, the notification (Annexure P- 1) shall stand quashed. (vii)   Consequent to quashment of the Notification  (Annexure P-1), the Circular Annexure P-2) and  the Order (Annexure P-3) also stand quashed.

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(viii)  Since the Madhya Pradesh Ordinance No. 3 of  2001 has lapsed, no order is necessary to quash the  same. (ix)    On abolition of the Tribunal, the Chairman, Vice  Chairman and Members shall be entitled to have  compensation for unexpired term of their services  from the State Government.  The details shall be  worked out as per principles of natural justice. (x)     On abolition of the Tribunal, the officers and  employees thereof shall be dealt with by the State  Government as per their service conditions,  including their absorption in other Departments of  the State Government.

Being aggrieved by the order passed by the High Court, the Bar  Association instituted Special Leave Petition (Civil) No.16108 of  2002 on July 11, 2002.  It may be stated that in other matters also,  leave was sought by the petitioners to approach this Court by filing  Special Leave Petitions.  In Special Leave Petition Nos.23615 and  23616 of 2002, the decision upholding constitutional validity of sub- section (1) of Section 74 of the Act of 2000 is challenged.  We may  also observe at this stage that Writ Petition No. 374 of 2003 was filed  by one Chhadami Lal and Writ Petition No. 369 of 2003 by the  Government Employees Class III Association.  Union of India has  also challenged the decision of the High Court of Madhya Pradesh in  Civil Appeal Nos.8292-95 of 2002 against certain directions of the  High Court.

On August 26, 2002, leave was granted by this Court and  hearing was ordered to be expedited.  Other matters which were  subsequently filed were also ordered to be heard along with Civil  Appeal No.5327 of 2002.

We have heard the learned counsel for all the parties. Mr. Prashant Bhushan, learned counsel for the appellant  contended that the action of abolishing Madhya Pradesh State  Administrative Tribunal is illegal, improper and unlawful.  According  to him, the State Administrative Tribunal had been established under  the Administrative Tribunals Act, 1985 enacted by Parliament in  exercise of power under Article 323A of the Constitution.  Such  Tribunal, therefore, cannot be abolished by a State.  It was further  submitted that Section 74 of the Act of 2000 by which Parliament  authorized the State Government to discontinue or abolish State  Administrative Tribunal is ultra vires the Constitution as no such  power could have been delegated to the State.  It was also urged that  the delegation of power to abolish State Administrative Tribunal  conferred on the State Government by Parliament under the Act of  2000 is in the nature of "excessive delegation" and would be  inconsistent with the provisions of the Constitution as also contrary to  several decisions rendered by this Court wherein it has been observed  that a competent legislature cannot delegate essential legislative  function or legislative policy.  The High Court, in the circumstances,  ought to have declared sub-section (1) of Section 74 ultra vires.  

Alternatively, it was submitted that even if this Court holds that  Parliament was competent to delegate its power to the State  Government to discontinue the State Administrative Tribunal, the  impugned action of the State of Madhya Pradesh is illegal, unlawful  and mala fide.  It was contended that the Tribunal has been abolished  as, according to the Government, in many matters it had passed orders  against the Government and granted interim relief in "transfer"  matters.  It was, therefore, contended that what weighed with the State  Government for abolishing the State Administrative Tribunal was  "judicial orders" passed by a competent Tribunal in exercise of its  undoubted jurisdiction thereby taking into account irrelevant

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consideration and such a decision cannot be said to be a decision in  the eye of law and the action deserves to be set aside.

It was also urged that from the affidavit in reply filed on behalf  of the State, it was clear that it had also considered the criticism  against working of Tribunals by Malimath Committee.  The report of  the said Committee, however, has been commented upon by this  Court in L. Chandra Kumar and the criticism by the said Committee  against the working of the Tribunals was not approved.  It was,  therefore, submitted that if on the basis of such criticism an action is  taken, the same deserves to be quashed.

On merits, counsel contended that there was no need for  abolishing the Tribunal. No reasons for such abolition have been  mentioned anywhere.  No study was conducted regarding functioning  of the Tribunal.  Statistics had shown that several cases had been  adjudicated and decided by the Tribunal and even after the decision of  this Court in L. Chandra Kumar, only few matters had reached the  High Court and in the rest of the matters, the decisions of the Tribunal  had not been challenged.  Thus, it was not right, as stated by the State  of Madhya Pradesh, that after the decision in L. Chandra Kumar, the  Tribunal remained as "additional tier" in the administration of justice.   If that was the basis and foundation on which the State had taken a  decision, the same being incorrect in fact and untenable at law, the  order of abolishing the Tribunal deserves to be set aside.  In this  connection, the counsel submitted that ambit and scope of jurisdiction  of Administrative Tribunals exercising power under the Act and of the  High Court under Articles 226 and 227 of the Constitution is totally  different and distinct.  Even if the decision rendered by the Tribunal  can be made subject matter of writ jurisdiction/supervisory  jurisdiction of a High Court under Article 226/227 of the Constitution,  the later exercises the power of "judicial review" and neither original  nor appellate power.  The sweep and extent of two jurisdictions  cannot be compared.  The learned counsel submitted that all these  points have not been appreciated in their proper perspective by the  High Court and the decision of the High Court suffers from non- application of mind and non-consideration of relevant aspects and  needs interference.

Other counsel appearing in the remaining matters supported Mr.  Prashant Bhushan and adopted the arguments put forward by him.   They also submitted that an attempt has been made by the State of  Madhya Pradesh to interfere with judicial functioning of the Tribunal  which is violative of the "basic feature of the Constitution" which  protects and safeguards the independence of judiciary and such action  deserves to be quashed and set aside by this Court.

Mr. B. Datta, learned Additional Solicitor General for the  Union of India has voiced grievance against some of the conclusions  reached by the High Court, particularly, that the State of Madhya  Pradesh has the authority to abolish the State Administrative Tribunal  and if a request is made by the State Government to the Central  Government to abolish the Tribunal, the latter has no option but to  accept such request.

The learned counsel appearing for the State of Madhya Pradesh,  on the other hand, supported the order passed by the High Court.   According to him, the State Administrative Tribunal was constituted  and established in the State only at the request of the State of Madhya  Pradesh.  It was, therefore, clear that the State of Madhya Pradesh  wanted establishment of such Tribunal.  Obviously, therefore, it was  open to the State if it felt that continuance of such Tribunal would not  be in the larger interest.  It was also urged by the counsel that the State  Government realised the need and necessity of such Tribunal in the  light of the provisions of Article 323A of the Constitution as amended

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by the Constitution (42nd Amendment) Act, 1976 and after 1985 Act  by Parliament.  The counsel also submitted that the validity of 1985  Act came up for consideration before this Court in S.P. Sampath  Kumar v. Union of India (1987) 1 SCC 124 : AIR 1987 SC 386 and  the constitutional validity of the Act had been upheld.  Virtually  therefore, after the decision in S.P. Sampath Kumar, the  Administrative Tribunal was held "substitute" of the High Court.  The  State of Madhya Pradesh, therefore, thought it proper to have such  Tribunal.  Accordingly, a request was made and the Tribunal was  established in 1988.  But the position was substantially altered after  the decision in L.Chandra Kumar.  In the said case, this Court held  that the power of "judicial review" conferred on all High Courts by  the Constitution is a basic feature of the Constitution.  Such power  cannot be taken away even by an amendment in the Constitution.   Clause (d) of Article 323A(2) and Clause (d) of Article 323B(3) of the  Constitution were, therefore, held ultra vires.  The consequence of the  decision in L. Chandra Kumar was that after a decision by the State  Administrative Tribunal, an aggrieved party can approach the High  Court within the territorial jurisdiction of which a decision has been  rendered by such Tribunal and such decision could be made subject  matter of judicial review before the High Court.  Considering the  above fact, the Council of Ministers thought that it would not be  appropriate to have such Tribunal in view of the decision in L.  Chandra Kumar.  According to the counsel, such a decision could  never be termed as arbitrary, unreasonable or mala fide.  Therefore,  even if it is assumed that all the matters which had been decided by an  Administrative Tribunal may not be taken to High Court, it cannot  prevent the Council of Ministers to take an appropriate decision as to  continuance or otherwise of the State Administrative Tribunal.  It was  a policy decision.  The question is not of advisability or propriety of  such decision, but legality and constitutionality thereof.  If the  decision is otherwise legal, valid and in accordance with law, it cannot  be set aside.  A court of law can interfere with such decision only if it  is unconstitutional or without authority of law. It was submitted that  even Parliament considered the fact that the Tribunal was established  for adjudication of service disputes in the State of Madhya Pradesh  and at the request of the State, such Tribunal was constituted.  Hence,  a provision was made in Section 74 of the Act enabling the State  Governments to continue or not to continue such Tribunal.  Such a  provision cannot be termed arbitrary or unreasonable.  There is no  delegation of legislative power by Parliament on the State. Since, the  State Government had requested the Central Government to constitute  a Tribunal and a Tribunal had been constituted, Parliament thought it  appropriate to authorize the State Government to decide as to whether  such Tribunal should be continued or abolished.  There is, thus, no  "excessive delegation" in such matters and the High Court was fully  justified in repelling the contention of the petitioners-appellants and in  dismissing the petition.

Regarding mala fide exercise of power, it was submitted that  there was no material to show that the action was not bona fide or has  been taken in colourable exercise of power.  There is nothing to  substantiate such bald allegations.  Though it was asserted that the  Tribunal has been abolished because it had passed certain "judicial  orders", it is merely ipse dixit and based on newspaper reports.  From  the record, it is clear that the State considered the decision in L.  Chandra Kumar and a satisfaction had been reached by the Council of  Ministers that there would be "one more tier" if Administrative  Tribunal would be continued.  Accordingly, it was resolved to abolish  the Tribunal.  Such a decision cannot be said malicious or mala fide.   It was, therefore, submitted that the appeal deserves to be dismissed.

So far as constitutional validity and vires of sub-section (1) of  Section 74 of the Act is concerned, in Mukesh Kumar Misra and  Another v. Union of India and Others (W.P. No.2398 of 2001 decided

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on 3rd July, 2001), the Division Bench of the High Court of Madhya  Pradesh upheld the validity thereof.  Considering the provisions of the  Constitution including Article 323A and the relevant provisions of the  Act, the Court held that Parliament was competent to enact the Act of  2000 and it was open to Parliament to confer power on the States of  Madhya Pradesh and Chhattisgarh to take an appropriate decision as  to continuance or otherwise of any Commission, Authority, Tribunal,  University, Board or any other body constituted under the Central Act,  State Act or Provincial Act "having jurisdiction over the existing State  of Madhya Pradesh".  The Court also held that discretion had been  conferred on both the State Governments to abolish the Tribunal if  they wished to do so.  The Court noted that Article 323A of the  Constitution was merely an enabling provision and it was not  incumbent on State Governments to constitute a Tribunal under the  Act of 1985.  In the opinion of the Court, there was no inconsistency  or conflict between Section 74(1) of the Act of 2000 and Article 323A  of the Constitution or Section 4 of the Administrative Tribunals Act,  1985.  It was also observed that sub-section (1) of Section 74 of the  Act of 2000 opens with non obstante clause ("Notwithstanding  anything contained in any other law for the time being in force") and  allows the States of Madhya Pradesh and Chhattisgarh to continue or  to abolish Tribunals in the respective States.  In this connection, it is  also profitable to refer to Section 85 which declares that the  provisions of "this Act shall have effect notwithstanding anything  inconsistent therewith contained in any other law".   Conjoint reading  of Article 323A of the Constitution, Section 4 of the Administrative  Tribunals Act 1985 and Sections 74(1) and 85 of the Act of 2000, in  our considered opinion, leaves no room of doubt that Parliament  authorized the State of Madhya Pradesh as well as the new State of  Chhattisgarh to take an appropriate decision with regard to State  Administrative Tribunals having jurisdiction over those States.   Parliament empowered both the successor States to take an  appropriate decision to continue such Tribunals, to abolish them or to  constitute  separate Tribunals.  It cannot be said that by enacting such  a provision, Parliament had violated any mandate or the Act of 2000  is ultra vires Article 323A or any other part of the Constitution.   

It was then contended that once the power to constitute a  Tribunal had been exercised, Parliament was denuded of any power to  make any legislation providing for abolition of such Tribunal.  The  Division Bench negatived the contention and observed : "It is difficult to swallow that Parliament after  enacting law on a particular subject shall have no power  to amend, modify or repeal the same.  The power of the  Parliament, in our opinion, does not exhaust by  enactment of any law and we are of the considered  opinion that Parliament can make law in relation to a  subject for which it has the legislative competence,  notwithstanding the fact that law on a particular subject  was enacted by the Parliament earlier.  The theory of  exhaustation is unknown so far as the legislative powers  are concerned.  What Parliament has done, Parliament  can undo."   

The above observations, in our view, are in consonance with  law and lay down correct proposition of law. We are also not impressed by the argument of the learned  counsel for the appellants that in the light of the ratio laid down by  this Court in L. Chandra Kumar, an Administrative Tribunal  constituted under the 1985 Act cannot be abolished.  What has been  held by this Court in L. Chandra Kumar was that the jurisdiction  conferred on this Court under Articles 32 and 136 of the Constitution  as also of the High Courts under Articles 226 and 227 of the  Constitution is a part of the "basic structure" of our Constitution.  

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That jurisdiction cannot be ousted by making any provision in the  Constitution also.  So far as Tribunals are concerned, they may  perform a "supplemental role" in the discharge of power conferred  upon the Supreme Court as well as upon High Courts.  From that,  however, it cannot be said that once a Tribunal is constituted, created  or established, there is no power either in the Central Government or  State Governments to abolish it.  There is no constitutional or  statutory prohibition against exercise of such power.  To us, it is clear  that Parliament which allowed the State Government to request the  Central Government for establishment of an Administrative Tribunal  under the 1985 Act has authority, power and jurisdiction to enable the  State Government to take an appropriate decision to continue or  not  to continue such Tribunal and a provision by Parliament authorizing  the State Government to abolish such Tribunal, by no stretch of  imagination, can be held ultra vires the Constitution or inconsistent  with the law laid down by this Court in L. Chandra Kumar.

       Under the Constitution of India, the power to legislate is with  the Legislature.  The said power of making laws, therefore, cannot be  delegated by the Legislature to the Executive.  In other words, a  Legislature can neither create a parallel legislature nor destroy its  legislative power.  The essential legislative function must be retained  by the Legislature itself.  Such function consists of the determination  of legislative policy and its formulation as a binding rule of conduct.   But it is also equally well-settled that once the essential legislative  function is performed by the Legislature and the policy has been laid  down, it is always open to the Legislature to delegate to the Executive  authority ancillary and subordinate powers necessary for carrying out  the policy and purposes of the Act as may be necessary to make the  legislation complete, effective and useful.

       Mr. Bhushan, learned counsel for the appellants invited our  attention to the leading case of In re: The Delhi Laws Act, 1912 (1951  SCR 747).  The question which arose before this Court in that case  was of "great public importance" and was "first of its kind".  The  Central Government was authorized by Section 2 of Part C States  (Laws) Act, 1950 to extend to any Part C State with such  modifications and restrictions as it thinks fit, any enactment in force in  Part A State.  While doing so, the Government was also authorized to  repeal or amend any corresponding law (other than a Central Act)  which might be in force in Part C State.  While dealing with the  Reference under Article 143 of the Constitution of India, this Court  opined that keeping the exigencies of the modern Government in  view, Parliament and State Legislatures in India needed to delegate  legislative power, if they were to be able to face the multitudinous  problems facing the country, as it was neither practicable nor feasible  to expect each of the legislative bodies to enact complete and  comprehensive legislation on all subjects sought to be legislated upon.   It was also observed that since the legislatures in India derive their  powers from written Constitution, they could not be allowed the same  freedom as the British Parliament has in the matter of delegation.

       Relying on some of the observations, the learned counsel  submitted that the provisions of sub-section (1) of Section 74 of the  Act of 2000 must be held ultra vires.  The counsel referred to the  following observations of Kania, C.J.:         "A fair and close reading and analysis of all these  decisions of the Privy Council, the judgments of the  Supreme Courts of Canada and Australia without  stretching and straining the words and expressions used  therein lead me to the conclusion that while a legislature,  as a part of its legislative functions, can confer powers to  make rules and regulations for carrying the enactment  into operation and effect, and while a legislature has  power to lay down the policy and principles providing

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the rule of conduct, and while it may further provide that  on certain date or facts being found and ascertained by an  executive authority, the operation of the Act can be  extended to certain areas or may be brought into force on  such determination which is described as conditional  legislation the power to delegate legislative functions  generally is not warranted under the Constitution of India  at any stage.  In cases of emergency, like war where a  large latitude has to be necessarily left in the matter of  enforcing regulations to the executive, the scope of the  power to make regulations is very wide, but even in those  case the suggestion that there was delegation of  "legislative functions" has been repudiated.  Similarly,  varying according to the necessities of the case and the  nature of the legislation, the doctrine of conditional  legislation or subsidiary legislation or ancillary  legislation is equally upheld under all the Constitutions.   In my opinion, therefore, the contention urged by the  learned Attorney General that legislative power carries  with it a general power to delegate legislative functions,  so that the legislature may not define its policy at all and  may lay down no rule of conduct but that whole thing  may be left either to the executive authority or  administrative or other body, is unsound and not  supported by the authorities on which he relies.  I do not  think that apart from the sovereign character of the  British Parliament which is established as a matter of  convention and whose powers are also therefore absolute  and unlimited in any legislature of any other country  such general powers of delegation as claimed by the  Attorney-General for a legislature have been recognized  or permitted."  (emphasis supplied)

       Keeping in view the Parliamentary position in India in  juxtaposition of British system, His Lordship proceeded to state:         "Having regard to the position of the British  Parliament, the question whether it can validly delegate  its legislative functions cannot be raised in the court of  law.  Therefore from the fact that the British Parliament  has delegated legislative powers it does not follow that  the power of delegation is recognized in law as  necessarily include din the power of legislation.   Although in the Constitution of India there is no express  separation of powers, it is clear that a legislature is  created by the Constitution and detailed provisions are  made for making that legislature pass laws.  Is it then too  much to say that under the Constitution the duty to make  laws, the duty to exercise its own wisdom, judgment and  patriotism in making laws is primarily cast on the  legislatures?  Does it not imply that unless it can be  gathered from other provisions of the Constitution, other  bodies, executive or judicial, are not intended to  discharge legislative functions?  I am unable to read the  decisions to which our attention has been drawn as laying  down that once a legislature observes the procedure  prescribed for passing a bill into an Act, it becomes a  valid law, unless it is outside the Legislative Lists in the  Seventh Schedule prescribing its respective powers.  I do  not read articles 245 and 246 as covering the question of  delegation of legislative powers.  In my opinion, on a  true construction of articles 245 and 246 and the Lists in  the Seventh Schedule, construed in the light of the  judicial decisions mentioned above, legislation  delegating legislative powers on some other bodies is not

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a law on any of the subjects or entries mentioned in the  Legislative Lists.  It amounts to a law which states that  instead of the legislature passing laws on any subject  covered by the entries, it confers on the body mentioned  in the legislation the power to lay down the policy of the  law and make a rule of conduct binding on the persons  covered by the law."

       Our attention has also been invited to similar observations of  Fazl Ali, J., who said:         "There can be no doubt that if the legislature  completely abdicates its functions and sets up a parallel  legislature transferring all its power to it, that would  undoubtedly be a real instance of delegation of its power.   In other words, there will be delegation in the strict sense  if legislative power with all its attributes is transferred to  another authority.  But the Privy Council have repeatedly  pointed out that when the legislature retains its dominant  power intact and can whenever it pleases destroy the  agency it has created and set up another or take the  matter directly into its own hands, it has not parted with  its own legislative power.  They have also pointed out  that the act of the subordinate authority does not possess  the true legislative attribute, if the efficacy of the act  done by it is not derived from the subordinate authority  but from the legislature by which the subordinate  authority was entrusted with the power to do the act.  In  some of the cases to which reference has been made, the  Privy Council have referred to the nature and principles  of legislation and pointed out the conditional legislation  simply amounts to entrusting a limited discretionary  authority to others, and that to seek the aid of subordinate  agencies in carrying out the object of the legislation is  ancillary to legislation and properly lies within the scope  of the powers which every legislature must possess to  function effectively."        (emphasis supplied)

       Reference was also made to the following conclusions reached  by His Lordship:

       "The conclusions at which I have arrived so far  may now be summed up:\027

(1)     The legislature must normally discharge its  primary legislative function itself and not through  others.

(2)     Once it is established that it has sovereign powers  within a certain sphere, it must follow as a  corollary that it is free to legislate within that  sphere in any way which appears to it to be the  best way to give effect to its intention and policy in  making, a particular law, and that it may utilize  any outside agency to any extent it finds necessary  for doing things which it is unable to do itself or  finds it inconvenience to do.  In other words it can  do everything which is ancillary to and necessary  for the full and effective exercise of its power of  legislation.

(3)     It cannot abdicate its legislative functions, and  therefore while entrusting power to an outside  agency it must see that such agency, acts as a

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subordinate authority and does not become a  parallel legislature.

(4)     The doctrine of separation of powers and the  judicial interpretation it has received in America  ever since the American Constitution was framed,  enables the American courts to check undue and  excessive delegation but the courts of this country  are not committed to that doctrine and cannot  apply it in the same way as it has been applied in  America.  Therefore, there are only two main  checks in this country on the power of legislature  to delegate, these being its good sense and the  principal that it should not cross the line beyond  which delegation amounts to "abdication and self- effacement."

       On the basis of the above observations, it was submitted by Mr.  Prashant Bhushan that by the impugned legislation, Parliament has  delegated essential legislative functions in favour of the State  Government.  Such delegation is blanket and unchartered and is of  essential legislative function and legislative policy which could not  have been done.  The High Court has committed an error of law in  upholding such delegation which was in substance and reality  "excessive delegation".  The order passed by the High Court to that  extent suffers from legal infirmity and deserves to be interfered with  by holding sub-section (1) of Section 74 of the Act of 2000 ultra  vires.

       The High Court, however, was not impressed by the argument.   In the opinion of the High Court, sub-section (1) of Section 74 of the  Act of 2000 was not in the nature of "delegated legislation" but was  "conditional legislation".  Taking note of distinction between  delegated legislation and conditional legislation, the High Court held  that the power conferred by Parliament on the State Government to  abolish Tribunal on fulfillment of conditions specified in sub-section  (1) of Section 74 of the Act of 2000 could not be objected.

       We find no infirmity in the approach of the High Court.  In  Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671, speaking  for the Constitution Bench, Kapur, J., said; "The distinction between conditional legislation  and delegated legislation is that in the former the  delegate’s power is that of determining when a legislative  declared rule of conduct shall become effective;  Hampton & Co. v. U.S., 276 US 394 : 72 L Ed 624  (1928) and the latter involves delegation of rule-making  power which constitutionally may be exercised by the  administrative agent.  This means that the legislature  having laid down the broad principles of its policy in the  legislation can then leave the details to be supplied by the  administrative authority.  In other words by delegated  legislation the delegate completes the legislation by  supplying details within the limits prescribed by the  statute and in the case of conditional legislation the  power of delegation is exercised by the legislature  conditionally leaving to the discretion of an external  authority the time and manner of carrying its legislation  into effect as also the determination of the area to which  it is to extend; (R. v. Burah [(1878) 3 AC 889, PC];  Russell v. R. [(1882) 7 AC 829 at p.835 : 51 LJPC 77,  PC]; King Emperor v. Benoari Lal Sarma [(1944) 72 IA  57 : AIR 1945 PC 48]; Sardar Inder Singh v. State of  Rajasthan [AIR 1957 SC 510 : 1857 SCR 605].  Thus  when the delegate is given the power of making rules and

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regulations in order to fill in the details to carry out and  subserve the purposes of the legislation the manner in  which the requirements of the statute are to be met and  the rights therein created to be enjoyed it is an exercise  of delegated legislation.  But when the legislation is  complete in itself and the legislature has itself made the  law and the only function left to the delegate is to apply  the law to an area or to determine the time and manner  of carrying it into effect, it is conditional legislation."  (emphasis supplied)

       We may also refer in this connection to a decision of this Court  in Sardar Inder Singh v. State of Rajasthan, (1957 SCR 605).  There  the Rajasthan Tenants’ Protection Ordinance was promulgated for two  years.  By Section 3, the Rajpramukh was empowered to extend the  life of the Ordinance by issuing a notification, if required.  The  duration of the Ordinance was extended by issuing a notification  which was challenged.  This Court, however, upheld the provision  observing that it was a case of conditional legislation.         The Court said;         "In the present case, the preamble to the Ordinance  clearly recites the state of facts which necessitated the  enactment of the law in question, and s.3 fixed the  duration of the Act as two years, on an understanding of  the situation as it then existed.  At the same time, it  conferred a power on the Rajpramukh to extend the life  of the Ordinance beyond that period, if the state of affairs  then should require it.  When such extension is decided  by the Rajpramukh and notified, the law that will operate  is the law which was enacted by the legislative authority  in respect of "place, person, laws, powers", and it is  clearly conditional and not delegated legislation as laid  down in The Queen v. Burah [(1878)) 5 I.A. 178], and  must, in consequence, be held to be valid."

       Referring to Sardar Inder Singh and reiterating the principle  laid down therein, this Court in State of T.N. represented by Secretary,  Housing Department, Madras v. K. Sabanayagam & Anr., (1998) 1  SCC 318, speaking through S.B. Majmudar, J., stated;         "It is thus obvious that in the case of conditional  legislation, the legislation is complete in itself but its  operation is made to depend on fulfillment of certain  conditions and what is delegated to an outside authority,  is the power to determine according to its own judgment  whether or not those conditions are fulfilled.  In case of  delegated legislation proper, some portion of the  legislative power of the legislature is delegated to the  outside  authority in that, the legislature, though  competent to perform both the essential and ancillary  legislative functions, performs only the former and parts  with the latter, i.e., the ancillary function of laying down  details in favour of another for executing the policy of  the statute enacted.  The distinction between the two  exists in this that whereas conditional legislation contains  no element of delegation of legislative power and is,  therefore, not open to attack on the ground of excessive  delegation, delegated legislation does confer some  legislative power on some outside authority and is  therefore open to attack on the ground of   excessive  delegation."  

       In the case on hand also, the Act of 2000 as enacted by  Parliament was full and complete when it left legislative chamber.  

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There was, therefore, no question of delegation of legislative power  by the legislature in favour of the executive.  What was left to the  executive was merely to decide whether to continue the  Administrative Tribunal or to abolish it.  The State Government, after  considering the facts and circumstances decided not to continue the  Tribunal which was within the power of the State Government and,  hence, no objection can be raised against exercise of such power.  The  contention of the appellants, therefore, cannot be upheld.

The matter can be looked at from another angle also.  As  already indicated in the earlier part of the judgment, Article 323A is  not self-executory.  The said provision did not create or establish  Administrative Tribunals.  It was merely a permissive or an enabling  provision allowing Parliament to make law to establish Administrative  Tribunal if it wished to do so. Thus, there was no binding requirement  on the part of the Parliament (or State Legislature) to create such a  forum as contemplated by Article 323A of the Constitution of India.   It also cannot be overlooked that the Administrative Tribunal in  question was to be created for a particular State, i.e. State of Madhya  Pradesh.  Neither under Article 323A of the Constitution nor under the  Administrative Tribunals Act, 1985, the Central Government could  have created such Tribunal except in accordance with the provisions  of sub-section (2) of Section 4 of the said Act.  As already noted, the  Central Government could exercise the jurisdiction, power and  authority conferred on the Administrative Tribunal for the State by or  under the said Act only "on receipt of a request in this behalf from any  State Government".  Essentially therefore, it was on the request made  by the State of Madhya Pradesh to the Central Government that the  power to create and establish Administrative Tribunal in the State of  Madhya Pradesh was exercised by the Central Government and the  Tribunal was established.  We, therefore, see no objection in  conferring the power on the State Government to continue or to  abolish such Tribunal.  In our considered opinion, there is no  excessive delegation by Parliament to the State Government which  would be hit either by the provisions of the Constitution or the law  laid down in In re: The Delhi Laws Act, 1912 or other decisions of  this Court.

       The learned counsel for the appellants contended that for  abolishing State Administrative Tribunal, the State of Madhya  Pradesh took into account the report of the Arrears Committee  (Malimath Committee).  Even in the affidavit in reply, reliance was  placed on the report of the said Committee.  It was urged that this  Court in L. Chandra Kumar did not fully endorse the views expressed  by the Malimath Committee.  Quoting certain recommendations on  "functioning of Tribunals", the Malimath Committee specifically  recommended that the theory of alternative institutional mechanisms  should be abandoned.  It also suggested that institutional changes  should be carried out within the High Courts dividing them into  separate divisions for different branches of law as has been done in  England.  According to the Committee, appointment of more Judges  would be a better way of remedying the problem of pendency in High  Courts.

       This Court, while dealing with the constitutional validity of  Article 323A of the Constitution and ouster of jurisdiction of High  Courts considered the report of the Committee and observed that "its  recommendation is not suited to our present context".  The Court,  however, conceded that various Tribunals have not performed up to  the expectation was "self-evident and widely acknowledged truth".   But, the Court proceeded to state that "to draw an inference that their  unsatisfactory performance points to their being founded on a  fundamentally unsound principle would not be correct".  According to  the Court, "the reasons for which the Tribunals were constituted still  persist; indeed those reasons have become even more pronounced in

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our times".            The endeavor of the learned counsel is to impress upon the  Court that the reasons which weighed with the State Government in  taking a decision to abolish the State Administrative Tribunal were  illegal, non-existent, irrelevant and ill-founded.  Once this Court has  held that existence of such Tribunals is a "need for the day" and the  observations of the Arrears Committee could not be said to be well- founded, no action of abolishing the State Administrative Tribunal  could be taken by the State Government.

The contention of the learned counsel cannot be upheld.  It is  true that the State of Madhya Pradesh had considered the report of the  Arrears Committee and the functioning of State Administrative  Tribunal in the State of Madhya Pradesh, but it is equally true that  when a request was made by the State of Madhya Pradesh to the  Central Government for establishment of State Administrative  Tribunal and the decision was taken by the Central Government to  create such Tribunal and a notification was issued in 1988 and the  Tribunal was established, the law governing the field was as laid  down in S.P. Sampath Kumar.  L. Chandra Kumar had not seen the  light of the day.  It was after the order of Reference in R.K. Jain v.  Union of India (1993) 4 SCC 119 that a Division Bench of this Court  in L. Chandra Kumar v. Union of India (1995) 1 SCC 400 referred the  matter to a Bench of seven Judges concluding that "the decision  rendered by five-Judge Constitution Bench in S.P. Sampath Kumar  needs to be comprehensively reconsidered".  It is also pertinent to  note that seven-Judge Bench overruled S.P. Sampath Kumar and  unanimously held that power, authority and jurisdiction of High  Courts under Articles 226 and 227 cannot be taken away even by an  amendment in the Constitution.  Clause (d) of Article 323A (2) and  Clause (d) of Article 323B (3) of the Constitution, therefore, were  held ultra vires.  The resultant effect of L. Chandra Kumar was that  after an order is passed by State Administrative Tribunal, an  aggrieved party could approach the High Court by invoking  writ/supervisory jurisdiction under Article 226/227 of the Constitution  of India.  So much so that after the decision by the Administrative  Tribunal, the aggrieved party was required to approach the High Court  before approaching this Court under Article 136 of the Constitution.   In this connection, it may be necessary to bear in mind the  following observations in L. Chandra Kumar:--          "We may add here that under the existing system,  direct appeals have been provided from the decisions of  all Tribunals to the Supreme Court under Article 136 of  the Constitution.  In view of our above-mentioned  observations, this situation will also stand modified.  In  the view that we have taken, no appeal from the decision  of a Tribunal will directly lie before the Supreme Court  under Article 136 of the Constitution; but instead, the  aggrieved party will be entitled to move the High Court  under Articles 226/227 of the Constitution and from the  decision of the Division Bench of the High Court the  aggrieved party could move this Court under Article 136  of the Constitution."            

       From the discussion hereinabove, it is clear that after the  Constitution (42nd Amendment) Act, 1976, the Administrative  Tribunals Act, 1985 came to be enacted by Parliament.  The position  prevailed at that time was  the law laid down by the Constitution  Bench of this Court in S.P. Sampath Kumar.  Invoking sub-section (2)  of Section 4 of the Administrative Tribunals Act, 1985, the State of  Madhya Pradesh requested the Central Government to constitute a  Tribunal for civil servants in the State.  It was also on the basis of  pronouncement of law in S.P. Sampath Kumar.  The notification was

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issued by the Central Government in 1988 and the State  Administrative Tribunal was established for the State of Madhya  Pradesh.  At that time, as per well-settled legal position, decisions  rendered by the Administrative Tribunals constituted under the Act of  1985 were "final" subject to jurisdiction of this Court under Article  136 of the Constitution.  No person aggrieved by a decision of State  Administrative Tribunal could approach the High Court of Madhya  Pradesh in view of Clause (d) of Article 323A (2) of the Constitution  read with Section 28 of the Act of 1985 and the declaration of law in  S.P. Sampath Kumar.  If, in view of subsequent development of law in  L. Chandra Kumar, the State of Madhya Pradesh felt that continuation  of State Administrative Tribunal would be "one more tier" in the  administration of justice inasmuch as after a decision is rendered by  the State Administrative Tribunal, an aggrieved party could approach  the High Court under Article 226/227 of the Constitution of India and,  hence, it felt that such tribunal should not be continued further, in our  opinion, it cannot be said that such a decision is arbitrary, irrational or  unreasonable. From the correspondence between the State of Madhya  Pradesh and Central Government as well as from the affidavit in  reply, it is clear that the decision of this Court in L. Chandra Kumar  had been considered by the State of Madhya Pradesh in arriving at a  decision to abolish State Administrative Tribunal.  Such a  consideration, in our opinion, was relevant, germane and valid.  It,  therefore cannot be said that the decision was illegal, invalid or  improper.          It was also contended that there is interference with judicial  functioning of the Tribunal by the Executive and such interference  would be violative of "basic structure of the Constitution" and would  result in death knell of Rule of Law.  The counsel in this connection,  placed reliance on a decision of this Court in P. Sambamurthy &  Others  v. State of Andhra Pradesh and Another (1987) 1 SCC 362.   In that case, vires of Clause (5) of Article 371D of the Constitution  was challenged before this Court.  Article 371D was inserted in the  Constitution by the Constitution (32nd Amendment) Act, 1983.   The said clause read as under:-         "371D.  Special provisions with respect to the  State of Andhra Pradesh\027

(5)     The order of Administrative Tribunal finally  disposing of any 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.

Provided 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  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."                        (emphasis supplied)   

       The reading of above clause makes it clear that it empowered  the State Government to decide whether it would confirm the order, to  modify it or even to annul it.  Taking judicial notice of the fact that  "almost invariably in every service dispute before the Administrative  Tribunal" the State Government was a party, this Court noted with  concern that the said party was granted ultimate authority to uphold or  reject the determination of Administrative Tribunal.  This Court, in  the circumstances, held the provision unconstitutional and ultra vires.   

Speaking for the Court, Bhagwati, C.J. observed:

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       "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 litigation be given the power to  override 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 starling and wholly repugnant to  our notion of justice but it is also a power which can be  abused misused."    (emphasis supplied)

       Putting the problem on a high pedestal, the Court added;          "This power of modifying or annulling an order of  the Administrative 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 Constitution.  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 overriding 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 to get away with it.   The proviso to clause (5) of Article 371-D is therefore  clearly violative of the basic structure doctrine".   (emphasis supplied)

       In our considered opinion, P. Sambamurthy has no application  to the facts of the case.  In that case, the Executive (Government), a  party to the proceeding  was authorized to interfere with a decision  rendered by a quasi-judicial authority (Tribunal).  Such a course  cannot be allowed in a democratic country and in a judicial system  governed by Rule of Law.  It would totally destroy the independence  of judiciary.  It was in the light of the said fact that the provision was  held ultra vires and unconstitutional.   

In the instant case, there is no interference with a "judicial  order" passed by a competent court or a Tribunal, but a "policy  decision" has been taken by the State Government to abolish State  Administrative Tribunal allowing aggrieved litigants to approach  appropriate authority/court for ventilating their grievances.  The ratio  laid down in P. Sambamurthy, therefore, does not apply and the  contention cannot be upheld.   

It was also contended that it is the Central Government which  can issue a notification under sub-section (4) of Section 74 of the Act  of 2000.  Hence, even if it is assumed that the Tribunal can be  abolished, the power has been vested in the Central Government.  It is

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the Central Government which is required to issue directions for  resolution of any matter relating to any body referred to in sub-section  (1) of Section 74.  Since no action has been taken by the Central  Government, abolition of the Tribunal is illegal and unlawful.

On behalf of the State of Madhya Pradesh, however, it was  submitted that the interpretation put forward by the appellants was not  correct and reliance on sub-section (4) of Section 74 was  misconceived and ill-founded.  Sub-section (4) of Section 74 of the  Act of 2000 has limited application and could be invoked in case there  is dispute between the successor States, but not otherwise.  "When  both the States mutually agreed for a decision, the Central  Government has neither any discretion nor any role has been given to  the Central Government".  The contention, therefore, has no force.

Considering the provisions of sub-section (4) of Section 74, the  High Court stated; "A fair reading of the above sub-section (4) of  Section 74 of the Act of 2000 makes it clear that the  above contention raised by the learned counsel appearing  for the petitioners is not based on proper and correct  interpretation of sub-section (4) of Section 74 of the Act  of 2000.  If both the successor States decide by mutual  agreement to abolish the Tribunal, as envisaged in sub- section (1) of Section 74 of the Act of 2000, it is not  obligatory for the Central Government to issue directions  as envisaged in above sub-section (4) of Section 74.  This  sub-section does not contain any provision about the  issuance of notification by the Central Government for  the abolition of the Tribunal.  An issuance of notification  is a mandatory requirement as the Tribunal was  established by a notification issued by the Central  Government.  The sub-section (4) of Section 74 of the  Act of 2000 begins with a non-obstante clause which  indicates that the provisions of this sub-section are  independent.  The provisions of sub-section (1) of  Section 74 of the Act of 2000 are not subservient to the  provisions of sub-section (4) of Section 74 of the Act of  2000.  If it had been so, the words "subject to the  provisions of sub-section (4)" would have been used in  sub-section (1) of Section 74 of the Act of 2000.   Moreover, above sub-section (4) provides that the  Central Government shall issue directions for the  resolution of any matter relating to any body referred to  in sub-section (1) within any period referred to in sub- section (1) in accordance with any mutual agreement  between the successor States or if there is no such  agreement (emphasis supplied) after consultation with  the Governments of successor States.  Obviously if on  any matter relating to any body referred to in sub-section  (1), there is no mutual agreement then the directions  could also be issued by the Central Government after  consultation with the Governments of both the successor  States.  A fair reading of sub-section (1) of Section 74 of  the Act of 2000, however, makes it clear that the decision  to abolish any of the bodies referred to in that clause can  be taken only by mutual agreement between the  successor States, therefore the issuance of "directions" by  the Central Government under sub-section (4) does not  include the issuance of "notification" for the abolition of  any of the body referred to in sub-section (1).  The  abolition of the Tribunal does not require any "direction"  from the Central Government under sub-section (4) of  Section 74 of the Act of 2000.  Such direction can only  be issued for the "resolution" of any matter and the

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decision to abolish the Tribunal taken by the successor  States by mutual agreement does not amount to a  "resolution" of any matter relating to the Tribunal.  The  provisions of sub-section (4) is only in the nature of  further supplemental ancillary, or consequential  provisions to further the aims, objects and stopgap  arrangement envisaged under sub-section (1) of Section  74 of the Act of 2000.  The word "direction for  resolution" means direction regarding some defect or  deadlock persists requiring intervention of the Central  Government in relation to the functioning of that body  within a period referred to in sub-section (1)."     

We   fully  agree   with    the   interpretation   of  the High  Court.  In our judgment, the High Court was right in  observing that Section 74(1) is not subservient to Section 74(4)  of the Act and once the provisions of sub-section (1) of Section 74 of  the Act are attracted and invoked, the provisions of sub-section (4) of  Section 74 has no application.  The contention of the appellants,  therefore, has no force and has to be rejected.

It was also argued that even if this Court comes to the  conclusion that sub-section (1) of Section 74 of the Act of 2000 is  intra-vires and constitutional confirming the view taken by the High  Court, the impugned action of abolishing State Administrative  Tribunal is mala fide and malicious.  For this, learned counsel referred  to certain press reports wherein it had been alleged that a decision had  been taken at the Cabinet Meeting of the State Government to abolish  State Administrative Tribunal as the Chief Minister and all the  Ministers were of the view that State Administrative Tribunal had  granted stay in many transfer matters.  The attempt on the part of the  learned counsel for the appellants was that the action has been taken  by the State of Madhya Pradesh because of adverse verdicts by the  State Administrative Tribunal.  In other words, according to the  appellants, action of abolishing State Administrative Tribunal was  taken because of "judicial orders" passed by the Tribunal which was  not liked by the State Government.   Such an action, submitted the  learned counsel, cannot be sustained in law.

Now, it may be stated that there is no concrete material on  record to show that the decision to abolish State Administrative  Tribunal was taken because of orders passed by the State  Administrative Tribunal.  Except bald assertions by the appellants and  Press cuttings, there is nothing to substantiate such allegations.  On  the contrary, sufficient material is available on record to show what  weighed with the respondent-State in taking a decision to abolish the  Tribunal.  So far as allegations by the appellants are concerned, they  were emphatically denied by the State of Madhya Pradesh by filing a  counter-affidavit.  Moreover, the Advocate General, appearing for the  State of Madhya Pradesh placed chronological events in detail before  the High Court which were as under;

(i)     On 8.3.2001 Cabinet took decision to abolish the  Tribunal.  The decision was communicated to  Press as usual.  To communicate the decision of  the Cabinet to the Press is no crime.

(ii)    On 18.3.2001 a letter was sent to the Government  of Chhattisgarh informing about the decision taken  by the Government of M.P. to abolish Tribunal  w.e.f. 30.4.2001.

(iii)   On 27.3.2001 a reply from the Government of  Chhattisgarh was received seeking further  information etc. as the Chhattisgarh Government

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had no power.

(iv)    On 3.4.2001 second letter from the Government of  Chhattisgarh was received reminding that they  were waiting fro reply of the Government of  Madhya Pradesh.

(v)     On 3.4.2001 i.e. the same day the reply was sent  by the Government of Madhya Pradesh to the  Government of Chhattisgarh giving reasons for  abolition of the Tribunal and also suggesting to  constitute own Tribunal, if so desired.

(vi)    On 26.4.2001 both the State Government agreed to  abolish the Tribunal for both the States.

(vii)   On 5.5.2001 a letter was written by the  Government of Madhya Pradesh to Central  Government to abolish the Tribunal w.e.f.  1.6.2001.

(viii)  On 17.7.2001 order was passed by the Tribunal  which is alleged to be the ground for abolition of  the Tribunal.

(ix)    On 23.7.2001 a letter was received by the  Government of Madhya Pradesh from the  Government of Chhattisgarh again reiterating to  abolish the Tribunal."

Thus, from the correspondence between the State of Madhya  Pradesh and the Central Government and from various letters and  communications and also from the decision which has been taken by  the Cabinet, it is clear that the State Government took into account a  vital consideration that after the decision of this Court in L. Chandra  Kumar, an aggrieved party could approach the High Court, the object  for establishment of the Tribunal was defeated.  In our opinion, in the  light of the facts before the Court, it cannot be said that the decision to  abolish State Administrative Tribunal taken by the State of Madhya  Pradesh can be quashed and set aside as mala fide.

It was finally submitted that even on merits, the action of  abolition of State Administrative Tribunal was unwarranted and  uncalled for.  For that, the counsel invited our attention to facts and  figures and stated that it is not that all the cases decided by the State  Administrative Tribunal reached the High Court of Madhya Pradesh.   In most of the cases dealt with by the State Administrative Tribunal,  the parties accepted the orders of the Tribunal. It is only in few cases  that the aggrieved party \026 public servant or government \026 approached  the High Court.  It was also stated that no survey has been made by  the State.  No reasons have been recorded why continuance of  Tribunal was not necessary.  There was non-application of mind to  this very important aspect and on that ground also, the action deserves  to be set aside at least with a limited direction to the State to  reconsider the matter and take an appropriate decision afresh keeping  in mind all relevant factors.

We are unable to uphold even this argument.  In our judgment,  if a decision is illegal, unconstitutional or ultra vires, it has to be set  aside irrespective of 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

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case or that other decision could have been taken.  While exercising  power of judicial review, this Court cannot substitute its own decision  for the decision of the Government.  The Court, no doubt, can quash  and set aside the decision, if it is illegal, ultra vires, unreasonable or  otherwise objectionable.  But that is not the situation here.   To repeat,  from the record of the case, it is amply clear that relevant, germane,  valid and proper considerations weighed with the State Government  and keeping in view development of law and the decision of the larger  Bench of this Court in L. Chandra Kumar, a policy decision has been  taken by the State Government to abolish State Administrative  Tribunal.  Parliament also empowered the State Government to take  an appropriate decision by enacting sub-section (1) of Section 74 of  the Act of 2000 and in exercise of such power, the State Government  had taken a decision.  The decision, in our opinion, cannot be  regarded as illegal, unlawful or otherwise objectionable.  The  contention, therefore, has no force and has to be negatived.

For the foregoing reasons, Civil Appeal No. 5327 of 2000  deserves to be dismissed and is, accordingly, dismissed.   

In view of the above, Civil Appeal Nos. 8292-8295 of 2002 and  Civil Appeal arising out of Special Leave Petition No.22648 of 2002  filed by the Union of India stand disposed of and Civil Appeal No.  5328 of 2002, Civil Appeal arising out of Special Leave Petition Nos.  23615-23616 of 2002, Writ Petition No. 369 of 2003, Writ Petition  No. 374 of 2003 stand dismissed.   

In the facts and circumstances of the case, however, there shall  be no order as to costs in all these matters.