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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