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CASE NO.:

Appeal (civil) 3946 of 2001

PETITIONER:

Public Services Tribunal Bar Association

RESPONDENT:

State of U.P. & Another

DATE OF JUDGMENT: 29/01/2003

BENCH:

CJI & Ashok Bhan

JUDGMENT:

J U D G M E N T

With

Civil Appeal Nos. 3947 of 2001 and 3948 of 2001

BHAN, J.

These appeals are directed against a common order passed by a Full

Bench of Five Judges of the High Court of Allahabad in Civil Writ Petition

No. 4285 (MB) of 1999, Public Services Tribunal Bar Association Vs. State

of U.P. & Anr., Civil Writ Petition No. 871 (MB) of 2000, Afzal Ahmad

Siddiqui Vs. State of U.P. & Ors., and Civil Writ Petition No. 1262 (MB) of

2000, Shireesh Kumar Vs. State of U.P. & Ors., wherein the High Court has

dismissed the writ petitions challenging the vires of the U.P. Public Services

(Tribunal) Act, 1976, as amended from time to time. The High Court has

upheld the constitutional validity of the Act as well as the subsequent

amendments made therein.

To effectively adjudicate the dispute arising in these appeals it would

be necessary to have a look at the events in a chronological order which are

given in brief as under:

The U.P. Public Services (Tribunal) Act, 1976 ( for short "the Act")

was promulgated relating to public servants of the State Government and the

employees of the government undertakings, local bodies etc. having power

to grant interim relief as well. Before the coming into force of the Act the

public servants were approaching civil courts for redressal of their

grievances arising out of their service matters by filing civil suits before the

civil court of competent jurisdiction or by approaching the High Court under

Article 226 of the Constitution of India. After the coming into force of the

Act the jurisdiction of the Civil Court was taken away. The decision to have

a separate service Tribunal was taken by the State Government after

considering the increasing workload of the civil courts and the delay in

disposal of the service matters. The purpose for creating the Tribunal has

been indicated in the statement of objects of the Act, which reads as under:

"The number of cases in the courts pertaining to

the employment matters of the Government

servants was constantly on the increase. This,

besides increasing the workload in the courts also

delayed considerably the disposal of such cases.

Such litigation also involved money and time of

government servants. In these circumstances, it

was decided to establish Public Services Tribunals

to deal with cases pertaining to employment

matters of government servants and also of the

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employees of the local authorities and Government

Corporations and Companies, so that the

employees may get quick and inexpenses justice.

It was also decided that after the establishment of

the Tribunals such suits be barred from being file

in the subordinate courts."

Under the original Act the State Government constituted five

Tribunals each comprising of an IAS Officer as a Chairman and a Judicial

Officer of the rank of District Judge as a Judicial Member. Each Tribunal

was vested with the jurisdiction over service matters of different

departments to the State Government. Under Section 4 of the Act any

person who is or has been a public servant could file a claim petition in any

manner relating to employment as such public servant if his employer had

dealt with him in a manner which was not in conformity with any contract or

provisions of Article 16 or Article 311 of the Constitution of India or with

any rules or law having force under Article 309 or Article 313 of the

Constitution. Under Section 5 (5) (j) of the original Act the Tribunals had

the power to pass interim orders in respect of all matters within their

jurisdiction including orders of dismissal, removal, reduction in rank,

termination, reversion and compulsory retirement.

The Act was amended by the U.P. Public Services (Tribunal)

(Amendment) Act (U.P. Act No. 1 of 1977). By the said amendment after

sub-section (5) of Section 5, sub-sections (5-A) and (5-B) were inserted.

Under Section 5 (5-A) the Tribunal could pass an interim order in specific

type of cases, but under Section 5 (5-B) the Tribunal was prohibited from

passing interim orders in respect of the order made or purporting to be made

by an employer for the suspension, dismissal, removal, reduction in rank,

termination, reversion and compulsory retirement.

In the year 1982 a proviso was added to Section 4 of the Act by the

U.P. Public Services (Tribunal) (Amendment) Act (U.P. Act No. 2 of 1982)

divesting the Tribunal of the jurisdiction to deal with petitions arising out of

orders of transfer of a public servant.

In 1985 the Administrative Tribunals Act (Act No. 13 of 1985) was

enacted by the Parliament under Article 323-A of the Constitution providing

a Central Administrative Tribunal with benches for adjudicating disputes in

respect of recruitment and conditions of service of persons appointed under

the Central Government and its undertakings in connection with the affairs

of the Union. Under Section 5(1) of the said Act Tribunal was to consist of

a Chairman, Vice-Chairman, Judicial and Administrative Members. Under

Section 6(1)(c) of the said Act a person who had held the post of Secretary

to the Government of India or any other post under Central or State

Government carrying a scale of pay which was not less than that of a

Secretary to the Government of India could be appointed as the Chairman of

the Tribunal. The original Act vested the entire power of appointment of

Chairman, Vice-Chairman, Administrative & Judicial Members of the

Tribunal in the Central Government without providing for their

appointments being made in consultation with the Chief Justice of India.

Writ Petition No. 12437 of 1985, S.P. Sampath Kumar v. Union of

India and other connected cases were filed in this Court under Article 32 of

the Constitution of India challenging the validity of the Administrative

Tribunals Act, 1985 including Section 28 of the said Act whereby the High

Courts were divested of their jurisdiction under Articles 226 and 227 of the

Constitution in respect of matters within the jurisdiction of the

Administrative Tribunals, i.e., in respect of service matters pertaining to

employees of the Central Government, State Government or any undertaking

which were brought within the jurisdiction of the Tribunals. S.P.Sampath

Kumar's case and other connected cases were referred to and disposed of by

a Constitution Bench of this Court and the same is reported in 1987 (1) SCC

124. By the said decision, this Court upheld the constitutional validity of the

Administrative Tribunals Act but directions were issued to the Central

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Government to amend the Act, inter alia, to delete the provisions providing

for IAS Officers to be appointed as Chairman of the Tribunal and providing

for appointment of Chairman, Vice-Chairman and other members of the

Tribunal in consultation with the Chief Justice of India. Thereafter in 1987

by Administrative Tribunals (Amendment) Act, section 6(1)(c) of the said

Act were omitted and section 6 (7) was substituted providing for

appointment of Chairman, Vice-Chairman and members of the Tribunal in

consultation with the Chief Justice of India.

In Krishna Sahai v. State of U.P. [1990 (2) SCC 673] and Rajendra

Singh Yadav v. State of U.P. [1990 (2) SCC 763], this Court directed the

State of U.P. to consider the feasibility of setting up an appropriate Tribunal

under the Central Tribunal Act, 1985 in place of the Services Tribunals

functioning at present, and in case the existing State Tribunals were

continued. This Court observed:

"......it would be appropriate for the State of Uttar

Pradesh to change its manning and a sufficient

number of people qualified in Law should be on

the Tribunal to ensure adequate dispensation of

justice and to maintain judicial temper in the

functioning of the Tribunal..."

In the later decision in Rajendra Singh Yadav's case(supra), this

Court reiterated its earlier view, a few other observations to improve the

functioning of the Services Tribunal were made. The said observations read

as under:

"We have been told that the Services Tribunal

mostly consists of Administrative Officers and the

judicial element in the manning part of the

Tribunal is very small. As was pointed out by us

in S.P. Sampath Kumar v. Union of India, the

disputes require judicial handling and the

adjudication being essentially judicial in character

it is necessary that an adequate number of judges

of the appropriate level should man the Services

Tribunals. This would create appropriate temper

and generate the atmosphere suitable in an

adjudicatory Tribunal and the institution as well

would command the requisite confidence of the

disputants. We have indicated in the connected

matter that steps should be taken to replace the

Services Tribunals by Tribunals under the

Administrative Tribunals Act, 1985. That would

give the Tribunal the necessary colour in terms of

Article 323-A of the Constitution. As a

consequence of setting up of such Tribunals, the

jurisdiction of the High Court would be taken

away and the Tribunals can with plenary powers

function appropriately. The disputes which have

arisen on account of the Services Tribunals not

having complete jurisdiction to deal with every

situation arising before it would then not arise.

We have pointed out that notice has been

issued in a later case for the State's response to the

question of Tribunals to be located at different

parts of the State. State of Uttar Pradesh

territorially is the second largest State in India but

considering the population it comes first. Almost

every part of the State is well advanced and service

litigation in such setting is likely to arise

everywhere. To locate the seat of the Tribunals at

the State capital in such a situation is not

appropriate. The accepted philosophy relevant to

the question today is that justice should be taken to

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everyone's doors. This, of course, is not a

statement which should be taken literally but

undoubtedly the redressal forum should be

available near about so that litigation may be cheap

and the forum of ventilating grievance may not be

difficult to approach. Keeping that in view which

is a legitimate consideration it would be

appropriate for the State Government to consider,

firstly, increase in the number of benches of the

Tribunal and secondly, to locate them not at the

same station but at various sectors or depending

upon the number of institution of disputes and

pendency at the level of independent

Commissionerate or by clubbing two or three of

them together. This, of course, is a matter which

would require further examination at the

administrative level and, therefore, we express no

opinion regarding location of such Tribunals

although we are of the definite view that there

should be Tribunals available in different parts of

the State and all the benches of the Tribunal should

not be located at one place."

Thereafter in 1992 the U.P. Public Services (Tribunals) (Amendment)

Act (U.P. Act No. 7 of 1992) was promulgated amending drastically the

provisions of the original Act. Only one Tribunal with separate division and

single member benches replaced the several Tribunals constituted under the

original Act. According to section 3(2) of the Amending Act the Tribunal

was to consist of one Chairman, one Vice-Chairman, Judicial and

Administrative Members. Under section 3(3)(c) of the Amending Act an

IAS Officer could be appointed as Chairman of that Tribunal. Similarly,

under section 3(4) (c) of the Amending Act an IAS officer could also be

appointed as Vice-Chairman of the Tribunal. Another significant change

brought about by the Amending Act was that vide Section 5-A of the

Amending Act the Tribunal was vested with the powers of punishment for

its contempt in the same manner as the High Court has under the provisions

of the Contempt of Courts Act. Thereafter in 1993 Sri S.Venkat Ramani, an

IAS officer was appointed by the State Government as Chairman of the

Tribunal. Sanjai Kumar Srivastava filed writ petition No.1619(MB) of

1993 before the Allahabad High Court challenging the appointment of Sri

Venkat Ramani as Chairman of the Tribunal as well as challenging the

constitutional validity of the provisions of section 5(3) (c) and 5(4)(c) of the

Act as amended in 1992 whereby an IAS officer could be appointed as

Chairman and Vice-Chairman of the Tribunal. A Full Bench of the

Allahabad High Court by its judgment dated 26th May, 1995 struck down

the provisions of Section 5 (3) (c) and 5(4) (c) of the Act and quashed the

appointment of Sri Venkat Ramani an IAS officer as Chairman of the

Tribunal.

In 1994 the U.P. Public Services (Tribunal) (Amendment) Ordinance

(U.P. Ordinance No. 23 of 1994) was promulgated whereby sub-section 5-C

was inserted to section 5 of the Act divesting the Tribunal from passing any

interim order in respect of an adverse entry awarded to a public servant and

providing that all interim orders passed in respect of any such adverse entry

before the promulgation of the Ordinance would stand vacated. This

Ordinance in due course of time lapsed and thereafter in the year 1995 again

the same Ordinance was promulgated by U.P. Ordinance No. 8 of 1995

introducing the same amendments as were in U.P. Ordinance No. 23 of

1994. This Ordinance also lapsed in due course of time and thereafter on

25th August, 1995 the U.P. Public Services (Tribunal) (Amendment)

(Second) Ordinance, 1995 (U.P. Ordinance No.32 of 1995) was promulgated

by the Governor re-promulgating U.P. Ordinance No. 8 of 1995 which had

lapsed on expiry of the period specified in Article 213(2) of the Constitution.

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In February, 1997 a former Judge of the Allahabad High Court,

Justice K.L. Sharma (retd.) was appointed as the Chairman of the Tribunal.

Justice Sharma retired as Chairman of the Tribunal on 10th July, 1999.

On 10th of September, 1999 U.P.Public Services (Tribunal)

Amendment Ordinance, 1999 (U.P. Ordinance No. 17 of 1999) was

promulgated by the Governor of U.P. and published vide notification dated

9th September, 1999. By Ordinance No. 17 of 1999 Section 4(1) was

substituted in place of section 4 of the Act, further Section (5-C) was added

to Section 5. Writ Petition No. 4285(MB) of 1999 was filed by the U.P.

Public Services Tribunal Bar Association. The constitutional validity of

newly added Section 4(1), sub-section (5-C) and Section 5(5-B) was

challenged being ultra vires the Constitution. A further prayer was made

that a writ in the nature of mandamus be issued commanding the State

Government to modify the Act strictly in conformity with the Central

Administrative Tribunals Act, 1985 as per the law laid down by this Court in

S.P.Sampath Kumar's case(supra) and L.Chandra Kumar v. Union of India

[1997 (3) SCC 261]. Lastly it was prayed that the U.P. Public Services

Tribunal be given comprehensive powers to grant interim relief to make the

Tribunal more efficient and effective. Subsequently the impugned U.P.

Ordinance No. 17 of 1999 was replaced by U.P. Act No. 5 of 2000.

Thereafter an application for amendment of the writ petition challenging the

U.P. Act No. 5 of 2000 was moved which was allowed.

Sri Satish Chand Shukla, a practising advocate of Allahabad High

Court filed writ petition No. 5103 (MB) of 1999 challenging the

constitutional validity of the U.P. Public Services (Tribunal) Act, 1976 on

the ground that the same was beyond the legislative competence of the State

Legislature.

Shri Afzal Ahmad Siddiqui, a practising advocate filed writ petition

No. 748 (MB) of 1999 challenging the constitutional validity of Section

3(5), (7) and (8) of the Act with a prayer to annul the above sections in order

to remove the infirmities of the Act as pointed out by this Court in

S.P.Sampath Kumar's case (supra). The same advocate Shri Afzal Ahmad

Siddiqui filed another writ petition No. 1636 (MB) of 1999 challenging the

constitutional validity of the U.P. Ordinance No. 17 of 1999. After the

coming into force of the U.P. Act No. 5 of 2000 replacing the Ordinance

No.17 of 1999 Shri Afzal Ahmad Siddiqui filed writ petition No. 871 (MB)

of 2000 challenging the provisions of the U.P. Act No. 5 of 2000. Relief

claimed in writ petition No. 871 (MB) of 2000 was the same as had been

claimed in writ petition Nos. 748 (MB) of 1999 and 1636 (MB) of 1999 filed

by him in which he had challenged the provisions of the Ordinance.

The provisions of the Act which are under challenge and other

relevant provisions are reproduced below for reference:

"Section 3. Constitution of the Tribunal -(1) As

soon as may be after the commencement of the

Uttar Pradesh Public Services (Tribunals)

(Amendment) Act, 1992, the State Government

shall, by notification, establish a Tribunal to be

called the State Public Services Tribunal.

(2) The Trbinual shall consist of a Chairman, a

Vice Chairman(Judicial), A Vice-

Chairman(Administrative) and such number of

other Judicial and Administrative Members not

less than five in each category, as may be

determined by the State Government.

(3) A person shall not be qualified for

appointment as Chairman, unless he-

(a) has been a Judge of a High Court, or

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(b) has, for at least two years held the post of

Vice-Chairman, or

(c) has been a member of the Indian

Administrative Service who has held the

post of a Secretary to the Government of

India or any other post under the Central

or the State Government equivalent

thereto, and has adequate experience in

dispensation of justice.

(4) A person shall not be qualified for

appointment as Vice-Chairman(Judicial) unless

he,--

(a) has held the post of District Judge or any

other post equivalent thereto for at least

five years; or

(b) has, for at least two years, held the post

of a Judicial Member.

(4-A) A person shall not be qualified for

appointment as Vice-Chairman(Administrative)

unless he-

(a) has, for at least two years, held the post

of an Administrative Member; or

(b) has, for at least two years, held the post

of Additional Secretary to the

Government of India or any other post

under the Central or a State Government

carrying a scale of pay which is not less

than that of an Additional Secretary to

the Government of India and has, in the

opinion of the State Government,

adequate experience in dispensation of

Justice.

(5) A person shall not be qualified for

appointment as a Judicial Member, unless he has

held the post of District Judge, or any other post

equivalent thereto.

(6) A person shall not be qualified for

appointment as an Administrative Member, unless

he has held, or has been eligible to hold, the post

of Commissioner of a Division or Joint Secretary

to the Government of India and has in the opinion

of the State Government, adequate experience in

dispensation of justice.

(7) The Chairman, Vice-Chairman and every

other member shall be appointed by the State

Government after consultation with the Chief

Justice for which proposal will be initiated by the

State Government:

Provided that no person shall assume the Office of

Chairman, Vice-Chairman or other member, as the

case may be, unless he has resigned or retired

from, as the case may be, the Judgeship of the

High Court, or the Indian Administrative Service

or the Uttar Pradesh Higher Judicial Service or any

other service in which he was serving except the

service as Vice-Chairman or Member.

Section 4. Reference of claim to Tribunal-(1)

Subject to the other provisions of this Act, a person

who is or has been a public servant and is

aggrieved by an order pertaining to a service

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matter within the jurisdiction of the Tribunal, may

make a reference of claim to the Tribunal for the

redressal of his grievance.

Explanation - For the purpose of this sub-section

"order" means an order made by the State

Government or a local authority or any other

Corporation or company referred to in clause (b) of

Section 2 or by an officer, committee or other body

or agency of the State Government or such local

authority or Corporation or company:

Provided that no reference shall, subject to the

terms of any contract, be made in respect of a

claim arising out of the transfer of a public servant.

Section 5. Powers and procedure of the

Tribunal-(1)(a) The Tribunal shall not be bound

by the procedure laid down in the Code of Civil

Procedure, 1908 (Act 5 of 1908), or the rules of

evidence contained in the Indian Evidence Act,

1872 (Act 1 of 1872), but shall be guided by the

principles of natural justice, and subject to the

provisions of this section and of any rules made

under Section 7, the Tribunal shall have power to

regulate its own procedure (including the fixing of

places and times of its sittings and deciding

whether to sit in public or private):

Provided that where, in respect of the subject-

matter of a reference, a competent court has

already passed a decree or order or issued a writ or

direction, and such decree, order, writ or direction

has become final, the principle of res judicata

shall apply.

Section (5-B) Notwithstanding anything in the

foregoing sub-sections, the Tribunal shall have no

power to make an interim order (whether by way

of injunction or stay or in any other manner) in

respect of an order made or purporting to be made

by an employer for the suspension, dismissal,

removal, reduction in rank, termination,

compulsory retirement or reversion of a public

servant, and every interim order (whether by way

of injunction or stay or in any other manner), in

respect of such matter, which was made by a

Tribunal before the date of commencement of this

sub-section and which if in force on that day, shall

stand vacated.

Section (5-C) Notwithstanding anything in the

forgoing sub-sections, the Tribunal shall have no

power to make an interim order (whether by way

of injunction or stay or in any other manner) in

respect of an adverse entry made by an employer

against a public servant, and every interim order

(whether by way of injunction or stay or in any

other manner) in respect of an adverse entry,

which was made by a Tribunal before the

commencement of the Uttar Pradesh Public

Services (Tribunal) (Amendment) Act, 2000 and

which is in force on the date of such

commencement shall stand vacated."

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The validity of Section 4(1) inserted by Act NO.5 OF 2000 has been

challenged on the ground that a public servant could not approach the

Tribunal for 'in action' on the part of the authorities in respect of his legal

rights. If there was inaction on the part of the employer a public servant had

no remedy before the Tribunal and further the incumbent could not approach

the Civil Court for the reason that the jurisdiction of the Civil Court had

already been barred under Section 6 of the Act. That by the amendments

made in the impugned Act the powers of the Tribunal regarding judicial

review of administrative in-action deprives the litigants of their valuable

right. Divesting of power of judicial review too was ultra vires to the

Constitution of India. Judicial review being basic and essential feature of

the Constitution as held by this Court in Minerva Mills Ltd. vs. Union of

India reported in 1980 3 SCC 625. The object of the Act was not to leave

a public servant without any remedy. It was further averred that initially

there were provisions in the Act conferring powers upon the Tribunal to

grant interim relief. However, in due course of time on one pretext or the

other the jurisdiction of the Tribunal to grant interim reliefs has gradually

been taken away. Firstly embargo was put with respect to grant of interim

relief in certain matters. Subsequently the jurisdiction with respect to

transfer was taken away and lastly the power to make interim order in

respect of an adverse entry made by an employer against a public servant

has been taken away. By the impugned action of the respondents the whole

concept of the aims and objects of the Act have been diluted. If the Tribunal

is not conferred with full powers of the court and the authority to grant

effective relief to the public servants then it cannot be the real substitute of

the courts. If the Tribunal is not empowered to deal with every situation

with respect to the services of the public servants then it will loose its

identity. If the rule of law is to prevail the Tribunal has to play effective

role

in administration of justice and in the process the Tribunal should have all

powers as are vested in courts. Challenging the later part of sub-section (c)

to the effect that "every order made whether by way of injunction or stay or

any other manner in respect of an adverse entry which was made by the

Tribunal before the date this sub-section came into force and which was in

force on that date shall stand vacated", it was contended that the interim

orders granted by the Tribunal before the coming into force of section (5-C)

with retrospective effect could not be nullified by exercise of legislative

power and only the provisions which are the basis of the judicial orders

could be amended. That the complete ouster of jurisdiction in the matter of

grant of interim relief from the Tribunal in specified cases was ultra vires to

the Constitution as there was no judicial remedy open for the incumbent.

For example in the matter of suspension the Tribunal does not have the

power to grant any interim relief whereas the order may suffer from legal

infirmity, error of jurisdiction, mala fide and arbitrary exercise of power. In

view of these circumstances it was submitted that a public servant does not

have any judicial redress and continues under suspension during the period

of disciplinary proceedings. Similarly, it was submitted that right of

livelihood is a fundamental right of a government servant and by illegal

termination of his service the said right is infringed. The order of

termination on the face of it may be without jurisdiction and bad in law but

since the Tribunal did not have the power to grant interim relief such

incumbent would go without relief till the matter is finally heard and

decided. It takes considerably long period before the dispute is finally

decided and during this period the incumbent faces financial and mental

torture. Another submission made was that judgment and orders of the

Tribunal before the promulgation of the amended Act could be executed

after issuance of a certificate by the Tribunal to the principal civil court

under sub-section (7) of Section 5 of the Act. However, by the amendment

made in the impugned Act by U.P. Act No. 7 of 1992, sub-section (7) of

Section 5 was substituted by the following provisions:--

"(7) The order of the Tribunal finally disposing of

a reference shall be executed in the same manner

in which any final order of the State Government

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or other authority or officer or other person

competent to pass such order under the relevant

service rules as to redressal of grievances in any

appeal preferred or representation made by the

claimant in connection with any matter relating to

his employment to which the reference relates

would have been executed."

In view of the aforesaid substituted sub-section (7) of Section 5, the

orders and judgment of the Public Services Tribunal cannot be executed as a

decree of civil court and they are executable only as orders of the State

Government or other authority or officer or other person competent to pass

such orders under relevant service rules. It was also contended that powers

and functions of the Tribunal as they stand today under the Act are not in

consonance with the dictum of this Court in S.P. Sampath Kumar's

case(supra) and L.Chandra Kumar's case(supra).

The validity of Section 3 and especially an appointment of an

Administrative Member as Vice-Chairman of the Tribunal was challenged

on the ground that the same was contrary to the decision of this Court in

S.P. Sampath Kumar's case(supra). That an IAS officer could not be made

Vice-Chairman because in the absence of a Chairman or Vice-

Chairman(Judicial), a Vice-Chairman(Administration) could officiate as a

Chairman which would be contrary to the law laid down by this Court in

S.P. Sampath Kumar's case(supra).

In the written statements filed by the respondents a preliminary

objection was taken regarding the maintainability of the writ petition

challenging the vires of the Act by the Tribunal Bar Association which was

not an aggrieved party. On merits it was submitted that the amendments

brought out in the Act are in consonance with the directions issued by this

Court in S.P. Sampath Kumar's case(supra) and various other

judgments/orders rendered by the Allahabad High Court. The amendments

have been made to bring the U.P.Public Services (Tribunal) Act, 1976 at par

with the Administrative Tribunals Act, 1985. That the appointment of the

Chairman, Vice-Chairman (Judicial) as well as Vice-Chairman

(Administration) as well as Members has now to be made in consultation

with the Chief Justice of the High Court. That it has been done in pursuance

to the directions issued by the Allahabad High Court in Writ Petition No.

1619(MB) of 1993 Sanjai Kumar Srivastava vs. State of U.P. and others by

a Full Bench of the Allahabad High Court wherein the provisions of sub-

section 3( c ) and 4 ( c ) of Section 3 of the unamended Act were struck

down. These sub-sections (as they stood on the statute book) provided that

an IAS officer could be appointed as Chairman. Now the appointment of the

Chairman, the two Vice-Chairmen and Members has to be made by the State

Government after effective consultation with the Chief Justice of the High

Court on the basis of parameters indicated in Sanjai Kumar Srivastava's

case(supra) of the Allahabad High Court. That the State Legislature was

competent to enact the U.P. Public Services (Tribunal) Act as well as to

carry out the amendments in it in exercise of its legislative power.

In regard to challenge of sub-section (1) of Section 4 that only an

'order' passed by the authority could be challenged and not the 'in-action'

on the part of the government to pass an order, it was submitted that order

also would mean omission and inaction on the part of the authority

concerned for which a public servant could move the Tribunal. Advocate

General who had appeared before the High Court on behalf of the State very

fairly stated that the 'inaction' or 'omission' to Act could also be challenged

before the Tribunal. Since no explanation/clarification had come in the Act,

the High Court observed:

"Now it is certain that there is no remedy provided

in the Act to the Government employee to

approach the Services Tribunal as far as non-action

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of the State Government is concerned. Therefore

we are of the considered opinion that now the

remedy open to such incumbent is under Article

226 of the Constitution of India. It could be a

blessing in disguise to such employees as this

Court can even grant interim relief under Article

226 of the Constitution of India."

After detailed examination of the various submissions made before it,

the High Court upheld the constitutional validity of the Act as well as the

subsequent amendments made therein. In the concluding portions the High

Court culled out the conclusions as follows:

"(i) The composition of the Tribunal as

provided by the impugned Act is

constitutional and valid.

(ii) The State Legislature is competent to

enact, revalidate on re-enact any provision

of law.

(iii) The impugned Act (U.P.Act No.5 of

2000) does not suffer from any colourable

exercise of power.

(iv) The impugned Act is not inconsistent

with the rights guaranteed in Part III of the

Constitution.

(v) By issuance of the impugned Act

there has neither been violation of

fundamental rights nor violation of the

principles of basic structure of the

Constitution.

(vi) For non-action on the part of State

Government in relation to service matters of

the State employees the remedy open is only

under Article 226 of the Constitution of

India."

Shri Venugopal, learned senior advocate appearing in Civil Appeal

No. 3946 of 2001 did not raise the point regarding the legislative

competence of the State Legislature to enact the Act or the various

amendments brought therein. The only submission made by him is that the

amendments brought about in the Act are violative of fundamental rights

guaranteed to a public servant in the spirit of Social Justice and Welfare

State concepts which constitute the backbone of the Indian Constitution and

basic structure of the Constitution. For effective adjudication to a cause of

action complete jurisdiction to grant relief including the interim relief should

vest in one and the same forum. Single cause of action cannot be split and

divided for getting the interim and final relief in two different forums. A

public servant is required to approach the Tribunal to challenge the order of

its termination whereas for getting an interim relief against the order of

termination he is forced to approach the High Court. Right to get interim

relief is ancillary to the main relief and therefore should vest in one and the

same forum. Splitting of the cause of action for getting the relief interim

and the final works out to be iniquitous, onerous and oppressive. More often

and so, the High Court may not intervene for giving interim relief as it is

precluded from going into the dispute on merits at the first instance which

practically leaves the litigant from getting any immediate relief against an

order of transfer, termination, suspension, removal, dismissal etc. It also

results in additional expenses to the litigant thus defeating the purpose of the

Act itself. For the said reasons, according to him, sub-section 5B and 5C are

violative of Article 14 and 16 of the Constitution being arbitrary.

Shri Ranjit Kumar, learned senior advocate appearing in Civil Appeal

Nos. 3947 & 3948 of 2001 contended that object of the amendments was to

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bring the U.P. Public Services (Tribunal) Act, 1976 in tune with the

Administrative Tribunals Act, 1985 whereas it is to the contrary. That the

impugned judgment does not deal with the question regarding holding of the

post of a Vice-Chairman by a non judicial member. In other respects he

adopted the submissions made by Shri Venugopal.

Shri P.P.Rao, learned senior counsel appearing for the respondents

contraverted the submissions made by the respective counsels appearing for

the appellants in the two sets of appeals. It was contended by him that a

litigant is not left without any remedy. He has a right to approach the High

Court under Article 226 of the Constitution of India for redressal of his

grievance for interim relief. Power to grant interim relief from the Tribunal

has not been taken away completely. It has only been taken away partially.

Referring to the following judgments viz. (i) Delhi Cloth & General Mills

Co. Ltd. v. Shri Rameshwar Dyal & Another reported in 1961 (2) SCR 590,

(ii) U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan reported in

1993 Supp. (3) SCC 483; and (iii) State of Haryana v. Suman Dutta reported

in 2000 (10) SCC 311, it was contended that this Court has consistently been

of the view that final relief could not be given at the interim stage. In case

the order of suspension or termination or dismissal or removal is stayed at

the interim stage it amounts to allowing the petition itself at the interim

stage. This Court in State of Haryana's case(supra) has held that order of

termination could not be stayed by interim order. In case any public servant

is finally ordered to be reinstated after quashing the order of termination,

removal, dismissal, suspension etc., he can be compensated by the courts by

appropriately moulding the relief whereas in cases where the order of

removal, dismissal, termination etc. is stayed at the interim stage but later on

the petition is dismissed then the courts cannot mould the relief to undo the

mischief resulting from the interim order passed. That constitution of the

forum to get redressal of grievance, the procedure prescribed and the right to

file an appeal, revision etc. are all creations of statute and the State

Legislature was competent to enact such a law. The same was not violative

of Articles 14 & 16 of the Constitution. Under the circumstances it was

contended by him that taking away of the jurisdiction to grant interim relief

against an order of suspension, dismissal, removal, deduction of rank,

compulsory retirement or reversion of a public servant or to grant interim

relief against an order of transfer or against an adverse entry made in the

record is not violative of Article 14 & 16 of the Constitution.

The constitutional validity of an Act can be challenged only on two

grounds, viz., (i) lack of legislative competence; and (ii) violation of any of

the fundamental rights guaranteed in Part III of the Constitution or of any

other constitutional provisions. In State of Andhra Pradesh v. McDowell &

Co. & others, 1996 (3) SCC 709, this Court has opined that except the

above two grounds there is no third ground on the basis of which the law

made by the competent legislature can be invalidated and that the ground of

invalidation must necessarily fall within the four corners of the

aforementioned two grounds.

Power to enact a law is derived by the State Assembly from List II of

the Seventh Schedule of the Constitution. Entry 41 confers upon a State

Legislature the power to make State Public Services: State Public Services

Commission. Under this Entry, a State Legislature has the power to

constitute State Public Services and to regulate their service conditions,

emoluments and provide for disciplinary matter etc. The State Legislature

had enacted the U.P. Public Services Tribunals Act, 1976 in exercise of the

power vested in it by Entry 41 of List II of seventh schedule. Power to enact

would include the power to re-enact or validate any provision of law in the

State Legislature provided the same falls in a entry of List II of the VII

Schedule of the Constitution with the restriction that such enactment should

not nullify a judgment of the competent court of law. The legislative

competence of the State to enact the U.P.Public Services Tribunal has not

been questioned in these appeals. The challenge put forth is to various

amendments made is that the same are violative of Articles 14 and 16 of the

Constitution being arbitrary as they are onerous and work inequitably. In the

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present appeals legislative action of the State is under challenge. Judicial

system has an important role to play in our body politic and has a solemn

obligation to fulfil. In such circumstances it is imperative upon the courts

while examining the scope of legislative action to be conscious to start with

the presumption regarding the constitutional validity of the legislation. The

burden of proof is upon the shoulders of the incumbent who challenges it.

It is true that it is the duty of the Constitutional Courts under our

Constitution to declare a law enacted by the Parliament or the State

Legislature as unconstitutional when the Parliament or State Legislature had

assumed to enact a law which is void, either from want of constitutional

power to enact it or because the constitutional forms or conditions have not

been observed or where the law infringes the fundamental rights enshrined

and guaranteed in Part III of the Constitution.

In State of Bihar & Others v. Bihar Distillery Ltd. & Others reported

in 1997 (2) SCC 453, this Court indicated the approach which the Court

should adopt while examining the validity/constitutionality of a legislation.

It would be useful to remind ourselves of the principles laid down which

read:

"The approach of the court, while examining the

challenge to the constitutionality of an enactment,

is to start with the presumption of constitutionality.

The Court should to try to sustain its validity to the

extent possible. It should strike down the

enactment only when it is not possible to sustain it.

The court should not approach the enactment with

a view to pick holes or to search for defects of

drafting, much less inexactitude of language

employed. Indeed any such defects of drafting

should be ironed out as part of the attempt to

sustain the validity/constitutionality of the

enactment. After all, an Act made by the

legislature represents the will of the people and

that cannot be lightly interfered with. The

unconstitutionality must be plainly and clearly

established before an enactment is declared as

void. The same approach holds good while

ascertaining the intent and purpose of an

enactment or its scope and application (para 17)."

In the same paragraph the Court further observed as follows:

"The Court must recognize the fundamental nature

and importance of legislative process and accord

due regard and deference to it, just as the

legislature and the executive are expected to show

due regard and deference to the judiciary. It

cannot also be forgotten that our Constitution

recognizes and gives effect to the concept of

equality between the three wings of the State and

the concept of "checks and balances" inherent in

such scheme."

In the light of what has been stated above, we proceed to examine the

challenge to the various provisions of the Act.

The newly added sub-section (1) of Section 4 contemplates that

subject to the provisions of the Act a person who is and has been public

servant being aggrieved by an "order" pertaining to the service matters

within the jurisdiction of the Tribunal may make a reference to the Tribunal

for redressal of his grievances. Counsel appearing for the respondents fairly

stated before us as had been stated by the Advocate General appearing for

the State before the High Court that an "order" would also mean "omission"

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and "inaction" on the part of the authority concerned for which the public

servant can move the Tribunal. In the written statement filed by the

respondents in the High Court it was stated that an order would include an

"omission" or "inaction" on the part of the authority concerned and open to

challenge. Since no such amendment or clarification had come in the Act,

the High Court observed that an "omission" and "inaction" on the part of the

authority could be challenged by filing a writ petition under Article 226 of

the Constitution of India in the High Court. It was observed that there is no

remedy provided in the Act to the Government employee to approach the

Services Tribunal as far as non-action of the State Government is concerned.

The only remedy open is under Article 226 of the Constitution of India.

We agree with the view taken by the High Court that unless a

clarification is made by the Legislature in the Act clarifying that an order

would include an "omission" or "inaction" on the part of the authority, the

"inaction" on the part of the authority can be challenged in High Court by

filing the writ petition under Article 226 of the Constitution of India. It

cannot be said that the public servant is left without a remedy to challenge

any omission or inaction on the part of the authority. Inaction by itself is an

independent cause of action and the High Court can effectively deal with the

same.

Sub-sections (5-B) of Section 5 was introduced earlier in the principal

Act by Act No. 1 of 1977 after the same was assented to by the President of

India on 10th January, 1977. The same was challenged in the High Court in

the year 1978 by filing a Writ Petition No. 4255 of 1978. The validity of

Sub-section (5-B) was upheld which decision was not challenged in appeal.

The High Court relying upon the reasons recorded in the earlier writ petition

upheld the vires of sub-Section (5-B). Since a point has been raised that

earlier decision by the two Judges and the now the matter was being

considered by a larger Bench of five Judges, the full Bench should have

examined the point afresh and record an independent reason instead of

upholding the validity of Sub-Section (5-B) for the reasons recorded in the

earlier judgment by two Judges. We proceed to examine the validity of

Sub-sections (5-B) and(5-C) of Section 5 independently of what had been

held by the High Court in Writ Petition No. 4255 of 1978.

Before we make a reference to the various provisions of that Act

under challenge and examine their validity it would be useful to refer to

certain decisions of this Court wherein the grant of interim stay in cases of

dismissal, termination or suspension has been examined.

In Delhi Cloth and General Mills Co. Ltd. case (supra) this Court

examined the point as to whether a workman could be ordered to be

reinstated as an interim measure pending final adjudication by the Tribunal

under the Industrial Disputes Act. In the said case the employer dismissed

the workman for disobeying the orders of the managing authority. The

workman filed an application before the Industrial Tribunal under Section

33-A of the Industrial Disputes Act, 1947 contesting his dismissal on various

grounds, whereupon the Tribunal passed an order to the effect that as an

interim measure the workman be permitted to work and if the management

failed to take him back his full wages be paid from the date he reported for

duty. The employer challenged the order of the Tribunal by filing a writ

petition before the High Court which was dismissed. On appeal by a

certificate of the High Court it was held that the order of reinstatement could

not be given as an interim relief because that would be giving the employee

the very relief which he would get if order of dismissal is not found to be

justified. Order passed by the Tribunal was held to be manifestly erroneous

and set aside. It was observed:

"...We are of opinion that such an order

cannot be passed in law as an interim relief,

for that would amount to giving the

respondent at the outset the relief to which

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he would be entitled only if the employer

failed in the proceedings under s. 33-A. As

was pointed out in Hotel Imperial's case

(1960(1) SCR 476, ordinarily, interim relief

should not be the whole relief that the

workmen would get if they succeeded

finally. The order therefore of the Tribunal

in this case allowing reinstatement as an

interim relief or in lieu thereof payment of

full wages is manifestly erroneous and must

therefore be set aside... "

In U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. case (supra) it

was held by this Court that it was desirable that an order of suspension

passed by a competent authority should not be ordinarily interfered by an

interlocutory order pending the proceeding. It was observed:

"...Whether the employees should or should not

continue in their office during the period of inquiry

is a matter to be assessed by the authority

concerned and ordinarily, the Court should not

interfere with the orders of suspension unless they

are passed mala fide and without there being even

a prima facie evidence on record connecting the

employees with the misconduct in question..."

In Suman Dutta's case (supra) this Court set aside the order passed by

the High Court staying the order of termination as an interim measure in the

pending proceeding. It was observed:

"...We are clearly of the opinion that the High

Court erred in law in staying the order of

termination as an interim measure in the pending

writ petition. By such interim order if an

employee is allowed to continue in service and

then ultimately the writ petition is dismissed, then

it would tantamount to usurpation of public office

without any right to the same...."

Transfer is an incident of service and is made in administrative

exigencies. Normally it is not to be interfered with by the courts. This

Court consistently has been taken a view that orders of transfer should not be

interfered with except in rare cases where the transfer has been made in a

vindictive manner.

From the above quoted decisions, it is evident that this Court has

consistently been of the view that by way of interim order the order of

suspension, termination, dismissal and transfer etc. should not be stayed

during the pendency of the proceedings in the Court.

Sub-section (5-B) provides that the Tribunal shall have not the power

to make an interim order (whether by way of injunction or stay or in any

other manner) in respect of an order made or purporting to be made by an

employer for the suspension, dismissal, removal, reduction in rank,

termination, compulsory retirement or reversion of a public servant.

Dismissal, removal, termination and compulsory retirement puts an end to

the relationship of employer and employee. In case of suspension,,

reduction in rank or reversion the relationship of employer and employee

continues. Interference at the interim stage with an order of dismissal,

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removal, termination and compulsory retirement would be giving the final

relief to an employee at an interim stage which he would have got in case the

order of dismissal, removal, termination and compulsory retirement is found

not to be justified. If the order of dismissal, removal, termination and

compulsory retirement is set aside then an employee can be compensated by

moulding the relief appropriately in terms of arrears of salary, promotions

which may have become due or otherwise compensating him in some other

way. But in case the order of dismissal, removal, termination and

compulsory retirement is found to be justified then holding of the office

during the operation of the interim order would amount to usurpation of an

office which the employee was not entitled to hold. The action becomes

irreversible as the salary paid to the employee cannot be taken away as he

has worked during that period and the orders passed by him during the

period he holds office (because of the interim order) cannot also be put at

naught. The Legislature in its wisdom thought it proper not to confer the

power to grant interim relief on the Tribunal. State Legislature had the

legislative competence to constitute a service tribunal and it was for it to

define the parameters of the jurisdiction of the Tribunal. An employee is not

left without any remedy. Judicial review of an order regarding which the

jurisdiction of the Tribunal is barred would be available by approaching the

High Court by filing petition under Article 226 or 227 of the Constitution of

India. In an extreme and rare case where the order is passed mala fide or

without following the procedure under the law then the employee can

certainly approach the High Court under Article 226 of the Constitution for

the interim relief. The High Court in such an extreme and rare case may in

its wisdom stay the operation of the said order. In the case of suspension,

reduction in rank or reversion the relationship of employer and employee

remains. Normally, the suspension is made during a contemplated or a

pending enquiry. During the suspension period the employee is entitled for

the suspension allowance. If the suspension continues for indefinite period

or order of suspension is passed mala fide then it would be open to the

employee to challenge the same by approaching the High Court under

Article 226 of the Constitution of India. In case the order of reduction in

rank or reversion is set aside then the employee can be compensated by

adequately moulding the relief while giving the relief at the final stage.

Power of the Tribunal to grant interim relief has been taken away qua

certain matters not completely. The power has been taken away in matters

where the grant of said relief at the interim stage would result in giving the

relief which would normally be given while disposing of the case finally.

Simply because in a rare cases of microscopic number a case is made out for

stay of orders of suspension, transfer, reduction in rank, reversion or

termination, dismissal and compulsory retirement and the employee is liable

to approach the High Court for interim stay by itself is no ground to strike

down the law enacted by a Legislative which is within its competence to

enact.

Sub-section (5-C) of Section 5 contemplates that the Tribunal shall

have no power to make an interim order in respect of an adverse entry.

Adverse entry in the confidential report does not affect the conditions of

service of a public servant. Making of an entry in the confidential report is

an administrative act based on the subjective satisfaction of the superior

officer done on the objective criteria. It is an assessment of the performance

of the Government servant in one year. Assessment of performance in the

past year may become a criteria affecting the future prospectus of the

employee. Invariably an adverse entry results in the passing of an order by

the employer at a later stage and such an order may result in giving rise to a

cause of action. Sub-section (5-C) does not debar the public servant to

challenge the adverse entry made in the record. The adverse entry made in

the service record is open to challenge and a public servant can approach the

Tribunal to challenge the adverse entry made in the confidential report.

Tribunal if satisfied can set aside the adverse entry by way of a final order

but stay of the adverse entry at the interim stage may not be an appropriate

relief. The reasons given by us for upholding the validity of Sub-section

(5-B) would equally apply for upholding the validity of Sub-section (5-C) as

well.

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Sub-sections (5-B) and (5-C) are not arbitrary as contended by the

counsel for the appellant as this Court in earlier cases has taken the view

that orders of suspension, dismissal, removal, reduction in rank,

termination, compulsory retirement or reversion of a public servant

normally should not be interfered with at an interim stage as the employee

can be suitably compensated in case the order of suspension, dismissal,

removal, etc. is found not to be in order. The cases in which the operation

of orders of dismissal, removal, termination etc. is stayed by way of

interim order is later on upheld at the final stage then it results in wrong

usurpation of the office by the employee during the operation of the interim

order. This act becomes irreversible and the employer cannot be suitably

compensated by moulding the relief at the final stage. In an extreme and

rare case where the order is prima facie on the face of it is mala fide or bad

in law then it is open to a public servant to approach the High Court by

filing a writ petition under Article 226 of the Constitution of India for stay

of such an order. The employee is not left without any remedy. In an

extreme and rare case an employee is to approach the High Court for

interim relief resulting in some extra expense by itself is no reason to strike

down the Sub-section (5-B) being arbitrary and violative of Articles 14 and

16 of the Constitution of India.

The Principal Act was promulgated in 1976 for adjudication of the

disputes pertaining to employment matters of public servants of the State

Government and the employees of the Government Corporations and

Companies, local authorities etc. and the jurisdiction of the civil courts for

redressal of their grievances was taken away. It was set up with five

Tribunals and each Tribunal was independent and consisted of one Judicial

member and one administrative member. Out of them one member was the

Chairman. Constitution of the Tribunal was challenged in the High Court

successfully. Consequently, the Original Act was amended by U.P. Act No.

7 of 1992. Sub-sections 3 (1), (2) (3) and (6) were amended. The

Tribunal was constituted of one Chairman, a Vice Chairman at least five

Judicial Members and Five Administrative Members which were to

function at different Benches consisting of a Single Member or two

members for the disposal of such references of claims and other matters as

may be specified by the Chairman. Under the Act 7 of 1992 an

Administrative Member could be appointed as Chairman and in fact Shri

Venkatramani, IAS was appointed as the Chairman. This Act was

challenged by filing a writ petition in Sanjai Kumar Srivastava in the High

Court. It was contended that administrative member could not become a

Chairman and the appointment of Chairman, Vice Chairman and members

could not be made without consulting the Chief Justice of the State. This

objection was upheld and accordingly Section 3 (3)(c ) and Section 3 (4)(c)

of the Act were struck down. State was permitted to make suitable

amendments to bring about suitable amendments in the Act. It was also

directed that in future all appointments to the Tribunal be made only after

effective consultation with the Chief Justice of the State. Special Leave

Petition filed against the judgment was dismissed by this Court. The

Government thereafter deleted the offending clauses of Section 3(3)(c) and

Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was

promulgated which culminating in the passing of Act 5 of 2000. Section 3

(2) of the Principal Act was substituted for the words "a Vice-Chairman",

the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)".

From now onwards there are two Vice chairmen instead of one Chairman.

In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-

section (4-A) was inserted which prescribed the qualification for

appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was

the same as was earlier in Sub-section 4 (b) by deleting the words "or an

Administrative". The new Sub-section (4-A) (b) was an addition now

added in 1999. This is in pari materia of Section 6 (2)(b) of the

Administrative Tribunals Act, 1985 except the words "Additional

Secretary" instead of "Secretary" to the Government of India. Sub-Section

(4-A) (b) is the same as the original Section 3 (6) except adding the words

as under:

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" "has adequate experience", the words

"has, in the opinion of the State

Government, adequate experience" have

been added. "

Challenge to Sub-Section (4-A) (b) of Section 3 that the same is not in

conformity with the judgment in Sanjai Kumar Srivastava case is unfounded

because this sub-section is in pari materia with Section 6(2)(b) of the

Administrative Tribunals Act, 1985. Sub-Section (7) in Section 3 was also

substituted by adding the words "State Government after consultation with

the Chief Justice for which proposal will be initiated by the State

Government." In other words, the power of appointments with the State

Government has been retained but the same has to be exercised in

consultation with the Chief Justice of the High Court as directed by the High

Court in Sanjai Kumar Srivastava case.

Appointment of the Chairman, Vice-Chairmen (Judicial) and

(Administrative) and members has now to be made in consultation with the

Chief Justice of the High Court. Submission that the amendment carried out

in Section 3 regarding appointment of Chairman, Vice-Chairmen (Judicial)

as well as (Administrative) and members is not in conformity with the

corresponding provisions of Administrative Tribunals Act, 1985 has no

substance.

For the reasons stated above, we find that the State Legislature was

competent to enact the impugned provisions. Further that the provisions

enacted are not arbitrary and therefore not violative of Articles 14, 16 or any

other provisions of the Constitution. They are not against the basic structure

of the Constitution of India either. Accordingly, we do not find any merit in

these appeals and the same are dismissed with no order as to costs.