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2001 Supreme(AP) 1487
Andhra Pradesh High Court
Judges : B.SUDERSHAN REDDY, BILAL NAZKI, GODA RAGHURAM, S.B.SINHA, V.V.S.RAO
G.Lakshmi Reddy - Appellant
Versus
Principal Secretary to Government, Irrigation and C.A.D., Dept.Hyderabad - Respondent
W.P.No.19291/93
Decided On : 11-23-01
Advocates Appeared :
Mr.S. Ramachandra Rao
Headnote:CONSTITUTION OF INDIA, Arts226,227,323-A & 141 - Service - Special Allowances of employees - Filing writ petition directly without exhausting remedies before Administrative Tribunal - Judicial review - Scope and extent - Stated - Basic structure of Constitution - Contention that theory of exhausting of alternative remedy is completely within discretion of Writ Court - Power under Art226, which is a basic structure, cannot be taken away even by constitutional amendment and also by way of judicial interpretation - Basic feature doctrine is employed only when question of constitutionality of a statute or provisions of Constitution come up for consideration - Basic structure doctrine has no relevance for interpretation of law declared by Supreme Court in terms of Art141 - Directions issued by Apex Court in
L CHANDRA KUMAR are well within ambit and province of judicial branch - It is no longer res integra that courts also lay down law - Apex Court has not denied or defiled basic structure doctrine to a litigant nor by reason thereof any erosion has been caused by judicial interpretation - High Court has a duty to uphold the Constitution, but to follow decision of Apex Court would be in consonance with said constitutional mandate - Submission that ratio in L CHANDRA KUMAR in restricting High Court’s constitutent power under Art226 of Constitution is per incuriam in view of ratio decided by larger Benches - Cannot be accepted - Writ petition - Dismissed
The legal document discusses the scope and extent of judicial review under Article 226 of the Constitution of India, emphasizing that judicial review is a fundamental feature of the Constitution that cannot be taken away or diluted, even through amendments or judicial interpretation, as it constitutes a part of the basic structure. It clarifies that the power of judicial review is a constituent power, essential for upholding the Constitution and protecting fundamental rights.
The document also highlights that the doctrine of exhausting alternative remedies before approaching the High Court via a writ petition is a self-imposed rule of discretion rather than a jurisdictional requirement. The courts retain the authority to entertain writ petitions directly, especially in cases involving fundamental rights, violations of natural justice, or where proceedings are without jurisdiction.
Furthermore, it underscores that the decisions of higher courts, particularly larger Benches, take precedence and that the hierarchical structure of courts ensures consistency and respect for judicial discipline. The interpretation of constitutional provisions and the scope of judicial review must align with the constitutional mandate, and courts are tasked with maintaining a delicate balance between state interests and citizen rights.
The document also affirms that tribunals created under specific constitutional provisions are not substitutes for the High Courts or Supreme Court but serve as adjuncts, with their decisions subject to judicial review by the High Courts. It emphasizes that the basic features of the Constitution, including judicial review, are inviolable and that courts have the authority to interpret and uphold these features within their constitutional limits.
In conclusion, the courts have the discretion to entertain writ petitions without requiring exhaustion of remedies, provided the constitutional principles and the integrity of judicial review are maintained. The hierarchy of courts and the doctrine of precedent ensure that judicial discipline and constitutional supremacy are preserved.
( 1 ) THIS Writ Petition is filed by the employees working in Srisailam Project area for a declaration that they are entitled to the special Allowances by way of Construction allowance, Bad Climate Allowance and special Compensatory Allowance without reference to the place of their residence or location of their offices and their work spot being notified as scheduled area of not ignoring the Order of the Andhra Pradesh administrative Tribunal in O. A. Nos. 132 of 1992 and batch dated 21-4-1992 and for a further declaration that G. O. Ms. No. 272 finance and Planning (FW. T. A.) department dated 7-7-1993 and the consequential Memo No. 35571/218/a3/ ta/93 dated 3-11-1993 issued by the government ordering recovery of such allowances as inoperative and invalid and for a direction to the respondents to pay the aforesaid allowances from June, 1985 onwards and to continue to pay them with all consequential arrears. REASONS FOR REFERENCE:
( 2 ) WHEN the Writ Petition came up for hearing before a Division Bench of this court consisting of S. R. Nayak, J. and s. Ananda Reddy, J. by the order under reference, the matter was referred for decision by a larger Bench as to whether the directives issued by the Apex Court in l. Chandra Kumar v. Union of India to the effect that a writ petition can be filed by a civil servant only upon exhausting the remedies before the Administrative tribunal and not directly regardless of the urgency or extraordinary situation that may exist in a given case, would impair or in any way dilute the efficacy of the power of judicial review vested in the High Court under Article 226 of the Constitution of india, which power is held to be the basic structure/feature of the Constitution.
( 3 ) G. O. MS-NO. 272, Finance and Planning (FW. TA) Department was issued on 7-7-1993. In compliance of the directions issued by the Tribunal and the High Court the Government issued orders in g. O. Ms. No. 468, I and CAD (Sr. VII (1)) department, dated 3-12-1990 implementing the directions issued by the Tribunal and the high Court for payment of allowances subject to the orders of the Tribunal and the high Court in the matters pending before them. The Tribunal finally passed order in o. A. Nos. 132 of 1992 and batch upholding the orders of the Government and rejecting the claim of the petitioners.
( 4 ) ON 26-10-1993 this Court in Sakinala haranath v. State of Andhra Pradesh held that the power of judicial review of the High court cannot be taken away. On 14-11-1994 the Judgment of the Full Bench was stayed by the Apex Court. On 18-3-1997, the Apex court in L. Chandra Kumar s case (supra) upheld the Full Bench judgment of this court in Sakinala Haranath s case. SUBMISSIONS OF LEARNED COUNSEL for THE PETITIONER:
( 5 ) MR. S. Ramachandra Rao, learned senior Counsel appearing on behalf of the petitioners would submit that L. Chandra kumar s case (supra) having not considered several decisions of the Larger benches of the Apex Court in Hari Vishnu v. Ahmad Ishaque and S. R. Bommai v. Union of india etc. , the same must be held to have been rendered per incuriam.
( 6 ) HE would further urge that in a. R. Antulay v. R. S. Nayak the Apex Court held that its earlier decision is per incuriam as it did not follow earlier larger Bench s view. In Sakinala Harnath s case , this Court held that the ratio laid down by the Supreme court in S. P. Sampath Kumar v. Union of india and in Sambamurty v. State of Andhra pradesh will not bind this Court, as they did not consider the view of the earlier Larger benches.
( 7 ) THE petitioners herein question the correctness or otherwise of the aforementioned directions of the apex Court contending that the same being contrary to the decisions of the earlier Larger Benches or co-ordinate Benches do not constitute binding precedent having been rendered per incuriam.
( 8 ) THE powers of judicial review of the high Court under Article 226 of the constitution having been held to be a basic feat
