(Chief Justice)

This Writ Petition challenges the constitutional validity of the Maharashtra State Public Services [Reservation for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes] Act, 2001 (Maharashtra Act No.VIII of 2004) and the Government Resolution No.BCC2001/ 1887/PR. KR.640/01/16B dated 25 May 2004.

2. When this Writ Petition was called out, Mr. Khambatta, learned Advocate General, appearing for the State of Maharashtra raised a preliminary objection about maintainability of these Writ Petitions. This was on the ground that as per the law laid down by a Bench of Seven Judges of the Supreme Court in L. Chandra Kumar vs Union of India and others, (1997) 3 SCC 261, only the Maharashtra Administrative Tribunal established under the Administrative Tribunals Act, 1985 enacted by the Parliament in exercise of the powers under Article 323A of the Constitution of India is to function as the Court of first instance in respect of the areas of law for which it has been constituted. Further the Court held that even where any challenge is made to the vires of legislation (excepting the legislation under which the Tribunal has been constituted), the litigants will not be able to directly approach the High Court overlooking the jurisdiction of the Tribunal.

3. The learned Advocate General has also relied on the decisions of the Supreme Court in Kendriya Vidyalaya Sangathan and another vs Subhas Sharma, (2002) 4 SCC 145and Rajeev Kumar and another vs Hemraj Singh Chauhan and others, (2010) 4 SCC 554.

4. On the other hand, Mr. Rajeev Dhawan and Mr. Aney, learned Senior Counsel for the petitioners, have vehemently opposed the above submissions and made the following submissions:

(a) This petition was filed in the year 2004 and at that time no such preliminary objection was raised on behalf of the State Government. In fact, when this Petition being Writ Petition No.8542 of 2004 was admitted by the Division Bench of this Court on 6 December 2004, the State Government was represented by the then Advocate General and Rule was issued. This was after hearing the learned Advocates for the parties and no such objection was taken at that time would be clear on perusal of the order, which reads as under :

“PC :

1. Heard advocates.

2. Rule. Respondents waive notice.

3. Rule on interim relief returnable on 17th January 2005. State Government is directed to file reply on or before 10th January 2005. Rejoinder, if any, to be filed within one week thereafter.”

(b) It is further submitted that after hearing the learned Counsel for the parties, the Division Bench of this Court by an order dated 22 February 2005 took the view that this was not an ordinary service matter and observed as under

“5. ….. We have considered the submission and what is required to be referred to the Tribunal is the dispute regarding service matter. In our prima facie opinion, what arises when implementation of impugned resolution takes place is not a service matter. It is therefore not correct in our opinion, again prima facie that the dispute is likely to or should go before the tribunal. There is yet another aspect which we would like to emphasis and that is what is the extent to which the contentions in this petition would be affecting the entire service class in the State of Maharashtra. Even if it is assumed that such jurisdiction may be with Tribunal to avoid multiplicity of litigation, to avoid further writ petition flowing out of the order of the Tribunal, relying on the judgment of Chandrakumar's case on which reliance is placed by Shri Anturkar for holding and canvassing that the Tribunal has jurisdiction, keeping this submission open for further argument and adjudication, we feel that we must address ourselves to grant of interim relief.”

(c) It is further submitted that after hearing the learned Counsel for the parties extensively, this Court by the above order dated 22