JUDGMENT :

SAUGATA BHATTACHARYYA, J.

1) In the writ petition preliminary point of jurisdiction needs to be decided, i.e. when West Bengal Administrative Tribunal (for short, “said Tribunal”) becomes non-functional due to non-availability of Chairman and members litigants on issues concerning State Government service are required to approach Single Bench of the High Court or Division Bench without approaching Single Bench. Court finds it necessary to decide aforesaid preliminary point first before considering merit of writ petition since writ petition has been filed before this Court and same is pertaining to State Government service.

2) Section 28 of the Administrative Tribunals Act, 1985 (hereinafter referred to as “said Act of 1985”) provides exclusion of jurisdiction of High Court in the matters of recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post. As per section 28 post decision of Tribunal issue was required to be agitated before the Hon’ble Supreme Court. Sections 14 and 15 of said Act of 1985 while providing jurisdiction, powers and authority of Central Administrative Tribunal and State Administrative Tribunals saved the jurisdiction of the Hon’ble Supreme Court but no other courts including High Courts.

3) Article 323-A (2)(d) of the Constitution excluded the jurisdiction of all courts including High Courts except the jurisdiction of the Supreme Court under Article 136 with respect to the disputes or complaints referred to in clause (1) of said Article. Therefore, on promulgation of said Act of 1985 High Courts did not have jurisdiction to entertain applications/ appeals against the decision of the Tribunal and the issue was taken into consideration by the Hon’ble Supreme Court in L. Chandra Kumar Vs. Union of Indian & Others, reported in (1997) 3 SCC 261. Seven Judges Bench of the Hon’ble Supreme Court in paragraph 99 of L. Chandra Kumar (supra) finally enunciated law thereby declaring clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of said Act of 1985 and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B were, to the same extent, declared to be unconstitutional. It was also observed in paragraph 99 that jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. According to the observations of the Supreme Court in paragraph 99 of L. Chandra Kumar (supra), jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution cannot be ousted; other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Supreme Court also observed that the Tribunals created under the Articles 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules and all decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Supreme Court further observed that the Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they were constituted and it would not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.

4) In paragraph 91 of L. Chandra Kumar (supra) it was held that