Back
1993 JLJ 589
V.S. Kokje and M.W. Deo, JJ.
Daulat Singh and others v. Union of India and others
M.P. No. 1102 of 1991; Decided on 29.7.1993
Individually there is no power or function given to the Vice-Chairman or member of a Tribunal. They are expected to discharge functions of the Tribunal under the Act and apart from that they are not expected to render any service. The appointment is clearly to a statutory post and not to a civil or executive post. After the appointment no control over the appointees is left with the Union of India whether directly or through President of India. There is a fixed tenure upto a certain age limit. [Para 15 The posts of Vice-Chairman and members of the Tribunal are not civil posts under the Union or the State and, therefore, Central Administrative Tribunal or the State Administrative Tribunal itself shall have no jurisdiction over the subject matter of an appointment to these posts. The objections on this count are, therefore, rejected. Consequently, bar of jurisdiction under section 28 of the Act will have no application in this case. AIR 1967 SC 884 and (1992) 4 SCC 432 followed. 1989 MPLJ 255 relied on. [Para 17
(2) Constitution of India -- Art. 226 -- Tribunal created under the Administrative Tribunals Act u does not enjoy status equal to High Court u there is no impropriety to consider challenge to the appointment of members of the Tribunal by the High Court.
There is no force in the argument that Tribunals set-up under the Act enjoy status equal to that of the High Court or that they are Courts of co-ordinate jurisdiction. There is, therefore, no question of any impropriety in the High Court entertaining and deciding a case challenging the appointments to Members/Vice-Chairman of the Tribunal. Claim to equality of status with the High Court is really without any basis in view of the plain fact that the Tribunals are creatures of an Act of Parliament and not of the Constitution. A Tribunal can simply be abolished by repeal of the Administrative Tribunals Act, 1985 or even perhaps, by revocation of the notification establishing the Tribunal. In contrast, the Institution of the High Court being a basic feature of the Constitution of India cannot be abolished even in exercise of Parliament‘s power to amend the Constitution. AIR 1952 Pat. 309, AIR 1987 SC 386, AIR 1989 SC 357, AIR 1989 SC 1185, JT 1990 (1) SC 5‘58 and AIR 1990 SC 2263 distinguished. AIR 1964 SC 1636, (1955) 2 SCR 31, AIR 1958 Mad. 63, AIR 1971 All. 44, AIR 1955 Mad.1(FB), (1958) 9 LLJ 300, AIR 1961 Cal. 545 and AIR 1963 Cal. 483 relied on. [Paras 18 to 26
(3) Constitution of India -- Art. 226 --locus standi -- writ of quo warranto -- civil servants whose service matters are to be tried by Tribunal -- challenging appointment of members and Vice-Chairman of Tribunal -- such writ is maintainable at their instance as they have direct interest.
The very fact that such a person is a Government servant whose right. to approach the High Court and the Civil Courts has been taken away under the Act should be sufficient to conclude that he shall have sufficient interest in ensuring that he is offered as a substitute forum of judicial review is a real substitute of the High Court. Moreover, when the petition is to enforce the dictum of the Supreme Court in respect of the standard of the Administrative Tribunal and the quality of its Members / Vice-Chairman, there should be no doubt that a Government servant has sufficient interest in the matter and he can maintain such a petition. AIR 1962 SC 1044, AIR 1966 SC 828, AIR 1945 Cal. 249, AIR 1970 Ker. 312 and AIR 1982 Delhi 83 distinguished. AIR 1984 Pat. 13, AIR 1952 Nag.330 and 1957 JLJ170 relied on. AIR 1982 SC 149 followed. [Paras 27 to 36
(4) Constitution of India -- Art. 226 -- writ of quo warranto -- issuance of -- public high office occupied through process of ‘pick and choose‘ -- mode of selection indicated by Supreme Court not observed -- writ shall be issued quashing such appointment.
A person who can show ostensible authority to hold a post or a person who holds the qualifications prescribed for the post may not be called a ‘usurper‘. But, when it is alleged that a person is occupying a post because of his selection through an unfair method of selection or through the process of ‘pick and choose‘ alone, when the appointment to the post must be made through a fair and unimpeachable process so that the best among available can be selected, there is no reason why such a person cannot be equated with a usurper of the office if not called a usurper. Moreover, when such appointments are made in the face of clearly contra-indicative observations of the Supreme Court as regards the process to be followed, whether the observations are binding or not, it cannot be said that the appointments are immune from challenge in proceedings‘ for issue of a writ of quo- warranto. AIR .1987 SC 386 relied on. AIR 1965 SC 491, AIR 1968 SC 1495, AIR 1975 Delhi 66, AIR 1953 Ass. 12, AIR 1987 Kelj 140, AIR 1961 Mad. 450, AIR 1982 Delhi 83, AIR 1982 Cal. 420, AIR 1970 Ker. 312 and AIR 1984 Pat. 13 discussed. [Paras 38 to 46
(5) Constitution of India --Art. 141 --law laid down by Supreme Court in AIR 1987 SC 386 and 1987 (Suppl.) SCC 734 -- are binding as precedent -Union and State are bound to follow the mode of selection prescribed therein.
The law has been clearly laid down and the reason for not granting the relief of declaration of the offending provisions of the Act to be ultrs-vires is also clear from the decision. The learned Attorney General of India gave an assurance to the Court on behalf of the Government of India that steps to incorporate necessary amendments in the Act to bring it in conformity with the views expressed by the Court would be taken and if relying on that assurance the Court did not declare the law to be ultra- vires it cannot be said that the conclusions and directions about the method of selection and the quality of appointees are wiped out. The conclusions are clearly drawn after close scrutiny and in-depth analysis of the provisions of the Act and the Constitution of India and are therefore the law laid down by the Supreme Court and are binding on all Courts in India. We have, therefore, no hesitation in holding that if after the decision in Sampat Kumar‘s case (supra) the selection of Members Nice-Chairman of Tribunal is not made by a High Power Selection Committee as per the decision of the Supreme Court in Sampat Kumar‘s case, they would be illegal, void and inoperative. AIR 1979 SC 451, AIR 1965 SC 1887, AIR 1986 SC 468, AIR 1968 SC 647, AIR 1983 SC 1155, AIR 1987 SC 1073, AIR 1982 SC 149, AIR 1976 SC 1766, AIR 1980 SC 286, AIR 1975 SC 1087, AIR 1988 SC 1353, AIR 1974SC818,AIR 1987SC413,AIR 1986SC 1440, AIR 1986SC 1455, AIR 1976 SC 1207 and AIR 1987 SC 179 discussed. [Paras 47 to 74
(6) Constitution of India -- Art. 226 -- writ under -- High Court has power to mould the relief in the interest of ustice.-- petition cannot be thrown out simply because ;10 particular relief or writ has been prayed for. AIR 1951 SC 41, AIR 1968 All. 246, AIR 1952 All 836, AIR 1953 Cal. 753 and AIR 1959 SC 725 relied on. [Para 108 .
Key Points: - Appointments to the posts of Members and Vice-Chairman of Administrative Tribunals must be made by a High Power Selection Committee headed by a sitting Judge of the High Court, as prescribed by the Supreme Court in Sampat Kumar’s case (!) (!) . - Non-compliance with the selection procedure laid down by the Supreme Court renders the appointments illegal, void, and inoperative (!) (!) . - The posts of Members and Vice-Chairman of Administrative Tribunals are not civil posts under the Union or the State, and therefore Central or State Administrative Tribunals have no jurisdiction over such appointments (!) (!) . - Bar of jurisdiction under section 28 of the Administrative Tribunals Act does not apply to petitions challenging such appointments, and the High Court has jurisdiction to entertain such petitions (!) (!) . - Government servants who have their right to approach the High Court taken away under the Act have sufficient locus standi to challenge the appointments of Members and Vice-Chairman of Administrative Tribunals (!) (!) . - The procedure actually adopted in the instant case was arbitrary and violated the prescribed selection process, making the appointments liable to be set aside (!) (!) (!) .
"The sheet-a anchor of petitioner's case is the decision of this Court in Sampat Kumar's case (AIR 1987 SC 386) (supra). We will presently show that the decision in Sampat Kumar's case (supra) does not support the petitioner's claim in this petition. It is significant to note that the age of superannuation of High Court Judges is 62 years while that of the Chairman and Vice- Chairman of the Tribunal is 65 years and of any other member is 62 years. No attempt has been made on behalf of the petitioner to justify the fixation of age of superannuation of the Chairman and the Vice-Chairman as 65 years if they are to be equated with the Chief Justice and sitting Judges of the High Court who retire at the age of 62 years only. In respect of the age of superannuation, the Members of the Tribunal are at par with the Chief Justice and the Judges of the High Court. Obviously, it is for this reason that an attempt was made to claim the equality with the Vice-Chairman of the Tribunal who gel" Rs. 8,000/- p.m. as pay like a High Court Judge but retires at the higher age of65 years. This disparity itself indicates that the Chairman, Vice-Chairman and Members of the Tribunal are not equated with the Chief Justice and Judges of the High Court for all purposes which, in substance, is the foundation of the petition."
25. It was further observed in Paragraph No.12 of the decision as under :-
"In the first place the assumption in the argument on behalf of the petitioner that the Tribunal is equated with the High Court is fallacious. It is not only the service matters required earlier to be adjudicated by the High Court but also those by the subordinate Courts which are now to be adjudicated by the Administrative Tribunals. That apart, Article 323-A itself clearly contemplates that the Administrative Tribunals constituted there under are distinct from the High Courts and it is the law enacted by the Parliament providing for establishment of an Administrative Tribunal which is to provide for all matters relating to the jurisdiction, powers, procedure and all supplemental, incidental and consequential matters relating to the Administrative Tribunal.
Paragraphs No. 17 and 18 of the decision clinch the issue and are, therefore, reproduced hereunder :-
"17. Considerable emphasis was laid on behalf of the petitioner on S.P. Sampat Kumar's case (AIR 1987 SC 386) (supra) to contend that the Tribunals constituted under Article 323-A have been equated with the High Courts. It is sufficient to say that in Sampat Kumar (supra), the question before us in the present petition did not arise for consideration and the observation therein cannot be torn out of context. On the contrary, certain observations in para 22 of that judgment indicate that the retiring age of 62 years or 65 years, for the Members, Chairman and Vice-Chairman was treated to be in accord with the pattern of the enactment on the basis that the Members and Chairman or Vice-Chairman, were in different categories. Equation of the Tribunal with the High Court therein was only as the forum for adjudication of disputes relating to service matters and not for all purposes such as the one arising for decision in the present case. We are unable to accept that the decision of this Court in S.P. Sampat Kumar (supra) supports the contention before us in this petition." "18. As a result of the aforesaid discussion, we have no hesitation in holding that the equality claimed by the Members of the Administrative Tribunal with t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
