MP High Court Bar Association Vs Union of India UOs040775COM12223

MANU/SC/0775/2004
Equivalent Citation: AIR2005SC 4114, (2004)11SC C 766
IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5327, 5328 of 2002 and 6104 of 2004 (Arising out of S.L.P. (C) No.
22648 of 2002), Civil Appeal Nos. 6105-06 of 2004 (Arising out of S.L.P. (C) Nos.
23615-23616 of 2002), Civil Appeal Nos. 8292-8295 of 2002 and Writ Petition (C) Nos.
369 and 374 of 2003
Decided On: 17.09.2004
Appellants:M.P. High Court Bar Association
Vs.
Respondent:Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
R.C. Lahoti, C.J. and C.K. Thakker, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Prashant Bhushan, Narender Kumar Verma, Rohit
Kumar Singh and Sanjay Pathak, Advs. in C.A. No. 5327/02, Ajit Pudussery, Adv. (NP) in
C.A. No. 5328/2002, B. Datta, Additional Solicitor General and P. Parmeswaran, Adv. in
C.A. Nos. 8292-95/2002 and 6104/2002, Sanjeev Sachdeva, Mukesh Kr. Mishra and
Priya Puri, Advs. in C.A. Nos. 6105-06/2004, Shiv Sagar Tiwari, Pratima, Umesh Babu
Chaurasia, M.P. Singh and Mani Mittal, Advs. in W.P. (C) No. 369/2003, B.B. Dubey,
S.K. Bandyopadhyay, Amitava Poddar and Charan Lal Sahu, Advs. in W.P. (C) No.
370/200
For Respondents/Defendant: B. Datta, Additional Solicitor General, P. Parmeswaran, S.K.
Agnihotri, Anil Kumar Pandey, Amit Mishra, Prakash Shrivastava (NP), Sanjeev Sachdeva,
Mukesh Kr. Mishra, Priya Puri and Ajit Pudussery (NP), Advs.
Case Note:
Constitution - Vailidity of Statute - Madhya Pradesh Re-organisation Act, 2000
- Present special leave petition has been filed for challenging power of State
in making statute i.e. Act contrary to Constitution specially Section 74 of Act
as same was touches jurisdiction of Commissions, Authorities, Tribunals,
Universities, Boards and other statutory bodies - Held, it was within power of
State Government to continue or not to continue State Administrative
Tribunal and it was open to State Government to take such a decision, it
cannot be set aside merely on ground that such a decision was not advisable
in facts of case or that other decision could have been taken - While
exercising power of judicial review, this Court cannot substitute its own
decision for decision of Government - Court, no doubt, can quash and set
aside decision, if it is illegal, ultra vires, unreasonable or otherwise
objectionable - But that is not situation here - From record of case, it is amply
clear that relevant, germane, valid and proper considerations weighed with
State Government and keeping in view development of law, a policy decision
has been taken by State Government to abolish State Administrative Tribunal
- Parliament also empowered the State Government to take an appropriate
decision by enacting Section 74(1) of Act and in exercise of such power, State
Government had taken a decision - In view of above, special leave petition
05-09-2022 (Page 1 of 23) www.manupatra.com OP Jindal Global University

filed by union of India stand disposed of
JUDGMENT
C.K. Thakker, J.
1. Leave granted in Special Leave Petition (Civil) Nos. 22648 of 2002 and 23615-23616
of 2002.
2. In the present group of matters, common questions of fact and law have been raised
by the parties. It is, therefore, appropriate to decide all the matters by a common
judgment.
3 . To appreciate the controversy raised and questions agitated in these matters, few
relevant facts in the first matter, i.e., Civil Appeal No. 5327 of 2002 may be stated. The
appeal arises out of a judgment and order dated May 14, 2002 passed by the High Court
of Madhya Pradesh at Jabalpur in Writ Petition No. 3531 of 2001.
4 . The said petition was filed by the Madhya Pradesh High Court Bar Association and
another against the Union of India, State of Madhya Pradesh, State of Chhattisgarh and
the Chief Ministers of both the States. The case of the petitioners is that the petitioner
No. 1 is an Association of Advocates practising at the High Court of Madhya Pradesh,
Madhya Pradesh State Administrative Tribunal at Jabalpur as also Central Administrative
Tribunal (Jabalpur Bench). The Association was constituted to look after and protect the
interests of its members. One of the prime duties of the Association, asserted the
petitioners, is to ensure that legal system in the State is not attacked by an outside
agency. Its aim is also to advance the cause of justice by speedy trial. It has, therefore,
locus standi to file a petition. Petitioner No. 2 is the President of the Madhya Pradesh
Bar Association. He is a practising lawyer at the High Court as well as at two Tribunals.
He is a citizen of India.
5 . The petitioners have stated that Parliament amended the Constitution by the
Constitution (42nd Amendment) Act, 1976 by which several changes had been made. As
a consequence thereof, Article 323A came to be inserted in the Constitution with effect
from January 3, 1977. The said Article provided for constitution and establishment of
Administrative Tribunals. Those Tribunals were empowered to adjudicate and decide
disputes and complaints relating to recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the Union or of
any State or of any local or other authority within the territory of India or under the
control of the Government of India or of any corporation owned or controlled by the
Government. It also declared that the provisions of the said Article would have effect
notwithstanding anything in any other provision of the Constitution or in any other law
for the time being in force. The Article further provided for exclusion of jurisdiction of
all courts, "except the jurisdiction of the Supreme Court under Article 136", with respect
to disputes or complaints to be dealt with by such tribunals. Article 323A, however, is
not self executory inasmuch as it did not take away the jurisdiction of courts. It merely
enabled Parliament or appropriate legislature to make laws, to set up such tribunals and
to exclude jurisdiction of all courts except the Supreme Court.
6 . In exercise of the power conferred by Article 323A of the Constitution, Parliament
enacted an Act, called the Administrative Tribunals Act, 1985 (hereinafter referred to as
"the Act"). In the Statement of Objects and Reasons, it was stated that with a view to
give effect to the constitutional provision by providing for the establishment of an
Administrative Tribunal, the Act has been enacted. The Preamble of the Act also recites

that with a view to provide for the adjudication or trials by Administrative Tribunals of
disputes and complaints with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of the
Union or of any State or of any local or other authority, the Act has been enacted.
Whereas Section 4 provides for establishment of Administrative Tribunals, Section 5
deals with composition of Tribunals and Benches. Provisions relating to qualifications
for appointment as Chairman, Vice-Chairman and other Members as also their terms of
office, salaries and allowances, etc. have been made in Sections 6 to 13. Sections 14 to
18 deal with jurisdiction, power and authority of Tribunals. Sections 19 to 27 lay down
the procedure to be followed by such Tribunals. Section 28 excludes jurisdiction of all
courts except the Supreme Court.
7. Sub-section (2) of Section 4 of the Act enabled the Central Government, on receipt
of a request from the State Government to establish by a notification an Administrative
Tribunal for the State to exercise the jurisdiction, powers and authority conferred on the
Administrative Tribunal for the State. According to the petitioners, a request was made
by the State of Madhya Pradesh for the establishment of an Administrative Tribunal for
the State. The Central Government, in exercise of power under sub-section (2) of
Section 4 of the Act, therefore, issued a notification on June 29, 1988 for establishment
of a Tribunal known as the Madhya Pradesh Administrative Tribunal with effect from
August 2, 1988. The petitioner stated that in pursuance of the notification, the State
Administrative Tribunal had been established. It was having a Principal seat at Jabalpur
and four Benches at Gwalior, Indore, Bhopal and Raipur.
8 . The petitioners further stated that Parliament enacted an Act called the Madhya
Pradesh Re-organisation Act, 2000, (Act 28 of 2000) (hereinafter referred to as "the Act
of 2000"). The said Act has been enacted with a view "to provide for the re-organisation
of the existing State of Madhya Pradesh and for matters connected therewith". Part II
deals with re-organisation of the State of Madhya Pradesh into two States to be known
as the State of Madhya Pradesh and the State of Chhattisgarh and their territorial
divisions. Part III provides for representation in the Legislatures. Part IV relates to
administration of justice. Part VIII deals with services. It provides for All-India services,
services in Madhya Pradesh and Chhattisgarh and other services as also power of the
Central Government to issue directions. Section 74 of the Act touches jurisdiction of
Commissions, Authorities, Tribunals, Universities, Boards and other statutory bodies,
constitutional validity and v i r e s whereof has been challenged. It is, therefore,
appropriate to re-produce the said section in extenso.
"74. Jurisdiction of the Commissions, Authorities and Tribunals. (1)
Notwithstanding anything contained in any law for the time being in force,
every Commission, Authority, Tribunal, University, Board or any other body
constituted under a Central Act, State Act or Provincial Act and having
jurisdiction over the existing State of Madhya Pradesh shall on and from the
appointed day continue to function in the successor State of Madhya Pradesh
and also exercise jurisdiction as existed before the appointed day over the State
of Chhattisgarh for a maximum period of two years from the appointed day or
till such period as is decided by mutual agreement between the successor
States:
(i) to continue such body as a joint body for the successor State or
(ii) to abolish it, on the expiry of that period, for either of the
successor States; or

(iii) to constitute a separate Commission, Authority, Tribunal,
University, Board or any other body, as the case may be, for the State
of Chhattisgarh.
(2)No suit or other legal proceeding shall be instituted, in case such body is
abolished under clause (ii) of sub-section (1), by any employee of such body
against the termination of his appointment or for the enforcement of any
service conditions or for securing absorption in alternative public employment
against the Central Government or any of the successor States.
(3)Notwithstanding anything contained in any law for the time being in force or
in any judgment, decree or order of any court or Tribunal or contract or
agreement, any Chairman or member of any body abolished under clause (ii) of
sub-section (1) shall not be entitled to any compensation for the unexpired
period of his tenure.
(4) Notwithstanding anything contained in this section or any law for the time
being in force, the Central Government shall, in accordance with any mutual
agreement between the successor States or if there is no such agreement, after
consultation with the Government of the successor States, issue directions for
the resolution of any matter relating to any body referred to in sub-section (1)
and falling within the jurisdiction of any of the successor State within any
period referred to in sub-section (1).
9 . Section 85 declares that the provisions of the Act shall have overriding effect
"notwithstanding anything inconsistent therewith contained in any other law."
10. Bare reading of sub-section (1) of Section 74 makes it clear that it declares that all
Commissions, Authorities, Tribunals, Universities, Boards or other bodies constituted
under an Act of Parliament will continue to function in the State of Madhya Pradesh as
also in the State of Chhattisgarh. It, however, states that they will continue to function
for a maximum period of two years or "till such period as is decided by mutual
agreement between the successor States". Sub-sections (2) and (3) enumerate
circumstances pursuant to the abolition of such Tribunal. Sub-section (4) allows the
Central Government to issue directions.
11. The petitioners stated in the petition that in purported exercise of the powers under
sub-section (1) of Section 74 of the Act, a decision was taken by the State of Madhya
Pradesh as well as the State of Chhattisgarh to abolish State Administrative Tribunal. A
notification was issued on 25th July, 2001 by the State of Madhya Pradesh by which the
Madhya Pradesh State Administrative Tribunal had been abolished. By a circular of even
date issued by the State, it had been ordered that existing Chairman, Vice-Chairman and
Members of the Tribunal would cease to function with immediate effect irrespective of
unexpired period of their tenure, if any. By an order of even date, the State Government
terminated the services of all officers and employees other than those on deputation
with immediate effect as their services were "no longer required".
12. Being aggrieved by the said actions, the petitioner-Association approached the High
Court of Madhya Pradesh by invoking Articles 226 and 227 of the Constitution. A writ of
Mandamus was sought to declare Section 74 of the Act of 2000 unconstitutional and
ultra vires . In the alternative, a prayer was made to issue a writ of Mandamus to hold
that Section 74 would not apply to State Administrative Tribunal. A further prayer was
made to quash and set aside a notification, a circular and an order dated July 25, 2001

by which the State Administrative Tribunal was sought to be abolished and
consequential actions were taken.
13. Similar petitions were filed being W.P. No. 3529 of 2001 by A.K. Shrivastava, a
Member of the Administrative Tribunal, W.P. No. 3525 of 2001 by Sanjay Kumar Misra,
W.P. No. 3551 of 2001 by Kamal Joshi, W.P. No. 3554 of 2001 by Nemi Chand, all
employees of the State Administrative Tribunal, W.P. No. 3597 of 2001 and W.P. No.
4129 of 2001 by Madhya Pradesh Class III Government Employees Association.
14. Notices were issued to the State of Madhya Pradesh and other respondents. The
respondents appeared. An affidavit-in-reply was filed by the State of Madhya Pradesh
supporting the actions taken by the Government. It was asserted in the counter that
establishment of State Administrative Tribunal was not obligatory. The State
Government was not bound to constitute the Tribunal. It was, therefore, open to the
State Government to create, continue or abolish such Tribunal. Since the power
exclusively vested in the State Government to create, continue or abolish the Tribunal,
the Central Government had no voice in the matter. It was also stated that the Council
of Ministers of the State of Madhya Pradesh took a decision on November 21, 1985 for
the establishment of State Administrative Tribunal in the State of Madhya Pradesh. A
request was, therefore, made to the Central Government to constitute State
Administrative Tribunal and, accordingly, a notification was issued on June 29, 1988
and the Tribunal was constituted on August 2, 1988. Initially there was only a Principal
seat at Jabalpur. Later on, three Benches were established at Gwalior, Indore and
Bhopal. In 1997, even the fourth Bench was established at Raipur. The deponent stated
that over and above State of Madhya Pradesh, seven other States had established State
Administrative Tribunals. In the affidavit in reply, it was the case of the respondent-
State that despite very laudable object behind the establishment of Administrative
Tribunals, the performance of the Tribunals always remained "far from satisfactory and
the Tribunals failed to achieve the objects and goals for which they were established".
Reference was made to the report of the Arrears Committee (1989-90), known as
"Malimath Committee" which elaborately dealt with the functioning of Tribunals in the
country. Citing extensively the working of the Tribunals in the report of Malimath
Committee, it was asserted by the State that the State Administrative Tribunal failed to
fulfill the object for which it was established. Moreover, after the landmark decision of
the Supreme Court in L. Chandra Kumar v. Union of India MANU/SC/0261/1997 :
[1997]228ITR725(SC) , wherein it has been held by the Apex Court that the decisions
rendered by the Tribunals constituted under Articles 323A and 323B of the Constitution
of India would be subject to the writ/supervisory jurisdiction of the High Courts under
Article 226/227 of the Constitution within whose territorial jurisdiction the particular
Tribunal is functioning, there was virtually no need to continue such Tribunal. It was the
case of the respondent-State that in the light of declaration of law in L. Chandra
K u m a r , Administrative tribunals became "intermediate/additional adjudicatory
stratum", "leading to substantial increase in number of pending cases at the level of
High Court". Several matters decided by such Tribunals were challenged before High
Courts.
15. Other problems had also been highlighted by the respondent-State in the counter-
affidavit which necessitated the State to take a decision to abolish it. It included steep
increase in pendency of cases, construction of infrastructure, huge finance, maintenance
of recurring expenses, etc. The policy makers of the State had been continuously
monitoring the Tribunal's progress and performance as dispensation of justice was an
important priority of the State.

16. Parliament meanwhile passed the Act of 2000 on 18th September, 2000 providing
re-organisation of the erstwhile State of Madhya Pradesh into two States. Sub-section
(1) of Section 74 of the Act allowed both the States to continue functioning of the
Tribunal in the successor States. It, however, authorized them to take a decision to
abolish State Administrative Tribunal by mutual agreement. Thus, the power had been
conferred by Parliament on States of Madhya Pradesh and Chhattisgarh to take an
appropriate decision with regard to continuation or abolition of State Administrative
Tribunal. Such action, therefore, cannot be said to be illegal or contrary to law. The Act
of 2000 has been enacted by Parliament in exercise of powers under Articles 2 to 4 of
the Constitution of India. The Act, therefore, cannot be said to be unconstitutional or
ultra vires .
17. Respondent No. 1 Government of India also filed a counter-affidavit confirming that
the State of Madhya Pradesh was "free to recommend abolition of the Madhya Pradesh
Administrative Tribunal". It was stated that the Central Government would examine the
proposal of the State Government to abolish State Administrative Tribunal keeping in
view several factors, such as, alternative forum proposed by the State Government for
disposal of pending cases, compensation/rehabilitation of various functionaries of the
Tribunal, etc. On interpretation of Section 74 of the Act of 2000, the Central
Government stated that the State of Madhya Pradesh cannot of its own abolish State
Administrative Tribunal which was set up by the Central Government under Section 4(2)
of the Administrative Tribunals Act, 1985. According to the deponent, Section 74(1) of
the Act of 2000 was "only an enabling provision to facilitate the State Government to
take a decision about the continuance or otherwise of the Madhya Pradesh
Administrative Tribunal".
18. Further affidavit was also filed by the State of Madhya Pradesh wherein a reference
was made to an order of Council of Ministers dated 8th March, 2001 to abolish the
Madhya Pradesh Administrative Tribunal.
19. The Division Bench of the High Court of Madhya Pradesh, after hearing the parties,
held that the provisions of sub-section (1) of Section 74 of the Act of 2000 are intra
vires the Constitution and the State of Madhya Pradesh possessed power to abolish the
State Administrative Tribunal. No direction from the Central Government as envisaged
by sub-section (4) of Section 74 was required. According to the Court, Section 74(1)
conferred unfettered power on both successor States to take a decision in regard to the
abolition of Tribunal. It was thus in the exclusive discretion of the successor States and
no power or authority had been given to the Central Government in the said process.
The Court also indicated that Parliament appeared to have granted "an opportunity of
re-determination to both the successor States in view of substantial changed
circumstances necessitating review of all existing bodies keeping the experience of the
old State".
20. Regarding sub-sections (2) and (3) of Section 74 of the Act of 2000, however, after
considering Articles 309 and 310 of the Constitution of India and Sections 8, 9 and 10
of the Administrative Tribunals Act, 1985, the High Court held that the State could not
have ignored statutory and constitutional provisions. Sub-sections (2) and (3) of
Section 74 were thus ultra vires Articles 14, 16 and 21 of the Constitution. The High
Court, however, recorded the statement of the learned Advocate General of the State of
Madhya Pradesh that the State Government shall abide by the decision of the court with
regard to officers and employees of the Government.
21. The High Court also held that after taking a decision to abolish the Madhya Pradesh

State Administrative Tribunal, the State Government had to request the Central
Government for issuance of necessary notification for abolition of such Tribunal since it
has been established by the Central Government. According to the Court, however, the
Central Government had no option but to accept the request of the State Government.
In the light of the said decision, notification, circular and order dated 25th July, 2001
were quashed by the Court.
22. In the operative part of the judgment, the High Court issued following directions:-
(i) The State Government of Madhya Pradesh is empowered under Section
74(1) of the M.P. Re-organisation Act to abolish the State Administrative
Tribunal.
(ii) No directions from the Central Government as envisaged under sub-section
4 of Section 74 of the Act of 2000 are necessary to take the above decision to
abolish the Tribunal.
(iii) After taking decision to abolish the State Administrative Tribunal, the State
Government will have to make request to the Central Government to issue
notification for abolish of the State Administrative Tribunal.
(iv) The Central Government has no option but to accept the request received
from the state Government to abolish the State Administrative Tribunal and
accordingly issue a notification rescinding the earlier Notification establishing
the same.
(v) The sub-sections (2) and (3) of Section 74 of the M.P. Reorganisation Act
are declared ultra vires.
(vi) Since the notification (Annexure P-1) abolishing the State Administrative
Tribunal has been issued by the State Government itself, and not by the Central
Government, the notification (Annexure P-1) shall stand quashed.
(vii) Consequent to quashment of the Notification (Annexure P-1), the Circular
Annexure P-2) and the Order (Annexure P-3) also stand quashed.
(viii) Since the Madhya Pradesh Ordinance No. 3 of 2001 has lapsed, no order
is necessary to quash the same.
(ix) On abolition of the Tribunal, the Chairman, Vice Chairman and Members
shall be entitled to have compensation for unexpired term of their services from
the State Government. The details shall be worked out as per principles of
natural justice.
(x) On abolition of the Tribunal, the officers and employees thereof shall be
dealt with by the State Government as per their service conditions, including
their absorption in other Departments of the State Government.
2 3 . Being aggrieved by the order passed by the High Court, the Bar Association
instituted Special Leave Petition (Civil) No. 16108 of 2002 on July 11, 2002. It may be
stated that in other matters also, leave was sought by the petitioners to approach this
Court by filing Special Leave Petitions. In Special Leave Petition Nos.23615 and 23616
of 2002, the decision upholding constitutional validity of sub-section (1) of Section 74
of the Act of 2000 is challenged. We may also observe at this stage that Writ Petition

No. 374 of 2003 was filed by one Chhadami Lal and Writ Petition No. 369 of 2003 by
the Government Employees Class III Association. Union of India has also challenged the
decision of the High Court of Madhya Pradesh in Civil Appeal Nos.8292-95 of 2002
against certain directions of the High Court.
24. On August 26, 2002, leave was granted by this Court and hearing was ordered to
be expedited. Other matters which were subsequently filed were also ordered to be
heard along with Civil Appeal No. 5327 of 2002.
25. We have heard the learned counsel for all the parties.
26. Mr. Prashant Bhushan, learned counsel for the appellant contended that the action
of abolishing Madhya Pradesh State Administrative Tribunal is illegal, improper and
unlawful. According to him, the State Administrative Tribunal had been established
under the Administrative Tribunals Act, 1985 enacted by Parliament in exercise of power
under Article 323A of the Constitution. Such Tribunal, therefore, cannot be abolished by
a State. It was further submitted that Section 74 of the Act of 2000 by which Parliament
authorized the State Government to discontinue or abolish State Administrative Tribunal
is ultra vires the Constitution as no such power could have been delegated to the State.
It was also urged that the delegation of power to abolish State Administrative Tribunal
conferred on the State Government by Parliament under the Act of 2000 is in the nature
of "excessive delegation" and would be inconsistent with the provisions of the
Constitution as also contrary to several decisions rendered by this Court wherein it has
been observed that a competent legislature cannot delegate essential legislative function
or legislative policy. The High Court, in the circumstances, ought to have declared sub-
section (1) of Section 74 ultra vires.
27. Alternatively, it was submitted that even if this Court holds that Parliament was
competent to delegate its power to the State Government to discontinue the State
Administrative Tribunal, the impugned action of the State of Madhya Pradesh is illegal,
unlawful and mala fide . It was contended that the Tribunal has been abolished as,
according to the Government, in many matters it had passed orders against the
Government and granted interim relief in "transfer" matters. It was, therefore,
contended that what weighed with the State Government for abolishing the State
Administrative Tribunal was "judicial orders" passed by a competent Tribunal in exercise
of its undoubted jurisdiction thereby taking into account irrelevant consideration and
such a decision cannot be said to be a decision in the eye of law and the action
deserves to be set aside.
28. It was also urged that from the affidavit in reply filed on behalf of the State, it was
clear that it had also considered the criticism against working of Tribunals by Malimath
Committee. The report of the said Committee, however, has been commented upon by
this Court in L. Chandra Kumar and the criticism by the said Committee against the
working of the Tribunals was not approved. It was, therefore, submitted that if on the
basis of such criticism an action is taken, the same deserves to be quashed.
29. On merits, counsel contended that there was no need for abolishing the Tribunal.
No reasons for such abolition have been mentioned anywhere. No study was conducted
regarding functioning of the Tribunal. Statistics had shown that several cases had been
adjudicated and decided by the Tribunal and even after the decision of this Court in L.
Chandra Kumar, only few matters had reached the High Court and in the rest of the
matters, the decisions of the Tribunal had not been challenged. Thus, it was not right,
as stated by the State of Madhya Pradesh, that after the decision in L. Chandra Kumar,

the Tribunal remained as "additional tier" in the administration of justice. If that was
the basis and foundation on which the State had taken a decision, the same being
incorrect in fact and untenable at law, the order of abolishing the Tribunal deserves to
be set aside. In this connection, the counsel submitted that ambit and scope of
jurisdiction of Administrative Tribunals exercising power under the Act and of the High
Court under Articles 226 and 227 of the Constitution is totally different and distinct.
Even if the decision rendered by the Tribunal can be made subject matter of writ
jurisdiction/supervisory jurisdiction of a High Court under Article 226/227 of the
Constitution, the later exercises the power of "judicial review" and neither original nor
appellate power. The sweep and extent of two jurisdictions cannot be compared. The
learned counsel submitted that all these points have not been appreciated in their
proper perspective by the High Court and the decision of the High Court suffers from
non-application of mind and non-consideration of relevant aspects and needs
interference.
30. Other counsel appearing in the remaining matters supported Mr. Prashant Bhushan
and adopted the arguments put forward by him. They also submitted that an attempt
has been made by the State of Madhya Pradesh to interfere with judicial functioning of
the Tribunal which is violative of the "basic feature of the Constitution" which protects
and safeguards the independence of judiciary and such action deserves to be quashed
and set aside by this Court.
31. Mr. B. Datta, learned Additional Solicitor General for the Union of India has voiced
grievance against some of the conclusions reached by the High Court, particularly, that
the State of Madhya Pradesh has the authority to abolish the State Administrative
Tribunal and if a request is made by the State Government to the Central Government to
abolish the Tribunal, the latter has no option but to accept such request.
32. The learned counsel appearing for the State of Madhya Pradesh, on the other hand,
supported the order passed by the High Court. According to him, the State
Administrative Tribunal was constituted and established in the State only at the request
of the State of Madhya Pradesh. It was, therefore, clear that the State of Madhya
Pradesh wanted establishment of such Tribunal. Obviously, therefore, it was open to the
State if it felt that continuance of such Tribunal would not be in the larger interest. It
was also urged by the counsel that the State Government realised the need and
necessity of such Tribunal in the light of the provisions of Article 323A of the
Constitution as amended by the Constitution (42nd Amendment) Act, 1976 and after
1985 Act by Parliament. The counsel also submitted that the validity of 1985 Act came
up for consideration before this Court in S.P. Sampath Kumar v. Union of India
MANU/SC/0851/1987 : (1987)ILL J128SC and the constitutional validity of the Act had
been upheld. Virtually therefore, after the decision in S.P. Sampath Kumar, the
Administrative Tribunal was held "substitute" of the High Court. The State of Madhya
Pradesh, therefore, thought it proper to have such Tribunal. Accordingly, a request was
made and the Tribunal was established in 1988. But the position was substantially
altered after the decision in L. Chandra Kumar. In the said case, this Court held that the
power of "judicial review" conferred on all High Courts by the Constitution is a basic
feature of the Constitution. Such power cannot be taken away even by an amendment in
the Constitution. Clause (d) of Article 323A(2) and Clause (d) of Article 323B(3) of the
Constitution were, therefore, held ultra vires. The consequence of the decision in L.
Chandra Kumar was that after a decision by the State Administrative Tribunal, an
aggrieved party can approach the High Court within the territorial jurisdiction of which a
decision has been rendered by such Tribunal and such decision could be made subject
matter of judicial review before the High Court. Considering the above fact, the Council

of Ministers thought that it would not be appropriate to have such Tribunal in view of
the decision in L. Chandra Kumar. According to the counsel, such a decision could never
be termed as arbitrary, unreasonable or mala fide. Therefore, even if it is assumed that
all the matters which had been decided by an Administrative Tribunal may not be taken
to High Court, it cannot prevent the Council of Ministers to take an appropriate decision
as to continuance or otherwise of the State Administrative Tribunal. It was a policy
decision. The question is not of advisability or propriety of such decision, but legality
and constitutionality thereof. If the decision is otherwise legal, valid and in accordance
with law, it cannot be set aside. A court of law can interfere with such decision only if it
is unconstitutional or without authority of law. It was submitted that even Parliament
considered the fact that the Tribunal was established for adjudication of service disputes
in the State of Madhya Pradesh and at the request of the State, such Tribunal was
constituted. Hence, a provision was made in Section 74 of the Act enabling the State
Governments to continue or not to continue such Tribunal. Such a provision cannot be
termed arbitrary or unreasonable. There is no delegation of legislative power by
Parliament on the State. Since, the State Government had requested the Central
Government to constitute a Tribunal and a Tribunal had been constituted, Parliament
thought it appropriate to authorize the State Government to decide as to whether such
Tribunal should be continued or abolished. There is, thus, no "excessive delegation" in
such matters and the High Court was fully justified in repelling the contention of the
petitioners-appellants and in dismissing the petition.
33. Regarding mala fide exercise of power, it was submitted that there was no material
to show that the action was not bona fide or has been taken in colourable exercise of
power. There is nothing to substantiate such bald allegations. Though it was asserted
that the Tribunal has been abolished because it had passed certain "judicial orders", it
is merely ipse dixit and based on newspaper reports. From the record, it is clear that the
State considered the decision in L. Chandra Kumar and a satisfaction had been reached
by the Council of Ministers that there would be "one more tier" if Administrative
Tribunal would be continued. Accordingly, it was resolved to abolish the Tribunal. Such
a decision cannot be said malicious or mala fide. It was, therefore, submitted that the
appeal deserves to be dismissed.
34. So far as constitutional validity and vires of sub-section (1) of Section 74 of the Act
is concerned, in Mukesh Kumar Misra and Anr. v. Union of India and Ors.(W.P. No.
2398 of 2001 decided on 3rd July, 2001), the Division Bench of the High Court of
Madhya Pradesh upheld the validity thereof. Considering the provisions of the
Constitution including Article 323A and the relevant provisions of the Act, the Court held
that Parliament was competent to enact the Act of 2000 and it was open to Parliament to
confer power on the States of Madhya Pradesh and Chhattisgarh to take an appropriate
decision as to continuance or otherwise of any Commission, Authority, Tribunal,
University, Board or any other body constituted under the Central Act, State Act or
Provincial Act "having jurisdiction over the existing State of Madhya Pradesh". The Court
also held that discretion had been conferred on both the State Governments to abolish
the Tribunal if they wished to do so. The Court noted that Article 323A of the
Constitution was merely an enabling provision and it was not incumbent on State
Governments to constitute a Tribunal under the Act of 1985. In the opinion of the Court,
there was no inconsistency or conflict between Section 74(1) of the Act of 2000 and
Article 323A of the Constitution or Section 4 of the Administrative Tribunals Act, 1985.
It was also observed that sub-section (1) of Section 74 of the Act of 2000 opens with
non obstante clause ("Notwithstanding anything contained in any other law for the time
being in force") and allows the States of Madhya Pradesh and Chhattisgarh to continue

or to abolish Tribunals in the respective States. In this connection, it is also profitable
to refer to Section 85 which declares that the provisions of "this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law". Conjoint
reading of Article 323A of the Constitution, Section 4 of the Administrative Tribunals Act
1985 and Sections 74(1) and 85 of the Act of 2000, in our considered opinion, leaves
no room of doubt that Parliament authorized the State of Madhya Pradesh as well as the
new State of Chhattisgarh to take an appropriate decision with regard to State
Administrative Tribunals having jurisdiction over those States. Parliament empowered
both the successor States to take an appropriate decision to continue such Tribunals, to
abolish them or to constitute separate Tribunals. It cannot be said that by enacting such
a provision, Parliament had violated any mandate or the Act of 2000 is ultra vires Article
323A or any other part of the Constitution.
3 5 . It was then contended that once the power to constitute a Tribunal had been
exercised, Parliament was denuded of any power to make any legislation providing for
abolition of such Tribunal. The Division Bench negatived the contention and observed :
"It is difficult to swallow that Parliament after enacting law on a particular
subject shall have no power to amend, modify or repeal the same. The power of
the Parliament, in our opinion, does not exhaust by enactment of any law and
we are of the considered opinion that Parliament can make law in relation to a
subject for which it has the legislative competence, notwithstanding the fact
that law on a particular subject was enacted by the Parliament earlier. The
theory of exhaustion is unknown so far as the legislative powers are concerned.
What Parliament has done, Parliament can undo."
36. The above observations, in our view, are in consonance with law and lay down
correct proposition of law.
3 7 . We are also not impressed by the argument of the learned counsel for the
appellants that in the light of the ratio laid down by this Court in L. Chandra Kumar, an
Administrative Tribunal constituted under the 1985 Act cannot be abolished. What has
been held by this Court in L. Chandra Kumar was that the jurisdiction conferred on this
Court under Articles 32 and 136 of the Constitution as also of the High Courts under
Articles 226 and 227 of the Constitution is a part of the "basic structure" of our
Constitution. That jurisdiction cannot be ousted by making any provision in the
Constitution also. So far as Tribunals are concerned, they may perform a "supplemental
role" in the discharge of power conferred upon the Supreme Court as well as upon High
Courts. From that, however, it cannot be said that once a Tribunal is constituted,
created or established, there is no power either in the Central Government or State
Governments to abolish it. There is no constitutional or statutory prohibition against
exercise of such power. To us, it is clear that Parliament which allowed the State
Government to request the Central Government for establishment of an Administrative
Tribunal under the 1985 Act has authority, power and jurisdiction to enable the State
Government to take an appropriate decision to continue or not to continue such Tribunal
and a provision by Parliament authorizing the State Government to abolish such
Tribunal, by no stretch of imagination, can be held ultra vires the Constitution or
inconsistent with the law laid down by this Court in L. Chandra Kumar.
38. Under the Constitution of India, the power to legislate is with the Legislature. The
said power of making laws, therefore, cannot be delegated by the Legislature to the
Executive. In other words, a Legislature can neither create a parallel legislature nor
destroy its legislative power. The essential legislative function must be retained by the

Legislature itself. Such function consists of the determination of legislative policy and
its formulation as a binding rule of conduct. But it is also equally well-settled that once
the essential legislative function is performed by the Legislature and the policy has been
laid down, it is always open to the Legislature to delegate to the Executive authority
ancillary and subordinate powers necessary for carrying out the policy and purposes of
the Act as may be necessary to make the legislation complete, effective and useful.
39. Mr. Bhushan, learned counsel for the appellants invited our attention to the leading
case of In re: The Delhi Laws Act, 1912 MANU/SC/0010/1951 : [1951]2SCR747 . The
question which arose before this Court in that case was of "great public importance"
and was "first of its kind". The Central Government was authorized by Section 2 of Part
C States (Laws) Act, 1950 to extend to any Part C State with such modifications and
restrictions as it thinks fit, any enactment in force in Part A State. While doing so, the
Government was also authorized to repeal or amend any corresponding law (other than
a Central Act) which might be in force in Part C State. While dealing with the Reference
under Article 143 of the Constitution of India, this Court opined that keeping the
exigencies of the modern Government in view, Parliament and State Legislatures in
India needed to delegate legislative power, if they were to be able to face the
multitudinous problems facing the country, as it was neither practicable nor feasible to
expect each of the legislative bodies to enact complete and comprehensive legislation
on all subjects sought to be legislated upon. It was also observed that since the
legislatures in India derive their powers from written Constitution, they could not be
allowed the same freedom as the British Parliament has in the matter of delegation.
4 0 . Relying on some of the observations, the learned counsel submitted that the
provisions of sub-section (1) of Section 74 of the Act of 2000 must be held ultra vires.
The counsel referred to the following observations of Kania, C.J.:
"A fair and close reading and analysis of all these decisions of the Privy
Council, the judgments of the Supreme Courts of Canada and Australia without
stretching and straining the words and expressions used therein lead me to the
conclusion that while a legislature, as a part of its legislative functions, can
confer powers to make rules and regulations for carrying the enactment into
operation and effect, and while a legislature has power to lay down the policy
and principles providing the rule of conduct, and while it may further provide
that on certain date or facts being found and ascertained by an executive
authority, the operation of the Act can be extended to certain areas or may be
brought into force on such determination which is described as conditional
legislation the power to delegate legislative functions generally is not warranted
under the Constitution of India at any stage. In cases of emergency, like war
where a large latitude has to be necessarily left in the matter of enforcing
regulations to the executive, the scope of the power to make regulations is very
wide, but even in those case the suggestion that there was delegation of
"legislative functions" has been repudiated. Similarly, varying according to the
necessities of the case and the nature of the legislation, the doctrine of
conditional legislation or subsidiary legislation or ancillary legislation is equally
upheld under all the Constitutions. In my opinion, therefore, the contention
urged by the learned Attorney General that legislative power carries with it a
general power to delegate legislative functions, so that the legislature may not
define its policy at all and may lay down no rule of conduct but that whole
thing may be left either to the executive authority or administrative or other
body, is unsound and not supported by the authorities on which he relies. I do
not think that apart from the sovereign character of the British Parliament which

is established as a matter of convention and whose powers are also therefore
absolute and unlimited in any legislature of any other country such general
powers of delegation as claimed by the Attorney-General for a legislature have
been recognized or permitted." (emphasis supplied)
4 1 . Keeping in view the Parliamentary position in India in juxtaposition of British
system, His Lordship proceeded to state:
"Having regard to the position of the British Parliament, the question whether it
can validly delegate its legislative functions cannot be raised in the court of
law. Therefore from the fact that the British Parliament has delegated legislative
powers it does not follow that the power of delegation is recognized in law as
necessarily include din the power of legislation. Although in the Constitution of
India there is no express separation of powers, it is clear that a legislature is
created by the Constitution and detailed provisions are made for making that
legislature pass laws. Is it then too much to say that under the Constitution the
duty to make laws, the duty to exercise its own wisdom, judgment and
patriotism in making laws is primarily cast on the legislatures? Does it not
imply that unless it can be gathered from other provisions of the Constitution,
other bodies, executive or judicial, are not intended to discharge legislative
functions? I am unable to read the decisions to which our attention has been
drawn as laying down that once a legislature observes the procedure prescribed
for passing a bill into an Act, it becomes a valid law, unless it is outside the
Legislative Lists in the Seventh Schedule prescribing its respective powers. I do
not read articles 245 and 246 as covering the question of delegation of
legislative powers. In my opinion, on a true construction of articles 245 and
246 and the Lists in the Seventh Schedule, construed in the light of the judicial
decisions mentioned above, legislation delegating legislative powers on some
other bodies is not a law on any of the subjects or entries mentioned in the
Legislative Lists. It amounts to a law which states that instead of the legislature
passing laws on any subject covered by the entries, it confers on the body
mentioned in the legislation the power to lay down the policy of the law and
make a rule of conduct binding on the persons covered by the law."
42. Our attention has also been invited to similar observations of Fazl Ali, J., who said:
"There can be no doubt that if the legislature completely abdicates its functions
and sets up a parallel legislature transferring all its power to it, that would
undoubtedly be a real instance of delegation of its power. In other words, there
will be delegation in the strict sense if legislative power with all its attributes is
transferred to another authority. But the Privy Council have repeatedly pointed
out that when the legislature retains its dominant power intact and can
whenever it pleases destroy the agency it has created and set up another or
take the matter directly into its own hands, it has not parted with its own
legislative power. They have also pointed out that the act of the subordinate
authority does not possess the true legislative attribute, if the efficacy of the act
done by it is not derived from the subordinate authority but from the legislature
by which the subordinate authority was entrusted with the power to do the act.
In some of the cases to which reference has been made, the Privy Council have
referred to the nature and principles of legislation and pointed out the
conditional legislation simply amounts to entrusting a limited discretionary
authority to others, and that to seek the aid of subordinate agencies in carrying
out the object of the legislation is ancillary to legislation and properly lies

within the scope of the powers which every legislature must possess to function
effectively." (emphasis supplied)
43. Reference was also made to the following conclusions reached by His Lordship:
"The conclusions at which I have arrived so far may now be summed up:
(1) The legislature must normally discharge its primary legislative
function itself and not through others.
(2) Once it is established that it has sovereign powers within a certain
sphere, it must follow as a corollary that it is free to legislate within
that sphere in any way which appears to it to be the best way to give
effect to its intention and policy in making, a particular law, and that it
may utilize any outside agency to any extent it finds necessary for
doing things which it is unable to do itself or finds it inconvenience to
do. In other words it can do everything which is ancillary to and
necessary for the full and effective exercise of its power of legislation.
(3) It cannot abdicate its legislative functions, and therefore while
entrusting power to an outside agency it must see that such agency,
acts as a subordinate authority and does not become a parallel
legislature.
(4) The doctrine of separation of powers and the judicial interpretation
it has received in America ever since the American Constitution was
framed, enables the American courts to check undue and excessive
delegation but the courts of this country are not committed to that
doctrine and cannot apply it in the same way as it has been applied in
America. Therefore, there are only two main checks in this country on
the power of legislature to delegate, these being its good sense and the
principal that it should not cross the line beyond which delegation
amounts to "abdication and self-effacement."
44. On the basis of the above observations, it was submitted by Mr. Prashant Bhushan
that by the impugned legislation, Parliament has delegated essential legislative
functions in favour of the State Government. Such delegation is blanket and unchartered
and is of essential legislative function and legislative policy which could not have been
done. The High Court has committed an error of law in upholding such delegation which
was in substance and reality "excessive delegation". The order passed by the High Court
to that extent suffers from legal infirmity and deserves to be interfered with by holding
sub-section (1) of Section 74 of the Act of 2000 ultra vires.
45. The High Court, however, was not impressed by the argument. In the opinion of the
High Court, sub-section (1) of Section 74 of the Act of 2000 was not in the nature of
"delegated legislation" but was "conditional legislation" . Taking note of distinction
between delegated legislation and conditional legislation, the High Court held that the
power conferred by Parliament on the State Government to abolish Tribunal on
fulfillment of conditions specified in sub-section (1) of Section 74 of the Act of 2000
could not be objected.
46. We find no infirmity in the approach of the High Court. In Hamdard Dawakhana v.
Union of India, MANU/SC/0016/1959 :1960CriL J671 , speaking for the Constitution
Bench, Kapur, J., said;

"The distinction between conditional legislation and delegated legislation is that
in the former the delegate's power is that of determining when a legislative
declared rule of conduct shall become effective; Hampton & Co. v. U.S., 276 US
394 and the latter involves delegation of rule-making power which
constitutionally may be exercised by the administrative agent. This means that
the legislature having laid down the broad principles of its policy in the
legislation can then leave the details to be supplied by the administrative
authority. In other words by delegated legislation the delegate completes the
legislation by supplying details within the limits prescribed by the statute and in
the case of conditional legislation the power of delegation is exercised by the
legislature conditionally leaving to the discretion of an external authority the
time and manner of carrying its legislation into effect as also the determination
of the area to which it is to extend; ( R. v. Burah (1878) 3 AC 889 Russell v. R.
(1882) 7 AC 829 ; King Emperor v. Benoari Lal Sarma MANU/PR/0014/1944 ;
Sardar Inder Singh v. State of Rajasthan MANU/SC/0016/1957 :
[1957]1SCR605 . Thus when the delegate is given the power of making rules
and regulations in order to fill in the details to carry out and subserve the
purposes of the legislation the manner in which the requirements of the statute
are to be met and the rights therein created to be enjoyed it is an exercise of
delegated legislation. But when the legislation is complete in itself and the
legislature has itself made the law and the only function left to the delegate is to
apply the law to an area or to determine the time and manner of carrying it into
effect, it is conditional legislation." (emphasis supplied)
47. We may also refer in this connection to a decision of this Court in Sardar Inder
Singh v. State of Rajasthan, MANU/SC/0016/1957. There the Rajasthan Tenants'
Protection Ordinance was promulgated for two years. By Section 3, the Rajpramukh was
empowered to extend the life of the Ordinance by issuing a notification, if required. The
duration of the Ordinance was extended by issuing a notification which was challenged.
This Court, however, upheld the provision observing that it was a case of conditional
legislation.
48. The Court said;
"In the present case, the preamble to the Ordinance clearly recites the state of
facts which necessitated the enactment of the law in question, and s. 3 fixed
the duration of the Act as two years, on an understanding of the situation as it
then existed. At the same time, it conferred a power on the Rajpramukh to
extend the life of the Ordinance beyond that period, if the state of affairs then
should require it. When such extension is decided by the Rajpramukh and
notified, the law that will operate is the law which was enacted by the
legislative authority in respect of "place, person, laws, powers", and it is clearly
conditional and not delegated legislation as laid down in The Queen v. ,Burah
MANU/PR/0013/1878 and must, in consequence, be held to be valid."
49. Referring to Sardar Inder Singh and reiterating the principle laid down therein, this
Court in State of T.N. represented by Secretary, Housing Department, Madras v.K.
Sabanayagam and Anr., MANU/SC/0836/1998 :AIR1997SC4325 , speaking through
S.B. Majmudar, J., stated;
"It is thus obvious that in the case of conditional legislation, the legislation is
complete in itself but its operation is made to depend on fulfillment of certain
conditions and what is delegated to an outside authority, is the power to

determine according to its own judgment whether or not those conditions are
fulfilled. In case of delegated legislation proper, some portion of the legislative
power of the legislature is delegated to the outside authority in that, the
legislature, though competent to perform both the essential and ancillary
legislative functions, performs only the former and parts with the latter, i.e.,
the ancillary function of laying down details in favour of another for executing
the policy of the statute enacted. The distinction between the two exists in this
that whereas conditional legislation contains no element of delegation of
legislative power and is, therefore, not open to attack on the ground of
excessive delegation, delegated legislation does confer some legislative power
on some outside authority and is therefore open to attack on the ground of
excessive delegation."
50. In the case on hand also, the Act of 2000 as enacted by Parliament was full and
complete when it left legislative chamber. There was, therefore, no question of
delegation of legislative power by the legislature in favour of the executive. What was
left to the executive was merely to decide whether to continue the Administrative
Tribunal or to abolish it. The State Government, after considering the facts and
circumstances decided not to continue the Tribunal which was within the power of the
State Government and, hence, no objection can be raised against exercise of such
power. The contention of the appellants, therefore, cannot be upheld.
51. The matter can be looked at from another angle also. As already indicated in the
earlier part of the judgment, Article 323A is not self executory. The said provision did
not create or establish Administrative Tribunals. It was merely a permissive or an
enabling provision allowing Parliament to make law to establish Administrative Tribunal
if it wished to do so. Thus, there was no binding requirement on the part of the
Parliament (or State Legislature) to create such a forum as contemplated by Article
323A of the Constitution of India. It also cannot be overlooked that the Administrative
Tribunal in question was to be created for a particular State, i.e. State of Madhya
Pradesh. Neither under Article 323A of the Constitution nor under the Administrative
Tribunals Act, 1985, the Central Government could have created such Tribunal except in
accordance with the provisions of sub-section (2) of Section 4 of the said Act. As
already noted, the Central Government could exercise the jurisdiction, power and
authority conferred on the Administrative Tribunal for the State by or under the said Act
only "on receipt of a request in this behalf from any State Government". Essentially
therefore, it was on the request made by the State of Madhya Pradesh to the Central
Government that the power to create and establish Administrative Tribunal in the State
of Madhya Pradesh was exercised by the Central Government and the Tribunal was
established. We, therefore, see no objection in conferring the power on the State
Government to continue or to abolish such Tribunal. In our considered opinion, there is
no excessive delegation by Parliament to the State Government which would be hit
either by the provisions of the Constitution or the law laid down in In re: The Delhi
Laws Act, 1912 or other decisions of this Court.
5 2 . The learned counsel for the appellants contended that for abolishing State
Administrative Tribunal, the State of Madhya Pradesh took into account the report of the
Arrears Committee (Malimath Committee). Even in the affidavit in reply, reliance was
placed on the report of the said Committee. It was urged that this Court in L. Chandra
Kumar did not fully endorse the views expressed by the Malimath Committee. Quoting
certain recommendations on "functioning of Tribunals", the Malimath Committee
specifically recommended that the theory of alternative institutional mechanisms should
be abandoned. It also suggested that institutional changes should be carried out within

the High Courts dividing them into separate divisions for different branches of law as
has been done in England. According to the Committee, appointment of more Judges
would be a better way of remedying the problem of pendency in High Courts.
5 3 . This Court, while dealing with the constitutional validity of Article 323A of the
Constitution and ouster of jurisdiction of High Courts considered the report of the
Committee and observed that "its recommendation is not suited to our present context".
The Court, however, conceded that various Tribunals have not performed up to the
expectation was "self-evident and widely acknowledged truth". But, the Court proceeded
to state that "to draw an inference that their unsatisfactory performance points to their
being founded on a fundamentally unsound principle would not be correct". According
to the Court, "the reasons for which the Tribunals were constituted still persist; indeed
those reasons have become even more pronounced in our times".
54. The endeavor of the learned counsel is to impress upon the Court that the reasons
which weighed with the State Government in taking a decision to abolish the State
Administrative Tribunal were illegal, non-existent, irrelevant and ill-founded. Once this
Court has held that existence of such Tribunals is a "need for the day" and the
observations of the Arrears Committee could not be said to be well-founded, no action
of abolishing the State Administrative Tribunal could be taken by the State Government.
55. The contention of the learned counsel cannot be upheld. It is true that the State of
Madhya Pradesh had considered the report of the Arrears Committee and the functioning
of State Administrative Tribunal in the State of Madhya Pradesh, but it is equally true
that when a request was made by the State of Madhya Pradesh to the Central
Government for establishment of State Administrative Tribunal and the decision was
taken by the Central Government to create such Tribunal and a notification was issued
in 1988 and the Tribunal was established, the law governing the field was as laid down
i n S.P. Sampath Kumar. L. Chandra Kumarhad not seen the light of the day. It was
after the order of Reference in R.K. Jain v. Union of India MANU/SC/0291/1993 :
1993(65)ELT305(SC) that a Division Bench of this Court in L. Chandra Kumar v. Union
of India MANU/SC/0227/1995 :(1995)IILL J640SC referred the matter to a Bench of
seven Judges concluding that "the decision rendered by five-Judge Constitution Bench
in S.P. Sampath Kumar needs to be comprehensively reconsidered". It is also pertinent
to note that seven-Judge Bench overruled S.P. Sampath Kumar and unanimously held
that power, authority and jurisdiction of High Courts under Articles 226 and 227 cannot
be taken away even by an amendment in the Constitution. Clause (d) of Article 323A(2)
and Clause (d) of Article 323B(3) of the Constitution, therefore, were held ultra vires.
The resultant effect of L. Chandra Kumar was that after an order is passed by State
Administrative Tribunal, an aggrieved party could approach the High Court by invoking
writ/supervisory jurisdiction under Article 226/227 of the Constitution of India. So
much so that after the decision by the Administrative Tribunal, the aggrieved party was
required to approach the High Court before approaching this Court under Article 136 of
the Constitution.
56. In this connection, it may be necessary to bear in mind the following observations
in L. Chandra Kumar :--
"We may add here that under the existing system, direct appeals have been
provided from the decisions of all Tribunals to the Supreme Court under Article
136 of the Constitution. In view of our above-mentioned observations, this
situation will also stand modified. In the view that we have taken, no appeal
from the decision of a Tribunal will directly lie before the Supreme Court under

Article 136 of the Constitution; but instead, the aggrieved party will be entitled
to move the High Court under Articles 226/227 of the Constitution and from the
decision of the Division Bench of the High Court the aggrieved party could
move this Court under Article 136 of the Constitution."
5 7 . From the discussion hereinabove, it is clear that after the Constitution (42nd
Amendment) Act, 1976, the Administrative Tribunals Act, 1985 came to be enacted by
Parliament. The position prevailed at that time was the law laid down by the
Constitution Bench of this Court in S.P. Sampath Kumar. Invoking sub-section (2) of
Section 4 of the Administrative Tribunals Act, 1985, the State of Madhya Pradesh
requested the Central Government to constitute a Tribunal for civil servants in the State.
It was also on the basis of pronouncement of law in S.P. Sampath Kumar. The
notification was issued by the Central Government in 1988 and the State Administrative
Tribunal was established for the State of Madhya Pradesh. At that time, as per well-
settled legal position, decisions rendered by the Administrative Tribunals constituted
under the Act of 1985 were "final" subject to jurisdiction of this Court under Article 136
of the Constitution. No person aggrieved by a decision of State Administrative Tribunal
could approach the High Court of Madhya Pradesh in view of Clause (d) of Article
323A(2) of the Constitution read with Section 28 of the Act of 1985 and the declaration
of law in S.P. Sampath Kumar. If, in view of subsequent development of law in L.
Chandra Kumar, the State of Madhya Pradesh felt that continuation of State
Administrative Tribunal would be "one more tier" in the administration of justice
inasmuch as after a decision is rendered by the State Administrative Tribunal, an
aggrieved party could approach the High Court under Article 226/227 of the Constitution
of India and, hence, it felt that such tribunal should not be continued further, in our
opinion, it cannot be said that such a decision is arbitrary, irrational or unreasonable.
From the correspondence between the State of Madhya Pradesh and Central Government
as well as from the affidavit in reply, it is clear that the decision of this Court in L.
Chandra Kumar had been considered by the State of Madhya Pradesh in arriving at a
decision to abolish State Administrative Tribunal. Such a consideration, in our opinion,
was relevant, germane and valid. It, therefore cannot be said that the decision was
illegal, invalid or improper.
5 8 . It was also contended that there is interference with judicial functioning of the
Tribunal by the Executive and such interference would be violative of "basic structure of
the Constitution" and would result in death knell of Rule of Law. The counsel in this
connection, placed reliance on a decision of this Court in P. Sambamurthy & Others v.
State of Andhra Pradesh and Another . In that case, vires of Clause (5) of Article 371D
of the Constitution was challenged before this Court. Article 371D was inserted in the
Constitution by the Constitution (32 nd Amendment) Act, 1983.
59. The said clause read as under:-
"371D. Special provisions with respect to the State of Andhra Pradesh
(5) The order of Administrative Tribunal finally disposing of any case
shall become effective upon its confirmation by the State Government
or on the expiry of three months from the date on which the order is
made, whichever is earlier.
Provided that the State Government may, by special order made in
writing and for reasons to be specified therein, modify or annul any
order of the Administrative Tribunal before it becomes effective and in

such a case, the order of the Administrative Tribunal shall have effect
only in such modified form or be of no effect, as the case may be.
(emphasis supplied)
60. The reading of above clause makes it clear that it empowered the State Government
to decide whether it would confirm the order, to modify it or even to annul it. Taking
judicial notice of the fact that "almost invariably in every service dispute before the
Administrative Tribunal" the State Government was a party, this Court noted with
concern that the said party was granted ultimate authority to uphold or reject the
determination of Administrative Tribunal. This Court, in the circumstances, held the
provision unconstitutional and ultra vires.
61. Speaking for the Court, Bhagwati, C.J. observed:
"It would be open to the State Government, after it has lost before the
Administrative Tribunal, to set at naught the decision given by the
Administrative Tribunal against it. Such a provision is, to say the least,
shocking and is clearly subversive of the principles of justice. How can a party
to litigation be given the power to override the decision given by the Tribunal in
the litigation, without violating the basic concept of justice? It would make a
mockery of the entire adjudicative process. Not only is the power conferred on
the State Government to modify or annul the decision of the Administrative
Tribunal starling and wholly repugnant to our notion of justice but it is also a
power which can be abused misused." (emphasis supplied)
62. Putting the problem on a high pedestal, the Court added;
"This power of modifying or annulling an order of the Administrative Tribunal
conferred on the State Government under the proviso to clause (5) is violative
of the rule of law which is clearly a basic and essential feature of the
Constitution. It is a basic principle of the rule of law that the exercise of power
by the executive or any other authority must not only be conditioned by the
Constitution but must also be in accordance with law and the power of judicial
review is conferred by the Constitution with a view to ensuring that the law is
observed and there is compliance with the requirement of law on the part of the
executive and other authorities. It is through the power of judicial review
conferred on an independent institutional authority such as the High Court that
the rule of law is maintained and every organ of the State is kept within the
limits of the law. Now if the exercise of the power of judicial review can be set
at naught by the State Government by overriding the decision given against it,
it would sound the death-knell of the rule of law. The rule of law would cease to
have any meaning, because then it would be open to the State Government to
defy the law and yet to get away with it. The proviso to clause (5) of Article
371D is therefore clearly violative of the basic structure doctrine". (emphasis
supplied)
63. In our considered opinion, P. Sambamurthy has no application to the facts of the
case. In that case, the Executive (Government), a party to the proceeding was
authorized to interfere with a decision rendered by a quasi-judicial authority (Tribunal).
Such a course cannot be allowed in a democratic country and in a judicial system
governed by Rule of Law. It would totally destroy the independence of judiciary. It was
in the light of the said fact that the provision was held ultra vires and unconstitutional.
64. In the instant case, there is no interference with a "judicial order" passed by a

competent court or a Tribunal, but a "policy decision" has been taken by the State
Government to abolish State Administrative Tribunal allowing aggrieved litigants to
approach appropriate authority/court for ventilating their grievances. The ratio laid
down in P. Sambamurthy, therefore, does not apply and the contention cannot be
upheld.
6 5 . It was also contended that it is the Central Government which can issue a
notification under sub-section (4) of Section 74 of the Act of 2000. Hence, even if it is
assumed that the Tribunal can be abolished, the power has been vested in the Central
Government. It is the Central Government which is required to issue directions for
resolution of any matter relating to any body referred to in sub-section (1) of Section
74. Since no action has been taken by the Central Government, abolition of the Tribunal
is illegal and unlawful.
6 6 . On behalf of the State of Madhya Pradesh, however, it was submitted that the
interpretation put forward by the appellants was not correct and reliance on sub-section
(4) of Section 74 was misconceived and ill-founded. Sub-section (4) of Section 74 of
the Act of 2000 has limited application and could be invoked in case there is dispute
between the successor States, but not otherwise. "When both the States mutually
agreed for a decision, the Central Government has neither any discretion nor any role
has been given to the Central Government". The contention, therefore, has no force.
67. Considering the provisions of sub-section (4) of Section 74, the High Court stated;
"A fair reading of the above sub-section (4) of Section 74 of the Act of 2000
makes it clear that the above contention raised by the learned counsel
appearing for the petitioners is not based on proper and correct interpretation
of sub-section (4) of Section 74 of the Act of 2000. If both the successor States
decide by mutual agreement to abolish the Tribunal, as envisaged in sub-
section (1) of Section 74 of the Act of 2000, it is not obligatory for the Central
Government to issue directions as envisaged in above sub-section (4) of
Section 74. This sub-section does not contain any provision about the issuance
of notification by the Central Government for the abolition of the Tribunal. An
issuance of notification is a mandatory requirement as the Tribunal was
established by a notification issued by the Central Government. The sub-section
(4) of Section 74 of the Act of 2000 begins with a non-obstante clause which
indicates that the provisions of this sub-section are independent. The provisions
of sub-section (1) of Section 74 of the Act of 2000 are not subservient to the
provisions of sub-section (4) of Section 74 of the Act of 2000. If it had been
so, the words "subject to the provisions of sub-section (4)" would have been
used in sub-section (1) of Section 74 of the Act of 2000. Moreover, above sub-
section (4) provides that the Central Government shall issue directions for the
resolution of any matter relating to any body referred to in sub-section (1)
within any period referred to in sub-section (1) in accordance with any mutual
agreement between the successor States or if there is no such agreement
(emphasis supplied) after consultation with the Governments of successor
States. Obviously if on any matter relating to any body referred to in sub-
section (1), there is no mutual agreement then the directions could also be
issued by the Central Government after consultation with the Governments of
both the successor States. A fair reading of sub-section (1) of Section 74 of the
Act of 2000, however, makes it clear that the decision to abolish any of the
bodies referred to in that clause can be taken only by mutual agreement
between the successor States, therefore the issuance of "directions" by the

Central Government under sub-section (4) does not include the issuance of
"notification" for the abolition of any of the body referred to in sub-section (1).
The abolition of the Tribunal does not require any "direction" from the Central
Government under sub-section (4) of Section 74 of the Act of 2000. Such
direction can only be issued for the "resolution" of any matter and the decision
to abolish the Tribunal taken by the successor States by mutual agreement does
not amount to a "resolution" of any matter relating to the Tribunal. The
provisions of sub-section (4) is only in the nature of further supplemental
ancillary, or consequential provisions to further the aims, objects and stopgap
arrangement envisaged under sub-section (1) of Section 74 of the Act of 2000.
The word "direction for resolution" means direction regarding some defect or
deadlock persists requiring intervention of the Central Government in relation to
the functioning of that body within a period referred to in sub-section (1)."
68. We fully agree with the interpretation of the High Court. In our judgment, the High
Court was right in observing that Section 74(1) is not subservient to Section 74(4) of
the Act and once the provisions of sub-section (1) of Section 74 of the Act are attracted
and invoked, the provisions of sub-section (4) of Section 74 has no application. The
contention of the appellants, therefore, has no force and has to be rejected.
69. It was also argued that even if this Court comes to the conclusion that sub-section
(1) of Section 74 of the Act of 2000 is intra-vires and constitutional confirming the view
taken by the High Court, the impugned action of abolishing State Administrative
Tribunal is mala fide and malicious. For this, learned counsel referred to certain press
reports wherein it had been alleged that a decision had been taken at the Cabinet
Meeting of the State Government to abolish State Administrative Tribunal as the Chief
Minister and all the Ministers were of the view that State Administrative Tribunal had
granted stay in many transfer matters. The attempt on the part of the learned counsel
for the appellants was that the action has been taken by the State of Madhya Pradesh
because of adverse verdicts by the State Administrative Tribunal. In other words,
according to the appellants, action of abolishing State Administrative Tribunal was taken
because of "judicial orders" passed by the Tribunal which was not liked by the State
Government. Such an action, submitted the learned counsel, cannot be sustained in law.
70. Now, it may be stated that there is no concrete material on record to show that the
decision to abolish State Administrative Tribunal was taken because of orders passed by
the State Administrative Tribunal. Except bald assertions by the appellants and Press
cuttings, there is nothing to substantiate such allegations. On the contrary, sufficient
material is available on record to show what weighed with the respondent-State in
taking a decision to abolish the Tribunal. So far as allegations by the appellants are
concerned, they were emphatically denied by the State of Madhya Pradesh by filing a
counter-affidavit. Moreover, the Advocate General, appearing for the State of Madhya
Pradesh placed chronological events in detail before the High Court which were as
under;
(i) On 8.3.2001 Cabinet took decision to abolish the Tribunal. The decision was
communicated to Press as usual. To communicate the decision of the Cabinet to
the Press is no crime.
(ii) On 18.3.2001 a letter was sent to the Government of Chhattisgarh
informing about the decision taken by the Government of M.P. to abolish
Tribunal w.e.f. 30.4.2001.

(iii) On 27.3.2001 a reply from the Government of Chhattisgarh was received
seeking further information etc. as the Chhattisgarh Government had no power.
(iv) On 3.4.2001 second letter from the Government of Chhattisgarh was
received reminding that they were waiting for reply of the Government of
Madhya Pradesh.
(v) On 3.4.2001 i.e. the same day the reply was sent by the Government of
Madhya Pradesh to the Government of Chhattisgarh giving reasons for abolition
of the Tribunal and also suggesting to constitute own Tribunal, if so desired.
(vi) On 26.4.2001 both the State Government agreed to abolish the Tribunal for
both the States.
(vii) On 5.5.2001 a letter was written by the Government of Madhya Pradesh to
Central Government to abolish the Tribunal w.e.f. 1.6.2001.
(viii) On 17.7.2001 order was passed by the Tribunal which is alleged to be the
ground for abolition of the Tribunal.
(ix) On 23.7.2001 a letter was received by the Government of Madhya Pradesh
from the Government of Chhattisgarh again reiterating to abolish the Tribunal."
7 1 . Thus, from the correspondence between the State of Madhya Pradesh and the
Central Government and from various letters and communications and also from the
decision which has been taken by the Cabinet, it is clear that the State Government took
into account a vital consideration that after the decision of this Court in L. Chandra
Kumar, an aggrieved party could approach the High Court, the object for establishment
of the Tribunal was defeated. In our opinion, in the light of the facts before the Court, it
cannot be said that the decision to abolish State Administrative Tribunal taken by the
State of Madhya Pradesh can be quashed and set aside as mala fide .
7 2 . It was finally submitted that even on merits, the action of abolition of State
Administrative Tribunal was unwarranted and uncalled for. For that, the counsel invited
our attention to facts and figures and stated that it is not that all the cases decided by
the State Administrative Tribunal reached the High Court of Madhya Pradesh. In most of
the cases dealt with by the State Administrative Tribunal, the parties accepted the
orders of the Tribunal. It is only in few cases that the aggrieved party public servant or
government approached the High Court. It was also stated that no survey has been
made by the State. No reasons have been recorded why continuance of Tribunal was not
necessary. There was non-application of mind to this very important aspect and on that
ground also, the action deserves to be set aside at least with a limited direction to the
State to reconsider the matter and take an appropriate decision afresh keeping in mind
all relevant factors.
73. We are unable to uphold even this argument. In our judgment, if a decision is
illegal, unconstitutional or ultra vires, it has to be set aside irrespective of laudable
object behind it. But once we hold that it was within the power of the State Government
to continue or not to continue State Administrative Tribunal and it was open to the State
Government to take such a decision, it cannot be set aside merely on the ground that
such a decision was not advisable in the facts of the case or that other decision could
have been taken. While exercising power of judicial review, this Court cannot substitute
its own decision for the decision of the Government. The Court, no doubt, can quash
and set aside the decision, if it is illegal, ultra vires, unreasonable or otherwise

objectionable. But that is not the situation here. To repeat, from the record of the case,
it is amply clear that relevant, germane, valid and proper considerations weighed with
the State Government and keeping in view development of law and the decision of the
larger Bench of this Court in L. Chandra Kumar, a policy decision has been taken by the
State Government to abolish State Administrative Tribunal. Parliament also empowered
the State Government to take an appropriate decision by enacting sub-section (1) of
Section 74 of the Act of 2000 and in exercise of such power, the State Government had
taken a decision. The decision, in our opinion, cannot be regarded as illegal, unlawful
or otherwise objectionable. The contention, therefore, has no force and has to be
negatived.
74. For the foregoing reasons, Civil Appeal No. 5327 of 2000 deserves to be dismissed
and is, accordingly, dismissed.
75. In view of the above, Civil Appeal Nos. 8292-8295 of 2002 and Civil Appeal arising
out of Special Leave Petition No. 22648 of 2002 filed by the Union of India stand
disposed of and Civil Appeal No. 5328 of 2002, Civil Appeal arising out of Special Leave
Petition Nos. 23615-23616 of 2002, Writ Petition No. 369 of 2003, Writ Petition No. 374
of 2003 stand dismissed.
76. In the facts and circumstances of the case, however, there shall be no order as to
costs in all these matters.
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MANU/SC/0775/2004

Equivalent Citation: AIR2005SC 4114, (2004)11SC C 766

IN THE SUPREME COURT OF INDIA

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