JUDGMENT Mahitosh Majumdar, J : Both the appeals against the judgments of the Hon'ble Mr. Justice Umesh Chandra Banerjee and the Hon'ble Mr. Justice Bhagabati Prasad Banerjee involve common questions of Constitutional law. In both the appeals, the Union of India and others are the appellants and Sri Virendra Prasad, for short, ‘writ petitioner’ herein is the respondent. 2. F.M.A.T. No. 1720 of 1986 is an appeal against the judgment of Mr. Justice Umesh Chandra Banerjee delivered on 3rd June, 1986, whereby the learned Judge quashed both the purported order of suspension and the purported charge sheet as challenged in the writ petition. (Reported in 1986 (11) CHN 53) 3. F.M.A.T. No. 2057 of 1986 is another appeal against the judgment of the Hon'ble Mr. Justice Bhagabati Prasad Banerjee delivered on 8th July, 1986. By the said judgment, the learned Judge directed the appellants to promote the writ petitioner forthwith to the post of Central Provident Fund Commissioner, if necessary by creating a supernumerary post. (Reported in 1986 (11) CHN 118) 4. The appellants raised basic objection before the learned Courts below that in view of the Notification as published in the Gazette of India Extra-ordinary dated May 2, 1986, this Court ceased to have any jurisdiction over the subject matter forming the basis of the challenge in both the writ petitions The said Notification reads thus : Ministry of Personnel, Public Grievances & Pensions : (Department of Personnel & Training) New Delhi, the 2nd May, 1986 NOTIFICATION GSR 730(F)–In exercise of the powers conferred by sub-s (2) of s. 14 of the Administrative Tribunals Act, 1985 (13 of 1985), the Central Government hereby specifies the 12th day of May, 1986, as the date on and from which the provisions of sub s. (3) of s. 14 of the said Act shall apply to the corporations or societies and other authorities, mentioned in the schedule below, being the corporations or societies and other authorities owned or controlled by Government : S. Name of the Corporation/Society/ No. other authority 1 2 3 1. Central Board of Trustees constituted under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 Statutory Body 2. Employees’ State Insurance Corporation. Corporation 3. Central Board for Workers’ Education Registered Society 4. National Labour Institute Registered Society 5. National Council of Safety in Mies, Dhanbad Registered Society 5. Mr. Central Board of Trustees constituted under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 Statutory Body 2. Employees’ State Insurance Corporation. Corporation 3. Central Board for Workers’ Education Registered Society 4. National Labour Institute Registered Society 5. National Council of Safety in Mies, Dhanbad Registered Society 5. Mr. Bhola Nath Sen, Senior Advocate appearing in support of the Appellants initiates his submission by contending that the grievances contained in the unit petition can only be adjudicated for or dealt with by the Central Administrative Tribunal (For short the Tribunal hereafter) created under and by the Administrative Tribunal Act, 1985 (hereinafter called the said Act). 6. Mr. Sen submitted that in view of the subsequent events, as would appear from the instant appeals which constitute the ouster of the jurisdiction of this Court under Article 226 to entertain the writ application that the Court of Appeal will decide the preliminary objection as to whether in spite of promulgation of the said Act, this Court continues to have jurisdiction over the service matters and the proceedings being pending, stand transferred to the Tribunal for adjudication 7. Mr. Anindya Mitra, Senior Advocate, assisted by Mr. Lakshmi Kumar Gupta, the learned Advocate, joined the issue by opposing the contention of Mr. Sen that this High Court ceased to have any jurisdiction over the matter by reason of the promulgation of the said Act and the Notification issued on 2nd May, 1986. 8. Mr. Sen submitted that the preliminary objection be decided first and in the event this Court comes to the finding that in view of the said Act and the Notification dated 2nd May, 1986, this Court can still decide the service matters, then this case on merits, can be decided. 9. After hearing the learned Counsel for the parties, we, for the effective adjudication of the matters, decided to dispose of the preliminary objection first. 10. Before we embark upon the preliminary objection, It is necessary and appropriate for us to present the facts of both the appeals into short compass, for effective determination of the preliminary issues involved in the appeals. 11. The facts in F.M.A.T. 1720 of 1986 may be summarised as follows :– The writ petitioner in Civil Order no 7184 (W) of 1986 was initially appointed in the Employees’ Provident Fund Organisation as Provident Fund Inspector in the Year 1953. 11. The facts in F.M.A.T. 1720 of 1986 may be summarised as follows :– The writ petitioner in Civil Order no 7184 (W) of 1986 was initially appointed in the Employees’ Provident Fund Organisation as Provident Fund Inspector in the Year 1953. By virtue of his effective performance he was on the rung of promotion and ultimately he was promoted to the post of Regional Provident Fund Commissioner in the year 1969 and thereafter the writ petitioner was posted in the same capacity in West Bengal, Andaman & Nicobar Islands in the year 1982 and held the said post at the material time. The grievances of the writ petitioner are that his case for promotion was arbitrarily passed over ; and that he was denied promotion to the post of Central Provident Fund Commissioner. 12. It is alleged that the writ petitioner was fastened with the purported charge sheet dated 20th February, 1986 being no. C-18018/7/84 SS III issued by Sri A.K. Tandon, Jt. Secretary, Ministry of Labour. The challenge by the writ petitioner is against the filling up of the post of the Central Provident Fund Commissioner by the deputationist and non-consideration of the petitioner’s case in the post of Central Provident Fund Commissioner which was pending before this Hon’ble Court. The purported charge sheet was also followed by the purported order of suspension being no. C-18018/784 SS III dated 20th February, 1986. 13. In view of the pendency of the writ proceedings against the filling up of the post of Central Provident Fund Commissioner by the deputationist and the non-consideration of the case of the writ petitioner for the said post of Central Provident Fund Commissioner at the relevant time, the writ petitioner, after stating the facts of the entire case, sought to assail the action of the appellants in suspending the petitioner, took out an application for further interim order before the Hon’ble Mr. Justice Bhagabati Prasad Banerjee. Justice Bhagabati Prasad Banerjee. The writ petitioner in second writ iner alia, prayed for the following orders : “(a) to maintain status quo relating to the petitioner as prevalent on 23rd September, 1985 ; (b) to restrain the respondents from challenging the state of affairs relating to the employment of work as prevalent as on 23rd September, 1985 and from giving any effect or further effect to the order of suspension, if any, of your petitioner and posting and working as the Regional Provident Fund Commissioner, Grade I, Office master of West Bengal and Andaman and Nicobar Islands ; (c) to pass such further or other orders or order as to this Hon'ble Court may seem fit and proper. 14. The said application came up for hearing before His Lordship the Hon'ble Mr. Justice Bhagabati Prasad Banerjee on February 25, 1986, when His Lordship was pleased to pass the following orders : “February 25, 1986 Re: Application for further or other interim order filed on 242.86. (Assigned) Mr. Anindya Mitra, Mr. Asit Kumar Banerjee, Mr. K.N. Srivastava, Mr. Lakshmi Gupta.... for the petitioner Mr. Saktinath Mukherjee, Mrs. Uma Sanyal.... for the respondents On the prayer of the learned Advocate appearing for the respondents the respondents are given ten days time to file affidavit-in-opposition to this application and affidavit-in-reply, if any, to be filed by the petitioner within three days thereafter. Let this matter be listed a fortnight hence on the top of the list irrespective of any part heard matter. In the meantime the respondents are restrained from appointing any person in the post of Regional Provident Fund Commissioner. If any appointment has already been made inn place and stead of the petitioner the same will be purely on ad hoc basis and subject to further order of this Court. Mr. Mukherjee appearing for the respondents hands over an envelope containing the charge sheet to the learned Advocate for the petitioner, which was intended to be served to the petitioner earlier. There will be an order of stay of operation of the suspension order but It is made clear that the petitioner will not be permitted to attend office until further orders. Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the Learned Advocate concerned. Sd/. B.P. Banerje (Judge),, 15. There will be an order of stay of operation of the suspension order but It is made clear that the petitioner will not be permitted to attend office until further orders. Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the Learned Advocate concerned. Sd/. B.P. Banerje (Judge),, 15. On 24th February, 1986, the writ petitioner filed another application for amendment of the petition regarding his promotion in the Court of Mr. Justice Bhagabati Prasad Banerjee. It may be mentioned here that on 9th April 1986, the writ petitioner filed an application for staying the suspension order which was disposed of by His Lordship the Hon'ble Mr. Justice Bhagabati Prasad Banerjee directing the writ petitioner to move the appropriate Court and further vacating the inrerim order of stay passed on 25th February 1986. 16. Thereafter the writ petitioner challenging the purported order of suspension and the purported charge sheet filed a writ petition in the Court of Mr. Justice Umesh Chandra Banerjee for setting aside the charge sheet and the order of suspension Articles of charge dated 20th February 1986 read thus : "That Shri V. Prasad functioned as Regional Provident Fund Commissioner at Bombay during the period 1978-79. That one of the duties of the said Shri V. Prasad was to levy damages to the various firms/companies etc for having defaulted in payment of Provident Fund Contribution. That the said Shri V.Prasad was authorised to recover damages not exceeding the amount of arrears. If the party failed to pay the damages so levied, section for initiation of recovery proceedings could be taken under the law. That the said Shri V. Prasad ordered their education of damages ordered by him earlier on review being not based on proper and admissible grounds and prima facie was intended to confer the undue benefit on the defeating parties listed below and corresponding loss to the Employees’ Provident Fund Organisation. Sl No. Name of the Previous levy Revised levy employer and date and date 1. Mukesh Textiles Rs.4,49,593.00 Rs.1,08,784.00 Colaba, Bombay 20.7.1978 2.7.1979 2. Jolly Bros P.M. Rs.53,381.85 Rs.28,182.10 Road, Bombay 17.5.1978 17.8.1979 3. Pentagon Enggg Rs.72,061.80 Rs.36,504.40 Madhu Mukund 26.7.1978 18.4.1979 4. Bombay Furance, Rs.39,406.50 Rs.13,135.50 Stadium House 19.8.1978 22.10.1979 Nariman Road, Bombay-20 17. Sl No. Name of the Previous levy Revised levy employer and date and date 1. Mukesh Textiles Rs.4,49,593.00 Rs.1,08,784.00 Colaba, Bombay 20.7.1978 2.7.1979 2. Jolly Bros P.M. Rs.53,381.85 Rs.28,182.10 Road, Bombay 17.5.1978 17.8.1979 3. Pentagon Enggg Rs.72,061.80 Rs.36,504.40 Madhu Mukund 26.7.1978 18.4.1979 4. Bombay Furance, Rs.39,406.50 Rs.13,135.50 Stadium House 19.8.1978 22.10.1979 Nariman Road, Bombay-20 17. Against the chargesheet, it inter alia was contended, on behalf of the writ petitioner (a) The charge sheet disclosed complete non-application of mind to the facts and circumstances, documents and materials on record and the relevant statutory provisions; (b) The requirements of the petitioner to justify the action taken on order passed in exercise of his judicial authority in a disciplinary proceeding, would have the effect of trenching upon a judicial function by the administrative authority. Such actions taken or orders passed by the writ petitioner could not at all form the subject matter of an administrative scrutiny, far less a disciplinary action, and it was indicated that ; (c) The charge sheet has been issued by the Joint Secretary, Government of India, Ministry of Labour, by purporting to make a re-appraisal of the evidence on record in the review proceedings and the order passed thereon. Such action of the Joint Secretary was in the nature of an act of the appellate authority sitting over the judgment of the writ petitioner although there is no provision contained in the Employees Provident Fund and Miscellaneous Provisions Act, 1952 conferred on the appellants in that behalf. The action of the appellants was claimed to be clearly without and/or in excess of jurisdiction and authority and such action is destructive of all canons of administrative propriety and the dignity of the role of dispensation of justice administered by a quasi-judicial authority 18. It was contended that the charge sheet is baseless and motivated and the appellants have initiated the disciplinary proceeding by taking recourse to digging up old materials. 19. The validity and propriety of the orders of review were referred to the law officer of the Employees’ Provident Fund Organisation and the Legal Adviser to the Ministry of Labour, Government of India, for their opinion who submitted their opinion in 1983 and 1985 respectively to the Labour Ministry and both the Law Officers gave their opinions against the initiation of disciplinary proceedings against the writ petitioner. 20. 20. The acts of review and the reduction of the amount of damages by themselves do not indicate any motive, not to speak of any misconduct warranting disciplinary action. Even if the facts forming the basis of the charge sheet are taken to be true, the same do not constitute misconduct and the initiation of disciplinary proceeding is without any jurisdiction. 21. The purported order of suspension was alleged to have been issued arbitrarily and in colourable exercise of power. 22. It was further alleged that the purported order of suspension was issued on the ground that the disciplinary proceeding against the writ petitioner was pending and as such the same was harassing and not capable of affecting the rights and interests of the writ petitioner. 23. It was also contended that in the instant case, the official position and power of the writ petitioner have been sought to be adversely affected by the administrative order of suspension in the chain of attempts to scrutinise and sit in appeal over a quasi-judicial function. 24. The appellants contested the writ application challenging the purported charge sheet and the purported order of suspension by filing affidavit-in-opposition affirmed by Chitra Chopra, Director, Ministry of Labour, Government of India and the appellants denied the material allegations and further asserted that the disciplinary proceedings have been initiated on the basis of the final report of the Central Bureau of Investigation and after obtaining the advice of Central Vigilance Commission ; and that the initiation of disciplinary proceedings has been the result of altogether separate Course of events and it has nothing to do with the other writ petition as contended by the writ petitioner regarding his claim for promotion to the post of Central Provident Fund Commissioner. It was contended by the Appellant that sometime in the month of June 1983, the Central Government received a report from the Central Bureau of Investigation stating that a case was being registered by them for making enquiry in regard to certain misconduct on the party of the writ petitioner while he was working as the Regional Provident Fund Commissioner, Maharashtra, Bombay. In the final report of Central Bureau of investigation received on 15th February, 1985, the initiation of regular departmental action against the writ petitioner for major penalty was recommended and after obtaining the advice of the Ventral Vigilance Commissioner, the Central Government decided to initiate departmental proceedings for major penalty. Accordingly, the purported charge sheet dated 29th February, 1986 was issued. As the disciplinary proceeding was pending, the Central Government, in exercise of power conferred by sub-rule (1A) of Rule 6 of the Employees’ Provident Fund Staff (Classification, Control and Appeal) Rules 1971, placed the writ petitioner under suspension with immediate effect by order dated 20th February, 1986 and the Central Provident Fund Commissioner issued the order appointing Sri G.N. Chopra as Regional Provident Fund Commissioner. It is further asserted that the allegations made against the writ petitioner in the charge sheet were based on misconduct committed by the writ petitioner in passing orders for reduction of the amount of damages levied earlier by him. The review being not founded on proper admissible grounds was prima facie intended to confer undue benefit on the defaulting parties and corresponding loss to the Employees’ Provident Fund Organisation. Since the departmental proceeding had been initiated the writ petitioner was directed to submit his written statement of defence. The writ petitioner was also informed in the charge sheet that an enquiry would be held if the Article of Charges were not admitted by him. It is specifically asserted by the Appellants that a preliminary report was furnished by the Central Bureau of investigation on 8.6.1983 regarding the acts of commission and omission on the part of writ petitioner during the year 1978-79, while he was functioning as a Regional Provident Fund Commissioner, Bombay. The final investigation report of the Central Bureau of Investigation Was received on 15.2.1985 Certain information/documents were called for from the Central Bureau of Investigation. The comments of the Deputy Director (Vigilance) were received on April, 1985. The comments of the Central Provident Fund Commissioner of the Central Bureau of Investigation Report were furnished to the Government on 23.8.1985. The Government sought from Central Provident Fund Commissioner certain clarifications on the latter's comments on the Central Bureau of Investigation Report and also certain additional documents and required information were furnished to the Government by the Central Provident Fund Commissioner on 23.9.1985. The Government sought from Central Provident Fund Commissioner certain clarifications on the latter's comments on the Central Bureau of Investigation Report and also certain additional documents and required information were furnished to the Government by the Central Provident Fund Commissioner on 23.9.1985. After examination of the matter by the Government, the matter as required under Rules, was referred to the Central Vigilance Commission in November 1985. The advice of the Commission was received by Government on December 24, 1985. Thereafter, certain queries were made from the Central Bureau of Investigation on certain aspects of the matter. Finally, after the receipt of the reply from Central Bureau of Investigation on 18.2.1986, disciplinary proceeding against the writ petitioner was initiated and accordingly, a charge sheet was issued on 20.2.1986. It was asserted by the Appellants that the order of suspension was purely an administrative function which has made as interim measure pending disciplinary proceedings and the same does not amount to any punishment to the employees placed under suspension. Prejudice is likely to be caused to the investigation by continuance in office of the delinquent. This was the only factor that was taken into account, for suspending the writ petitioner The writ petitioner claimed and contended that the disciplinary proceeding was initiated against him on the basis of the report of the Central Bureau of Investigation and advice of the Central Vigilance Commission and not by the Disciplinary Authority on his own discretion or authority and that the proceeding was based on the alleged report of the extraneous agencies and that neither the final report of the Central Bureau of Investigation nor the alleged advice of the Central Vigilance Commission has been disclosed in the writ proceeding. The same has also not been mentioned in the list of documents. It was contended by the writ petitioner that no charge sheet was issued even after a lapse of more than 2½ years. The inordinate delay remained unquestioned and thereby the charges are wholly overstrained for the simple reason that any new, fresh and further materials did not come to the notice of the Appellants warranting exploration or cooking up of stele materials for the issuance of the purported charge sheet. The inordinate delay remained unquestioned and thereby the charges are wholly overstrained for the simple reason that any new, fresh and further materials did not come to the notice of the Appellants warranting exploration or cooking up of stele materials for the issuance of the purported charge sheet. It is further contended by the writ petitioner that the Disciplinary Authority had abdicated its power and jurisdiction to form the requisite opinion to start a disciplinary proceeding on the basis of the report of the Central Bureau of Investigation and the advice of the Central Vigilance Commission. 25. The writ petitioner further pinpointed that the appellants have formed a prejudged opinion with a pre determined mind and come to a firm decision and made up their mind about the alleged misconduct before the holding of the enquiry. 26. Brief fact of the case in F.M.T.A. No 2057 of 1986 may be stated as follows : The challenge as contained in C.O. No. 3845(W) of 1985 was against the purported threat vis-vis action of the respondents in filling up the poet or Central Provident Fund Commissioner by deputationist was founded upon the grievances that in view of the fact that the writ petitioner was being the senior-most Regional Provident Fund Commissioner. In the Employees Provident Fund Organisation, was and/or is eligible candidate for promotion to the post of Central Provident Fund Commissioner. Apart from the above, the writ petitioner was the recipient of the National Award in the year 1978 ; that the action of the appellants herein to fill up the post of Central Provident Fund Commissioner by Sri B.N. Bhattacharya was unauthorised and illegal Consequent upon the retirement or Shri Hansraj Chopra with effect from 31st July 1982, the post of Central Provident Fund Commissioner was required to be filled up. It was material now to state that on 8th November 1982, the Ministry of State for Rehabilitation expressed opinion in regard to the filling up of the vacant post with the Departmental officer having adequate experience and Seniority who could be more effective as the Central Provident Fund Commissioner and as such, the amendment of the Recruitment Rules could be expedited. At the relevant point of time, under the Recruitment Rules, there was no provision for promotion of departmental candidates to the post of Central Provident Fund Commissioner. At the relevant point of time, under the Recruitment Rules, there was no provision for promotion of departmental candidates to the post of Central Provident Fund Commissioner. The Recruitment Rules at the relevant time were in the process of being amended and before the said Recruitments Rules came into being, the Appointment Committee of the Cabinet approved the proposal to appoint Sri B.K. Bhattacharya from the Karnataka Government's cadre to the post or Central Provident Fund Commissioner under the said Ministry on 29th December 1982. Sri Bhattacharyya was appointed to the said post of Central Provident Fund Commissioner for three years on deputation. On 22nd November 1983 the Respondent no 3 issued an office order whereby Cadres of the Regional Provident Fund Commissioner were revised and the Regional Provident Fund Commissioner (Special Grade) had been revised as Regional Provident Fund Commissioner (Grade I) in which the name of the writ petitioner was shown against serial no. 1 as Regional Provident Fund Commissioner (Grade I) and accordingly, the Writ petitioner duly opted for the revised scale with effect from 31st May 1983. The claim of the writ petitioner is that even before such revision of the said Regional Provident Fund Commissioner Cadres, the writ petitioner became eligible for promotion to the post Central Provident Fund Commissioner. The statutory Provident Fund was established under a Scheme framed under the Employees Provident Fund and Miscellaneous Act 1952 (for Short, the said Act). The said office is administered by a Board of Trustees constituted under s. 5A of the said Act, 1952. Under s. 5A as aforesaid, the Central Government appoints a Central Provident Fund Commissioner as the Chief Executive Officer of the Central Board. Sub-section 4 of 8. The said office is administered by a Board of Trustees constituted under s. 5A of the said Act, 1952. Under s. 5A as aforesaid, the Central Government appoints a Central Provident Fund Commissioner as the Chief Executive Officer of the Central Board. Sub-section 4 of 8. 5D provides that no appointment to the post of Central Provident Fund Commissioner or Regional Provident Fund Commissioner or to any other office under the Central Board carrying a maximum monthly salary of not less than five hundred rupees shall be made except after consultation with the Union Public Service Commission, No such consultation shall, however, be necessary in regard to such appointments as : a) for a period not exceeding one year; or b) if the person to be appointed is at the time of his appointment– (i) a member of Indian Administrative Service ; or (ii) in the service of the Central Government or a State Government or the Central Board in a Class I or Class II post. 27. The Ministry of Labour and Rehabilitation has framed rules for appointment of Central Provident Fund Commissioner and the said Rule is known as Employees' Provident Fund Organisation (Commissioners) Recruitment Rules, 1966 and by Notification dated 30th May 1983, the said Rule has been amended by the Employees Provident Fund (Commissioners) Recruitment (Amendment) Rules, 1983. In terms of and in accordance with the provisions as contained in the said Amended Rules, the post of Central Provident Fund Commissioner is required to be filled in by promotion, falling which by transfer or deputation. The promotion to the post of Central Provident Fund Commissioner is required to be made from the post of Regional Provident Fund Commissioner (Special Grade) with 9 years’ regular service in the grade failing which by transfer on deputation. The assertion of the writ petitioner is that the said post is to be filled in by promotion of Regional Provident Fund Commissioner (Special Grade) and the said provision is mandatory in character and the same binds the appellants herein. The assertion of the writ petitioner is that the said post is to be filled in by promotion of Regional Provident Fund Commissioner (Special Grade) and the said provision is mandatory in character and the same binds the appellants herein. Accordingly the writ petitioner submitted a list of officers who filled in the said post since the inception of the Scheme in 1952 and the following officers from outside were appointed to man the said post of Central Provident Fund commissioner : (i) Sri Sadashiv Prosad, IAS, was first appointed to the said post ; (ii) Sri N.M. Pattanaik, IAS, was appointed to the said post ; (iii) Sri Neelakantam of Central Secretariat Service was appointed to the said post; (iv) Sri S.N. Mubayi of Sub-ordinate Accounts Service, Railway, was appointed to the said post; (v) Dr. B.K. Bhattacharjee, IAS, was appointed to the said post; (vi) Mr. E.V. Rama Reddy, IAS and Mr. Sadaguopen, IRS were appointed to the said post; (vii) Mr. S.K. Qadhawan from Employees State Insurance Corporation was appointed to the said post ; (viii) Mr. R.R. Sovor from Indian Postal Service was appointed to the said post; (ix) Mr. V.S. Desikechari from Indian Revenue Service was appointed to the said post; (x) Mr. K.S. Naik of Employees Provident Fund Department was appointed to the said post; (xi) Mr. Hans Raj Chhabra from Central Secretariat Service was appointed to the said post; (xii) Mr. B.K. Bhattacharya, IAS, has been appointed to the said post; 28. The writ petitioner claimed and contended that the Central Provident Fund Commissioner on deputation is neither aware of the working of the Employees' Provident Fund Scheme of the organisation nor could he take effective interest in their proper functioning. The writ petitioner apprehended that the post of Central Provident Fund Commissioner was at the relevant time held by Mr. B.K. Bhattacharya, as on deputation, will be filed in by another deputationist in place of Shri B.K. Bhattacharya to man the said post of Central Provident Fund Commissioner. The writ petitioner further asserted that the acts of the appellants were arbitrary, discriminatory and mala fide and that the appellants, being the concerned authority, had a legal obligation to consider the case of the writ petitioner’s promotion to the post of Central Provident Fund Commissioner since the writ petitioner has and had the requisite qualification as laid down in the Recruitment Rules. Against the threat and/or apprehension that the appellants, by another deputationist, could fill in the post of Central Provident Fund Commissioner with a view to depriving the writ petitioner, the instant writ application was moved after service of the same upon the respondents, on 12th April 1985 when Mr. Justice Bhagabati Prasad Banerjee passed an order to the following effect :– “Let Affidavit in opposition be filed by 4 weeks from date and reply thereto. if any, be filed by 2 week. thereafter and let the application appear 7 weeks hence. In the meantime, the post of Central Provident Fund Commissioner, which is now being held by Shri B.K. Bhattacharya, IAS, if falls vacant and/or if Sri B.K. Bhattacharya is transferred from that post, is not to be from that post, is not to be filled up by any other person, until further orders of this court. The writ petitioner will be at liberty to apply for further orders on this petition and the respondents will also be at liberty to apply for variation-modification of the above order on notice to each other. Let a plain copy of the order, countersigned by Assistant Registrar (Court) be given to the Learned Advocate” 29. Against the said order, an appeal was preferred entirely on the ground that the interim order passed by the learned Judge advances the speculative interest of the writ petitioner to the great detriment of the Administration that no incumbent can have legal right not to be transferred according to his wishes or in the matter of posting at any particular place and the learned Judge acted illegally in staying the said order of transfer directing the course of promotion in advance. The discretion of the equitable writ Court ought not to have been exercised in such manner so as to adversely affect the smooth and effective functioning of a public service department and to demoralise the entire staff. The stay petition was also filed before the Court of Appeal. On 8th October, 1985, the Appellate Court presided over by Mr. Justice A.K. Sen passed an order, inter alia to the effect :–––– "Pending disposal of the appeal the appellant will be at liberty to appoint a person to be the Central Provident Fund Commissioner except by way of deputation. This will be the only order pending disposal of the appeal now before us. Justice A.K. Sen passed an order, inter alia to the effect :–––– "Pending disposal of the appeal the appellant will be at liberty to appoint a person to be the Central Provident Fund Commissioner except by way of deputation. This will be the only order pending disposal of the appeal now before us. Let the hearing of the appeal be expedited." 30. Against the said order of the Court of Appeal, the appellants herein presented a Special Leave Petition before the Hon'b!e Supreme Court of India. The writ petitioner duly filed counter affidavit and additional affidavit before the Hon'ble Supreme Court of India in support of his Claim and grievances. On 12/13th December 1985, the Hon'ble Supreme Court of India passed the following order : “Interim order of the High Court will stand but the deputation of the existing incumbent may be ax tended by the Central Government, if so though fit. But if the deputation is not extended then no fresh appointment shall be made except by promotion as directed by the interim/order of the High Court Any extension of the deputation or appointment given by the Central Government shall be subject to the final result of the writ petition, at the High Court Special Leave petition is disposed of accordingly”. 31. It may be mentioned here that before filing an appeal before this court and a Special Leave petition before the Hon'ble Supreme Court of India for clarification of the order passed on 12th April 1985 the appellants filed affidavit-.in-opposition to the writ petition and also filed two additional affidavits-in-opposition and a number of affidavits to substitute an application. 32. The foundational thrust of the appellants before this Court as also the Hon'ble Supreme Court of India was that the writ petitioner being the senior most Regional Provident Fund Commissioner (Special Grade) did not complete 9 years’ regular service as he was promoted to the post of Regional Provident Fund Commissioner (Special Grade) in January 1974. 33. The post of Additional Central Provident Fund Commissioner was not filled at the material time by reason of the pendency of the finalisation of Recruitment Rule. Four grades or Regional Provident Fund Commissioners as noted below were rationalised and orders were passed on 31st May, 1983 creating only two grades of Regional Provident Fund Commissioners in place or four grades. The post of Additional Central Provident Fund Commissioner was not filled at the material time by reason of the pendency of the finalisation of Recruitment Rule. Four grades or Regional Provident Fund Commissioners as noted below were rationalised and orders were passed on 31st May, 1983 creating only two grades of Regional Provident Fund Commissioners in place or four grades. These grades are : – (1) Regional Provident Fund Commissioner (Special Grade) Rs 1500 – Rs 1800/- (2) Regional Provident Fund Commissioner (Grade II) Rs 1300 – Rs 1700/- (3) Regional Provident Fund Commissioner (Grade III) Rs 1200 – Rs 1600/- (4) Regional Provident Fund Commissioner (Grade III) Rs 1100 – Rs 1600/- 34. On merger of the existing grade II and III in view of the rationalisation of grades of the Regional Provident Fund Commissioner (Special Grade). As a sequel to the creation of additional post or Central Provident Fund Commissioner and after restructuring of the Employees' Provident Fund Organisation the writ petitioner would at best be eligible for consideration only to the post of Central Provident Fund Commissioner. As a sequel to abolition of the Regional Provident Fund Commissioner (Special Grade), the relationalisation of the grade of Regional Provident Fund Commissioner, the creation of Intermediate level post of Additional Central Provident Fund Commissioner, the existing Recruitment Rules for the post of Central Provident Fund Commissioner are accordingly being modified. It was stated that in the changed perspective the writ petitioner would be eligible for consideration for promotion only to the post of Additional Central Provident Fund Commissioner and to the post of Central Provident Fund Commissioner, as claimed by him. It was further claimed and contended that Sri B.K. Bhattacharyya, the present Central Provident Fund Commissioner whose name was approved for appointment in September 1982, took over charge as the Central Provident Fund Commissioner with effect from 20th December 1982 and since then he has been continuing in the said post. In 1982, when the name of the present Central Provident Fund Commissioner was considered for appointment to the said post, no Regional Provident Fund Commissioner (Special Grade) was round eligible for consideration for appointment to the post of Central Provident Fund Commissioner. In 1982, when the name of the present Central Provident Fund Commissioner was considered for appointment to the said post, no Regional Provident Fund Commissioner (Special Grade) was round eligible for consideration for appointment to the post of Central Provident Fund Commissioner. The appellants further laid emphasis on all the appointments of the Central Provident Fund Commissioner and it was claimed by them that the said appointments were made so far in the Provident Fund Organisation according to the recruitment rules as applicable from time to time. The Employees’ Provident Fund Organisation (Commissioners) Recruitment Rules, 1966, as amended upto 30th September 1972, provided for the appointment of Central Provident Fund Commissioner by transfer on deputation. Subsequent modification of recruitment rules provides for the appointment of departmental personnel and accordingly, Sri K.S. Naik, a Departmental officer was appointed as the Central Provident Fund Commissioner. The Recruitment Rules which were modified in 1983 provides for the appointment to the post of Central Provident Fund Commissioner from two sources, namely, promotion and transfer. It was the case of the Appellants that according to the revised structural changes effected subsequently from 31st May 1983, the writ petitioner was eligible to be considered for promotion first to newly created post of Additional Central Provident Fund Commissioner in the pay scale of Rs. 2,000/- 2250/- and not to the post of Central Provident Fund Commissioner. The writ petitioner duly accepted the benefits of increase in the newly constituted Regional Provident Fund Commissioner Grade-I, and thereby acquiesced in the restructuring of the grades. The claim of the writ petitioner was otherwise improper, invalid, unjustified by reason of acceptance of the benefits of the pay increase which constituted estoppel. The writ petitioner duly accepted the benefits of increase in the newly constituted Regional Provident Fund Commissioner Grade-I, and thereby acquiesced in the restructuring of the grades. The claim of the writ petitioner was otherwise improper, invalid, unjustified by reason of acceptance of the benefits of the pay increase which constituted estoppel. It was the further case of the Department that promotion to the post of Central Provident Fund Commissioner or Additional Central Provident Fund Commissioner cannot be otherwise claimed on the basis of seniority alone inasmuch as the said post is a Selection post to be filled up on merits among all the eligible candidates in terms of or in accordance with the Rules and Guidelines, and that being so, the writ petitioner cannot claim as such the post of Central Provident fund Commissioner at the time when it has fallen vacant by reason of the fact that the writ petitioner being the senior most Regional Provident Fund Commissioner, did not possess the required experience of 9 years’ regular service in the regional Provident fund Commissioner (Special Grade) at the time. The appellants cannot be otherwise restrained and abstained from exercising their legitimate power to make appointment in terms of the Recruitment Rules. The writ petitioner could be eligible for consideration for the post of Additional Central Provident Fund Commissioner on account of charges that are being made in this regard. The appointment to the post of Central Provident Fund Commissioner by transfer on deputation is ingrained as a statutory mode of filling up the said post. 36. It is specifically asserted tat the entries under column II of the Recruitment Rules show that the period of deputation to the post shall not exceed 5 years, and accordingly, the appellants acted legally, validly-in-continuing Sri B.K. Bhattacharyya in the post of Central Provident Fund Commissioner for a period of 5 years. The Appointments Committee of the Cabinet duly approved the appointment of Sri B.K. Bhattacharyya to the post of Central Provident Fund Commissioner on Joint Secretary's pay scale of Rs. 2,500 2,750 until further orders. The appointment of Sri B.K. Bhattacharyya was notified In the Gazette of India vide S.O 437 dated 31st December 1982, without specifying the period of appointment. It was, however, indicated to the Central Provident Fund Commissioner in the endorsement that Shri B.K. Bhattacharyya was appointed until further orders. 2,500 2,750 until further orders. The appointment of Sri B.K. Bhattacharyya was notified In the Gazette of India vide S.O 437 dated 31st December 1982, without specifying the period of appointment. It was, however, indicated to the Central Provident Fund Commissioner in the endorsement that Shri B.K. Bhattacharyya was appointed until further orders. The normal term of deputation at the Joint Secretary's level at the Central is 5 years. Sri Bhattacharyya was, therefore. to continue as Central Provident Fund Commissioner for a period of 5 years from the date of his appointment. It was inadvertently indicated that his appointment was for a period of 3 years in the first instance. The point regarding the tenure of Sri Bhattacharyya was duly clarified by the Establishment Officer, vide D.O. letter no. 3(4) – EO/82(SM) dated the 11th November 1985, that in view of the approval of the appointment of Sri Bhattacharya by the Appointment Committee of the Cabinet to the post of Central Provident Fund Commissioner for the normal tenure of 5 years as admissible at the level of Joint Secretary at the Centre, in terms of and in accordance with the approval of the Appointment Committee of the Cabinet, Shri Bhattacharya will hold the post of Central Provident Fund Commissioner till the completion of his tenure for 5 years upto 19th December 1987 37. The appellants referred to pages 148 and 149 of the Paper Book. Relevant portion of pages 148 and 149 are set out below :– “Government of India Department of Personnel & A. R. Teleprinter Massage unclassified dated the 11th November 1982 From : Shri R.K Tikku Establishment Officer Department of Personnel & A.R. New Delhi To : Shri A.R. Naik Chief Secretary Government of Karnataka Bangalore. No. 3(4)–EO/82 (SM) () Shri B.K. Bhattacharyya IAS (KTK : 64) offered for Central Deputation has been approved for appointment as Central Provident Fund Commissioner under Ministry of Labour on J.S. scale of pay of 2500-2750 () Grateful if the Officer is released immediately to take over his new assignment at the centre () This above teleprinter message may please be transmitted to the addressee immediately. Sd/. D.B. Allawadi Under Secretary to the Govt. of India Copy by post in confirmation Copy to : 1. Ministry of Labour (Shri B.G. Deshmukh, Secy) w r f his D.O. letter No. A 12012/1/82-PF 1, dated 18th September 1982. Sd/. D.B. Allawadi Under Secretary to the Govt. of India Copy by post in confirmation Copy to : 1. Ministry of Labour (Shri B.G. Deshmukh, Secy) w r f his D.O. letter No. A 12012/1/82-PF 1, dated 18th September 1982. The Appointments Committee of the Cabinet have approved the proposal to appoint Sri B.K. Bhattacharya, IAS (KTK : 64) as Central Provident Fund Commissioner under Ministry of Labour on J S scale of pay of Rs 2500-2700 vice Shri H.R. Chhabra, until further orders. Kindly take further necessary action in the matter accordingly. 2. J.S. to P.M. (Shri V.S. Tripathl) 3. Cabinet Secretariat (Shri K.Ramaiah, Dy. Secretary) 4. RO (CM)/Guard File/Tenure File. Sd/- D.B. Allawadi Under Secretary to the Govt. of India 11/11/1982”. “(TO BE PUBLISHED IN PART - II, SECTION 3(ii) OF THE GAZETTE OF INDIA Government of India (Bharat Sarkar), Ministry of Labour & Rehabilitation (Shram Aur Purnarvas Mantralaya) Department of Labour/Shram Vibhag. Dated, New Delhi, the 31st December 1982 NOTIFICA TION S.O. 437 :– In exercise of the powers conferred by sub-s (3) of s. 50 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), the Central Government hereby notifies the appointment of Shri B.K. Bhattacharya, IAS (KTK : 64), as the Central Provident Fund Commissioner, with effect from the 20th December, 1982 Forenoon). No. A 12012(1)/82.PF-I Sd/-P Sinba, Deputy Secretary. To The General Manager, Government of India Press Mayapuri, New Delhi Copy forwarded for Information to : 1 All Stale Governments and Union Territories Administrations 2. The Establishment Officer, Department of Personnel and A.R. with reference to Department of Personnel and AR Endorsement No.3 (4).EO/82(SM) dated the 11th November, 1982 3. The Central Provident Fund Commissioner, New Delhi, Shri B.K. Bhattacharya, IAS (KTK : 64) is appointed as the Central Provident Fund Commissioner in the pay scale of Joint Secretary to the Government of India, viz. Rs 2500-125/2-2750 with effect from the 20th of December 1982 (FN) until further orders vice Shri Hans Raj Chhabra who has retired from service. 4. Shri B.K. Bhattacharyya, Central Provident Fund Commissioner, New Delhi. 5. Shri A.H. Jung, Financial Adviser and Chief Accounts Officer, Office of the Central Provident Fund Commissioner, New Delhi. 6. The Accountant General Revenues, New Delhi. 7. 4. Shri B.K. Bhattacharyya, Central Provident Fund Commissioner, New Delhi. 5. Shri A.H. Jung, Financial Adviser and Chief Accounts Officer, Office of the Central Provident Fund Commissioner, New Delhi. 6. The Accountant General Revenues, New Delhi. 7. P.S. to Minister for Labuur and Rehabilitation, P.S. to M.S. (L & R), P.S. to DLM (L & R)/PS to Secretary (L & R/PS to Addl Secretary, Department of Labour. 8. The Chief Secretary to the Government of Karnataka, Vidhan Saudha, Bangalore, with reference to their Notification No. DPAR 731 SAS 82 dated 22/11/1982 9. All Officers/Sections/Desks/Units in the Department of Labour 10. All attached offices/Subordinate offices/Autonomous Bodies under the Ministry of Labour 11. The Coal Manes Provident Fund Commissioner, Dhunbad 12. 20 spare copies for Sections. Sd/- P Sinha, Deputy Secretary”?. The special reference is made to page 154 of the Paper Book. Relevant portion thereof reads thus :- Dear Mr. Bhatnagar, Kindly refer to the Ministry of Labour’s Notification no. A. 12012 (1)/82-PFI, dated the 31st December 1985, regarding appointment of Shri B.K. Bhattacharya, IAS (KTK :64), as Central Provident Fund Commissioner, with effect from the 20th December 1982. It was clarified in endorsement no.3 of the Notification that the appointment of Shri Bhattacharya was until further orders. In our orders communication the approval of the Appointments Committee of the Cabinet for the appointment of Shri Bhattacharya, it was made clear that the appointment of Shri Bhattacharya was until further orders. In other words, Shri Bhattacharya’s appointment was for the normal tenure of 5 years admissible at the legal of Joint Secretary at the Centre. It however appears that while issuing the term of deputation of foreign service of Shri Bhattacharya it had been mentioned that his term of deputation would be 3 years in the first instance. As officers belonging to the organised Services appointed at the level of Joint Secretary at the Centre are entitled to a normal tenure of 5 years, It is requested that Shri Bhattacharya may be continued in his present post till he completes his normal tenure of 5 years with effect from the 20th December 1982. With regards, Yours sincerely, Sd/- R.K Tikku” 38. With regards, Yours sincerely, Sd/- R.K Tikku” 38. The hearing of the writ petition was concluded on 20th February 1986 and the Judgment was reserved and the subsequent events that took place on and from 21st February 1986 gave rise to the filing of an application for further orders and/or amendment. On such application made to the Hon'ble Court, interim orders were passed, but subsequently, the said application was withdrawn by the writ petitioner. It is necessary to place on record that the application for further orders before the Hon'ble Mr. Justice Bhagabati Prasad Banerjee was subsequently disposed of by an order dated 9th April 1986, by directing the writ petitioner to move the appropriate Court and while such direction was passed the learned Judge vacated the interim order dated 25th February 1986. 39. By the reason of the amendments, the writ petitioner, according to the appellants, could have any straightway claim for promotion to the past of Central Provident Fund Commissioner or Additional Central Provident Fund Commissioner ; at best the writ petitioner could have the right to be considered for promotion and nothing more. The appellants seriously focussed on the initiation and pendency of an investigation against the writ petitioner by Central Bureau of Investigation inasmuch as on 11th November, 1984 the writ petitioner himself knew that the case was being investigated against him. 40. In the backdrop or the pleadings of the parties both the writ applications were duly heard, but the hearing in respect of both the writ petitions was concluded admittedly after 12th May, 1986. The writ petition being Civil Order no. 1720(W) of 1986 was heard even after 12.5.1986. At this stage, It is necessary for us to deal with the basic and foundational thrust of the appellants that the Writ Court ceased to have any control and jurisdiction over the matter now impeached in the writ petitions, by reason of the Notification dated 2nd May, 1986, as set out hereinbefore. We will deal with this branch of the arguments while dealing with the preliminary objection raised by Mr. Sen. 41. Relevant portion of the order sheets of both the writ petitions being Civil Order Nos. We will deal with this branch of the arguments while dealing with the preliminary objection raised by Mr. Sen. 41. Relevant portion of the order sheets of both the writ petitions being Civil Order Nos. 3845(W) of 1985 and 7184(W) of 1986 are required to be set out for the purpose of effective determination of the preliminary and basic challenge of the appellants herein : “Another interesting issue has also crept in the matter under consideration. The Administrative Tribunals Act, 1985 has come into effect on and since 1st of November 1985 under which High Court's power in entertaining writ petitions as regards service matters pertaining to certain specified heads has said to have been curtailed and the powers have been conferred on to the Administrative Tribunal in terms of s. 14 of the Act of 1985. Section 29 of the Act has provided that suits or other proceedings pending before the Court or other authority immediately before the date of establishment of a Tribunal under the Act shall stand transferred on that date to such Tribunal. Section 29(4)(b) provides as follows : “The Tribunal may, on receipt of such records, proceed to deal with such suit, appeal or other proceeding, so far as may be, in the same manner as in the case of an application under s. 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.” The writ petition was moved before this Court on 7th March, 1986 and this Court upon consideration of the facts thought it fit not to pass any ad interim order excepting an order for inspection, but to dispose of the matter expeditiously and as such, direction for filing affidavits were given. After completion of the inspection and the affidavits, the hearing commenced and more or less completed on 7th May, 1986. On that date the parties expressed a desire to file their written notes of arguments and this Court granted time till 19th of May, 1986. After completion of the inspection and the affidavits, the hearing commenced and more or less completed on 7th May, 1986. On that date the parties expressed a desire to file their written notes of arguments and this Court granted time till 19th of May, 1986. When the matter was called on for hearing on 19th May, it was brought to the notice of this Court by the respondent authority that by reason of a Notification dated 12th May, 1986 issued by the Central Government under the Administrative Tribunals Act, 1984, the High Court ought not to have dealt with the matter any further and that matter ought to be sent back to the Tribunal for being dealt with before the Tribunal”. “Another aspect of the matter ought also to be considered to the effect that after the completion of the submissions, the matter is to be dealt with by the Court and no affectation of rights can be said to be effected during the period when the matter is pending judgment before this Court. The Code of Civil Procedure though in terms has no manner of application in writ proceedings, but lends guiding factor in a situation like this having regard to the provisions of Order 22 Rule 6. The word “pending” in any event has received some amount of consideration by various High Courts and the Supreme Court. The English Courts also have considered the matter in great length. In re : Clagett’s Estate : Fordham v. Clagett (1882) Jessel M.R. observed that a pending matter in any Court of Justice means one in which some proceeding may still be taken. Relying on the above observations the Supreme Court in the case of Ajgar Ali Nazar Ali Singaporewala v. State of Bombay observed that the case of the appellant was not concluded and the matter was pending before the learned presidency Magistrate at the date of commencement of the impugned Act. From the facts it appears that a case relating to an offence mentioned in s. 6(1) was triable exclusively by the Special Judge was pending before a Presidency Magistrate on 28th July, 1952, the date of the commencement of the Act. No Special Judge however, was appointed by the State Government till 26th of September 1952. From the facts it appears that a case relating to an offence mentioned in s. 6(1) was triable exclusively by the Special Judge was pending before a Presidency Magistrate on 28th July, 1952, the date of the commencement of the Act. No Special Judge however, was appointed by the State Government till 26th of September 1952. The only thing which remained to be done thereafter was the pronouncement of the judgment of the Presidency Magistrate who had continued with the proceedings before him. On 28th July 1952 the prosecution had closed its case and the accused had not yet been called upon to enter upon his defence. The examination of the accused persons under s. 342 of the Code of Criminal Procedure took place after that date. The accused filed his written statement on 14.8.1952 and the addresses by the prosecution as well as defence continued right upto 26th September, 1952; on those facts, the Supreme Court came to a conclusion that the matter was pending before the Court on the date of commencement of the Act. But the laid decision is of no assistance to Mrs. Sanyal who have very strongly relied upon the same inasmuch as the facts are completely different; whereas, in the case noted above, quite a number of steps have been taken after the commencement of the Act, but in the case under consideration the question of taking any further steps would not arise Apart from final pronouncement of the judgment, nothing remained in the matter which can be said to be dealt with by this Court. In that view of the matter, I am unable to accept the contention of the respondent authority that the High Court has lost jurisdiction to entertain the matter any further. In the view I have taken, I need not go Into the question as raised by Mr. Mitra that in spite of the statutory provisions as contained in the Administrative Tribunals Act, 1985 having due regard to the provisions of Article 323A of the Constitution, the High Court still retains the jurisdiction in regard to the service matters for the purpose of issuance of appropriate writ or writs, more so by reason of the fact that the matter in issue does not call for any decision in that regard. In the result, this writ petition succeeds. The Chargesheet and the Order of Suspension are set aside and quashed. In the result, this writ petition succeeds. The Chargesheet and the Order of Suspension are set aside and quashed. The period under suspension be treated as leave with pay.” 42 Civil order no 3845 (W) of 1985. “In order to eliminate unnecessary and uncalled for hardship to the litigants and in the absence of any specific provision for debarring the court from pronouncing a judgment either in the Article 323A or under the provision of the said Act I am constrained to hold that this court's power to deliver judgment in respect of matters which were finally heard long before the appointed date had not been suspended or taken away. Such an interpretation could not also be given in view of the fact that Article 39A of the Constitution of India provides that the State shall secure for the operation of the legal system to promote justice. Of course, this is one of the Directive principles of the State Policy. But this is a thing we have to remember and that if the contention of the respondent are accepted, in that event, it would not secure and promote justice whereas it will clearly amount to doing injustice to a party for no fault or his and the court must apply the reading down rule provision so as to secure justice and not injustice. Accordingly I hold that the word ‘pending case’ does not and cannot be construed in such a manner which will have the effect of ousting the High Court from delivering the judgment in a concluded case. If this were allowed to quote Denning L.J. again, ‘the rule of law would be at an end’ See R. v. Medical Appeal Tribunal (1957) 1 Q B 574 at 586. In the result, the objection of Mr. Sen is overruled and I am of the view that this court's jurisdiction to deliver judgment which was heard before the appointed date had not been and could not be taken away by the impugned Act.” 43. From a reference to the relevant order sheets of both the writ petitions, it is clear that the hearing of both the writ petitions was concluded after 12th May 1986. From a reference to the relevant order sheets of both the writ petitions, it is clear that the hearing of both the writ petitions was concluded after 12th May 1986. Since we have decided to dispose of the preliminary objections, we now turn to the preliminary objection of both the parties and after our determination on the preliminary objections, we will, in case the preliminary objection found untenable advert to the respective contentions of the parties as regards the merits of the case. 44. Mr. Bholanath Sen, Senior Advocate, in support of the contention that both the learned Judges are incompetent in exercising jurisdiction over the matter and delivering the judgment after 12th May, 1986, by reason of the applicability of the said Act to the recruitment and matter concerning the recruitment to Provident Fund Service of the Central Board of Trustees and all service matters of any person appointed to the Provident Fund Service which can only be adjudicated upon by the Administrative Tribunal according to Mr. Bholanath Sen except the Supreme Court, no Court shall be entitled to exercise any jurisdiction, power or authority in relation to matters concerning recruitments under s. 28 of the said Act. Mr. Bholanath Sen, in support of his contention, pinpointed or focused on the objects and reasons leading to passing of the said Act, the preamble and on the provisions as contained in ss. 2(g), 14(2), 14(3), 28 and 29 of the said Act. 45. Mr. Sen made a special reference to the objects and reasons as aforesaid and the preamble of the Act and referring to the same, it was submitted by Mr. Sen that Article 323A was introduced by the 42and Amendment of the Constitution. Article 323A not only empowers the setting up of the Administrative Tribunal, but also provides for the removal of the High Court jurisdiction over service matters. The said Act is a welcome stop towards speedy settlement of the grievances of the Government servants and the employees employed in Provident Fund Association, State Insurance Association, Central Board Work Education, National Labour Institute, National Council of Safety in Mines, Dhanbad. The welcome features according to Mr. Sen are, inter alia as follows :– “It will adjudicate and determines not only cases of major punishment but all matters arising, out of the service conditions of the employees, seniority, promotion, retirement, reversion, fixation of pay scale. The welcome features according to Mr. Sen are, inter alia as follows :– “It will adjudicate and determines not only cases of major punishment but all matters arising, out of the service conditions of the employees, seniority, promotion, retirement, reversion, fixation of pay scale. It will have on its Board one judicial member and administrative member, thereby assuring both legal and administrative matters and since the Central Tribunal is exclusively for the service matter of the employees, disposal will not be delayed at all, rather the same will be quick”. 46. He further submitted that the main objective of creating the Administrative Tribunal for dealing with the subject is not only to reduce the burden of the High Courts and to reduce the mounting arrears of cases, but also to bring Into existence of the constitutional body apparatus that will deal with and dispose of relevant subjects effectively and efficiently Tribunals, according to Mr. Sen, whether for service matters or for other disputes connected therewith are expected to take on its shoulders the load of the ordinary High Courts and thereby to embark upon adjudication over the service matters with their specialised knowledge. The disputes touching the service matters can be dealt with by those with expertise instead of saddling the High Courts with litigation explosion. Thus the burden on High Courts will be reduced considerably and the cases could be disposed of expeditiously. The statements of objects and reasons warranting the establishment of administrative tribunals were highlighted by Mr. Sen. 47. The Bill seeks to give effect to the aforesaid constitutional provision providing for the establishment of an Administrative Tribunal for the Union of India and a separate Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States. The statements of objects and reasons warranting the establishment of administrative tribunals were highlighted by Mr. Sen. 47. The Bill seeks to give effect to the aforesaid constitutional provision providing for the establishment of an Administrative Tribunal for the Union of India and a separate Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States. The Bill also provides for : a) The jurisdiction powers (including the power to punishment for contempt an authority which may be exercised by each Tribunal ; b) the procedure (including provision as to limitation and rules of evidence) to be followed by the States Tribunals ; c) exclusion of the jurisdiction of all courts, except that of the Supreme Court under Article 136 of the Constitution relating to service matters; d) the transfer to each Administrative Tribunals of any suit or other proceeding pending before any Court or other authority immediately before the establishment of such Tribunal as would have been within the jurisdiction of such Tribunal if the causes of action on which such suits or proceedings arte based had arisen after such establishment. 48. In view of the 42nd Amendment according to Mr. Sen which engrafted Article 323A in the constitution and the promulgation of the said Act, the jurisdiction of all courts except that of the Supreme Court relating to service matters is excluded. Explanation to sub-s (2) of s. 29 provides, “For the purpose of the sub-section be it to the effect from which jurisdiction is conferred on tribunal in relation to any legal or other authority or corporation or society means the day with effect from which provision of s. 14 and the Tribunal in terms and in accordance with sub-s. (4B) of s.29 may on receipt of the proceedings deal with such suit, appeal or other proceedings as far as may be in the same manner as in the case of an application under s.19 from the stage which was reached before such transfer or from any earlier stage or Decided On : novo as the Tribunal may deem fit” 49. Mr. B.N. Sen. while strenuously laying stress on the exclusion of the jurisdiction of the Hon’ble High court under Article 226 referred to the decisions of the Hon’ble supreme Court in the case of S.P. Sampath Kumar & ors. v. Union of India & ors. 1985 (4) SCCC 545. Mr. B.N. Sen. while strenuously laying stress on the exclusion of the jurisdiction of the Hon’ble High court under Article 226 referred to the decisions of the Hon’ble supreme Court in the case of S.P. Sampath Kumar & ors. v. Union of India & ors. 1985 (4) SCCC 545. Relevant portion of the judgment as pinpointed by Mr. Sen is set out below : – “……………So far as the writ petitions under Article 226 of the Constitution pending in the High Courts as also suits or appeals pending in the subordinate courts are concerned, there will be no order of stay, subject to the following conditions : (1) Appointments of judicial members of the Tribunal to be made hereafter shall be in consultation with the Chief Justice of India. However, appointments already made will not be disturbed. (2) Each Bench of the Tribunal will consist of one Judicial Member and one Non-judicial member and in case of difference of opinion between them the case shall be referred for decision to the Chairman of the Tribunal. (3) Where no Bench of the Tribunal is located at the place where there is seat of the High Court, any application or petition in regard to the matters covered by the Act will be filed in the registry of the High Court and as soon as such application or petition is filed, intimation shall immediately be sent to the Bench of the tribunal having jurisdiction over that area and if there is an application for interim relief made in such petition or application, a member of the Bench will make himself available at the seat of the High Court for hearing the application for interim relief within one week from the receipt of the Intimation and until then, status quo as on the date of the filing of the application for interim relief shall be maintained. One member of the Tribunal will also in such case be available at the seat of the. High Court at least once in every 10 days unless there is no application or petition for interim relief for hearing within the period of 10 days and in any event he shall be available at the place where the seat of the High Court is situate not later than 14 days from the date when an order for interim relief has been made by him. This provision will apply not only to new cases which may be filed but also to pending cases, except those cases where interim relief has already been refused by the High Court prior to November 1, 1985. The Bench of the Tribunal will also in such case not take up for final hearing any applications or petitions except at the place where the seat of the High Court is situate. The Bench of the Tribunal may go on circuit for this purpose” 50. Mr. Bose joined the issue with Mr. Sen on the aspect of the directions of the Hon'ble Supreme Court of India passed in the case of Sampat Kumar (supra) to the extent that the said directions of the Hon'ble Supreme Court could be said as interlocutory order of the Supreme Court of India and It is not relevant for the purpose of determination of the constitutional issues involved in the present appeal. There was no pronouncement of Supreme Court on the basic challenge that from 1.11.1985 the jurisdiction of the High Court under Article 226 of the Constitution stands ousted. Mr. Bose further submitted that the Hon'ble Supreme Court did not pronounce its judgment on the question of vires of the said Act Including the exclusion of the judicial review by the High Court under Article 226. In absence of such determination, pronouncement of the Hou'ble Supreme Court on the issue as aforesaid, directions passed in S.P. Sampat Kumar's case by the apex Court of the Country cannot constitute precedent under Article 141 of the Constitution of India. 51. It is submitted by Mr. Sen, that both the Learned Judges erred in law in dealing with and disposing of the matters after 12th May 1986 on the date on which the High Courts ceased to have any jurisdiction over the matters by reason of Notification dated 2nd May, 1986. The judgments it is submitted cannot, therefore, be sustained and they are liable to be set aside on the preliminary objection itself. 52. Mr. Mitter contended that the writ petition was not a pending proceeding within the meaning of the said Act. He advanced the submission that the word ‘pending’ has different meaning in different contexts. In support of this, Mr. Mitter referred to the judgment reported in 1980(16) Chancery Division 544 Salt v Cooper. 52. Mr. Mitter contended that the writ petition was not a pending proceeding within the meaning of the said Act. He advanced the submission that the word ‘pending’ has different meaning in different contexts. In support of this, Mr. Mitter referred to the judgment reported in 1980(16) Chancery Division 544 Salt v Cooper. He further referred to the judgment of R.R. Chari v. State of U.P. AIR 1962 SC 1573 (1579). Mr. Mitter further submits that for the sake of argument if It is accepted that the pending proceeding includes Article 226 proceedings, even then such wider import of the words ‘pending proceeding’ in the context of the said Act would defeat and frustrate the very fabrics of the object and reason leading to the passing of the said Act, inasmuch as, proceedings in a given case having been concluded and the High Court was only to deliver the judgment. The pending proceeding in terms of the said Act stands transferred and in spite of the conclusion of the hearing, the Tribunal would be required to hold proceedings de novo. In that event, the very object and reasons will be frustrated. 53. The word ‘pending’ should be construed in such a manner so as to subserve the object and reasons of the said Act which apart from conferring rights upon the employees to agitate the grievance before the Tribunal, is aimed at mitigating the sufferings of the employees. Instead of proceedings, has narrowly been construed and speedier remedy would not be available to the concerned employees. Mr. Mitter contended that the word ‘pending’ does not occurring s. 14 of the said Act and thereby sought to justify the contention that the pending proceeding does not affect the pending writ proceeding. It is confined only to suit and other proceedings. Apart from the above, Mr. Mitter sought to advance that liberal meaning is to be given to s. 29 of the said Act. Unless such liberal meaning is given, it would lead to absurdity and render the said provision unworkable. 54. To support his contention that the petition under Article 226 of the Constitution is not covered by the said Act and the Administrative Tribunal constituted under the said Act has not been conferred jurisdiction to hear and decide proceeding under Article 226 of the Constitution of India, Mr. 54. To support his contention that the petition under Article 226 of the Constitution is not covered by the said Act and the Administrative Tribunal constituted under the said Act has not been conferred jurisdiction to hear and decide proceeding under Article 226 of the Constitution of India, Mr. Mitter strenuously argued that the said Act cannot embrace the width, reach and sweep of Article 226 of the Constitution of India inasmuch as there may be occasions where an employee in a given situation requires redressal of the grievance arising out of inaction of the authorities in a particular matter. He further submitted that many a time a Government servant suffers by reason of the fact that the concerned authorities fail to take action which is enjoined upon them under the rules or regulations or seeking instructions take pretty long time. He also pointed out that there will be no redressal of grievances arising out of the following Cases; (a) That a temporary Government servant entitled to be declared quasi permanent with effect from 1st April, 1986, though he qualified fully for such declaration; Department did not initiate any action to grant or issue certificate under rule 3(ii) of the Central Civil (Temporary) Service Rules. His services were terminated under Rule 5 of the said Rules on 1st June 1986, by and order of innocuous nature. Then Mr. Mitter referred to the judgments of the Hon’ble Supreme Court viz. Purushottam Dhingra v. Union of India AIR 1958 SC 36 and Champaklal Chimanlal Shah v. Union of India AIR 1964 SC 1854 and contended that the concerned Government servant would not be entitled to claim protection of Article 311 of the Constitution of India. (b) An employee was appointed to a particular post on probation for two years on March, 1, 1983, and be completed the period of probation satisfactorily on 20th February 1985. The authority sat tight over the matter and did not take any action to confirm him to the post. It is possible to terminate his service as probationer even in the month of September, 1986 because unless and until the order of confirmation is issued the said employee continues to be on probation. The concerned Government employee cannot challenge the inaction on the part of the appointing authority which has deprived him or claiming the status and protection available to a permanent Government servant. The concerned Government employee cannot challenge the inaction on the part of the appointing authority which has deprived him or claiming the status and protection available to a permanent Government servant. (c) A Government employee was placed under suspension with effect from June 1983 pending investigation into his alleged misconduct. No charge sheet is issued to him for more than 6 months on account of the normal official delays in continuing the Investigation or process report and investigation quickly, the concerned Government servant continues to suffer the agony of suspension without any reason. Such inaction is wholly in violation or the instruction issued by the Central Government for expediting such cases. But the Tribunal cannot other wise grant relief on the ground that instructions issued by the Central Government are overdue by the Departmental authorities and as a result the employee is visited with financial difficulties and other disadvantages. (d) A Government servant whose promotion is due for the higher post his case was duly considered by the Departmental Promotion Committee but results were kept in a sealed covered as the disciplinary proceeding was pending against him and no action was taken to expedite the case which continued for years together. The Government servant might be fastened with the loss of good sum by way of arrear pay and allowances even if be is appointed to the higher post with retrospective operation. (e) The Tribunal would not be in a position to set right the wrong done to an eligible person suffering a setback in his service career by reason of the factor that the Departmental Promotion Committee was not convened in a particular year though it was to be convened annually and some vacancies also existed Amplitude of the powers of the Tribunals is limited and the Tribunal Cannot entertain any application in cases where no order has been made nor a Tribunal can grant relief in certain case whereby reason of conscious inaction and deliberate omission on the part of the authorities, the Government servant suffers for which no remedy is available to him under the said Act. 55. Mr. 55. Mr. Mitter further proceeded to argue that a challenge against the statutory provisions even before any order has been issued in pursuance thereof affecting the concerned Government servant would normally be premature or of academic nature of s. 19 of the said Act, inasmuch as the Tribunal is incompetent to entertain an application under s. 19 in the matter which would be treated as cognizable only by legal Court, such as the High Courts and the Supreme Court. In the event the Tribunal doe not entertain an application under s. 19 of the said Act holding, inter alia, that the applicant has no case on merits or that the application is not sustainable as the matter is beyond the jurisdiction of the Tribunal. 56 Mr. Mitter contended that the jurisdiction of the High Court to hear and decide the petition under Article 226 of the Constitution of India has not been ousted by the said Act, inasmuch as the power and jurisdiction of the High Courts under Article 226 of the Constitution of India cannot be otherwise taken away or abridged or curtailed by an Act of Parliament without corresponding amendment of Article 226 of the Constitution of India Unless Article 226 of the Constitution of India, according to Mr. Mitter, is amended to the effect save and except “service matter”, High Courts would still retain the power, jurisdiction and authority to admit writ petitions and to decide the same. Mr. Mitter referred to the judgments of the Hon'ble Supreme Court of India, viz. In re Kerala Education Bill, 1957, AIR 1958 SC 956 . State of Haryana v. Haryana Co-op. Transport Ltd. & ors AIR 1977 SC 237 . Mr. Mitter further relied on the decisions viz, Trilokchand Motichand v. H.B. Munshi ; AIR 1970 SC 898 , Custodian, Evacuee Property, Punjab v. Jafram Begum,, AIR 1968 SC 169 , Durgah Committee v. Hussain Ali AIR 1961 SC 1402 , Sangram Singh v Election Tribunal Kotah AIR 1955 SC 425 and Hari Vishnu v. Ahmed Ishaque AIR 1955 SC SC 233. The judgments as referred to and relied on by Mr. Mitter deal with the topic that the jurisdiction of the High Courts under Article 226 cannot be taken away by an Act of Parliament. The judgments as referred to and relied on by Mr. Mitter deal with the topic that the jurisdiction of the High Courts under Article 226 cannot be taken away by an Act of Parliament. The judgment reported in AIR 1977 SC 237 (supra) deals with the question whether Articles 226 and 227 of the Constitution of India are whittled down by s. 9(1) of the Industrial Disputes Act, 1947. The Hon’ble Supreme Court observed that the jurisdiction conferred by Articles 226 and 227 of the Constitution of India cannot be abridged and/or taken away in respect of provision like s. 9(1) of the Act. In the judgment reported in AIR 1958 SC 956 (supra) Special Reference No 1 of 1958 for the first time required the Supreme Court to exercise the power under Article 143. The said celebrated decision was referred to the Supreme Court of India by the President for consideration and report on the following question : ‘Does cl. 33 of the Kerala Education Bill, or any provision thereof, offend Art. 226 of the Constitution of India in any particulars or to any extent’ ? 57. It is claimed and contended by Mr. Mitter that suit and other proceeding as referred to in the laid Act do not include nor embrace the proceedings under Article 226 of the Constitution of India. Then Mr. Mitter referred to Rule interpretation ‘noscitur a sociis' and contended that the meaning of the word “proceeding” may be asserted by reference to the meaning of the word “associated with it” and invited that the “proceeding” must be construed in the light of the aforesaid Rule. Proceeding has two meanings–denotation and connotation. Denotation means one of its dictionary meaning, whereas the connotation means the meaning obtained by its association with other words. As it is felicitously put by Lord Maxmillan, a word is known by the company it keeps. In support of this contention. Mr. Mitter referred to the judgment of the Hon'ble Supreme Court of India in Rainbow Steels Limited & anr. v. Commissioner of Sales Tax, U.P. & anr. AIR 1981 SC 2101 . As it is felicitously put by Lord Maxmillan, a word is known by the company it keeps. In support of this contention. Mr. Mitter referred to the judgment of the Hon'ble Supreme Court of India in Rainbow Steels Limited & anr. v. Commissioner of Sales Tax, U.P. & anr. AIR 1981 SC 2101 . In the said decision, it was held, where thermal Power Project which had been used previously but was in perfectly running condition at the time of sale and was sold as such, it would not be deemed to be “old machinery” within the meaning of Entry 15 of the Notification. Therefore, the same would not be exigible to Sales Tax. The word ‘old’ occurs in Entry 15 associated with words ‘”discarded, unserviceable or obsolete” and therefore, the principle of ‘noscitur a sociis’ would be applicable to the construction of the word ‘old’ occurring in Entry 15 and the expression would clubbed with it. The said decision of the Hon’ble Supreme Court distinguished the decision of Nagpur Corporation v. lts. Employees reported in AIR 1960 SC 675 , the decision in Letang v. Cooper reported in 1965 (1) QB 232 and the decision in State of Bombay v. Hospital Mazdoor Sabha reported in AIR 1960 SC 610 . Applying this principle in the facts of the present case, Mr. Mitter submitted that the proceeding occurring in the said Act must mean that proceeding arising in the suits cannot be otherwise extended and it does not otherwise embrace the writ proceeding nor does it include writ proceeding. Mr. Mitter further contended that the proceeding is to be given restricted meaning in terms of the determination of this Hon'ble Supreme Court of India in Rainbow's case (supra) Mr. Miter contended that if the liberal meaning is given to the said word proceeding then many other proceedings touching the service matters would come within the reach and purview of the said Act and thereby rendering ss. 28 and 29 unworkable. 58. Mr. Miter advanced his submission that the Parliament has not conferred any jurisdiction upon the Administrative Tribunal to hear the petition under Article 226 of the Constitution of India. Mr. Mitter further submitted that Article 226 of the Constitution of India being a provision of written Constitution the same must receive a construction which is most beneficial to the wider power and amplitude conferred by it. Mr. Mitter further submitted that Article 226 of the Constitution of India being a provision of written Constitution the same must receive a construction which is most beneficial to the wider power and amplitude conferred by it. The powers under Article 225 of the Constitution of India are of extraordinary nature to be resorted to in the exceptional case of certain nature where adequate relief cannot be availed otherwise, Extra-ordinary jurisdiction is vested in High Courts for the purpose of ensuring the law of the land implicitly and the various Tribunals of public authorities are kept not for the purpose of enforcing of private right of parties. In other words, it is a mere remedial public law. The jurisdiction of the High Courts under Article 226 can be invoked only in furtherance of justice ex debito justitiae and not in the interest of injustice. Mr. Mitter further contended that the High Courts acting under the extra-ordinary jurisdiction conferred by Article 226 cannot be converted to ordinary Court of Law. 59. Mr. Mitter next contended that the instant writ petition under Article 226 of the Constitution of India is for enforcement of fundamental rights guaranteed under Part III of the Constitution of India and the said petition cannot be transferred to the said Tribunal which has no jurisdiction to entertain, try and hear the said petition. The Administrative Tribunal cannot exercise the power and jurisdiction of the High Court under Article 226. Mr. Mitter claimed and asserted that the jurisdiction of the High Courts cannot be amended. The expression “person aggrieved” under s.19 of the said Act implies that the said aggrieved employee who makes an application must be one having enforceable legal right. Rights that can be enforced shall be individual rights of the application of the High Courts under Article 226 of the Constitution and the jurisdiction of the Tribunal under the said Act. Under Article 226, it is not specific of any person being aggrieved at all but confers powers on the High Court to issue specific writs for the enforcement of fundamental rights for any others purpose, whereas the powers of the Tribunal although equated to those of the High Courts under s. 14 are nevertheless confined to specific matter and not plenary in nature. Barring rights like quo warranto infringement of some legal right or breach of some legal interest in hearing the petitioner is necessarily given the locus standi in the matter. It is flexible enough to take in those cases where the applicant has been adversely affected by an act or action of authority even though he has no proprietary or financial interest in such subject matter. To operate any incidental case even when a stranger or person who are not a party to the proceeding have on circumstances genuine interest in the subject matter will be covered by this Rule. 60. Section 20 refers inter alia to the provisions of s. 19 which specially lays down that applicants should avail of all the remedies available to them under the service rules as to redressal of grievance before approaching the Tribunal. Section 22 postulates that the order passed shall be executed in the same manner in which the impugned order would have been executed. This provision demonstrates that writs in the nature of quo warranto at the instance of a stranger, that is, a person who is not himself a candidate for the office in question, cannot be in any way contemplated under the said Act although relief in the nature of quo warranto can also be given in the said Act against the holder of the office and be also applicable equally to the person aggrieved. Similarly, if quasi-judicial authority acts in excess of jurisdiction and without jurisdiction, relief can be had before the Hon,ble High Court under Article 226 by writ of or in the nature of Prohibition. But such relief cannot be otherwise available to an applicant without exhausting the remedies as provided in the service Rules and he cannot make an application in terms of or in accordance with s. 20 of the said Act. 61. Mr. Mitter further highlighted that jurisdiction for challenging the service rules and acts stands excluded by s. 20 of the said Act, inasmuch as the Tribunal can be otherwise approached only for relief against an order under a statutory provision. A challenge against the statutory provision under the said Act even before the order has been issued in pursuance thereof affecting the applicant shall be premature or of an academic nature. A challenge against the statutory provision under the said Act even before the order has been issued in pursuance thereof affecting the applicant shall be premature or of an academic nature. It is well settled that petition under Article 226 of the Constitution of India can be filed when the fundamental rights are threatened and he need not wait till the actual threat has been carried out. The applicant cannot invoke the jurisdiction of the Tribunal on the ground that his fundamental rights are threatened. 62. The last contention of Mr. Mitter is that Article 323A of the Constitution in any event does oat authorise the Parliament to make any law in supersession or in any way affecting the jurisdiction of Court under Article 226 of the Constitution of India. In the event it is contended and held that administrative tribunal abridges Article 226 of the Constitution of India, the Same shall be beyond the legislative competence of the Parliament, the same being repugnant to Article 226 or the Constitution of India. 63. In support of the contention, Mr. Mitter referred to drastic amendment of Article 226 of the Constitution of India effected by the 42nd Amendment. By the 42nd Amendment, attempts have been made to take away the jurisdiction of the High Court to a great extent Similarly, Article 226 of the Constitution was restored to its former position by the 44th Amendment. The amendment of Article 226 in such manner and by the 42nd Amendment the jurisdiction remains unchanged by the insertion of Article 323A of the Constitution and according to Mr. Mitter, the same did not authorize Parliament to make any law affecting, abridging and/or curtailing powers of the Court under Article 226. Powers of the Supreme Court and the High may be referred to as entrenched provisions. 64. The effect of the promulgation of the said Act in absence or Article 323A of the Constitution of India makes a substantial inroad directly on the Article 226 of the Constitution of India and this cannot be done without the procedure as laid down in the proviso to Article 368 of the Constitution of India and Mr. Mitter argued the said Act is beyond the legislative competence of the Parliament. 65. Mr. Mitter argued the said Act is beyond the legislative competence of the Parliament. 65. Mr. Mitter drew the attention of the Court to the statements of objects and reasons and pointed out that Clause (3) of the said Statement of the objects and reasons contended that the said Clause (3) of the said Act high lights the basic aspect leading to such Administrative Tribunals. Mr. Mitter contended that the setting up of Administrative Tribunal would neither reduce the burdens of various Courts nor it would provide to the person aggrieved by the Industrial Tribunal speedy relief in respect of the grievance. The scope and occasion for judicial review in India had been expanded over the decades. The superior Courts are required to cope with such expansion. The population explosion did not increase awareness among the millions of their rights. In the event, order of the Tribunal is, against the person aggrieved the only remedy that is left for him is to move the Supreme Court under Article 136 and the person aggrieved can also Invoke the jurisdiction of the Supreme Court of India for the enforcement of fundamental rights. In the event, the order of Tribunal is passed against and from a distant part of the country, it is difficult for a person aggrieved to move the Supreme Court and to incur enormous expenditure which cannot be borne by the person aggrieved In view of the spiraling rise in prices and inflationary trend that prevails all over the country. A person aggrieved would be required to spend more than Rs, 15,000/- to Rs 20,000/- for the purpose of conducting the case. Speedy relief and justice will be elusive for him. Mr. Mitter submitted that all the orders of Tribunal. If challenged by the person aggrieved or by the Central Government, will be now filed before the Supreme Court and there would be alarming increase in the filing of number of cases and thereby, the amount of arrears would remain in the same position as it stands now. 66. Mr. Mr. Mitter submitted that all the orders of Tribunal. If challenged by the person aggrieved or by the Central Government, will be now filed before the Supreme Court and there would be alarming increase in the filing of number of cases and thereby, the amount of arrears would remain in the same position as it stands now. 66. Mr. Mitter submitted that in construing the enactment and determining its true scope, it is permissible to have regard to factors as can be legitimately taken into account to ascertain the intention of the legislature such as the history of the Act, the reasons which led to its being passed, the mischief which to had be cured as well as also other provisions of the Statute Replying on such factors. Mr. Mitter pointed out the prevailing circumstances which led to the passing of the said Act. Mr. Mitter further advanced his submission that while considering the provision of the said Act, the Court should adopt the rule of construction that if two constructions are possible, the Court should adopt the one which is beneficial to the persons aggrieved and the same has to be preferred 67. Mr. Somenedra Chandra Bose, Senior Advocate, appearing in support of the writ petitioner in Appeal no.2057 of 1986 vigorously opposed the preliminary objection as raised by Mr. B.N. Sen on various grounds. By raising substantial questions of Constitutional law, Mr. Bose submitted that the law made under Article 323A of the Constitution of India must satisfy Part III of the Constitution. In support of this argument, Mr. Bose contended that the question of ultra vires cannot be taken away from any clause precluding judicial review. The legislative curb on fundamental rights can be assailed by Clause 2 of Article 13 of the Constitution Law regarding privileges immunity and powers of the Legislature is subject to Article 13(2) and Article 21. It is true that having ascertained the significance in serving as a balancing wheel between the power of judicial review and constitutional development, Article 13 retains itself yet as a conscience of Part III of the Constitution. When brought into play, Article 13 has a double role. On the first hand, this Article is sheet anchor of the valid laws or any provision thereof. When brought into play, Article 13 has a double role. On the first hand, this Article is sheet anchor of the valid laws or any provision thereof. On the other hand, Article 13 is a serious curb on sentinel for the preservation of the sanctity of the Constitution, in particular Part III and for that purpose, they are found to be invalid either as committing violence on any provisions of the Part III of the Constitution or otherwise as unreasonable or ultra vires. According to Mr. Bose, the said Act does not satisfy Part III of the Constitution are sought to be curtailed by the same. The said Act is a serious inroad into the judicial review to be exercisable by the High Court. 68. The next contention of Mr. Bose is focused on the words “subject to the provisions of the Constitution”, as appearing in both the Articles 245 and 246. In support of this contention Mr. Bose referred to the judgments in Secretary of State v. Mask A 1940 Privy Council 105 and the judgment of Vine v. National Dock Labour Board (1956) 3 AER 939 and also the judgment of Dhulabhai v. State of M.P.A. 1969 SC 78. Mr. Bose further contended that the very object of Article 245(1) is to distribute the legislative powers between. Union and State Legislature and not to exempt them from any of the limitation which has been imposed by the other provisions of the Constitution upon legislative power. Both the Union and the State Legislature have their powers limited by various checks and curbs, one of which is fundamental rights guaranteed by Part III of the Constitution, even where the legislation enacted in pursuance of directive principles. 69. Mr. Bose further highlighted the powers of the High Court under Article 226 of the Constitution of India. Applying Articles 245 and 246 of the Constitution of India, Mr. Bose contended that the powers of the High Courts under Article 226 of the Constitution of India cannot be restricted by legislation. When the legislature without amending laws directs the pending cases shall be disposed of in a particular manner or the grievances of person aggrieved to be decided in a particular manner, that would be an encroachment on judicial power and thereby very existence of the judiciary is otherwise affected. 70. When the legislature without amending laws directs the pending cases shall be disposed of in a particular manner or the grievances of person aggrieved to be decided in a particular manner, that would be an encroachment on judicial power and thereby very existence of the judiciary is otherwise affected. 70. He further submitted that the said Act stultifies the judicial review which is exercised by the High Court in respect of the service matters. The exclusion of judicial review would constitute serious inroad into the right of the citizen, as otherwise available to them under Article 226 of the Constitution of India for enforcement of fundamental rights. The said Act has passed over the fundamental right and thereby, it has become an excess of legislative authority. Article 323A, it is chimed and contended by Mr. Bose is not self-executive provision, but the same is enabling provision, inasmuch as it is not the intention of the Parliament to cover the whole field in regard to Administrative Tribunals Articles 323A of the Constitution according to Mr. Bose does not create the administrative Tribunal and accordingly, the said Act ousting the writ jurisdiction of the High Courts is fatally flawed. 71. The said Act according to Mr. Bose is not a part of the Constitution and the jurisdiction of the High Court under Article 226 of the Constitution of India remains unaffected by the said Act. Mr. Bose, in extension of the contentions, urged that the said Act is not part of the Constitution. By virtue of the promulgation of the said Act, the Tribunal cannot declare the provisions of the said Act to be ultra vires. He further advanced his sub-missions that Tribunal being a Creature of statute cannot declare any provision of the said Act either void or unconstitutional. 72. Mr. Bose next contended that the object of Article 228 of the Constitution of India is to make the High Courts the sole interpreter of the Constitution in a State and to deny to the subordinate Courts the right to interpret the Constitution for the sake of attaining some degree of uniformity as regards constitutional decisions. 72. Mr. Bose next contended that the object of Article 228 of the Constitution of India is to make the High Courts the sole interpreter of the Constitution in a State and to deny to the subordinate Courts the right to interpret the Constitution for the sake of attaining some degree of uniformity as regards constitutional decisions. The High Courts under Article 228 has the power and jurisdiction to withdraw a case either disposing the case itself and determine the question of law and return the case to the Court only when a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case. Mr. Bose also relied on s. 113 of the Code of Civil Procedure and contended that where any court is satisfied that a case pending before it involves the question as to the validity of any Act, Ordinance and Regulation or of any provision contained in a case the determination of which is necessary for disposal of a case, is of opinion that such Act, or Regulation or provision is invalid or inoperative, but has not been so declared by the High Court, may refer the same for the opinion of the High Court and the High Court may make such order thereon as it thinks fit. 73. Relying on the aforesaid Article 228 of the Constitution and s. 113 of the Code of Civil Procedure as indicated above, Mr. Bose re-inforced his submission that the issues involved in the present case cannot be otherwise decided by the Tribunal and it can only be done in exercise of the powers as conferred under Article 226 of the Constitution of India. The said Act, according to Mr. Bose, would affect abridgment of the relief which can be granted by Article 226 of the Constitution of India. The curtailment of area of jurisdiction of the High Court under the said Act directly affects Article 226 of the Constitution of India. The said Act, according to Mr. Bose, would affect abridgment of the relief which can be granted by Article 226 of the Constitution of India. The curtailment of area of jurisdiction of the High Court under the said Act directly affects Article 226 of the Constitution of India. He referred to Clause (b) of the Proviso to Article 368(a) of the Constitution of India, which reads thus : “368 (1) Notwithstanding anything in this Constitution, Parliament and may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each house by a majority of the total member-ship of that House and by a majority of not lees than two-thirds or the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the term of the Bill. Provided that if such amendment seeks to make any change in –– (a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part Xl, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the president for assent (3) Nothing in Article 13 shall apply to any amendment made under this article. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of s. 55 of the Constitution (42nd Amendment) Act, 1976 shall be called in question in any court on any ground. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of s. 55 of the Constitution (42nd Amendment) Act, 1976 shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article”. 74. Mr. Bose refers to ss. 37, 38, and 40 of the 42nd Constitutional Amendment Act. The aforesaid sections correspond to Articles 225, 226 and 227 of the Constitution of India and he sought to highlight the basic contentions that the jurisdiction as conferred upon the High Courts under Articles 225, 226 and 227 were amended by the amendment affected in the Constitution Without the amendment of Articles 225, 226 and 227 of the Constitution by reference to Clause (P) of the Proviso to Article 368 the power of the High Courts under the aforesaid Articles Cannot be affected and Mr. Bose further proceeded in support of his contention that the drastic amendment in respect of the aforesaid three Articles was subsequently restored to its former position by 44th Amendment and from the said Amendment, it would be clear that by a legislative enactment, the jurisdiction of the High Court under the aforesaid three Articles cannot be taken away. He further proceeded with a view to sustain his contention by reliance on the judgments of the Hon’ble Supreme Court of India, viz. M/s. Tilockchand Motichand and others v. H.B. Munshi AIR 1970 SC 898 , Custodian, Evacuee Property, Punjab v. Jafran Begaum AIR 1968 SC 169 , Dayah Committee, Ajmer v. Syed Hussain Ali & others AIR 1961 SC 1402 , Uman Keshao Meshram & others v. Smt. Radhikabai & another AIR 1986 SC 1272 . 75. Mr. Bose while advancing submissions on reach, width and sweep of Article 226 of the Constitution of India, led emphasis on the powers of the Chartered High Courts to issue high prerogative writs. The Constitution makers, according to Mr. 75. Mr. Bose while advancing submissions on reach, width and sweep of Article 226 of the Constitution of India, led emphasis on the powers of the Chartered High Courts to issue high prerogative writs. The Constitution makers, according to Mr. Bose, intended to confer enlarged power under Article 226 upon all High Courts Articles 226, 227 and 228 of the Constitution of India are not subject to any law to be made by the appropriate Legislature and thereby the said Articles ale beyond the reach of the Parliament and the State Legislature with the result that jurisdiction conferred by these Articles call only be curtailed and excluded with rested to any mailer by Constitutional amendment to be effected in the Article itself. Tribunal, according to Mr. Bose, created by and under the said Act, has a very limited jurisdiction, compared to the wide amphatude of powers, under the Supreme Court under Article 32 and High Courts under Article 226. Mr. Bose while advancing argument about power and jurisdiction of the Supreme Court and the High Courts to issue writs laid emphasis on sub-article (3) of Article 32 of the Constitution which enables the Parliament to empower any court other than the Supreme Court to issue writs mentioned in clause (2) for the purpose of fundamental rights. Other clauses referred to Courts other then High Courts such as subordinate Court or Courts, if established under Article 23 of the Constitution. Tribunal being the creature of Statute Cannot otherwise entertain an application when a person aggrieved invokes the jurisdiction of the Tribunal against threats, injury or against any inaction of the Government authorities which in Fact results in broach of Articles 14, 16 and 300A of the Constitution of India. 76. The order as contemplated under ss. Tribunal being the creature of Statute Cannot otherwise entertain an application when a person aggrieved invokes the jurisdiction of the Tribunal against threats, injury or against any inaction of the Government authorities which in Fact results in broach of Articles 14, 16 and 300A of the Constitution of India. 76. The order as contemplated under ss. 19 and 20 of the said Act curtails the right of a Government servant who in the event of any action or non-action resulting in breach of the provisions of the Statute and grievous injury in violation of the rules of natural justice is entitled to invoke the writ jurisdiction of the High Court on various grounds, namely, the absence of jurisdiction, the proceeding infected with nullity, violation of rules of natural justice and absence of fairness on the part of the Authority in respect of the service matters Sections 19 and 20 of the said Act have curtailed and/or abridged the right of the Government servant to move the Tribunal for redressal of such grievances. The provisions of the said Act do not afford such efficacious and speedy remedy as are available to the holder of a Civil Post or employees engaged in the Corporation or in the Society which come within the purview of Article 12 of the Constitution of India Apart from the above, Mr. Bose proceeded to assail the incompetence of the Tribunal to declare any Act of the Legislature and the rules framed thereunder to be ultra vires. In the order and/or instructions of the President in respect of the service matters which acquire force of Article 309 of the Constitution of India are also not open to interference by the said tribunal. After elaborately detailing the limited jurisdiction, the Tribunal, Mr. Bose pinpointed that the Tribunal, a creature of statutes, cannot travel beyond the provisions of the said Act, thereby the power exercisable by the High Courts under Article 226 of the Constitution of India cannot be exercised by the Tribunal. Mr. Bose made a comparative analysis of Article 226 of the Constitution of India as on the date when the Constitution came into force and subsequently, amendments made in Article 226 as it stands today. Mr. Bose made a comparative analysis of Article 226 of the Constitution of India as on the date when the Constitution came into force and subsequently, amendments made in Article 226 as it stands today. “226 (1) Notwithstanding anything in Article 32, every High Court shall have the power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority of the residence of such person is not within those territories. (3) Whore any party, against whom an interim order, whether by way of Injunction or stay or In any other manner, or In any proceedings relating to, a petition under clause (1), without –– (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim older; and (b) giving such party an opportunity of being heard, is made, makes an application to the High Court for the vacation of such order and furnishes a copy or such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open ; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32”. Mr. Bose thereafter proceeded with interpretation of the Constitution and referred to the Rule. There is no constitutional amendment effected in Article 226 Mr. Bose referred to various decisions in support of the contention that the proceedings engrafted in the said Act does not include the writ proceedings. Mr. Bose strongly relied on the Doctrine of Reading down with special reference to the decisions in M/s K.S. Venkataraman & Co. (P) Ltd. v. State of Madras AIR 1966 SC 1089 , Hindu Woman’s Rights to Property Act AIR 1941 Federal Court 72 and State of Karnataka & another v. Ranganatha Reddy & Another AIR 1978 SC 215 . 77. In support of the Rule of Reading down, Mr. Bose submitted that sometimes to keep the Act within the limits of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain persons or in certain circumstances or for certain purposes only, even though the language expresses no such circumscription of the field of operation. 78. In Gujarat Steel Tubes v. Mazdoor Sabha AIR 1980 SC 1896 , the Hon’ble Supreme Court observed that “Statutory construction which fulfils the mandate of the statute must find favour with the judges except when the words and context prevail against such flexibility. We would prefer to be liberal rather than lexical when reading the meaning of industrial development which develops from day to day in the growing economy of India.” While interpreting the rules relating to seniority and promotion in medical services, the Court observed that the construction which makes the rule otiose or unworkable should be avoided when two constructions are possible and the court should be in favour of the construction which would make the Rule workable and further the purpose for which the rule is intended 79. Mr. Mr. Bose while laying stress on the Rule of Reading down, further contended that it seems impossible to suppose that so material a change in the constitutional powers, i.e. jurisdiction under Article 226 of the Constitution of India, was intended to be affected by a side wind, as is manifest in the said Act which cannot emasculate the constitutional right of the citizens to move the High Court for enforcement of their fundamental rights or for any other purpose. 80. It is held in Katner v. Phillips (1891) 2 QB Page 267 that it cannot be assumed that the Constitution has given with one hand what it has take away with another. The word ‘jurisdiction’ is to be construed at the expenses of cherished rights of Government servants entrenched in Part III of the Constitution of India. Mr. Bose laid emphasis on the judgment/decision of the Hon’ble Supreme Court of India in the case of Bhim Singhji v. Union of India in which Krishna Iyer j. observed that reading down meaning of words with loose lexical amplitude is permissible as part of the judicial process 81. It is held by the Hon’ble Supreme Court in the decision of State of Karnataka v. V.S. Reghunatha Reddy : reported in AIR 1978 SC 215 that “At the end we may also indicate that under sub-s. (6) of s. 19 all sums deducted by the State Government under sub-s. (3) of s. 10 which include the sums payable to the secured creditors stand transferred to the Corporation which is obliged to credit the same transferred to the appropriate funds. The said provision would take within its ambit the liability of the corporation to pay forthwith the sum found due to the secured creditors. Since we have upheld the constitutional validity of the Act on merits by repealing the attack on it by a reasonable and harmonious construction of the Act we do not consider it necessary to express any opinion with reference to Art. 31C read with viz. (b) and (c) of Article 39 of the Constitution. Our learned brother Krishna Iyer J. has prepared a separate judgment specially dealing with his point. We must not be understood to agree with all that he has said in his judgment in this regard”. 82. The word ‘jurisdiction’ in service matter is to be construed liberally. (b) and (c) of Article 39 of the Constitution. Our learned brother Krishna Iyer J. has prepared a separate judgment specially dealing with his point. We must not be understood to agree with all that he has said in his judgment in this regard”. 82. The word ‘jurisdiction’ in service matter is to be construed liberally. Service matter in terms of and in the context of the provisions contained in the said Act has restricted and limited meaning inasmuch as service matter as understood on the basis of well settled principles enunciated by the Hon’ble Supreme Court of India as also by different High Courts, embraces broadest sweep of threatened injury caused to the Government servants, inaction of the Government authorities culmination inro grievous violation of Articles 14, 16, 21, 300A, 309 and 311 which cannot be otherwise gone into by Tribunal. Therefore, there is no exclusion of the jurisdiction of the High Court under Article 226 of the Constitution of India to hear and decide the case of the nature and kind which is beyond the pale of adjudication by Tribunal inasmuch as exclusion by s. 29 of the said Act does not affect the extraordinary and special jurisdiction exercised by the High Courts under Article 226. Enforcement of Part III by High Court is constitutional and legal assurance to the nation by constituent assembly and other assurances having been enacted upon. Moreover what has been excluded by s. 28 of the said Act is that it has been conferred on Tribunal by s. 14 of the said Act. Effect of such exclusion does not confer power/jurisdiction upon the Tribunal to issue writ of prohibition, quo warranto and other writs. 83. Mr. Bose firmly asserted that the jurisdiction of High Courts under Article 226 is not otherwise excluded by Article 323A (3) of the Constitution Mr. Effect of such exclusion does not confer power/jurisdiction upon the Tribunal to issue writ of prohibition, quo warranto and other writs. 83. Mr. Bose firmly asserted that the jurisdiction of High Courts under Article 226 is not otherwise excluded by Article 323A (3) of the Constitution Mr. Bose in support of his contention referred to the judgment of Supreme Court in Mohinder Singh v. Chief Election Officer AIR 1978 SC page 851 Paragraph 9 of the said judgment, while dealing with Article 329(b) of the Representation of the Peoples’ Act refers to Article 226 in a very passing manner : “We must in limine state that anticipating our decision on the blanket ban on litigative interferences during the process of the election clamped down by Art. 329(b) of the Constitution, we do not propose to enquire into or pronounce upon the factual complex or the lesser legal tangles, but only narrate the necessary circumstances of the case to get a hang of the major issues which we intend adjudicating. Moreover, the scope of any factual investigation in the event of contravention in any petition under Art. 226 is ordinarily limited and we have before us an appeal from the High Court dismissing a petition under Article 226 on the score that such a proceeding is constitutionally out of bounds for any court, having regard to the mandatory embargo in Article 329. We should not, except in exceptional circumstances, breach the recognized, though not inflexible boundaries of Article 226 sitting in appeal even assuming the maintainability of such a petition. Indeed, we should have expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self contradicting its own holding that it has no jurisdiction even to entertain the petition” 84. Mr. Sen while resisting the preliminary objections raised by both Mr. Mitter and Mr. Bose, reiterated that both the learned Judges were incompetent to exercise jurisdiction under Article 226 over the service matters as impugned in the writ petitions and they had no jurisdiction to deliver judgment after 12th May, 1986 by reason of s. 29 of the said Act which applies in its full force to the writ proceedings. Writ proceeding, accordings to Mr. Writ proceeding, accordings to Mr. Sen, was a pending proceeding and therefore, the same was liable to be transferred to Administrative Tribunal. Mr. Sen in support of his contention placed strong reliance on the judgments of Delbut Evens Davies & Want reported in 1945(2) All.ER page 167 In Re : Clagett’s Estate, Fordham v. Clagett (1982) 20 6h D 637 at page 653. 85. While dealing with the pending proceedings as used in s. 29 of the said Act, Mr. Sen laid emphasis on the Stroud’s Judicial Dictionary’ (IVth Edition) Page 1975. 86. Various decisions and different enactments as cited therein, according to Mr. Sen, would support the stand taken by him. Both the cases of the writ petitioner were not concluded and were pending before the learned Judges even on 12.5.1986. Mr. Sen elaborately explained that both the writ petitions were not concluded on 12.5.1986 and judgments were admittedly delivered after 12th May, 1986. That being so, it is asserted by Mr. Sen, that the learned Judges ceased to have any jurisdiction over the matters and ought not to have proceeded further as while delivering the judgment, the jurisdiction of the High Court under Article 226 stood excluded reference was also made by Mr. Sen to cases viz. Gulabchand v. Kuldipalal AIR 1951 SC 503 ; Jivanji v. Hossain 47 I.C. page 771. 87. Mr. Sen while referring to the aforesaid decisions urged that the judgments of both the learned judges were wholly without jurisdiction and the decisions cited in both the judgments do not have any manner of application in the facts and circumstances of the case. Pending proceeding is to be construed and considered entirely on the following basis : i) The date of hearing of the application ; ii) The date of the conclusion of the hearing ; iii) The date of the order of the Court ; If the judgment is reserved and the date of delivery of the judgment 88. Mr. Sen placed reliance on the order sheets of both the writ proceedings and from a reference to the said order sheets, he sought to justify his contention that in both the writ proceedings the hearings before both the learned Judge not being over on or about 12th May, 1986. Mr. Sen placed reliance on the order sheets of both the writ proceedings and from a reference to the said order sheets, he sought to justify his contention that in both the writ proceedings the hearings before both the learned Judge not being over on or about 12th May, 1986. There was no escape for the conclusion the both the proceedings were admittedly heard after the appointed day namely, 12th May 1986 and on that date, the Court did not have jurisdiction to hear and decide the application. 89. The Government servants in spite of the establishment of the Tribunal are entitled to invoke the jurisdiction of the Supreme Court under Article 32 of the Constitution of India Article 32 is itself for fundamental right and that being so, the enforceability of the fundamental rights is guaranteed by Article 32 Mr. Sen sought to make a distinction between Article 32(1) and (2) and Article 226 of the Constitution of India. 90. Right to move the High Court to enforce fundamental right to itself guaranteed and there is no similar right to approach the High Court under Article 226 even in respect of fundamental rights. Under Article 32 of the Constitution of India, Supreme Court is the protector and guarantor of fundamental rights and it cannot refuse to entertain an application for enforcement of fundamental right on the ground that the applicant should have first approached the High Court. 91. Sub-clause (3) of Article 32 empowers the Parliament without prejudice to the powers conferred upon Supreme Court by clauses (1) and (2), by law to exercise within the local limits of its jurisdiction any or all the powers exercisable by the Supreme Court under Clause (2). 92. Article 226 of the Constitution does not offer guarantee to the citizens in regard to the right to move the High Court even in respect of fundamental rights. Article 32(2) authorises the Parliament to empower any other Court to exercise within the local limits or jurisdiction any or all the powers of the Supreme Court Article 323A according to Mr. Sen, does not curtail the power of the High Courts in any manner whatsoever. He referred to the judgment of the Hon’ble Supreme Court reported in AIR 1980 SC 1275 Harjeet Singh v. Union of India. Sen, does not curtail the power of the High Courts in any manner whatsoever. He referred to the judgment of the Hon’ble Supreme Court reported in AIR 1980 SC 1275 Harjeet Singh v. Union of India. By the said judgment, the Hon’ble Supreme Court held : “In these appeals we have once again to consider conscious competing claims to seniority which appear so much to dominate the lives and careers of our Civil servants that a large bulk of the cases in this Court relate to the resolution of problems arising out of such claims. So much of our time is taken up in discovering the precise facts of these intricate problems that we wonder whether the constitution of a fact finding Administrative Tribunal who should invariably be approached in the first instance, will not better serve the cause of successful administration. An Administrative Tribunal possessing the necessary expertise and familiarity with administrative procedures and rules may be able to deal with the problems in a satisfactory way. At least the facts will be bound and the relevant rules will be known. Thereafter aggrieved parties may approach the Court for further relief within the confines of Articles 226 and 32 of the Constitution”. 93. While relying on the relevant provisions including s. 22 of the said Act, Mr. Sen submitted that the Tribunal has ample power to determine the legal rights and in support of the said contention, strong reliance is placed on the decision reported in AIR 1971 SC page 1245, Ramendra Narayan Sinha v. State of West Bengal & ors. where the Hon’ble Supreme Court held that s. 9 of Regulation XIX of 1866 dose not exclude the jurisdiction of the Civil Courts for revenue separately assessed in respect of ferry which is assumed and has been compulsorily acquired. 94. The case reported in AIR 1977 page 1466 State of Madhya Pradesh v. State of Maharastra decides that the Civil Court has power to determine the legal rights of a Civil servant to ask for arrear salary in 1949 Suit. 94. The case reported in AIR 1977 page 1466 State of Madhya Pradesh v. State of Maharastra decides that the Civil Court has power to determine the legal rights of a Civil servant to ask for arrear salary in 1949 Suit. The Hon’ble Supreme Court did not accept the contention that the plaintiff would claim salary in the 1956 suit and held that the State of Madhya Pradesh has no right “in contending that the plaintiff is barred by the provisions contained in Order 2 Rule 2 of the Civil Procedure Code in asking for arrear salary in the year 1956 suit”. 95. Mr. Sen placed reliance on the States Reorganisation Act, 1956 (hereinafter the said Act) and the provisions contained in ss. 49, 50, 51 and 54 of the said Act. In support of the contention that the High Court immediately prior to the appointed date exercising jurisdiction in relation to the existing State, was deemed to be the High Court for the new State Abolition of certain courts as contained in s.50 provides for abolition of High Courts of all existing Part B States, except Jammu and Kashmir and the Courts of the Judicial Commissioners for Ajmer, Bhopal, Kutch and Vindya Pradesh shall cease to function and sub-s. (2) of s. 50 provides that nothing in sub-s. (1) shall prejudice or affect the continued operation of any notice served, injunction issued, direction given or proceedings taken before the appointed day by way of the courts abolished by the sub-sections under the powers then conferred upon that court. 96. Section 51 of the said Act provides for principal seat and other places of sitting of High Courts in new States. 97. Section 54 deals with practice and procedure of the said Act and provides that subject to the provisions of this Part, the law in force immediately prior to the appointed date with respect to practice and procedure in the High Court for the corresponding State Rule made by the High Courts under s. 122 is subordinate legislation and it will be governed by s. 19 and not by s. 54. Jurisdiction of the High Court can be changed by an Act of the Parliament and for that purpose, reference is made to Article 214 of the Constitution. Mr. Sen further referred to the scope of Article 214 of the Constitution. Jurisdiction of the High Court can be changed by an Act of the Parliament and for that purpose, reference is made to Article 214 of the Constitution. Mr. Sen further referred to the scope of Article 214 of the Constitution. The said Article states that each of the States in the first Schedule shall have High Court within the meaning of Article 366 which defines High Court Article 214 is to be read subject to that in Article 231(1) of the Constitution as amended in 1968 which confers power to establish High Court in two or more States. Amendment of the Constitution as contained in Article 368 of the Constitution prescribes the procedures for amendment. Article 323A of the Constitution has been inserted in the Constitution by 42 Amendment after procedures as contained in Article 368 were duly complied with Article 323A of the Constitutions, according to Mr. Sen, is independent of other provisions of the Constitution, After the insertion of Article 323A of the Constitution, the jurisdiction of the High Court under Article 226 in respect of service matters is thus excluded and that exclusion is effected by the said insertion of Article 323A of the Constitution followed by passing of the said Act by the Parliament. 98. Mr. Sen claimed and contended that the Tribunal being an effective substitute of the High Court had all the powers to decide all the questions including those involving those involving the constitutional validity or of such laws grievously violating Articles 14 and 16(1) of the Constitution. 99. Before examination of the rival contention of the learned Counsel appearing for the parties on the question of pending proceeding it is to be seen what is the meaning of the word ‘pending’ reference may be made to the Legal Thesaurus (Regular Edition) by William C Burton, as follows : – “Pending (unresolved), adjective in a state of uncertainty, in abeyance, in question indefinite, indeterminate, open to discussion, open to question, in question indefinite, indeterminate, open to discussion, open to question, still in debate, suspenseful, unascertained, uncertain, unclear, unconcluded, undecided, under consideration, undermined, unfixed, unsettled, unsolved.” 100. To associate the concept of pending proceeding has been considered in various decisions as stated at the bar. The decision in case of Salty Cooper (1880) 16, Ch. To associate the concept of pending proceeding has been considered in various decisions as stated at the bar. The decision in case of Salty Cooper (1880) 16, Ch. D 544, C A, per Jessel, M.R. at p. 551 inter alia reads as under : “A cause is still pending within the Judicature Act 1873, s. 24(7) (repealed : see now Supreme Court of Judicature (Consolidation) Act 1925) even though there has been final judgment given, and the Court has very large powers in dealing with a judgment until it is fully satisfied. It may stay proceedings on the judgment, either wholly or partially, and the cause is still pending, therefore, for this purpose, as it appears to me, and must be considered as pending, although there may have been final judgment given in the action, provided that judgment has not been satisfied.” 101. The decision in case of Delbert – Evan v. Davies & Weston (1945) 2 ALL. ER 167 D.C. per Humphreys, J. at pp 172, 173 inter alia reads as follows : “There is ample authority for saying that during the time between the conviction of an accused person on indictment and his appeal to the Court of Criminal Appeal the case is not ended at all ; the case is still sub judice. The case is pending, to use the expression which has been used in many cases and in many judgments, and the publication of improper matter may amount to contempt of Court… Newspapers which choose to publish comments upon a criminal case while it is still pending and a criminal case is still pending while the time for appealing has not run out at least, and most assuredly in the case of a man who is appealing or proposing to appeal if they choose to comment on the facts of the case other than upon matters which have been given in evidence in open court they do so at their peril”. 102. The pending proceeding will ordinarily mean that the matter is not concluded. In Lt Col. S.R. Kashyap v State of Rajasthan, AIR 1971 SC 1120 at p 1128, it has been held that the word ‘pending’ will ordinarily mean that the matter is not concluded and the Court which has cognizance of it Can make an order on the matter in issue. In Lt Col. S.R. Kashyap v State of Rajasthan, AIR 1971 SC 1120 at p 1128, it has been held that the word ‘pending’ will ordinarily mean that the matter is not concluded and the Court which has cognizance of it Can make an order on the matter in issue. The test is whether any proceedings can be taken in the cause before the Court or Tribunal where it is said to be pending. The answer is that until the case is concluded, it is pending. 103. In Asgarali Nazarali Singaporiwalla v. State of Bombay (1957) 59 Bom LR 917 at page 924 ; AIR 1957 SC 503 , it has been held by the Hon'ble Supreme Court that a proceeding is pending as soon as commenced and until it is concluded, that is so long as the Court having original cognizance of it can make an order on the matters in issue or to be dealt with therein. A cause is said to be pending in a Court of justice when any proceeding can be taken in it, or it is to be dealt with. 104. According to the contention of Mr. Mitter, the word ‘pending’ proceeding has no fixed meaning. It has to be considered and examined. It is to he construed in the light of the provision of the said Act. The Contention of Mr. Mitter is to be considered in the context of s. 29 of the said Act. 105. Sub-section (2) and sub s. (4) of s. 29 provide that every suit or other proceeding pending before a Court or other authority immediately before the date with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation being a suit or proceeding a suit or proceeding, the cause of action whereon it is based is such that it would have been, if had arisen after the said date, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal. 106. Sub-section (4) of s. 29 further provides where any suit, appeal or other proceeding stands transferred from any Court or other authority to a Tribunal under sub-s. (1) or sub s. (2), the Court or other authority, shall, as soon as may be after such transfer, forward the records of such suit, appeal or other proceeding to the said Tribunal. 107. 107. The words ‘stand transferred’ mean that transfer being automatic, the Tribunal is to deal with the matter in terms and in accordance with s. 29(4) (a) (b) of the said Act. Effect of s. 29 on the pending proceeding is now to be considered. It is well settled that legislature lays down the law, the judiciary interprets that law and applies it to disputes between parties. The law laid down by the Legislature may, as already stated, affect vested rights even in pending cases. The judiciary is not competent to question the law unless it is unconstitutional and must apply it to the facts of the case brought before it for decision. The rights of the parties in a pending action may be altered by the law, with the result that while a party was entitled to succeed if the law was applicable at the commencement of the action were to be applied, he may be defeated by change of the law during the pendency of the action. The courts in such a case will have to apply the law as amended by the Legislature. What the Legislature cannot do is to decide cases itself, for instance it cannot say that a particular case of class of cases “is hereby dismissed”. Similarly, the Tribunal is faced with the question as to whether to hear the case de novo or to proceed further from the stage which was already reached in the case. There is nothing in law to prevent the Legislature from so altering the rights of the parties as to make it incumbent upon the judiciary to decide a case in a particular way as intended by the Legislature. 108. The learned Judge in Civil Order no 3845 of 1985 while dealing with various contention, of the parties held that the word “pending case” does not and cannot be construed in such manner which shall have the effect of ousting the jurisdiction of the High Court from delivering the judgment and concluding the case. While reaching his conclusion the learned Court in the aforesaid Civil Order duly considered fundamental principles underlying the root of this matter. While reaching his conclusion the learned Court in the aforesaid Civil Order duly considered fundamental principles underlying the root of this matter. According to the learned Judge pending proceedings would be construed liberally and after taking into account, the statements and objects or reason of the Act leading to the establishment of the Tribunal and after elaborately dealt with the effect of pending proceeding in the context of different situations which may be summarized hereafter. 109. The learned Court in the aforesaid Civil Order held that in order to eliminate unnecessary and uncalled for hardship to the litigants and in the absence of any specific provisions for debaring the Court from pronouncing a judgment either in Article 323A of under the provisions of the said Act, the power of the Court to deliver judgment in respect of matters which were finally heard long before the appointed date had not been suspended or taken away. There may be cases where hearing was concluded and ordering portion was dictated in the court and reference are reserved as done by this Court. 110. In a particular case, it may be so, when the High Court had started delivering the judgment which had not been concluded at the end of the day and on the next morning such a Notification was issued taking away the jurisdiction of the Court, in the event the Tribunal had to complete the judgment or, in the alternative, had to hear de novo and in that case, the declared object of the Act, namely, speedy relief to litigant would be completely frustrated and made nugatory and that such interpretation of s. 29 of the said Act could not be given by any stretch of imagination. 111. Proposition given in the case as would appear hereinabove, merits deaper consideration of this Court inasmuch as the ordering portion of the Judgment is pronounced in Court. The proceedings cannot be treated as pending by reason of the established procedure of different High Courts and the Supreme Court that the ordering portion of the judgment is delivered in a very important matter and reasons are kept reserved. The proceedings ceased to remain pending and the party by the said ordering portion of the judgment may come up before the Appellate Court against the said order of the Court. The proceedings ceased to remain pending and the party by the said ordering portion of the judgment may come up before the Appellate Court against the said order of the Court. The said limit thus protects the right of the party because aggrieved party would then be in a position to vindicate his rights by preferring an appeal against the said order. The proposition, therefore, does not come within the ambit of pending proceedings. We agree with such situation where the ordering portion of the judgment is made ; but the reasons are reserved. The proceedings stand terminated so far that Court is concerned and after that, the matter cannot be treated as pending and s. 29(4)(a) read with proviso to sub-s. (1) of s. 29 of the said Act would not be made applicable in such situation of the present nature. While agreeing with the view of the learned Judge confined to the aforesaid position, we are not unmindful of the decisions as referred to by the learned Judges as follows : Clawson International Ltd. v. Paperwork Waldhof Aschaffeburg A.C. reported in ((975) 1 all E.R. 910 at page 815 ; Eddis v. Chichester Constable, reported in (1969) 2 All E.R. 912 which applies in facts situations as indicated above or appearing there against. 112. The Court does not legislate ; In a given case which involves interpretation of the statute the Court may be justified in observing that every provision of enactment shall receive such construction of interpretation as will secure the attainment of the object of the Act and of such provision of enactment according to its true intent, meaning and spirit. While viewing such ambiguity, contrary construction or interpretation giving rise to the unreasonable result, the Court may apply the principle as laid down in Eddis v. Chichester Constable, reported in (1969) 2 All ER 912. The other provision by virtue of the reason reaching us in respect of the finding of the learned Judge, Civil Order cannot be sustained and accordingly, we hold that in view of the fact that hearing of the writ petitions in Civil Order no. 3845(W) of 1985 and Civil Order no. 1720(W) of 1986 was not concluded before 12th May 1986, the same would come within the ambit of s. 29(4)(a) of the said Act. The contention of Mr. 3845(W) of 1985 and Civil Order no. 1720(W) of 1986 was not concluded before 12th May 1986, the same would come within the ambit of s. 29(4)(a) of the said Act. The contention of Mr. Sen as regards the transfer of pending proceedings in terms of s. 29(4) (a) excepting the preposition duly fortified with various decisions as cited by him, cannot but be accepted and hold that both the writ petitions were pending. 113. We now turn to the fundamental objections raised by the learned Counsel for the parties the contention of Mr. Sen, by reason of the said Act and the Notification dated 2nd May, 1986, the High Court creased to have any jurisdiction in respect of the service matters which are to be exercisable by the Tribunal from the date on 2nd May, 1986. The contention of Mr. Sen is seriously opposed by the learned Counsel appearing for the writ petitioner in both the appeal on various grounds mentioned earlier. 114. The learned Judge while considering the contention of Mr. Mitra that pending proceeding within the meaning of the said Act, cannot mean the proceeding hearing of which has been concluded, since s. 29(4)(b) indicates that the Tribunal has the option in respect of the transferred proceeding to proceed from the stage which was reached before the Court and that the expression “as the case may be” has not been used at the end of s. (29(4)(b) and as such, the proceedings must be such as would give the Tribunal option to proceed with the case from the stage reached before the transfer and the case hearing of which has been concluded as contemplated under s. 29 and is not intended to be transferred to the Tribunal, held that the crux of the problem is as to the meaning of the expression pending appearing in s. 29 of the said Act. the learned Judge while considering the said problem, further considered that the word “shall” appearing in s. 29 of the said Act and after consideration of the rival contention of the learned Counsel for the parties as to whether the word “shall” should b given mandatory meaning or directory meaning in accordance with the wish of the legislature in the facts of the case, held that after taking into consideration the statements of objects and reasons of the said Act, literal interpretation of social welfare legislation and the decisions of the Supreme Court in Workmen of American Express International Banking Corporation reported in 1985 (4) SCC 71 , Bharat Singh v. Management of New Delhi reported in AIR 1986 SC 842 and the decision of Glagate Estate : Fordham v. Glaggate (supra) and Asgar Ali Nazar Singaporewala v. State of Bombay (supra) that in the instant case, the question of taking any further step/steps would not arise, excepting the final pronouncement of the Judgment. 115. After giving our anxious consideration to the true scope and meaning of the words “pending proceedings” as would appear from the order sheets, we are unable to persuade ourselves to agree with the finding of the learned Judge that the High Courts has jurisdiction to entertain the matter any further. 116. We also find it difficult to accept the contention of Mr. Mitter that the word ‘pending’ should be construed in such a manner as to subserve the object of reasons of the said Act. It appears that the contention of Mr. Mitter lacks in force inasmuch as if the proceeding is pending on 12th May, 1986 and jurisdiction, power and authority in respect of service matters of the High Court is taken away, statutory construction of pending proceedings is otherwise merited. When the hearing of the writ petition was not concluded, the writ proceedings are to be treated as pending proceedings and the Court while examining the effect of pending proceeding appearing in s. 29(4)(b) of the said Act will not construe the said provisions in such manner as would otherwise under the ss. 14, 28 and 29, particularly s. 29(4)(b) unworkable. The Tribunal in terms of the aforesaid provisions of the said Act may process the transfer of case by picking up threads where the Court left it or from earlier stage or de novo as they may consider appropriate. 14, 28 and 29, particularly s. 29(4)(b) unworkable. The Tribunal in terms of the aforesaid provisions of the said Act may process the transfer of case by picking up threads where the Court left it or from earlier stage or de novo as they may consider appropriate. The wisdom of the Legislature is not to be x-rayed as the Hon’ble Court cannot and does not usurp the functions of the legislature. 117. On consideration of the respective contentions of the learned Counsel for the parties, it may be said that it is the preamble, more particularly, that we are to look for the reasons of or spirit of every statute, rehearsing this, as it ordinarily does, the wits sought to be remedied or the doubts purported to be removed by the Statute and so evidencing in the best and satisfactory manner object and intentions of the legislature in making or passing statute itself. Preamble is and avenue of collecting the intention to call in aid the ground and cause of making the Statute and to have recourse to the preamble which according to the celebrated English decisions may be used as guide to legislative intention. Reference may be made to the decisions of Suddex Peerage Claim (1844) 11 CI & Fin 85, at 143 ; Turquand v. Board of Trade (1886) 11 App Case 286, Powell v. Kampton Park Racecourse Co. Ltd. (1899) AC 143. It has also been observed by the Supreme Court in the case of Tribhuwan Prasad Naiyar v. Union of India, AIR 1970 SC 540 that preamble is key to open the mind of the Legislature but it cannot be used to control or qualify precise and unambiguous language of the enactment. A sixteenth Century Judge remarked that preamble is a key to open the minds of the makers of the Act and the mis-chiefs which they are intended to redress. Stowel v. Lord Zouch (1962) 1 Plod ; 75 ER 536. Pour centuries later, we find Lord Denning, MR, using almost the same language in the case of Imperial Tabacco Co. Ltd. v. A.G. (1979) 2 All ER 592 at page 600. The recital of those facts in a preamble to an Act does not amount to conclusive proof : The facts are true but sometimes prima facie evidence of them. Pour centuries later, we find Lord Denning, MR, using almost the same language in the case of Imperial Tabacco Co. Ltd. v. A.G. (1979) 2 All ER 592 at page 600. The recital of those facts in a preamble to an Act does not amount to conclusive proof : The facts are true but sometimes prima facie evidence of them. It is the responsibility of the Court to accept the purpose decided on by the Parliament although disagreeing with it. This applies where the Court considered the result unjust, provided it is satisfied that the Parliament really did intend that result. It is fundamental to our modern constitution that the judiciary owe a duty or responsibility to the Parliament. In our opinion where the intention is plain, it must be implemented, say for instance, that the particular judgment finds a policy of enactment not to personal liking which he must reasonably thrust precisely on such considerations when arriving at his decision. In Wicks v. Firth (1982) 2 All ER 9, the Court of Appeal against its inclination felt compelled to hold that s. 61(1) of the Finance Act 1976, rendered liable to tax scholarships awarded by a Company to children of its employees. Oliver L J said that “this is quite clearly the purpose and it is not for the Court to question or evaluate the social justification of the legislature.” 118. The preamble has been explained in a recent decision of the House of Lords in A.G v. H.R.H. Prince Earnest Augustus of Hanover (1957) 1 All ER 49. The decision lays “the preamble being a part of the Statute can be read along with other portions of the said Act to find out the meaning of the words in the enacting provisions as also to decide whether we are clear or ambiguous”. The said Act in the context of the said preamble and the statute and object of reasons accompanying the bill which ultimately gave rise to the insertion of Article 323A of the Constitution in pursuant of which the said Act is passed, are to be construed meaningfully. There is no doubt that the said Act is a beneficent statute it must be required to be meaningful so as to advance the object and laws by removing the lacuna and defect appearing in the same. There is no doubt that the said Act is a beneficent statute it must be required to be meaningful so as to advance the object and laws by removing the lacuna and defect appearing in the same. Our view finds sustenance from the decision in Baldev Sahai Bangia v. R.C. Bhasin (1982) 2 SCC 210 . The statement and object reasons of the said Act, n our view, cannot be used to determine the true meaning and effect of the substance of the said Act. But at the same time reference to the statement and object of reasons of the said Act is permissible for understanding the background, antecedent, state of affairs and the surrounding circumstances in relation to the statute. The background is, inter alia, regarding arrear of High Court cases which are to be reduced for social welfare and economic progress. 119. The contention of Mr. Anindya Mitter that the said Act will not, otherwise, reduce the mounting arrears for the reason that the Tribunal in the nascent stage may be in a position to cope with the present applications. With the applications that are filed after the passing of the Act, the moment the mounting arrears otherwise are placed at the disposal of the Tribunal, there is no certainty that the mounting arrears will be reduced and the concerned employees who are placed at the lowest strata of the employment would be compelled to move the Supreme Court from the distant places and thereby social welfare aspect cannot be otherwise achieved. We are not inclined to test the hypothetical situations as advanced by Mr. Mitter but at the same time, we are not oblivious of the prevailing circumstances that led to the passing of the said Act. While dealing with challenge of the writ petition the Court in our view is entitled to have regard to the surrounding circumstances which exist at the time of passing of the Statute. In any event, the facts of the case, statute and object of reasons cannot be used to determine the certain provisions of the said Act. To quote an American decision repented in Great Northern Railway Co. v. United States of America, 315 US 262 at page 267 to 273-86. In any event, the facts of the case, statute and object of reasons cannot be used to determine the certain provisions of the said Act. To quote an American decision repented in Great Northern Railway Co. v. United States of America, 315 US 262 at page 267 to 273-86. Law Edition 836, 7841, ‘we are not limited to lifeless words of the statute and Formalistic canons of construction in our search for the intention of congress find Court dealing with a statute may with propriety refer to the history of the times when it was passed. But the history and the surrounding circumstances must give way to the clear language employed in the enactment itself”. 120. Mr. Sen referred to the statement of objects and reasons accompanying the Bill and laid emphasis on paragraph 5 of the statement : “To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the Context of the socio-economic development and progress, it is considered expedient to provide for administrative and other Tribunals for dealing with such mailers while preserving the jurisdiction of the Supreme Court in regard to such mutters under Article 136 of the Constitution” 121. The notes on the relevant clause 46 lead thus : Clause 46 : This clause seeks to insert a new Part XIV A, which consists of Articles 323-A and 323B. The former provides for the setting up of Administrative Tribunals by a Parliamentary law for determining disputes relating to recruitment and conditions of service of Union Government servants and servants of the State including the employees of any local or other authority within the territory or India or under the control of the Government of India or of a corporation owned or controlled by the Government. Such law will provide for the constitution of a Tribunal for the Union and for a separate tribunal for each State or for two or more States and define the jurisdiction and powers of such Tribunals. 122. New Article 3238 provides for the creation of Tribunals for the determination of disputes, complaints and offences in respect of various matters specified therein. 122. New Article 3238 provides for the creation of Tribunals for the determination of disputes, complaints and offences in respect of various matters specified therein. 123 This Bill on being enacted was renumbered as the Forty-second Amendment of the Constitution Although many other provisions of the Forty second Amendment (which had been enacted during the Emergency) were repealed or modified by the post Parliament when the Janata party was in power, the provisions of Article 323A and 323B were left untouched. Thus, there provisions were considered salutary by all political parties and may be taken to have had the unanimous approval of the Parliament. 124. If the aforesaid statement of reasons accompanying the bill are read together with the statement of reasons of the Act, then the only inescapable conclusion would be that only the jurisdiction of the Supreme Court in regard to service matters is preserved and exclusion of jurisdiction of all courts including High Court is effected. 125. Now we have to consider bow far the statement of objects and reasons can be used to determine the moaning of certain provisions of the said Act and use thereof though it is not legitimate to refer to statement of objects and reasons as mode to the construction or ascertaining the meaning of the word “all courts”. Nevertheless, the Court may refer to the same for the limited purpose of ascertaining the condition prevailing at the time which acted upon the sponsors of the bill to introduce it. 126. It is therefore useful to read the objects and reasons relating to the clause of a bill to illuminate the idea of the law, but not to control its amplitude Inasmuch as rule of law must run close to the rule of life. It appears from the statement of objects and reasons which refers to the circumstances, namely to reduce the mounting arrears of cases of High Court and to secure speedy disposal of service matters in the context of social-economic development and progress statement therefore can be referred to for a limited purpose, that is, for ascertaining the circumstances relating to the legislation in order to find out what was the mischief which the legislators aimed at. The statement of objects and reasons cannot be used as an aid to the construction of the Statute. 127. The statement of objects and reasons cannot be used as an aid to the construction of the Statute. 127. While considering the rival contentions of the parties we are not unmindful of the ideological thrust of the Constitution and the economic orientation of the nation while considering a legislation relating to public employment scanning them for their validity to fall any understanding of the social philosophy that puts life and meaning into the provisions of the Act. We are not unmindful of the warning that the court shall not be entitled to usurp the legislative function under the disguise of interpretation and they must avoid the danger of prior determination of the meaning of provision on their preconceived notions of ideological structural schemes into which the provision is to be interpreted or somehow felted. There is no such reservation or danger of its purpose and objects if the Statute is derived from legitimate sources and the words are given interpretation which they can reasonably bear to effectuate the purpose of objects. 128. The correct interpretation is one that harmonises the words as appearing in ss. 14, 28, and 29 of the Act with the object of the Statute. A right construction of the Act, observed Lord Hand, can only be attained if its whole scope and object together with analyzing of its wording and the circumstances in which it is enacted are taken into consideration. We should interpret the preamble and the statements and objects of reasons in such manner as are germane to the said Act and its purpose. 129. We are not oblivious of the Court’s power. Interpretation is thus limited. But there should not be any faultering in exercise of power to the fullest extent within this limit when the occasion demands it. But this does not constitute warrant for the Court. They are not sitting in the third chamber of legislature or enacting the role of a law-maker, in the stage of interpretation, for an exhilaratory exhibition or judicial valour is likely to make less discipline amongst them forget contour between the judiciary and the legislature as the only safeguard against crossing the line is an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so. The Court must bear in mind the limitation of judicial control as laid down in decision of Stock v. Frank Jones (Tipton) Ltd. (1978) 1 All E.R 948 (HL) at page 953. Rules of interpretation are not the rules of law Judges have no doubt a genuine creative role but as warned by Law Lord “the Constitution’s separation of powers,, or more accurately functions, must be observed if judicial independence is not to be put at risk. For if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge’s sense of what is right (or, as SELDON put it by the length of Chancellor’s foot) confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of judges. Their power to do justice will become more restricted by law then it needs be, or is today.’ Even in the case of National Textile Workers Union v. P.R. Ramkrishan, AIR 1983 SC 75 at pages 101 and 103, Mr. Justice Venkataramaiah observed that there are well recognized limitations on the power of the Court making inroads into the legitimate domain of the Legislature. If the Legislature exceeds its power, this Court steps in. If the Executive exceeds its power, than also this Court steps in. If this Court exceeds its power, what can people do ? should they be driven to seek and amendment of the law on every such occasion ? The only proper solution is the observance of restraint by this Court in its pronouncements so that they do not go beyond its own legitimate sphere. 130. The role of the Court in dealing with the Constitutionally of legislative action should be examined in the context of the preamble of the Constitution and the directive principles. In the case of D.S. Nakara v. Union of India reported in AIR 1983 SC 130 , the Hon’ble Supreme Court held that while interpreting and examining the constitutional validity of legislative action, touchstone Directive Principles of States policy in the light of the Preamble will provide a reliable yardstick to hold one way ort the other. 131. In the recent decisions, Supreme Court has held that social welfare legislation should receive liberal and beneficial construction. In the case of Harihar Polyfibres v. Regional. 131. In the recent decisions, Supreme Court has held that social welfare legislation should receive liberal and beneficial construction. In the case of Harihar Polyfibres v. Regional. Director, ESI Corporation AIR 1984 SC 1680 : (1984) 4 SCC 324 and in the case Workmen v. Management of American Express International Barking Corporation AIR 1986 SC 458 , the Hon'ble Supreme Court held that provisions should be construed liberally and in their context. Words occurring in statutes of liberal import such as social welfare legislation and human right's legislation should be construed in the context of the colour and content of statutes. Those words or expressions should receive broad interpretation and the imposture of literal construction must be avoided It has also been held by the Supreme Court that the Court is required to take benevolent and justice oriented approach. In absence of express provision inference can be drawn in the interest of equity and justice having regard to the compelling facts and circumstances of the case. 132. The interpretation of beneficial legislation, it has now been held by the Supreme Court, in many cases, must be liberally construed. 133. Keeping in view the respective contentions of the parties and the English decisions including the decision of the Hon’ble Supreme Court, we are of the view that the legislative action should be examined in the context of the preamble of the Constitution and the directive principles and the interpretation should be in consonance with the letter and sprit of the Constitution. The provisions of the Statute along with constitutionally of the legislative action in the context of preamble and directive principles will serve as a safeguard to find out the legislative intention. On a clear reading of the provisions as contained in ss. 14, 19, 20, 28 and 29 of the said Act in the perspective as indicated above, in our view the jurisdiction of the Hon’ble Court under Article 226 of the Constitution in respect of the service matter stands excluded. 134. The next contention of Mr. Sen that the main objective of the Administrative Tribunal for dealing with the subject is not only to reduce the mounting arrears of case, but also to bring into existence the body that will deal with and dispose of the relevant subjects covering service matters effectively, is seriously opposed by Mr. Mitter. According to Mr. The next contention of Mr. Sen that the main objective of the Administrative Tribunal for dealing with the subject is not only to reduce the mounting arrears of case, but also to bring into existence the body that will deal with and dispose of the relevant subjects covering service matters effectively, is seriously opposed by Mr. Mitter. According to Mr. Mitter, the Tribunal, instead of reducing the mounting arrears of cases and the burden, will not being a position to cope with the increasing litigation explosion having fall out over the service matters. Both Mr. Mitter and Mr. Bose stressed that the said Act cannot effectively cover the area of Article 226 of the Constitution of India inasmuch as various service matters infected with incurable infirmities will be beyond the ambit of the jurisdiction of the Tribunal and thereby, the genuine grievances of the Government servants will not be effectively redressed. 135. The rival contentions of the parties on the question of jurisdiction, power and authority of the Tribunal require us to look into certain provisions of the said Act before we reach our findings on this aspect. 136. Section 19(1) of the said Act provides that the person aggrieved by an order pertaining to any matter with the jurisdiction of Tribunal may make an application to the Tribunal for the redressal of grievance Section 22(1) of the said Act, says that tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed himself of all remedies available to him under the relevant Service Rules as to redressal of the grievance. In the event, remedies to the redressal of grievances of an aggrieved person provided for under the relevant rules, regulations and orders or other instruments and arrangements as in force for the time being with respect to radressal otherwise than the said Act of any grievances in relation to such matters are availed of, it would be a bar to the sustainability of application. On a clear reading of sub-ss. (2) and (3) of s. 20 would provide an effective key to understand what is meant by the word “order” appearing in ss. On a clear reading of sub-ss. (2) and (3) of s. 20 would provide an effective key to understand what is meant by the word “order” appearing in ss. 20(2)(a) and 20(2)(b), (a) order must be final in character, (b) passed by an authority competent under the Rules to make it or (c) an appeal or representation against it has either been rejected or has remained unanswered for a period of six months. There are two stages, first, the final order in the matter by Competent Authority, secondly, also rejection of a representation or appeal against it or no action over it for a period of at least six months. 137. It is well accepted by reason of the determination of the relevant Service Rules over the decades that once a final order is made by competent authority against it, further avenues of redressal available to government servants are representation, an appeal, an application for revision or review and a petition or memorial to the President, Governor and Head of the Department. The word “representation” must be within the confines of the service rules or the administrative instructions, for example, a representation against any adverse remarks in the annual confidence of role communicated to a Government servant. Where there is no provision for any representation, an application for expunging the remarks cannot be called a representation. It is now well settled that there is no inherent right of appeal. It is the absolute creature of the statute and has to be determined in terms of the conditions indicated therein. 138. Tribunal is not precluded from entertaining an application on the ground of jurisdiction of authority in respect of departmental proceeding or any service matters. Assuming, but not admitting, if the very initiation of proceeding is vitiated by absence of jurisdiction or acting of the authority in excess of jurisdiction, the person aggrieved is required to wait till the passing of the final order. It is well settled that any proceeding or order being arbitrary to the core and without jurisdiction can be challenged before the High Court under Article 226 on the ground of absence of jurisdiction or that an action is impugned being without jurisdiction is open for interference under the writ proceeding before the High Court under Article 226. The Tribunal is an effective substitute for the High Court exorcising powers under Article 226 of the Constitution. The Tribunal is an effective substitute for the High Court exorcising powers under Article 226 of the Constitution. A person aggrieved cannot obtain redressal of his grievances from the Tribunal till he is fastened with a final order or, exhaustion of remedies. Till the final order is passed the holder of civil post or the person having acquired statutory status cannot normally invoke the jurisdiction of the High Court under Article 226 of the Constitution of India fn the exceptional circumstances, an interference under Article 226 of the Constitution of India against an ultra vires order of the incompetent authority or impugned proceedings manifestly vitiated by pronounced bias, and incurable infirmity is effected. The exceptional circumstance must be of the rarest of the rare nature which impels the conscience of the Court to interfere. Reference may be made to the decision of D.A.V. College, Bhatinda etc v. State of Punjab & Ors. reported in AIR 1971 SC 1731 .. 139. In a hypothetical case where the authority concerned, on the basis of a complaint caused an investigation to be made by the investigating agency, the allegation forming the basis or investigation even assuming to be true and correct would not make out an offence or breach of the relevant rules governing the service or conduct rule. The Government servant is entitled to challenge the investigation as being mala fide, illegal and arbitrary on the same principles as have been made applicable in the case of State of West Bengal v. Swapan Kumur reported in AIR 1982 SC 949 but cannot invoke the jurisdiction of Tribunal as no final order is passed. The Government servant is therefore required to wait till the filing of the charge sheet from the competent Magistrate and the Tribunal has got no jurisdiction to interfere with the said charge sheet and the interference can only be done by High Court under the inherent jurisdiction as is conceived by it under the provisions contained in s. 401 read with 482 of the Code of Criminal Procedure. 140. According to Ferries on Extra ordinary Legal Remedies, a person aggrieved, would come within the postulate that a person who makes an application must be one having an enforceable legal right. Right that can be enforced relates to the personal right and governing right of the applicant, himself. 140. According to Ferries on Extra ordinary Legal Remedies, a person aggrieved, would come within the postulate that a person who makes an application must be one having an enforceable legal right. Right that can be enforced relates to the personal right and governing right of the applicant, himself. Existence of the right is the very basis of the exercise of the jurisdictional object of the Court. In this connection, reference may be made to the case of Calcutta Gas Co. v. State of West Bengal AIR 1962 SC 1044 . The word ‘ordinary’ appearing in s. 19 of the said Act can be explained with reference to the decision in Calcutta Gas Co. where Subba Rao J referring to the exceptions relating to the quo-warranto, observed that the writ of the quo warranto is however relevant because right of the person holding particular civil post may be challenged even before the Tribunal. Here, distinctive feature between the jurisdiction of High Court under Article 226 of the Constitution and jurisdiction of Tribunal under the said Act would be found Article 226 docs not speak of any person aggrieved at all but confers power on the High Court to issue, specified writs for the enforcement of fundamental right and for any other purposes. Tribunal’s powers on the other hand, although equated with those of High Court, are nevertheless confined to definite and specific matters and are not omnibus in nature. The Hon'ble Supreme Court, in the recent years, widened the horizon of concept of locus-standi insofar as writ petitions involving public interest are concerned. It is thus contrary to the concept of limited jurisdiction of statutory Tribunals to apply these principles to adjudication of complaints and disputes, under the said Act. It is only to decide specific and definite disputes relating to public service Tribunal has no power to entertain an application at the instance of stranger who is not himself a candidate of the office in question Section 20 shows that the writ of relief in the nature of quo warranto can only be granted on an application of the person aggrieved and not of a stranger or private citizen, who is himself not a candidate for the office and who could not have made representation or appeal to any authority under service Rules as to redressal of grievances. 141. 141. Similarly, the Tribunal cannot otherwise entertain an application of a person aggrieved on the ground that the quasi judicial authority is admitting to exercise a power which is not given to it by the service rules which created it. Lack of such jurisdiction either total or partial, even then the Tribunal, by reason of its limited jurisdiction, cannot entertain au application challenging the proceeding at threshold as being violative of a fundamental eights guaranteed by the Constitution. In this connection reference may be made to the decisions in Ujjambai v. State of Uttar Pradesh AIR 1962 SC 1621 , Bengal Immunity Co. v. State of Bihar AIR 1955 SC 263. 142. The contention of Mr. Sen that the Tribunal shall exercise all the jurisdiction, power and authority exercisable immediately before the date by all Courts (Supreme Court) in relation to service matters, cannot but be otherwise accepted, inasmuch as the Tribunal by reason of the jurisdiction and/or the statutory powers imposed on it can act as an effective substitute of the High Court having the jurisdiction, power and authority to embark upon adjudication of all disputes touching service matters including the jurisdiction and power to decide all the questions veering round the constitutional validity or legality of such laws militating Articles 14 and 16(1) of the Constitution. The Tribunal is competent in its jurisdictional power in terms of the mandate as contained in s. 3(p), (q), (r) read with ss. 14, 19, 28 and 29 of the said Act, to decide the constitutional question relating to enforcement of the fundamental rights and ultra vires character of the Service Rules and/or Regulations. A question may arise in a given case, whether the Tribunal will determine the right of property inhered in the pensioner. In a given case, if the pensioner after retirement has a right to receive the pension in accordance with the Rules In force on the date of his retirement, is deprived of the determination of pension within a certain specific period, non-determination or fixation of the quantum of pension without any order being passed in this regard by the competent authority, does entitle a pensioner to invoke the jurisdiction of the Tribunal under ss. 14, 19 and 20 of the said Act. 14, 19 and 20 of the said Act. This is completely within the scope and ambit of the Tribunal Difference in phraseology namely ‘Court’ and ‘authority’ occurring in s. 29 of the said Act cannot be examined by the rib creature of the Statute. The Tribunal is precluded from determining the validity of the said Act under which the said Tribunal itself is created. Nor can it examine the validity of the Tribunal Act, 1985 or the Rules framed thereunder. 143. The word ‘authority’ does not appear in any of the provisions of the said Act excepting in s. 29. By the insertion of the word ‘authority’, the provision cannot be construed with a view to harmonising them with each other. 144. Departmental appellate authorities constituted under the relevant service rules as to redressal of the grievances cannot in view of s. 20 of the said Act, be meant to be referred to in this section. The controversy in question as regards this deference in phraseology, which may cause or create unwarranted unworkability, can be set at rest by pronouncement of the Supreme Court under Article 32 of the Constitution of India. 145. The said Act has therefore, the effect of protecting the constitutional guarantees afforded to a public servant in various cases of the arbitrary action of the executives. A person aggrieved is thus, not precluded from invoking the jurisdiction of the tribunal in a case where his fundamental rights in the matter of seniority, promotion are infringed and the Tribunal in such a situation, by reason of its powers on it, can entertain an application, for enforcement of rights under Part III of the Constitution. 146. Another thrust of a person aggrieved in a given case relates to recruitment. Even in the absence of statutory Rules, it is open to the Government to make recruitment and appointment in the posts through administrative instructions as is held in the decision of the Supreme Court in B.N. Nagarjun v. State of Mysore, AIR 1966 SC 1942 So, whatever be the manner of appointment, it should ensure equal opportunity to all as guaranteed under Articles 14 and 16 of the Constitution of India. If the recruitment or appointment is in breach of the Rules, it is open for challenge on the ground either through a writ in the nature of quo warranto before the High Court or the Supreme Court either under Article 226 of the Constitution or under Article 32 of the Constitution, as the case may be, or the aggrieved person may pray for a writ or order or directions in the nature of Mandamus directing the authority concerned to desist from giving effect to such appointment or recruitment. Tribunal, in a given case as indicated above, would render itself competent in such manner as is available to an applicant under Article 226 of the Constitution to strike down any unjust, unreasonable and arbitrary instruction issued in the absence of any rule framed in exercise of powers under Article 309 of the Constitution of India. Here, ordinary jurisdiction of the High Court under Article 26 of the Constitution. 147. The thrust of Mr. Sen, that by reason of sub-article (3) of Article 323A of the Constitution of India in pursuance of the said Article, the said Act is passed. The said sub article (3) shall have, notwithstanding anything in any provision of the Constitution or any other law for the time being in force, the overriding effect for sub-article (3) of Article 323A constitutes the exclusion in Article 226 of the Constitution and consequently, the High Court is precluded from entertaining any application under Article 226 of the Constitution in respect of service matters. In extension of the argument as stated above, the power of the Civil Court has also been urged and the decisions cited by Mr. Sen in support thereof have been referred to above. 148. Both Mr. Mitter and Mr. S.C. Bose the learned Advocates in their respective submissions urged that Article 323A is not a self executive provision and the salient features of Articles 225, 226 and 227 cannot be conferred upon the said Tribunal to hear applications under Article 226 and Suits and proceedings under the said Act do not cover petition under Article 226 and the High Curt has a special and exclusive jurisdiction to hear writ petitions. 149. 149. To appreciate the respective contentions of the learned Counsel appearing for the parties, it will be fruitful for us to trace the history of prerogative writs, which are as follows : –– “Processes issued upon extraordinary occasions on proper cause shown. They are the writs of procedendo, mandamus, prohibition, quo warranto, habeas corpus and certiorari” “The writ of habeas corpus and subjiciendum unlike the other writ of habeas corpus is a prerogative writ, that is to say, it is one of the extraordinary remedies known as prerogative writs, which are issued upon cause shown in cases where the ordinarily legal remedies are inapplicable or inadequate” 15. Halabury’s Laws of England, Third Edition, Volume II, also contains similar definition. The following passage from Halsbury’s Laws of England is also instructive as to the origin and meaning of prerogative writs under the English law. “Under English law, some of these writs are writ of rights and others are merely discretionary remedies. The different writs of certiorari prohibition and habeas corpus are writs of right. A Writ of Certiorari is a unit of course when the writ is applied for and on behalf of the Crown. A writ of mandamus is not a writ of right but purely a writ of discretion.” 151. Even before the present Constitution, the High Courts in the three Presidency towns of Bombay, Madras and Calcutta, had, in view of their jurisdiction inherited from the old Supreme Courts, the power to issue certain prerogative writs within the limits of the Presidency towns concerned. Reference may be made to the decision in Election Commission v. Saka Venkata Rao AIR 1953 SC 210 . The High Court of Travancore Cochin, as Court of record, had also similar power to issue prerogative writs in appropriate case (A Neelakanta Iyer v. State of Travancore Cochin, AIR 1955 Trav-Co. 46(48)). By legislative enactments, however, the power to issue the writ of mandamus and the writ of habeas corpus was taken away and in the place of such power, the three presidency High Courts were given power to issue orders under s. 45 of the Specific Relief Act, 1877 an s. 491 of the Code of Criminal Procedure, respectively. The power under s. 45 of the Specific Relief Act 1877 was only conferred on the three Presidency High Courts and was limited to the limits of the Presidency towns. The power under s. 45 of the Specific Relief Act 1877 was only conferred on the three Presidency High Courts and was limited to the limits of the Presidency towns. The Specific Relief Act, 1877, stands repealed by the Specific Relief Act, 1963, and now there is no provision in the present Act corresponding to s. 45 of the Act of 1877. The power under s. 491 of the Code of Criminal Procedure extended to all the territories within the criminal revisional jurisdiction of the High Courts. The power under s. 491 of the Criminal Procedure Code was also given to all the High Courts and not only to the Presidency High Courts. But the three Presidency High Courts continued to enjoy the power to issue the common law writs of Certiorari, prohibition and quo warranto and their power in this respect was not abolished legislative provisions. 152. As stated above, the jurisdiction to issue writ is not being confined for the first time so far as the High Courts of Madras, Bombay and Calcutta are concerned and by virtue of the jurisdiction inherited by the old Supreme Court, these High Courts before the Constitution came into force used to enjoy the power of issuing certain writs within the limit of the ordinary original jurisdiction. For example, these three High Courts as successors of the Supreme Court established in the Presidency towns of Calcutta, Madras and Bombay inherited the power to issue writs within the limit of respective Presidency towns. The power issue writ of mandamus and habeas corpus by these High Courts were subsequently taken away by the Legislative enactment and replaced by the statutory powers to issued orders under s. 45 of the Specific Relief Act and s. 491 of the Code of Criminal Procedure respectively. For history of the jurisdiction of the High Courts in the matter of issuing prerogative writs, landmark decisions are Election Commission, India v. Saka Venkata Rao AIR 1953 AC 210, Hamid Hasan v. Banwari Lal Roy, AIR 1947 PC 90 ; Ryots of Garabandho v. Zamindar of Parlakemedi AIR 1943 PC 164, Emperor v Sibnath Banerji ; AIR 1945 PC 156 : 1945 FCR 195, Mathen v. District Magistrate, Trivandrum AIR 1939 PC 213 (217) : Cri LJ 675 ; Birpal Singh v. Emperor AIR 1946 FC 2 (12), Bhailal v. Addl. Deputy, Commissioner, Akola AIR 1959 Nag 89, Jeshinghhai v. Emperor AIR 1950 Bom 363 , Dinbai Petit v. M.S. Noronha AIR 1946 Bom. 407 ; Rahshid Ahmed v. Municipal Board, Kairana AIR 1950 SC 163 . 153. The power of the Supreme Court Article 32 of the Constitution and the High Court under Article 226 of the Constitution is not confined to issues of the five prerogative writs framed in the two Articles. The judgment of the Supreme Court in Rashid Ahmed v. Municipal Board, Kairana (supra) is very instructive. The effect of the passing of the Constitution is not only to extend the power of High Court in the matter of issuing writs but conferred such powers of other High Courts. There is an extension in several ways of the powers in any manner has been enjoyed by the Presidency High Courts ; firstly the High Court has been given the power to issue writs in the nature of mandamus and habeas corpus which it did oat have before the Constitution; secondly, the power is made effective throughout the territories subject to the jurisdiction of the High Court and not only in the Presidency towns ; thirdly, the High Court has been given the power to issue not only the writ named, but other writs and directions and orders which may be appropriate in each Case Patdnjali Shastri, C J, delivering the judgment of the Supreme Court Election Commission of India v. Saka Venkata Rao (supra) traced the history of the writ jurisdiction of the High Court and the historical background of the powers of the High Court under Article 226 of Constitution of India and observed : “Turning now to the question as to the powers of the High Court under Art, 226, it will be noticed that Art 226 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the Constitution. Though there had been some conflict of judicial opinion on the point, it was authoritatively decided by the Privy Council in Ryots of Garabandho v. Zeminder of Parlakimedi that the High Court of Madras, the High Courts of Bombay and Calcutta were in the same position and had no power to issue what were known as high prerogative writs beyond the local limits of its original civil successor of the Supreme Court which had been exercising jurisdiction over the Presidency town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all. In that situation, the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set-up, which they called Fundamental Rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and finding that that the prerogative writs, which the Courts in England had developed and used whenever necessity demanded immediate and decisive interpretation, were peculiarly suited for the purpose, they conferred, in the States’ sphere, new and wide powers on the High Courts of issuing directions, or writs primarily for the enforcement of fundamental rights, the power to issue such directions for any other purpose being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King’s Bench in England. 154. Under Art. 226, it is expressly provided that subject to the provisions of the Constitution and the provisions of any law that may be made by the appropriate legislature, the jurisdiction and powers of the existing High Courts shall continue to be the same even after the Constitution, and this clearly shows that in the case of the three Presidency High Courts, they continue to have their pre-constitution powers in the matter of issuing writs as indicated in K.S. Rashid & Son v. Income tax Investigation Commission AIR 1954 SC 207 . 155. Article 226 being engrafted in the written Constitution of India merits the construction which is most beneficial to the wider possible amplitude of the powers conferred by it. The Article is not confined to final orders only and the jurisdiction under it can be exercised even in respect of interlocutory orders. 155. Article 226 being engrafted in the written Constitution of India merits the construction which is most beneficial to the wider possible amplitude of the powers conferred by it. The Article is not confined to final orders only and the jurisdiction under it can be exercised even in respect of interlocutory orders. The powers under Article 226 of the Constitution of India are of an extraordinary nature to be resorted to in exceptional cases of an urgent nature, where the adequate relief cannot be got otherwise. Extraordinary original jurisdiction is vested in the High Court. 156. For the purpose of securing the law of the land implicitly obeyed, the Tribunals and public authorities are kept within the bounds of their jurisdiction. In any event, it is the remedy in public law that the jurisdiction of the High Court under Article 226 of the Constitution can be invoked only in furtherance of justice ex debitio rustitiae. 157. Article 226 is wider in scope than Article 32, for enforcement of fundamental rights and legal rights. Apart from the above, where there is no question of the grievous breach of the fundamental right and the attack on the constitutionality of a law is based on some other ground, any person who is affected by the law in such a way as to give him real interest in impugning the validity, can apply to the High Court under Article 226 for the protection of his rights, although he is not directly affected by the law. The contentions of Mr. Bose, cannot be sustained in view of the limitations imposed upon the High Courts under s. 113 of the Code of Civil Procedure. Any Court under s. 113 of the Code may state a case and refer the same for opinion of the High Court and the High Court may make such order there on as it thinks fit. Bose, cannot be sustained in view of the limitations imposed upon the High Courts under s. 113 of the Code of Civil Procedure. Any Court under s. 113 of the Code may state a case and refer the same for opinion of the High Court and the High Court may make such order there on as it thinks fit. Provided that where the Court is satisfied that a pending case involves a question as to the validity of any Act, Ordinance, Regulation or any provisions contained in any Act, Ordinance or regulation, the determination of which is necessary for the disposal of the case and is of opinion that such Act, Ordinance, Regulation or provision is invalid or in-operative but has not been so declared by the High Court to which the Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore and refer the same for opinion of the High Court. 158. Article 228 provides for transfer of certain cases to the High Court The said Article reads thus :–– “228. If the High Court is satisfied that a case pending in a court sub-ordinate to it involve a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may– (a) either dispose of the case itself, or (b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment”. 159. The Tribunal set up under the said Act which is passed pursuant to Article 323A of the Constitution, not being a Court, does not in our view come within the ambit or Article 228 of the Constitution of India. Mr. Bose’s submission cannot be accepted. 160. The object of Article 226 makes the High Court the sole interpreter of the Constitution and deny the subordinate Courts the right to interpret the Constitution for the sake of attaining some degree of uniformity as regards constitutional decisions 161. Mr. Bose’s submission cannot be accepted. 160. The object of Article 226 makes the High Court the sole interpreter of the Constitution and deny the subordinate Courts the right to interpret the Constitution for the sake of attaining some degree of uniformity as regards constitutional decisions 161. Turning back to the rival contentions or the learned counsel as to whether the Article 323A is a self-executing provision or enabling provision we are required to examine this controversy. A constitutional provision is self-executing if it affords a sufficient rule by means of which the right which it accords may be availed of and guarded or the duty which it imposes may be enforced without the aid of legislative enactment. 162. Constitutional provisions are self-executing, if there is a manifest intention that they should go into effect forthwith and no ancillary statute is warranted for the enjoyment of a right granted or enforcement of a duty imposed. Constitutional provisions the not self-executing if they merely indicate a line of policy or principles, without furnishing the means by which such policy or principle are to be carried into effect, or if the language age of the Constitution is directed to the Legislature or it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect. It is within the competence and power of those who adopt a Court authority to make some of its provisions self-extending with the object d placing it beyond the power of the Legislature to render such provisions nugatory by refusing to pass law to carry them into effect In support of the above, references may be made to the decisions in Davies v. Burke 179 US 399. 163. In determining when a constitutional provision is self-executing there is a distinction between a declarative limitation of legislative power on a given subject, within which legislation may or should be enacted, and positive constitutional inhibition which no legislative Act can modify. It is settled rule of constitutional construction that prohibitive and restrictive provisions are self-executing and may be enforced by the Courts independently of any legislative action, unless it clearly appears from a construction of the language of the entire provision and the circumstances of its adoption that the enactment of the legislation was contemplated as requisite to put it into effect. The scope and purpose of such provisions may not be restricted by adverse legislation and all statutes then be rendered nul and void. Legislation, however, may be desirable and valuable for the purpose of enforcing the constitutional provisions, as for example, by providing a penalty for their violation and statutes for the purpose are void. If a constitutional provision directed the Parliament to pass legislation, it is not self-executing. 164. Article 323A of the Constitution is to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest. There is strong presumption in favour of its being mandatory. The legislature is duty bound to perform all duties imposed on it by the Constitution Article 323A provides for passing of an Act for the establishment of the Tribunal and the Parliament passed the said Act as required by the Constitutional provisions as contained under Article 323A of the Constitution. 165. We find ourselves in agreement with Mr. Sen that the Article 323A is an absolute enactment and that the said Act permitted by Article 323A is lawful inasmuch as the conditions laid down by the said Article stand duly obeyed and fulfilled substantially. In view of the above, the contention advanced by both Mr. Bose and Mr. Mitter cannot be accepted. 166. The normal feature of an enabling Act is first to grant the power to make rules in general terms and to carry out the purpose of the Act and that is to say that in particular and without prejudice to the generality of the foregoing provision, such rules may empower. The power is conferred to make Rules in general terms the particularisation of the topic is construed as merely illustrative and does not impose limitations upon the scope of the general power. This principle was broadly applied by the Privy Council in Emperor v Shibnath Banerju (supra). It was held that Rule 26 of the Defence of India Rules, 1939, which prima facie was in excess and the express power conferred by s. 26 of the Defence of India Act, 1939, therefore, was valid. But even a general power to make rules and the regulations for carrying out or giving effect to the Act is strictly of ancillary nature and cannot enable the authority on whom the power conferred to extend the scope of general operation of law. But even a general power to make rules and the regulations for carrying out or giving effect to the Act is strictly of ancillary nature and cannot enable the authority on whom the power conferred to extend the scope of general operation of law. Such a power, therefore, “will not” support attempts to widen the purpose of the Act to different means to carrying the amount to depart from or vary in terms. This view finds support in Shanaham v. Scott. (1957) 96 CLR 245, which was subsequently approved in Utah Construction v. Pataky (1965) 3 All ER 650 (PC) 653. 167. The Hon'ble Supreme Court held Venkatewara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 , while dealing with Panchayat Act and had to consider the effect of enabling provisions. In a Panchayat Act it was held that Panchayat Act vested this power establishing Primary Health Centre in Panchayat samity, the State Government can not under its power to make Rules for carrying out the purposes of the Act, take upon itself the power to establish Primary Health Centre. In the decisions of A.G. for Canada v. Hallet & Carry Ltd. (1952) AC 427 (PC) 444, 445, 450, the Privy Council on a challenge to the validity of the order held that in view of the recital of the Preamble, it was not open to the Court to hold that the order was made for a different purpose or what was declared to be necessary was not entered for the purposes mentioned and that on order in this form leaves no room for any judicial enquiry which may sometimes be undertaken if the recitals be ambiguous. The said judgment is very much instructive as it shows an order will be susceptible to challenge on the grounds briefly indicated below :–– (a) Bad faith, that is to say that “powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorised or actually forbidden ; (b) that “the order” shows on the face of it a misconstruction of the enabling Act or a failure to comply with the conditions which that Act has prescribed for the exercise of its power; (c) that the order is not capable of being to one of the prescribed 168. When power to make Rules is not conferred in general terms to carry out the purpose of Act, but is limited to a particular topic, Rule made, will have to be justified within the ambit of those topics otherwise it will be held inoperative. A challenge was thrown against the Rule making power conferred by s. 27 of the Bihar Money Lending Act, 1938. Fundamental issue in controversy was with regard to the Rule making power conferred and as to whether s. 27 of the Bihar Money Lending Act, 1938, to prescribe the form of registration certificate and the particulars to be included in an application made for the purpose of being registered as a money lender does or does not empower the making of any Rule fixing the upper limit upto which the loans advanced by money lending are to remain outstanding at any particular moment of time. 169. The determination of the Supreme Court was in the negative and to the extent that there is no such power. The Act passed in pursuance of Article 323A circumscribe, the jurisdiction of the Tribunal as would appear from as 14(1), 28 and 29 of the said Act. Now the Tribunal shall admit an application challenging an invasion upon the fundamental right of the Government servant. The said Act does not suffer from limitation to such an extent as was pinpointed by Mr. Mitter. 170. There is a legislative competency for overriding the Article 226 of the Constitution of India Article 323A is, however, competent because the excess provision of Article 323(2d) conferring competency in that behalf of Parliament, the exclusion of jurisdiction of the High Court under Article 226 of the Constitution in respect of the matters covered by the said Act cannot be said to be ultra vires legislative power of the Parliament, but the exclusion of jurisdiction of the High Court under Article 226 of the Constitution over the service matter is effected. 171. Apart from the said exception as indicated hereinbefore, the exclusion of jurisdiction of the High Court in respect of service matters is total and absolute. The exceptions as effectively and materially detailed herein before do not come within the ambit of the special jurisdiction of the Tribunal, as because the Tribunal is a creature of the Statute. 171. Apart from the said exception as indicated hereinbefore, the exclusion of jurisdiction of the High Court in respect of service matters is total and absolute. The exceptions as effectively and materially detailed herein before do not come within the ambit of the special jurisdiction of the Tribunal, as because the Tribunal is a creature of the Statute. It is also to be borne in mind that the Constitution has conferred wide and special jurisdiction upon the Tribunal. There is nothing in the said Act to preclude or debar the Tribunal from exercising the validity of service Rule determining the condition of service of person as mentioned in s. 14 of the said Act. Despite such wide jurisdiction or power or authority reserved to the Tribunal, the power or the jurisdiction of the High Court in respect of the said exceptions presenting hypothetical situations is excluded. 172. Mr. Anindya Mitter, and Mr. Somen Bose, the Learned Advocates for the writ petitioner, urged that the Tribunal has no authority, jurisdiction and power to issue writs which can only be issued by the High Court under Article 226 of the Constitution. Mr. Sen joined the issue on this aspect of issuance of writs. Mr. Sen referred to s. 27 of the said Act. Section 27 of the Administrative Tribunals Act, 1985 reads as follows : “227. Execution of orders of a Tribunal – subject to the other provisions of this Act and the rules, the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any court (including a High Court) and such order shall be executed in the same manner in which any final order of the nature referred to in clause (a) of sub-s. (2) of s. 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed.” 173. The Section provides for execution of orders. It lays down that the order shall be executed in the same manner in which the order would have been executed. It is therefore, patent that the order of the Tribunal would be put into execution, carried out or implemented in the same manner as the order of the authority would itself have been implemented. The use or the word ‘execution’ according to Mr. It is therefore, patent that the order of the Tribunal would be put into execution, carried out or implemented in the same manner as the order of the authority would itself have been implemented. The use or the word ‘execution’ according to Mr. Sen is very significant. Therefore the legal intention which derives sustenance from the constitutional provisions as contained in Article 323A for compliance with the order of the Tribunal may not be similar to that of the writ or order or direction issued by the High Court under Article 226 or by the Hon'ble Supreme Court under Article 32. 174. Apart from the above, Mr. Sen submitted that the Tribunal having a wide and special jurisdiction to determine the questions of constitutionality, any service rule or challenge against the invasion upon the fundamental right of government servant is further conferred with power under s. 17 of the said Act, which empowers the Tribunal to deal with the matter of contempt. We are of the view that Mr. Sen is justified in referring to s. 27 of the said Act. 175. Since the jurisdiction of the Tribunal stands extended to the adjudication of the question relating to the contravention of Articles 14 and 16 of the Constitution, any relief that would be given by the Tribunal on a finding which must record. will be in the form of older and the relief will be same as that would be made by the High Court in the exercise of power and jurisdiction under Article 226 of the Constitution. It is, therefore, immaterial whether the Tribunal is empowered to grant/issue writs or not : the form of the relief may be in case of a Tribunal in the same form of order which will naturally and obviously have to be implemented and carried out by all the authorities concerned whereas in case of High Court it will in the form of a Writ of Mandamus directing the authorities to set aside, cancel and withdraw the impugned action and order and bring it in accordance with law declared by the High Court. It is very pertinent to refer that the High Court itself cannot issue writs unless the creation of the order in the nature of writ itself is decided Simply because a form of an order in the nature of writ is issued by the High Court and somewhat similar or different form of order which the Tribunal will pass in exercise of power under s. 14 of the said Act. it does not mean that the Tribunals is lacking jurisdiction to decide all the questions which may come up for determination in a petition which would otherwise have been decided by the High Court under Article 226 of the Constitution. 176. We are, therefore, unable to accept the contention of Mr. Bose and Mr. Mitter and we find ourselves in agreement with the contentious of Mr. Sen. 177. During the course of argument, it was made clear to the learned Counsel appearing for the parties that this Court will not embark upon the challenge based on basis structure of the Constitution and the deputation thereof, on the ground that such question “pending determination” before the Hon’ble Supreme Court of India in Sampatial Case (supra) cannot be and should not be gone into by the High Court, but the learned Counsel advanced the contention that the judicial review is the foundation of the Rule of law. To appreciate what is judicial review, one should bear in mind Justice Marshall’s opinion in Mulbery v. Mallison 5 US (Crench) 123 2 LED 60 which is an exquisite demonstration of a tour de force in argumentation. He makes it appear that the logic requires judicial review in a Governmental system in which written constitution is the Supreme Law. The constitution vests the judicial power of the United States in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. Implicit in his argument is an assumption made explicit by the Court subsequently that the judicial power to initiate cases carries with it certain other necessary inherent powers. What Marshall does effectively in Malbury v. Madison (supra) is to make it clear that the judicial power of review must be such as and herent power. He wrote : “It is emphatically the province and duty of the judicial department to say what the law is. What Marshall does effectively in Malbury v. Madison (supra) is to make it clear that the judicial power of review must be such as and herent power. He wrote : “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law in opposition to the constitution : If both the law and the constitution apply to a particular cause, so that the Court must either decide that case conformably to the law disregarding the constitution or conformably to the Constitution, disregarding the law ; the Court must determine which of these conflicting rules govern the case. This is the very essence of judicial duty.” 178. A famous statement by Justice Holmes seems particularly insightful. He wrote : “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void I do not think the Union would be imperiled if we could not make the declaration as to the laws of the several states. It is important to study the constitutional interpretation to understand the distinction between “judicial power” and “jurisdiction” “jurisdiction” is the authority of a court to exercise “judicial power” in a particular case. It is necessary to find the current controversy over judicial review. For that purpose, the relevant material is helpful and culled from the passage from “Constitutional Interpretation” Cases Essays Materials by Harold W. Chase and Craig R Ducat. “Today for example, some, Like Chief Justice Burger and Justice Rehnquist believe that judicial review should be like that shotgun behind the door – a lethal instrument to be used only in clear cut cases where other agencies of national or State government patently violate the constitution. Others like Justice Brennan and Marshall feel that with respect to the Bill of Rights and particularly the First Amendment, the Court should play a more “activist” role and be prompt to vindicate important civil liberties. In by gone days such mighty protagonists as Justice Frankfurter and Justice Douglas championed the respective positions of judicial self-restraint and judicial activism. Others like Justice Brennan and Marshall feel that with respect to the Bill of Rights and particularly the First Amendment, the Court should play a more “activist” role and be prompt to vindicate important civil liberties. In by gone days such mighty protagonists as Justice Frankfurter and Justice Douglas championed the respective positions of judicial self-restraint and judicial activism. Able and eloquent expositions of these two positions are represented in turn in Justice Frankfurter’s dissent in West Virginia State Board of Education v. Barnette (Supreme Court of the United States 1943 319 US 624 63 S Ct. 1178, 87 L.Ed. 1628 and in Justice Rutledge’s opinion for the Court should be conscious of the address of Justice Frankfurter at Cambridge, Mass, in September 1955, when commemorating the 200th Anniversary of the Birth of Chief Justice Marshall if judges want to be preachers, they should dedicate themselves to the pulpit ; If judges want to be primary shapers of policy, the legislature is their place. Self willed judges are the least defensible offenders against Government under law”. 179. Justice Frankfurter reminds us “judges are men, not disembodied spirits’ who are blind to the politial reality amongst them. Moreover, if the justices are not themselves sufficiently attuned to the times, Congress can bring reality home to them through its power over the court’s appellate jurisdiction. “Price of judicial independence (Judge Hand) concludes, is that the Judges should not have the last word in those basic conflicts of ‘right and wrong’ – between whose endless jar justice resides.” “You may ask what then will become of the fundamental principles of equity and fair play which our constitution enshrines ; and whether I seriously believe that unsupported they will serve merely as counsel of moderation. I do not know ; but this much I think I do know that a society so given that the spirit of moderation is gone, no court can save ; that a society where that spirit flourishes no court need save ; that in a society which evades its responsibility by thrusting upon the courts the nature of that spirit, that spirit in the end will perish” “This gloomy and apocalyptic view is a triumph of logic over life. It reflects the dark shadows thrown upon the judiciary by the Court – packing fight or 1937 Judge Hand is preoccupied with a syllogism. It reflects the dark shadows thrown upon the judiciary by the Court – packing fight or 1937 Judge Hand is preoccupied with a syllogism. The people and the Congress have the naked power to destroy the independence of the courts. Therefore, the courts must avoid arousing the sleeping lion by venturing to construe the broad and sweeping clauses of the Constitution which would demand the appraisal and balancing of human values which there the no scales to weigh. Presumably he would include in this catalogue of forbidden issues problems of freedom of speech, the separation of church and state, and the limits, if any, to which the capable, the shrewd or the strong should be allowed to explicit their powers” 180. Judicial review in the instant case is to be considered in the perspective of the constitutional amendment and its fallout. The Supreme Court indicated a new dimension of philosophy in a number of fundamental rights’ case including, the case of Keshavananda Bharati (supra). The Supreme Court even rejected the doctrine of unamenability of all fundamental rights and upheld the power of Parliament to amend the Constitution even conferring superior status in some of the directive principle of State policy Amending power of Parliament find only law making order of legislature may be used for bringing about, socio-economic transformation in the country and judiciary is not in obstance in bringing about such transformation. 181. Judicial process has two aspect in a written constitution ; one, to see whether the legislature has exercised its power within the restricted field laid down by the Constitution, and the other, whether the legislation is consistent with other provisions of the Constitution. The Court has nothing to do either with the policy or the wisdom of the legislature. If it ventures to enter this area, its decisions may become political find the judicial process is considered “undemocratic.” 182. 42nd Amendment includes the Tribunal in service matters and the Tribunal can be very well called a Tribunal specially authorised by the Constitution in respect of service matters and it will exercise all powers effectively and materially and thereby prevents the judicial review of the service matters from being impaired. The Tribunal will take the talk upon itself of judicial review as an effective and proper substitute for the High Court. Therefore, the contentions of Mr. Bose and Mr. The Tribunal will take the talk upon itself of judicial review as an effective and proper substitute for the High Court. Therefore, the contentions of Mr. Bose and Mr. Mitter were that the judicial review by reason of the ouster of the jurisdiction of the High Court would amount to the making of the judicial review mirage cannot be sustained and accepted. 183. 42 Amendment of the Constitution bringing in Article 323A, has specifically authorised the Parliament to provide by law of such Administrative Tribunals and that being so, the Tribunal, thus established by and under the said Act in pursuance of Article 323A, of the Constitution for all practical purposes can be termed as Constitutional Apparatus in respect of service matters. 184. It was submitted by Mr. Bose that the Tribunal cannot decide the constitutionality of laws involving the determination of fundamental rights. The laid contention of Mr. Bose, in the light of his submissions if tested in the law of s. 113 of the Code of Civil Procedure and Article 228 of the Constitution of India would also be without any force and substance. Section 113 and Article 228 of the Constitution refer to the Court, not to the Tribunal Furthermore, the Constitution-makers, before adopting Article 323A as part of the Constitution, did not overlook the effect of s. 113 of the Code of Civil Procedure and Article 228 of the Constitution of India which are confined only to the Courts and not to the Tribunal. Similarly, Article 32(3) of the Constitution refers to the Court and not to the Tribunal. The said Act has undergone amendment to the extent the power of the Hon'ble Supreme Court remains unimpaired and Tribunals also retain the power to decide and determine the validity of service rules and constitutionality of law. 185. Now, we proceed to deal with the fundamental thrust of Mr. Bose and Mr. Mitter that the jurisdiction of the High Court under Article 226 cannot be abridged, curtailed and taken away save and except by an amendment in the Constitution to that effect. The decisions cited at the Bar have no manner of application in the facts or the case inasmuch as exclusion of the High Court under Article 226 has been effected by the 42nd Amendment of the Constitution. 186. The decisions cited at the Bar have no manner of application in the facts or the case inasmuch as exclusion of the High Court under Article 226 has been effected by the 42nd Amendment of the Constitution. 186. The said Act having been passed in pursuance of Article 323A as engrafted in the Constitution by the 42nd Amendment, the exclusion of jurisdiction of the High Court by a constitutional amendment can not be assailed on the footings that the said exclusion is effected by the said Act 187. Apart from that, since we have not allowed the parties to advance the arguments on the basic structure of the Constitution on the ground of emasculation of judicial review we observe that the exclusion of the jurisdiction of the High Court is effected by the Constitution itself. 188. The concept of judicial self-restraint compels us to record the exceptions as highlighted by the Learned Counsel for the writ petitioner required us to examine the hypothetical situation. The Tribunal if occasion so demands, may decide as to whether such exceptions are within the confines of ss. 14, 28, and 29 of the said Act or the pale of jurisdiction or power of the Tribunal. 189. It ii now quite appropriate for us to deal with and dispose of the challenge of the writ petitioner as effectively and strenuously advanced by Mr. S.C. Bose and Mr. Mitter, the learned Advocates, that the jurisdiction and power of Article 226 cannot be effected by legislative enactment. It is true that power of the High Court to issue writs under Article 226 Cannot be impaired and/or affected by legislative provisions and in spite of anything contained in legislative enactment, the High Court and the Supreme Court can issue such writs, directions and orders. All the decisions cited at the Bar, in support of the contentions that the jurisdiction of the High Court to issue writs in respect of service matters remain unaffected, are distinguishable in the present case. 190. Decisions of the Supreme Court cited, deal with the challenge against the Statute which sought to effect the jurisdiction of the High Court to issue writs under Article 226. There was no challenge against the constitutional amendment authorising Parliament to set up Tribunals as the effective substitute for the High Court under Article 226. 190. Decisions of the Supreme Court cited, deal with the challenge against the Statute which sought to effect the jurisdiction of the High Court to issue writs under Article 226. There was no challenge against the constitutional amendment authorising Parliament to set up Tribunals as the effective substitute for the High Court under Article 226. To issue high prerogative writs conferred by Article 226, can be controlled by embargo and limitations on its exercise by a subsequent appropriate provision in the Constitution in that behalf. For example, under Article 329B of the Constitution, the jurisdiction of the High Court is barred with regard to entertaining any matter in regard to election which can be questioned only by an election petition under the law presented by the appropriate legislature. 191. Similarly, Article 363 operates as a bar to interference by Courts in matters arising out of treaty, agreements, which are covered by the said Article. Article 217(3) of the Constitution after its amendment in the year 1963 took away the jurisdiction of the High Court under Article 226 to determine the question of age of any High Court Judge. That amendment in the year 1963 confers original jurisdiction on the Supreme Court in matters covered by it to the exclusion of any other courts which includes the High Courts is barred in matters relating to service. Article 323A confers jurisdiction on the Tribunal in respect of service matters to the exclusion of all Courts excepting Supreme Court. The expression “all Courts” appearing in ss. 14, 28 and 29 of the Act comprises High Courts also. Under Article 131 of the Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute as specified in clause (a), (b) and (c). 192. In view of the reasonings in respect of the contentions of the learned Counsel for the parties, we give our answers, expressed hereinbefore, as summarized hereunder : (a) That the writ petitions in the present case are pending proceedings in terms of s. 29(4) (b) of the said Act ; (b) The said Act as passed in pursuance of Article 323A of the Constitution, constitutes the exclusion of all Courts except the Hon’ble Supreme Court of India and all Courts includes High Courts ; (c) That the exceptions as elaborately mentioned presenting hypothetical situations cannot be gone into by the Court. (d) That Article 323A authorise the Parliament to pass a Legislation for the establishment of highly specialised Tribunal specially empowered to deal with the service matters and the Tribunal thus established in pursuance of Article 323A of the Constitution is the only forum for the determination of service matters and order of the Tribunal is open for interference before the Hon'ble Supreme Court of India under Article 136 of the Constitution; e) Article 226 of the Constitution is not itself a guaranteed fundamental right and the 42nd Amendment does not exclude the judicial review of the service matters by the' Supreme Court and the settil1g up of a highly specialised Tribunal with a special jurisdiction cannot but be called real and effective substitute of the High Court in respect of service matters; f) Fall-out of the Constitution and s. 27 of the said Act is a most stringent provision and the same is similar to the effect of issue of writs by the High Court; g) The cases cited by the learned Counsel for the writ petitioner in support of the basic stand that the jurisdiction of Article 226 of the Constitution of India cannot be otherwise taken away, curtailed or abridged by a Statute have no manner of application in the facts of the case. h) Clear exclusion of jurisdiction of High Court under Article 226 has been effected by the 42ud Amendment Act after effective compliance of the procedure, as laid down in Article 368 of the Constitution of India and the said Act in respect of the conferment of jurisdiction upon the Tribunal to exercise all the jurisdictional powers and authority exercisable by all Courts in terms of and according to ss. 14, 28 and 29 of the said Act finds its sustenance from Article 323A of the Constitution and the said Act is founded under Article 323A of the Constitution and that being so the exclusion of jurisdiction of High Court, is absolute. i) Article 323A of the Constitution constitutionally, legitimately and statutorily exc1uded the jurisdiction of the High Court under Article 226 of the Constitution even if the jurisdiction Centers round the enforcement of fundamental rights. i) Article 323A of the Constitution constitutionally, legitimately and statutorily exc1uded the jurisdiction of the High Court under Article 226 of the Constitution even if the jurisdiction Centers round the enforcement of fundamental rights. The constituent powers authorise a law to be made to exclude the jurisdiction of all courts excepting Supreme Court and the said Act being a valid piece of legislation consequently excludes the jurisdiction of High Court in respect of disputes, grievances and complaints referred to in Clause (1) of the said Article 323A. The prohibitive sweep of the constitutional mandate therefore debars us from embarking upon adjudication of the proceedings. 193. Since we have upheld the preliminary objection of Mr. Sen, we are not required to embark upon the determination of the Appeals on merits. 194. The power of the High Court to exercise jurisdiction in respect of service matters including the subject involved in the proceeding, is excluded and the matter is now to be decided by the Tribunal under ss. 14, 28 and 29 of the said Act. 195. In view of the above, we hold that no interference can be made by the High Court in respect of promotion or the writ petitioner to the post of Central Provident Fund Commissioner or the Additional Central Provident Fund Commissioner and challenge against the charge sheet and the order of suspension. The challenge in both writ petitions is to be dealt with and disposed of by the Tribunal in terms of the mandate of the said Act as engrafted in ss. 14, 28 and 29 of the said Act. We think it fit and proper to place on record that we have expressed no opinion on the merits of the cases. 196. Appeals are thus allowed and the judgment passed by the learned Judges are set aside. There will be no order as to costs. 197. Before the curtain of the case is closed, it is necessary for us to put an epilogue in terms of the Bishop Honal Sermon reached before the King 1717 “Whosoever hath an absolute authority to interprete any, written or spoken laws, it is who is truly the lawgiver to all intents and purposes, and not the person who first spoke or write them” Roy J. I agree. Preliminary objection upheld; appeal allowed ; writ petitions to be dealt with by the Tribunal.