Research › Browse › Judgment

Madhya Pradesh High Court · body

1988 DIGILAW 163 (MP)

M. P. High Court Bar Association v. Union of India

1988-08-03

C.P.SEN, Y.B.SURYAVANSHI

body1988
ORDER C.P. Sen, J. 1. By this order, I.A. Nos. 6928/86 and 5353/88 filed by the petitioners, i. e., Bar Association of Jabalpur, praying that the Registrar of the High Court be restrained from transferring writ petitions pertaining to service matter to the State Administrative Tribunal, on the ground that in the Administrative Tribunals Act, 1985, there is no provision for transfer of writ petitions under Section 29 and the Tribunal has not been vested with powers of the High Court under Articles 226 and 227 of the Constitution, are disposed of. 2. The State Administrative Tribunal has been constituted with effect from 2-8-1988 under section 4(2) of the Act by the Government of India, as per gazette notification dated 29-6-1988. By State Government gazette notification dated 29-7-1988, the Principal Bench of the Tribunal has been specified to be at Jabalpur. The petitioners' contention is that pending servicematter writ petitions are not to be transferred and are to be tried in the High Court. When the Bench of the Central Administrative Tribunal was earlier established at Jabalpur and service writ matters concerning Central Government employees were transferred to the Central Administrative Tribu-nal, the petitioners were not aggrieved, perhaps, because the Bench of the Tribunal was established at Jabalpur and located near High Court. There-after, when the Central Government permitted the State Government to establish the State Administrative Tribunal, this petition was filed in October 1986 with an application I. A. No. 6928/86 for interim writ for restraining the Central and State Governments for establishing State Administrative Tribunal and restraining the Registrar from transferring service writ petitions concerning State Government employees. It was alleged that thousands of cases pending in the High Court have already been transferred to the Central Administrative Tribunal and if the remaining service matters are transferred to the State Administrative Tribunal, there may not be sufficient work left in the High Court. So at that stage it was not disputed that service writ petitions can be transferred under Section 29 of the Act. The ground for opposing transfer being that all the members of the Tribunal have no judicial training and the Tribunal has not been vested with writ jurisdiction. But the application for interim writ was not pressed for 2 years. So at that stage it was not disputed that service writ petitions can be transferred under Section 29 of the Act. The ground for opposing transfer being that all the members of the Tribunal have no judicial training and the Tribunal has not been vested with writ jurisdiction. But the application for interim writ was not pressed for 2 years. Instead, another writ petition was filed subsequently, expressing apprehensions that the State Administrative Tri-bunal is being established at Bhopal and it should beat Jabalpur and an interim writ was obtained. The petitioners have got the principal seat of the State Administrative Tribunal at Jabalpur but now they want that the pen-ding service writ petitions be retained in the High Court. So the petition-ers are shifting their stand from time to time and the request is unreasona-ble. 3. The learned counsel for the petitioners mainly urged that there is no provision in Section 29 of the Act for transfer of pending service writ petitions from High Court, the section speaks of transfer of evey suit and other proceedings concerning service matters and not pending service writ petitions. Reliance is placed on the Explanation to Section 141 of the Civil Procedure Code that the expression 'proceedings' does not include any pro-ceeding under Article 226 of the Constitution. As there was divergence of views as to whether Section 141 of the Code applied to proceedings under Article 226, the explanation was added by the Amending Act No. 104 of 1976. However, the expression 'proceedings' has not been defined and only writ proceedings have been taken out of the purview of Section 141. Reliance has also been placed on a D.B. decision of the Allahabad High Court in M.B. Shukla v. Union of India. 1986 (2) L.& I.C. 1034., that pending writ petitions do not get transferred under Section 29 by relying on Expla-nation to section 141 C. P. C. and because Article 226 is extraordinary remedy, a superior or prerogative jurisdiction. We are unable to see that the expression 'other proceedings' pending in any Court will not include pending service writ petitions in the High Court. If that was not to be, then the legislature would have said other proceedings pending but not writ petitioners. We are unable to see that the expression 'other proceedings' pending in any Court will not include pending service writ petitions in the High Court. If that was not to be, then the legislature would have said other proceedings pending but not writ petitioners. Sub-section (2) says that every suit and other procee-ding pending before a Court regarding service matter shall stand transferred on the appointed date to the Tribunal, but the proviso says that nothing in this sub-section shall apply to any appeal pending before the High Court: If the pending service writ petitions were not to be transferred, the proviso wo-uld have mentioned that nothing in sub-section (2) shall apply to any appeal or writ petition pending before the High Court. The decision of the Supreme Court in Dewaji v. Ganpatlal A.I.R. 1969 S. C. 560, is of no help to the petitioners that the words, 'suit or proceedings' do not ordinarily include appellate proceedings So even if the proviso to sub-section (2) was not there, yet, it could have been urged that the pending appeals in the High Court do not stand transferred. It is conceded that if the cause of action of the pending writ petitions were to arise now after the Tribunal is constituted, then these cases have to be instituted in the Tribunal and not before the High Court in writ petitions. That is what is stated in sub-section (1) of the section, Further. Section 28 enjoins that no Court, except the Supreme Court, shall have any jurisdiction, power and authority in service metiers within the purview of the Tribunal. 4. The decision in the aforesaid Allahabad case stands impliedly overr-uled by the Supreme Court in S.P. Sampath Kumar v. Union of India A. I. R. 1987 S. C. 386., where-in the Supreme Court had held that Section 28 bars the jurisdiction of the High Court under Articles 226 and 227 of the Constitution and preserves the jurisdiction and power of the Supreme Court. Obviously, therefore, the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Articles 226 and 227 is taken away and vested in the Administrative Tribunal. Obviously, therefore, the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Articles 226 and 227 is taken away and vested in the Administrative Tribunal. Article 323-A of the Constitution provides that a law made by the Parliament under clause (1) may exclude the juridicion of Courts, except the jurisdiction of the Supreme Court under Article 136 Again, the Supreme Court in J.B. Chopra v. Union of India A.I.R. 1987 S. C. 357., has further held that it accordingly follows that the Administrative Tribunal being a substitute of the High Court has the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters, including the power to deal with all questions pertaining to the constitution-al validity or otherwise of such laws as offending Articles 14 and 16(1) of the Constitution and so could strike down the impugned notification reser-ving 100 per cent vacancies to the post of Superintendent to be filled by Head Clerks, and thereby debarring stenographers from being considered. Article 323 A postulates that the Parliament may, by law, provide for adjudication or trial by Administrative Tribunal of disputes and complaints with respect to recruitment and conditions of services, i.e., all matters concerning service matters of employees of the Central and State Governments and also of any corporation owned or controlled by the Government. It is doubtful if the High Court is now left with any superintendence over the Administrative Tribunals constituted under the Act. Lastly, it was contended that the State Administrative Tribunal is not validly constituted, as there is no notification under Section 1(4) of the Act. This is without reference to the record. The petitioners themselves have filed, along with this petition, the Govern-ment of India Notification dated 31-12-1985, issued under Section 1(4) of the Administrative Tribunals Act, 1985. 5. Accordingly, I. A. Nos. 6928/86 and 5353/88 are rejected as devoid of any merit. This Court has no power to withhold pending service writ petitions, which stand transferred under Section 29(2) of the Act on 2-8-1988 to the State Administrative Tribunal.