B. K. SHADAKSHARAPPA v. STATE OF KARNATAKA — 1989 DIGILAW 378 (KAR)

M. RAMA JOIS, J. ( 1 ) IN writ petition nos. 21018 and 21019 of 1986 the petitioners, who are surgeons in the department of health and family welfare of the state government have questioned the constitutional validity of the Karnataka medical department service (recruitment) (Amendment) rules, 1986, and in writ petition nos. 21492 and 21493 of 1986, the petitioners, who are second division clerks in the revenue department of the state government, have questioned the constitutional validity of the Karnataka revenue subordinate branch services (recruitment) rules, 1977, contending that the Rules are void on the ground of being violative of Articles 14 and 16 of the constitution of India, ( 2 ) THESE matters have been referred to the division bench under section 9 of the Karnataka High Court Act, 1961. The important question which arises for consideration in these cases is: whether on the coming into force of the administrative tribunals Act, 1985 ('the act' for short) and the establishment of the stale administrative tribunal, the jurisdiction of the High Court under Article 226 of the constitution of India to retain or entertain petitions presented under that Article before it, challenging the constitutional validity of any law regulating recruitment and conditions of persons appointed to public services and posts in connection with the affairs of the stale and decide such petitions stood excluded and got vested in the state administrative tribunal? ( 3 ) THE facts and circumstances of the cases which have given rise to the above question are these : the administrative tribunals Act, 1985 (act no. 13 of 1985) was enacted by the parliament pursuant to the power given to it under Article 323-a of the constitution, which was incorporated in to the constitution by the constitution 42nd Amendment act. Under the said Act, Karnataka administrative tribunal was constituted with effect from 6-10-1986. Section 15 of the act specifies the jurisdiction, powers and authority of the slate administrative tribunal. According to the said provision jurisdiction to decide disputes relating to recruitment to any civil service of the state or to any civil post under the stale and All service matters concerning the civil servants of the state, fall exclusively within the jurisdiction of the administrative tribunal, except to the extent excepted by the provisions of the act. According to the said provision jurisdiction to decide disputes relating to recruitment to any civil service of the state or to any civil post under the stale and All service matters concerning the civil servants of the state, fall exclusively within the jurisdiction of the administrative tribunal, except to the extent excepted by the provisions of the act. Services which are excluded from the jurisdiction of the tribunal are the officers and servants of the High Court and the sub-ordinate courts including the members of the sub-ordinate judiciary and the officers and officials of the state legislature. Section 28 of the act excludes the jurisdiction of All the courts, i. e. , including the high courts except that of the supreme court, in respect of matters which fall within the jurisdiction of the administrative tribunal. It is having regard to the provisions of this Act, the question arises as to whether the jurisdiction to decide these writ petitions in which constitutional validity of service laws have been challenged, also falls within the jurisdiction of the administrative tribunal and consequently the jurisdiction of this court under Article 226 of the constitution stands ousted or whether such matters cannot and have not been excluded from the jurisdiction of this court and therefore this court continues to have the jurisdiction. This very question, except that it concerned the central administrative tribunal, was considered by this court in the case of s. m. pattanaik v secretary to government of India, reported in ilr1986 Kar. 3954. That decision was rendered on 5-11-1986. In the said case, both the learned counsel appearing for the petitioner as also the learned advocate- general appearing for the state submitted that the question should be answered in the negative. No specific stand in writing was taken by the central government. The question was considered in great detail and from various angles and was answered in the negative. The judgment was based upon the scope of Article 323-a of the constitution which gave the power to the parliament to establish administrative tribunals. The relevant portion of the judgment reads :"5. No specific stand in writing was taken by the central government. The question was considered in great detail and from various angles and was answered in the negative. The judgment was based upon the scope of Article 323-a of the constitution which gave the power to the parliament to establish administrative tribunals. The relevant portion of the judgment reads :"5. (1) before considering the contentions urged by the learned counsel appearing for the parties, it is necessary to set out the provisions of Articles 323-a and 323-b of the constitution, which were introduced into the constitution by section 46 of the constitution 42nd Amendment Act, 1976, as also to set out the salient aspects of the act. The two Articles read: administrative tribunals; 323-a (1) parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or of any state or of any local or other authority within the territory of India or under the control of the government of India or of any corporation owned or controlled by the government. (2) a law made under clause (1) may (a) provide for the establishment of an administrative tribunal for the union and a separate administrative tribunal for each state or for two or more states; (b)specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals; (c) provide for the procedure (including provisions as to limitation and Rules of evidence) to be followed by the said tribunals; (d) exclude the jurisdiction of All courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1); (e) provide for the transfer of each such administrative tribunal of any cases 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 are based had arisen after such establishment; (f) repeal or amend any order made by the president under clause (3) of Article 371-d; (g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of such tribunals. (3) the provisions of this Article shall have effect notwithstanding anything in any other provision of this constitution or in any other law for the time being in force. Tribunals for other matters : 323-b (1) the appropriate legislature may, by law, provide for the adjudicalion or trial by tribunals of any disputes, complaints, or offences with respect to All or any of the matters specified in clause (2) with respect to which such legislature has power to make laws. Tribunals for other matters : 323-b (1) the appropriate legislature may, by law, provide for the adjudicalion or trial by tribunals of any disputes, complaints, or offences with respect to All or any of the matters specified in clause (2) with respect to which such legislature has power to make laws. (2) the matters referred to in clause (1) are the following, namely, (a) levy, assessment, collection and enforcement of any tax; (b) foreign exchange, import and export across customs frontiers; (c) industrial and labour disputes; (d) land reforms by way of acquisition by the State of any estate as defined in Article 31-a or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way ; (e) ceiling on urban property; (f) election to either house of parliament or the house or either house of the legislature of a state, but excluding the matters referred to in Article 329 and Article 329-a; (g) production, procurement, supply and distribution of food stuffs (including edible oilseeds and oils) and such other goods as the president may, by public notification, declare to be essential goods for the purpose of this Article and control of prices of such goods; (h) offences against laws with respect to any of the matters specified in sub-clauses (a) to (g) and fees in respect of any of those matters; (i)any matter incidental to any of the matters specified in sub-clauses (a) to (h ). (3) a law made under clause (1) may, (a) provide for the establishment of hierarchy of tribunals; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals ; (c) provide for the procedure (including provisions as to limitation and Rules of evidence) to be followed by the said tribunals; (d)exclude the jurisdiction of All courts, except the jurisdiction of the Supreme Court under Article 136, with respect to All or any of the matters falling within the jurisdiction of the said tribunals; (e) provide for the transfer to each such tribunal of any cases pending before any court or any 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 are based had arisen after such establishment; (f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate legislature may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals. (4) the provisions of this Articles shall have effect notwithstanding anything in any other provisions of this constitution or in any other law for the time being in force. Explanation. In this article, 'appropriate legislature', in relation to any matter means parliament or, as the case may be, a state legislature competent to make laws with respect to such matter in accordance with the provisions of part xi. Article 323-a provides for the constitution of administrative tribunals for adjudicating disputes and complaints with respect to recruitment and conditions of service of civil servants of the union as well as of the states. Clause 2 (d) of the article, provides that the parliament may by such law exclude the jurisdiction of All courts except the jurisdiction of the Supreme Court under Article 136 of the constitution with respect to the disputes and complaints referred to in clause (1 ). Clause (3) provides that the Article would have effect notwithstanding any other provision in the constitution. Article 323-b provides for constitution of tribunals in respect of various matters specified in clause (2) thereof. Clause (3) provides that the Article would have effect notwithstanding any other provision in the constitution. Article 323-b provides for constitution of tribunals in respect of various matters specified in clause (2) thereof. The said clause also provides that the constitution of each of the tribunals contemplated by the Article is for adjudication of disputes, complaints or offences with respect to All or any of the matters specified in clause (2 ). Clause 3 (d) of Article 323-b provides for exclusion of jurisdiction of All courts except the jurisdiction of the Supreme Court under Article 136 with respect to All or any of the matters falling within the jurisdiction of the tribunals so constituted. Clause (4) is similar to clause (3) of Article 323-a and gives overriding effect to the article. (2) it is pursuant to the power conferred on the parliament under Article 323-a, the act has been enacted. ""section 14 of the Act, which confers jurisdiction, powers and authority on the central administrative tribunal reads : 14. Jurisdiction, powers and authority of the central administrative tribunal. (2) it is pursuant to the power conferred on the parliament under Article 323-a, the act has been enacted. ""section 14 of the Act, which confers jurisdiction, powers and authority on the central administrative tribunal reads : 14. Jurisdiction, powers and authority of the central administrative tribunal. (1) save as otherwise expressly provided in this Act, the central administrative tribunal shall exercise, on and from the appointed day, All the jurisdiction, powers and authority exercisable immediately before that day by All courts (except the supreme court) in relation to, (a) recruitment, and matters concerning recruitment, to any All India service or to any civil service of the union or a civil post under the union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian; (b)all service matters concerning : (i) a member of any All India service; or (ii) a person not being a member of an All India service or person referred to in clause fc) appointed to any civil service of the union or any civil post under the union ; or (iii) a civilian not being a member of an all-india service or a person referred to in clause (c) appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the union or of any state or of any local or other authority within the territory of India or under the control of the government of India or of any corporation or society owned or controlled by the government; (c) All service matters pertaining 10 service in connection with the affairs of the union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) or clause (b), being a person whose services have been placed by a state government or any local or other authority or any corporation or society or other body, at the disposal of the central government for such appointment. (emphasis supplied) section 15 of the act is similarly worded and specifies powers and authority of slate administrative tribunals in relation to service matters and recruitment to state civil services and posts. (emphasis supplied) section 15 of the act is similarly worded and specifies powers and authority of slate administrative tribunals in relation to service matters and recruitment to state civil services and posts. ""section 28 of the act provides for exclusion of jurisdiction of All courts except the Supreme Court under Article 136 of the constitution and section 29 provides for transfer of All pending cases before any court which falls within the jurisdiction of the tribunal under section 28 of the act. ""6. It is common ground that the answer to the question which arises for consideration in this case, depends upon the true meaning of the words 'disputes and complaints' used in Article 323-a of the constitution, for the reason that it is pursuant to the said Article the parliament has enacted the Act, providing for the establishment of administrative tribunals for the purpose of adjudication of disputes and complaints relating to recruitment and conditions of service of civil servants as clearly indicated in the preamble. Therefore, the jurisdiction, power and authority conferred on the tribunal must necessarily fall within the scope and ambit of Article 323-a of the constitution. In other words, the ambit of the expression 'service matters' defined in section 2 (r) of the act and of the jurisdiction, power and authority conferred on the tribunal under section 14 or 15 of the act and of exclusion of jurisdiction of other courts provided for under sections 28 and 29 of the act must also be ascertained only having due regard to the meaning of the words 'disputes and complaints' used in Articles 323-a of the constitution. It is also pertinent to note that the provision for exclusion of jurisdiction under clause (d) is expressly stated to be only with respect to the disputes and complaints referred to in clause (1 ). ""12. The submissions made by the learned advocate-general and the other learned counsel, raise several other important issues as are discernible from the submissions. It is also pertinent to note that the provision for exclusion of jurisdiction under clause (d) is expressly stated to be only with respect to the disputes and complaints referred to in clause (1 ). ""12. The submissions made by the learned advocate-general and the other learned counsel, raise several other important issues as are discernible from the submissions. The most important among them are: (1) whether the High Court could exercise power of superintendence over the administrative tribunal under Article 227 in view of the ratio, in the case of jugal kishore as the said power is not excluded by any of the clauses in Article 323-aas has been done under clause (7) of Article 371-d; (2) whether the administrative tribunal or its bench is bound by the law declared by the High Court within whose territorial jurisdiction it functions, in view of the ratio in the case of east India commercial company; and (3) whether section 46 of the constitution 42nd Amendment act by which Articles 323-a and 323-b were inserted into the constitution is itself invalid on the ground that it affected the basic structure of the constitution in view of the ratio in the case of keshavanand bharati. As these questions do not directly arise for consideration in this case, it is unnecessary for me to consider them. Therefore, I confine, the consideration to the question set out in the first paragraph. 13. The answer to the said question depends upon the true scope and ambit of Article 323-a, sections 14, 28 and 29 of the act. Before undertaking the interpretation of these provisions, it is necessary in the first instance to set out the basic principles of interpretation. ""5. In the case of Chief Justice of Andhra Pradesh v dikshitutu, which decision is the most apposite to this case, the question for consideration was whether the officers and servants of the High Court of Andhra Pradesh and of subordinate courts in that state falling under the exclusive control of the Chief Justice and the High Court under Articles 229 and 235 of the constitution respectively fell within the expression of 'civil servants' and therefore came within the exclusive jurisdiction conferred on the andhra administrative tribunal constituted under Article 371-d of the constitution to decide disputes relating to their conditions of service raised by them. The Supreme Court laid down the principles of interpretation applicable to such a case and interpreted the expression 'civil servants' as not including the officers and servants of the High Court and the members of judicial service and officers and servants of the subordinate courts and consequently jurisdictional bar for the High Court of Andhra Pradesh enacted in the Article must also be held to be restricted. Relevant part of the judgment reads : 63. The primary principle of interpretation is that a constitutional or statutory provision should be construed 'according to the intent of they that made it' (coke ). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meaning more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the court to go beyond the arid literal confines of the provision and to call in aid other well-recognised Rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation. 64. Where two alternative constructions are possible, the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These cannons of construction apply to the interpretation of our constitution with greater force, because the constitution is a living, integrated organism, having a soul and consciousness of its own. These cannons of construction apply to the interpretation of our constitution with greater force, because the constitution is a living, integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic framework can be felt All over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us (chandrachud, j. , as he then was) put it in keshavananda bhati's case, AIR 1973 SC 1461 , while interpreting words in a solemn document like the constitution, one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realisation that they occur in 'a single complex instrument in which one part may throw light on the other' so that the construction must hold a balance between All its parts. 62. The phrase 'civil service of the stale' remains more or less an amorphous expression as it has not been defined anywhere in the constitution. Contrasted with it, the expressions 'judicial service of the state' and 'district judge' have been specifically defined in Article 236, and thus given a distinctive, definite meaning by the constitution makers. Construed loosely, in its widest general sense, this elastic phrase can be stretched to include the 'officers and servants of the high court' as well as members of the subordinate judiciary. Understood in its strict narrow sense, in harmony with the basic constitutional scheme embodied in chapters v and vi, part vi and centralised in Articles 229 and 235 there- of the phrase will not take in High Court staff and the subordinate judiciary. 76. . . . . ARTICLE 371-d as its heading itself proclaims which derogates from the general scheme of the constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. 76. . . . . ARTICLE 371-d as its heading itself proclaims which derogates from the general scheme of the constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. Conversely, had it been the intention of parliament to include 'officers and servants of the high court' and members of the 'judicial service of the state' and of the cadre of 'district judges' in the phrase 'civil services of the state' occurring in clause (3) of Article 371-d, and thereby depart from the basic scheme of chapters iv and vi, part vi, the language commonly employed in sub- clauses should have read like this : 'class or classes of posts in the civil services of the state including posts in the 'judicial service of the state' and of 'district judges' in the state; class or classes of posts of 'officers and servants of the high court'. 77. In our opinion, non-use of the phrases 'judicial service of the state' and 'district judges' (which have been specifically defined in Article 236) and officers and servants of the high court' which has been designedly adopted in Articles 235 and 229, respectively, to differentiate them in the scheme of the constitution from the other civil services of the state, gives a clear indication that post held by the High Court staff or by the subordinate judiciary were advisedly excluded from the purview of clauses (3) of Article 371-d. The scope of the non-obstante provision in sub-article (10) which gives an overriding effect to this Article is co-ter-minous with the ambit of the preceding clauses. 78. The 'officers and servants of the high court' and the members of the judicial service, including district judges, being outside the purview of clause (3), the non-obstante provision in clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the high court, as the case may be, under Articles 229, 235 and 226 of the constitution in regard to these public servants in matters or disputes falling within the scope of the said articles. Clause (10) will prevail over any provisions of the constitution, other than those which are outside the ambit of Article 371-d, such as Articles 229 and 235. Clause (10) will prevail over any provisions of the constitution, other than those which are outside the ambit of Article 371-d, such as Articles 229 and 235. Provisions not otherwise covered by Article 371-d, cannot be brought within its sweep because of the non-obstante clause (10 ). It follows as a necessary corollary that nothing in the order of the president constituting the administrative tribunal, confers jurisdiction on the tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the subordinate judiciary. "14. Bearing in mind the above principles, we have got to construe the words 'disputes and complaints' used in Article 323-a of the constitution. Under the said article, the parliament is given the power to establish administrative tribunals for deciding disputes and complaints in respect of recruitment and conditions of service of civil servants. Clause 2 (d) of the Article enables the parliament to exclude the jurisdiction of All courts except the Supreme Court under Article 136 of the constitution with respect to the above matters. The words 'disputes and complaints' have not been defined either in the constitution or in the act. The words 'service matter is defined vide section 2 (r) of the Act, which indicates that every type of dispute or complaint which a civil servant might raise, relying on the law regulating any of his conditions of service or recruitment, would be a service matter and therefore falls within the jurisdiction of the tribunal. Neither Article 323-a nor section 2 (r), which defines 'service matter' nor section 14, 28 or 29 provide that disputes and complaints which could be raised before the tribunal would include questions relating to the constitutional validity of the law regulating the conditions of survice and recruitment of civil servants. A jurisdiction of that magnitude has to be conferred and cannot be inferred. Therefore, the very absence of a provision in Article 323-a of the constitution which enables the parliament to confer on an administrative tribunal the jurisdiction to decide the constitutional validity of the laws constitutes a strong ground to say that judicial review of legislation, which is expressly conferred on the courts established by the constitution itself, namely, the high courts and the supreme court, which was exclusive before the insertion of Article 323-a continues to be exclusive even after its insertion. As pointed out by the Supreme Court in the case of dikshitulu, if the parliament intended to include officers and servants of High Court and the subordinate courts and members of judicial service in theexpression 'civil servants' the parliament would have expressly stated so. Similarly in this case if the parliament intended that the administrative tribunal to be constituted under a law enacted by the legislature, should be invested with the jurisdiction to decide constitutional validity of the laws regulating the conditions of service, it would have used the words 'including questions relating to the constitutional validity of laws regulating recruitment and conditions of service' after the words 'disputes and complaints' used in Article 323-a of the constitution, particularly when the jurisdiction to decide the constitutional validity of All laws was vested in the High Court by virtue of Articles 226 and 228 and continued to be vested in the High Court by Article 228-a, introduced by section 42 of the 42nd Amendment itself. The very fact that such words are not included in Article 323-a (1) after the words 'disputes and complaints' takes the jurisdiction to decide the constitutional validity of the laws outside the purview of clause (1) and consequently outside the purview of the administrative tribunal constituted pursuant to a law made pursuant to the power given under the Article and therefore the exclusion of jurisdiction of the High Court which could be provided for in view of clause (d) and the overriding effect given to Article 323-a by clause (3) thereof, would not operate in respect of the jurisdiction of the High Court to decide constitutional validity of any law regulating recruitment and conditions of service. further, a careful analysis of some of the new articles, which affected the jurisdiction of the Supreme Court and the high courts and also imposed conditions on the exercise of their jurisdiction and powers, which were inserted into the constitution by the constitution 42nd Amendment Act, which brought about far reaching changes in the structure of the constitution by which Article 323-a was also inserted into the constitution, would also show that such a conclusion is correct and irresistible. Those Articles read:'32-A notwithstanding anything in Article 32, the Supreme Court shall not consider the constitutional validity of any state law in any proceedings under that Article unless the constitutional validity of any central law is also in issue in such proceedings. 131-A (1) notwithstanding anything contained in any other provision of this constitution, the Supreme Court shall, to the exclusion of any other court, have jurisdiction to determine All questions relating to the constitutional validity of any central law. 144-A (1) the minimum number of judges of the Supreme Court who shall sit for the purpose of determining any question as to the constitutional validity of any central law or state law shall be seven. (2) a central law or a state law shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two-thirds of the judges sitting for the purpose of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid. 226-A. Notwithstanding anything in Article 226, the High Court shall not consider the constitutional validity of any central law in any proceedings under that article. 228-A (1) no High Court shall have jurisdiction to declare any central law to be constitutionally invalid. (2) subject to the provisions of Article 131-a the High Court may determine All questions relating to the constitutional validity of any state law. (3) the minimum number of judges who shall sit for the purpose of determining any question as to the constitutional validity of any state law shall be five: provided that where the High Court consists of less than five judges, All the judges of the High Court may sit and determine such question. (4) a state law shall not be declared to be constitutionally invalid by the High Court unless, (a) where the High Court consists of five judges or more, not less than two-thirds of the judges sitting for the purpose of determining the validity of such law, hold it to be constitutionally invalid; and (b) where the High Court consists of less than five judges, All the judges of High Court sitting for the purpose hold it to be constitutionally invalid. (5) the provisions of this Article shall have effect notwithstanding anything contained in this part. Explanation. (5) the provisions of this Article shall have effect notwithstanding anything contained in this part. Explanation. In computing the number of judges of a High Court for the purpose of this article, a judge who is disqualified by reason of personal or pecuniary bias shall be excluded. ' the vital changes brought about by the Articles in respect of the jurisdiction of the Supreme Court and the high courts and regarding its exercise were: (1) in a petition under Article 32 of the constitution, the Supreme Court could not decide constitutional validity of the state law except in a case in which the validity of any central law was also involved. (2) in a petition under Article 226 of the constitution, the high courts had no jurisdiction to decide the constitutional validity of central laws but could decide the validity of state laws. (3) only a bench consisting of a minimum of seven judges of the Supreme Court could decide the constitutional validity of law that too only by a two-thirds majority. (4) only a bench consisting of not less than five judges of the High Court could decide the constitutional validity of law that too only by a two-thirds majority. thus, it may be seen, conditions which were not existing from the date of commencement of the constitution on the exercise of jurisdiction of the Supreme Court and of the high courts in relation to the adjudication of cases involving constitutional validity of the laws were imposed by the parliament by enacting the 42nd Amendment to the constitution. Having incorporated such conditions even on the Supreme Court and the high courts for the exercise of the jurisdiction and power to decide the constitutional validity of the laws, it is difficult, nay impossible, to agree that Articles 323-a and 323-b of the same act intended to authorise the appropriate legislature to constitute a tribunal and to confer on it the jurisdiction to decide the constitutional validity of the laws, on the topics specified in the two articles. No doubt that All the above Articles which imposed such conditions on the exercise of the power of the Supreme Court and the high courts to decide the constitutional validity of the laws, were deleted, by the constitution 43rd Amendment and thereby the status quo ante 42nd Amendment was restored. No doubt that All the above Articles which imposed such conditions on the exercise of the power of the Supreme Court and the high courts to decide the constitutional validity of the laws, were deleted, by the constitution 43rd Amendment and thereby the status quo ante 42nd Amendment was restored. However, in view of the well-settled principles of interpretation discernible from the decisions of the supreme court, extracted earlier, for the purpose of ascertaining the true scope and ambit of Articles 323-a and 323-b of the constitution, the other provisions introduced by the 42nd Amendment act as a part of single legislative scheme are relevant and they throw a flood of light on the crucial point arising for consideration and give a conclusive indication that the jurisdiction to decide constitutional validity of a law was not at All intended to be conferred on a tribunal to be constituted under a law enacted by the parliament or state legislature under Article 323-b. 15. Further, a contrary view would lead to astounding results. There can be no doubt that the power to decide constitutional validity of laws includes the power to decide as to whether an Amendment to the constitution is invalid on the ground that it affected the basic structure of the constitution. Take for instance a civil servant, who is dismissed from service, while challenging the legality of the order, by which he was dismissed, on the ground that second opportunity after the findings were recorded by the inquiring authority was not given, chooses to challenge the constitutional validity of section 44 of the 42nd Amendment act on the ground that the Amendment of Article 311 (2) deleting the requirement to give second opportunity affects the basic structure of the constitution, the tribunal constituted under the act could also decide such question, and to the exclusion of the high courts. 16. Similarly, a state legislature, in view of the provisions of Article 323-b, which is similarly worded as Article 323-a, could enact a law constituting a tribunal to decide disputes arising, inter alia under land reforms laws or taxation laws and exclude the jurisdiction of the High Court in such matters, in which event such a tribunal would also be invested with the jurisdiction to decide the constitutional validity of the provisions of such law but not the high court. Further, such a tax tribunal could also decide the validity of the 46th Amendment to the constitution by which the definition of the word 'sale' was expanded which is the subject-matter of several writ petitions before this court. Certainly such a result was not intended. 17 (1 ). Therefore, I am convinced that the interpretation placed on Article 323-a by the learned advocate-general, the learned counsel for the petitioner and other learned counsel who supported them to the effect that the exclusion of jurisdiction of All courts except the supreme court, which certainly includes high courts, by a law enacted by the parliament which could be provided for under Article 323-a (2) (d), was only in respect of matters relating to adjudication of disputes and complaints by civil servants concerning their conditions of service or recruitment as regulated by law and not in respect of the jurisdiction of high courts to decide questions of constitutional validity of any law which regulate the recruitment and conditions of service of civil servants is unexceptionable. (2) once we ascertain the true meaning and ambit of the constitutional provision, the extent of divesting of the jurisdiction of the High Court which it had under Article 226 and its conferment on the administrative tribunal, gets clearly demarcated and the high courts and the tribunal have to exercise their jurisdiction within the respective field. In this behalf, it is of utmost importance to always bear in mind that supremacy of the constitution is the very basis of our constitutional structure. This aspect is forcefully expounded by justice gajendragadkar, former Chief Justice of India, thus: 'the commission believes that in a democratic country like India which is governed by a written constitution, supremacy can be legitimately claimed only by the constitution. It is the constitution which is paramount, which is the law of laws, which confers on parliament and the state legislatures, the executive and the judiciary their respective powers, assigns to them their respective functions and prescribes limitations within which the said powers and functions can be legitimately discharged. 18. With this background, if we examine the definition of the word 'service matters' or 'matters relating to recruitment' used in the Act, the conclusion which is irresistible is that All disputes and complaints relating to service matters and recruitment, could only be disputes and complaints falling with the purview of Article 323-a of the constitution. 18. With this background, if we examine the definition of the word 'service matters' or 'matters relating to recruitment' used in the Act, the conclusion which is irresistible is that All disputes and complaints relating to service matters and recruitment, could only be disputes and complaints falling with the purview of Article 323-a of the constitution. The words used and defined in the act cannot have wider meaning than the words 'disputes and complaints' used in Article 323-a for the reason that the act is enacted in pursuance of Article 323-a and therefore the scope and ambit of the powers of the tribunal cannot be wider than the one contemplated under Article 323-a of the constitution. 19. For these reasons, after anxious and careful consideration of the matter, I answer the question set out in the first paragraph of the order, as follows: 'on the coining into force of the administrative tribunals Act, 1985, and the establishment of the central administrative tribunal the jurisdiction of the High Court under Article 226 of the constitution of India to retain or entertain petitions presented under that Article before it, challenging the constitutional validity of any law regulating recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union, and decide such petitions stand excluded and did not get vested in the central administrative tribunal. 20. 20. I must, however, add that the discussion which yielded the answer as above, itself indicates that the administrative tribunal constituted under section 4 (1) or 4 (2) of the act has exclusive jurisdiction in respect of All disputes and complaints relating to conditions of service or recruitment, raised by civil servants of the union and the concerned stale respectively within the framework of the law regulating the conditions of service and consequently the jurisdiction of the high courts in respect of such matters even under Article 226 which could be affected only by another provision in the constitution, stands denuded to that extent by the force of constitutional provision, namely, clauses 2 (d) and (3) of Article 323-a. " ( 4 ) THE substance of the above decision may be summarised thus : (i) that under Article 323-a of the constitution the parliament is given the power to make a law for the purpose of establishing a central or state administrative tribunal, for the purpose of deciding only disputes and complaints relating to service matters. Clause (d) of Article 323-a (2) empowers the parliament to exclude the jurisdiction of All courts except the Supreme Court only in respect of matters falling within the jurisdiction of Article 323-a of the constitution, namely, disputes and complaints in service matters. (ii) the administrative tribunals Act, 1985, having been enacted by the parliament, within the scope of its powers under Article 323-a, the central administrative tribunal or the state administrative tribunal established under it have only the jurisdiction to decide disputes and complaints of civil servants of the central government or of the state government, as the case may be. (ii) the administrative tribunals Act, 1985, having been enacted by the parliament, within the scope of its powers under Article 323-a, the central administrative tribunal or the state administrative tribunal established under it have only the jurisdiction to decide disputes and complaints of civil servants of the central government or of the state government, as the case may be. The expression disputes and complaints included in Article 323-a includes every possible dispute between civil servants and the state or civil servants and civil servants and the state arising either under the provisions of the constitution or in respect of matters covered by Rules framed under Article 309 of the constitution or under any act enacted by the legislature regulating conditions of service or under executive orders regulating the conditions of service when the field is not occupied by the Rules framed under Article 309 or under an act of legislature, but does not include the jurisdiction to decide the constitutional validity of the Rules framed under Article 309 of the constitution regulating conditions of service of persons serving the union or a state, by the president or the governor, as the case may be, or any act of appropriate legislature regulating the recruitment and the conditions of service of persons appointed to civil services or post under the union or the state, as the case may be, or executive orders regulating conditions of service issued, when the field is not occupied by acts of legislature of Rules framed under Article 309 proviso. (iii) Articles 228-a and 323-a were introduced into the constitution by sections 42 and 46 respectively of the 42nd Amendment of the constitution. (iii) Articles 228-a and 323-a were introduced into the constitution by sections 42 and 46 respectively of the 42nd Amendment of the constitution. A reading of these two Articles would make it clear that the intention of the parliament was that even after introduction of Article 323-a, the constitutional validity of All state laws which necessarily included service laws, was required to be decided only by a 5 judge bench of the High Court as was expressly provided in Article 228-a. Though Article 228-a was deleted subsequently by the 43rd Amendment Act, the fact remains that the two Articles constituted a single legislative scheme and the intention was the tribunals constituted under Article 323-a of the constitution would be exclusive forums for deciding disputes and complaints and questions relating to the constitutional validity of service laws did not fall within the meaning of the expression 'disputes and complaints', and consequently the jurisdiction of the high courts to decide constitutional validity of service laws was not and could not be excluded. (iv) as far as the jurisdiction to decide disputes and complaints in service matters is concerned, the tribunal is an exclusive forum to the exclusion of the high courts. ( 5 ) THE court also explained the distinction between a challenge to the constitutional validity of service laws and a challenge to any administrative order on the ground of violation of provisions of the constitution and said the former was within the exclusive jurisdiction of the high courts and the latter within the exclusive jurisdiction of the administrative tribunals. ( 6 ) THE decision rendered on 5-11-1986 has not been appealed against by the government of India, which was a respondent in the case. Therefore, it has become final as far as this court is concerned. We also reiterate the view taken therein. ( 7 ) SHORTLY thereafter, on 9-12-1986 a constitution bench of the supremecourt decided the case of sampath kumar v union of India, reported in AIR 1987 SC 386 . In the said case the constitutional validity of the administrative tribunals act was challenged on the ground that the power of judicial review conferred on the High Court by the constitution was one of the basic structures of the constitution and therefore the said power of the high courts could not be excluded and transferred to the administrative tribunal. In the said case the constitutional validity of the administrative tribunals act was challenged on the ground that the power of judicial review conferred on the High Court by the constitution was one of the basic structures of the constitution and therefore the said power of the high courts could not be excluded and transferred to the administrative tribunal. There were also subsidiary questions raised regarding the constitution of the tribunals. The four questions which arose for consideration in that case and which were formulated in the majority judgment are:" (1) judicial review is a fundamental aspect of the basic structure of our constitution and bar of the jurisdiction of the High Court under Articles 226 and 227 as contained in section 28 of the act cannot be sustained; (2) even if the bar of jurisdiction is upheld, the tribunal being a substitute of the high court, its constitution and set up should be such that it would in fact function as such substitute and become an institution in which the parties could repose faith and trust; (3) benches of the tribunal should not only be established at the seat of every High Court but should be available at every place where the high courts have permanent benches; (4) so far as tribunals set up or to be set up by the central or the state governments are concerned, they should have no jurisdiction in respect of employees of the Supreme Court or members of the subordinate judiciary and employees working in such establishments inasmuch as exercise of jurisdiction of the tribunal would interfere with the control absolutely vested in the respective high courts in regard to the judicial and other subordinate officers under Article 235 of the constitution. " ( 8 ) ON the first question both in the majority decision and in the concurrent judgment of bhagavathi, c. j. , the view taken was that in view of Article 323-a (1) of the constitution it was competent for the parliament to make an enactment conferring power of judicial review, which formed part of the power of the High Court under Articles 226 and 227 of the constitution, on the administrative tribunals and further in view of clause (d) of Article 323-a (2), it was also competent for the parliament to exclude the jurisdiction of the High Court under Articles 226 and 227 of the constitution to the extent such jurisdiction falls within the jurisdiction and powers of the tribunals constituted pursuant to a law made under Article 323-a (1 ). In other words, the Supreme Court held that in view of the express provision in the constitution under Article 323-a the conferment of power of judicial review on matters falling within the jurisdiction of Article 323-a, viz. , 'disputes and complaints in service matters' on an administrative tribunal and exclusion of jurisdiction of the high courts under Article 226, to that extent cannot be regarded as affecting the basic structure of the constitution. On questions 2 to 4 certain observations regarding constitution of the tribunals and the qualification of members of the tribunals were made with which we are not concerned in this case. ( 9 ) SHORTLY, thereafter, on 19-12-1986 a special leave petition under article136 came up before the Supreme Court in the case of b. Chopra v union of India, before a two-judge bench. One of the grounds urged in the special leave petition was that the administrative tribunal had struck down certain Rules framed under Article 309 of the constitution by the president, though the tribunal had no jurisdiction to decide the constitutional validity of the rules. The special leave petition was dismissed. The said judgment reads :"in this special leave petition a question was raised regarding the authority and jurisdiction of the central administrative tribunal constituted under the administrative tribunals Act, 1985, to strike down as constitutionally invalid a rule framed by the president of India under the proviso to Article 309 of the constitution as being violative of Articles 14 and 16 (1) of the constitution. That depends on a construction of sections 14 (1), 28 and 29 (1) of the Act, as amended, read in the light of Article 323-a of the constitution. Since the question raised was of far reaching importance we issued a notice to the learned attorney-general to appear and assist the court. We heard the learned counsel for the parties including the union of India on the question at considerable length and reserved judgment. We were later informed by the learned counsel the same question had been argued before a constitution bench and its judgment was awaited, and they requested us to defer the judgment. 2. In s. p. sampath kumar v union of India, 1986 jt (sc) 996 : AIR 1987 SC 386 , the constitution bench has held that the act is a law made by parliament under clause (1) of Article 323-a to exclude the jurisdiction of the high courts under Articles 226 and 227 pf the constitution. Section 28 of the act which bars the jurisdiction of All courts except the Supreme Court is relatable to clause 2 (d) of Article 323-a for adjudication of service matters including questions involving the validity or otherwise of such laws on the ground that they abridge the fundamental rights under Articles 14 and 16 (1) of the constitution, and that the administrative tribunal set up under section 4 of the act is a substitute of, and not supplemental to, the High Court providing an equally efficacious alternative remedy for adjudication of such disputes. It has further held that the establishment of the administrative tribunal under the act therefore takes away the jurisdiction and power of the High Court to interfere in such matters but it is not violative of the doctrine of judicial review which is a fundamental aspect of the basic structure of our constitution because section 28 of the act which bars the jurisdiction of the High Court under Articles 226 and 227 of the constitution preserves the jurisdiction and power of the Supreme Court under Articles 32 and 136 of the constitution. It accordingly follows that the administrative tribunal being a substitute of the High Court had 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 constitutional validity or otherwise of such laws as offending Articles 14 and 16 (1) of the constitution. That being so, the contention advanced by the petitioners that the administrative tribunal had no authority or jurisdiction to strike down the impugned notification dated march 15, 1980, purporting to amend rule 4 of the central hindi directorate (class iii and class iv) posts recruitment rules, 1961, reserving 100 per cent vacancies to the post of superintendent to be filled by the head clerks and thereby debarring stenographers (sr.) From being considered for promotion to that post, as being wholly mala fide, arbitrary and irrational and thus offending Articles 14 and 16 (1) of the constitution, must, therefore, fail. 3. The special leave petition is accordingly dismissed. No order as to costs. Petition dismissed. " ( 10 ) AS can be seen from the above judgment, the two-judge bench proceeded on the basis that in the case of sampath kumar the question as to whether, consequent on the coming into force of the administrative tribunals act the jurisdiction of the High Court under Article 226 to decide questions relating to the constitutional validity ofthe service laws, stood ousted from the High Court and got vested in the administrative tribunals had been decided in the affirmative and that in sampath kumar's case it was also held that the administrative tribunal was a substitute for the high court. ( 11 ) IT is the submission of the counsel appearing for the parties and thelearned advocate-general, that in the case of sampath kumar, the precise question, namely, as to whether the disputes and complaints for deciding which an administrative tribunal could be constituted by law by the parliament under Article 323-a of the constitution, includes questions relating to constitutional validity of service laws was not decided, and that the statement contained in the order of the Supreme Court in chopra's case to the effect that such a question has been decided in the affirmative in the case of sampath kumar is not supported by the judgment in sampath kumar's case. It is in these circumstances, the question which has arisen before us is whether the statement contained in the decision in chopra's case can be regarded as declaration of law. ( 12 ) AS pointed out earlier, the submission of All the learned counsel is thatthe only question decided in the case of sampath kumar was whether the act which provides for conferment of a power of judicial review in respect of matters specified in Article 323-a was unconstitutional on the ground it affected the basic structure of the constitution. That question was answered in the negative. The question whether the expression 'disputes and complaints' used in Article 323-a (1) includes question relating to constitutional validity of the service law and therefore such question also falls within the jurisdiction of the administrative tribunal and consequently stands excluded from the jurisdiction of the High Court did not arise for consideration and was not answered in sampath kumar's case. ( 13 ) THE learned counsel pointed out that the power of judicial review conferred on the High Court under Article 226 consists of two types: (1) judicial review of administrative action; and (2) judicial review of legislative action. They submitted that a reading of Article 323-a (1) and (2) (d) would at once show that it is the judicial review of administrative action, in relation to service matters which could be divested from the High Court and vested in the administrative tribunal, for, the Article empowers the parliament to make law for the establishment of administrative tribunal to decide 'disputes and complaints in service matters' and that the Article does not deal with the powers of judicial review of the high courts in relation to legislative action by the exercise of which only the high courts have the power and jurisdiction to decide questions relating to the constitutional validity of laws. The submission of the learned counsel is that in the case of sampath kumar, the declaration made to the effect that the administrative tribunal is a substitute for the High Court holds good only in respect of judicial review of administrative actions falling within the scope of disputes and complaints relating to civil servants of the stateand the union government and not in relation to power of judicial review of legislative action. ( 14 ) IT is in these circumstances, the further question which has arisen is as to whether the statement contained in chopra's case could be regarded as a declaration of law within the scope of that expression in Article 141 of the constitution. The Supreme Court in a recent case in municipal corporation of Delhi v gurunam kaur, reported in (1989)1 SCC 101 , has laid down the principles to find out as to whether a particular view or statement found in a judgment of the Supreme Court could be regarded as a declaration of law. The relevant portion of the judgment reads :"11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With All respect to the learned judge who passed the order in jamna das case and to the learned judge who agreed with him, we cannot concede that this court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the act conferring express power on the municipal corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given perincuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the municipal corporation to construct a stall at the pitching site of a pavement squatter. Professor p. j. fitzgerald, editor of the salmond on jurisprudence, 12th end. Explains the concept of sub silentio at p. 153 in these words: a decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point a, which it considers and pronounces upon. The court may consciously decide in favour of one party because of point a, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point b in his favour; but point b was not argued or considered by the court. In such circumstances, although point b was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point b. Point b is said to pass sub silentio. 12. In gerard v worth of paris ltd (k ). , the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the court of appeal in lancaster motor co. (london) ltd. V bremith ltd. , the court held itself not bound by its previous decision sir wilfrid greene, m. r. , said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went onto say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment- this rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority. " in this situation, having regard to the great constitutional importance of the question touching the jurisdiction and powers of the high courts as envisaged by the constitution, we consider it necessary to refer the following two questions to the opinion of the full bench, under section 7 of the Karnataka High Court act : (1) whether the following question, namely, "whether on the coming into force of the administrative tribunals Act, 1985 ('the act' for short) and the establishment of the administrative tribunal, the jurisdiction of the High Court under Article 226 of the constitution of India to retain or entertain petitions presented under that Article before it, challenging the constitutional validity of any law regulating recruitment and conditions of persons appointed to public services and posts in connection with the affairs of the union or state and decide such petitions stood excluded and got vested in the administrative tribunals. " which was answered in the negative by this court in s. m. pattanaik v secretary to government of India, ILR 1986 Kar. 3954, can be regarded as having been decided in the affirmative by the Supreme Court in the case of s. p. sampath kumar v union of India, AIR 1987 SC 386 :1986 jt (sc) 996? (2) if the answer to the above question is in the negative, "whether the statement contained in the order of the Supreme Court in chopra's case to the effect that in the case of sampath kumar that such a question had been decided in the affirmative, can be regarded as law declared within the meaning of Article 141 of the constitution, and therefore the ratio of the decision of this court in s. m. pattanaik's case should be regarded as overruled or no longer good law?14. Having regard to the great importance of the questions of law relating to interpretation of Article 323-a read with Article 226, which goes to the very root of the exclusive jurisdiction of the high courts to decide the constitutional validity of laws which includes service laws, as envisaged by the provisions of the constitution, we consider it necessary to seek the assistance of the learned attorney-general of india. ( 15 ) PREPARE copies of this order and send a copy to the learned attorney general of India requesting him to appear before this court on 30th november, 1989, and assist this court in deciding the aforesaid question. Copy of this order of reference shall also be furnished to the learned counsel for the petitioner and the learned advocate-general and to the learned senior standing counsel for the central government. ( 16 ) PETITIONERS to file third set within two weeks. ( 17 ) SEEK orders for posting of the matter before the full bench on 30th november, 1989. --- *** --- .