Rudrajyoti Bhattacharjee v. Union of India — 1995 DIGILAW 42 (CAL)

Judgment 1. The Court: The answers to the various questions raised in this writ application relating to dispensation of justice through Tribunals established under Articles 323A and 323B of the Constitution, may ultimately' have far-reaching consequences. But at the present moment, we are only concerned with the petitioners' prayer for grant of interim relief. 2. On 16th January, 1995, the Central Government, by a Notification alleged to have been published in the Gazette of, India on 10th January, 1995, purported to establish the West Bengal Administrative Tribunal in exercise of the powers conferred under Sub-so (2) of S. 4 of the Administrative Tribunals Act, 1985, hereinafter referred to as the "1985 Act". 3. The petitioners, who are advocates by profession, have, inter alia, challenged the vires of s. 46 of the Constitution (42nd Amendment) Act, 1976, as being beyond the amending power of Parliament. The petitioners have also challenged the vires of the 1985 Act and have prayed for a declaration that the Notification issued under S. 4(2) of the said Act, purporting to establish the West Bengal Administrative Tribunal, is unconstitutional and void. 4. The petitioners have also prayed for a declaration that Article 323A (2) (d) of the Constitution does not oust the power of the judiciary, including the power of judicial review of legislative action, and that the 1985 Act does not oust the power of the High Court in deciding the constitutional validity thereof. 5. In addition to the above, the writ petitioners have prayed for a writ in the nature of Mandamus on the respondents to make them desist from taking any action under the 1985 Act as also the Notification issued under S. 4(2) thereof. 6. In aid of the main reliefs prayed for in the writ petition, the writ petitioners have prayed for an interim order in the aforesaid terms. 7. Appearing in support of the writ petition, Mr. Samaraditya Pal firstly contended that though the vires of the 1985 Act had been considered by the Hon'ble Supreme Court in the case of S. P. Sampath Kumar Vs. Union of India, reported in AIR 1987 SC at Page 386, the matter had not been finally concluded in view of certain directions given by the Supreme Court relating to the composition of the Administrative Tribunal and the appointment of its Chairman, Vice, Chairman and Members. Mr. Union of India, reported in AIR 1987 SC at Page 386, the matter had not been finally concluded in view of certain directions given by the Supreme Court relating to the composition of the Administrative Tribunal and the appointment of its Chairman, Vice, Chairman and Members. Mr. Pal urged that on a review application certain other directions were also given by the Hon'ble Supreme Court and in the absence of compliance with the said directions, the 1985 Act was vulnerable and open to challenge and was liable to be declared ultra vires and unconstitutional. 8. Mr. Pal then urged that while deciding the issues raised in Sampath Kumar's case (supra), the Hon'ble Supreme Court did not have occasion to consider the question regarding the vires of s. 46 of the Constitution (42nd Amendment) Act, 1976, which though fundamental, was neither argued nor brought to the notice of the Court. Mr. Pal urged that in Sampath Kumar's case, in the absence of any challenge to s. 46 of the Amending Act, the learned Judges had proceeded on the basis that the provisions of s. 46 of the said Act were intra vires and any action taken thereunder was, accordingly valid. 9. Mr. Pal urged that as far back as in 1973, the Hon'ble Supreme Court in the case of Kesavananda Bharati vs. State of Kerala, AIR 1973 SC Page 1461 had held that a limited amending power is one of the basic features of our Constitution and Parliament was not entitled under s. 3 of the Constitution (25th Amendment) Act to delegate power to ordinary legislatures to amend the Constitution or to repeal or abrogate the Constitution or to destroy its basic and essential features. 10. Mr. Pal urged that the same sentiments have been echoed by the Supreme Court in Minerva Mills Ltd. vs. Union of India, reported in AIR 1980 SC at Page 1789, while striking down the provisions of Ss. 4 and 55 of the Constitution (42nd Amendment) Act, 1976, on the ground that they transgressed the limitations on the amending power of the Parliament. 11. Mr. 4 and 55 of the Constitution (42nd Amendment) Act, 1976, on the ground that they transgressed the limitations on the amending power of the Parliament. 11. Mr. Pal urged that s. 46 of the 42nd Amendment Act, which did not fall for consideration of the Hon'ble Supreme Court either in the Minerva Mill's case (supra) or in Sampath Kumar's case (supra), suffered from the same vice, as it sought to take away the High Court's power of judicial review and superintendence under Articles 226 and 227 of the Constitution, which has consistently been recognised to be one of the basic features of the Constitution, and that too by the Parliament in exercise of its legislative functions under Article 245, in contrast to its constituent powers under Article 368 of the Constitution. 12. Mr. Pal urged that delegation of a power such as contained in Article 323A(2)(d) of the Constitution to alter one of the basic and fundamental features of the Constitution, which could not be done even under Article 368 of the Constitution, must be held to be ultra vires and void as being beyond the amending powers of the Parliament. 13. While contending that various provisions of the 1985 Act were ultra vires as they were unreasonable and did not provide for a proper substitute to the High Court in the shape of the Administrative Tribunal, Mr. Pal urged that the effectiveness of the formation and functioning of the various Tribunals set up under Articles 323A and 323B of the Constitution had been considered by the Supreme Court in the case of R. K. Jain vs. Union of India, reported in AIR 1993 SC at Page 1769. Speaking for the Bench, A.M. Ahmadi, J. (as his Lordship then was), observed that sufficient time had elapsed since the formation of various Tribunals in the country after the insertion of Articles 323A and 323B in the Constitution and the time was ripe for taking stock of the working of the said Tribunals. Observing that a sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law, the learned Judge indicated that an independent and impartial justice delivery system, in which the litigating public had faith and confidence, could only deliver the goods. Observing that a sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law, the learned Judge indicated that an independent and impartial justice delivery system, in which the litigating public had faith and confidence, could only deliver the goods. It was also observed that the Tribunals had not been functioning in the desired manner and an intensive and extensive study was required to be made with a view to ensuring their independence so that public confidence in such Tribunals may increase and the quality of their performance may improve. 14. Referring to the minority judgment delivered by K. Ramaswamy J., Mr. Pal submitted that the learned Judge had expressed his anguish over the ineffective and alternate mechanism devised for judicial review and observed that the dispensation of justice by the Tribunals left much to be desired, not because of the ability of the Members or the Vice-Chairman, who were no doubt experts in their regular services, but judicial adjudication being a special process could efficiently be administered by advocate Judges. 15. In the light of the various provisions of the 1985 Act Mr. Pal contended that the composition of the Administrative Tribunal was such that the manner of appointments of its Members and the Vice-Chairman undermined the very independence of the judiciary and rendered its Members vulnerable to governmental interference. 16. Mr. Pal urged that by no stretch of imagination could the Tribunal be considered to be an effective and adequate substitute of the High Court or be equated with the High Court, and the said question had been considered and set at rest by the Hon'ble Supreme Court in the case of M. B. Majumdar vs. Union of India, reported in AIR 1990 SC at Page 2263, wherein it was held that Members of the Administrative Tribunal cannot claim equality with High Court Judges for all purposes. 17. In the light of the various documents disclosed by the respondents during the course of the submissions made, Mr. Pal then contended that even if all the other contentions are shelved till the final hearing of the . 17. In the light of the various documents disclosed by the respondents during the course of the submissions made, Mr. Pal then contended that even if all the other contentions are shelved till the final hearing of the . writ petition, the manner in which the Chairman and other Members of the Tribunal were appointed, was sufficient for this Court to restrain the respondents from giving effect or further effect to the impugned Notification dated 10th January, 1995, issued under s. 4(2) of the 1985 Act. 18. Referring to the order passed by the Hon'ble Supreme Court on the review application filed in Sampath Kumar's case, Mr. Pal pointed out that two sets of directions had been given by the Supreme Court while disposing of the said application. Mr. Pal pointed out that, although, the second set of directions, relating to the eligibility of certain categories of individuals to be considered for appointment as Vice-Chairman and Members of the Administrative Tribunals, had been incorporated in the 1985 Act by amendment, the second set of directions relating to the formation of a High Powered Selection Committee for recruitment to the Central or State Administrative Tribunals had not been given effect to. 19. Mr. Pal urged that on the failure of the Union of India to incorporate the first set of directions in the 1985 Act, by legislation, as undertaken by it the said Act was rendered vulnerable to attack regarding its constitutional validity on the basis of the observations made in Sampath Kumar's case. 20. Referring also to the copy of the Order dated 27th May, 1993, issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India, produced on behalf of the respondents, Mr. Pal urged that, although, no legislation had been introduced to amend the relevant provisions of the Act regarding the appointment of a High Powered Selection Committee, the Government had itself laid down certain parameters for selection and appointment of persons as Vice-Chairman and Members of the State Administrative Tribunal, and for the aforesaid purpose a Selection Committee was to be constituted with the Chief Justice of the High Court of the concerned State, the Chief Secretary of the concerned State Government, the Chairman of the State Administrative Tribunal and the Chairman of the State Public Service Commission of the concerned State. 21. Mr. 21. Mr. Pal urged that nothing was indicated in the said guidelines as to how the Chairman was and/or is to be selected. 22. Mr. Pal also urged that in S. P. Sampath Kumar's case, the Hon'ble Supreme Court had suggested that in order to make the Tribunal an effective body and a proper substitute for the High Court, a District Judge or an advocate who is qualified to be a Judge of the High Court, should be regarded as eligible for being appointed as Vice-Chairman of the Administrative Tribunal. Mr. Pul pointed out that the Hon'ble Supreme Court had specifically directed that unless an amendment to that effect was carried out on or before 31st March, 1987, the impugned Act would have to be declared invalid. 23. Mr. Pal pointed out that in a review petition filed on behalf of the Government of India, the Hon'ble Supreme Court reiterated and confirmed its earlier directions and extended the time for complying with the directions contained in the judgment delivered in the writ petition on 9th December, 1986. 24. Mr. Pal contended that, as mentioned hereinbefore, the amendment indicated by the Supreme Court regarding appointment of a High Powered Selection Committee, was not effected nor was the prescribed procedure followed by the Central Government while appointing the Chairman and Members of the State Administrative Tribunal. Mr. Pal urged that there was nothing on record to indicate as to how the Chairman was selected for appointment, but the appointments of the Judicial and Administrative Members of the Tribunal stood vitiated by the fact that the constitution of the Selection Committee, as indicated in the Government Order of 27th May, 1993, was incomplete in the absence of the Chairman of the State Administrative Tribunal, who was appointed on 10th January, 1995, along with the other Members, and could not therefore, be present at the deliberations of the Selection Committee held on 21st December, 1993. 25. Mr. 25. Mr. Pal urged that notwithstanding the above there was also nothing on record to show that any attempt had at all been made by the State Government and/or the Selection Committee to invite applications from eligible candidates and to prepare a Select List of candidates and to forward the same to the Central Government with its recommendations for appointment of the Vice-Chairman and other Members of the State Administrative Tribunal, in keeping with the order of the Central Government dated 27th may, 1993. 26. Mr. Pal submitted that there was another glaring lacuna in the composition and establishment of the State Administrative Tribunal, which rendered its functioning void from its very inception, namely, the failure of the Central Government to appoint a Vice-Chairman for the Tribunal. Mr. Pal urged that the Tribunal could not function in the absence of the Vice-Chairman. 27. Mr. Pal lastly contended that the manner in which the various notifications had been produced and the contents of the letter dated 16th January, 1995, written by the Desk Officer (AT) to the learned Central Government Advocate, regarding setting up of the West Bengal Administrative Tribunal, cast doubts as to whether the notification under s. 4 (2) of the 1985 Act had at all been published prior to 16th January, 1995. 28. On the aforesaid grounds, Mr. Pal urged that pending the hearing of the writ petition, the respondents should be restrained from giving any effect or further effect to the impugned Notification under s. 4(2) of the 1985 Act, said to have been published on 10th January, 1995. 29. Adopting the submissions of Mr. pal regarding the formation of the State Administrative Tribunal and the appointment of its Members, Mr. Somendra Chandra Bose, learned Senior Advocate, who appeared for some of the petitioners, along with Mr. Mukul Prokash Banerjee, Senior Advocate, added that the independence of the judiciary was of paramount importance in a society governed by the rule of law. 30. Referring to the decision of the Hon'ble Supreme Court in the case of Harjeet Singh vs. Union of India, reported in AIR 1980 SC at Page 1275, Mr. Mukul Prokash Banerjee, Senior Advocate, added that the independence of the judiciary was of paramount importance in a society governed by the rule of law. 30. Referring to the decision of the Hon'ble Supreme Court in the case of Harjeet Singh vs. Union of India, reported in AIR 1980 SC at Page 1275, Mr. Bose submitted that while considering a question relating to seniority rules under the Indian Police Service (Regulation of Seniority) Rules, 1954, the Hon'ble Supreme Court observed that a fact-finding administrative tribunal could be set up to go into such questions in order to better serve the cause of successful administration. Thereafter, the aggrieved parties could approach the Courts for further relief within the confines of Articles 226 and 227 of the Constitution. 31. Mr. Bose also referred to a Bench decision of the Madhya Pradesh High Court in the case of Moti Marry vs. Supdt. Lady Elgin Hospital, Jabalpur, reported in 1994 Lab. I.C. at Page 172, wherein it was, inter alia, held that the High Court's powers of superintendence under Article 227 was unaffected by Article 323A of the Constitution and the 1985 Act, since the purpose of superintendence is not to decide a dispute or difference, but to keep the Tribunal within its jurisdiction. 32. Mr. Bose also urged that the manner in which the Notification, said to have been published under s. 4(2), s. 1(4) and s. 5 (8) of the 1985 Act, were produced, gave rise to serious doubts as to whether they had at all been published on the dates on which they were allegedly printed, which would then invalidate the appointments of the Chairman and its Members, who were allegedly appointed on the same day. 33. Mr. Mukul Prokash, Banerjee, Senior Advocate, firstly submitted that as would appear from s. 15 of the 1985 Act, the Tribunal is to exercise powers in relation to recruitment and matters concerning recruitment to any civil service of the State or to any Civil post under the State, and the other matters referred to in Clauses (b) and (c) of Sub-s. (1) of s. 15. Mr. Banerjee urged that the expression "in relation to" limited the scope of the Tribunal's powers and did not, therefore, cover all the powers which the High Court exercises under Articles 226 and 227 of the Constitution. 34. Mr. Mr. Banerjee urged that the expression "in relation to" limited the scope of the Tribunal's powers and did not, therefore, cover all the powers which the High Court exercises under Articles 226 and 227 of the Constitution. 34. Mr. Banerjee then urged that the expression "all Courts" read in s. 15 (1) did not include the High Court, since under the Civil Procedure Code, the expression "Court" did not include the Writ Court 35. Mr. Banerjee also contended that the provisions of Article 323A of the Constitution did not automatically exclude the High Courts' powers under Articles 226 and 227 of the Constitution, but in deciding S. P. Sampath Kumar's case, the Hon'ble Supreme Court had proceeded on such an assumption. Mr. Banerjee contended that in the circumstances, the decision of the Hon'ble Supreme Court in the said case must be held to be per incuriam and was not, therefore, binding in terms of Article 141 of the Constitution. 36. In this regard Mr. Banerjee referred to the decision of the Hon'ble Supreme Court in the case of State of U.P. vs. Synthetics and Chemicals Ltd., reported in 1991 (4) SCC Page 139, wherein while considering the doctrine of sub-silentio, the Hon'ble Supreme Court held that any declaration or conclusion arrived at without application of mind or preceded without any reason, cannot be deemed to be declaration of laws or authority of a general nature binding as a precedent. 37. Mr. Banerjee urged that since the Hon'ble Supreme Court did not have occasion to consider the purported exclusion of the High Court's powers under Articles 226 and 227 of the Constitution and/or to consider the vires of s. 46 of the Constitution (42nd Amendment) Act, 1976, its decision in S. P. Sampath Kumar's case must be held to be per incuriam and not binding as per Article 141 of the Constitution. 38. Appearing for the State of West Bengal, Mr. Balai Chandra Ray, Senior Advocate, firstly urged that the question concerning judicial review had been considered in detail by the Hon'ble Supreme Court in S. P. Sampath Kumar's case and it had been held that the scope of judicial review had not been completely taken away by the establishment of the State Administrative Tribunal. Mr. Balai Chandra Ray, Senior Advocate, firstly urged that the question concerning judicial review had been considered in detail by the Hon'ble Supreme Court in S. P. Sampath Kumar's case and it had been held that the scope of judicial review had not been completely taken away by the establishment of the State Administrative Tribunal. Mr. Ray urged that, although, the powers of the High Court under Articles 226 and 227 of the Constitution had been excluded by the establishment of the said Tribunal, the power of judicial review had been retained in the Supreme Court under Articles 32 and 136 of the Constitution. 39. Mr. Ray urged that the scope of Judicial review had not been eliminated, but had only been narrowed by the establishment df the State Administrative Tribunal. 40. Mr. Ray then urged that the State Administrative Tribunal had established by a valid piece of legislation. Mr. Ray contended that so long as Article 323A continued to be a part of the Constitution, and was not struck down, any action taken thereunder must be held to be Valid and legal. 41. Mr. Ray submitted that in Sampath Kumar's case, the Hon'ble Supreme Court had held the 1985 Act to be intra vires and had given certain recommendatory directions with regard to the composition of the Tribunal and the eligibility of District Judges and advocates, who were qualified to be appointed as Judges of the High Court, to be considered for appointment as Vice-Chairman of the Tribunal. 42. Mr. Ray urged that since the said recommendations had been duly incorporated in the 1985 Act by way of amendment, it could no longer be contended that the said Act was ultra vires the amending power of the Parliament. 43. Mr. Ray then urged that the Administrative Tribunal had been held by the Hon'ble Supreme Court to be a suitable substitute for the High Court for discharging its functions under Articles 226 and 227 of the Constitution, and the challenge thrown on such count was not, therefore, sustainable. 44. Mr. Ray urged that whenever a statute was enacted by legislation, the presumption was always in favour of its validity, unless proved to be ultra vires the provisions of the Constitution and/or arbitrary or unreasonable. 45. Mr. Ray submitted that in the instant case despite the arguments advanced on behalf of the petitioners and by Mr. Bose and Mr. 44. Mr. Ray urged that whenever a statute was enacted by legislation, the presumption was always in favour of its validity, unless proved to be ultra vires the provisions of the Constitution and/or arbitrary or unreasonable. 45. Mr. Ray submitted that in the instant case despite the arguments advanced on behalf of the petitioners and by Mr. Bose and Mr. Banerjee regarding the vires of the 1985 Act, the same was now beyond challenge, at least before the High Court, in view of the decision in Sampath Kumar's case, holding the 1985 Act to be intra vires. 46. Referring to the decision of the Supreme Court. in the case of Union of India & Ors. vs. Deep Chand Pandey and Ors., reported in 1992 (4) SCC .at Page 432, Mr. Ray submitted that it had been accepted that the scope of the Parliament's powers under Article 323A are very wide and by enacting the 1985 Act the said powers have been exercised in full measure. Mr. Ray urged that in the said case, the concerned respondents, who being casual workers under the Central Railway, had claimed that the jurisdiction of the High Court under Article 226 of the Constitution was available to them, were, however, referred to the Central Administrative Tribunal on the finding that their remedy lay not before the High Court but before the said Tribunal. It was held that since the subject matter of the claim was covered by s. 14 of the 1985 Act, it must follow that the High Court was not left with any jurisdiction to deal with the same. 47. Mr. Ray also referred to the judgment of the Supreme Court in the case of J. B. Chopra vs. Union of India, reported in AIR 1987 SC at Page 357, wherein after referring to the decision in Sampath Kumar's case (supra), the Supreme Court was of the view 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 powers to deal with all questions pertaining to the constitutional validity or otherwise of such laws which offended Articles 14 and 16(1) of the Constitution. 48. Mr. Ray urged that in all the aforesaid cases, the Supreme Court had upheld the constitutional validity of the 1985 Act and had passed orders for furthering the objects thereof. 48. Mr. Ray urged that in all the aforesaid cases, the Supreme Court had upheld the constitutional validity of the 1985 Act and had passed orders for furthering the objects thereof. 49. Referring to the decision of the Supreme Court in M. B. Majumdar's case (supra), Mr. Ray submitted that even in the said case it was sought to be explained that the question of equating the Administrative Tribunal with the High Court was illogical, as the Tribunal was an inferior body, which had been vested with the powers to discharge the functions of the High Court in a particular sphere under Articles 226 and 227 of the Constitution. Mr. Ray, however, urged that even in the said case the validity of Article 323A had not been called into question by the Supreme Court. 50. Mr. Ray then referred to a virtually one paragraph judgment of the Hon'ble Supreme Court in the case of H.N. Patro vs. Ministry of Information and Broadcasting and Ors., reported in 1993 Suppl. (1) SCC at Page 550, wherein it was observed that the order of the Central Administrative Tribunal was not open to challenge before the High Court and that the 1985 Act read with Article 323A of the Conlititution ousted the Jurisdiction of the High Court. 51. Referring to the judgment of the Madhya Pradesh High Court cited by Mr. Bose in the case of Moti Marry (supra), Mr. Ray submitted that from a reading of the judgment it was apparent that the learned Judges were alive to the fact that after 2nd August, 1988, matters within the jurisdiction of the Tribunal under the 1985 Act would not be entertained by a Civil Court. Mr. Ray urged that while referring to the decision of the Supreme Court in Sampath Kumar's case, the learned Judges had possibly overlooked the fact that the learned Judges of the Supreme Court had also considered the question of exclusion of the High Courts' powers of superintendence under Article 227 of the Constitution. Mr. Ray urged that in the face of the judgment in Sampath Kumar’s case, no reliance could be placed on the decision of the Madhya Pradesh High Court in the aforesaid case. 52. With reference to the submissions made by Mr. Pal regarding the publication of the Notification in the Official Gazette, Mr. Mr. Ray urged that in the face of the judgment in Sampath Kumar’s case, no reliance could be placed on the decision of the Madhya Pradesh High Court in the aforesaid case. 52. With reference to the submissions made by Mr. Pal regarding the publication of the Notification in the Official Gazette, Mr. Ray referred to the decision of the Supreme Court in the case of Baburao vs. Union of India, reported in AIR 1988 SC Page 440, wherein it had been held that publication of a Notification in the Official Gazette was meant to give constructive notice and satisfied the provisions relating to publication to bring a particular thing to the knowledge of the public. 53. Mr. Ray then referred to the provisions of s. 19 of the 1985 Act and submitted that the order referred to therein included the jurisdiction to adjudicate on all questions pertaining to service matters concerning a civil post under the State. 54. Mr. Ray concluded his submissions by urging; that there was no scope in the writ application for reconsidering the question of the vires of the 1985 Act which had been held to be intra vires by the Supreme Court in Sampath Kumar's case, and there was, in fact, no scope whatsoever for passing an interim order in the matter. 55. Appearing for the Union of India, Mr. P.N. Das, Senior Advocate, firstly raised an objection relating to the averments made in the writ petition. Mr. Das also reiterated the sentiments expressed by Mr. Ray with regard to the decision on the Supreme Court in Sampath Kumar case. Mr. Das submitted that the points sought to be raised in the present writ application had been concluded in the aforesaid judgment and since all the directions given by the Supreme Court had been duly complied with, the vires of the 1985 Act could no longer be challenged in the instant writ proceedings. 56. Mr. Das submitted that instead of declaring the 1985 Act as ultra vires on the basis of the challenge thrown in Sampath Kumar's case, the Hon'ble Supreme Court had given recommendatory directions in an attempt to save the Act. 57. Referring to the interim orders passed by the Hon'ble Supreme Court while admitting the writ petition of Sampath Kumar, reported in 1985 (4) SCC at page 458, Mr. 57. Referring to the interim orders passed by the Hon'ble Supreme Court while admitting the writ petition of Sampath Kumar, reported in 1985 (4) SCC at page 458, Mr. Das pointed out that the Supreme Court had not granted any stay as far as the writ petitions under Article 226 of the Constitution pending in the High Courts were concerned, but had given various interim directions calculated to ensure that the Administrative Tribunal functioned even where the proper infrastructure had not yet been set up. 58. Mr. Das urged that since all the directions given by the Hon'ble Supreme Court in Sampath Kumar's case, and even in the review petition, had been duly complied with, the 1985 Act stood excluded from the charge of ultra vires. 59. Mr. Das then urged that even if a particular point had not been urged before the Supreme Court while it was considering the issue in Sampath Kumar's case, it must be held that the High Court was no longer entitled to go into the new question having regard to the doctrine of subsilentio as explained in the case of Sailendra Nath Neogy vs. Purnendu Sen & Drs., reported in AIR 1971 Calcutta at Page 160, wherein while considering the vires of s. 24 of the West Bengal Non-Agriculture Tenancy Act, 1949, the Division Bench observed that, although, learned Counsel wanted to raise the said question on a ground different from what had actually and specifically been considered by the Supreme Court in an earlier decision, it was clear that, so long as the said decision stood, the High Court could not go against it upon the footing that the particular aspect had not been considered by the learned Judges of the Supreme Court in the said decision. 60. In this regard, Mr. Das also referred to the decision of the Supreme Court in the case of D. C. and G. Mills Company Ltd. vs. Sambhunath Mukherji and Drs., reported in AIR 1978 SC at Page 8, wherein it was observed by the Supreme Court that when the Court had held that s. 10 of the Industrial Disputes Act, 1947, was intra vires, it would not be permissible to raise the said question again by submitting that a new ground could be taken to sustain the objection. 61. Mr. 61. Mr. Das concluded his submissions by submitting that under no circumstances could the question which had been decided in Sampath Kumar's case be reopened for reconsideration by this Court in a proceeding under Article 226 of the Constitution. Mr. Das urged that not only could no interim relief be granted on the instant writ application but the same was liable to be dismissed even at this stage without going into the merits of the matter. 62. Replying to the submissions made on behalf of the State and the Central Government Mr. Pal reiterated his earlier submissions and added that one basic feature had been overlooked both by the Central and the State Government while legislating on the establishment of State Administrative Tribunals, which according to Mr. Pal, is the subject matter of the State List included in the Seventh Schedule to the Constitution. 63. Mr. Pal reiterated that in the absence of the Chairman of the State Administrative Tribunal, the composition of the Selection Committee was incomplete and its deliberations of 21 st December, 1993, relating to the selection of the Members of the said Tribunal stood vitiated, thereby rendering their subsequent appointments void. 64. With regard to the decisions of this Court and the Supreme Court in Sailendra Nath Neogy's case and in the case of D.C. & G Mills Company Ltd., cited by Mr. Das, it was submitted by Mr. Pal that they had no application to the facts of this case, since in both the said cases the challenge thrown was under the same provisions, though on new grounds, while in the present case, the challenge is under a completely different provision than was argued in Sampath Kumar's case. 65. During the hearing of this matter on the question of grant of interim relief, certain applications were filed for addition of parties in the instant proceedings. One such application was filed on behalf of the High Court Bar Association. Learned Counsels appearing in support of the applications, which were allowed subject to any objection that might be taken at the final hearing of the writ petition, adopted the submissions of Mr. Pal, Mr. Bose and Mr. Banerjee, and supported the writ petitioners' prayer for interim orders. 66. Learned Counsels appearing in support of the applications, which were allowed subject to any objection that might be taken at the final hearing of the writ petition, adopted the submissions of Mr. Pal, Mr. Bose and Mr. Banerjee, and supported the writ petitioners' prayer for interim orders. 66. The arguments advanced on behalf of the respective parties and the majority of the decisions cited, are mainly in support of the final reliefs prayed for in the writ petition and will have to be considered in detail at the appropriate time. For the purpose of interim relief, however, in the backdrop of his wider submissions, we will have to confine ourselves to Mr. Pal's submissions relating to the composition of the State Administrative Tribunal and the manner in which its Chairman and Members were appointed. 67. The documents produced on behalf of the respondents during the hearing, disclose that the concerned authorities of both the Central and the State' Government failed to seriously apply their minds while taking steps to establish the State Administrative Tribunal in West Bengal. 68. The Central Government, despite its undertaking given to the Hon'ble Supreme Court to introduce legislation for incorporating, the directions given regarding appointment of a High Powered Selection Committee for recruitment to the Administrative Tribunals, failed to do so. Even the guidelines as prescribed by it in the Order of 27th May, 1993, were not followed by the Central Government while appointing the Judicial and Administrative Members of the State Administrative Tribunal. To add to the confusion, it is not known as to what procedure was adopted for appointment of the Chairman of the said Tribunal. 69. The documents produced on behalf of the respondents show that while steps were taken to choose the Chairman and the Judicial and Administrative Members of the Tribunal at a point of time when the provisions of the 1985 Act relating to establishment of a State Administrative Tribunal had not been extended to West Bengal, no steps appears to have been taken either prior to or after the extension to West Bengal of the provisions of the 1985 Act, in so far as they relate to the West Bengal Administrative Tribunal, for appointment of the Vice-Chairman, which post remains vacate. 70. 70. Although, the object sought to be achieved by the guidelines contained in the Central Government Order of 27th May, 1993, do not amount to compliance with the directions of the Supreme Court in Sampath Kumar's case, even the said guidelines were not followed by the Central or State Government while appointing the Chairman and the Judicial and Administrative Members of the State Administrative Tribunal. 71. Except for copies of the deliberations of the Selection Committee at the meetings held on 14th May, 1993 and 21st December, 1993, no other document has been produced on behalf of the respondents to show as to whether the process of selection, as set out in s. 6 of the 1985 Act, and as indicated by the Supreme Court in Sampath Kumar's case, had been followed, either by the Central or State Governments, while appointing the Chairman and Members of the West Bengal Administrative Tribunal. 72. As indicated hereinbefore, there is no indication as to what procedure was adopted for selection and appointment of the Chairman, although, definite directions were given by the Supreme Court in that behalf while disposing of the review application in Sampath Kumar's case. Furthermore, since the Chairman was appointed only on 10th January, 1995, along with the Judicial and Administrative Members of the Tribunal, he could not participate in the deliberations of the Selection Committee at the meeting held on 21st December, 1993, where the Judicial and Administrative Members were selected, thus vitiating the very selection process. 73. Although, an attempt was made on behalf of the State of West Bengal to suggest that the guidelines contained in the Central Government Order of 27th May, 1993, had no statutory had hence binding force, such a submission would be wholly contrary to public policy, since the same was taken note of and implemented in substituting the Chairman State Public Service Commission, as a Member of the Selection Committee in place of the Judicial Secretary of the State Government, in keeping with the said guidelines. It cannot be left open to the authorities to apply the said guidelines as and when they felt it convenient to do so. 74. As is evident from the guidelines contained in the Central Government Order of 27th May, 1993, certain procedures were to be followed while selecting suitable candidates for appointment as Vice-Chairman and Members of the State Administrative Tribunal. 75. 74. As is evident from the guidelines contained in the Central Government Order of 27th May, 1993, certain procedures were to be followed while selecting suitable candidates for appointment as Vice-Chairman and Members of the State Administrative Tribunal. 75. It has been frankly stated on behalf of the respondents that there are no documents to show whether any list was prepared in the manner indicated in the said order, or that any recommendations were made by the Selection Committee to the State Government, or that a Select List of candidates was prepared by the State Government and forwarded to the Central Government, which thereafter, appointed the Members in consultation with the Chief Justice of India. 76. There is nothing also on record to show whether any steps were taken to invite applications from eligible candidates for selection of the Vice-Chairman and the other Members of the Tribunal. 77. There is no explanation forthcoming as to why no Vice-Chairman has been appointed for the newly-established State Administrative Tribunal. 78. There is little doubt from the aforesaid facts that there has been a clear infraction of the provisions of the 1985 Act and the Central Government Order of 27th May, 1993, and the directions of the Supreme Court in Sampath Kumar's case and the review application in connection therewith, in the matter of selection of the Chairman and the Members of the State Administrative Tribunal. It is also evident that only lip service was paid to the recommendatory directions given by the Hon'ble Supreme Court in Sampath Kumar's case and no serious attempt was made to comply with the same. 79. Apart from the above, the meetings; of the Selection Committee held on 14th May, 1993 and 21st December, 1993, are also open to challenge, since the selection process could not have been commenced before the provisions of the 1985 Act, as far as they relate to the establishment of a State Administrative Tribunal, was extended to West Bengal, and particularly at a point of time when the Chairman of the State Administrative Tribunal, who was to be a member of the Selection Committee, had not yet been appointed. 80. 80. Both the Central Government and the State Government appear to have completely overlooked this rather important aspect of the matter, since the Selection Committee which met on 21st December, 1993, to approve the selection of the Judicial and Administrative Members of the West Bengal State Administrative Tribunal, was not properly constituted in the absence of the Chairman of the Tribunal, having regard to the procedure for constitution of the Selection Committee indicated in the Central Government Order of 27th May, 1993. 81. It cannot be ignored that the appointments of the Judicial and Administrative Members of the Tribunal were based on the deliberations of the Selection Committee at its meeting of 21st December, 1993, which meeting, in my view, stood vitiated, as the composition of the Selection Committee had not yet been completed. The aforesaid anomaly has not been explained either on behalf of the Central Government or the State Government and, therefore, goes unchallenged. As indicated herein before, the attempt made on behalf of the State Government to gloss over this rather vital lacuna, by contending that neither the Central Government nor the State Government were under any obligation to follow the guidelines contained in the Order of 27th May, 1993, must be repelled, since the said guidelines reflect the directions given by the Supreme Court in the review application filed in Sampath Kumar's case. Furthermore, it is not open either to the Central Government or to the State Government to apply the guidelines contained in the aforesaid Central Government Order of 27th May, 1993, as and when it suited their purpose. 82. In view of the above, it is not necessary for me at this stage to enter upon an analysis of the various other submissions made on behalf of the respective parties, and the same will be considered at the time of final hearing of the writ petition. 83. In my view, sufficient grounds have been made out by the petitioners and the added parties for an interim order to restrain the State Administrative Tribunal from continuing to function during the pendency of the writ application. 84. 83. In my view, sufficient grounds have been made out by the petitioners and the added parties for an interim order to restrain the State Administrative Tribunal from continuing to function during the pendency of the writ application. 84. Accordingly, in modification of the interim order passed on 17th January, 1995, there will be an interim order restraining the respondents from giving any effect or further effect to the impugned Notification No. G.S.R. 21 (E) dated 10th January, 1995, and also from giving any further effect to the appointments of the Chairman and the Judicial and Administrative Members of the State Administrative Tribunal under the orders issued on 10th January, 1995. 85. Accordingly, the High Court will be entitled to entertain fresh writ applications and to continue with the hearing of all matters pending before it pertaining to the subjects covered by the Administrative Tribunals Act, 1985, as far as the State Administrative Tribunal is concerned, until further orders. Consequently, all applications filed before the State Administrative Tribunal will stand transferred to this High Court for hearing. 86. Let a Rule issue on the respondents in terms of prayers (a), (b), (c), (d), (e), (f) and (g) to the writ petition returnable on 14th March., 1995. Service of notice of the Rule and/or the copies of the writ petition is, however, dispensed with, since all the parties have duly appeared during the preliminary hearing of the matter. 87. Let notice also issue to the learned Attorney General of India, in view of the declarations sought for with regard to the vires of s. 46 of the Constitution (42nd Amendment) Act, 1976, and the Administrative Tribunals Act, 1985. 88. Having regard to the nature of the case, let the Rule be heard on a priority basis on 14th March, 1985. The respondents will be at liberty to file their Affidavits-in-Opposition to the writ application within 24th February, 1995. Reply, if any, thereto, is to be filed by 10th March, 1995. 89. Leave is given to the petitioners to file a supplementary affidavit, copies whereof are to be served on all the appearing parties by 1st February, 1995. The parties will also be at liberty to file their reply thereto in accordance with the directions given for filing of affidavits. 90. 89. Leave is given to the petitioners to file a supplementary affidavit, copies whereof are to be served on all the appearing parties by 1st February, 1995. The parties will also be at liberty to file their reply thereto in accordance with the directions given for filing of affidavits. 90. Having regard to the nature of the order passed, if a certified copy of this order is applied for by any of the parties, the same is to be made available within 31st January, 1995. 91. Prayer for stay of this interim order made on behalf of the State of West Bengal is considered and refused, having regard to the observations made hereinabove. 92. Let a signed copy of the operative portion of the Judgment be made available to the respective parties upon usual undertaking. Prayer for Interim Order allowed.