State of West Bengal v. S. I. Dulal Ranjan Biswas — 1996 DIGILAW 44 (CAL)

Judgment Bhagabati Prasad Banerjee, J. 1. This is an application for leave to prefer an appeal under clause 15 of the Letters Patent with an undertaking to draw up and complete the order and to apply for and obtain the certified copy within the period of limitation and file the same at a later stage. 2. Under the Original Side Rules of this Court, such a composite application is filed for obtaining leave to prefer an appeal without certified copy, within the period of limitation and for an interim order of injunction or stay of the operation of the order of the Learned Trial Judge. 3. Such leave is granted as a matter of course by this Court, and this is the practice under the Original Side Rules. 4. In the instant case, Mr. Mukul Prakash Banerjee and Mr. Saktinath Mukherjee, learned Counsels appearing on behalf of the opposite parties, who have no locus standi to intervene at this state and who have obtained the order of the Learned Trial Judge, dated 7th December 1995, took a preliminary point that no such leave could be granted by this Court at this stage because of the provisions of proviso to sub-s. (1) of S. 29 of the Administrative Tribunals Act, 1985. Whether or not such a leave could be granted and an appeal could be entertained at this stage; the learned Counsels appearing on behalf of the appellant as well as Mr. Balai Chandra Roy, learned Counsel who appeared for the State in the other proceedings before the other Court in this matter wherein the vires of a notification constituting the State Administrative Tribunal was challenged, Mr. Roy was asked to make submission as amicus curae. 5. The vires of the Administrative Tribunals Act, 1985, by which the power of the High Court to deal with service matters which were brought within the jurisdiction of the Administrative Tribunal, have been upheld by the Supreme Court in the case of S. P. Sampath Kumar vs. Union of India, (1987) 1 SCC 124 , and that the recent judgment of the Supreme Court in the case of L. Chandra Kumar vs. Union of India, reported in (1995) 1 SCC 400 , where the Supreme Court was of the view that Sampath Kumar's case required a fresh look. 6. 6. So far as the law laid down by the Supreme Court, as it now stands, the jurisdiction of the High Court on and from the date on which the jurisdictional power and authority become exercisable by the Administrative Tribunals Act, by a Tribunal, relating to service matters, no Court, excepting the Supreme Court, and of course the Industrial Tribunal under the Industrial Disputes Act, on some particular matter, can exercise jurisdiction. 7. In the instant case, a peculiar situation arose which calls for the determination by this Court, and which requires careful consideration. 8. By the notification issued on January 10, 1995, in exercise of the powers conferred by sub-so (2) of s. 4 of the Administrative Tribunals Act, 1985, the Central Government, on receipt of a request in this behalf from the Government of West Bengal, hereby established the West Bengal Administrative Tribunal with effect from 16th day of January, 1995, which should be the appointed day within the meaning of clause (c) of S. 3 of the said Act. 9. Challenging the validity of the notification in question, by which the State Administrative Tribunal dealing with service matters was constituted, the writ application was filed by Rudra Jyoti Bhattacharya & Ors., whereupon His Lordship, the Hon'ble Mr. Justice Altamas Kabir of this Hon'ble Court, after hearing the parties at length, initially granted an interim order on 17th January, 1995, and ultimately after a hearing of the matter at length by an order dated 27th January, 1995, passes the following order: "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. 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." 10. Consequently, all applications filed before the State Administrative Tribunal will stand transferred to this High Court for hearing." 10. Against the said interim order of injunction, the State preferred an appeal before the Division Bench, and a Division Bench of this Court, while hearing the appeal against the interlocutory order, by consent of the parties, took up the writ application for disposal by the Division Bench and the Division Bench heard the writ application on its merit and by an order dated 10th January, 1996, dismissed the writ application and allowed the appeal filed by the State, by the following order: "In that view of the matter, the appeal is allowed. The order of Learned Trial Judge is set aside. The writ petition is dismissed upon treating the same on the day's list. All interim orders stand vacated. There shall, however, be no order as to costs. Prayer for certificate is refused and so also the prayer for stay." The questions which have been raised before this Court and required to be decided, are: (a) Whether the High Court had jurisdiction to entertain writ application and dispose of writ application between 16.01.1995 and 10.01.1996; and (b) Whether the appeal will lie before the Division Bench in respect of the writ application disposed of and orders passed between the aforesaid dates and after that period. 11. In this proceeding, we are not called upon and we are not deciding any other question excepting the date of the writ application filed and disposed of between the two dates and whether an appeal would lie against those orders and before whom and whether the leave to prefer an appeal could be given. The validity or otherwise of the provisions of the Central Administrative Act is not the subject matter and we are not adjudicating any of these points, but we are only concerned about the position in law as it stands in this regard. For the purpose of deciding this question, it is necessary to refer to some of the provisions of the Administrative Tribunals Act, 1985, which are mentioned below : "14. For the purpose of deciding this question, it is necessary to refer to some of the provisions of the Administrative Tribunals Act, 1985, which are mentioned below : "14. (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 court (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 a person referred to in clause (c) appointed to any civil service of the Union or any civil post under the Union; or (iii) a civilian [not peing 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, a 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 to 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) of 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 ........ 19. (1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. 19. (1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. Explanation.- For the purposes of this sub-section, "order" means an order made (a) by the Government or a local or other authority within the territory of India or under the Control of the Government of India or by any corporation (or society) owned or controlled by the Government, or : (b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation (or society) referred to in clause (a) ....... 28. On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any Service of persons appointed to any Service, or post, (no court except(a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947, or any other corresponding law for the time being in force, shall have), or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning recruitment or such service matters. 29. (1) Every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act being a suit or proceeding the cause of action whereon it is based is such that it would have been if it had arisen after such establishment within the jurisdiction of such Tribunal shall stand transferred on that date to such Tribunal : Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court. (2) Every suit or other proceeding pending before a Court or other authority immediately before the date with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation, (or society) being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after the said date, within the jurisdiction of such Tribunal: shall stand transferred on that date to such Tribunal : Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court........" 12. With regard to the first point, it is contended by the learned Counsels that the notification constituting the State Administrative Tribunal which came into effect from 16th January, 1995, was stayed by the Learned Trial Judge and that the writ was dismissed and the same was vacated on 10th January, 1996. During this interregnum period, the Tribunal was injuncted from functioning and in terms of the interim order of injunction, the High Court was entitled to entertain fresh writ application and to continue with the hearing of all matters pending before it, or filed before it pertaining to the subjects governed by the Administrative Tribunals Act, 1985, in so far as the State Administrative Tribunal is concerned, until further order. Consequently, all applications filed before the State Administrative Tribunal were directed to stand transferred to this High Court for hearing. 13. It is submitted that the High Court was well within its jurisdiction to issue interim order of the injunction which was binding on all authorities and the notification in question, declaring the appointed date, was stayed by the Learned Trial Judge and accordingly, it is submitted that it must be held that there was no Tribunal before the order was vacated on 10th January, 1996. 14. Under s. 14 of the said Act, the Administrative Tribunal can exercise power on and from the appointed date in respect of all service matters and on and from that date no other Court shall have jurisdiction or authority excepting the Supreme Court. 15. Accordingly, when the notification specifying the appointed date was stayed, the same should be treated as nonest for the time being and accordingly the date for starting functioning of the State Administrative Tribunal became operative for all practical purposes after January 10, 1996. 16. 15. Accordingly, when the notification specifying the appointed date was stayed, the same should be treated as nonest for the time being and accordingly the date for starting functioning of the State Administrative Tribunal became operative for all practical purposes after January 10, 1996. 16. In his connection, reference was made to the practice of the Court relating the effecting of granting of interim order of an injunction. It is well-known that when an order of dismissal or order of compulsory retirement is stayed by a Court, but ultimately the writ application is dismissed and the said order is vacated, the order of dismissal and/or the order of compulsory retirement takes effect from the very date when the order of termination of service and/or the order of compulsory retirement was passed on interim order of injunction, even though temporarily suspended the order, but the order revives from the very dates on which the same were passed. 17. Accordingly, it was sought to be suggested that when the Division Bench of this Court had dismissed the writ application and vacated the interim order, the notification should be treated to have taken effect from 16.01.1995, and consequently all proceedings before this Court between the aforesaid two dates should be treated null and void. 18. But it is difficult to accept this submission as admittedly, because of the interim order of injunction the Tribunal was restrained from functioning and in terms of the interim order of injunction of the Learned Trial Judge, the High Court was entitled to entertain a fresh writ application and dispose of and continue with the hearing of all matters and on the strength of the interim order a large number of writ applications were entertained and disposed of. Can it be said that all these orders passed in these proceedings were void ab initio. 19. The Supreme Court, in the case of Raj Narain vs. Indira Gandhi, reported in AIR 1975 SC 2299 , have held that there is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if the rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the Constituent elements of the concept. But, if the rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the Constituent elements of the concept. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if it is assumed that rule of law is a basic structure, the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. 20. Accordingly, by this decision of the Supreme Court, the judicial review is one of the basic structures of the Constitution of India. 21. In Sampat Kumar's case, reported in (1987) 1 SCC 124 , the Supreme Court observed that though the judicial review is the basic and essential feature of the Constitution and it cannot be abrogated without effecting the basic structure of the Constitution, but if any Constitutional amendment, made by the Parliament, takes away from the High Court the power of judicial review in any particular area and vests it in other institutional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential condition is fulfilled, namely that the alternative institutional mechanism or the authority set up by the Parliamentary amendment, is no less effective than the High Court. 22. It was further held that the Administrative Tribunal under the Act has been contemplated as a substitute and not as a supplemental of the High Court in the scheme of administration of justice and it is entitled to exercise powers thereof. So a citizen's right to judicial review must be available between 16.01.1995 and 10.01.1996, either before the Tribunal or before the High Court. The Tribunal could not function because of the interim order of injunction, and it cannot be said to be intention of the Parliament that the citizens would be totally deprived of any relief by way of judicial review in the facts and circumstances of the case. The Tribunal could not function because of the interim order of injunction, and it cannot be said to be intention of the Parliament that the citizens would be totally deprived of any relief by way of judicial review in the facts and circumstances of the case. If the judicial review is the basic structure of the Constitution and when the Tribunal was injuncted from functioning by the High Court and when the High Court, under the interim order, was entitled to entertain writ applications, the order passed by the High Court during this period cannot be said to be null and void. If such a view is taken, in that event, it would deprive the citizens of their right to judicial review. Such judicial review must be available either before the Tribunal or the High Court. If the Tribunal was injuncted and the High Court, under the interim order, was entertaining application, in that event, it must be held that the High Court had jurisdiction. On the contrary, if the Tribunal was functioning or could function, in that event, in view of the provisions of s. 14 read with s. 28, the High Court would cease to function as the High Court could not have any jurisdiction after the appointed date in respect of service matters. 23. Thus apart, we have to bear in mind the principles of de facto doctrine. The de facto doctrine has been recognised by Indian Courts also. In Pulin Behari v. King Emperor, (1912-15 Cal LJ 517) Sir Asutosh Mukherjee, J., after tracing the history of the doctrine in England, observed as follows : "The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. One doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. One doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined." 24. The Supreme Court noted with approval the observation made by Sri Ashutosh Mukherjee, J., in Pulin Behari vs. King Emperor (supra), in Gokaraju Rangaraju vs. State of Andhra Pradesh, reported in AIR 1981 SC 1473 , wherein it has been clearly laid down that the de facto doctrine is now well-established. 25. The acts of the officers de facto performed by them within the scope of their assumed official power in the interest of public or third persons and not for their own benefit, are generally valid and binding as if they were the acts of the officers de jure. The Judges of the High Court would decide the matter who was not a intruder or usurper, but one who was holding office under authority conferred upon him under the Constitution. The High Court was there before the Tribunal was created. The matter which was disposed of between the two dates by orders passed in various writ applications, which have been acted by the parties, giving effect to the same, must be held to be valid. 26. In some cases, the respondents accepted the judgment and in some cases they have preferred an appeal being aggrieved by the order. The question at this stage is that would it be in the interest of justice and/or in public interest, to say that all these things are void ab initio. 27. 26. In some cases, the respondents accepted the judgment and in some cases they have preferred an appeal being aggrieved by the order. The question at this stage is that would it be in the interest of justice and/or in public interest, to say that all these things are void ab initio. 27. In our view, the same cannot be simply treated as without jurisdiction and/or void ab initio, for the reasons given above, and also on the basis of the principles of de facto doctrine and that the citizens must have a right to judicial review, either before the Tribunal or before the High Court and when the Tribunal was not allowed to function because of the interim order of injunction, the jurisdiction of the High Court still remains as/the intention of the Parliament was clear under s. 14 of the said Act that as soon as from the appointed date the Administrative Tribunal shall exercise function in respect of service matters and then and then only the power of the High Court would cease and the High Court would have no jurisdiction. The appointed date became effective and revived only after 10th January, 1996, and accordingly within this period the High Court had jurisdiction to entertain and dispose of writ application. 28. It is well-settled principle that the Court seeks to avoid a construction that produces a futile, pointless, anomalous, illogical, absurd, unworkable and impracticable results. Accordingly all the writ application on service matters entertained and disposed by the High Court upto 10th January 1996 were valid and binding on all parties. 29. The second question is about the provision for appeal. Under s. 29(1) of the said Act, a writ application, pending before the High Court immediately before the establishment of the Tribunal under the said Act, shall stand transferred on that date to the Tribunal. So, all proceedings pending on the appointed date shall stand transferred and only thing is that the appeal which was pending on the appointed date shall not stand transferred or, in other words, in respect of the pending appeals the High Court have jurisdiction to proceed and dispose of. 30. In the Administrative Tribunals Act, nothing has been said with regard to writ application disposed of before appointed date and appeal not preferred on or before the appointed date. What would happen to those cases? 30. In the Administrative Tribunals Act, nothing has been said with regard to writ application disposed of before appointed date and appeal not preferred on or before the appointed date. What would happen to those cases? Under the Administrative Tribunals Act, there is no provision for appeal and that the Act is quite silent on this aspect of the matter. Before the appointed date any writ application is disposed and an appeal is preferred then the appeal will remain before the High Court and all pending writ applications will go before the Tribunal. Can it be said that a person who is aggrieved by an order finally disposing of writ application before the appointed date in respect of whom no appeal was filed before the appointed date, the right of appeal is taken away, and is it the clear intention of the Parliament that the aggrieved parties will have no remedy excepting of course availing of the remedies available under Art. 136 of the Constitution of India if any. 31. In the instant case, the order of appeal against and in respect of which leave is sought for, was passed before 10.1.1996, and the appeal is sought to be preferred one or two days after that date. The writ application which has been disposed of could not be transferred to the Tribunal as the same could not be treated as pending. The same should be treated as disposed of. 32. Can it be said that this order has reached its finality and nobody is entitled to any relief against such an order if they are aggrieved. 33. With regard to the right of appeal under clause 15 of the Letters Patent, in respect of interim order passed or rule made absolute by Learned Single Judge before the appointed date is concerned, the Administrative Tribunals Act is quite silent on this point. In case of pending matters in which interim order has been passed or orders have been passed thereof, there is no difficulty inasmuch as the said matter stands transferred to the Tribunal by virtue of the provisions of s. 29(1) of the said Act. In case of pending matters in which interim order has been passed or orders have been passed thereof, there is no difficulty inasmuch as the said matter stands transferred to the Tribunal by virtue of the provisions of s. 29(1) of the said Act. But in so far as the writ applications disposed of and the rule made absolute before the appointed date, and no appeal had been preferred or could have been preferred before the appointed date, the question is whether the appeal is maintainable under clause 15 of the Letters Patent before the Division Bench of the High Court, is a matter which requires deep consideration. 34. In Craies on Statute Law, Sixth Edition, at page 401 the following may be referred in this connection : "In Colonial Sugar Refining Co. vs. Irving, an application was made to the Judicial Committee to dismiss an appeal from the judgment of the Supreme Court of Queensland, on the ground that the power of the court below to give leave to appeal had been abrogated by s. 39 of the Australian Commonwealth Judiciary Act, 1903. The action in which the appeal was brought was commenced on October 25, 1902. The Judiciary Act came into force on August 25, 1903, and the leave to appeal was given on September 4, 1903. The Judicial Committee dismissed the application, Lord Macnaghtan saying. As regards the general principles applicable to the case there was no controversy. On the one hand it was not disputed that if the matter in question be a matter of procedure only, the petition (to dismiss) is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the (Judiciary) Act, it was conceded that in accordance with a long line of authorities from the time of Lord Coke to the present day the appellants (the Sugar Co.) would be entitled to succeed. The judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged, to him as of right is a very different thing from regulating procedure". 35. The Full Bench decision of this Court, in the case of Mahendranath Ray vs. Delraddi Chakdar, reported in AIR 1966 Cal 285 , was that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred. But such exclusion must either be explicitly expressed or clearly implied. The jurisdiction of a Civil Court to entertain a suit between bargadar and the owner whose land the bargadar cultivates, with regard to any of the matters specified in sub-so (1) of s. 7 of the West Bengal Bargadars Act, is not barred by sub-so (2) of S. 9 of the said Act, where no board has been established under the Act for the local area within which the land in question is situated. 36. In that case, S. 7(1) provides that in case of every disputes regarding certain matters mentioned therein between bargadar and the owner, such dispute shall be decided by the board established for the local area within which such land is situated and S. 9(2) of the said Act provides that no Court shall entertain any suit or proceeding whatsoever in respect of the matter required under sub-so (1) of S. 7, to be decided by the board referred to in that section. Thus a jurisdiction of the Civil Court will be excluded in such a case only where a board has been established. Where a board has not been established in any particular area, in such a case the existing jurisdiction of the Civil Court will not be ousted. 37. In short, under the provisions of this Act, pending writ applications should stand transferred to the Tribunal only, and that the High Court will have no jurisdiction to entertain any writ application and/or dispose of the same after the Tribunal is established and functioning. 37. In short, under the provisions of this Act, pending writ applications should stand transferred to the Tribunal only, and that the High Court will have no jurisdiction to entertain any writ application and/or dispose of the same after the Tribunal is established and functioning. The only thing that any appeal preferred before the appointed date and remaining pending on the appointed date, shall not be transferred, but shall remain with the High Court for disposal by the Division Bench. The Parliament had not expressly provided any provision to matters which have been disposed of before the appointed date and no appeal could have been preferred on or before the appointed date before this Court. The Tribunal is an original authority and not the appellate authority, and that against the order, and that under the Act no appeal has been provided to any other authority. Of course, the powers of the Supreme Court under Arts. 32 and 136 of the Constitution are not affected by the Act and those powers of the Suprem,e Court have been allowed to remain intact. 38. In Dhulabhai vs. State of M.P., reported in AIR 1969 SC 78 , the five Judge judement of the Supreme Court has laid down certain principles regarding the exclusion of jurisdiction of a Civil Court. The relevant ones for this case are as follows : "(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not............ (5) Where the particular Act contains no machinery for refund of tax collected in excess of constituti0:t:lallimits or illegally collected, a suit lies (7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. Case law discussed." 39. These principles were laid down by the Supreme Court in the context of the provisions of s. 17 of the M.B. Sales Tax Act, 1950, wherein it was provided that "no assessment made and no order passed, the rules made thereunder by the Assessing Authority, Appellate Authority or the Commissioner, shall be called into question in any Court. 40. The Judicial Committee, in the case of Mask & Company, reported in 67 LA 222: (AIR 1940 PC 105), had made the following observation : "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." 41. Densing, LJ, said in R vs. Medical Appeal Tribunal, exp Gilmore (1957) 1QB 574 at 583 : "I find it very well-settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words." 42. The view of the English Court was that presumption was always in favour of judicial review. H.W.R. Hade in his book Administrative Law, 17th Edition, has said: "The Anisminic case and its sequals were the culmination of the judicial insistence, so often emphasised in this work, that administrative agencies and tribunals mast at all costs be prevented from being sole judges of the validity of their own acts. If this were allowed, to quote Denning LJ again, 'the rule of law would be at an end'. Lord Wilberforce expressed the same idea in different words : What would be the purpose of defining by statute the limit of a tribunal's powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed? Lord Wilberforce expressed the same idea in different words : What would be the purpose of defining by statute the limit of a tribunal's powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed? This is the identical point that was made so clearly by Farwell LJ in the Shoreditch case quoted earlier, when he said that subjection to the jurisdictional control of the High Court was a necessary and inseparable incident to all tribunals of limited jurisdiction. That passage was quoted with approval in the Anisminic case as correctly expressing the fundamental principle which maintains a coherent and orderly legal system. In order to preserve this vital policy the courts have been forced to rebel against Parliament. The object of the ouster clause in question in the Anisminic case was to keep the distribution of compensation outside the courts altogether, since the proved claims will normally exceed the available compensation and they must all be finally settled before the claimants can be paid their dividend. In the Pearlman case the object of the legislation was to make the county court's decision final so as to save further litigation between landlord and tenant. The intention of Parliament was clear in both cases. In refusing to enforce it the court was applying a presumption which may override even their constitutional obedience, namely that jurisdictional limits must be legally effective. This is tantamount to saying that judicial review is a constitutional fundamental which even the sovereign Parliament cannot abolish. Parliament is mostly concerned with short-term consideration and is strangely indifferent to the paradox of enacting law and then preventing the courts from enforcing it. The judges, with their eye on the long-term and the rule of law, have made it their business to preserve a deeper constitutional logic, based on their repugnance to allowing any subordinate authority to obtain uncontrollable power. Needless to say, they have maintained throughout that they are correctly interpreting Parliament's true intentions. In the Anisminic case they did so behind a dense screen of technicalities about jurisdiction and nullity; and Lord Wilberforce bravely said : In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the courts and the executive. In the Anisminic case they did so behind a dense screen of technicalities about jurisdiction and nullity; and Lord Wilberforce bravely said : In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the courts and the executive. That this is fair comment, at least at the most sophisticated level of legal thought, is shown by the fact that the policy of the judges has been wisely tolerated by Parliament. The restricted meaning given to no certiorari clauses was never made the object of a legislative counterattack. After the Anisminic decision the government did indeed propose a more elaborate ouster clause to empower the Foreign Compensation Commission to interpret the Orders in Council for itself and making its interpretations unquestionable. But after criticism both in and out of Parliament this proposal was dropped, and instead provision was made for a right of appeal direct to the Court of Appeal, but no further, on any question as to the jurisdiction of the Commission of the interpretation of the Orders in Council; and all restriction of remedies was removed as regards breaches of natural justice. So far, therefore, from joining issue with the courts over their recalcitrance, Parliament to a large extent restored the judicial remedies which the ouster clause had vainly attempted to take away, and which the courts. had insisted on preserving." 43. This is the legal position in England where there is no Written Constitution. This principle is not applicable as under Art. 323A of the Constitution, the Parliament has been authorised to take away the jurisdiction of the High Court which was done in this case. 44. The Supreme Court, in the case of Garikapati vs. Subbaiah Chowdhury, reported in AIR 1957 SC 540 , held that the right of appeal is not a mere procedure, but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal, then in force, are preserved by the parties thereto. 45. 44. The Supreme Court, in the case of Garikapati vs. Subbaiah Chowdhury, reported in AIR 1957 SC 540 , held that the right of appeal is not a mere procedure, but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal, then in force, are preserved by the parties thereto. 45. The right of appeal is a vested right and such right to enter the superior Court accrues to the litigant and exists along the date as on and from the date the lease commences and although it may actually exercise when the adverse judgment is pronounced; such a right is to be governed by the law prevailing at the date of the institution of the suit or the proceeding and not by law prevailing at the date of the decision or at the date of filing of the appeal. This vested right of appeal can be taken away only by subsequent enactment, if it is so provided expressly or by necessary intentment or otherwise. In that case, suit filed before the Constitution came into effect, right of appeal was granted to suit valued at about Rs. 10,000/-. Subsequent change in the law, for appeal to the Supreme Court, the valuation of the appeal raised from Rs. 10,000/- to Rs. 20,000/-. In this connection, the Supreme Court held that in that case, the right to appeal in respect of suit valued above Rs. 10,000/-, would be still there in spite of subsequent change in the law. 46. In other words, the Supreme Court has clearly laid down the proposition in this case that the legal pursuit of a remedy suit, appeal and second appeal is really but steps in a series of proceedings connected by an intrinsic unity and/or to be regarded as one legal proceedings. 47. The Supreme Court also observed in this case that in construing the Articles of the Constitution, the Courts must bear in mind a cardinal rule construction that statute should be interpreted, if possible, so as to respect the vested right. the Golden Rule of Construction is that in tl1(' absence of anything in the enactment to show that it was to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claimant in litigation at the time when the Act was passed. 48. the Golden Rule of Construction is that in tl1(' absence of anything in the enactment to show that it was to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claimant in litigation at the time when the Act was passed. 48. In the next place, the Court must take into account the surrounding circumstances that existed at the time when the Constitution makers framed the Constitution and for which the provision had to be made by them. In construing the Articles relating to appellate jurisdiction of the Supreme Court, it is well to remember that several categories of persons who were at the date of the Constitution, interested in the right of appeal from judgments, decrees or final orders of a High Court to a superior, in one way or the other. 49. This case was referred to by Mr. Bose, learned Counsel appearing on behalf of the applicant, for leave for the proposition that the eases disposed of before the appointed date, in the absence of any contrary provision, is still maintainable in the High Court. 50. The ratio laid down by this judgment, if considered in the light of the provisions of the Administrative Tribunals Act, and the decision of the Supreme Court in Sampath Kumar vs. Union of India, reported in (1987) 1 SCC 124 it will be evident that the Act in question has not specifically provided any provision for appeal in respect of matters disposed of before the appointed date, but no appeal could have been preferred before that date. Only the appeal pending at the notified date shall not be transferred to the Tribunal. It cannot be said that a writ rule or writ application finally disposed of could be treated as pending proceeding and. could be transferred to Tribunal for adjudication. Tribunal has not been conferred with any power to set aside any order passed by a Learned• Single Judge of this Court and the Act in question did provided for any appellate forum. could be transferred to Tribunal for adjudication. Tribunal has not been conferred with any power to set aside any order passed by a Learned• Single Judge of this Court and the Act in question did provided for any appellate forum. It appears that the Parliament in its wisdom did not provide any remedy for such contingency, because of the clear provision of s. 28 of the said Act, which provides that on and from the date on which any jurisdictional power and authority become exercisable by a Tribunal in relation to service matters, the High Court shall not be entitled to exercise any jurisdictional power or authority in relation to such matters. This provision, as it appears to us, is intended to total cut down the power of the High Court in such matters. 51. The Supreme Court, in Sampath Kumar's case (supra), have held that the Administrative Tribunals Act, by its s. 28, has excluded that power of judicial review exercised by the High Court in service matters under Art. 226 and Art. 227. But it has not excluded the judicial review wholly inasmuch as the jurisdiction of the Apex Court under Arts. 32 & 136 have been kept intact. There is thus a forum where matters of importance and cases of grave injustice can be brought for determination and rectification. Under clause 15 of the Letters Patent, against a judgment of the Learned Trial Judge, aggrieved party has a right of appeal as a matter of course, without any pre-conditions. But such right has come to an end by the provisions of the said Act and as interpreted by the Supreme Court in Sampath Kumar's case. 52. True, the Supreme Court has said in Garikapati's case (supra) that vested right of appeal can be taken away only by subsequent enactment, if it is so provided expressly or by necessary intentment and not otherwise. 52. True, the Supreme Court has said in Garikapati's case (supra) that vested right of appeal can be taken away only by subsequent enactment, if it is so provided expressly or by necessary intentment and not otherwise. But reading the provisions of the Administrative Tribunals Act, read in the light of the judgment of the Supreme Court in Sampath Kumar's case (supra), that the jurisdiction of the High Court to entertain appeal in respect of matters for which no suitable provision has been made in the Act itself, or in other words, the writ applications or rule disposed of before the appointed date, but appeal could not be presented before the appointed date, the High Court still retains its jurisdiction, in that event, it may be said that this Court is intended to retain jurisdiction through the back door. When a jurisdiction of this Court has been taken away in accordance with the provision of Art. 323A of the Constitution and when the Act in question did not take care of a situation like this, this Court is helpless to do anything into the matter inasmuch as it is said that the Parliament knows the need of the people and the Parliament knows everything, and there is a presumption that when the Parliament does something, it docs it knowing fully well of the consequences and taking into consideration of the situation. 53. Accordingly, it must be taken that the Parliament, in its wisdom, thought that the party concerned against whom writ applications have been made absolute and finally disposed of and even though they are aggrieved thereby and they may be suffering injustice, for them the right of appeal under clause 15 of the Letters Patent has been denied to them even though that the doors of the Supreme Court are not open to them as it was open to them under clause 15 of the Letters Patent before the Division Bench of the High Court. As pointed out by the Supreme Court in Sampath Kumar's case (supra), that the forum under Arts. 32 & 136 is available in case of matters of importance and where grave injustice can be brought for determination and rectification, or in other words, excepting matters of importance and matters where there is grave injustice, perhaps a party cannot approach to the Supreme Court in such matters. 54. 32 & 136 is available in case of matters of importance and where grave injustice can be brought for determination and rectification, or in other words, excepting matters of importance and matters where there is grave injustice, perhaps a party cannot approach to the Supreme Court in such matters. 54. The intention of the Parliament with regard to a particular statute is very clear that the Parliament is intended to cut down totally the power of the High Court and that it is not for this Court to decide a point in such a manner which may be construed as that the Court is legislating or providing a contingency which was not provided by the Parliament. It is entirely within the domain of the Parliament and not within the domain of the High Court to say or to suggest anything in the matter. Parliament only intended that in respect of these matters, the Tribunal and the Supreme Court have the jurisdiction to the total exclusion of the High Court. 55. When the power of the High Court has been taken away by the said Act under s. 28, whatever may be the consequences and the injustice that may have and might have caused to a part litigant, this Court is not in a position to say or to suggest anything in the matter as the High Court is bound by the statute. When the provision of the statue has been thoroughly examined by the Supreme Court in Sampath Kumar's case (supra), it is no longer possible on the part of this Court to overcome this difficulty which has been highlighted by this Court. 56. Lord Radcliffe, in A-G for Canada vs. Hallett & Carey Ltd., (1952) AC 427, at p 449, said: "There are many so-called rules of construction that courts of law have resorted to in their interpretation of statutes but the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention." 57. We are unable to accept the contention of Mr. We are unable to accept the contention of Mr. Bose and cannot extend the appellate jurisdiction of the High Court in respect of writ applications disposed of or orders passed therein for which no forum has been established and as the High Court has been denuded of all its powers in the matter, and the• matter is left only at the wisdom of the Parliament and the matter may be left to be decided by the wider heads and not by us. 58. Accordingly, we are of the view that the right of appeal which was there to the parties at the time of filing of the writ application, will no longer be available under clause 15 of the Letters Patent, in view of the provisions of s. 28 of the said Act and whose validity has been upheld by the Supreme Court in Sampath Kumar's case (supra). Consequently, we cannot grant any leave to prefer an appeal after the judgment delivered by the Division Bench of this Court on 22.01.1996. . 59. Even in a case where the application has been filed for leave before that date but the effective date for the purpose of pendency of the appeal would be for which the leave is granted. It is not a case of contention of delay in preferring the appeal, but granting leave to prefer an appeal. But the appeal should be deemed to have been filed on the date when leave is granted to prefer the appeal and the appeal is accordingly filed. 60. In view of the above, the application for leave to file appeal on usual terms stands rejected with the observation made above. Dibyendu Bhusan Dutta, J.: I agree. Application rejected.