Orissa Administrative Tribunal Bar Association versus Union of India & others

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 6805 of 2022

Orissa Administrative Tribunal Bar

Association

…Appellant

versus

Union of India & others …Respondents

And With

Civil Appeal No 6806 of 2022

J U D G M E N T

Dr. Dhananjaya Y Chandrachud, CJI

Table of Contents

A. Background....................................................................................................... 4

i. Factual background...................................................................................... 4

ii. The impugned judgment ............................................................................ 10

B. Submissions ................................................................................................... 12

C. Issues............................................................................................................... 17

D. Analysis........................................................................................................... 19

i. An overview of the proceedings arising from the abolition of the Madhya

Pradesh Administrative Tribunal and the Tamil Nadu Administrative Tribunal

a. The abolition of the MPAT......................................................................... 19

b. The abolition of the TNAT ......................................................................... 21

ii. The Writ Petitions instituted before the Orissa High Court were

maintainable........................................................................................................ 23

iii. Article 323-A does not preclude the Union Government from abolishing

SATs .................................................................................................................... 25

iv. Applicability of Section 21 of the General Clauses Act........................... 32

a. There is no bar to the applicability of Section 21 of the General Clauses Act

to the administrative order establishing the OAT .............................................. 33

b. Section 21 of the General Clauses Act is otherwise applicable to the

Administrative Tribunals Act ............................................................................. 37

v. The notification dated 2 August 2019 is not violative of Article 14 of the

Constitution ........................................................................................................ 47

a. The notification dated 2 August 2019 is not absurd or based on irrelevant or

extraneous considerations................................................................................ 47

b. The principles of natural justice have not been violated ............................ 56

vi. The Union Government did not become functus officio after establishing

the OAT ............................................................................................................... 58

vii. The notification dated 2 August 2019 is valid despite not being

expressed in the name of the President of India ............................................. 61

viii. The abolition of the OAT is not violative of the fundamental right of

access to justice................................................................................................. 67

ix. The State Government did not take advantage of its own wrong........... 70

x. The failure of the Union Government to conduct a judicial impact

assessment before abolishing the OAT does not vitiate its decision to

abolish the OAT.................................................................................................. 71

xi. Miscellaneous contentions ........................................................................ 74

E. Findings and conclusion................................................................................ 75

PART A

1. IA No. 52385 of 2022 (application for intervention by Mr C Ravichandran Iyer)

is allowed.

A. Background

i. Factual background

2. This appeal arises from a judgment of the Orissa High Court dated 7 June

2021 in a batch of writ petitions challenging the abolition of the Odisha

Administrative Tribunal.1 Before setting out the facts which gave rise to the

issues in this appeal, it is necessary to understand the context in which they

arose.

3. Parliament inserted Part XIV-A of the Constitution of India by the Constitution

(Forty-second Amendment) Act 1976. Part XIV-A consists of two articles,

Articles 323A and 323B. Article 323A empowers Parliament to provide for the

adjudication of certain disputes by administrative tribunals. Disputes

concerning the recruitment and conditions of service of persons appointed to

public services and posts in connection with the affairs of the Union or of any

State or local or other authority within the territory of India or under the control

of the Government of India or of any corporation owned or controlled by the

Government, may be adjudicated by administrative tribunals. Article 323B

empowers the legislatures of states to provide for the adjudication of certain

disputes (enumerated in clause 2 of Article 323B) by tribunals.

1 “OAT”

PART A

4. In pursuance of the power conferred upon it by Article 323A(1), Parliament

enacted the Administrative Tribunals Act 1985.2 The Statements of Objects

and Reasons of this legislation records that it was enacted in order to give

effect to Article 323A, and also because:

“a large number of cases relating to service matters are pending

before the various courts. It is expected that the setting up of such

Administrative Tribunals to deal exclusively with service matters

would go a long way in not only reducing the burden of the various

courts and thereby giving them more time to deal with other cases

expeditiously but would also provide to the persons covered by the

Administrative Tribunals speedy relief in respect of their

grievances.”

5. Section 4(1) of the Administrative Tribunals Act provides that the Central

Government shall establish an administrative tribunal known as the “Central

Administrative Tribunal”3 to adjudicate disputes concerning the recruitment

and conditions of service of persons in connection with posts under the Union

or All-India Service,

4 including disputes with respect to remuneration,

pension, tenure, leave, and disciplinary matters.5

In terms of Section 4(2) of the Administrative Tribunals Act, the Central

Government may establish an administrative tribunal for a particular state,

upon receiving a request in this regard from the concerned State Government.

Once created, the state administrative tribunal6 is charged with exercising

exclusive jurisdiction over disputes concerning the recruitment and conditions

of service of persons in connection with posts under the concerned state or

2 “Administrative Tribunals Act”

3 “CAT”

4 Section 14 read with Section 3(q), Administrative Tribunals Act

5 Section 3(q), Administrative Tribunals Act

6 “SAT”

PART A

any civil service of that state,7 including disputes with respect to remuneration,

pension, tenure, leave, and disciplinary matters.8

6. The SAT is prohibited from exercising jurisdiction, authority, or power over a

matter which the CAT’s jurisdiction extends.9 While Section 4(2) of the

Administrative Tribunals Act governs the establishment of SATs, there is no

corresponding provision which stipulates the procedure to be followed to

discontinue or abolish them. In terms of Section 29 of the Administrative

Tribunals Act, suits or other proceedings pending before courts or other

authorities which would have been within the jurisdiction of the SAT if the

cause of action in such suit or proceeding had arisen after the establishment

of the SAT, stand transferred to the SAT on the date of its establishment. In

other words, cases pending before other fora (including cases pending before

the High Court of the relevant state but excluding those pending before the

Supreme Court) stand transferred to the SAT upon its establishment.

Following the enactment of the Administrative Tribunals Act, various states

including Andhra Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh,

and Maharashtra requested the Central Government to establish an SAT, and

the Central Government issued notifications establishing them. Odisha was

one amongst these states. Upon receiving a request from the State of Odisha,

the Central Government established the OAT on 4 July 1986 by issuing

7 Section 15 read with Section 3(q), Administrative Tribunals Act

8 Section 3(q), Administrative Tribunals Act

9 Section 15(4), Administrative Tribunals Act

PART A

Notification No. GSR 934(E), which was published in the Gazette of India.

The OAT commenced functioning soon thereafter.

7. At this time, Section 28 of the Administrative Tribunals Act was still in force.

Section 28 excluded the jurisdiction of all courts except the Supreme Court or

the Industrial Tribunal or Labour Court in relation to matters over which the

CAT and the SAT exercised jurisdiction. Section 28 was enacted pursuant to

the enabling provision in Article 323-A of the Constitution, namely clause 2(d)

of Article 323-A. Clause 2(d) provided that Parliament may exclude the

jurisdiction of all courts, except of the Supreme Court under Article 136 of the

Constitution with respect to disputes which administrative tribunals were

empowered to adjudicate under clause 1 of Article 323-A. The effect of

Section 28 of the Administrative Tribunals Act, therefore, was that appeals

from the OAT lay directly to the Supreme Court under Article 136 of the

Constitution. However, this changed with the decision of this Court in L.

Chandra Kumar v. Union of India (1997) 3 SCC 261. In its decision in that

case, this Court inter alia ruled that:

a. Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B were

unconstitutional to the extent that they excluded the jurisdiction of the

High Courts under Articles 226 and 227 and of the Supreme Court under

Article 32 of the Constitution;

b. Section 28 of the Administrative Tribunals Act was unconstitutional as

were ‘exclusion of jurisdiction’ clauses in all other legislation enacted

under Articles 323-A and 323-B;

PART A

c. The jurisdiction conferred upon the High Courts under Articles 226 and

227 and upon the Supreme Court under Article 32 of the Constitution

form a part of the basic structure of the Constitution; and

d. Other courts and Tribunals may perform a supplemental role in

discharging the powers conferred by Articles 226/227 and 32 of the

Constitution.

As a consequence of this decision, challenges under Article 226 of the

Constitution to the decisions rendered by the SATs lay to Division Benches

of the respective High Courts within whose jurisdiction the SATs operated.

The Supreme Court’s jurisdiction could be invoked under Article 136 against

the decisions of the High Courts.

8. The decision in L. Chandra Kumar (supra) seems to have influenced the

State of Odisha to request the Union Government to abolish the OAT. By a

letter dated 16 September 2015, the Chief Secretary to the Government of

Odisha requested the Secretary to the Government of India, Department of

Personnel and Training to issue a notification under the Administrative

Tribunals Act abolishing the OAT. The letter recorded the State Government’s

reason for making this request in the following terms:

“Government of Odisha is of the view that the Tribunal is not able to

serve its original objectives, particularly after the Hon’ble Apex Court

gave the Judgment in L. Chandra Kumar case of 1997. As a result

of this judgment, the very purpose of having a State Administrative

Tribunal (SAT) for speedy redressal of the grievances of the State

Government employees is not fulfilled as any way the aggrieved

parties have to approach the Hon’ble High Court before approaching

the Apex Court for a final verdict.”

PART A

A note annexed to the letter dated 16 September 2015 elaborated on the State

Government’s rationale for seeking to abolish the OAT:

“As a consequence of the landmark judgment of the Supreme Court

[in L. Chandra Kumar], the objective of the establishment of the

Tribunal to give quick justice to the government employees was

defeated… The aggrieved parties are approaching the High Court

against OAT orders and then the Supreme Court resulting in

protracted litigation … Government is incurring a significant sum of

expenditure on the OAT … The abolition of the Tribunal will reduce

the burden of litigation for the Government and will also reduce the

time for resolution of disputes / litigation.”

Evidently, the State of Odisha was of the opinion that the raison d'etre of the OAT

was defeated – the fact that the OAT’s decisions were subject to two tiers of

challenge (first before the High Court and then the Supreme Court) meant that

speedy justice could not be delivered. The State Government proposed to transfer

the cases pending before the OAT to the Orissa High Court.

9. On 12 January 2016, the Union Government requested the State of Odisha

to provide information about the Orissa High Court’s views on the proposal to

abolish the OAT, the legal mechanism by which the cases pending before the

OAT could be transferred to the Orissa High Court, and regarding the plan of

action with respect to the employees of the OAT. Accordingly, on 1 February

2016, the State of Odisha solicited the Orissa High Court’s views on the

matter. Thereafter, the Union Government communicated its ‘in-principle’

approval of the proposal to abolish the OAT to the State of Odisha.

10. By a letter dated 5 February 2019 to the Union Government and the State of

Odisha, the Orissa High Court conveyed that that it had resolved to accept

the decision to abolish the OAT and the attendant proposals regarding the

PART A

transfer of employees and pending cases. On 22 February 2019, the State of

Odisha wrote to the Union of India, intimating it that the employees of the OAT

would be “suitably adjusted in other heads of the department under the

Government of Odisha depending upon the vacancies in equivalent cadre and

post.” The letter also stated that the State Government had decided to transfer

the cases pending before the OAT to the Orissa High Court and that the latter

had accepted this decision.

11. The Union Government took recourse to Section 21 of the General Clauses

Act 189710 and abolished the OAT by issuing Notification GSR 552(E) on 2

August 2019. The relevant portion of this notification is extracted below:

“Now, therefore, in exercise of the powers conferred by sub-section

(2) of Section 4 of the Administrative Tribunals Act 1985, read with

Section 21 of the General Clauses Act 1897 (10 of 1897), the

Central Government hereby rescinds the said notification number

GSR 934(E), dated the 4th July 1986, except as respects things

done or omitted to be done before such rescission, with effect from

the date of publication of this notification in the Gazette of India.”

ii. The impugned judgment

12. In 2019, each of the appellants filed a Writ Petition before the Orissa High

Court for quashing the notification dated 2 August 2019 (as well as the

decision of the Cabinet of the State Government dated 9 September 2015 to

abolish the OAT). After considering the rival submissions, the Orissa High

Court dismissed the Writ Petitions by its common judgment dated 7 June

2021, for the following reasons:

10 “General Clauses Act”

PART A

13.

a. Article 323-A is an enabling provision. It does not make it mandatory for

the Union Government to establish administrative tribunals or refrain

from abolishing them once they are established;

b. The decision to abolish the OAT is an administrative decision. There is

therefore no bar to the Union Government invoking Section 21 of the

General Clauses Act read with Section 4(2) of the Administrative

Tribunals Act to rescind the notification establishing the OAT;

c. The invocation of Section 21 of the General Clauses Act does not result

in a denial of justice because the cases pending before the OAT will be

heard by the Orissa High Court. Hence, litigants are not prejudiced by

the invocation of Section 21;

d. The proposition that what cannot be done directly cannot be done

indirectly is not applicable because neither Article 323-A of the

Constitution nor Section 4(2) of the Administrative Tribunals Act prohibits

the Union or State Government from abolishing an SAT;

e. The Union Government was not rendered functus-officio after it

established the OAT because it was exercising an administrative

function and not a judicial or quasi-judicial function;

f. The jurisdiction of the Orissa High Court was neither created nor

enlarged as a consequence of the notification dated 2 August 2019.

Rather, the High Court’s jurisdiction was revived;

PART B

g. The decision-making process of the Union and State Governments was

not arbitrary, irrational, or unreasonable, and it did not violate Article 14

of the Constitution;

h. There is no factual foundation for the allegation that the decision to

abolish the OAT was motivated by government servants seeking to

avoid contempt proceedings before the OAT. In any event, all cases

including contempt proceedings would be heard by the Orissa High

Court; and

i. The notification dated 2 August 2019 was not vitiated for the reason that

it did not state that it had been issued in the name of the President of

India.

The High Court also observed that the procedure adopted by the Union

Government may have been rendered arbitrary if it had failed to ensure that the

High Court was consulted prior to abolishing the OAT because such a decision

would directly impact the functioning of the High Court.

B. Submissions

14. Mr. Ashok Panigrahi and Dr. Aman Hingorani, learned counsel led arguments

on behalf of the appellants. They were joined by Mr. C Ravichandran Iyer,

Advocate-on-Record, who is an intervenor in this appeal.

PART B

15. Their submissions were:

a. Article 323-A of the Constitution is in the nature of a mandate. It requires

the Union Government to establish SATs and does not empower the

Union Government to abolish a SAT, once established;

b. Section 21 of the General Clauses Act cannot be invoked to abolish the

OAT. The power to abolish a SAT must flow from the same legislation

that vests the Union Government with the power to establish SATs. The

Administrative Tribunals Act does not vest either the Union Government

or the State Government with the power to abolish SATs. In any event,

the conditions for the invocation of Section 21 of the General Clauses

Act are not satisfied. The abolition of the OAT was therefore without legal

basis;

c. The Administrative Tribunal (Amendment) Bill 2006 was introduced to

provide an enabling provision for the abolition of SATs and for the

transfer of pending cases from the abolished SAT to the relevant High

Court. This bill was not enacted into law and therefore the Union

Government and the State Governments do not have the power to

abolish SATs;

d. The State Government’s interpretation of the decision in L. Chandra

Kumar (supra) as reducing the efficiency of the adjudication process for

service matters is incorrect and unreasonable;

PART B

e. The OAT has two regular benches and two circuit benches but the High

Court has a single bench in Cuttack. The abolition of the OAT makes the

court system less accessible to litigants and violates the fundamental

right of access to justice;

f. The Union and State Governments have violated the principles of natural

justice by failing to provide the OAT Bar Association and the litigants

before the OAT with an opportunity to be heard before abolishing the

OAT. This is also violative of Article 14 of the Constitution;

g. The notification dated 2 August 2019 by which the OAT was abolished

is invalid because it is not expressed in the name of the President of

India in terms of Article 77 of the Constitution;

h. The Constitution does not envisage a transfer of cases from any court

to a particular High Court except as specified in Article 228 of the

Constitution;

i. The State Government is trying to take advantage of its own wrong by

failing to fill the vacancies in the OAT and creating the conditions for the

abolition of the OAT. The failure of the State Government to fill the

vacancies is also a breach of Article 256 of the Constitution;

j. The abolition of the OAT has the effect of enlarging the jurisdiction of the

Orissa High Court but Parliament alone has the power to create or

enlarge jurisdiction;

PART B

k. The real reason for the abolition of the OAT is that officials in Odisha

faced charges of contempt before the OAT and sought to avoid these

proceedings by having the OAT abolished;

l. A judicial impact assessment ought to have been carried out before

abolishing the OAT;

m. Once the Union Government established the OAT, it became functus

officio; and

n. The Union Government ought to have obtained the permission of this

Court before issuing the notification dated 2 August 2019.

16. The submissions urged on behalf of the appellants have been opposed by the

Union of India and the State of Odisha. Mr. Balbir Singh, Additional Solicitor

General made the following submissions for the Union of India:

a. Section 4(2) of the Administrative Tribunals Act enables the Union

Government to establish an SAT upon receiving a request in this behalf

from the State Government. Consequently, it is the prerogative of the

State Government to establish, continue, or abolish the relevant SAT;

b. Section 21 of the General Clauses Act may be pressed into service to

abolish an SAT. Neither the Constitution nor the Administrative Tribunals

Act is required to be amended to give the Union Government the power

to abolish an SAT;

PART B

c. The fundamental right to justice has not been violated because the

cases pending before the OAT were transferred to the Orissa High

Court;

17. Mr. Ashok Kr Parija, learned Advocate General for the State of Odisha

supplemented the arguments put forward by the Union of India. He urged that:

a. The Writ Petitions before the Orissa High Court which led to the

impugned judgment were not maintainable because the rights of the

petitioners were not affected by the abolition of the OAT. Litigants cannot

claim a fundamental right to access the OAT;

b. The State Government took a policy decision to abolish the OAT, in light

of the low rate of disposal of cases by the OAT. The State Government

is also of the view that the purpose of the OAT (to ensure speedy

disposal of cases) is not served subsequent to the decision of this Court

in L. Chandra Kumar (supra);

c. The word “may” in Section 4 of the Administrative Tribunals Act is

unambiguous and must be interpreted strictly.

d. An intra-court appeal is different from an appeal to a separate forum and

the former streamlines the process of adjudication. It cannot be said that

there is no advantage to be had by abolishing the OAT;

e. The principles of natural justice were not violated;

PART C

The abolition of the OAT does not make the court system less accessible

to litigants because they would have been required to travel to Cuttack

in any event in order to participate in the writ proceedings before the

Orissa High Court. The number of cases transferred from the Circuit

Benches of the OAT at Berhampur and Sambalpur to the Orissa High

Court are 275 and 235 respectively. The Principal Bench at

Bhubaneswar and the regular Bench at Cuttack, on the other hand, had

11,483 and 32,911 cases respectively, which were transferred to the

Orissa High Court. Financial hardships faced by litigants can be

alleviated through compensation schemes which exist for this purpose;

and

f. It was not mandatory for the government to conduct a judicial impact

assessment test before abolishing the OAT.

18. In its counter affidavit, the Orissa High Court detailed the action taken to

transfer the cases pending before the OAT to the High Court – nodal officers

were appointed to monitor the transfer, a committee was constituted to

oversee the transfer, the committee devised a methodology for shifting

pending cases, and a dedicated branch called the ‘OA Branch’ was created

to deal exclusively with transferred matters.

C. Issues

19. Based on the submissions which have been canvassed by the parties, the

issues which arise for determination are:

PART C

a. Whether the Writ Petitions instituted by the appellants before the Orissa

High Court were maintainable;

b. Whether Article 323-A of the Constitution makes it mandatory for the

Union Government to establish SATs;

c. Whether Section 21 of the General Clauses Act can be invoked to

rescind the notification establishing the OAT, thereby abolishing the

OAT;

d. Whether the abolition of the OAT is arbitrary and therefore violative of

Article 14 of the Constitution;

e. Whether the abolition of the OAT is violative of the fundamental right of

access to justice;

f. Whether the Union and State Governments have violated the principles

of natural justice by failing to provide the OAT Bar Association and the

litigants before the OAT with an opportunity to be heard before arriving

at a decision to abolish the OAT;

g. Whether the notification dated 2 August 2019 is invalid because it is not

expressed in the name of the President of India;

h. Whether the transfer of cases from the OAT to the Orissa High Court

has the effect of enlarging the jurisdiction of the latter;

i. Whether the State Government took advantage of its own wrong by

ceasing to fill the vacancies in the OAT;

PART D

j. Whether the failure of the Union Government to conduct a judicial impact

assessment before abolishing the OAT vitiates its decision to abolish the

OAT; and

k. Whether the Union Government became functus officio after

establishing the OAT.

D. Analysis

i. An overview of the proceedings arising from the abolition of the Madhya

Pradesh Administrative Tribunal11 and the Tamil Nadu Administrative

Tribunal12

20. The parties to this appeal have advanced some arguments in relation to

decisions arising from the abolition of certain other SATs. It is therefore

necessary to understand the decisions of this Court in relation to the abolition

of those SATs. To this end, the abolition of the MPAT and the TNAT as well

as the legal proceedings arising from those decisions are briefly discussed.

The effect of these proceedings on the decision in this case is also examined.

a. The abolition of the MPAT

21. The State of Madhya Pradesh was reorganized into the State of Madhya

Pradesh and the State of Chhattisgarh with the enactment of the Madhya

Pradesh Reorganization Act 2000. Section 74(1)(ii) of this legislation vested

the State Governments of these two states with the power to abolish “every

11 “MPAT”

12 “TNAT”

PART D

Commission, Authority, Tribunal, University, Board or any other body

constituted under a Central Act, State Act or Provincial Act and having

jurisdiction over the existing State of Madhya Pradesh.”

22. The State of Madhya Pradesh issued a notification abolishing the MPAT

pursuant to a decision taken by it along with the State of Chhattisgarh. This

notification was challenged before the Madhya Pradesh High Court. The

petitioners in that case also challenged the constitutionality of Section 74 of

the Madhya Pradesh Reorganization Act 2000.

23. The High Court upheld the constitutional validity of sub-clause (1) of Section

74. It held that sub-clauses (2) and (3) of Section 71 (concerning the

termination of employees and the compensation for the unexpired period of

their tenure respectively) were ultra vires the Constitution. The High Court

also held that the State Government could not have abolished the MPAT by

issuing a notification. Rather, it was required to request the Union

Government to issue a notification abolishing the MPAT because the MPAT

was established by the Union Government. It held that the Union Government

would have no choice but to accept such a request and issue a notification to

this effect. The High Court accordingly quashed the notification issued by the

State of Madhya Pradesh by which the MPAT was abolished.

24. On appeal, this Court upheld the interpretation accorded to the Madhya

Pradesh Reorganization Act 2000 by the Madhya Pradesh High Court. The

PART D

decision of this Court was reported as M.P. High Court Bar Assn. v. Union

of India (2004) 11 SCC 766.13

As seen from a discussion of the facts, the MPAT Abolition Case (supra)

concerned the powers of the State of Madhya Pradesh under the Madhya

Pradesh Reorganization Act 2000 as well as the constitutional validity of

certain provisions of that enactment. This Court was not called upon to

adjudicate whether Section 21 of the General Clauses Act would be

applicable to Section 4(2) of the Administrative Tribunals Act. A decision on

the abolition of an SAT by the exercise of special powers under a legislation

enacted for the reorganization of a state does not have any bearing on

whether an SAT may be abolished in exercise of powers under the

Administrative Tribunals Act. The MPAT Abolition Case (supra) is therefore

not germane to the issue of whether Section 21 of the General Clauses Act

would be applicable to Section 4(2) of the Administrative Tribunals Act.

However, the issue whether the decision to abolish the MPAT was arbitrary,

unreasonable and therefore violative of Article 14 of the Constitution was

decided in that case. A similar issue is before us in the present case and this

aspect of the decision in the MPAT Abolition Case (supra) may be

instructive.

b. The abolition of the TNAT

Between 1994 and 2004, the Government of Tamil Nadu requested the Union

Government to abolish the TNAT. Thereafter, it stopped appointing the

13 “MPAT Abolition Case”

PART D

Chairperson, the Vice Chairperson and the Members of the TNAT, which was

rendered inoperative as a result. Approximately 30,000 cases were pending

before it at this time. Various parties instituted writ petitions before the Madras

High Court seeking directions to the State Government of Tamil Nadu to fill

the vacancies in the TNAT to enable it to function until it was abolished. These

writ petitions culminated in the decision of the Madras High Court in Tamil

Nadu Government All Department Watchman and Basic Servants

Association v. Union of India14.

25. In its decision in the above case, the Madras High Court held that the Union

Government had the power to rescind a notification establishing an SAT,

under Section 21 of the General Clauses Act. It relied on the MPAT Abolition

Case (supra) to hold that it was open to the State Government to take a “policy

decision” to abolish the SAT and request the Union Government to abolish it.

It further held that the latter would have no option but to issue a notification in

this regard. On this basis, it directed the Union Government to issue a

notification abolishing the TNAT “as there is no necessity for the Central

Government to wait for the amendment before the Parliament and the mere

issuance of Notification would suffice for abolition of the Tribunal.”

Two appeals against the decision in the TNAT Abolition Case (supra) were

preferred before this Court. The first was dismissed in limine by an order dated

16 August 2005. The second was an appeal filed by the Union of India. Before

this appeal could be adjudicated on merits, the Union Government issued a

14 2005 SCC OnLine Mad 333- “TNAT Abolition Case”

PART D

notification on 17 February 2006 abolishing the TNAT. On 28 March 2017,

this Court dismissed the appeal for having become infructuous. It observed

that the question of law had been kept open.

26. The TNAT Abolition Case (supra) does not hence constitute a precedent

which binds this Court. The proceedings arising from the TNAT Abolition

Case (supra) in appeal before this Court, too, do not have a bearing on the

approach to be adopted while deciding the merits of the issues before us

because the question of law was expressly kept open.

ii. The Writ Petitions instituted before the Orissa High Court were

maintainable

27. The State of Odisha has interrogated the maintainability of the Writ Petitions

instituted by the appellants before the Orissa High Court (which led to the

impugned judgment) on the ground that the rights of the petitioners were not

impacted by the abolition of the OAT.

28. The appellants are the OAT Bar Association, Cuttack and the Odisha Retired

Police Officers’ Welfare Association. Both associations are registered under

the Societies Registration Act 1860. Section 6 of the Societies Registration

Act 1860 authorizes registered societies to sue and be sued. Both the

appellants are therefore organizations which are entitled to approach the High

Court under Article 226 of the Constitution.

29. Both appellants have also alleged that an existing legal right of theirs was

violated. As held by this Court in Ghulam Qadir v. Special Tribunal (2002)

PART D

1 SCC 33, the existence of a legal right of the petitioner which is alleged to

have been violated is the foundation for invoking the jurisdiction of the High

Court under Article 226:

“38. There is no dispute regarding the legal proposition that the

rights under Article 226 of the Constitution of India can be enforced

only by an aggrieved person except in the case where the writ

prayed for is for habeas corpus or quo warranto. Another exception

in the general rule is the filing of a writ petition in public interest. The

existence of the legal right of the petitioner which is alleged to

have been violated is the foundation for invoking the

jurisdiction of the High Court under the aforesaid article. The

orthodox rule of interpretation regarding the locus standi of a person

to reach the court has undergone a sea change with the

development of constitutional law in our country and the

constitutional courts have been adopting a liberal approach in

dealing with the cases or dislodging the claim of a litigant merely on

hypertechnical grounds. If a person approaching the court can

satisfy that the impugned action is likely to adversely affect his

right which is shown to be having source in some statutory

provision, the petition filed by such a person cannot be

rejected on the ground of his not having the locus standi. In

other words, if the person is found to be not merely a stranger having

no right whatsoever to any post or property, he cannot be non-suited

on the ground of his not having the locus standi.”

(emphasis supplied)

30. In State of Orissa v. Ram Chandra Dev AIR 1964 SC 685, a Constitution

Bench of this Court held that the existence of a right is the foundation of a

petition under Article 226:

“8. … Under Article 226 of the Constitution, the jurisdiction of the

High Court is undoubtedly very wide. Appropriate writs can be

issued by the High Court under the said article even for purposes

other than the enforcement of the fundamental rights and in that

sense, a party who invokes the special jurisdiction of the High Court

under Article 226 is not confined to cases of illegal invasion of his

fundamental rights alone. But though the jurisdiction of the High

Court under Article 226 is wide in that sense, the concluding words

of the article clearly indicate that before a writ or an appropriate

order can be issued in favour of a party, it must be established that

the party has a right and the said right is illegally invaded or

PART D

threatened. The existence of a right is thus the foundation of a

petition under Article 226.”

(emphasis supplied)

31. In this case, the Odisha Retired Police Officers’ Welfare Association alleged

that its right to speedy redressal of grievances (a facet of the fundamental

right of access to justice) was violated. The OAT Bar Association joined the

Odisha Retired Police Officers’ Welfare Association in alleging that the state’s

action of abolishing the OAT violated its right under Article 14 of the

Constitution. Having alleged that these rights were violated by the abolition of

the OAT, they were entitled to invoke the High Court’s jurisdiction under

Article 226 of the Constitution. Whether there is substance in the grievance is

a separate matter which has to be analysed.

iii. Article 323-A does not preclude the Union Government from abolishing

SATs

32. In order to assess whether it is mandatory for the Union Government to

establish SATs, it is necessary to advert to Article 323-A of the Constitution

of India:

“323A. Administrative tribunals.—(1) Parliament may, by law,

provide for the adjudication or trial by administrative tribunals of

disputes and complaints with respect to recruitment and conditions

of service of persons appointed to public services and posts in

connection with the affairs of the Union or of any State or of any

local or other authority within the territory of India or under the

control of the Government of India or of any corporation owned or

controlled by the Government.

(2) A law made under clause (1) may—

(a) provide for the establishment of an administrative tribunal for the

Union and a separate administrative tribunal for each State or for

two or more States;

PART D

(b) specify the jurisdiction, powers (including the power to punish for

contempt) and authority which may be exercised by each of the said

tribunals;

and rules of evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the

Supreme Court under article 136, with respect to the disputes or

complaints referred to in clause (1);

(e) provide for the transfer to each such administrative tribunal of

any cases pending before any court or other authority immediately

before the establishment of such tribunal as would have been within

the jurisdiction of such tribunal if the causes of action on which such

suits or proceedings are based had arisen after such establishment;

(f) repeal or amend any order made by the President under clause

(3) of article 371D;

(g) contain such supplemental, incidental and consequential

provisions (including provisions as to fees) as Parliament may deem

necessary for the effective functioning of, and for the speedy

disposal of cases by, and the enforcement of the orders of, such

tribunals.

(3) The provisions of this article shall have effect notwithstanding

anything in any other provision of this Constitution or in any other

law for the time being in force.”

(emphasis supplied)

33. Clauses (1) and (2) of Article 323-A use the expression “may,” indicating that

Article 323-A does not compel Parliament to enact a law to give effect to it.

Parliament is entrusted with the discretion to enact a law which provides for

the adjudication of certain disputes by administrative tribunals. It is a

permissive provision. The provision is facilitative and enabling.

34. However, in certain cases, the power to do something may be coupled with a

duty to exercise that power. In Official Liquidator v. Dharti Dhan (P) Ltd.

(1977) 2 SCC 166, this Court expounded on when the word “may” carries with

PART D

it an obligation to exercise the power conferred by that word in a particular

manner:

“8. Thus, the question to be determined in such cases always is

whether the power conferred by the use of the word “may” has,

annexed to it, an obligation that, on the fulfilment of certain legally

prescribed conditions, to be shown by evidence, a particular kind of

order must be made. If the statute leaves no room for discretion the

power has to be exercised in the manner indicated by the other legal

provisions which provide the legal context. Even then the facts must

establish that the legal conditions are fulfilled … It is not the

conferment of a power which the word “may” indicates that

annexes any obligation to its exercise but the legal and factual

context of it.

…

10. The principle laid down above has been followed consistently by

this Court whenever it has been contended that the word “may”

carries with it the obligation to exercise a power in a particular

manner or direction. In such a case, it is always the purpose of

the power which has to be examined in order to determine the

scope of the discretion conferred upon the donee of the power.

If the conditions in which the power is to be exercised in

particular cases are also specified by a statute then, on the

fulfilment of those conditions, the power conferred becomes

annexed with a duty to exercise it in that manner.”

(emphasis supplied)

35. In Dhampur Sugar Mills Ltd. v. State of U.P.15, this Court held that the

intention of the legislature must be discerned while determining whether a

provision is directory or mandatory:

“36. … In our judgment, mere use of word “may” or “shall” is not

conclusive. The question whether a particular provision of a statute

is directory or mandatory cannot be resolved by laying down any

general rule of universal application. Such controversy has to be

decided by ascertaining the intention of the legislature and not by

looking at the language in which the provision is clothed. And for

finding out the legislative intent, the court must examine the scheme

of the Act, purpose and object underlying the provision,

consequences likely to ensue or inconvenience likely to result if the

15 (2007) 8 SCC 338

PART D

provision is read one way or the other and many more

considerations relevant to the issue.”

36. In order for the word “may” to acquire the character of the word “shall”, the

following aspects of the provision or legislation (or in this case, the

Constitution) must be analysed:

a. The legal and factual context of the conferment of the power;

b. The purpose of the power;

c. Whether the statute (or the Constitution) specifies the conditions in

which the power is to be exercised; and

d. The intention of the legislature discerned inter alia from the scheme of

the enactment, the purpose and object of the provision, the

consequences of reading the provision one way or another, and other

relevant considerations.

This is not an exhaustive list of factors which will aid courts in interpreting whether

a provision is directory or mandatory.

37. Article 323-A does not specify the conditions in which the power to enact laws

providing for the adjudication of certain disputes by administrative tribunals

must be exercised. It therefore cannot be said that Parliament was obligated

to exercise this power upon the fulfilment of certain conditions.

38. The legal and factual context of the power to enact laws providing for

administrative tribunals may be understood from the Statement of Objects

PART D

and Reasons appended to the Constitution (Forty-fourth Amendment) Bill

1976. The Statement of Objects indicates that the object was

“To reduce the mounting arrears in High Courts and to secure the

speedy disposal of service matters, revenue matters and certain

other matters of special importance in the context of the socioeconomic development and progress, it is considered expedient to

provide for administrative and other tribunals for dealing with such

matters while preserving the jurisdiction of the Supreme Court in

regard to such matters under Article 136 of the Constitution. It is also

necessary to make certain modifications in the writ jurisdiction of the

High Courts under article 226.”

The Statement of Objects and Reasons also sheds light on the purpose of the

power to provide for administrative tribunals i.e., to reduce mounting arrears

in the High Courts and to secure the speedy disposal of service matters. The

purpose and the legal and factual context of the power conferred by Article

323-A do not have the effect of narrowing the scope of the discretion afforded

to Parliament by the word “may.” The purpose of reducing arrears in the High

Courts or securing the speedy disposal of service cases is not of a nature as

to cast an obligation upon Parliament to enact laws providing for

administrative tribunals. This is because the same purpose can be achieved

through other routes. Article 323-A merely provides for the enactment of

legislation as of one of many routes. It is open to Parliament to choose any

legally acceptable method to reduce arrears in the High Courts and secure

the speedy disposal of service matters, including but not limited to creating

administrative tribunals. Article 323-A does not deprive Parliament of the

power to choose an alternate course of action to reduce arrears or ensure

speedy justice, by any other modality, including by strengthening other

PART D

adjudicatory mechanisms. The intention of Parliament could not have been to

mandate the establishment and continuation of administrative tribunals.

Besides the purpose of the provision discussed above, nothing in the scheme

of Article 323-A indicates that it is a mandatory provision. The consequences

of reading Article 323-A as mandating the creation of administrative tribunals,

would be to foreclose the possibility of the adoption of an alternate course of

action to achieve the desired objective of reducing arrears and ensuring

speedy justice. This, too, indicates that it could not have been the intention of

Parliament to mandate the establishment of administrative tribunals as the

only remedy to mounting arrears or as the only manner in which speedy

justice could be secured.

39. Another important consequence of interpreting Article 323-A as being

mandatory is that it prevents Parliament and the State Governments from

evaluating the manner in which administrative tribunals function by inter alia

accounting for:

a. The rate of disposal of cases;

b. The quality of the judgments;

c. How often the decisions of the SAT are overturned in the writ jurisdiction,

appeal or review;

d. Whether the tribunals are functioning independently;

e. The availability of qualified and suitable candidates for the posts of

members and chairpersons of the tribunals;

PART D

f. Whether SATs do indeed reduce arrears in the High Courts and

streamline the justice delivery mechanism;

g. The cost incurred by the state; and

h. The costs (monetary and otherwise) to litigants.

The Orissa High Court refers to some of these factors in paragraphs 70 to 75

of the impugned judgment albeit in a slightly different context. The intention

of Parliament could not have been to prevent the Union or State Governments

from evaluating the efficiency and desirability of administrative tribunals once

they were established. However, the effect of reading Article 323-A as a

mandatory provision would be to do precisely that.

40. The appellants have relied on the decision of this Court in Dilip K Basu v.

State of West Bengal (2015) 8 SCC 744 to argue that it is mandatory for the

Union Government to establish SATs. In that case, this Court was required to

interpret Section 21 of the Protection of Human Rights Act 1993 which

stipulated that State Governments “may” constitute a State Human Rights

Commission. The question was whether the word “may” ought to be read as

the word “shall.” This Court noted that the Protection of Human Rights Act

1993 enjoined the State Human Rights Commissions to promote human

rights, prevent their violation, and provide redressal. It held that this legislative

intent would be negated if State Human Rights Commissions were not

established in every state. This Court reasoned that the consequence of this

was that Section 21 of the Protection of Human Rights Act 1993 not only

conferred State Governments with the power to set up State Human Rights

PART D

Commissions but also imposed on them the duty to do so. In the present case,

the intention of Parliament in enacting Article 323-A of the Constitution (i.e.,

to reduce arrears and provide speedy justice) would not necessarily be

negated in the absence of SATs in each state, for the reasons discussed

above.

41. We also note that in Dilip K Basu (supra), the fact that victims or

complainants would not have access to an efficacious remedy in the absence

of State Human Rights Commissions weighed heavily with this Court. They

would be required to approach the National Human Rights Commission,

which this Court noted could prove inaccessible to people living in places far

away from New Delhi where it is headquartered. Here, the absence of SATs

does not leave litigants without an efficacious remedy. The High Courts or

other forums already designated for the purpose of adjudicating service

matters continue to be operational in each state and the absence of SATs

does not inconvenience litigants any more than they otherwise would have

been.

42. Hence, the word “may” in Article 323-A of the Constitution is not imparted with

the character of the word “shall.” Article 323-A is a directory, enabling

provision which confers the Union Government with the discretion to establish

an administrative tribunal. The corollary of this is that Article 323-A does not

act as a bar to the Union Government abolishing an administrative tribunal

once it is created.

iv. Applicability of Section 21 of the General Clauses Act

PART D

43. The Union Government invoked Section 21 of the General Clauses Act read

with Section 4(2) of the Administrative Tribunals Act to rescind the notification

establishing the OAT. Section 21 of the General Clauses Act, which is a rule

of construction, is extracted below:

“Power to make, to include power to add to, amend, vary or rescind,

orders, rules or bye-laws.— Where, by any Act or Regulation, a

power to issue notifications, orders, rules or bye-laws is conferred

then that power includes a power, exercisable in the like manner

and subject to the like sanction and conditions (if any), to add to,

amend, vary or rescind any notifications, orders, rules or byelaws so

issued.”

44. The appellants contend that the Union Government could not have taken

recourse to Section 21 of the General Clauses Act. A two-step analysis must

precede the answer to the question posed by the appellants.

a. There is no bar to the applicability of Section 21 of the General

Clauses Act to the administrative order establishing the OAT

45. In Indian National Congress (I) v. Institute of Social Welfare16, this Court

held that Section 21 of the General Clauses Act cannot be pressed into

service to vary, amend, or review a quasi-judicial order or notification. It is

important to note that a quasi-judicial order or notification cannot be rescinded

by relying upon Section 21 of the General Clauses Act. The notification dated

2 August 2019 rescinded the notification dated 4 July 1986 by which the OAT

was established. It is therefore the notification dated 4 July 1986 which

established the OAT which must be analysed to determine whether it is a

quasi-judicial notification, and not the notification dated 2 August 2019, the

16 (2002) 5 SCC 685

PART D

effect of which was to abolish the OAT. If the answer is that the decision to

establish the OAT was indeed a quasi-judicial decision, Section 21 of the

General Clauses Act cannot be relied on to reverse this decision. As a

consequence, the notification dated 2 August 2019 will be invalid, being

improperly issued. If, however, the decision to establish the OAT was

administrative , there would be no bar to the invocation of Section 21 of the

General Clauses Act to rescind the notification establishing the OAT.

46. This Court discussed the meaning and contours of a quasi-judicial act in

Province of Bombay v. Khushaldas S. Advani17, where SR Das, J. in his

concurring opinion held:

“80.1.(i) that if a statute empowers an authority, not being a court in

the ordinary sense, to decide disputes arising out of a claim made

by one party under the statute which claim is opposed by another

party and to determine the respective rights of the contesting parties

who are opposed to each other, there is a lis and prima facie and in

the absence of anything in the statute to the contrary it is the duty of

the authority to act judicially and the decision of the authority is a

quasi-judicial act; and

80.2.(ii) that if a statutory authority has power to do any act which

will prejudicially affect the subject, then, although there are not two

parties apart from the authority and the contest is between the

authority proposing to do the act and the subject opposing it, the

final determination of the authority will yet be a quasi-judicial act

provided the authority is required by the statute to act judicially.

81. In other words, while the presence of two parties besides the

deciding authority will prima facie, and in the absence of any other

factor impose upon the authority the duty to act judicially, the

absence of two such parties is not decisive in taking the act of the

authority out of the category of quasi-judicial act if the authority is

nevertheless required by the statute to act judicially.”

47. In Indian National Congress (I) (supra), this Court held that:

17 (1950) SCC 551

PART D

“29. … another test which distinguishes administrative function from

quasi-judicial function is, the authority who acts quasi-judicially is

required to act according to the rules, whereas the authority which

acts administratively is dictated by the policy and expediency.”

48. In Board of High School and Intermediate Education v. Ghanshyam Das

Gupta18, this Court expounded upon when an authority is required to act

judicially:

“8. … Now it may be mentioned that the statute is not likely to

provide in so many words that the authority passing the order is

required to act judicially; that can only be inferred from the express

provisions of the statute in the first instance in each case and no one

circumstance alone will be determinative of the question whether the

authority set up by the statute has the duty to act judicially or not.

The inference whether the authority acting under a statute where it

is silent has the duty to act judicially will depend on the express

provisions of the statute read along with the nature of the right

affected, the manner of the disposal provided, the objective criterion

if any to be adopted, the effect of the decision on the person affected

and other indicia afforded by the statute.”

49. From the above decisions, it emerges that:

a. The decision of an authority is prima facie, and in the absence of any

other factor, a quasi-judicial act when there is a lis before it, with two

parties with competing claims;

b. When the authority has the power to do something which will

prejudicially affect the subject, the decision it takes is a quasi-judicial act

even in the absence of a lis and two parties with competing claims, when

the authority is required by the statute in question to act judicially. The

express provisions of the statute, the nature of the right affected, the

manner of disposal, the objective criterion (if any) to be adopted while

18 AIR 1962 SC 1110

PART D

deciding one way or the other, the effect of the decision, and other signs

in the statute may be considered when evaluating whether there is a

duty to act judicially; and

c. The decision of an authority is quasi-judicial when it is made in

accordance with rules. The decision is administrative when it is dictated

by policy and expediency.

50. Having laid down the above principles, it must be realised that the distinction

between quasi-judicial and administrative acts is not always well defined and

its application is not always certain. Doctrine and practice are not necessarily

happy partners. The instant case evidently does not involve a lis or two parties

with competing claims appearing before an authority who will determine their

respective rights. Further, the act of the Union Government establishing the

OAT did not prejudicially affect the subject in any manner. Litigants or other

citizens were not left without a forum. They could continue to pursue their

remedies before the OAT when it was first established, instead of before the

Orissa High Court.

51. The Union Government was not acting in a judicial capacity when it set up the

OAT. On the establishment of the OAT, pending cases before the High Court

were transferred to the OAT. Indeed, the decision to establish an SAT is

based on policy and expediency. It is up to each State Government to

evaluate the need for an SAT within their state, to consider the advantages

and disadvantages as well as the financial, administrative, and other practical

aspects of establishing an SAT. The Union Government may then establish

PART D

the SAT upon receiving a request, in terms of Section 4(2) of the

Administrative Tribunals Act. The decision to establish an SAT is undoubtedly

an administrative decision. Administrative decisions, unlike quasi-judicial

decisions, may be reversed by the application of Section 21 of the General

Clauses Act. The applicability of Section 21 of the General Clauses Act does

not stand excluded in the present case.

52. The appellants’ reliance on Industrial Infrastructure Development Corpn.

(Gwalior) M.P. Ltd. v. CIT19 is misplaced for similar reasons. In that case,

Section 21 of the General Clauses Act was found to be inapplicable to the

order because it was a quasi-judicial order. For the reasons discussed above,

the order establishing the OAT is an administrative order.

53. We clarify that the distinction between quasi-judicial and administrative

decisions has been invoked for the purpose of determining whether Section

21 of the General Clauses Act may be invoked to reverse the decision to

establish an SAT. Administrative orders continue to be amenable to judicial

review in accordance with law.

b. Section 21 of the General Clauses Act is otherwise applicable to

the Administrative Tribunals Act

54. Having decided that there is no threshold bar to the applicability of Section 21

of the General Clauses Act, we now consider whether it applies in the present

19 (2018) 4 SCC 494

PART D

case. The locus classicus on this subject is State of Bihar v. D N Ganguly20,

where this Court held:

“9. … It is well settled that this section embodies a rule of

construction and the question whether or not it applies to the

provisions of a particular statute would depend on the subjectmatter, context, and, the effect, of the relevant provisions of the said

statute. In other words, it would be necessary to examine carefully

the scheme of the Act, its object and all its relevant and material

provisions before deciding whether by the application of the rule of

construction enunciated by Section 21, the appellant's contention is

justified that the power to cancel the reference made under Section

10(1) can be said to vest in the appropriate government by

necessary implication. If we come to the conclusion that the context

and effect of the relevant provisions is repugnant to the application

of the said rule of construction, the appellant would not be entitled

to invoke the assistance of the said section. We must, therefore,

proceed to examine the relevant provisions of the Act itself.”

55. In Kamla Prasad Khetan v. Union of India21, a Constitution Bench of this

Court held that:

“10. … Section 21 of the General Clauses Act embodies a rule of

construction, and that rule must have reference to the context and

subject-matter of the particular statute to which it is being applied”

56. Section 21 of the General Clauses Act can be invoked when its application

would not be repugnant to the subject-matter, context, and effect of the statute

and when it is in harmony with its scheme and object. The court may refer to

the provisions of the statute in question to determine whether Section 21 of

the General Clauses Act will be applicable.

57. The scheme of the Administrative Tribunals Act is briefly analysed below:

20 1959 SCR 1191

21 1957 SCR 1052

PART D

a. Section 4 enables the Union Government to establish an SAT upon

receipt of a request in this behalf from the concerned State Government;

b. Section 5 provides for the composition of SATs. Sections 8 and 10B

stipulate the term of office of the Chairperson and the Members;

c. Section 15 governs the jurisdiction of SATs;

d. Chapter IV sets out the procedure to be followed before the Tribunal as

well as the powers exercisable by it; and

e. Section 29 provides that every suit or proceeding pending before any

court or authority immediately before the date of establishment of a

tribunal under the Administrative Tribunals Act which would have been

within the jurisdiction of the tribunal if the cause of action in such suit or

proceeding had arisen after the establishment of the tribunal, stands

transferred to the tribunal on the date of its establishment.

58. The Administrative Tribunals Act does not contain a provision and a

corresponding procedure for the abolition of an SAT once it is established.

However, this does not mean that the abolition of an SAT, once it is set up,

is impermissible. First, the Administrative Tribunals Act does not proscribe the

abolition of an SAT by the Union Government, upon the latter receiving a

request from the concerned State Government. Second, nothing in the

scheme of the statute implies or suggests that such an abolition would be

incompatible with the objective sought to be achieved. To the contrary, if the

concerned State Government is of the considered view that the SAT is failing

PART D

to meet the objectives of the Administrative Tribunals Act or that an alternate

route for meeting the same objectives is preferable to that of operating an

SAT, it is free to act upon its view and request the Union Government to

abolish the SAT. An amendment to the Administrative Tribunals Act is not a

prerequisite for the State Government to make a request to the Union

Government.

59. As noticed above, the object of the Administrative Tribunals Act is to reduce

arrears and enable the provision of speedy justice to litigants. Abolishing an

SAT would not frustrate this objective because SATs are not the only method

by which the object is capable of being achieved. Further, the effect of such

an abolition would not be to deprive litigants of a remedy because the cases

before the SAT would stand revived in the forum in which they were pending

prior to the establishment of that SAT. The subject matter and the context of

the Administrative Tribunals Act, too, do not militate against the application of

Section 21 of the General Clauses Act. There is therefore nothing in the

Administrative Tribunals Act which is repugnant to the application of Section

21 of the General Clauses Act. The relevant State Government has the

implied power to issue a request to abolish the SAT in its state to the Union

Government. The Union Government in turn has the implied power to rescind

the notification by which that SAT was established, thereby abolishing the

SAT.

PART D

60. The appellants have relied on decisions of this Court in Lt. Governor of H.P.

v. Avinash Sharma22 and State of M.P. v. Ajay Singh23 to support their

case. In Avinash Sharma (supra), this Court held that after the Government

takes possession of land pursuant to a notification under Section 17(1) of the

Land Acquisition Act 1894, the land vests with the Government and the

notification cannot be cancelled under Section 21 of the General Clauses Act.

Further, the notification could not be withdrawn in exercise of the powers

under Section 48 of the Land Acquisition Act 1894, once possession of the

land was taken. The present case does not concern the acquisition of land,

making the decision in Avinash Sharma (supra) irrelevant to the question at

hand. Moreover, Section 48 of the Land Acquisition Act 1894 had a specific

provision governing a withdrawal from acquisition and hence the conditions

contained in the statutory provision could not be obviated by taking recourse

to Section 21 of the General Clauses Act. The scheme of the Land Acquisition

Act 1894 and the scheme of the Administrative Tribunals Act are different and

the scheme and context of each enactment must be considered on its own

merits.

61. In Ajay Singh (supra), this Court held that the rule of construction embodied

in Section 21 of the General Clauses Act did not apply to the provisions of the

Commissions of Inquiry Act 1952 because the subject-matter, context and

effect of its provisions were inconsistent with the application of Section 21. In

that case, the State of Madhya Pradesh had constituted a single-member high

22 (1970) 2 SCC 149

23 (1993) 1 SCC 302

PART D

powered committee to investigate an issue of public importance that had

arisen within its territory. It later attempted to reconstitute the high-powered

committee by replacing the single member. The question in Ajay Singh

(supra) was whether the state government could rely on Section 21 of the

General Clauses Act to rescind the notification by which it had appointed the

member at the first instance.

62. This Court answered in the negative because Section 3 of the Commissions

of Inquiry Act 1952 provided for the power to fill any vacancies whereas

Section 7 provided for the only situation in which a Commission which was

already constituted would cease to exist. This Court observed that the

Commissions of Inquiry Act 1952 did not provide for the power to reconstitute

a Commission or replace its members. The scheme of the enactment and its

context indicated that Section 21 of the General Clauses Act could not be

invoked. Further, the object of the Commissions of Inquiry Act 1952 would be

frustrated if the appropriate government were permitted to reconstitute a

Commission midway through the task that it was charged with completing

because it made it possible for an independent agency to exist, free from

governmental control. In the present case, there is no such impediment to the

application of Section 21 of the General Clauses Act. The object of the

Administrative Tribunals Act would not stand frustrated if an SAT is created

and then abolished. The Union and State Governments may take alternate

routes (some of which may have already been in operation, supplementing

SATs) towards achieving the same objective. Hence, the decision in Ajay

Singh (supra) does not assist the appellants’ case.

PART D

63. The appellants have also argued that the Union Government’s power to

abolish SATs must flow from the same legislation that vests it with the power

to establish them. It is their contention that the Union Government does not

have the power to abolish SATs because the Administrative Tribunals Act

does not provide for it. This argument fails for the simple reason that the very

purpose of Section 21 of the General Clauses Act is to provide for

contingencies such as the instant case when the statute in question does not

explicitly provide for the power to add to, amend, vary, or rescind a notification

(or order, rule, or by-law) which has been issued. Of course, the application

of Section 21 of the General Clauses Act is subject to the test laid down in D

N Ganguly (supra) as discussed previously as well as the other requirements

mentioned in the provision itself.

64. If the argument of the appellants were to be accepted, Section 21 of the

General Clauses Act would be rendered otiose. It would not apply to any

statute which does not explicitly provide for the power to add to, amend, vary,

or rescind notifications, orders, rules or bye-laws. On the other hand, if the

statute itself conferred the power to add to, amend, vary, or rescind

notifications, orders, rules or by-laws, there would be no need to rely on

Section 21 of the General Clauses Act. This is not a conceivable position

because courts must interpret statutes so as to give effect to their provisions

rather than to render them futile.24

24 M. Pentiah v. Muddala Veeramallappa (1961) 2 SCR 295

PART D

65. The appellants have also submitted that what cannot be done directly cannot

be done indirectly. For the reasons discussed above, neither Article 323-A of

the Constitution nor the Administrative Tribunals Act prohibit the abolition of

SATs. Hence, it cannot be said that the Union Government is barred from

abolishing the SATs “directly” and that it has resorted to Section 21 of the

General Clauses Act to evade such a ban and “indirectly” abolish the OAT.

The Union Government’s reliance on Section 21 of the General Clauses Act

to abolish the OAT is legally permissible.

66. The appellants have urged that the Administrative Tribunal (Amendment) Bill

2006 was introduced in Parliament to provide an enabling provision for the

abolition of SATs and for the transfer of pending cases from the abolished

SAT to the relevant High Court. This bill was referred to the Rajya Sabha

Standing Committee on Personnel, Public Grievances, Law and Justice,

which submitted its report on 5 December 2006. The report recommended

that the power to abolish an SAT should not be granted to the executive. It is

argued that the Union Government does not have the power to abolish SATs

because this Bill was not enacted into law because of the recommendations

contained in the report of the Standing Committee.

67. The appellants seem to be implying that Parliament was of the opinion that

the Union Government did not have the power to abolish SATs in the absence

of an enabling provision. It may also be the case that Parliament introduced

the Administrative Tribunal (Amendment) Bill 2006 in order to clarify the

power of the Union Government to abolish SATs rather than to confer it with

PART D

that power. This Court cannot possibly enter into a discussion or analysis of

all the potential reasons for a proposed amendment.

68. The appellants have put forth another argument on similar lines. It is their

case the Union Government’s stance before the Madras High Court in the

TNAT Abolition Case (supra) must influence this Court’s decision on

whether the Union Government has the power to rescind a notification

establishing SATs. The Union Government’s stance was recorded in

paragraph 4 of the TNAT Abolition Case (supra):

“4. On the other hand, the stand taken by the Central Government,

the first respondent herein, is that though the Government of Tamil

Nadu has sent a proposal to the Central Government for abolition,

this cannot be done through Notification. The appropriate legislation

for this proposal has to be brought in the Parliament and the same

is being contemplated by the Law Department which after due

processing and approval will be brought before the Parliament. Mere

Notification of the Central Government would not suffice in this case,

since Section 74 of the Madhya Pradesh Reorganisation Act, 2000

would specifically provide for the abolition through Notification. But,

such a provision is not available in this State. Therefore, suitable

Parliamentary amendment to the Administrative Tribunal Act is

necessary to consider such proposal. The necessary steps for the

same are being taken by the Central Government.”

69. The Union Government’s stance on a question of law before a court in another

case or for that matter, any party’s position on a question of law, does not

preclude this Court from interpreting the law. In Zakir Abdul Mirajkar v. State

of Maharashtra25, a two-judge Bench of this Court (of which one of us,

Dr. DY Chandrachud, J. was a part) held:

“36. … A submission which is made on a question of law by counsel

appearing for a party (in this case, the state) cannot bind that party

25 (2022) SCC OnLine SC 1092

PART D

or for that matter, preclude this Court from correctly interpreting the

law.”

The Union Government’s stance before the Madras High Court in the TNAT

Abolition Case (supra) will therefore not steer this Court’s exegesis of the

law.

70. At this juncture, we may also deal with three interrelated arguments put

forward by the appellants with respect to the transfer of cases from the

abolished OAT to the Orissa High Court:

a. The Constitution of India (including Article 323-A) does not envisage a

transfer of cases from any court or tribunal to a particular High Court

except in terms of Article 228 of the Constitution;

b. While Section 29 of the Administrative Tribunals Act provides for the

transfer of cases from the High Courts (or other courts and authorities)

to the relevant SATs, there is no provision which enables the transfer of

cases from the abolished SATs back to the forum in which they would

have been heard if not for the establishment of SATs; and

c. The abolition of the OAT has the effect of enlarging the jurisdiction of the

Orissa High Court but Parliament alone has the power to create or

enlarge jurisdiction. Reliance is placed on A.R. Antulay v. R.S. Nayak

(1988) 2 SCC 602.

71. The response to the three arguments is that the transfer of cases from the

OAT to the Orissa High Court is, properly characterized, a revival of the

latter’s jurisdiction. We agree with the impugned judgment that the Orissa

PART D

High Court’s jurisdiction in relation to matters pending before the OAT is not

being created or enlarged by the abolition of the OAT. It previously exercised

such jurisdiction and is merely resuming its jurisdiction over the same subject

matter. It is for this reason that the decision in A.R. Antulay (supra) is not

applicable to the facts of the present case.

72. The natural consequence of the Union Government rescinding the notification

establishing the OAT would be to restore the status quo ante. Nothing in either

Article 323-A of the Constitution or the Administrative Tribunals Act prevents

such a revival. Further, the absence of a provision in the Constitution which

explicitly permits a revival does not act as a barrier to such a revival. For the

reasons discussed above, we hold that the Union Government’s reliance on

Section 21 of the General Clauses Act is in accordance with law.

v. The notification dated 2 August 2019 is not violative of Article 14 of the

Constitution

a. The notification dated 2 August 2019 is not based on irrelevant or

extraneous considerations

73. The appellants have urged that the notification dated 2 August 2019 is based

on an incorrect understanding of the decision in L. Chandra Kumar (supra)

and is arbitrary, unreasonable and violative of Article 14 of the Constitution.

PART D

74. The principle that Article 14 strikes at arbitrariness and that arbitrary action by

the state violates the fundamental guarantee of equality has been recognized

as a basic postulate since the decision in E.P. Royappa v. State of T.N.26:

“85. … equality is antithetic to arbitrariness. In fact equality and

arbitrariness are sworn enemies; one belongs to the rule of law in a

republic while the other, to the whim and caprice of an absolute

monarch. Where an act is arbitrary, it is implicit in it that it is

unequal both according to political logic and constitutional law

and is therefore violative of Article 14 … Articles 14 and 16 strike

at arbitrariness in State action and ensure fairness and equality of

treatment. They require that State action must be based on valid

relevant principles applicable alike to all similarly situate and it

must not be guided by any extraneous or irrelevant

considerations because that would be denial of equality.”

(emphasis supplied)

The State Government’s decision to abolish the OAT will therefore have to be

scrutinized with a view to understanding whether any extraneous or irrelevant

considerations intruded into the decision.

75. The phrase ‘arbitrary’ is often used synonymously with the phrase

‘unreasonable.’ The test as to whether an action is reasonable was formulated

by the Court of Appeal in Associated Provincial Picture Houses, Limited

v. Wednesbury Corporation27:

“It is true the discretion must be exercised reasonably. Now what

does that mean? … For instance, a person entrusted with a

discretion must, so to speak, direct himself properly in law. He must

call his own attention to the matters which he is bound to consider.

He must exclude from his consideration matters which are irrelevant

to what he has to consider. If he does not obey those rules, he may

truly be said, and often is said, to be acting “unreasonably.”

Similarly, there may be something so absurd that no sensible person

could ever dream that it lay within the powers of the authority.”

26 (1974) 4 SCC 3

27 [1948] 1 K.B. 223

PART D

This Court has consistently assessed the validity of executive action on the

anvil of the test laid down in Wednesbury Corporation (supra), including in

G.B. Mahajan v. Jalgaon Municipal Council28, Tata Cellular v. Union of

India29, Punjab Communications Ltd. v. Union of India30 and Union of

India v. International Trading Co.31.

76. The reasons for the State Government’s decision to abolish the OAT are

recorded in a document titled ‘A note indicating the rationale’ with the subject

‘Abolition of Odisha Administrative Tribunal.’ This note was prepared by the

General Administration Department, Government of Odisha and is dated 16

September 2015. The relevant parts of the note are extracted below:

“1. Background

Odisha Administrative Tribunal (OAT) was established on 14th July,

1986 under the Administrative Tribunal Act, 1985 by Government of

India on the request of Government of Odisha. The Tribunal under

the Act was to have similar jurisdiction as the High Court. The

applicants were supposed to be freed from the requirement of

having to approach the High Court for disposal of their

grievances. In lieu of the High Court the aggrieved government

employees could go to the Tribunal and from there on to the

Supreme Court directly …

2. Supreme Court Landmark Judgment (18th March, 1997)

However, with the decision of the Supreme Court in L Chandra

Kumar (1997) the provision of the Act that aggrieved parties could

appeal before the Supreme Court against the orders of the Tribunal

was held unconstitutional … it was held that the parties aggrieved

with the orders of the Tribunal may approach the High Court

first before going to the Supreme Court …

3. Impact of the Supreme Court Judgment

28 (1991) 3 SCC 91

29 (1994) 6 SCC 651

30 (1999) 4 SCC 727

31 (2003) 5 SCC 437

PART D

As a consequence of the landmark judgment of the Supreme Court,

the objective of the establishment of the Tribunal to give quick

justice to the government employees was defeated and several

States felt that the existence of the Tribunal was rendered futile.”

(emphasis supplied)

The State Government enclosed this note with its letter dated 16 September

2015 to the Union Government, requesting it to abolish the OAT. The relevant

portion of the letter is extracted below:

“This is to state that the State Administrative Tribunal has been

functioning in Odisha since 14.07.1986. Government of Odisha is of

the view that the Tribunal is not able to serve its original objectives,

particularly after the Hon'ble Apex Court gave the Judgment in L.

Chandra Kumar case of 1997. As a result of this judgment, very

purpose of having a State Administrative Tribunal (SAT) for

speedy redressal of the grievances of the State Government

employees is not fulfilled as any way the aggrieved parties

have to approach the Hon'ble High Court before approaching

the Apex Court for a final verdict.

Government of Odisha, after taking into account this, have decided

to recommend to the Government of India to abolish the Odisha

Administrative Tribunal. A note indicating the rationale adopted by

the State Government in arriving at this decision is enclosed

herewith for your ready reference.”

(emphasis supplied)

77. Similar reasons have been recorded in various other documents of the State

Government which relate to the abolition of the OAT. The State Government

requested the Union Government to establish the OAT with a view to creating

an alternate forum to the Orissa High Court. The State Government

envisioned a structure of litigation whereby appeals from the OAT would lie

directly to the Supreme Court, and would exclude the High Court both as the

court of first instance as well as a forum of appeal. In the State Government’s

view, the structure of litigation under the Administrative Tribunals Act would

ensure that the dispute achieved quietus in a maximum of two tiers of

PART D

litigation. However, the decision of this Court in L. Chandra Kumar (supra)

held that the jurisdiction of High Courts could not be ousted. This resulted in

the creation of three tiers of litigation under the Administrative Tribunals Act

– first, before the OAT, followed by the High Court, and culminating with the

Supreme Court. The State Government was consequently of the opinion that

the “speedy redressal of grievances” was no longer possible in view of the

additional rung of litigation. It was of the opinion that its reason for establishing

the OAT no longer survived.

78. The appellants contend that the State Government has misinterpreted the

decision in L. Chandra Kumar (supra). It is their submission that the number

of tiers of litigation remains the same even if the OAT is abolished and that

there is therefore no advantage to be obtained by abolishing the OAT. Instead

of parties instituting a case before the OAT at the first instance and preferring

a petition under Article 226 before a Division Bench of the High Court and a

Special Leave Petition under Article 136 before the Supreme Court, they will

institute a case directly before the High Court. This will be heard by a single

judge and parties have the remedy of a writ appeal before a Division Bench

of the High Court and a further challenge before this Court. There are hence,

three tiers of litigation, regardless of the forum in which the proceedings are

conducted. The appellants also contend that the Orissa High Court is itself

burdened with a large number of pending cases and that an increase in its

workload would not result in efficiency in the disposal of cases.

PART D

79. It was not the State Government’s case that it was obliged to abolish the OAT

as a result of the decision in L. Chandra Kumar (supra) or that the abolition

of the OAT would result in fewer tiers of litigation. Rather, the State

Government evaluated the effect of the decision in L. Chandra Kumar

(supra) on the purpose that it intended to achieve with the establishment of

the OAT. Tribunals, including administrative tribunals, may be set up for any

number of reasons. All the reasons which could possibly or theoretically have

had a bearing on the State Government’s decision to establish the OAT are

not relevant. Only the State Government’s actual reason for establishing the

OAT is relevant in considering whether it misinterpreted L. Chandra Kumar’s

case (supra). The State Government’s reason for setting up the OAT was to

achieve speedy justice. A crucial factor (to its mind) was the elimination of

a tier of litigation. The State Government was of the opinion that the creation

of the OAT would not fulfil the purpose of a speedy redressal of grievances

because there was no improvement to the justice delivery system through the

elimination of a tier of litigation.

80. As for the submission that the Orissa High Court’s pendency will increase if

the cases pending before the OAT are transferred to it, the State Government

is entitled to structure its justice delivery systems within the parameters

defined by law. Its decision may be set aside only if it is unconstitutional or

without the authority of law.

81. In addition to the impact of the decision in L. Chandra Kumar (supra), the

State Government considered other factors related to the functioning of the

PART D

OAT. In the note dated 16 September 2015, the State Government furnished

other reasons for its decision to abolish the OAT:

“Government is incurring a significant sum of expenditure on the

OAT as is exhibited in the table given below:

Table 1: Plan and Non-Plan Provision for OAT (Rs in Lakhs)

Head of Expenditure 2014-15 2015-16

Plan 205.59 200

Non-Plan 616.24 697.69

Total 821.83 897.69

The following table represents the institution and disposal of OA and

MP cases in OAT month wise from January 2014 to December

2014:-

Table 2 shows that there were 47,619 cases pending at the

beginning of 2014. During the calendar year 2014, 7417 cases were

PART D

disposed whereas 13,823 fresh cases were instituted. At the end of

the year 2014, the number of pending cases went up to 54,334 …

As an institutional mechanism it seems the Tribunal has not been

able to provide speedy decisions …”

(emphasis in original)

The State Government was therefore concerned not only with the additional

tier of litigation at the Orissa High Court but also with the expenditure incurred

to operate the OAT as well as the rate at which the OAT disposed of cases.

It was persuaded to abolish the OAT due to a combination of all these factors.

82. From the above discussion, the following conclusions emerge:

a. While arriving at the decision to abolish the OAT, the State Government

considered relevant reasons. It considered whether the OAT was

capable of fulfilling the purpose for which it was established after the

decision in L. Chandra Kumar (supra). It placed in the balance the

expenditure incurred to operate the OAT as well as the rate of disposal

of cases. These reasons were not irrelevant to the decision as to

whether a tribunal ought to be continued;

b. The State Government’s act of consulting the Orissa High Court (upon

receiving a request to this effect from the Union Government) before

deciding to abolish the OAT was not irrelevant or extraneous. The cases

before the OAT were to be transferred to the Orissa High Court and the

opinion of the latter was relevant to State Government’s decision;

c. The State Government did not consider factors which were irrelevant or

extraneous to its decision; and

PART D

d. The decision to abolish the OAT was not one which was so absurd that

no reasonable person or authority would ever have taken it. The decision

to abolish a tribunal which it had established, based on an analysis of

relevant factors is, by no stretch of imagination, an absurd or

unreasonable decision.

83. This Court reached a similar conclusion in the MPAT Abolition Case (supra).

The appellants in that case argued that the decision to abolish the MPAT was

arbitrary, unreasonable, and violative of Article 14 of the Constitution. This

Court rejected their argument in the following terms:

“57. … The notification was issued by the Central Government in

1988 and the State Administrative Tribunal was established for the

State of Madhya Pradesh. At that time, as per well-settled legal

position, decisions rendered by the Administrative Tribunals

constituted under the Act of 1985 were “final” subject to jurisdiction

of this Court under Article 136 of the Constitution. … If, in view of

subsequent development of law in L. Chandra Kumar [(1997) 3 SCC

261 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125] the State of Madhya

Pradesh felt that continuation of State Administrative Tribunal would

be “one more tier” in the administration of justice inasmuch as after

a decision is rendered by the State Administrative Tribunal, an

aggrieved party could approach the High Court under Articles

226/227 of the Constitution and, hence, it felt that such Tribunal

should not be continued further, in our opinion, it cannot be said that

such a decision is arbitrary, irrational or unreasonable. From the

correspondence between the State of Madhya Pradesh and the

Central Government as well as from the affidavit-in-reply, it is clear

that the decision of this Court in L. Chandra Kumar [(1997) 3 SCC

261 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125] had been

considered by the State of Madhya Pradesh in arriving at a decision

to abolish State Administrative Tribunal. Such a consideration, in our

opinion, was relevant, germane and valid.”

The decision to abolish the MPAT was based on similar considerations as the

decision to abolish the OAT. For these reasons, the abolition of the OAT is

not arbitrary or unreasonable. It does not violate Article 14 of the Constitution.

PART D

84. Our choice of the test articulated in Wednesbury Corporation (supra) must

not be understood to mean that no other yardstick may be utilized to test the

constitutional legitimacy of executive action, under Article 14. This Court has

previously approved of the use of the proportionality test to evaluate the

validity of certain kinds of executive action, including in Om Kumar v. Union

of India32 and Teri Oat Estates (P) Ltd. v. UT, Chandigarh33. The

proportionality test may well be applicable to other cases where executive

overreach is alleged.

b. The principles of natural justice have not been violated

85. The appellants submit that the Union and State Governments have violated

the principles of natural justice by failing to provide the OAT Bar Association

and the litigants before the OAT with an opportunity to be heard before

abolishing the OAT. They argue that this violates Article 14 of the Constitution.

86. The decision to establish, continue or abolish the OAT is in the nature of a

policy formulated and implemented by the State Government (acting with the

Union Government under the Administrative Tribunals Act). The public at

large does not have a right to be heard before a policy is formulated and

implemented. The process of consultation with the public, with experts, and

with other stakeholders may be desirable and would facilitate a participatory

democracy. However, each member of the class that would be impacted by a

32 AIR (2000) SC 3689

33 (2004) 2 SCC 130

PART D

policy decision cannot be afforded an opportunity of hearing. This would not

only be time consuming and expensive, but deeply impractical.

87. BALCO Employees' Union (Regd.) v. Union of India34 concerned the

validity of the decision of the Union of India to disinvest and transfer 51%

shares of Bharat Aluminium Company Limited. The petitioner in that case (the

union of the company’s employees) inter alia submitted that it had a right to

be heard before and during the process of disinvestment. This Court rejected

this argument, observing that:

“57. … As a matter of good governance and administration

whenever such policy decisions are taken, it is desirable that there

should be wide range of consultations including considering any

representations which may have been filed, but there is no provision

in law which would require a hearing to be granted before taking a

policy decision. In exercise of executive powers, policy decisions

have to be taken from time to time. It will be impossible and

impracticable to give a formal hearing to those who may be affected

whenever a policy decision is taken. One of the objects of giving a

hearing in application of the principles of natural justice is to see that

an illegal action or decision does not take place. Any wrong order

may adversely affect a person and it is essentially for this reason

that a reasonable opportunity may have to be granted before

passing of an administrative order. In case of the policy decision,

however, it is impracticable, and at times against the public interest,

to do so, but this does not mean that a policy decision which is

contrary to law cannot be challenged. … If the decision is otherwise

illegal as being contrary to law or any constitutional provision, the

persons affected like the workmen, can impugn the same, but not

giving a pre-decisional hearing cannot be a ground for quashing the

decision.”

(emphasis supplied)

Although the decision in BALCO Employees' Union (Regd.) (supra) was

rendered in the context of a policy decision with economic implications, it

would be applicable in the present case. The principle enunciated in that case

34 (2002) 2 SCC 333

PART D

is equally applicable to other categories of policy decisions. This is because

it is impractical to hear every member of the class impacted by a policy

decision.

88. The absence of a right to be heard before the formulation or implementation

of a policy does not mean that affected parties are precluded from challenging

the policy in a court of law. What it means is that a policy decision cannot be

struck down on the ground that it was arrived at without offering the members

of the public at large (or some section of it) an opportunity to be heard. The

challenge to a policy may be sustainable if it is found to vitiate constitutional

rights or is otherwise in breach of a mandate of law.

89. For the reasons discussed above, the decision to abolish the OAT cannot be

assailed on the ground that there was a violation of the principles of natural

justice. Article 14 of the Constitution has not been violated.

vi. The Union Government did not become functus officio after establishing

the OAT

90. P Ramanatha Aiyer’s The Law Lexicon (1997 edition) defines the term functus

officio as:

“A term applied to something which once has had a life and power,

but which has become of no virtue whatsoever … One who has

fulfilled his office or is out of office; an authority who has performed

the act authorised so that the authority is exhausted”

91. Black’s Law Dictionary (5th edition) defines the term as follows:

“Having fulfilled the function, discharged the office, or accomplished

the purpose, and therefore of no further force or authority … an

PART D

instrument, power, agency, etc. which has fulfilled the purpose of its

creation, and is therefore of no further virtue or effect.”

92. The doctrine of functus officio gives effect to the principle of finality. Once a

judge or a quasi-judicial authority has rendered a decision, it is not open to

her to revisit the decision and amend, correct, clarify, or reverse it (except in

the exercise of the power of review, conferred by law). Once a judicial or

quasi-judicial decision attains finality, it is subject to change only in

proceedings before the appellate court.

93. For instance, Section 362 of the Code of Criminal Procedure 1973 provides

that a court of law is not to alter its judgment once it is signed:

“362. Court not to alter judgment.—Save as otherwise provided by

this Code or by any other law for the time being in force, no Court,

when it has signed its judgment or final order disposing of a case,

shall alter or review the same except to correct a clerical or

arithmetical error.”

In Hari Singh Mann v. Harbhajan Singh Bajwa35, this Court recognized that

Section 362 was based on the doctrine of functus officio:

“10. … The section is based on an acknowledged principle of law

that once a matter is finally disposed of by a court, the said court in

the absence of a specific statutory provision becomes functus officio

and disentitled to entertain a fresh prayer for the same relief unless

the former order of final disposal is set aside by a court of competent

jurisdiction in a manner prescribed by law. The court becomes

functus officio the moment the official order disposing of a case is

signed. Such an order cannot be altered except to the extent of

correcting a clerical or an arithmetical error.”

94. The doctrine of functus officio exists to provide a clear point where the

adjudicative process ends and to bring quietus to the dispute. Without it,

decision-making bodies such as courts could endlessly revisit their decisions.

35 (2001) 1 SCC 169

PART D

With a definitive endpoint to a case before a court or quasi-judicial authority,

parties are free to seek judicial review or to prefer an appeal. Alternatively,

their rights are determined with finality. Similar considerations do not apply to

decisions by the state which are based entirely on policy or expediency.

95. Turning to the present case, the appellants’ argument that the Union

Government was rendered functus officio after establishing the OAT does not

stand scrutiny. The decision to establish the OAT was administrative and

based on policy considerations. If the doctrine of functus officio were to be

applied to the sphere of administrative decision-making by the state, its

executive power would be crippled. The state would find itself unable to

change or reverse any policy or policy-based decision and its functioning

would grind to a halt. All policies would attain finality and any change would

be close to impossible to effectuate.

96. This would impact not only major policy decisions but also minor ones. For

example, a minor policy decision such as a bus route would not be amenable

to any modification once it was notified. Once determined, the bus route would

stay the same regardless of the demand for, say, an additional stop at a

popular destination. Major policy decisions such as those concerning

subsidies, corporate governance, housing, education and social welfare

would be frozen if the doctrine of functus officio were to be applied to

administrative decisions. This is not conceivable because it would defeat the

purpose of having a government and the foundation of governance. By their

very nature, policies are subject to change depending on the circumstances

PART D

prevailing in society at any given time. The doctrine of functus officio cannot

ordinarily be applied in cases where the government is formulating and

implementing a policy.

97. In the present case, the State and Union Governments’ authority has not been

exhausted after the establishment of an SAT. Similarly, the State and Union

Governments cannot be said to have fulfilled the purpose of their creation and

to be of no further virtue or effect once they have established an SAT. The

state may revisit its policy decisions in accordance with law. For these

reasons, the Union Government was not rendered functus officio after

establishing the OAT.

vii. The notification dated 2 August 2019 is valid despite not being

expressed in the name of the President of India

98. The appellants challenge the notification dated 2 August 2019 on the ground

that it does not comply with the requirements of clause (1) of Article 77

because it was not issued in the name of the President of India.

99. Article 77 of the Constitution of India indicates:

“Conduct of business of the Government of India.—

(1) All executive action of the Government of India shall be

expressed to be taken in the name of the President.

(2) Orders and other instruments made and executed in the name

of the President shall be authenticated in such manner as may be

specified in rules to be made by the President, and the validity of an

order or instrument which is so authenticated shall not be called in

question on the ground that it is not an order or instrument made or

executed by the President.

PART D

(3) The President shall make rules for the more convenient

transaction of the business of the Government of India, and for the

allocation among Ministers of the said business”

Article 166 corresponds to Article 77. It states:

“Conduct of Business of the Government of a State.—

(1) All executive action of the Government of a State shall be

expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the name

of the Governor shall be authenticated in such manner as may be

specified in rules to be made by the Governor, and the validity of an

order or instrument which is so authenticated shall not be called in

question on the ground that it is not an order or instrument made or

executed by the Governor.

(3) The Governor shall make rules for the more convenient

transaction of the business of the Government of the State, and for

the allocation among Ministers of the said business in so far as it is

not business with respect to which the Governor is by or under this

Constitution required to act in his discretion”

Clause (1) of Article 166 corresponds to clause (1) of Article 77. As a

consequence, decisions of this Court with respect to clause (1) of Article 166

will be of persuasive value while interpreting clause (1) of Article 77.

100. In Air India Cabin Crew Assn. v. Yeshaswinee Merchant36, a two-judge

Bench of this Court held that the exercise of statutory power is not rendered

invalid if it is not expressed to have been taken in the name of the President:

“72. In our opinion, reference to Article 77 is wholly inappropriate.

The exercise of statutory power under Section 34 by the Central

Government, even though not expressed to have been taken in the

name of President, does not render it invalid. Clause (2) of Article

77 insulates an executive action of the Government formally taken

in the name of President from challenge on the ground that it is not

an order or instrument made or executed by President. Even if an

executive action of the Central Government is not formally

expressed to have been taken in the name of President, Article 77

36 (2003) 6 SCC 277

PART D

does not provide that it would, therefore, be rendered void or invalid.

… In Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195, a

two-judge bench of this Court held:

“25. … Shortly stated, the legal position is this: Article 166(1) is only

directory. Though an impugned order was not issued in strict

compliance with the provisions of Article 166(1), it can be

established by evidence aliunde that the order was made by the

appropriate authority. If an order is issued in the name of the

Governor and is duly authenticated in the manner prescribed in

Rule (2) of the said Article, there is an irrebuttable presumption

that the order or instrument is made or executed by the

Governor. Any non-compliance with the provisions of the said

rule does not invalidate the order, but it precludes the drawing

of any such irrebuttable presumption. This does not prevent

any party from proving by other evidence that as a matter of

fact the order has been made by the appropriate authority.

Article 77 which relates to conduct of business of the Government

of India is couched in terms similar to those in Article 166 and

the same principles must govern the interpretation of that

provision.”

(emphasis supplied)

101. Similar principles govern the interpretation of Article 166 and Article 77. A

notification which is not in compliance with clause (1) of Article 77 is not

invalid, unconstitutional or non-est for that reason alone. Rather, the

irrebuttable presumption that the notification was issued by the President of

India (acting for the Union Government) is no longer available to the Union

Government. The notification continues to be valid and it is open to the Union

Government to prove that the order was indeed issued by the appropriate

authority.

102. In the present case, the notification dated 2 August 2019 was not issued in

the name of the President. However, this does not render the notification

invalid. The effect of not complying with Article 77 is that the Union

Government cannot claim the benefit of the irrebuttable presumption that the

PART D

notification dated 2 August 2019 was issued by the President. Hence, the

appellants’ argument that the notification dated 2 August 2019 is invalid and

unconstitutional is specious.

103. Here, it is appropriate to note that the notification dated 4 July 1986 (by which

the OAT was established) was also not issued in the name of the President.

However, the appellants seek to preserve the establishment of the OAT by

that notification while assailing the notification abolishing the OAT. If the

arguments of the appellants were to be accepted, the notification dated 4 July

1986 would be invalid. We are therefore not inclined to entertain the argument

that the notification dated 2 August 2019 is invalid and non-est.

104. We are satisfied that both the notification dated 4 July 1986 and the

notification dated 2 August 2019 were, in substance, issued by the President

(acting for the Union Government). The notifications were published in the

Gazette of India in accordance with law and there is nothing on record to

support the suggestion that an authority which is not empowered to issue the

notification has issued it. To the contrary, Section 4 of the Administrative

Tribunals Act empowers the Union Government to issue a notification

establishing the OAT and as discussed previously, the attendant power to

rescind a notification so issued is also available to the Union Government.

The issuance of both notifications was an exercise of the Union Government’s

statutory power under the Administrative Tribunals Act.

PART D

105. The appellants place reliance on the decision of a Constitution Bench of this

Court in Dattatraya Moreshwar Pangarkar v. State of Bombay37 and

specifically on the sentence in paragraph 24, which states:

“24. …when the executive decision affects an outsider or is required

to be officially notified or to be communicated it should normally be

expressed in the form mentioned in Article 166(1) i.e. in the name of

the Governor.”

106. The appellants have failed to notice the very next sentence in paragraph 24,

by which this Court accepts the argument that Article 166 is a directory

provision:

“24. … The learned Attorney General then falls back upon the plea

that an omission to make and authenticate an executive decision in

the form mentioned in Article 166 does not make the decision itself

illegal, for the provisions of that article, like their counterpart in the

Government of India Act, are merely directory and not mandatory …

In my opinion, this contention of the learned Attorney General must

prevail.

25. It is well settled that generally speaking the provisions of a

statute creating public duties are directory and those conferring

private rights are imperative. When the provisions of a statute relate

to the performance of a public duty and the case is such that to hold

null and void acts done in neglect of this duty would work serious

general inconvenience or injustice to persons who have no control

over those entrusted with the duty and at the same time would not

promote the main object of the legislature, it has been the practice

of the courts to hold such provisions to be directory only, the neglect

of them not affecting the validity of the acts done.”

107. Article 77 is a directory provision. Article 77(1) refers to the form in which the

decision taken by the executive is to be expressed. This is evident from the

phrase “expressed to be taken” in clause (1) of Article 77. It does not have

any bearing on the process of decision-making itself. The public or the

citizenry would stand to suffer most from the consequences of declaring an

37 (1952) 1 SCC 372

PART D

order that is not expressed in the name of the President null and void. Hence,

the appellants’ reliance on Dattatraya Moreshwar Pangarkar (supra) is

misplaced.

108. The appellants also seek to rely on State of Uttaranchal v. Sunil Kumar

Vaish38, where a two-judge bench of this Court observed:

“23. … unless an order is expressed in the name of the President or

the Governor and is authenticated in the manner prescribed by the

rules, the same cannot be treated as an order on behalf of the

Government.”

In this case, no reference is made to the decision of the Constitution Bench

in Dattatraya Moreshwar Pangarkar (supra), which would be binding on the

two-judge bench in Sunil Kumar Vaish (supra). As noted above, Dattatraya

Moreshwar Pangarkar (supra) held that the provisions of Article 166 were

directory and not mandatory. This would apply squarely to the provisions of

Article 77 as well. The decision in Sunil Kumar Vaish (supra) is of no

assistance to the appellants’ case.

109. Finally, the appellants have relied on Gulf Goans Hotel Co. Ltd. v. Union of

India39 to support their case. However, the decision in this case does not

support the position urged by the appellants because it, too, holds that the

consequence of non-compliance with Article 77(1) is that it deprives the Union

Government of the immunity conferred by Article 77(2). It also notices that

executive action exercised pursuant to powers conferred under a statute

38 (2011) 8 SCC 670

39 (2014) 10 SCC 673

PART D

stands on a different footing from executive action taken independent of a

statute:

“19. Article 77 of the Constitution provides the form in which the

Executive must make and authenticate its orders and decisions.

Clause (1) of Article 77 provides that all executive action of the

Government must be expressed to be taken in the name of the

President. The celebrated author H.M. Seervai in Constitutional Law

of India, 4th Edn., Vol. 2, 1999 describes the consequences of

government orders or instructions not being in accordance

with clauses (1) or (2) of Article 77 by opining that the same

would deprive the orders of the immunity conferred by the

aforesaid clauses and they may be open to challenge on the

ground that they have not been made by or under the authority

of the President in which case the burden would be on the

Government to show that they were, in fact, so made. In the

present case, the said burden has not been discharged in any

manner whatsoever. The decision in Air India Cabin Crew Assn.

v. Yeshaswinee Merchant [(2003) 6 SCC 277, p. 311, para 72 :

2003 SCC (L&S) 840] , taking a somewhat different view can,

perhaps, be explained by the fact that in the said case the

impugned directions contained in the government letter (not

expressed in the name of the President) was in exercise of the

statutory power under Section 34 of the Air Corporations Act,

1953. In the present case, the impugned guidelines have not

been issued under any existing statute.”

(emphasis supplied)

In the present case, the notification dated 2 August 2019 was issued in

exercise of the statutory powers under the Administrative Tribunals Act.

110. For the reasons discussed in this segment, the notification dated 2 August

2019 is valid despite not being expressed in the name of the President of

India.

viii. The abolition of the OAT is not violative of the fundamental right of

access to justice

PART D

111. The appellants have urged that the abolition of the OAT has made the court

system less accessible to litigants and that it is therefore violative of the

fundamental right of access to justice. They have relied on the decision in

Anita Kushwaha v. Pushap Sudan40, where a Constitution Bench of this

Court discussed the components of access to justice:

“33. Four main facets that, in our opinion, constitute the essence of

access to justice are:

(i) the State must provide an effective adjudicatory mechanism;

(ii) the mechanism so provided must be reasonably accessible in

terms of distance;

(iii) the process of adjudication must be speedy; and

(iv) the litigant's access to the adjudicatory process must be

affordable.”

The appellants contend that the abolition of the OAT breaches the second

and fourth facets of the right of access to justice. They argue that the OAT

has two regular benches and two circuit benches but the Orissa High Court

has one seat in Cuttack, thereby making the adjudicatory mechanism less

accessible in terms of distance. They urge that the distance also makes the

adjudicatory process less affordable because of the cost of travelling to

Cuttack from different parts of the state.

112. The fundamental right of access to justice is no doubt a crucial and

indispensable right under the Constitution of India. However, it cannot be

interpreted to mean that every village, town, or city must house every forum

of adjudication created by statute or the Constitution. It is an undeniable fact

40 (2016) 8 SCC 509

PART D

that some courts and forums will be located in some towns and cities and not

others. Some or the other litigants will be required to travel some distance to

access a particular forum or court.

113. To reiterate the ruling in Anita Kushwaha (supra), adjudicatory mechanisms

must be reasonably accessible in terms of distance. The High Court of Orissa

has creatively utilised technology to bridge the time taken to travel from other

parts of Odisha to Cuttack. Indeed, other High Courts must replicate the use

of technology to ensure that access to justice is provided to widely dispersed

areas. This will ensure that citizens have true access to justice by observing

and participating in the proceedings before the High Courts in cases of

concern to them. The submission made on behalf of the State of Odisha that

compensation schemes may be used to alleviate financial hardships must

also be taken into account. Further, legal aid programs sponsored by the state

are also useful in addressing any financial hardships, as observed by this

Court in Anita Kushwaha (supra):

“40. Affordability of access to justice has been, to an extent, taken

care of by the State-sponsored legal aid programmes under the

Legal Services Authorities Act, 1987. Legal aid programmes have

been providing the much needed support to the poorer sections of

the society in accessing justice in courts.”

114. Significantly, the Orissa High Court has established benches which will

operate virtually in multiple cities and towns across the state. This negates

the appellants’ argument that the Orissa High Court is less accessible than

the OAT. In fact, the number of virtual benches of the High Court is greater

than the number of benches of the OAT. Litigants from across the state can

access the High Court with greater ease than they could access the OAT.

PART D

115. Litigants may therefore approach the Orissa High Court for the resolution of

disputes. The abolition of the OAT does not leave litigants without a remedy

or without a forum to adjudicate the dispute in question. It is therefore not

violative of the fundamental right of access to justice.

ix. The State Government did not take advantage of its own wrong

116. The appellants have argued that the State Government tried to take

advantage of its own wrong by failing to fill the vacancies in the OAT and

creating the conditions for the abolition of the OAT.

117. In paragraph 85 of this judgment, a portion of the note prepared by the

General Administration Department, Government of Odisha dated 16

September 2015 is extracted. The note details the State Government’s

reasons for requesting the Union Government to abolish the OAT. The extract

in paragraph 85 reflects data on the institution, disposal, and pendency of

cases before the OAT for the year 2014. The State Government had not

ceased to make appointments to the OAT at the time at which this note was

prepared. At that time, the OAT was functioning as it usually did. The State

Government found the OAT’s usual performance (i.e., rate of disposal of

cases) to be unsatisfactory. This aspect of the OAT’s functioning played a role

in the State Government’s decision to abolish the OAT.

118. As noticed in the impugned judgment:

“48. … after the decision of the Government of Odisha to abolish

the OAT became public, it ceased to make appointments to fill up

the vacancies in the OAT. This led to the OAT Bar Association,

Cuttack filing W.P.(C) No. 15693 of 2017 in this Court seeking a

PART D

mandamus to the Government of Odisha to fill up the vacancies in

the OAT.”

(emphasis supplied)

Therefore, the State Government discontinued appointments to the OAT as a

result of its decision to abolish the OAT and not vice versa. The appellants’

averment confuses the sequence of events on which their argument is based.

The State Government based its decision on an evaluation of the OAT’s

functioning in the year 2014, which was prior to its decision to abolish the

OAT. Hence, there is no “wrong” which the State Government took advantage

of. Similarly, we do not agree with the argument of the appellants that the

Union of India had systematically made the OAT non-functional.

119. A related argument put forth by the appellants is that the State Government’s

failure to fill the vacancies in the OAT is a breach of Article 256 of the

Constitution. Article 256 inter alia stipulates that the executive power of every

State shall be so exercised as to ensure compliance with the laws made by

Parliament. It is not necessary for us to address ourselves to this argument

because the prayers in the Writ Petitions which resulted in the impugned

judgment did not seek an adjudication as to the violation of Article 256. The

lis before the Orissa High Court was limited to the validity of the decision to

abolish the OAT. We therefore confine our judgment on appeal to the same

issue.

x. The failure of the Union Government to conduct a judicial impact

assessment before abolishing the OAT does not vitiate its decision to

abolish the OAT

PART D

120. The appellants contend that the Union Government ought to have mandatorily

complied with the directions of a Constitution Bench of this Court (of which

one of us, Dr, DY Chandrachud, J was a part) in Rojer Mathew v. South

Indian Bank Ltd.41 prior to abolishing the OAT. The intervenor in this matter

has also advanced the argument that the Union Government ought to have

taken the permission of this Court before abolishing the OAT.

121. In Rojer Mathew (supra), this Court directed the Union Government to

conduct a judicial impact assessment of certain tribunals. The operative part

of this judgment (from the majority opinion of Ranjan Gogoi, CJI) in relation

to judicial impact assessments is extracted below:

“223.7. There is a need-based requirement to conduct “judicial

impact assessment” of all the Tribunals referable to the Finance Act,

2017 so as to analyse the ramifications of the changes in the

framework of tribunals as provided under the Finance Act, 2017.

Thus, we find it appropriate to issue a writ of mandamus to the

Ministry of Law and Justice to carry out such “judicial impact

assessment” and submit the result of the findings before the

competent legislative authority.”

122. The direction to conduct a judicial impact assessment, therefore, was of a

general nature. It was not geared towards proposals to abolish specific

tribunals such as the OAT. Rather, a need was felt to analyse the

consequences of the restructuring of tribunals by the Finance Act 2017 and a

writ of mandamus was issued in this regard to the Ministry of Law and Justice.

The judicial impact assessment was also directed to be conducted in order to

better understand the case load, efficacy, financial impact, and accessibility

41 (2020) 6 SCC 1

PART D

of tribunals at large, in addition to the filling of vacancies.

42 We note that

neither the majority opinion authored by Ranjan Gogoi, CJI nor the opinions

of Dr. DY Chandrachud, J. or Deepak Gupta, J. contain a direction to the

effect that a tribunal shall not be abolished in the absence of a judicial impact

assessment. In the present case, the Union Government issued the

notification dated 2 August 2019 in a valid exercise of its powers under

Section 21 of the General Clauses Act. The failure to conduct a judicial impact

assessment does not vitiate its decision to abolish the OAT. Nothing in the

judgment in Rojer Mathew (supra) also indicates the need for the Union

Government to obtain the permission of this Court before abolishing the OAT.

123. However, this is not to say that the Union Government and more specifically,

the Ministry of Law and Justice may dispense with the directions of this Court

in Rojer Mathew (supra). The judgment was delivered on 13 November 2019.

More than three years have since passed and the Ministry of Law and Justice

is yet to conduct a judicial impact assessment.

124. An assessment such as the one directed to be conducted would only shed

light on the impediments faced in the delivery of justice. The lack of an

assessment precludes any well-informed, intelligent action concerning

tribunals in the country (as a whole). This, in turn, has cascading effects for

the citizenry, which is deprived of a well-oiled machinery by which it can

access justice. We therefore reiterate the directions of this Court in Rojer

42 See paragraphs 185, 222, 223.7, 234, 387 – 390.

PART D

Mathew (supra) and direct the Ministry of Law and Justice to conduct a

judicial impact assessment at the earliest.

xi. Miscellaneous contentions

125. A miscellaneous contention remains to be considered.

126. The appellants have submitted that the so-called real reason for the abolition

of the OAT is that many top-ranking officials faced charges of contempt before

the OAT, for the reason that they had failed to implement its orders. It is

averred that these officials influenced the State Government to abolish the

OAT. The appellants argue that the State and Union Governments did not

deny this allegation in their counter affidavits before the Orissa High Court

and that this allegation is true because of ‘non-traverse.’

127. There is nothing on record which indicates the truth of the appellants’

allegations or even points to a possibility of the truth of such an allegation. It

is entirely unsubstantiated and appears to be a last-ditch attempt to sustain

their challenge to the abolition of the OAT. In any event, the averment belies

logic. All cases pending before the OAT would be transferred to the Orissa

High Court, without exception. This includes contempt petitions. Hence, it

would not be possible for officials or others to avoid contempt proceedings as

a result of the abolition of the OAT.

PART E

E. Findings and conclusion

128. In view of the discussion above, we hold that the abolition of the OAT was

constitutionally valid for the following reasons:

a. The Writ Petitions instituted before the Orissa High Court were

maintainable because the appellants claimed that their constitutional

rights had been violated. They were therefore entitled to invoke the

jurisdiction of the High Court under Article 226 of the Constitution;

b. Article 323-A does not preclude the Union Government from abolishing

SATs because it is an enabling provision which confers the Union

Government with the power to establish an administrative tribunal at its

discretion (upon receiving a request from the relevant State Government

in terms of the Administrative Tribunals Act). The legal and factual

context of the power to establish administrative tribunals, the purpose of

this power and the intention of the legislature establish that there is no

duty to exercise the power conferred by the Administrative Tribunals Act,

such that the enabling provision becomes a mandatory provision;

c. The Union Government acted in valid exercise of its powers when it

invoked Section 21 of the General Clauses Act read with Section 4(2) of

the Administrative Tribunals Act to rescind the notification establishing

the OAT because the decision to establish the OAT was an

administrative decision and not a quasi-judicial decision. Moreover,

Section 21 of the General Clauses Act is not repugnant to the subject-

PART E

matter, context and effect of the Administrative Tribunals Act and is in

harmony with its scheme and object;

d. The notification dated 2 August 2019 by which the OAT was abolished

is not violative of Article 14 of the Constitution. The State Government

did not consider any irrelevant or extraneous factors while arriving at the

decision to request the Union Government to abolish the OAT. The

decision to abolish the OAT is itself not absurd or so unreasonable that

no reasonable person would have taken it;

e. The principles of natural justice were not violated because the class of

people who were affected by the decision to abolish the OAT did not

have a right to be heard. The public at large (or some sections of it) did

not have a right to be heard before the policy decision was taken;

f. The Union Government did not become functus officio after establishing

the OAT because the doctrine cannot ordinarily be applied in cases

where the government is formulating and implementing a policy;

g. The notification dated 2 August 2019 is valid though it is not expressed

in the name of the President of India because non-compliance with

Article 77 of the Constitution does not invalidate a notification or render

it unconstitutional;

h. The abolition of the OAT is not violative of the fundamental right of

access to justice because the Orissa High Court will hear cases which

were pending before the OAT prior to its abolition;

PART E

i. The State Government did not take advantage of its own wrong because

it stopped filling the vacancies of the OAT only after deciding to abolish

it. It did not rely on the vacancies (and the consequent increase in

pendency) created by its inaction to abolish the OAT; and

j. The failure of the Union Government to conduct a judicial impact

assessment before abolishing the OAT does not vitiate its decision to

abolish the OAT because the directions in Rojer Mathew (supra) were

of a general nature and did not prohibit the abolition of specific tribunals

such as the OAT in the absence of a judicial impact assessment.

However, the Ministry of Law and Justice is directed to conduct a judicial

impact assessment as directed by this Court in Rojer Mathew (supra).

129. The challenge to the constitutional validity of the impugned notification dated

2 August 2019 by which the OAT was abolished is rejected. The judgment of

the High Court shall stand affirmed in terms of the conclusions recorded

above. The appeals are dismissed.

130. Pending applications, if any, stand disposed of.

.…………………...............................CJI.

[Dr Dhananjaya Y Chandrachud]

.……………………...............................J.

[Hima Kohli]

New Delhi;

March 21, 2023

Search This Blog

Indian Constitution

Orissa Administrative Tribunal Bar Association versus Union of India & others

Comments

Post a Comment

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India