Union of India Versus Sanjiv Chaturvedi & Ors.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. /2023

(@ SPECIAL LEAVE PETITION (C) NO. 530 / 2022)

Union of India ...Appellant(s)

Versus

Sanjiv Chaturvedi & Ors. …Respondent(s)

J U D G M E N T

M.R. SHAH, J.

1. Leave granted

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 23.10.2021 passed by the High

Court of Uttarakhand at Nainital in WPSB No. 407/2020,

by which, the High Court has allowed the said writ petition

and has set aside order dated 04.12.2020 passed by the

Chairman, Central Administrative Tribunal (CAT),

Principal Bench, New Delhi by which the learned Principal

Bench of the Tribunal transferred Original Application (OA)

No. 331/109/2020 filed by the original writ petitioner,

from the Allahabad Bench (Nainital Circuit Bench) to the

Principal Bench, New Delhi, the Union of India has

preferred the present appeal.

3. The facts leading to the present appeal in a nutshell are

under:

3.1 That the contesting respondent No. 1 herein – original writ

petitioner filed original application (OA) before the Nainital

Circuit Bench, CAT with the following prayers:

"a. To call for records and issue appropriate

direction/order for quashing present system of 360

degree appraisal being used in empanelment of officers at

the level of Joint Secretary and above in Central

Government, being arbitrary, unreasonable, in violation of

principles of natural justice, being in supersession of

statutory rules and finding of Parliamentary Committee

Report.

b. To restrain the respondents from filling up the

posts of Joint Secretary/equivalent to Joint Secretary

rank and also posts above in rank of Joint Secretary in

Central Government, through contract system, in future.

c. To set aside all those provisions of present

Central Staffing Scheme, governing constitution of and

evaluation by Expert Panel for the purpose of

empanelment at Joint Secretary level in Government,

issued vide O.M. 36/77/94EO Central (SM1)" date

05.01.1996 and modified subsequently, being arbitrary,

unreasonable, violative of principles of natural justice and

in violation of basic federal structure enshrined into the

Constitution.

d. To direct the respondents to remove huge

artificial time lag created between empanelment of officers

of different services and between same levels in Central

Government and State Government, in case of All India

Service Officers.

e. To direct the respondents to consider the case of

Applicant for empanelment to the level of Joint Secretary

in view of fulfillment of all the eligibility criteria regarding

completion of requisite number of years of service and

elevation into Level14 of Pay Matrix; or alternatively,

issue directions to respondents not to reject

abovementioned case of Applicant, on any

ulterior/subjective/oblique consideration, and decide the

same objectively, on merit, facts and in accordance with

law only.

f. To order and appropriate investigation so as to fix

responsibility into various irregularities into recruitment

process of Joint Secretary rank officers through contract

system, taken place in the year 2019, in view of

irregularities brought out in para 3.5 of factual matrix."

3.2 That thereafter, the Union of India filed transfer

application under Section 25 of the Administrative

Tribunals Act, 1985 (Act, 1985) seeking transfer of OA filed

by the writ petitioner from Nainital Circuit Bench to the

Principal Bench, New Delhi. That by order dated

04.12.2020, the Chairman of the Tribunal, Principal

Bench, New Delhi, ordered transfer of the said OA to the

Principal Bench, New Delhi by observing that:

"A perusal of the prayer in the O.A. discloses that the very

procedure for empanelment for the post of Joint Secretary

is sought to be assailed. The matters of this nature have

their own impact on the very functioning of the Central

Government. It is felt that the O.A. deserves to be heard by

Principal Bench. Since the hearings are taking place

through video conferencing, no prejudice are taking place

through video conferencing, no prejudice would be caused

to the respondent in the P.T., i.e. applicant in the O.A.

also'”

3.3 The order dated 04.12.2020 transferring OA No.

331/109/2020 from Nainital Circuit Bench to the

Principal Bench, New Delhi came to be challenged by the

original writ petitioner – original applicant before the High

Court of Uttarakhand. It was submitted on behalf of the

original writ petitioner before the High Court that what

was challenged in the OA was the recruitment selection

process for the post of Joint Secretary. He was also

aggrieved of the fact that although eligible candidates were

available for the post of Joint Secretary, within the AllIndia Services, a policy decision has been taken by the

Central Government that the post of Joint Secretary would

be filled by hiring persons on contractual basis for a period

of three to five years and the said policy decision would

adversely affect the rights of the persons who are in the

AllIndia Services. It was also submitted on behalf of the

original writ petitioner – original applicant that the ground

on which the Union of India sought transfer of OA that,

since the original writ petitioner has challenged a policy

decision and since the policy decision has “nationwide

repercussion”, therefore, the OA deserves to be transferred

to the Principal Bench, New Delhi, is untenable. It was

submitted that if the Parliament were of the opinion that

issues of “national importance” need to be decided only by

the Principal Bench, a provision would have existed in the

Administrative Tribunals Act, debarring other Benches of

CAT from hearing issues of “national importance” or

having “nationwide repercussion.” However, there is no

such bar contained in the Administrative Tribunals Act,

preventing other Benches of CAT, which are considered to

be equivalent to the Principal Bench, from hearing or from

examining a policy decision of the Central Government. It

was submitted that all the Benches constituted under

Section 5 of the Act, 1985 would have equal jurisdiction.

3.4 The petition was opposed on behalf of the Union of India.

The Union of India challenged the territorial jurisdiction of

the High Court of Uttarakhand to entertain the writ

petition. It was submitted on behalf of the Union of India

that since all the relevant files and papers are at New Delhi

the case should be transferred to New Delhi. It was also

the case on behalf of the Union of India that since no

cause of action had arisen in Uttarakhand, the Nainital

Circuit Bench does not have the territorial jurisdiction to

hear the petition. It was submitted that as the policy was

framed in New Delhi, the names were invited for selection

in New Delhi, the selection process begins and ends in New

Delhi, therefore, only the Principal Bench at New Delhi has

territorial jurisdiction to hear the OA. It was also

submitted that since the relevant files are lying in New

Delhi and since the relevant witnesses would be available

in New Delhi, it would be in the interest of justice to

transfer the case to the Principal Bench, rather than

keeping the case pending before the Nainital Circuit

Bench. It was lastly submitted that since the decision with

regard to a policy decision of the Central Government

would have nationwide repercussions, therefore, only the

Principal Bench would be the suitable bench for deciding

the validity of the policy decision. Therefore, it was

submitted that the Chairman has rightly transferred the

OA from the Nainital Circuit Bench to the Principal Bench

in exercise of powers under Section 25 of the Act, 1985. In

the rejoinder, it was the case on behalf of the original writ

petitioner as regards the cause of action, that part cause of

action has arisen in Uttarakhand as the names of the

eligible candidates for the post of Joint Secretary are called

from the States; thus, the names are recommended by the

States; the service records of the eligible candidates are

with the State and the service records are forwarded by the

State. Moreover, as the decision to appoint the Joint

Secretaries on contractual basis adversely affects his right

of consideration for the post of Joint Secretary, hence, the

impact of the policy decision deprives his right in the State

of Uttarakhand and therefore, a part of cause of action has

arisen in the State of Uttarakhand and therefore, the

Nainital Circuit Bench has jurisdiction to hear the OA.

3.5 That thereafter, after considering the relevant provisions of

the Act, 1985 and following the decision of this Court in

the case of L. Chandra Kumar Vs. Union of India (1997)

3 SCC 261, the High Court has allowed the writ petition

and has set aside the order dated 04.12.2020 passed by

the Chairman, Central Administrative Tribunal, New Delhi

by observing that there is no requirement of law that a

policy decision must, necessarily, be challenged before the

Principal Bench and that there is no provision under the

Act, 1985 that a challenge to a policy decision can be

heard only by the Principal Bench.

3.6 Feeling aggrieved with the impugned judgment and order

passed by the High Court, Union of India has preferred the

present appeal.

4. Shri Tushar Mehta, learned Solicitor General appearing on

behalf of the Union of India has vehemently submitted that

as such the High Court of Uttarakhand has erred in

entertaining the writ petition. It is submitted that as such

no cause of action has arisen within the territory of

Uttarakhand High Court, the Uttarakhand High Court

lacked the territorial jurisdiction to entertain the writ

petition against the order passed by the Chairman, Central

Administrative Tribunal, Principal Bench, New Delhi.

Heavy reliance is placed on the decision of this Court in

the case of L. Chandra Kumar (supra) as well as on the

decision of this Court in the case of Union of India Vs.

Alapan Bandyopadhyay (2022) 3 SCC 133.

4.1 In the case of Alapan Bandyopadhyay (supra) after

considering and following the decision of this Court in the

case of L. Chandra Kumar (supra), it is specifically

observed and held that “all decisions of Tribunals created

under Article 323A and Article 323B of the Constitution

will be subject to the scrutiny before a Division Bench of

the High Court within whose jurisdiction the concerned

Tribunal falls.” It is submitted that before this Court an

identification question arises. That before this Court in the

case of Alapan Bandyopadhyay (supra) the High Court at

Calcutta set aside the order passed by the Principal Bench,

New Delhi transferring the OA and its files from the

Calcutta Bench to the Principal Bench (New Delhi). That it

is observed and held by this Court that the Calcutta High

Court lacked territorial jurisdiction. Shri Tushar Mehta,

learned Solicitor General heavily relied upon paragraphs

15 to 17.

4.2 Making the above submissions and relying upon the above

decisions it is vehemently submitted by Shri Tushar

Mehta, learned Solicitor General that the impugned

judgment and order passed by the High Court of

Uttarakhand is wholly without jurisdiction.

4.3 Shri Tushar Mehta, learned Solicitor General has made

elaborate submissions on merits also, namely, on the

powers of the Chairman conferred under Section 25 of the

Act, 1985.

5. Shri Shyam Divan, learned Senior Advocate has appeared

on behalf of the original writ petitioner. On the

submissions made on behalf of the Union of India that the

High Court of Uttarakhand would have no jurisdiction to

entertain the writ petition challenging the decision of the

Chairman, CAT, to transfer the OA from Nainital Circuit

Bench to Principal Bench, New Delhi, it is vehemently

submitted by Shri Shyam Divan, learned Senior Advocate

that under Article 226 (2) of the Constitution of India any

High Court can exercise jurisdiction under Article 226

provided a part cause of action has arisen in its

jurisdiction irrespective of whether the authority or

government which passed the order is not located within

the jurisdiction of the said High Court. Thus, there can be

no doubt that the High Court can exercise the powers

under Article 226, if the cause of action, wholly or in part,

arises in the territorial jurisdiction of that High Court.

5.1 It is submitted that the decision of this Court in the case of

L. Chandra Kumar (supra) while recognising the

jurisdiction of a High Court under whose jurisdiction the

Tribunal falls, may not be read to be limiting the

jurisdiction of other High Court under Article 226(2), if

otherwise available. It is submitted that the decision of this

Court does not confer exclusive jurisdiction on the High

Court under whose jurisdiction the Tribunal falls. It is

submitted that the judgment ought not to be read as

constricting the scope of Article 226(2). Therefore, to this

extent the decision of this Court in the case of Alapan

Bandyopadhyay (supra) may require reconsideration.

5.2 It is further submitted by Shri Shyam Divan, learned

Senior Advocate that under the Constitutional scheme, the

remedies under Article 226 and Article 227 are extremely

valuable remedies available to citizens where they reside or

carry on business or are posted. The scheme does not

require citizens to come exclusively all the way to Delhi to

seek redressal. Thus, limiting the remedy under Article

226 is contrary to the spirit of the Constitution, contrary to

the spirit and principle of access to justice and contrary to

the basic structure of the Constitution which enables

judicial review across the country and not at one

concentrated location.

5.3 It submitted that this Court, by way of a judicial order,

ought not to take away jurisdiction from other high courts

which are otherwise empowered under Article 226(2) to

entertain a Writ Petition against the order of a Tribunal

located in the territory beyond the territorial jurisdiction of

the said high courts. It is further submitted that if such an

interpretation is taken to its logical conclusion, then it

would result in undue hardship and inconvenience to the

employees of the central government itself who are posted

across the country.

5.4 Shri Shyam Divan, learned Senior Advocate has taken us

to the historical background of Article 226 of the

Constitution of India and the development of the law on

the jurisdiction of the High Courts including the statement

of objects and reasons to the Constitution (Fifteenth

Amendment) Act, 1963 and the remarks of the then Law

Minister at the time of introducing the amendment.

5.5 It is submitted that in the subsequent decision of this

Court in the case of Kusum Ingots and Alloys Ltd. Vs.

Union of India and Anr., (2004) 6 SCC 254, which was

after the introduction of Article 226(2), has observed and

held that the High Court would have jurisdiction if a part

of the cause of action arises in its jurisdiction irrespective

of location/residence of the authority.

5.6 It is submitted that this Court in the case of Alchemist

Ltd. and Anr. Vs. State Bank of Sikkim and Ors., (2007)

11 SCC 335, noting the development of law in relation to

the territorial jurisdiction of the High Courts under Article

226 has held that “the legislative history of the

constitutional provisions, therefore, makes it clear that

after 1963, cause of action is relevant and germane and a

writ petition can be instituted in a High Court within the

territorial jurisdiction of which cause of action in whole or

in part arises.”

5.7 It is further submitted that the observations made by this

Court in the case of L. Chandra Kumar (supra) that all

decisions of tribunals would be subject to scrutiny before a

Division Bench of the High Court within whose jurisdiction

the tribunal concerned falls, is not an exclusion of the

jurisdiction of the other high courts which may have

jurisdiction, particularly, under Article 226(2) of the

Constitution of India. It is submitted that therefore, the

judgment of this Court in the case of Alapan

Bandyopadhyay (supra) may require reconsideration.

5.8 In support of his above request, he has made following

submissions:

(i) The Judgement of this Court in the case of Alapan

Bandyopadhyay (supra) arose out of an order passed

by the Chairman, Central Administrative Tribunal

exercising powers under Section 25 of the

Administrative Tribunals Act, 1985 transferring the

O.A. filed by the Respondent therein from the Calcutta

Bench of the Central Administrative Tribunal to the

Principal Bench at New Delhi. The said Transfer Order

was quashed by the Calcutta High Court by allowing

the Writ Petition filed by the Respondent therein.

(ii) The Order of the Calcutta High Court was challenged

by the Union of India on the ground that a challenge

against the order passed in the Transfer Application by

the Central Administrative Tribunal, Principal Bench

at New Delhi, was maintainable only before the High

Court of Delhi as the Principal Bench of the Tribunal

lies within its territorial jurisdiction.

(iii) This Hon'ble Court, referring to paragraph 99 of the

Judgment in L. Chandra Kumar (supra), held that any

decision of the Tribunal can only be subjected to

scrutiny before a Division Bench of a High Court

within whose jurisdiction the Tribunal concerned falls.

Consequently, it was held that the jurisdiction lies

with the High Court of Delhi since the Principal Bench

of the Central Administrative Tribunal is located at

New Delhi.

5.9 It is submitted that the relevant paragraphs from the

judgment of this Hon'ble Court in Alapan Bandyopadhyay

(supra) are reproduced herein below:

“36. In view of the reasoning adopted the Constitution

Bench in L. Chandra Kumar case [L. Chandra

Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC

(L&S) 577] held Section 28 of the Act and the

“exclusion jurisdiction” clauses in all other legislations

enacted under the aegis of Articles 323A and 323B,

to the extent they exclude the jurisdiction of the High

Courts under Articles 226/227 and the Supreme

Court under Article 32, of the Constitution, was held

unconstitutional besides holding clause 2(d) of Article

323A and clause 3(d) of Article 323B, to the same

extent, as unconstitutional.

37. Further, it was held thus : (L. Chandra Kumar

case [L. Chandra Kumar v. Union of India, (1997) 3

SCC 261 : 1997 SCC (L&S) 577] , SCC p. 311, para 99)

“99. … The jurisdiction conferred upon the High

Courts under Articles 226/227 and upon the Supreme

Court under Article 32 of the Constitution is a part of

the inviolable basic structure of our Constitution.

While this jurisdiction cannot be ousted, other Courts

and Tribunals may perform a supplemental role in

discharging the powers conferred by Articles 226/227

and 32 of the Constitution. The Tribunals created

under Article 323A and Article 323B of the

Constitution are possessed of the competence to test

the constitutional validity of statutory provisions and

rules. All decisions of these Tribunals will, however, be

subject to scrutiny before a Division Bench of the High

Court within whose jurisdiction the Tribunal concerned

falls.”

(emphasis supplied)

38. When once a Constitution Bench of this Court

declared the law that “all decisions of Tribunals

created under Article 323A and Article 323B of the

Constitution will be subject to the scrutiny before a

Division Bench of the High Court within whose

jurisdiction the Tribunal concerned falls”, it is

impermissible to make any further construction on the

said issue. The expression “all decisions of these

Tribunals” used by the Constitution Bench will cover

and take within its sweep orders passed on

applications or otherwise in the matter of transfer of

original applications from one Bench of the Tribunal to

another Bench of the Tribunal in exercise of the power

under Section 25 of the Act.

39. In other words, any decision of such a Tribunal,

including the one passed under Section 25 of the Act

could be subjected to scrutiny only before a Division

Bench of a High Court within whose jurisdiction the

Tribunal concerned falls. This unambiguous exposition

of law has to be followed scrupulously while deciding

the jurisdictional High Court for the purpose of

bringing in challenge against an order of transfer of an

original application from one Bench of Tribunal to

another Bench in the invocation of Section 25 of the

Act.

40. The law thus declared by the Constitution Bench

cannot be revisited by a Bench of lesser quorum or for

that matter by the High Courts by looking into the

bundle of facts to ascertain whether they would confer

territorial jurisdiction to the High Court within the

ambit of Article 226(2) of the Constitution. We are of

the considered view that taking another view would

undoubtedly result in indefiniteness and multiplicity

in the matter of jurisdiction in situations when a

decision passed under Section 25 of the Act is to be

called in question especially in cases involving multiple

parties residing within the jurisdiction of different High

Courts albeit aggrieved by one common order passed

by the Chairman at the Principal Bench at New Delhi.”

5.10 It is submitted that the Constitution Bench in L. Chandra

Kumar (supra) was dealing with a challenge to the

constitutional validity of Article 323A(2d), Article 323

B(3d) of the Constitution of India and Section 28 of the

Administrative Tribunals Act, 1985 which excluded

jurisdiction of the Hon'ble Supreme Court under Article 32

and of the High Courts under Article 226. The final

conclusion reached by the Constitution Bench in L.

Chandra Kumar (supra) at paragraph 99, was that:

(a) the power of Judicial Review guaranteed under Article

32 and Article 226/227 is part of the inviolable basic

structure of our constitution.

(b) the provisions under challenge were declared

unconstitutional to the extent that they exclude the

jurisdiction of the High Courts and the Supreme Court

under Article 226/227 and 32 of the Constitution of

India respectively.

the first instance go to the Administrative Tribunal and

upon the tribunal delivering the judgment the same

could be subjected to a challenge under the writ

jurisdiction of the High Court within whose jurisdiction

the tribunal falls.

5.11 It is submitted that judgment in the case of L. Chandra

Kumar (supra) ought not to be read to have held that only

the High Court under whose territorial jurisdiction the

tribunal falls will have jurisdiction to entertain a Writ

Petition against the order of the said tribunal.

5.12 The effect of the Judgment in Alapan Bandyopadhyay

(supra) is that only the High Court under whose territorial

jurisdiction the tribunal falls would have jurisdiction to

entertain a Writ Petition against the order of the said

Tribunal.

5.13 It is submitted that as is clear from the section dealing

with the development of law relating to the territorial

jurisdiction of the High Courts, the intent and purpose

behind adding clause (2) under Article 226 would be

defeated if paragraph 99 of L. Chandra Kumar (supra) is

interpreted in such a manner.

5.14 It is further submitted that the power of judicial review is

an integral and essential feature of the Constitution and

even a constitutional amendment cannot exclude the

power of the high courts and the Supreme Court to

exercise their power of judicial review and this power can

never be ousted.

5.15 It is respectfully submitted that this Court, by way of a

judicial order, ought not to take away jurisdiction from

other high courts which are otherwise empowered under

Article 226(2) to entertain a Writ Petition against the order

of a Tribunal located in the territory beyond the territorial

jurisdiction of the said high courts.

5.16 It is submitted that under the Constitutional scheme, all

twentyfive High Courts have equivalent jurisdiction, and

no discrimination or special treatment is envisaged to any

particular High Court. This is one of the facets of

independence of judiciary.

5.17 It is further submitted that if such an interpretation is

taken to its logical conclusion, then it would result in

undue hardship and inconvenience to the employees of the

central government itself who are posted across the

country. For example, if an application were to be filed by

an aggrieved employee before the Ernakulam Bench of the

Central Administrative Tribunal, and an Order for its

Transfer to another Bench were to be passed by the

Principal Bench at Delhi, the aggrieved would be forced to

travel all the way from Ernakulam to Delhi to challenge the

Transfer Order and contest the case. As already submitted

above, this would defeat the very purpose of inserting

Article 226(2) into the Constitution with the specific intent

of providing a cheap, effective and efficacious remedy in

law at the doorstep of the aggrieved person.

5.18 It is therefore prayed that the decision of this Hon'ble

Court rendered in Alapan Bandyopadhyay (supra) case

ought to be reconsidered in light of the submissions made

above.

6. Regard being had to the important issue raised by Shri

Shyam Divan, learned Senior Advocate appearing on

behalf of respondent No. 1 and the submissions made by

Shri Tushar Mehta, learned Solicitor General and having

gone through the judgment(s) and order(s) passed by this

Court in L. Chandra Kumar (supra) and Alapan

Bandyopadhyay (supra) and that the issue involved is

with respect to the territorial jurisdiction of the High

Courts and the effect of introduction of Article 226(2) of the

Constitution of India and the statement of the Law

Minister while introducing Article 226(2) of the

Constitution referred to hereinabove and that the issue

involved affects a large number of employees and is of

public importance, we think it appropriate that the matter

involving the issue of territorial jurisdiction of the

concerned High Court to decide a challenge to an order

passed by the Chairman, CAT, Principal Bench, New Delhi

should be considered by a Larger Bench. Let the registry

place the matter before the Chief Justice of India for

appropriate orders at the earliest so that the aforesaid

issue is resolved at the earliest.

………………………………….J.

[M.R. SHAH]

NEW DELHI; ………………………………….J.

MARCH 03, 2023 [B.V. NAGARATHNA]

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