$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 30 August, 2024
+ W.P.(C) 10134/2024
VINAY .....Petitioner
Through: Mr. Ashu Bidhuri, Mr. Swapnam
Prakash Singh and Mr. Satyansh Gupta,
Advocates.
versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Nishant Gautam, Ms. Sanjana
Mehrotra, Mr. Vinay Kaushik, Mr. Mayank
Sharma, Mr. Ajay Kanojiya, Mr. Alok Saxena, Mr.
Karan Chauhan, Mr. Arnold Harvey and Mr.
Rudra Rout, Advocates also for R-1 and R-3.
Ms. Pankhuri Shrivastava, Mr. Alekshendra
Sharma and Ms. Neelam Sharma, Advocates for
R-2/NTA.
+ W.P.(C) 6743/2024
PARIKSHIT GREWAL & ORS. .....Petitioners
Through: Ms. Anushree Kapadda and Ms. Ekta
Kundu, Advocates.
versus
UNION OF INDIA & ANR. .....Respondents
Through: Mr. Piyush Beriwal, Mr. Jitendra
Tripathi and Ms. Ojasvi, Advocates for R-1/UOI.
Mr. Naresh Kaushik, Senior Advocate with Ms.
Pankhuri Shrivastava, Ms. Neelam Sharma, Mr.
Alekshendra Sharma and Mr. Anand Singh,
Advocates for R-2/NTA.
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By:KAMAL KUMAR
Signing Date:12.09.2024
01:07:06
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
CM APPL. 41507/2024 in W.P.(C) 10134/2024
CM APPL. 28122/2024 in W.P.(C) 6743/2024
1. Exemptions allowed, subject to all just exceptions.
2. Applications stand disposed of.
W.P.(C) 10134/2024 and CM APPL. 41506/2024 and
W.P.(C) 6743/2024 and CM APPL. 28121/2024
3. These writ petitions have been preferred on behalf of the Petitioners
under Article 226 of the Constitution of India seeking a direction to the
Respondents to keep in abeyance the whole joining process of the candidates
pursuant to a recruitment process for filling up posts of Examiner of Patents
‘
& Designs, Group-A (Gazetted) initiated by Controller General of Patents,
’
Design and Trademark, Department for Promotion of Industry and Internal
Trade, Ministry of Commerce and Industry , for which
(‘CGPDTM’)
Nat /Respondent No.2 was entrusted with the
ional Testing Agency (‘NTA’)
responsibility of conducting the recruitment process. Notice was published
by NTA on 11.12.2023 for conduct of the recruitment process and after
issuing the admit cards, NTA conducted the preliminary examination on
21.12.2023. The Mains Examination (Paper-I and II) i.e. Phase-2 was
conducted on 25.01.2024. Due to technical glitch, certain students missed
the Mains Examination and undertook the same on 05.02.2024. Results were
declared for the Mains Examination on 26.03.2024 and interviews were
scheduled offline between 01.04.2024 to 25.04.2024. NTA issued a public
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notice dated 15.06.2024 with the final scorecard of the candidates after the
interviews.
4. The grievances of the Petitioners in these writ petitions pertain to
alleged irregularities in the process of examination conducted by NTA viz.
allotment of centres; no clarity on negative marking for Mains Paper-I; non-
disclosure of Mains Paper-II question paper or its answer key; non-
declaration of results and cut-offs for all examinations, interviews and merit
lists etc. In this backdrop, Petitioners seek quashing of the result of the
Mains Examination announced on 26.03.2024 as well as the final scorecard
announced on 15.06.2024 and final result announced on 16.06.2024, with a
direction to the Respondents to conduct the examination again from the
stage of Mains Examination.
5. Mr. Naresh Kaushik, learned Senior counsel appearing for NTA in
W.P. (C) 6743/2024 and Ms. Pankhuri Shrivastava, learned counsel
appearing for NTA in W.P.(C) 10134/2024 took a preliminary objection to
the maintainability of these petitions on the ground that the remedy of the
Petitioners to challenge the alleged irregularities in the recruitment process
the only
lies before the Central Administrative Tribunal (‘Tribunal’) as
Court of first instance, in view of Section 14(1) of the Administrative
Tribunals A
ct, 1985 (hereinafter referred to as ‘1985 Act’), wherein it is
provided that in respect of recruitment and matters concerning recruitment
to any All-India Service or to any civil post of the Union or a civil post
under the Union, the Tribunal shall exercise jurisdiction. Reliance was
placed on the judgment of the Constitution Bench of the Supreme Court in
L. Chandra Kumar v. Union of India and Others, (1997) 3 SCC 261 as
well as on the judgments in Kendriya Vidyalaya Sangathan and Another v.
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Subhas Sharma, (2002) 4 SCC 145 and Rajeev Kumar and Another v.
Hemraj Singh Chauhan and Others, (2010) 4 SCC 554, and judgment of
this Court in Praveen Sharma v. U.P.S.C., 2007 SCC OnLine Del 2086.
6. Learned counsels for the Petitioners argued that the writ petitions are
maintainable in this Court. By these petitions, Petitioners challenge the
examination process conducted by NTA for filling up the posts of Examiner
of Patents & Designs. The examination was conducted in three phases and
petitions have been filed by candidates who are directly effected
stakeholders and participants in the said examination, wherein several
irregularities were committed resulting in lack of fairness, transparency and
reliability of the entire examination process. The integrity of public
examinations is paramount to uphold the standards of recruitment process
and ensure equal opportunities for all aspiring candidates.
7. It was argued that there can be no objection to the maintainability of
the present petitions in the facts of the present cases wherein the issues
involved centre around large scale irregularities and malpractices in the
examination process held by NTA. This is not a litigation for individual
rights but for upholding rights of Petitioners and similarly placed candidates
who have suffered due to the irregularities in the examination process. It was
also argued that there is no relationship of employer-employee between the
Petitioners and the Respondents and therefore, the grievances raised by the
Petitioners are not ‘service matters’ for the purpose of Section 14 of the
1985 Act and are beyond the jurisdiction of the Tribunal. In L. Chandra
Kumar (supra), the Supreme Court observed that it will not be open to the
employees to directly approach the High Courts for service related
‘ ’
disputes, but Petitioners are not employees of the Respondents and thus the
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judgment will not apply. Moreover, NTA is not notified under Section 14 of
the 1985 Act and thus the Tribunal will have no jurisdiction to adjudicate
with respect to the examination conducted by NTA and Petitioners cannot
file the same case in two different forums.
8. In L. Chandra Kumar (supra) itself, the Supreme Court observed that
in extenuating and exceptional circumstances, the writ petition can be
entertained and such circumstances were explained by referring to a decision
of the Supreme Court in T.N. Rangarajan v. Government of T.N. and
Others, (2003) 6 SCC 581. Present cases fall under extenuating and
exceptional circumstances looking at the large scale irregularities in the
examination as flagged in the writ petitions such as irregularity in allotment
of centres, no clarity on negative marking for Mains Paper-I, non-disclosure
of Mains Paper-II question paper or its answer key, non-declaration of
results and cut-offs for all examinations, interviews and merit lists etc. In
any case, the jurisdiction of the High Court can never be excluded being an
inviolable part of basis structure of our Constitution.
9. I have heard learned counsels for the parties and examined their rival
contentions with respect to the maintainability of these writ petitions.
10. The questions that this Court is called upon to decide are whether the
Tribunal has the jurisdiction to entertain and adjudicate upon the issues
which are subject matter of these writ petitions and if so, whether the writ
petitions can be entertained under Article 226 of the Constitution of India,
despite availability of the remedy to the Petitioners to approach the Tribunal
under Section 14(1) of the 1985 Act.
11. There is no dispute that the challenge in the present writ petitions is to
the examination conducted by NTA and it is equally undisputed that
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By:KAMAL KUMAR
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examination was conducted for the purpose of recruitment to the posts of
Examiner of Patents & Designs. Section 14 of the 1985 Act provides that the
Tribunal will exercise jurisdiction in relation to recruitment and matters
concerning recruitment to any All-India Service or to any civil service of the
Union or a civil post under the Union or to a post connected with defence or
in the defence services being in either case, a post filled by a civilian. The
expression ‘selection/recruitment’ has been subject matter of judicial
scrutiny in several cases and it has been held that issue of advertisement is
the commencement point of a recruitment/selection process. In A.P. Public
Service Commission, Hyderabad and Another v. B. Sarat Chandra and
Others, (1990) 2 SCC 669, the Supreme Court observed that process of
selection begins with the issuance of advertisement and ends with the
preparation of select list for appointment. It consists of various steps like
inviting applications, scrutiny thereof and rejection of defective applications
and elimination of ineligible candidates, conducting examinations, calling
for interview and preparation of list of successful candidates. Therefore,
there can be no doubt that the selection/recruitment process begins with the
issuance of advertisement and in this context, I may also refer to a judgment
of the Division Bench of this Court in Ms. Shaloo Batra and Ors. v. High
Court of Delhi, 2013 SCC OnLine Del 1745 and of Madhya Pradesh High
Court in Kishor v. State of M.P. and Another, 2022 SCC OnLine MP 5442.
12. Applying the aforesaid principles to the facts of the present cases, the
recruitment process began on 11.12.2023 when CGPDTM issued
Recruitment Notification and therefore, any challenge relating to any stage
of the recruitment process, post the issuance of the advertisement would fall
recruitment matters concerning recruitment
under ‘ ’ and ‘ ’ under Section 14
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of the 1985 Act and the remedy of the Petitioners would lie before the
Tribunal as the only Court of first instance. Needless to state that a challenge
to an examination on the ground that there are alleged irregularities and
malpractices will be a challenge to the recruitment process and no exception
can be carved out on the ground that there are large scale irregularities,
impacting number of candidates or that the integrity of public examination is
paramount to uphold the standards of recruitment process. In Praveen
Sharma (supra), a similar conundrum was resolved by the Court holding
that a competitive examination is a condition precedent for appointment to
an All-India Service or post or a civil post and the examination, therefore, is
a part of the process of recruitment. Reference was made to the decision of
the Division Bench of the Allahabad High Court in Sudhanshu Tripathi v.
Union of India and another, 1988 SCC OnLine All 936, where it was held
that a dispute arising out of an examination conducted by the UPSC directly
concerned the recruitment to All-India service and could be entertained only
by the Administrative Tribunals in view of Section 14 of the 1985 Act.
Examining the issue, this Court held that the expression used in Section 14
recruitment recruitment and matters concerning
is not just ‘ ’ but ‘
recruitment
’ and therefore, disputes concerning eligibility of candidates, etc.
in relation to examination processes will be matters within the domain of the
Administrative Tribunal as the only Court of first instance. Reliance was
also placed by the Court on the earlier decisions of this Court in Pranay
Kumar Soni v. The Chairman, U.P.S.C. & Anr., 2003 SCC OnLine Del
387 and Neeraj Kansal v. Union Public Service Commission, W.P. (C)
Nos.7824-32/2006, decided on 05.10.2006. Relevant passages from the
judgment in Praveen Sharma (supra) are as follows:-
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It is apparent that the Supreme Court, while keeping the powers
“19.
conferred on the High Courts under Article 226/227 intact inasmuch as it
was part of the inviolable basic structure of the Constitution, observed that
the Tribunals may perform a supplemental role in discharging the powers
conferred by the aforesaid Articles. The Supreme Court also observed that
the decisions of such Tribunals would, however, be subject to scrutiny
before a Division Bench of the High Court within whose jurisdiction the
Tribunal concerned falls. The Tribunals would, nevertheless, continue to
act like Courts of first instance in respect of the areas of law for which
they have been constituted and that it would not be open for litigants to
directly approach the High Courts even in cases where they question the
vires of statutory legislations (except where the legislation which creates
the particular Tribunal is challenged) by overlooking the jurisdiction of
the Tribunal concerned. In this context it becomes necessary to examine
the provisions of Section 14 of the Administrative Tribunals Act,
1985 which indicates the areas of law for which the Tribunal has been
constituted. The relevant portion of Section 14 of the Administrative
Tribunals Act, 1985 reads as under:
—
Jurisdiction, powers and authority of the Central Administrative
“14.
Tribunal-
(1) Save as otherwise expressly provided in this Act, the Central
Administrative Tribunal shall exercise, on and from the appointed
day, all the jurisdiction, powers and authority exercisable immediately
before that day by all courts (except the Supreme Court * * *) in
relation to -
(a) recruitment and matters concerning recruitment, to any All-
India Service or to any civil service of the Union or a civil post
under the Union or to a post connected with defence services,
being, in either case, a post filled by a civilian;
(b) all service matters concerning -
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a
person referred to in Clause (c)] appointed to any civil service
of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a
person referred to in Clause (c)] appointed to any defence
services or a post connected with defence, and pertaining to the
service of such member, person or civilian, in connection with
the affairs of the Union or of any State or of any local or other
authority within the territory of India or under the control of the
Government of India or of any corporation [or society] owned
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or controlled by the Government;
(c) all service matters pertaining to service in connection with the
affairs of the Union concerning a person appointed to any service
or post referred to in Sub-clause (ii) or Sub-clause (iii) or Clause
(b), being a person-whose services have been placed by a State
Government or any local or other authority or any corporation [or
society] or other body, at the disposal of the Central Government
for such appointment.
[Explanation : - For the removal of doubts, it is hereby declared
-section shall be construed as
that references to “Union” in this sub
including references also to a Union territory.]
(2) xxxxxxxx
(3) xxxxxxxx”
20.
The expression that is relevant in the present case is “recruitment,
S. Tripathi v. Union of
and matters concerning recruitment”. In
India, (1988) 2 SLR 688 a Division Bench of the Allahabad High Court
(Lucknow Bench) held that the examination conducted by the UPSC for
the purposes of the All India Services including the Indian Administrative
Service, was part of the recruitment process. The Court held as under:
—
“7. It is not disputed that holding of competitive examination is a
condition precedent for appointment to an All India Service for which
the petitioner had applied and appeared and was ultimately declared
not to have succeeded. It is also not disputed that appointment to All
India Services, at least, to the Indian Administrative Service as
indicated in the petition, is made on the basis of the result of the
competitive examination held by the Union Public Service
Commission. The examination, therefore, is a part of the process of
recruitment.
8. In view of the provisions contained in Section 14, since the dispute
raised in the present petition directly concerns the recruitment to All
India Service, we are of the opinion that the petition can be
entertained only by the Administrative Tribunal.”
21. This finding of the Allahabad High Court has been approved by
successive learned Single Judges of this Court in Pranay Kumar
Soni (supra) and Neeraj Kansal (supra). It is, therefore, clear that the
UPSC examination is part of the recruitment process.
22. The question that arises in the present case is whether the issues
involved herein can be regarded as relating to the examination conducted
by the UPSC. This question emerges in the context that there is no
challenge to the examination conducted in 2006. Insofar as the 2005
examinations are concerned, that is over. And, the petitioner does not
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stake any claim in respect thereof because he could not complete that
examination as a result of circumstances beyond his control. By way of
this petition, the petitioner is seeking a direction from this Court declaring
his appearance in the 2005 examination to be disregarded as an attempt.
The issue here is not so much with regard to the conduct of the
examinations but with regard to the petitioner's eligibility to sit in the
examination. Had it been a matter where the examination itself was in
question, it would clearly fall within the ratio of the decisions in Pranay
Kumar Soni (supra) and Neeraj Kansal (supra), which in turn followed S.
Tripathi (supra). Here the issue is with regard to eligibility. In my view,
the expression used in Section 14 of the Administrative Tribunals Act,
1985
is not just “recruitment” but “recruitment, and matters concerning
recruitment”. Had the expression only been “recruitment”, there could
have been some debate as to whether a condition of eligibility was a part
of recruitment. But the expression used in Section 14 is of much wider
amplitude inasmuch as it also refers to “matters concerning recruitment”.
An eligibility condition would definitely, in my view, fall within the scope
of this expression. The question in the present writ petition is whether the
petitioner was eligible or not to sit for the 2006 examinations. That is
certainly a matter concerning recruitment. Accordingly, the Central
Administrative Tribunal would, in view of the Supreme Court decision
in L. Chandra Kumar (supra), have to function like the court of the first
instance with regard to the question of eligibility raised in the present case
because this is the precise area of law for which the Tribunal has been
constituted, as indicated by Section 14 (1) (a) of the Administrative
Tribunals Act, 1985. It would, therefore, not be open to the petitioner to
directly approach this Court and, therefore, it would be appropriate if the
petitioner is directed to first approach the Central Administrative Tribunal
which, indeed, has jurisdiction to adjudicate upon the issue of eligibility
raised by the petitioner herein.
”
13. In light of Section 14(1) of the 1985 Act and the observations of the
Courts in the aforementioned judgments, this Court is unable to agree with
the Petitioners that the disputes arising from the examination conducted by
NTA even if it relates to alleged irregularities therein would not be disputes
concerning recruitment and matters concerning recruitment and are not
amenable to the jurisdiction of the Administrative Tribunal. The second and
the only other issue that needs consideration is whether these writ petitions
should be entertained in light of the fact that Petitioners remedy lies in
’
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approaching the Administrative Tribunal. This issue need not detain this
Court, in view of the judgment of the Constitution Bench of the Supreme
Court in L. Chandra Kumar (supra). The questions of law framed by the
Supreme Court for consideration in the said judgment were as follows:
“(1) Whether the power conferred upon Parliament or the State
Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article
323-A or by sub-clause (d) of clause (3) of Article 323-B of the
Constitution, to totally exclude the jurisdiction of ‘all courts’, except that
of the Supreme Court under Article 136, in respect of disputes and
complaints referred to in clause (1) of Article 323-A or with regard to all
or any of the matters specified in clause (2) of Article 323-B, runs counter
to the power of judicial review conferred on the High Courts under
Articles 226/227 and on the Supreme Court under Article 32 of the
Constitution?
(2) Whether the Tribunals, constituted either under Article 323-A or
under Article 323-B of the Constitution, possess the competence to test the
constitutional validity of a statutory provision/rule?
(3) Whether these Tribunals, as they are functioning at present, can be
said to be effective substitutes for the High Courts in discharging the
power of judicial review? If not, what are the changes required to make
them conform to their founding objectives?”
14. The Supreme Court then set out the legal and historical background to
the case and Articles 323-A and 323-B in Part XIV-A of the Constitution
nd
inserted through Section 46 of the Constitution (42 Amendment) Act,
1976 w.e.f. 01.03.1977 as well as Statement of Objects and Reasons of 1985
Act. Article 323-A provides for constitution of the Administrative Tribunals
with respect to recruitment and conditions of service of persons appointed to
Public Services and posts in connection with the affairs of the Union etc.
Relevant part of the judgement is as follows:
7. In pursuance of the power conferred upon it by clause (1) of
“
Article 323-A of the Constitution, Parliament enacted the Administrative
Tribunals Act, 1985 (Act 13 of 1985) (hereinafter referred to as “the
Act”). The Statement of Objects and Reasons of the Act indicates that it
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was in the express terms of Article 323-A of the Constitution and was
being enacted because a large number of cases relating to service matters
were pending before various courts; it was 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”.
15. In para 9, the Supreme Court referred to the judgment delivered by
the five-Judge Bench in S.P. Sampath Kumar and Others v. Union of
India and Others, (1985) 4 SCC 458, wherein the Supreme Court had, in a
challenge to the Constitutional validity of Article 323-A, taken a view that
though judicial review is a basic feature of the Constitution, the vesting of
the said power in an alternative institutional mechanism would not do
violence to the basic structure, so long as it is ensured that the mechanism is
effective and will be an effective and a real substitute for the High Court.
Relevant paragraph is as follows:-
When Sampath Kumar case was finally heard, these changes had
“9.
already been incorporated in the body and text of the Act. The Court took
the view that most of the original grounds of challenge which included
—
a challenge to the constitutional validity of Article 323-A did not
—
survive and restricted its focus to testing only the constitutional validity of
the provisions of the Act. In its final decision, the Court held that though
judicial review is a basic feature of the Constitution, the vesting of the
power of judicial review in an alternative institutional mechanism, after
taking it away from the High Courts, would not do violence to the basic
structure so long as it was ensured that the alternative mechanism was an
effective and real substitute for the High Court. Using this theory of
effective alternative institutional mechanisms as its foundation, the Court
proceeded to analyse the provisions of the Act in order to ascertain
whether they passed constitutional muster. The Court came to the
conclusion that the Act, as it stood at that time, did not measure up to the
requirements of an effective substitute and, to that end, suggested several
amendments to the provisions governing the form and content of the
Tribunal. The suggested amendments were given the force of law by an
Amending Act (Act 51 of 1987) after the conclusion of the case and the
Act has since remained unaltered.”
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16. After examining the provisions of the 1985 Act, the Supreme Court
analyzed one of the decisions impugned before it by the Full Bench of the
Andhra Pradesh High Court in Sakinala Harinath & Ors. v. State of A.P. &
Ors., 1993 SCC OnLine AP 195, wherein Article 323-A (2)(d) was held to
be unconstitutional to the extent it empowers the Parliament to exclude the
jurisdiction of the High Courts under Article 226 of the Constitution. The
Andhra Pradesh High Court held that under the Constitutional scheme,
Supreme Court and High Courts are the sole repositories of the power of
judicial review. Such a power, including the power to pronounce on the
validity of Statutes, actions taken by individuals and State has only been
entrusted to the Constitutional Courts. The High Court analyzing the
decision in Sampath Kumar (supra) observed that the theory of alternative
institutional mechanism was in defiance of the proposition laid down in His
Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and
Another, (1973) 4 SCC 225, that Constitutional Courts alone are competent
to exercise power of judicial review to pronounce upon constitutional
validity, statutory provisions and Rules. In this background, High Court of
Andhra Pradesh held that service matters involving constitutionality of
Rules or provisions should not be left to be decided by statutorily created
adjudicatory bodies. The observations of the Supreme Court further are as
follows:
The underlying theme of the impugned judgment of the A.P. High
“51.
Court rendered by M.N. Rao, J. is that the power of judicial review is one
of the basic features of our Constitution and that aspect of the power
which enables courts to test the constitutional validity of statutory
provisions is vested exclusively in the constitutional courts, i.e., the High
Courts and the Supreme Court. In this regard, the position in American
Constitutional law in respect of courts created under Article III of the
Constitution of the United States has been analysed to state that the
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functions of Article III Courts (constitutional courts) cannot be performed
by other legislative courts established by the Congress in exercise of its
legislative power. The following decisions of the US Supreme Court have
been cited for support: National Mutual Insurance Co. of the Distt. of
Columbia v. Tidewater Transfer Co. [93 L Ed 1556 : 337 US 582
(1948)], Thomas S. Williams v. United States [77 L Ed 1372 : 289 US 553
(1932)], Cooper v. Aaron [3 L Ed 2d 5 : 358 US 1 (1958)] , Northern
Pipeline Construction Co. v. Marathon Pipeline Co. and United
States [73 L Ed 2d 598 : 458 US 50 (1982)] .
xxx xxx xxx
54.
……However, what must be emphasised is the fact that Article III
itself contemplates the conferment of such judicial power by the US
Congress upon inferior courts so long as the independence of the Judges
is ensured in terms of Section 1 of Article III. The proposition which
emerges from this analysis is that in the United States, though the concept
of judicial power has been accorded great constitutional protection, there
is no blanket prohibition on the conferment of judicial power upon courts
other than the US Supreme Court.”
17. Referring to and relying on the observations of the Supreme Court in
Kesavananda Bharati (supra), wherein the doctrine of basic structure was
evolved and the case of Indira Nehru Gandhi Smt v. Shri Raj Narain and
Another, 1975 Supp SCC 1, the Supreme Court observed that the power of
judicial review over legislative action vested in the Supreme Court under
Article 32 and of the High Courts under Article 226/227 is an integral and
essential feature of the Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the Supreme Court to
test the constitutional validity of legislations can never be ousted or excluded
and I quote:
The legitimacy of the power of courts within constitutional
“78.
democracies to review legislative action has been questioned since the
time it was first conceived. The Constitution of India, being alive to such
criticism, has, while conferring such power upon the higher judiciary,
incorporated important safeguards. An analysis of the manner in which
the Framers of our Constitution incorporated provisions relating to the
judiciary would indicate that they were very greatly concerned with
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securing the independence of the judiciary. [ See Chapter VII, “The
Judiciary and the Social Revolution” in Granville Austin, The Indian
Constitution : Cornerstone of a Nation, Oxford University Press, 1972;
the chapter includes exhaustive references to the relevant preparatory
works and debates in the Constituent Assembly.] These attempts were
directed at ensuring that the judiciary would be capable of effectively
discharging its wide powers of judicial review. While the Constitution
confers the power to strike down laws upon the High Courts and the
Supreme Court, it also contains elaborate provisions dealing with the
tenure, salaries, allowances, retirement age of Judges as well as the
mechanism for selecting Judges to the superior courts. The inclusion of
such elaborate provisions appears to have been occasioned by the belief
that, armed by such provisions, the superior courts would be insulated
from any executive or legislative attempts to interfere with the making of
their decisions. The Judges of the superior courts have been entrusted
with the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that the
balance of power envisaged by the Constitution is maintained and that the
legislature and the executive do not, in the discharge of their functions,
transgress constitutional limitations. It is equally their duty to oversee
that the judicial decisions rendered by those who man the subordinate
courts and tribunals do not fall foul of strict standards of legal
correctness and judicial independence. The constitutional safeguards
which ensure the independence of the Judges of the superior judiciary,
are not available to the Judges of the subordinate judiciary or to those
who man tribunals created by ordinary legislations. Consequently, Judges
of the latter category can never be considered full and effective substitutes
for the superior judiciary in discharging the function of constitutional
interpretation. We, therefore, hold that the power of judicial review over
legislative action vested in the High Courts under Article 226 and in this
Court under Article 32 of the Constitution is an integral and essential
feature of the Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the Supreme Court to
test the constitutional validity of legislations can never be ousted or
excluded.
79. We also hold that the power vested in the High Courts to exercise
judicial superintendence over the decisions of all courts and tribunals
within their respective jurisdictions is also part of the basic structure of
the Constitution. This is because a situation where the High Courts are
divested of all other judicial functions apart from that of constitutional
interpretation, is equally to be avoided.”
18. The Supreme Court further held that though the subordinate Judiciary
or the Tribunals created under ordinary Legislations, cannot exercise the
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power of judicial review of legislative action to the exclusion of the
Supreme Court and High Courts, there is no Constitutional prohibition
against their performing a supplemental, as opposed to substitutional role in
this respect. That such a situation is contemplated within the Constitutional
scheme becomes evident by reading Clause (3) of Article 32 of the
Constitution. If the power under Article 32 of the Constitution, which has
been described as the ‘heart’ and ‘soul’ of the Constitution, can be
any other Court
additionally conferred upon “ ”, there is no reason why the
same situation cannot subsist in respect of jurisdiction conferred upon the
High Court. So long as the jurisdiction of the High Court under Article
226/227 is retained, there is no reason why the power to test the validity of
Legislations cannot be conferred upon Administrative Tribunals, created
under the 1985 Act or those under Article 323-B of the Constitution.
Relevant paragraphs are as under:-
. However, it is important to emphasise that though the subordinate
“80
judiciary or Tribunals created under ordinary legislations cannot exercise
the power of judicial review of legislative action to the exclusion of the
High Courts and the Supreme Court, there is no constitutional prohibition
against their performing a supplemental as opposed to a substitutional
—
role in this respect. That such a situation is contemplated within the
—
constitutional scheme becomes evident when one analyses clause (3) of
Article 32 of the Constitution which reads as under:
Remedies for enforcement of rights conferred by this Part.
“32. —
(1) x x x
(2) x x x
(3) Without prejudice to the powers conferred on the Supreme Court
by clauses (1) and (2), Parliament may by law empower any other
court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2).
”
(emphasis supplied)
81. If the power under Article 32 of the Constitution, which has been
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described as the “heart” and “soul” of the Constitution, can be
additionally conferred upon “any other court”, there is no reason why the
same situation cannot subsist in respect of the jurisdiction conferred upon
the High Courts under Article 226 of the Constitution. So long as the
jurisdiction of the High Courts under Articles 226/227 and that of this
Court under Article 32 is retained, there is no reason why the power to
test the validity of legislations against the provisions of the Constitution
cannot be conferred upon Administrative Tribunals created under the Act
or upon Tribunals created under Article 323-B of the Constitution. It is to
be remembered that, apart from the authorisation that flows from Articles
323-A and 323-B, both Parliament and the State Legislatures possess
legislative competence to effect changes in the original jurisdiction of the
Supreme Court and the High Courts. This power is available to
Parliament under Entries 77, 78, 79 and 95 of List I and to the State
Legislatures under Entry 65 of List II; Entry 46 of List III can also be
availed of both by Parliament and the State Legislatures for this
purpose.”
19. The Supreme Court emphasized that there were pressing reasons to
preserve the conferment of powers on the Tribunals and the reasons
elucidated in paragraphs 82 to 84 of the judgment are as under:-
There are pressing reasons why we are anxious to preserve the
“82.
conferment of such a power on these Tribunals. When the Framers of our
Constitution bestowed the powers of judicial review of legislative action
upon the High Courts and the Supreme Court, they ensured that other
constitutional safeguards were created to assist them in effectively
discharging this onerous burden. The expectation was that this power
would be required to be used only occasionally. However, in the five
decades that have ensued since Independence, the quantity of litigation
before the High Courts has exploded in an unprecedented manner. The
decision in Sampath Kumar case [(1987) 1 SCC 124 : (1987) 2 ATC 82]
was rendered against such a backdrop. We are conscious of the fact
that when a Constitution Bench of this Court in Sampath Kumar
case [(1987) 1 SCC 124 : (1987) 2 ATC 82] adopted the theory of
alternative institutional mechanisms, it was attempting to remedy an
alarming practical situation and the approach selected by it appeared to
be most appropriate to meet the exigencies of the time. Nearly a decade
later, we are now in a position to review the theoretical and practical
results that have arisen as a consequence of the adoption of such an
approach.
83. We must, at this stage, focus upon the factual position which
occasioned the adoption of the theory of alternative institutional
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mechanisms in Sampath Kumar case [(1987) 1 SCC 124 : (1987) 2 ATC
82] . In his leading judgment, Ranganath Misra, J. refers to the fact that
since Independence, the population explosion and the increase in
litigation had greatly increased the burden of pendency in the High
Courts. Reference was made to studies conducted towards relieving the
High Courts of their increased load. In this regard, the recommendations
of the Shah Committee for setting up independent Tribunals as also the
suggestion of the Administrative Reforms Commission that Civil Service
Tribunals be set up, were noted. Reference was also made to the decision
in Kamal Kanti Dutta v. Union of India [(1980) 4 SCC 38 : 1980 SCC
(L&S) 485] where this Court had, while emphasising the need for speedy
resolution of service disputes, proposed the establishment of Service
Tribunals.
84. The problem of clearing the backlogs of High Courts, which has
reached colossal proportions in our times is, nevertheless, one that has
been the focus of study for close to half a century. Over time, several
Expert Committees and Commissions have analysed the intricacies
involved and have made suggestions, not all of which have been
consistent. Of the several studies that have been conducted in this regard,
as many as twelve have been undertaken by the Law Commission of India
-level committees
(hereinafter referred to as “the LCI”) or similar high
appointed by the Central Government, and are particularly noteworthy. [
Report of the High Court Arrears Committee 1949; LCI, 14th Report on
Reform of Judicial Administration (1958); LCI, 27th Report on Code of
Civil Procedure, 1908 (1964); LCI, 41st Report on Code of Criminal
Procedure, 1898 (1969); LCI, 54th Report of Code of Civil Procedure,
1908 (1973); LCI, 57th Report on Structure and Jurisdiction of the
Higher Judiciary (1974); Report of High Court Arrears Committee, 1972;
LCI, 79th Report on Delay and Arrears in High Courts and other
Appellate Courts (1979); LCI, 99th Report on Oral Arguments and
Written Arguments in the Higher Courts (1984); Satish Chandra
Committee Report 1986; LCI, 124th Report on the High Court Arrears
—
A Fresh Look (1988); Report of the Arrears Committee (1989-
90).]”
20. Having held that powers of judicial review of the High Court under
Articles 226/227 of the Constitution cannot wholly be excluded and
highlighting the need to have Administrative Tribunals for adjudication of
service matters as an alternative mechanism, the Supreme Court observed
that Tribunals will continue to act as the only Courts of first instance in
respect of the areas of law, for which they have been constituted and it will
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not be open for litigants to directly approach the High Courts even in cases
where they question the vires of statutory legislations, except where the
legislation which creates the particular Tribunal is challenged. Relevant
paragraphs are as follows:-
We may first address the issue of exclusion of the power of judicial
“90.
review of the High Courts. We have already held that in respect of the
power of judicial review, the jurisdiction of the High Courts under
Articles 226/227 cannot wholly be excluded. It has been contended before
us that the Tribunals should not be allowed to adjudicate upon matters
where the vires of legislations is questioned, and that they should restrict
themselves to handling matters where constitutional issues are not raised.
We cannot bring ourselves to agree to this proposition as that may result
in splitting up proceedings and may cause avoidable delay. If such a view
were to be adopted, it would be open for litigants to raise constitutional
issues, many of which may be quite frivolous, to directly approach the
High Courts and thus subvert the jurisdiction of the Tribunals. Moreover,
even in these special branches of law, some areas do involve the
consideration of constitutional questions on a regular basis; for instance,
in service law matters, a large majority of cases involve an interpretation
of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals
have no power to handle matters involving constitutional issues would not
serve the purpose for which they were constituted. On the other hand, to
hold that all such decisions will be subject to the jurisdiction of the High
Courts under Articles 226/227 of the Constitution before a Division Bench
of the High Court within whose territorial jurisdiction the Tribunal
concerned falls will serve two purposes. While saving the power of
judicial review of legislative action vested in the High Courts under
Articles 226/227 of the Constitution, it will ensure that frivolous claims
are filtered out through the process of adjudication in the Tribunal. The
High Court will also have the benefit of a reasoned decision on merits
which will be of use to it in finally deciding the matter.
91. It has also been contended before us that even in dealing with
cases which are properly before the Tribunals, the manner in which
justice is dispensed by them leaves much to be desired. Moreover, the
remedy provided in the parent statutes, by way of an appeal by special
leave under Article 136 of the Constitution, is too costly and inaccessible
for it to be real and effective. Furthermore, the result of providing such a
remedy is that the docket of the Supreme Court is crowded with decisions
of Tribunals that are challenged on relatively trivial grounds and it is
forced to perform the role of a first appellate court. We have already
emphasised the necessity for ensuring that the High Courts are able to
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exercise judicial superintendence over the decisions of the Tribunals
under Article 227 of the Constitution. In R.K. Jain case [(1993) 4 SCC
119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] , after taking note of
these facts, it was suggested that the possibility of an appeal from the
Tribunal on questions of law to a Division Bench of a High Court within
whose territorial jurisdiction the Tribunal falls, be pursued. It appears
that no follow-up action has been taken pursuant to the suggestion. Such
a measure would have improved matters considerably. Having regard to
both the aforestated contentions, we hold that all decisions of Tribunals,
whether created pursuant to Article 323-A or Article 323-B of the
Constitution, will be subject to the High Court's writ jurisdiction under
Articles 226/227 of the Constitution, before a Division Bench of the High
Court within whose territorial jurisdiction the particular Tribunal falls.
92. We may add here that under the existing system, direct appeals
have been provided from the decisions of all Tribunals to the Supreme
Court under Article 136 of the Constitution. In view of our above-
mentioned observations, this situation will also stand modified. In the
view that we have taken, no appeal from the decision of a Tribunal will
directly lie before the Supreme Court under Article 136 of the
Constitution; but instead, the aggrieved party will be entitled to move the
High Court under Articles 226/227 of the Constitution and from the
decision of the Division Bench of the High Court the aggrieved party
could move this Court under Article 136 of the Constitution.
93. Before moving on to other aspects, we may summarise our
conclusions on the jurisdictional powers of these Tribunals. The Tribunals
are competent to hear matters where the vires of statutory provisions are
questioned. However, in discharging this duty, they cannot act as
substitutes for the High Courts and the Supreme Court which have, under
our constitutional set-up, been specifically entrusted with such an
obligation. Their function in this respect is only supplementary and all
such decisions of the Tribunals will be subject to scrutiny before a
Division Bench of the respective High Courts. The Tribunals will
consequently also have the power to test the vires of subordinate
legislations and rules. However, this power of the Tribunals will be
subject to one important exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes following the settled
principle that a Tribunal which is a creature of an Act cannot declare that
very Act to be unconstitutional. In such cases alone, the High Court
concerned may be approached directly. All other decisions of these
Tribunals, rendered in cases that they are specifically empowered to
adjudicate upon by virtue of their parent statutes, will also be subject to
scrutiny before a Division Bench of their respective High Courts. We may
add that the Tribunals will, however, continue to act as the only courts
of first instance in respect of the areas of law for which they have been
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constituted. By this, we mean that it will not be open for litigants to
directly approach the High Courts even in cases where they question the
vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal concerned.
94. The directions issued by us in respect of making the decisions of
Tribunals amenable to scrutiny before a Division Bench of the respective
High Courts will, however, come into effect prospectively i.e. will apply to
decisions rendered hereafter. To maintain the sanctity of judicial
proceedings, we have invoked the doctrine of prospective overruling so as
not to disturb the procedure in relation to decisions already rendered.
xxx xxx xxx
99. In view of the reasoning adopted by us, we hold that clause 2(d) of
Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude
the jurisdiction of the High Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the
Act and the “exclusion of jurisdiction” clauses in all other legislations
enacted under the aegis of Articles 323-A and 323-B would, to the same
extent, be unconstitutional. 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 323-A and Article 323-B 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. The
Tribunals will, nevertheless, continue to act like courts of first instance
in respect of the areas of law for which they have been constituted. It
will not, therefore, be open for litigants to directly approach the High
Courts even in cases where they question the vires of statutory
legislations (except where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of the Tribunal
concerned. Section 5(6) of the Act is valid and constitutional and is to be
interpreted in the
manner we have indicated.”
(Emphasis supplied)
21. The principles that can be broadly culled out from a reading of these
passages are:
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(a) Power of judicial review of the High Courts under Articles
226/227 cannot wholly be excluded;
(b) Tribunals are competent to hear matters where the vires of
statutory provisions and subordinate Legislations are questioned.
However, in discharging this duty, they cannot act as substitutes
for the Supreme Court and the High Courts, which have under the
Constitutional set up specifically been entrusted with such an
obligation. Their function in this respect is only supplementary
and all such decisions of the Tribunals will be subject to scrutiny
before a Division Bench of the respective High Courts;
(c) Tribunal shall not entertain any question regarding vires of the
parent Statute under which it is created on the principle that being
a creature of an Act, it cannot declare that very Act to be
unconstitutional. In such cases alone, the High Court concerned
may be approached directly; and
(d) The Tribunals shall continue to act as the Courts of first instance
in respect of the areas of law for which they had been constituted.
It is not open for litigants to directly approach the High Courts
even in cases where they question the vires of statutory provisions
and Legislations, by overlooking the jurisdiction of the Tribunal.
22. From a reading of the aforementioned judgment of the Constitution
Bench, the inexorable and inevitable conclusion is that albeit powers of the
High Courts under Articles 226/227 are a part of the inviolable basic
structure of the Constitution and cannot be excluded, but
in ‘service matters’
as defined under Section 3(q) as also matters relating to recruitment and
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concerning recruitment provided under Section 14 of the 1985 Act, Tribunal
is the only Court of first instance and with respect to areas of law for which
the Tribunals are created, litigants cannot approach the High Courts directly.
All decisions of the Tribunals will, however, be subject to scrutiny before a
Division Bench of the High Court, within whose jurisdiction Tribunal
concerned falls. There is no doubt that where there is a right there is a
and often the path to remedy is a vexed and
remedy ‘ubi jus ibi remedium’
complex question, but in the present case, in view of the binding dictum of
the Supreme Court, the remedy of the Petitioners clearly lies before the
Administrative Tribunal.
23. Learned Senior counsel for NTA rightly urged that in the past,
whenever the High Courts have entertained writ petitions concerning service
matters which fall under the jurisdiction of the Administrative Tribunals, the
Supreme Court has held that the High Courts have committed an error in
law. In this context, I may allude to the judgment of the Supreme Court in
Kendriya Vidyalaya (supra), relevant passages of which are as follows:-
To appreciate the second submission of Mr Ahmed, we extract
“11.
below relevant portions from paragraphs 93 and 99 of the decision of the
Constitution Bench of this Court in L. Chandra Kumar case [(1997) 3
SCC 261 : 1997 SCC (L&S) 577] : (SCC pp. 309 & 311, paras 93 & 99)
“93. … We may add that the Tribunals will, however, continue to act
as the only courts of first instance in respect of the areas of law for
which they have been constituted. By this, we mean that it will not be
open for litigants to directly approach the High Courts even in cases
where they question the vires of statutory legislations (except, as
mentioned, where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of the Tribunal
concerned.
99.
… It will not, therefore, be open for litigants to directly approach
the High Courts even in cases where they question the vires of
statutory legislations (except where the legislation which creates the
particular Tribunal is challenged) by overlooking the jurisdiction of
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the Tribunal concerned. Section 5(6) of the Act is valid and
constitutional and is to be interpreted in the manner we have
indicated.”
12. The Constitution Bench of this Court has clearly held that tribunals
set up under the Act shall continue to act as the only courts of first
instance “in respect of areas of law for which they have been
constituted”. It was further held that it will not be open for litigants to
directly approach the High Court even in cases where they question the
vires of statutory legislation (except where the legislation which creates
the particular Tribunal is challenged) by overlooking the jurisdiction of
the Tribunal concerned.
13. In view of the clear pronouncement of this Court, the High Court
erred in law in directly entertaining the writ petitions concerning service
matters of the employees of Kendriya Vidyalaya as these matters come
under the jurisdiction of the Administrative Tribunal. We, therefore, hold
that the High Court committed an error by declining to transfer the writ
petition to the Central Administrative Tribunal. Consequently, we set
aside the impugned orders and direct the High Court to transfer both the
writ petitions to the Central Administrative Tribunal, Chandigarh Bench
which may, in its turn, make over the case to the Circuit Bench in the
State of Jammu and Kashmir for disposal in accordance with law.
”
24. In Rajeev Kumar (supra), the Supreme Court observed as under:
The Constitution Bench in L. Chandra Kumar [(1997) 3 SCC 261:
“9.
1997 SCC (L&S) 577] held that the power of the High Court under
Articles 226 and 227 of the Constitution and of this Court under Article 32
of the Constitution is a part of the basic structure of our Constitution (see
paras 78 and 79, pp. 301 and 302 of the Report). The Constitution Bench
also held that various tribunals created under Articles 323-A and 323-B of
the Constitution, will function as court of first instance and are subject to
the power of judicial review of the High Court under Articles 226 and 227
of the Constitution. The Constitution Bench also held that these tribunals
are empowered even to deal with constitutional questions and can also
examine the vires of statutory legislation, except the vires of the legislation
which creates the particular tribunal.
10. In para 93, at p. 309 of the Report, the Constitution Bench
specifically held: (L. Chandra Kumar case [(1997) 3 SCC 261 : 1997 SCC
(L&S) 577] )
“93. … We may add that the Tribunals will, however, continue to
act as the only courts of first instance in respect of the areas of law for
which they have been constituted.”
(emphasis added)
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The Constitution Bench explained the said statement of law by reiterating
in the next sentence: (L. Chandra Kumar case [(1997) 3 SCC 261 : 1997
SCC (L&S) 577] , SCC p. 309, para 93)
“93. … By this, we mean that it will not be open for litigants to
directly approach the High Courts even in cases where they question
the vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal concerned.”
11. On a proper reading of the abovequoted two sentences, it is clear:
(a) The tribunals will function as the only court of first instance in
respect of the areas of law for which they have been constituted.
(b) Even where any challenge is made to the vires of legislation,
excepting the legislation under which tribunal has been set up, in such
cases also, litigants will not be able to directly approach the High
Court “overlooking the jurisdiction of the tribunal”.
12. The aforesaid propositions have been repeated again by the
Constitution Bench (in L. Chandra Kumar case [(1997) 3 SCC 261 : 1997
SCC (L&S) 577] ) in the penultimate para 99 at p. 311 of the Report in the
following words:
“99. … The Tribunals will, nevertheless, continue to act like courts of
first instance in respect of the areas of law for which they have been
constituted. It will not, therefore, be open for litigants to directly
approach the High Courts even in cases where they question the vires
of statutory legislations (except where the legislation which creates
the particular Tribunal is challenged) by overlooking the jurisdiction
of the Tribunal concerned.”
13. In view of such repeated and authoritative pronouncement by the
Constitution Bench of this Court, the approach made to the High Court for
the first time by these appellants in respect of their service disputes over
which CAT has jurisdiction, is not legally sustainable. The Division Bench
of the High Court, with great respect, fell into an error by allowing the
appellants to treat the High Court as a court of first instance in respect of
their service disputes for adjudication of which CAT has been
constituted.”
25. I may also refer to several decisions of this Court, both of the Division
Benches and the learned Single Judges where writ petitions have not been
entertained where Petitioners bypassed the remedy of approaching the
Administrative Tribunals in service matters where they were amenable to
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the jurisdiction of the Tribunal and illustratively, I may refer to the decisions
in Government of NCT of Delhi and Another v. Sh. Ashok Kumar Rajdev
and Others, 2023 SCC OnLine Del 5864; Piyush Tyagi v. Kendriya
Vidyalaya Sangathan, 2023 SCC OnLine Del 6666; Dr. Arun Kumar
Mishra v. Union of India, 2021 SCC OnLine Del 3841; Sh. Vinay Brij
Singh v. Union of India and Another, 2021 SCC OnLine Del 1369 and Ex.
Hav. Ranjit Singh v. Inspector General of Prisons & Ors., W.P. (C)
2128/1997, decided on 11.03.2008. Pertinent it is to mention that in one case
in Akul Bhargava and Others v. Union Public Service Commission and
Others, 2020 SCC OnLine Del 1376, learned Single Judge of this Court had
entertained the writ petition on the ground that there was an evident malaise
in the selection process and where the Court finds that the selection
mechanism is being impeded, it cannot turn a blind eye to the same and
interference by a Constitutional Court under Article 226 of the Constitution,
is warranted. The decision was upheld by the Division Bench but in an
appeal filed by the State of Rajasthan being Civil Appeal No.2553/2022, the
Supreme Court observed that the view of the High Court was difficult to
sustain since the first designated forum was the Central Administrative
Tribunal. Much reliance was placed by learned counsels for the Petitioners
on the judgment of this Court in Himanshu Kumar and Others v. Union
Public Service Commission and Another, 2023 SCC OnLine Del 5636, to
contend that writ petition was entertained by a detailed judgment overruling
the objection of maintainability and notice was issued, despite the
Petitioners therein having a remedy before the Tribunal. Mr. Kaushik,
however, informed the Court that in LPA 839/2023 titled Union Public
Service Commission v. Himanshu Kumar and Ors., vide order dated
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22.12.2023, the Division Bench has stayed further proceedings in the said
case and moreover, in view of the judgment of seven-Judge Bench of the
Supreme Court in L. Chandra Kumar (supra), this Court will be
committing an error by entertaining these writ petitions.
26. It was urged by the Petitioners that the main role in the examination,
which is under challenge, is of the NTA, which was an agency engaged by
CGPDTM for conducting the recruitment and NTA is not notified under
Section 14 of the 1985 Act and this by itself is a ground to entertain these
writ petitions. This argument, in my view, only deserves to be rejected. The
Recruitment Notification, 2023 was issued by the office of the Controller
General of Patents, Designs & Trademarks, Department for Promotion of
Industry and Internal Trade, which is under the Ministry of Commerce and
Industry, Government of India, for filling up posts of Examiner of Patents &
Designs. NTA is an autonomous organization under the Department of
Higher Education, Ministry of Education, Government of India and was
only entrusted with the responsibility of conducting the recruitment process
and there is no gainsaying that its role was that of an agent of CGPDTM,
which initiated the recruitment process as a principal. It is a settled law that
it is the principal who is responsible for the acts of commission and
omission of the agent. The question is one of substance over form.
Substance here is the department which initiated the recruitment process and
deployed NTA as an outsource agent to conduct the examination and form is
the agency, which only discharged the said function, for and on behalf of the
principal i.e. CGPDTM. Therefore, it is principle which will be responsible
and answerable to the allegations levelled by the Petitioners in their
challenge to the examination process and there is no dispute that CGPDTM
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Digitally Signed
W.P.(C) 10134/2024 & connected matter Page 27 of 28
By:KAMAL KUMAR
Signing Date:12.09.2024
01:07:06
being under the Ministry of Commerce and Industry, Government of India
falls within the jurisdiction of the Tribunal under Section 14 of 1985 Act.
Though subtly, it was also argued that the Supreme Court in L. Chandra
Kumar (supra)
observed that it will not be open to ‘employees’ to directly
approach the High Courts in service related disputes but Petitioners are not
employees and therefore, there is no impediment of their approaching this
Court. This contention also deserves to be rejected since the Supreme Court
in para 99 of the judgment but
did not use the expression ‘employees’
observed It will not, therefore, be open for litigants to directly
that “
approach the High Courts even in cases where they question the vires of
statutory legislations (except where the legislation which creates the
particular Tribunal is challenged) by overlooking the jurisdiction of the
Even otherwise, this argument has no weightage in
Tribunal concerned.”
view of the provisions of Section 14 of the 1985 Act which provides that
even in matters relating to recruitment, the Tribunal will adjudicate as long
as the parties to the lis are amenable to its jurisdiction otherwise.
27. Accordingly, the objection of maintainability raised on behalf of the
Respondents is sustained and the writ petitions are dismissed, with liberty to
the Petitioners to approach the appropriate forum in accordance with law,
making it clear that this Court has not expressed any opinion on the merits
of the cases.
28. Pending applications also stand disposed of.
JYOTI SINGH, J
AUGUST 30 , 2024/kks
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By:KAMAL KUMAR
Signing Date:12.09.2024
01:07:06