# M.P. HIGH COURT BAR ASSOCIATION v. UNION OF INDIA AND ORS

- **Citation:** [2004] Supp. 4 S.C.R. 520
- **Court:** Supreme Court of India
- **Decided:** 2004-09-17
- **Bench:** R.C. Lahoti, Cj.I, C.K. Thakker
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-p-high-court-bar-association-v-union-of-india-and-ors-20140
- **Pages:** 41

## Headnote

M.P. Reorganisation Act, 2000 : Section 74(1).
Abolition of State Administrative Tribunal-Constitutionality of-Held
: Not ultra vires Art. 323-A or any other part of the Constitution-Further,
L. Chandra Kumar's case did not lay down that once a Tribunal is
constituted, created or established, there was no power either in the Central
Government or the State Governments to abolish it-Constitution of India,
1950, Art, 323-A-Administrative Tribunals Act, 1985, S. 4(2).
Abolition of State Administrative Tribunal-Validity of-Held : The
essential legislative function is to determine the legislative policy and its
formulation as a binding rule of conduct-Once such an essential legislative
function is preformed, the Legislative can delegate to the Executive authority
necessary ancillary and subordinate powers for carrying out the policy and
purposes of the Act-Therefore, authorizing the State Government to take a
decision to abolish the State Administrative Tribunal does not suffer from
excessive delegation-Hence, High Court rightly held that S. 74(1) was not
in the nature of "delegated legislation" but was conditional legislation.
Abolition of State Administrative Tribunal-Validity of-Held: In view
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of the subsequent development of law in L. Chandra Kumar's case, the State
Government's opinion that the State Administrative Tribunal would be 'one
more tier' in the administration of justice and, therefore, it should not be
continued is not arbitrary, irrational or unreasonable-Moreover, the State
Government had also taken into consideration the decision in L. Chandra
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Kumar's case abolishing the Tribunal-Hence, such a decision is not illegal,
invalid or improper.
Abolition of State Administrative Tribunal-Alleged interference by
State Government in the judicial functioning of the State Administrative ..
Tribunal being violative of the basic structure of the Constitution-Correctness
of-Held: There was no interference with a "judicial order" passed by a
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M.P. HIGH COURT BAR ASSON. v. U.O.I.
521
competent court on a tribunal but a "policy decision" to abolish the State
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Administrative Tribunal-Hence, such abolition valid.
Abolition of State Administrative Tribunal-Allegation that such a
decision was mala fide as it was taken because the Tribunal had passed
orders against the State Government and granted relief in transfer mattersCorrectness of-Held: There is no concrete material to substantiate the said
allegation-Hence, decision to abolish the State Administrative Tribunal not
mala fide.
Abolition of State Administrative Tribunal-Validity of-Held : If a
decision is illegal, unconstitutional or ultra vires, it has to be set aside
irrespective of the laudable object behind it-But it cannot be set aside
merely on the ground that such a decision was not advisable in the facts of
the case or that another decision could have been taken-While exercising
its power of judicial review, Supreme Court cannot substitute its own decision
for the decision of the Government.
Section 74(1) & (4)-Jnterrelation between-Held : S. 74(1) not
subservient to S. 74(4)-0nce the provisions of S. 74(1) are attracted and
invoked, the provisions of S. 74(4) had no application.
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The state of M.P. issued a notification under Section 74(1) of the
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M.P. Reorganisation Act, 2000 by which the M.P. State Administrative
Tribunal was abolished.
Being aggrieved by the said decision the appellant-Association filed
a writ petition before the High Court for a declaration that Section 74
of the Act was unconstitutional and ultrq vires and for quashing and
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setting aside of the said notification.
The High Court held that Section 74(1) of the Act was intra vires
the.Constitution and that the State Government ofM.P. was empowered
under Section 74(1) of the Act to abo.lish the State Administrative
Tribunal. The High Court further held that no directions from the
Central Government were necessary to take the decision to abolish the
Tribunal. Hence the appeal.
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M.P. HIGH COURT BAR ASSOCIATION
v.
UNION OF INDIA AND ORS.
SEPTEMBER 17, 2004
[R.C. LAHOTI, CJ.I. AND C.K. THAKKER, J.]
M.P. Reorganisation Act, 2000 : Section 74(1).
Abolition of State Administrative Tribunal-Constitutionality of-Held
: Not ultra vires Art. 323-A or any other part of the Constitution-Further,
L. Chandra Kumar's case did not lay down that once a Tribunal is
constituted, created or established, there was no power either in the Central
Government or the State Governments to abolish it-Constitution of India,
1950, Art, 323-A-Administrative Tribunals Act, 1985, S. 4(2).
Abolition of State Administrative Tribunal-Validity of-Held : The
essential legislative function is to determine the legislative policy and its
formulation as a binding rule of conduct-Once such an essential legislative
function is preformed, the Legislative can delegate to the Executive authority
necessary ancillary and subordinate powers for carrying out the policy and
purposes of the Act-Therefore, authorizing the State Government to take a
decision to abolish the State Administrative Tribunal does not suffer from
excessive delegation-Hence, High Court rightly held that S. 74(1) was not
in the nature of "delegated legislation" but was conditional legislation.
Abolition of State Administrative Tribunal-Validity of-Held: In view
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of the subsequent development of law in L. Chandra Kumar's case, the State
Government's opinion that the State Administrative Tribunal would be 'one
more tier' in the administration of justice and, therefore, it should not be
continued is not arbitrary, irrational or unreasonable-Moreover, the State
Government had also taken into consideration the decision in L. Chandra
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Kumar's case abolishing the Tribunal-Hence, such a decision is not illegal,
invalid or improper.
Abolition of State Administrative Tribunal-Alleged interference by
State Government in the judicial functioning of the State Administrative ..
Tribunal being violative of the basic structure of the Constitution-Correctness
of-Held: There was no interference with a "judicial order" passed by a
520
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...
M.P. HIGH COURT BAR ASSON. v. U.O.I.
521
competent court on a tribunal but a "policy decision" to abolish the State
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Administrative Tribunal-Hence, such abolition valid.
Abolition of State Administrative Tribunal-Allegation that such a
decision was mala fide as it was taken because the Tribunal had passed
orders against the State Government and granted relief in transfer mattersCorrectness of-Held: There is no concrete material to substantiate the said
allegation-Hence, decision to abolish the State Administrative Tribunal not
mala fide.
Abolition of State Administrative Tribunal-Validity of-Held : If a
decision is illegal, unconstitutional or ultra vires, it has to be set aside
irrespective of the laudable object behind it-But it cannot be set aside
merely on the ground that such a decision was not advisable in the facts of
the case or that another decision could have been taken-While exercising
its power of judicial review, Supreme Court cannot substitute its own decision
for the decision of the Government.
Section 74(1) & (4)-Jnterrelation between-Held : S. 74(1) not
subservient to S. 74(4)-0nce the provisions of S. 74(1) are attracted and
invoked, the provisions of S. 74(4) had no application.
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The state of M.P. issued a notification under Section 74(1) of the
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M.P. Reorganisation Act, 2000 by which the M.P. State Administrative
Tribunal was abolished.
Being aggrieved by the said decision the appellant-Association filed
a writ petition before the High Court for a declaration that Section 74
of the Act was unconstitutional and ultrq vires and for quashing and
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setting aside of the said notification.
The High Court held that Section 74(1) of the Act was intra vires
the.Constitution and that the State Government ofM.P. was empowered
under Section 74(1) of the Act to abo.lish the State Administrative
Tribunal. The High Court further held that no directions from the
Central Government were necessary to take the decision to abolish the
Tribunal. Hence the appeal.
On behalf of the appellant, it was contended that the State
Administrative Tribunal had been established under the Administrative
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SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.
Tribunals Act, 1985 enacted by Parliament in exercise of power under
Article 323-A of the Constitution and, therefore, such a Tribunal could
not be abolished by a State; that the delegation of power to abolish the
State Administrative Tribunal conferred on the State Government by
Parliament under the Act of 2000 was in the nature of "excessive
delegation"; that the decision to abolish the State Administrative Tribunal
was ma/a fide and had been taken because the Tribunal had passed
orders against the State Government and granted relief in transfer
matters; that the interference by the State Government in the judicial
functioning of the Tribunal was violative of the "basic structure" of the
Constitution; and that under Section 74(1) of the Act of 2000 only the
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Central Government could issue a notification to abolish the State
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Administrative Tribunal and since the Central Government had taken
no action abolition of the Tribunal was iliegal and unlawful.
On behalf of the respondent it was contended that the State
Government had abolished the State Administrative Tribunal after taking
int~ consideration the decision in L. Chandra Kumar's case as it was felt
that the Tribunal would be "one more tier" in the administration of
justice.
Dismissing the appeal, the Court
HELD: 1.1. A conjoint reading of Article 323-A of the Constitution,
Section 4 of the Administrative Tribunals Act, 1985 and Sections 74(1)
and 85 of the M.P. Reorganisation Act, 2000 shows that Parliament had
empowered both the successor States to take an appropriate decision to
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continue such Tribunals to abolish them or to constitute separate
Tribunals. It cannot be said that by enacting such a provision. Parliament
had violated any mandate or the ACt of 2000 is ultra vires Article 323A or any other part of the Constitution. [541-B, CJ
1.2. From the ratio laid down by this Court in L. Chandra Kumar's
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case to the effect that the jurisdiction of this Court under Articles 32
and 136 and also of the High Courts under Articles 226 and 227 of the
Constitution is a part of ·the "basic structure" of the Constituti~~ and
could not be ousted by making any provision in the Constitution and
that the Tribunals might perform a "supplemental role in the discharge
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of the power conferred upon this Court as well as the High Courts it
M.P. HIGH COURT BAR ASSON. v. U.0.1.
523
could not be said that once a Tribunal was constituted, created or A
established there was no power either in the Central Government or the
State Government to abolish it. There is no constitutional or statutory
prohibition against exercise of such power. Parliament which allowed
the State Government to request the Central Government for
establishment of an Administrative Tribunal under the 1985 Act has
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authority, power and jurisdiction to enable the State Government to
take an appropriate decision to continue or not to continue such Tribunal
and such a provision made by Parliament authorizing the State
Government to abolish such Tribunal cannot be· held ultra vires the
Constitution. (541-H; 542-A, B, CJ
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, relied on.
Mukesh Kumar Misra v. Union of India, W.P. No. 2398 of2001 decided
on 3.7.2001 by (MP) (DB), approved.
2. Under the Constitution of India, the power to legislate is with the
Legislature. The said power of making laws, therefore, cannot be
delegated by the Legisl~ture to the Executive. In other words, a
Legislature can neither create a parallel' legislature nor destroy its
legislative power. The essential legislative function must be retained by
the Legislature itself. Such function consists of the determination of
legislative policy and its formulation as a binding rule of conduct. But
it is also equally well settled that once the essential legislative function
is performed by the Legislature and the policy has been laid down, it is
always open to the Legislature to delegate to the Executive authority
ancillary and subordinate powers necessary for carrying out the policy
and purposes of the Act as may be necessary to make the legislation
complete, effective and useful. [542-D, E, F)
3.1. The High Court rightly held that Section 74(1) of the Act of
2000 was not in the nature of "delegated legislation" but was a
"conditional legislation". (547-A)
3.2. In the present case, the Act of 2000 as enacted by Parliament
was full and complete when it left the legislative chamber. There was,
therefore, no question of delegation of legislative power by the legislature
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in favour of the executive. What was left to the executive was merely to
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
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decided whether to continue the Administrative Tribunal or to abolish
it. The State Government, after considering the facts and circumstances
decided not to continue the Tribunal, which was within the power of the
State Government, and, hence, no objection can be raised. against exercise
of such power. [549-C, D]
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Hamdard Dawakhana v. Union of India, (1960] 2 S.CR 671, Sardar
Jnder Singh v. State of Rajasthan, (1957] SCR 605 and State of T.N. v. K.
Sabanayagam, (1998) SCC 318, relied on.
Hampton & Co. v. U.S., 276 US 394, R. v. Burah, (1878) 2 AC 889,
Russell v. R., (1882) 7 AC 829, King Emperor v. Benoari Lal Sarma, (1944)
72 IA 57 and The Queen v. Burah, (1878) 5 lA 178, cited.
3.3. The matter can be looked at from another angle also. Article
323A is not self-executory. The said provision did not create or establish
Administrative Tribunals. It was merely a permissive or an enabling
provision allowing Parliament to make law to establish Administra~ive
Tribunal if it wished to do so. Thus, there was no binding requirement
on the part of Parliament (or State Legislature) to create such a forum
as contemplated by Article 323A of the Constitution ~f India. It also
cannot be overlooked that the Administrative Tribunal in question was
to be created for a particular State, i.e. State of Madhya Pradesh. Neither
under Article 323A of the Constitution nor under the Administrative
Tribunals Act, 1985, the Central Government could have created such
Tribunal except in accordance with the provisions of Section 4(2) of the
said Act. Essentially therefore, it was on the request made by the State
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of Madhya Pradesh to the Central Government that the power to create
and establish Administrative Tribunal in the State of Madhya Pradesh
was exercised by the Central Government and the Tribunal was
established. Therefore, there could be no objection in conferring the
power on the State Government to continue or to abolish such Tribunal.
Therefore, there is no excessive delegation by Parliament to the State
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Government. [549-E-H; 55~-A, B)
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In re : The Delhi Laws Act, 1912 [1951J SCR 747, relied on.
4. In view of the subsequent development of law in L. Chandra
Kumar's case the State Government's opinion that the State
M.P. HIGH COURT BAR ASSON. v. U.0.1.
525
Administrative Tribunal would be "one more tier" in the administration
of justice and, therefore, it should riot be continued is not arbitrary,
irrational or unreasonable. Moreover, the State Government had taken
into consideration the decision of this Court in L. Chandra Kumar's case
for aboiishing the State Administrative Tribunal. Such a consideration
was relevant, germane and valid. It therefore, cannot be said that the
decision was illegal, invalid or improper. (552-E, F, G]
S.P. Sampath Kumar v. Union of India, [1987] 1 SCC 124, R.K. Jain
v. Union of India, (1993) 4 SCC 119; L. Chandra Kumar v. Union of India,
[1995] 1 SCC 119 and L. Chandra Kumar v. Union of India, [1997] 3 SCC
261, referred to.
5. In the instant case, there is no interference with a "judicial
order" passed by a competent court or a Tribunal, but a "policy decision"
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has been taken by the State Government to abolish the State
Administrative Tribunal allowing aggrieved litigants to approach D
appropriate authority/court for ventilating their grievances. (555-B]
P. Sambamurthy v. State of A.P., [1987] 1 SCC 362, held inapplicable.
6. The High Court rightly ~eld that Section 74(1) is not subservient
to Section 74(4) of the Act and once the provisions of Section 74(1) of E
the Act are attracted and irivoked, the provisions of Section 74(4) have
no application. (557-A-B]
7.1. There is no concrete material on record to show that the decision
to abolish the State Administrative Tribunal was taken because of orders
passed by the State Administrative Tribunal. Except bald assertions by
the appellants and Press cuttings, there is nothing to substantiate such
allegations. On the contrary, sufficient material is available on record to
show what weighted with the respondent State in taking a decision to
abolish the Tribunal. (557-E, F]
7.2. It is clear that the State Government took into that after the
decision of this Court in L. Chandra Kumar's case an aggrieved
party could approach the High Court, and the object for
establishment of the Tribunal was defeated. In the item of the facts
before the Court it cannot be said the decision to abolish the State
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
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Administrative Tribunal taken by the State of Madhya Pradesh can be
quashed and set aside as mala fide. [558-G, H]
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L. Chandra Kumar v. Union of India, (1997] 3 SCC 261, relied on.
8. If a decision is illegal, unconstitutional or ultra vires. it has to be
set aside irrespective of the lqudable object behind it. But once it is held
that it was within the power of the State Government to continue or not
to continue the State Administrative Tribunal and it was open to the
State Government to take such a decision, it cannot be set aside merely
on the ground that such a decision was not advisable in the facts of the
case or that another decision could have been taken. While exercising
power of judicial review, this Court cannot substitute its own decision
for the decision of the Government. From the record of the case, it is
amply clear that relevant, germane, valid and Proper considerations
weighed with the State Government and keeping in view development
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of law and the decision in L. Chandra Kumar's case a policy decision was
taken by the State Government to abolish the State Administrative
Tribunal. Parliament also empowered the State Government to take an
appropriate decision by enacting Section 74(1) of the Act of 2000 and in
exercise of such power, the State Government had taken· a decision. The
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decision, therefore, cannot be regarded as illegal, unlawful or otherwise
objectionable. (559-D, E, F)
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, referred to.
CIVIL APPELLATE JUl'USDICTION: Givil Appeal No. 5327 of2002.
From the Judgment and Order dated 14.5.2002 of the Madhya Pradesh
High Court at Jabalpur in W.P. No. 3531 of 200 I.
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C.A. Nos. 5328/2002, 6104, 6105-6106/2004, 8292-8295/2002, W.P.
(C) Nos. 369 and 374 of 2003.
Prashant Bhushan, Narinder Kumar Verma, Rohit Kumar Singh, Sanjay
Path~k for the Appellant in C.A. No. 5327/02, Ajit Puduseery (NP), for
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Appellant in C.A. No. 5328/2002.
M.P. HIGH COURT BAR ASSON. v. U.0.1. [THAKKER, J.]
52/7
B. Datta, ·Additional Solicitor General, P. Panneshwaran, for the
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Appellants in C.A. Nos. 6104/2004, 8292-95/2002 and Respondent for Union
of India.
Sanjeev Sachdeva, Mukesh Kr. Mishra and Ms. Priya Puri for the
Appellant in C.A. Nos. "6105-06/2004.
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Shiv Sagar Tiwari, Ms. Pratima, Umesh Babu Chaurasia, M.P. Singh,
and Mani Mittal for the Petitioner in W.P. (C) No. 369/2003 ..
B.B. Dubey, S.K. Bandyopadhyay, Amitav Poddar and C.L. Sahu for
the Petitioner in W.P. (C) No. 370/2003.
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Satish K. Agnihotri, Anil K. Pandey, Amit Mishra, Prakash Srivastava,
(NP), Sanjeev Sachdeva, Mukesh Kr. Mishra,."Ms. Priya Puri and Ajit
Pudussery, (NP) for the Respondents.
The Judgment of the Court was delivered by
'fHAKKER, J. : 'Leave granted in Special Leave Petition (Civil) Nos.
22648 of 2002 and 23615-23616 of 2002.
In the present group of matters, common questions of fact and law have
been raised by .the parties. It is, th~refore, appropriate to decide all the matters
by a common judgmerit.
To appreciate the controversy raised and questions agitated in these
matters, few relevant facts in the first matter, i.e., Civil Appeal No. 5327 of
2002 may be stated. The appeal arises out of a judgment and order dated
May 14, 2002 passed by the High Court of Madhya Pradesh at Jabalpur in
Writ Petition No. 3531 of 2001.
The said petition was filed by the Madhya Pradesh ·High Court Bar
Association and another against the Union ofI~dia, State of Madhya Pradesh,
State of Chhattisgarh and the Chief Ministers of both the States. The case
of the petitioners is that the petitioner No. 1 is an Association of Advocates
practising at the High Court of Madhya Pradesh, Madhya Pradesh State
Administrative Tribunal at Jabalpur as also Central Administrative Tribunal
(Jabalpur Bench). The Association was constituted to look after and protect
the interests of its members. One of the prime duties of the Association,
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SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.
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asserted the petitioners, is to ensure that legal system in the State is not
attacked by an outside agency. Its aim is also to advance the cause of justice
by speedy trial. It has, therefore, locus standi to file a petition. Petitioner
No.2 is the President of the Madhya Pradesh Bar Association. He is a
practising lawyer at the High Court as well as at two Tribunals. He is a citizen
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of India.
The petitioners have stated that Parliament amended the Constitution by
the Constitution (42nd Amendment) Act, 1976 by which several changes had
been made. As a consequence thereof, Article 323A came to be inserted in
the Constitution with effect from January 3, 1977. The said Article provided
for constitution and establishment of Administrative Tribunals.
Those
Tribunals were empowered to adjudicate and decide disputes and complaints
relating 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. It also declared that the provisions of the
said Article would have effect notwithstanding anything in any other
provision of the Constitution or in any other law for the time being in force.
The Article further provided for exclusion of jurisdiction of all courts,
"except the jurisdiction of the Supreme Court under Article 136", with
respect to disputes or complaints to be dealt with by such tribunals. Article
323A, however, is not self-executory inasmuch as it did not take away the
jurisdiction of courts. It merely enabled Parliament or appropriate legislature
to make laws, to set up such tribunals and to exclude jurisdiction of all courts
except the Supreme Court.
In exercise of the power conferred by Article 323A of the Constitution,
Parliament enacted an Act, called the Administrative Tribunals Act, 1985
(hereinafter referred to as "the Act").
In the Statement of Objects and
Reasons, it was stated that with a view to give effect to the constitutional
provision by providing for the establishment of an Administrative Tribunal,
the Act has been enacted. The Preamble of the Act also recites that with a
. view to provide for the adjudication or trials 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 ot of any State or of any local or other authority, the
Act has been enacted. Whereas Section 4 provides for establishment of
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M.P. HIGH COURT BARASSON. v. U.O.I. [THAKKER, J.]
529
Administrative Tribunals, Section 5 deals with composition of Tribunals and
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Benches. Provisions relating to qualifications for appointment as Chairman,
Vice-Chairman and other Members as also their terms of office, salaries and
allowances, etc. have been made in Sections 6 to I 3. Sections 14 to 18 deal
with jurisdiction, power and authority of Tribunals. Sections 19 to 27 lay
down the procedure to be followed by such Tribunals. Section 28 excludes
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jurisdiction of all courts except the Supreme Court.
Sub-section (2) of Section 4 of the Act enabled the Central Government,
on receipt of a request from the State Government to establish by a
notification an Administrative Tribunal for the State to exercise the jurisdiction,
powers and authority conferred on the Administrative Tribunal for the State.
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According to the petitioners, a request was made by the State of Madhya
Pradesh for the establishment of an Administrative Tribunal for the State.
The Central Government, in exercise of power under sub-section (2) of
Section 4 of the Act, therefore, issued a notification on· June 29, 1988 for
establishment of a Tribunal known as the Madhya Pradesh Administrative
Tribunal with effect from August 2, 1988. The petitioner stated that in
pursuance of the notification, the State Administrative Tribunal had been
established. It was having a Principal seat at Jabalpur and four Benches at
Gwalior, Indore, Bhopal and Raipur.
The petitioners further stated that Parliament enacted an Act called the
Madhya Pradesh Re-organisation Act, 2000, (Act 28 of 2000) (hereinafter
referred to as "the Act of2000"). The said Act has been enacted with a view
"to provide for the re-organisation of the existing State of Madhya Pradesh
and for matters connected therewith". Part II deals with re-organisation of
the State of Madhya Pradesh into two States to be known as the State of
Madhya Pradesh and the State of Chhattisgarh and their territorial divisions.
Part III provides for representation in the Legislatures. Part IV relates to
administration of justice. Part VIII deals with services. It provides for AllIndia services, services in Madhya Pradesh and Chhattisgarh and other
services as also power of the Central Government to issue directions. Section
74 of the Act touches jurisdiction of Commissions, Authorities, Tribunals,
Universities, Boards and other statutory bodies, constitutional validity and
vires whereof has been challenged. It is, therefore, appropriate to re-produce
the said section in extenso.
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"74. Jurisdiction of the Commissions, Authorities and Tribunals.-
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
(1) Notwithstanding anything contained in any law for the tim~
being in force, every Commission, ·Authority, Tribunal, University.,
Board or any other body constituted under a c·entral Act, State Act
or Provincial Act and having jurisdiction over the existing State 6f
Madhya Pradesh shall on and from the appointed day continue t<:>
function in the s~ccessor State of Madhya Pradesh and also exercise
jurisdiction as existed before the appointed day over the State of
Chhattisgarh for a maximum period of two years from the appoiqted
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.
.
day or till such period as is decided by mutual agreement between
the successor States:
(i)
to continue such body as a joint body for the successor
· State or
(ii) to aboliMJ. it, on the expiry of that period, for.either of.the
successor States; or
(iii) to constitute a separate Commission, Authority, Tribunal,
University, Board or any other body, as the case may be,
for the State of Chhattisgath.
(2) No suit or other legal proceeding sha,U be instituted, in case
such body is abolished under clause (ii) of sub-secti_on (1), by any
employee of such body against the termination of·his appointment
or for the enforcement of any service conditions or for securing
absorption in alternative public employment against the Central
Governmeqt. or any of the successor States.
(3) Notwithstanding anything contained in any law for t&e time
being in force or in any judgment, decree or order of any court or
Tribunal or contract or agreement, any Chairman or member ~f any
body abolished under clause (ii) of sub-section (l) shall not be
entitled to any compensation for the unexpired period of his tenure.
(4) Notwithstanding anything contained in this section or any law
for . the time being in force, !he Central Government shall, in
accordance with any mutual agreement between the successor States
or if there is no such agreement, after consultation with the
Government of the successor States, issue directions for the resolution
of any matter relating to any body referred to in sub-section (l) and
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M.P. HIGH COURT BAR ASSON. v. U.O.I. [THAKKER, J.]
531
falling within the jurisdiction of any of the successor State within
any period referred to in sub-section (1 ).
Se1;tion 85 declares that the provisions of the Act shall have overriding
effect "notwithstanding anything inconsistent therewith contained in any
other law."
Bare" reading of sub-section (l) of Section 74 makes it clear that it
declares that all Commissions, Authorities, Tribunals, Universities, Boards
or other bodies constituted under an Act of Parliament will continue to
function in the State of Madhya Pradesh as also in the State of Chhattisgarh.
It, however, states that they will continue to function for a maximum period
of two years or "till such period as is decided by mutual agreement betw~en
the successor States". Sub-sections (2) and (3) enumerate circumstances
pursuant to the aboliti~n of such Tribunal. Sub-section ( 4) allows the Central
Government to issue directions.
The petitioners stated in the petition that in purported exercise of the
powers under sub-section (1) of Section 74 of the Act, a decision was taken
by the State of Madhya Pradesh as well as the State ofChhattisgarh to abolish
S~te Administrative Tribunal. A notification was issued on 25th July, 2001
by the State of Madhya Pradesh by which the Madhya Pradesh State.
Administrative Tribunal had been abolished. By a circular of even gate
issued by the State, it had been ordered that existing Chairman, ViceChairman and Members of the Tribunal would cease to function wi~h
immediate effect irrespective of unexpired period of their tenure, if any. By
an order of even date, the State Government terminated the services of all
officers and employees other than those on deputation with immediate effect
as their services were "no longer required".
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Being aggrieved by the said. actions, the petitioner-Association
approached the High Court of Madhya Pradesh by invoking Articles 226 and
227 of the Constitution. A writ of Mandamus was sought to declare Section
74 of the Act of 2000 unconstitutional and ultra vires. In the alternative,
a prayer was made to issue a writ of Mandamus to hold that Section 74 would
not apply to State Ad~inistrative T~ibunal. A further prayer was made to
quash.and set aside a notification, a circular and an order dated July 25, 200 l
by which the Stat~ AdriliQ.istrative Tribunal was sought to be abolished and
consequential actions were taken.
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SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.
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Similar petitions were filed being W.P. No.3529 .of 2001 by A.K.
Shrivastava, a Member of the Administrative Tribunal, W.P. No.3525 of
2001 by Sanjay Kumar.Misra, W.P. No. 3551 of2001 by Kamal Joshi, W.P.
No.3554 of2001 by Nemi Chand, all employees of the State Administrative
Tribunal, W.P. No. 3597 of 2001 and W.P. No.4129 of 2001 by Madhya
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Pradesh Class 111 Government Employees Association.
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Notices were issued to the State of Madhya Pradesh and other
respondents. The respondents appeared. An affidavit-in-reply was filed by
the State of Madhya Pradesh supporting the actions taken by the Government.
It was asserted fa the counter that establishment of State Administrative
Tribunal was not obligatory.
The State. Government was not bound to
constitute the Tribunal. It was, therefore, open to the State Government to
create, continue or abolish such Tribunal. Since the power exclusively vested
in the State Government to create, continue or abolish the Tribunal, the
Central Government had no voice in the matter. It was also stated that the
Council of Ministers of the State of Madhya Pradesh took a decision on
November 21, 1985 for the establishment of State Administrative Tribunal
in the State of Madhya Pradesh. A request was, therefore, made to the Central
Government to constitute State Administrative Tribunal and, accordingly, a
notification was issued on June 29, 1988 and the Tribunal was constituted
on August 2, 1988. Initially there was only a Principal seat at Jabalpur. Later
on, three Benches were established at Gwalior, Indore and Bhopal. In 1997,
even the fourth Bench was established at Raipur. The deponent stated that
over and above State of Madhya Pradesh, seven other States had established
State Administrative Tribunals. In the affidavit in reply, it was the case of
the respondent-State that despite very laudable object behind the establishment
of Administrative Tribunals, the performance of. the Tribunals always
remained "far from satisfactory and the Tribunals failed to achieve the objects
and goals for which they were established". Reference was made to the report
of the Arrears Committee (1989-90), known as "Malimath Committee"
which elaborately dealt with the Junctioning of Tribunals in the country.
Citing extensively the working of the Tribunals in the report of Malimath
Committee, it was asserted by the State that the State Administrative Tribunal
failed to fulfill the object for which it was established. Moreover, after the
landmark decision of the Supreme Court in L. Chandra Kumar v. Union of
India, [1997) 3 SCC 261 : AIR (1997) SC 1125, wherein it has been held
by the Apex Court that the decisions rendered by the Tribunals constituted
under Articles 323A and 323B of the Constitution of India would be subject
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M.P. HIGH COURT BAR ASSON. v. U.0.1. [THAKKER, J.]
533
to the writ/supervisory jurisdiction of the High Courts under Article 226/227
of the Constitution within whose territorial jurisdiction the particular Tribunal
is functioning, there was virtually no need to continue such Tribunal. It was
,the case of the respondent-State that in the light of declaration of law in L.
Chandra Kumar, Administrative tribunals became "intermediate/additional
adjudicatory stratum", "leading to substantial increase in number of pending
cases at the level of High Court". Several matters decided by such Tribunals
were challenged before High Courts.
Other problems had also been highlighted by the respondent-State in
the counter-affidavit which necessitated the _State to take a decision to abolish
it. It included steep increase in pendency of cases, construction of infrastructure,
huge finance, maintenance of recurring expenses, etc. The policy makers of
the State had been continuously monitoring the Tribunal's progress and
performance as dispensation of justice was an important priority of the State.
Parliament meanwhile passed the Act of 2000 on 18th September, 2000
providing re-organisation of the erstwhile State of Madhya Pradesh into two
·States. Sub-section (1) of Section 7 4 of the Act allowed both the States to
continue functioning of the Tribunal in the successor States.
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It, however, authorized them to take a decision to abolish State Administrative
Tribunal by mutual agreement. Thus, the power had been conferred by
Parliament on States of Madhya Pradesh and Chhattisgarh to take an
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appropriate decision with regard to continuation or abolition of State
Administrative Tribunal. Such action, therefore, cannot be said to be illegal
or contrary to law. The Act of 2000 has been enacted by Parliament in
exercise of powers under Articles 2 to 4 of the Constitution of India. The
Act, therefore, cannot be said to be unconstitutional or ultra vires.
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Respondent No. l Government of India also filed a counter-affidavit
confirming that the State of Madhya Pradesh was "free to recommend
abolition of the Madhya Pradesh Administrative Tribunal". It was stated that
the Central Government would examine the proposal of the State Government
to abolish State Administrative Tribunal keeping in view several factors, such
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as, alternative forum proposed by the State Government for disposal of
pending cases, compensation/rehabilitation of various functionaries of the
Tribunal, etc. On interpretation of Section 7 4 of the Act of 2000, the Central
Government stated that the State of Madhya Pradesh cannot of its own
abolish State Administrative Tribunal which was set up by the Central H
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SUPREME COJJRT REPORTS [2004] SUPP. 4 S.C.R.
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Government Uf?.der Section 4(2) of the Administrative Tribunals Act, 1985.
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According to the deponent, Section 74(1) of the Act of 2000 was "only an
enabling provision to facilitate the State Government to take a decision about
the continuance or otherwise of the Madhya Pradesh Administrative Tribunal".
Further affidavit was also filed by the State of Madhya Pradesh wherein
a reference was made to an order of Council of. Ministers
dated 8th March, 2001 to abolish the Madhya Pradesh Administrative
Tribunal.
The DivisiOi:i Bench of the High Court of Madhya Pradesh, after hearing
the parties, held that the provisions of sub-section (I) of Section 74 of the
Act of 2000 are intra vires the Constitution and the State of Madhya Pradesh
possessed power to abolish the State Administrative Tribunal. No direction
from the Central Government as envisaged by sub-section (4) of Section 74
was required. According to the Court, Section 74(1) conferred unfettered
power on both successor States to take a decision in regard to the abolition
of Tribunal. It was thu:s in the exclusive discretion df the successor States
and no power or authori1ty had been given to the Central Go.vernment in the
said process. The Com1 also indicated that Parliament appeared to have
granted "an opportunity of re-determination to both the successor States in
view of substantial ch~nged circumstances necessitating review of all existing
bodies keeping the experience of the old State".
· Regarding sub-sections (2) and (3) of Section 74 of the' Act of 2000,
however, after considering Articles 309 and 310 of the Constitution of India
and Sections 8, 9 and 10 of the Administrative Tribunals Act, 1985, the High
Court held that the State could not have i&nored statutory and constit}ltionai
provisions. Sub-sections (2) and (3) of Section 74 were thus ultra vires
Articles 14, 16 and 2'1 of the Constitution. The. High Court, however,
recorded the statement of the learned Advocate General of the State of
Madhya Pradesh that the State Governmerit shall abide by the decision of the
court with regard to oflicers and employees of the Government.
The High Court also held that after taking a decision to abolish the.
Ma°dhya Pradesh State ·Administrative Tribunal, the State Government h~d
to request the Central Government for issu.ance of necessary notification for
abolition of such Tribunal since it has been established by the Central
Government. According'~ to the Court, however, the Central Government had
no option but to accept the request of the State Government.
In the light
M.P. HIGH COURT BAR ASSON. v. U.0.1. [THAKKER, J.]
535
of the said decision, notification, circular and order dated 25th July, 2001
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were quashed by the Court.
In the operative part of the judgment, the High Court issued following
directions:-
(i)
The State Government of Madhya Pradesh is empow.ered •
under Section 74(1) of the M.P. Re-organisation Act to 1ibolish
the State Administrative Tribunal.
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(ii)
No 9irections from the Central Government as envisaged
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under sub-section 4 of Section 74 of the Act of 2000 are
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necessary to take the above decision to abolish the Tribunal. ·
(iii)
(iv)
After taking decision .to abolish the State Administrative
Tribunal, the State Government will have to make request to ·
the Central Government to issue notification for abolish of the
State Administrative Tribunal.
The Central Government has no option but to accept the
request received from the state Government to abolish the State
Administrative Tribunal and accordingly issue a notification
rescinding the earlier Notification establishing the same.
(v)
The sub-sections (2) and (3)° of Section 74 of the M.P.
Reorganisation Act are declared ultra vires.
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(vi) Since the notification (Annexure P-1) abolishing the State
Administrative Tribunal has been issued by the State
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Government itself, and not by the Central Government, the
notification (Annexure P-1) shall stand quashed.
(vii) Consequent to quashment of the Notification (Annexure
P-l), the Circular Annexure P-2) and the Order (Annexure P3) also stand quashed.
(·viii) Since the Madhya Pradesh Ordinance No. 3 of 200 I 'has
lapsed, no order is necessary to quash the same.
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(ix) On abolition of the Tribunal, the Chairman, Vice Chairman H
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
and Members shall be entitled to have compensation for
unexpired term of their services from the State Government.
The details shall be worked out as per principles. of natural
justice.
(x)
On abolition of the Tribunal, the officers and employees
thereof shall be dealt with by the State Government as per their
service conditions, including their absorption in other
Departments of the State Government.
Being aggrieved by the order passed by the High Court, the Bar
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Association instituted Special Leave Petition (Civil) No.16108 of 2002 on
July 11, 2002. It may be stated that in other matters also, leave was sought
by the petitioners to approach this Court by filing Special Leave Petitions.
In Special Leave Petition Nos.23615 and 23616 of 2002, the decision
upholding constitutional validity of sub-section (1) of Section 7 4 of the Act
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of 2000 is challenged. We may also observe at this stage that Writ Petition
No. 374 of 2003 was filed by one Chhadami Lal and Writ Petition No. 369
of2003 by the Government Employees Class III Association. Union of India
has also challenged the decision of the High Court of Madhya Pradesh in
Civil Appeal Nos.8292-95 of 2002 against certain directions of the High
Court.
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On August 26, 2002, leave was granted by this Court and hearing was
ordered to be expedited. Other matters which were subsequently. filed were
also ordered to be heard along with Civil Appeal No.5327 of 2002.
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We have heard the learned counsel for all the parties.
Mr. Prashant Bhushan, learned counsel for the appellant contended that
the action of abolishing Madhya Pradesh State Administrative Tribunal is
illegal, improper and unlawful. According to him, the State Administrative
Tribunal had been established under the Administrative Tribunals Act, 1985
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enacted by Parliament in exercise of power under Article 323A of the
Constitution. Such Tribunal, therefore, cannot be abolished by a State. It
was further submitted that Section 74 of the Act of2000 by which Parliament
authorized the State Government to discontinue or abolish State Administrative
Tribunal is ultra vires the Constitution as no such power could have been
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delegated to the State. It was also urged that the delegation of power to
M.P. HIGH COURT BAR ASSON. v. U.0.1. [THAKKER, J.]
537
abolish State Administrative Tribunal conferred on the State Government by
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Parliament under the Act of 2000 is in the nature of "excessive delegation"
and would be inconsistent with the provisions of the Constitution as also
contrary to several decisions rendered by this Court wherein it has been
observed that a competent legislature cannot delegate essential legislative
function or legislative policy.