# ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA & OTHERS

- **Citation:** [2023] 6 S.C.R. 731
- **Court:** Supreme Court of India
- **Decided:** 2023-03-21
- **Case number:** Civil Appeal No.6805 of 2022
- **Bench:** Dr. Dhananjaya Y Chandrachud, Hima Kohli
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/orissa-administrative-tribunal-bar-association-v-union-of-india-others-37217
- **Pages:** 75

## Headnote

Constitution of India:
Art. 226 - Odisha Administrative Tribunal-OAT - Abolition
of, by Notification No. GSR 552(E) dt 2 August 2019 - Constitutional
Validity of the Notification - Held: Abolition of OAT is constitutionally
valid - Challenge to the constitutional validity of the impugned
notification dated 2 August 2019 by which the OAT was abolished
is rejected - Administrative Tribunals Act, 1985 - s. 4(2) - General
Clauses Act, 1897 - s. 21.
Article 226 - Odisha Administrative Tribunal-OAT - Abolition
of - Writ petition before the Orissa High Court alleging violation of
constitutional rights by abolition of OAT - Maintainability of - Held:
Writ petitioners entitled to invoke jurisdiction of the High Court u/
Art. 226.
Arts. 323A and 323B - Administrative Tribunal -
Establishment of State Administrative Tribunals-SAT by the Union
Government, if mandatory u/Art. 323-A - Held: Word 'may' in Art.
323-A is not imparted with the character of the word 'shall' - Art.
323-A does not preclude the Union Government from abolishing
SATs - Art. 323-A is a directory, enabling provision which confers
the Union Government with the discretion to establish an
administrative tribunal - Art. 323-A does not act as a bar to the
Union Government abolishing an administrative tribunal once it is
created - Administrative Tribunals Act, 1985.
Art. 14 - Notification dated 2.8. 2019 by which Odisha
Administrative Tribunal-OAT was abolished - If arbitrary and thus,
violative of Art. 14 - Held : Notification dated 2.08.2019 by which
the OAT was abolished is not violative of Art. 14 - State Government
did not consider any irrelevant or extraneous factors while arriving
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at the decision to request the Union Government to abolish the OAT
- Decision to abolish the OAT is itself not absurd or so unreasonable
that no reasonable person would have taken it - Administrative
Tribunals Act, 1985.
Art. 14 - Abolition of the Odisha Administrative TribunalOAT, if violative of the fundamental right of access to justice -
Held : Abolition of the OAT not violative of the fundamental right
of access to justice - Orissa High Court will hear cases which were
pending before the OAT prior to its abolition - Administrative
Tribunals Act, 1985.
Art. 14 - Abolition of Odisha Administrative Tribunal-OAT -
Plea that Union and State Governments violated the principle of
natural justice by failing to provide the OAT Bar Association and
litigants before the OAT with an opportunity to be heard before
abolishing the OAT - Held: Principles of natural justice not violated
- Class of people who were affected by the decision to abolish the
OAT did not have a right to be heard - Public at large (or some
sections of it) did not have a right to be heard before the policy
decision was taken - Principles of natural justice - Administrative
Tribunals Act,1985.
Art. 77 - Notification dated 2.08.2019 abolishing OAT - Not
expressed in the name of the President of India - Validity of - Held:
Notification dated 2.08.2019 is valid though it is not expressed in
the name of the President of India - Non-compliance with Art.77
does not invalidate a notification or render it unconstitutional -
Administrative Tribunals Act, 1985.
Administrative Tribunals Act,1985:
Establishment of Odisha Administrative Tribunal-OAT - Union
Government if rendered functus officio after establishing the OAT
- Held: Union Government did not become functus officio after
establishing the OAT - Doctrine of functus officio cannot ordinarily
be applied in cases where the government is formulating and
implementing a policy.
Establishment of Odisha Administrative Tribunal-OAT - Plea
that State Government took advantage of its own wrong by ceasing
to fill the vacancies in the OAT - Held: State Government did not
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take advantage of its own wrong - It stopped filling the vacancies
of the OAT only after deciding to abolish it - It did not rely on the
vacancies (an

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 [2023] 6 S.C.R. 731
731
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION
v.
UNION OF INDIA & OTHERS
(Civil Appeal No 6805 of 2022)
MARCH 21, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI AND
HIMA KOHLI, JJ.]
Constitution of India:
Art. 226 - Odisha Administrative Tribunal-OAT - Abolition
of, by Notification No. GSR 552(E) dt 2 August 2019 - Constitutional
Validity of the Notification - Held: Abolition of OAT is constitutionally
valid - Challenge to the constitutional validity of the impugned
notification dated 2 August 2019 by which the OAT was abolished
is rejected - Administrative Tribunals Act, 1985 - s. 4(2) - General
Clauses Act, 1897 - s. 21.
Article 226 - Odisha Administrative Tribunal-OAT - Abolition
of - Writ petition before the Orissa High Court alleging violation of
constitutional rights by abolition of OAT - Maintainability of - Held:
Writ petitioners entitled to invoke jurisdiction of the High Court u/
Art. 226.
Arts. 323A and 323B - Administrative Tribunal -
Establishment of State Administrative Tribunals-SAT by the Union
Government, if mandatory u/Art. 323-A - Held: Word 'may' in Art.
323-A is not imparted with the character of the word 'shall' - Art.
323-A does not preclude the Union Government from abolishing
SATs - Art. 323-A is a directory, enabling provision which confers
the Union Government with the discretion to establish an
administrative tribunal - Art. 323-A does not act as a bar to the
Union Government abolishing an administrative tribunal once it is
created - Administrative Tribunals Act, 1985.
Art. 14 - Notification dated 2.8. 2019 by which Odisha
Administrative Tribunal-OAT was abolished - If arbitrary and thus,
violative of Art. 14 - Held : Notification dated 2.08.2019 by which
the OAT was abolished is not violative of Art. 14 - State Government
did not consider any irrelevant or extraneous factors while arriving
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at the decision to request the Union Government to abolish the OAT
- Decision to abolish the OAT is itself not absurd or so unreasonable
that no reasonable person would have taken it - Administrative
Tribunals Act, 1985.
Art. 14 - Abolition of the Odisha Administrative TribunalOAT, if violative of the fundamental right of access to justice -
Held : Abolition of the OAT not violative of the fundamental right
of access to justice - Orissa High Court will hear cases which were
pending before the OAT prior to its abolition - Administrative
Tribunals Act, 1985.
Art. 14 - Abolition of Odisha Administrative Tribunal-OAT -
Plea that Union and State Governments violated the principle of
natural justice by failing to provide the OAT Bar Association and
litigants before the OAT with an opportunity to be heard before
abolishing the OAT - Held: Principles of natural justice not violated
- Class of people who were affected by the decision to abolish the
OAT did not have a right to be heard - Public at large (or some
sections of it) did not have a right to be heard before the policy
decision was taken - Principles of natural justice - Administrative
Tribunals Act,1985.
Art. 77 - Notification dated 2.08.2019 abolishing OAT - Not
expressed in the name of the President of India - Validity of - Held:
Notification dated 2.08.2019 is valid though it is not expressed in
the name of the President of India - Non-compliance with Art.77
does not invalidate a notification or render it unconstitutional -
Administrative Tribunals Act, 1985.
Administrative Tribunals Act,1985:
Establishment of Odisha Administrative Tribunal-OAT - Union
Government if rendered functus officio after establishing the OAT
- Held: Union Government did not become functus officio after
establishing the OAT - Doctrine of functus officio cannot ordinarily
be applied in cases where the government is formulating and
implementing a policy.
Establishment of Odisha Administrative Tribunal-OAT - Plea
that State Government took advantage of its own wrong by ceasing
to fill the vacancies in the OAT - Held: State Government did not
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take advantage of its own wrong - It stopped filling the vacancies
of the OAT only after deciding to abolish it - It did not rely on the
vacancies (and the consequent increase in pendency) created by its
inaction to abolish the OAT.
Odisha Administrative Tribunal-OAT - Judicial impact
assessment - Conduct of before abolishing the OAT - Failure by the
Union Government, if vitiates its decision to abolish the OAT - Held:
Failure of the Union Government to conduct a judicial impact
assessment before abolishing the OAT does not vitiate its decision
to abolish the OAT - Directions to conduct a judicial impact
assessment in Rojer Mathew's case were of a general nature and
did not prohibit the abolition of specific tribunals such as the OAT
in the absence of a judicial impact assessment - However, the
Ministry of Law and Justice directed to conduct a judicial impact
assessment as directed by this Court in Rojer Mathew's case.
General Clauses Act, 1897: s 21 - Applicability/ Invocation
of - To rescind the notification establishing the OAT, thereby
abolishing the OAT - Held: Union Government acted in valid
exercise of its powers when it invoked s. 21 r/w s. 4(2) of the
Administrative Tribunals Act to rescind the notification establishing
the OAT - Decision to establish the OAT was an administrative
decision and not a quasi-judicial decision - Administrative decisions,
unlike quasi-judicial decisions, may be reversed by the application
of s. 21 - Moreover, s. 21 is not repugnant to the subject- matter,
context and effect of the Administrative Tribunals Act and is in
harmony with its scheme and object - Administrative Tribunals Act,
1985 - s.4(2).
Words and Phrases - " Functus officio" - Meaning of.
Dismissing the appeals, the Court
HELD : 1.1 The abolition of the Odisha Administrative
Tribunal-OAT was constitutionally valid for the following reasons:
a. The Writ Petitions instituted before the Orissa High
Court were maintainable because the appellants claimed that their
constitutional rights had been violated. They were therefore
entitled to invoke the jurisdiction of the High Court under Article
226 of the Constitution;
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b. Article 323-A does not preclude the Union Government
from abolishing SATs because it is an enabling provision which
confers the Union Government with the power to establish an
administrative tribunal at its discretion (upon receiving a request
from the relevant State Government in terms of the Administrative
Tribunals Act). The legal and factual context of the power to
establish administrative tribunals, the purpose of this power and
the intention of the legislature establish that there is no duty to
exercise the power conferred by the Administrative Tribunals
Act, such that the enabling provision becomes a mandatory
provision;
c. The Union Government acted in valid exercise of its
powers when it invoked Section 21 of the General Clauses Act
read with Section 4(2) of the Administrative Tribunals Act to
rescind the notification establishing the OAT because the
decision to establish the OAT was an administrative decision and
not a quasi-judicial decision. Moreover, Section 21 of the General
Clauses Act is not repugnant to the subject- matter, context and
effect of the Administrative Tribunals Act and is in harmony with
its scheme and object;
d. The notification dated 2 August 2019 by which the OAT
was abolished is not violative of Article 14 of the Constitution.
The State Government did not consider any irrelevant or
extraneous factors while arriving at the decision to request the
Union Government to abolish the OAT. The decision to abolish
the OAT is itself not absurd or so unreasonable that no reasonable
person would have taken it;
e. The principles of natural justice were not violated
because the class of people who were affected by the decision to
abolish the OAT did not have a right to be heard. The public at
large (or some sections of it) did not have a right to be heard
before the policy decision was taken;
f. The Union Government did not become functus officio
after establishing the OAT because the doctrine cannot ordinarily
be applied in cases where the government is formulating and
implementing a policy;
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g. The notification dated 2 August 2019 is valid though it is
not expressed in the name of the President of India because noncompliance with Article 77 of the Constitution does not invalidate
a notification or render it unconstitutional;
h. The abolition of the OAT is not violative of the
fundamental right of access to justice because the Orissa High
Court will hear cases which were pending before the OAT prior
to its abolition;
i. The State Government did not take advantage of its own
wrong because it stopped filling the vacancies of the OAT only
after deciding to abolish it. It did not rely on the vacancies (and
the consequent increase in pendency) created by its inaction to
abolish the OAT; and
j. The failure of the Union Government to conduct a judicial
impact assessment before abolishing the OAT does not vitiate
its decision to abolish the OAT because the directions in Rojer
Mathew's case were of a general nature and did not prohibit the
abolition of specific tribunals such as the OAT in the absence of
a judicial impact assessment. However, the Ministry of Law and
Justice is directed to conduct a judicial impact assessment as
directed by this Court in Rojer Mathew's case. [Para 128][804-AE; 805-A-F]
1.2 The challenge to the constitutional validity of the
impugned notification dated 2 August 2019 by which the OAT
was abolished is rejected. The judgment of the High Court is
upheld in terms of the conclusions recorded. [Para 129][805-FG]
Writ Petitions instituted before the Orissa High Court were
maintainable.
2. Having alleged that the rights under Art. 14 were
violated by the abolition of the OAT, the appellants were entitled
to invoke the High Court's jurisdiction under Article 226 of the
Constitution. [Para 31][765-E-F]
Ghulam Qadir v. Special Tribunal (2002) 1 SCC 33 :
[2001] 3 Suppl. SCR 504; State of Orissa v. Ram
Chandra Dev AIR 1964 SC 685 - referred to.
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Article 323-A does not preclude the Union Government
from abolishing SATs
3.1 Clauses (1) and (2) of Article 323-A use the expression
"may," indicating that Article 323-A does not compel Parliament
to enact a law to give effect to it. Parliament is entrusted with the
discretion to enact a law which provides for the adjudication of
certain disputes by administrative tribunals. It is a permissive
provision. The provision is facilitative and enabling. However, in
certain cases, the power to do something may be coupled with a
duty to exercise that power. [Para 33, 34][766-H; 767-A-B]
3.2 The word "may" in Article 323-A of the Constitution is
not imparted with the character of the word "shall." Article 323A is a directory, enabling provision which confers the Union
Government with the discretion to establish an administrative
tribunal. The corollary of this is that Article 323-A does not act
as a bar to the Union Government abolishing an administrative
tribunal once it is created. [Para 42][771-C-D]
Official Liquidator v. Dharti Dhan (P) Ltd. (1977) 2
SCC 166 : [1977] 2 SCR 964; Dhampur Sugar Mills
Ltd. v. State of U.P. (2007) 8 SCC 338 : [2007] 10
SCR 245; Dilip K Basu v. State of West Bengal (2015)
8 SCC 744 : [2015] 7 SCR 814 - referred to.
Applicability of Section 21 of the General Clauses Act
4.1 The Union Government invoked Section 21 of the
General Clauses Act read with Section 4(2) of the Administrative
Tribunals Act to rescind the notification establishing the OAT.
Section 21 of the General Clauses Act, is a rule of construction.
[Para 43][771-E]
4.2 The Union Government was not acting in a judicial
capacity when it set up the OAT. On the establishment of the
OAT, pending cases before the High Court were transferred to
the OAT. Indeed, the decision to establish an SAT is based on
policy and expediency. It is up to each State Government to
evaluate the need for an SAT within their state, to consider the
advantages and disadvantages as well as the financial,
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administrative, and other practical aspects of establishing an SAT.
The Union Government may then establish the SAT upon
receiving a request, in terms of Section 4(2) of the Administrative
Tribunals Act. The decision to establish an SAT is undoubtedly
an administrative decision. Administrative decisions, unlike
quasi-judicial decisions, may be reversed by the application of
Section 21 of the General Clauses Act. The applicability of Section
21 of the General Clauses Act does not stand excluded in the
instant case. The order establishing the OAT is an administrative
order. [Para 51, 52][774-E-H; 775-A]
4.3 The distinction between quasi-judicial and
administrative decisions has been invoked for the purpose of
determining whether Section 21 of the General Clauses Act may
be invoked to reverse the decision to establish an SAT.
Administrative orders continue to be amenable to judicial review
in accordance with law. [Para 53][775-B]
Industrial Infrastructure Development Corpn. (Gwalior)
M.P. Ltd. v. CIT (2018) 4 SCC 494 : [2018] 10 SCR
481 - held inapplicable.
Indian National Congress (I) v. Institute of Social
Welfare (2002) 5 SCC 685 : [2002] 3 SCR 1040;
Province of Bombay v. Khushaldas S. Advani (1950)
SCC 551; Board of High School and Intermediate
Education v. Ghanshyam Das Gupta AIR 1962 SC 1110
: [1962] Suppl. SCR 36 - referred to.
Section 21 of the General Clauses Act is otherwise
applicable to the Administrative Tribunals Act
5.1 Section 21 of the General Clauses Act can be invoked
when its application would not be repugnant to the subject-matter,
context, and effect of the statute and when it is in harmony with
its scheme and object. The court may refer to the provisions of
the statute in question to determine whether Section 21 of the
General Clauses Act will be applicable. [Para 56][776-B]
5.2 The object of the Administrative Tribunals Act is to
reduce arrears and enable the provision of speedy justice to
litigants. Abolishing an SAT would not frustrate this objective
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because SATs are not the only method by which the object is
capable of being achieved. Further, the effect of such an abolition
would not be to deprive litigants of a remedy because the cases
before the SAT would stand revived in the forum in which they
were pending prior to the establishment of that SAT. The subject
matter and the context of the Administrative Tribunals Act, too,
do not militate against the application of Section 21 of the General
Clauses Act. There is therefore nothing in the Administrative
Tribunals Act which is repugnant to the application of Section 21
of the General Clauses Act. The relevant State Government has
the implied power to issue a request to abolish the SAT in its
state to the Union Government. The Union Government in turn
has the implied power to rescind the notification by which that
SAT was established, thereby abolishing the SAT. [Para 59][777B-E]
5.3 In the present case, there is no such impediment to the
application of Section 21 of the General Clauses Act. The object
of the Administrative Tribunals Act would not stand frustrated if
an SAT is created and then abolished. The Union and State
Governments may take alternate routes (some of which may have
already been in operation, supplementing SATs) towards
achieving the same objective. [Para 62][778-F-G]
5.4. The appellants have also argued that the Union
Government's power to abolish SATs must flow from the same
legislation that vests it with the power to establish them. It is
their contention that the Union Government does not have the
power to abolish SATs because the Administrative Tribunals Act
does not provide for it. This argument fails for the simple reason
that the very purpose of Section 21 of the General Clauses Act is
to provide for contingencies such as the instant case when the
statute in question does not explicitly provide for the power to
add to, amend, vary, or rescind a notification (or order, rule, or
by-law) which has been issued. Of course, the application of
Section 21 of the General Clauses Act is subject to the test laid
down in D N Ganguly's case as well as the other requirements
mentioned in the provision itself. If the argument of the appellants
were to be accepted, Section 21 of the General Clauses Act would
be rendered otiose. It would not apply to any statute which does
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not explicitly provide for the power to add to, amend, vary, or
rescind notifications, orders, rules or bye-laws. On the other
hand, if the statute itself conferred the power to add to, amend,
vary, or rescind notifications, orders, rules or by-laws, there would
be no need to rely on Section 21 of the General Clauses Act.
This is not a conceivable position because courts must interpret
statutes so as to give effect to their provisions rather than to
render them futile. [Para 63, 64][778-H; 779-A-D]
5.5 The appellants submitted that what cannot be done
directly cannot be done indirectly. Neither Article 323-A of the
Constitution nor the Administrative Tribunals Act prohibit the
abolition of SATs. Hence, it cannot be said that the Union
Government is barred from abolishing the SATs "directly" and
that it has resorted to Section 21 of the General Clauses Act to
evade such a ban and "indirectly" abolish the OAT. The Union
Government's reliance on Section 21 of the General Clauses Act
to abolish the OAT is legally permissible. [Para 65][779-D-F]
5.6 The transfer of cases from the OAT to the Orissa High
Court is, properly characterized, a revival of the latter's
jurisdiction. The impugned judgment that the Orissa High Court's
jurisdiction in relation to matters pending before the OAT is not
being created or enlarged by the abolition of the OAT. It
previously exercised such jurisdiction and is merely resuming
its jurisdiction over the same subject matter. The natural
consequence of the Union Government rescinding the notification
establishing the OAT would be to restore the status quo ante.
Nothing in either Article 323-A of the Constitution or the
Administrative Tribunals Act prevents such a revival. Further,
the absence of a provision in the Constitution which explicitly
permits a revival does not act as a barrier to such a revival. The
Union Government's reliance on Section 21 of the General
Clauses Act is in accordance with law. [Para 71, 72][781-F-H;
782-A-B]
Lt. Governor of H.P. Avinash Sharma (1970) 2 SCC
149 : [1971] 1 SCR 413 - distinguished.
A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 : [1988]
1 Suppl. SCR 1 - held inapplicable.
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State of Bihar v. D N Ganguly 1959 SCR 1191; Kamla
Prasad Khetan v. Union of India 1957 SCR 1052; State
of M.P. v. Ajay Singh (1993) 1 SCC 302 : [1992] 2
Suppl. SCR 274; Tamil Nadu Government All
Department Watchman and Basic Servants Association
v. Union of India 2005 SCC OnLine Mad 333; Zakir
Abdul Mirajkar v. State of Maharashtra (2022) SCC
OnLine SC 1092; M. Pentiah v. Muddala
Veeramallappa (1961) 2 SCR 295 - referred to.
The notification dated 2 August 2019 is not violative of
Article 14 of the Constitution
6.1 While arriving at the decision to abolish the OAT, the
State Government considered relevant reasons. It considered
whether the OAT was capable of fulfilling the purpose for which
it was established after the decision in L. Chandra Kumar. It
placed in the balance the expenditure incurred to operate the
OAT as well as the rate of disposal of cases. These reasons were
not irrelevant to the decision as to whether a tribunal ought to be
continued;
6.2 The State Government's act of consulting the Orissa
High Court (upon receiving a request to this effect from the Union
Government) before deciding to abolish the OAT was not
irrelevant or extraneous. The cases before the OAT were to be
transferred to the Orissa High Court and the opinion of the latter
was relevant to State Government's decision.
6.3 The State Government did not consider factors which
were irrelevant or extraneous to its decision. The decision to
abolish the OAT was not one which was so absurd that no
reasonable person or authority would ever have taken it. The
decision to abolish a tribunal which it had established, based on
an analysis of relevant factors is, by no stretch of imagination, an
absurd or unreasonable decision. It does not violate Article 14 of
the Constitution. [Para 82][788-A-E]
6.4 The decision to establish, continue or abolish the OAT
is in the nature of a policy formulated and implemented by the
State Government (acting with the Union Government under the
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Administrative Tribunals Act). The public at large does not have
a right to be heard before a policy is formulated and implemented.
The process of consultation with the public, with experts, and
with other stakeholders may be desirable and would facilitate a
participatory democracy. However, each member of the class that
would be impacted by a policy decision cannot be afforded an
opportunity of hearing. This would not only be time consuming
and expensive, but deeply impractical. [Para 86][789-G; 790-AB]
6.5 The absence of a right to be heard before the formulation
or implementation of a policy does not mean that affected parties
are precluded from challenging the policy in a court of law. What
it means is that a policy decision cannot be struck down on the
ground that it was arrived at without offering the members of the
public at large (or some section of it) an opportunity to be heard.
The challenge to a policy may be sustainable if it is found to vitiate
constitutional rights or is otherwise in breach of a mandate of
law. Thus, the decision to abolish the OAT cannot be assailed on
the ground that there was a violation of the principles of natural
justice. Article 14 of the Constitution has not been violated. [Para
88, 89][791-B-D]
BALCO Employees' Union (Regd.) v. Union of India
(2002) 2 SCC 333 : [2001] 5 Suppl. SCR 511 - relied
on.
L. Chandra Kumar v. Union of India (1997) 3 SCC
261 : [1997] 2 SCR 1186; E.P. Royappa v. State of T.N.
(1974) 4 SCC 3 : [1974] 2 SCR 348; G.B. Mahajan v.
Jalgaon Municipal Council (1991) 3 SCC 91 : [1990]
3 Suppl. SCR 20; Tata Cellular v. Union of India (1994)
6 SCC 651 : [1994] 2 Suppl. SCR 122; Punjab
Communications Ltd. v. Union of India (1999) 4 SCC
727 : [1999] 2 SCR 1033; Union of India v.
International Trading Co. (2003) 5 SCC 437 : [2003]
1 Suppl. SCR 55; Om Kumar v. Union of India AIR
(2000) SC 3689 : [2000] 4 Suppl. SCR 693; Teri Oat
Estates (P) Ltd. v. UT, Chandigarh (2004) 2 SCC 130 :
[2003] 6 Suppl. SCR 1235; M.P. High Court Bar Assn.
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v. Union of India (2004) 11 SCC 766 : [2004] 4 Suppl.
SCR 520 - referred to.
Associated Provincial Picture Houses, Limited
Wednesbury Corporation [1948] 1 K.B. 223 - referred
to.
Union Government did not become functus officio after
establishing the OAT
7.1 The doctrine of functus officio gives effect to the
principle of finality. Once a judge or a quasi-judicial authority has
rendered a decision, it is not open to her to revisit the decision
and amend, correct, clarify, or reverse it (except in the exercise
of the power of review, conferred by law). Once a judicial or quasijudicial decision attains finality, it is subject to change only in
proceedings before the appellate court. [Para 92][791-G-H]
7.2 The doctrine of functus officio exists to provide a clear
point where the adjudicative process ends and to bring quietus
to the dispute. Without it, decision-making bodies such as courts
could endlessly revisit their decisions. With a definitive endpoint
to a case before a court or quasi-judicial authority, parties are
free to seek judicial review or to prefer an appeal. Alternatively,
their rights are determined with finality. Similar considerations
do not apply to decisions by the state which are based entirely on
policy or expediency. [Para 94][792-E-F]
7.3 The appellants' argument that the Union Government
was rendered functus officio after establishing the OAT does not
stand scrutiny. The decision to establish the OAT was
administrative and based on policy considerations. If the doctrine
of functus officio were to be applied to the sphere of administrative
decision-making by the state, its executive power would be
crippled. The state would find itself unable to change or reverse
any policy or policy-based decision and its functioning would grind
to a halt. All policies would attain finality and any change would
be close to impossible to effectuate. [Para 95][792-G; 793-A]
7.4 This would impact not only major policy decisions but
also minor ones. Major policy decisions such as those concerning
subsidies, corporate governance, housing, education and social
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welfare would be frozen if the doctrine of functus officio were to
be applied to administrative decisions. This is not conceivable
because it would defeat the purpose of having a government and
the foundation of governance. By their very nature, policies are
subject to change depending on the circumstances prevailing in
society at any given time. The doctrine of functus officio cannot
ordinarily be applied in cases where the government is formulating
and implementing a policy. [Para 96][793-B-D]
7.5 In the instant case, the State and Union Governments'
authority has not been exhausted after the establishment of an
SAT. Similarly, the State and Union Governments cannot be said
to have fulfilled the purpose of their creation and to be of no
further virtue or effect once they have established an SAT. The
state may revisit its policy decisions in accordance with law. For
these reasons, the Union Government was not rendered functus
officio after establishing the OAT. [Para 97][793-D-E]
Hari Singh Mann v. Harbhajan Singh Bajwa (2001) 1
SCC 169 : [2000] 4 Suppl. SCR 313 - referred to.
P Ramanatha Aiyer's The Law Lexicon (1997 edition);
Black's Law Dictionary (5th edition) - referred to.
The notification dated 2 August 2019 is valid despite not
being expressed in the name of the President of India
8.1 A notification which is not in compliance with clause (1)
of Article 77 is not invalid, unconstitutional or non-est for that
reason alone. Rather, the irrebuttable presumption that the
notification was issued by the President of India (acting for the
Union Government) is no longer available to the Union
Government. The notification continues to be valid and it is open
to the Union Government to prove that the order was indeed
issued by the appropriate authority. [Para 101][795-F-G]
8.2 In the instant case, the notification dated 2 August 2019
was not issued in the name of the President. However, this does
not render the notification invalid. The effect of not complying
with Article 77 is that the Union Government cannot claim the
benefit of the irrebuttable presumption that the notification dated
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v.
UNION OF INDIA
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SUPREME COURT REPORTS
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2 August 2019 was issued by the President. Hence, the appellants'
submission that the notification dated 2 August 2019 is invalid
and unconstitutional is specious. [Para 102][795-G-H; 796-A]
8.3 Both the notification dated 4 July 1986 and the
notification dated 2 August 2019 were, in substance, issued by
the President (acting for the Union Government). The notifications
were published in the Gazette of India in accordance with law and
there is nothing on record to support the suggestion that an
authority which is not empowered to issue the notification has
issued it. To the contrary, Section 4 of the Administrative
Tribunals Act empowers the Union Government to issue a
notification establishing the OAT and the attendant power to
rescind a notification so issued is also available to the Union
Government. The issuance of both notifications was an exercise
of the Union Government's statutory power under the
Administrative Tribunals Act. [Para 104][796-C-E]
8.4 Article 77 is a directory provision. Article 77(1) refers
to the form in which the decision taken by the executive is to be
expressed. This is evident from the phrase "expressed to be
taken" in clause (1) of Article 77. It does not have any bearing on
the process of decision-making itself. The public or the citizenry
would stand to suffer most from the consequences of declaring
an order that is not expressed in the name of the President null
and void. [Para 107][797-D-E]
8.5 In the instant case, the notification dated 2 August 2019
was issued in exercise of the statutory powers under the
Administrative Tribunals Act. Thus, the notification dated 2
August 2019 is valid despite not being expressed in the name of
the President of India. [Para 109, 110][798-H; 799-A]
Dattatraya Moreshwar Pangarkar v. State of Bombay
(1952) 1 SCC 372; State of Uttaranchal v. Sunil Kumar
Vaish (2011) 8 SCC 670 : [2011] 13 SCR 754; Gulf
Goans Hotel Co. Ltd. v. Union of India (2014) 10 SCC
673 : [2014] 10 SCR 536 - held inapplicable.
Air India Cabin Crew Assn. v. Yeshaswinee Merchant
(2003) 6 SCC 277 : [2003] 1 Suppl. SCR 455 - referred
to.
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Abolition of the OAT is not violative of the fundamental
right of access to justice
9.1 The fundamental right of access to justice is no doubt a
crucial and indispensable right under the Constitution of India.
However, it cannot be interpreted to mean that every village,
town, or city must house every forum of adjudication created by
statute or the Constitution. It is an undeniable fact that some
courts and forums will be located in some towns and cities and
not others. Some or the other litigants will be required to travel
some distance to access a particular forum or court. [Para
112][799-G-H]
9.2 The Orissa High Court has established benches which
will operate virtually in multiple cities and towns across the state.
This negates the appellants' argument that the Orissa High Court
is less accessible than the OAT. In fact, the number of virtual
benches of the High Court is greater than the number of benches
of the OAT. Litigants from across the state can access the High
Court with greater ease than they could access the OAT. [Para
114][800-E]
9.3 Litigants may therefore approach the Orissa High Court
for the resolution of disputes. The abolition of the OAT does not
leave litigants without a remedy or without a forum to adjudicate
the dispute in question. It is therefore not violative of the
fundamental right of access to justice. [Para 115][800-F]
Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509 :
[2016] 9 SCR 560 - relied on.
The State Government did not take advantage of its own
wrong
10. The State Government discontinued appointments to
the OAT as a result of its decision to abolish the OAT and not
vice versa. The State Government based its decision on an
evaluation of the OAT's functioning in the year 2014, which was
prior to its decision to abolish the OAT. Hence, there is no
"wrong" which the State Government took advantage of. Similarly,
it cannot be said that the Union of India had systematically made
the OAT non-functional. [Para 118][801-E-F]
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Failure of the Union Government to conduct a judicial
impact assessment before abolishing the OAT does not vitiate
its decision to abolish the OAT
11.1 The direction to conduct a judicial impact assessment
in Rojer Mathew's case was of a general nature. It was not geared
towards proposals to abolish specific tribunals such as the OAT.
Rather, a need was felt to analyse the consequences of the
restructuring of tribunals by the Finance Act 2017 and a writ of
mandamus was issued in this regard to the Ministry of Law and
Justice. The judicial impact assessment was also directed to be
conducted in order to better understand the case load, efficacy,
financial impact, and accessibility of tribunals at large, in addition
to the filling of vacancies. Neither the majority opinion authored
by Ranjan Gogoi, CJI nor the opinions of Dr. DY Chandrachud,
J. or Deepak Gupta, J. contain a direction to the effect that a
tribunal shall not be abolished in the absence of a judicial impact
assessment. In the instant case, the Union Government issued
the notification dated 2 August 2019 in a valid exercise of its
powers under Section 21 of the General Clauses Act. The failure
to conduct a judicial impact assessment does not vitiate its
decision to abolish the OAT. Nothing in the judgment in Rojer
Mathew's case also indicates the need for the Union Government
to obtain the permission of this Court before abolishing the OAT.
[Para 122][802-E-H; 803-A-B]
11.2 However, this is not to say that the Union Government
and more specifically, the Ministry of Law and Justice may
dispense with the directions of this Court in Rojer Mathew's case.
The judgment was delivered on 13 November 2019. More than
three years have since passed and the Ministry of Law and Justice
is yet to conduct a judicial impact assessment. An assessment
such as the one directed to be conducted would only shed light
on the impediments faced in the delivery of justice. The lack of
an assessment precludes any well-informed, intelligent action
concerning tribunals in the country (as a whole). This, in turn,
has cascading effects for the citizenry, which is deprived of a welloiled machinery by which it can access justice. Therefore the
directions of this Court in Rojer Mathew's case is reiterated and
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the Ministry of Law and Justice is directed to conduct a judicial
impact assessment at the earliest. [Para 123, 124][803-B-D]
Rojer Mathew v. South Indian Bank Ltd. (2020) 6 SCC
1 : [2019] 16 SCR 1 - followed.
Case Law Reference
[1997] 2 SCR 1186
referred to
Para 7
[2004] 4 Suppl. SCR 520
referred to
Para 24
[2001] 3 Suppl. SCR 504
referred to
Para 29
AIR 1964 SC 685
referred to
Para 30
[1977] 2 SCR 964
referred to
Para 34
[2007] 10 SCR 245
referred to
Para 35
[2015] 7 SCR 814
referred to
Para 40
[2002] 3 SCR 1040
referred to
Para 45
(1950) SCC 551
referred to
Para 46
[1962] Suppl. SCR 36
referred to
Para 48
[2018] 10 SCR 481
held inapplicable
Para 52
1959 SCR 1191
referred to
Para 54
1957 SCR 1052
referred to
Para 55
[1971] 1 SCR 413
distinguished
Para 60
[1992] 2 Suppl. SCR 274
referred to
Para 60
(1961) 2 SCR 295
referred to
Para 64
[1988] 1 Suppl. SCR 1
held inapplicable
Para 71
[1974] 2 SCR 348
referred to
Para 74
[1990] 3 Suppl. SCR 20
referred to
Para 75
[1994] 2 Suppl. SCR 122
referred to
Para 75
[1999] 2 SCR 1033
referred to
Para 75
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[2023] 6 S.C.R.
[2003] 1 Suppl. SCR 55
referred to
Para 75
[2000] 4 Suppl. SCR 693
referred to
Para 84
[2003] 6 Suppl. SCR 1235
referred to
Para 84
[2001] 5 Suppl. SCR 511
relied on
Para 87
[2000] 4 Suppl. SCR 313
referred to
Para 93
[2003] 1 Suppl. SCR 455
referred to
Para 100
(1952) 1 SCC 372
held inapplicable
Para 107
[2011] 13 SCR 754
held inapplicable
Para 108
[2014] 10 SCR 536
held inapplicable
Para 109
[2016] 9 SCR 560
relied on
Para 113
[2019] 16 SCR 1
followed
Para 122, 123,
124, 128(j)
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6805
of 2022.
From the Judgment and Order dated 07.06.2021 of the High Court
of Orissa at Cuttack in WPC No.13789 of 2019.
With
Civil Appeal No.6806 of 2022.
Ashok Panigrahi, Ms. Geetanjali Das Krishnan, Nabab Singh, Ms.
Nikita Jaydevan, Ms. Varnalee Mishra, Dr. Aman Hingorani, Kedar Nath
Tripathy, Bhuwar Raj, Himanshu Yadav, Advs. for the Appellant.
Balbir Singh, ASG, Ashok Kr Parija, Adv. Gen., Sibo Sankar Mishra,
Arnav Behera, Avnish Kumar Sharma, Debabrat Dash, Niranjan Sahu,
Umakant Mishra, Rajesh Kumar Nayak, Santosh Kumar, Sanjay Kr
Tyagi, Ms. Swarupama Chaturvedi, Ms. Shraddha Deshmukh, Shiv
Mangal Sharma, Arvind Kumar Sharma, C. Ravichandran Iyer, Advs.
for the Respondents.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents*
A.
Background .............................................................................. 4
i. Factual background ............................................................. 4
ii. The impugned judgment..................................................10
B.
Submissions ............................................................................. 12
C.
Issues ....................................................................................... 17
D.
Analysis ................................................................................... 19
i. An overview of the proceedings arising from the
abolition of the Madhya Pradesh Administrative Tribunal
and the Tamil Nadu Administrative Tribunal.................... 19
a.
The abolition of the MPAT ........................................... 19
b.
The abolition of the TNAT ........................................... 21
ii. The Writ Petitions instituted before the Orissa
High Court were maintainable ........................................... 23
iii. Article 323-A does not preclude the Union
Government from abolishing SATs ....................................25
iv. Applicability of Section 21 of the General Clauses
Act ...........................................................................................32
a.
There is no bar to the applicability of Section 21 of
the General Clauses Act to the administrative
order establishing the OAT ........................................... 33
b.
Section 21 of the General Clauses Act is
otherwise applicable to the Administrative Tribunals
Act................................................................................ 37
v.
The notification dated 2 August 2019 is not violative of
Article 14 of the Constitution ............................................. 47
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v.
UNION OF INDIA
*Ed. Note : Pagination in the Table of Contents is as per the original judgment.
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a.
The notification dated 2 August 2019 is not absurd or
based on irrelevant or extraneous considerations......... 47
b.
The principles of natural justice have not been
violated ......................................................................... 56
vi.
The Union Government did not become functus officio
after establishing the OAT .................................................. 58
vii.
The notification dated 2 August 2019 is valid despite
not being expressed in the name of the President of
India ........................................................................................ 61
viii. The abolition of the OAT is not violative of the
fundamental right of access to justice ...............................67
ix.
The State Government did not take advantage of its own
wrong.......................................................................................70
x.
The failure of the Union Government to conduct a
judicial impact assessment before abolishing the OAT
does not vitiate its decision to abolish the OAT ............. 71
xi.
Miscellaneous contentions..................................................74
E.
Findings and conclusion ....................................................... 75
1. IA No.