# PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATE OF U.P. AND ANR - **Citation:** [2003] 1 S.C.R. 666 - **Court:** Supreme Court of India - **Decided:** 2003-01-29 - **Case number:** Civil Appeal No. 3946 of 2001 - **Bench:** V.N. Khare Cj, Ashok Bhan - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/public-services-tribunal-bar-association-v-state-of-u-p-and-anr-18922 - **Pages:** 29 ## Headnote Constitution of India, 1950: VJ/ Schedule List 11 Ently 41-legislative competence of State to enact C provisions of U.P. Public Services (Tribunal) Act, 1976-Discussed. D legislative action of State-Scope of-Discussed U.P. Public Services (Tribunal) Act, 1976: (as amended by Act 5 of 2000): Section 4(/)-Reference of claim to Tribunal with regard to an 'order' pertaining to service matter- Validity of-Held: since no amendment or clarification had come in the Act, an 'omission' and 'inaction' on the part of the authority could be challenged by filing writ petition under Article 226 of E the Constitution in High Court-Thus section 4 (/) constitutio11al/y va/idConstitution of India, 1950-Article 226. Section 5(5B)-Prohibiting Tribunal from passing interim order in respect of an order made or purporting to be made by employer for the suspension, dismissal, re}noval, reduction in rank, termination, compulsory retirement or F reversion of public servant-Constitutional validity of-Held: Valid since the cases in which operation of orders of dismissal, removal, termination etc. is stayed by way of interim order is later on upheld at final stage then it results in wrong usurpation of the office by employee during the operation of interim order. G Section 5(5C)-Prohibiting Tribunal from making interim order in respect of an adverse ently of employees-Validity of-Held: Valid Section 3(4A){b)-Held is in pari materia with Section 6(2){b) of the Administrative Tribunals Act, 1985·-Administrative Triqimals Act, 1985H Section 6(2){b). 666 , • PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION"· STATEOFU.P. 667 U.P. Public Services (Tribunal) Act, 1976 was promulgated for A adjudication of disputes pertaining to employment matters of public servants of State Government and employees of Government undertakings, local bodies etc. The 1976 Act was amended from time to time. Sub section (SB) of Section S was inserted which prohibited the Tribunal from passing interim order in respect of order made or purporting t!'. be p1ade by B employer for the suspension, dismissal, removal, reducti.-- is left without a remedy to challenge any 'omission' or 'inaction' on the part of the authority. Inaction by itself is an independent cause of action and High Court can effectively deal with the same. (688-D-EI ~' 3.1. Dismissal, removal, termination and compulsory retirement puts JI an end to the relationship of employer and employee. In case of suspension, • - - PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION r. STATE OF UP 669 reduction in rank or reversion the relationship of employer and employee A continues. Interference at the interim stage \\'ith an order of dismissal. removal, termination and co1npulsory retirement n'ould be giving the fina:J relief to an employee at an interim stage \\1hich he \\'ould have got in case the order of dismissal, re1noval, termination and compulsory retirement is found not to be justified. If the order of dis1nissal, removal, term~.nation and compulsory retirement is set aside then an employee can be B compensated by moulding the relief appropriately in terms of arrears of salary, promotions which may have become due or otherwise compensating him in some other way. But in case the order of dismissal, removal, termination and compulsory retirement is found to be justified then holding of the office during the operation of the interim order would C amount to usurpation of an office which the employee was not entitled to hold. The action becomes irreversible as the salary paid to the employee cannot be taken away as he has worked during that period and the orders passed by him during the period he holds office (because of the interim order) cannot also be put at naught. The Legislature in its wisdom thought it proper not to confer the power to grant interim relief, on the Tribunal. D State Legislature had the legislative competence to constitute a Service Tribunal and it was for it to define the parameters of the jurisdiction of the Tribunal. 1690-F-H; 691-A-CI 3.2. Judicial review of an order regarding which the jurisdiction of the Tribunal is barred would be available by approaching the High Court E by filing petition under Article 226 or 227 of the Constitution. In an extreme and rare case where the order is passed ma/a fide or without following the procedure under lhe law then the employee can certainly approach the High Court under Article 226 of the Constitution for the interim relief. High Court in such an extreme and rare case may in its F wisdom stay the operation of the said order. Normally, the suspension is made during a contemplated or a pending enquiry. During the suspension period the employee is entitled for the suspension allowance. If the suspension continues for indefinite period or order of suspension is passed ma/a fide then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution. In case G . the order of reduction in rank or reversion is set aside then the employee can be compensated by adequately moulding the relief while giving the relief at the final stage. Power of the Tribunal to grant interim relief has been taken away qua certain matters not completely. The power has been taken away in matters where the grant of said relief at the interim stage H 670 SUPREME COURT REPORTS [2003] l S.C.R. A would result in giving the relief which would normally be given while disposing of the case finally. Simply because in a rare cases of microscopic ~ number a case is made out for stay of orders of suspension, transfer, reduction in rank, reversion or termination, dismissal and compulsory retirement and the employee is liable to approach High Court for interim r B stay by itself is no ground to strike down the law enacted by a Legislature which is within its competence to enact. Also when employee is to approach High Court for interim relief ·resulting in some extra expense by itself is ~ no reason to strike down sub-section (5-B) being arbitrary and violative of'Articles 14 and 16 of the Constitution. (691-C-G; 692-G( c 4. Adverse entry in the confidential report does not affect the conditions of service of a public servant. Making of an entry in the confidential report is an administrative act based on the subjective satisfaction of the superior officer done on the objective criteria. It is an ~ assessment of the performance of the Government servant in one year. ~- D Assessment of performance in the past year may become a criteria affecting the future prospects of the employee. Invariably adverse entry results in the passing of an order by the employer at a later stage and such an order may result in giving rise tC) a cause of action. Sub-section (5-C) does not debar the public servant to challenge adverse entry made in the record. Public servant can approach the Tribunal to challenge the E adverse entry made in the confidential report. Tribunal if satisfied can set aside the adverse entry by way of a final order but stay of the adverse entry at the interim stage may not be an appropriate relief. The reasons given for upholding the validity of sub-section (5-B) would equally apply for upholding the validity of sub-section (5-C). (692-A-DI F 5. Sub-section ( 4-A) of Section 3 is in pari materia with Section 6(2)(b) of the Administrative Tribunals Act, 1985. Sub-section (7) in Section 3 was also substituted by adding the words "State Government after consultation with the Chief Justice for which proposal will be initiated by the State Government." In other words, the power of appointments with the State G Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed in Sanjai Kumar Srivastava* case. Appointment of the Chairman, Vice-Chairmen (Judicial) and (Administrative) and Members has now to be made in -,(, consultation with the Chief Justice of the High Court. The submission that the amendment carried out in Section 3 regarding appointmefl( of H Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION ,., STATE OFU.P. [ASHOK BHAN, J.] 671 Members is not in conformity with the corresponding provisions of A Administrative Tribunals Act, 1985 has no substance. (694-A-DJ 6. State Legislature was competent to enact the impugned provisions. Further, the provisions enacted are not arbitrary and, therefore, nOt violative of Articles 14 and 16 or any other provisions of the Constitution and are not against the basic structure of the Constitution of India either. (694-EJ B SP. Sampath Kumar v. Union of India, ( 1997) 3 SCC 261; L. Chandra Kumarv. Union of India, (1997) 3 SCC 261; KrishnaSahai v. State of UP., (1990) 2 SCC 673; Rajendra Singh Yadav v. State of UP., (1990) 2 SCC C 763; Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625; Delhi Cloth & General Mills Co. Ltd v. Shri Rameshwar Dyal and Anr., [1961) 2 SCR 590; UP. Rajya Krishi Utpadan Mandi Parishadv. Sanjiv Rajan, (1993) Supp. 3 SCC 311; State of Haryana v. Suman Dutta, (2000( 10 SCC 311; State of Andhra Pradesh v. McDowell & Co. and Ors., (1996( 3 SCC 709; State of Bihar and Ors. v. Bihar Distillery ltd and Ors., [1997) 2 SCC 453 and Sanjai D Kumar Srivastava v. State of UP. and Ors., Writ Petition No. 1619(MB) of 1993 decided by Full Bench of Allahabad High Court, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3946 of 2001. From the Judgment and Order elated 5.5.2000 of the High Court ofU.P. in WP 4285/99. WITH Civil Appeal Nos. 3947 of 2001 and 3948 of 2001. E F K.K. Venugopal, Ranjit Kumar, P.P. Rao, Subhash Chandra Srivastava, Ajey S. Tiwari, V.K. Pandey, S. Wasim A. Qadri, Rahul Singh, Lakshmi Raman Singh, Amit Bose, B.P. Singh, Dr. Mrs. Vipin Gupta, V.J. Francis, Ashok Kumar Pandey, N.S. Gah!ot and Vishwajit Singh for the appearing G parties. X The Judgment of the Court was delivered by BHAN, J. These appeals are directed against a common order passed by a Full Bench of Five Judges of the High Court of Allahabad in Civil Writ H 672 SUPREME COURT REPORTS [2003) l S.C.R. A Petition No. 4285 (MB) of 1999, Public Services Tribunal Bar Association v. State of U.P. and Anr., Civil Writ Petition No. 871 (MB) of 2000, Afzal ~ Ahmad Siddiqui v. State of U.P. and Ors. and Civil Writ Petition No. 1262 (MB) of 2000, Shireesh Kumar v. State of U.P. and Ors., wherein the High Court has dismissed the writ petitions challenging the vires of the U.P. Public B Services (Tribunal) Act, 1976, as ainended from. time to time. The High Court has upheld the constitutional validity of the Act as well as the subsequent amendments made therein. To effectively adjudicate the dispute arising in these appeals it would be necessary to have a look at the events in a chronological order which are C given in brief as under: The U.P. Public Services (Tribunal) Act, 1976 ( for short "the Act") was promulgated relating to public servants of the State Government and the employees of the government undertakings, local bodies etc. having power to grant interim relief as well. Before the coming into force of the Act the D public servants were approaching civil courts for redressal of their grievances arising out of their service matters by filing civil suits before the civil court of competent jurisdiction or by approaching the High Court under Article 226 of the Constitution of India. After the coming into force of the Act the jurisdiction of the Civil Court was taken away. The decision to have a separate service Tribunal was taken by the State Government after considering the E increasing workload of the civil courts and the delay in disposal of the service matters. The purpose for creating the Tribunal has been indicated in the statement of objects of the Act, which reads as under: F G "The number of cases in the courts pertaining to the employment matters of the Government servants was constantly on the increase. This, besides increasing the workload in the courts also delayed considerably the disposal of such cases. Such litigation also involved money and time of government servants. In these circumstances, it was decided to establish Public Services Tribunals to deal with cases pertaining to employment matters of government servants and also of the employees of the local authorities and Government Corporations and Companies, so that the employees may get quick and inexpensive justice. It was also decided that after the establishment of the Tribunals such suits be barred from being file in the subordinate courts." Under the original Act the State Government constituted five Tribunals H each comprising of an !AS Officer as a Chairman and a Judicial Officer of PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION"· STATEOFU.P. [ASHOK BHAN, J.] 673 the rank of District Judge as a Judicial Member. Each Tribunal was vested A with the jurisdiction over service matters of different departments to the State Government. Under Section 4 of the Act any person who is or has been a public servant could file a claim petition in any manner relating to employment .as such public servant if his employer had dealt with him in a manner which was not in conformity with any contract or provisions of Article 16 or Article B 311 of the Constitution of India or with any rules or law having force under Article 309 or Article 313 of the Constitution. Under Section 5 (5) U) of the original Act the Tribunals had the power to pass interim orders in respect of all matters within their jurisdiction including orders of dismissal. removal, reduction in rank, tennination, reversion and compulsory retirement. The Act was amended by the U.P. Public Services (Tribunal) (Amendment) Act (U.P. Act No. I of 1977). By the said amendment after ,,.,- sub-section (5) of Section 5, sub-sections (5-A) and (5-B) were inserted. c Under Section 5 (5-A) the Tribunal could pass an interim order in specific type of cases, but under Section 5 (5-B) the Tribunal was prohibited from passing interim orders in respect of the order made or purporting to be made D by an employer for the suspension, dismissal, removal, reduction in rank, termination, reversion and compulsory retirement. In the year 1982 a proviso was added to Section 4 of the Act by the U.P. Public Services (Tribunal) (Amendment) Act (U.P. Act No. 2 of 1982) E divesting the Tribunal of the jurisdiction to deal with petitions arising out of orders of transfer of a public servant. In 1985 the Administrative Tribunals Act (Act No. 13 of 1985) was enacted by the Parliament under Article 323-A of the Constitution providing a Central Administrative Tribunal with benches for adjudicating disputes in F respect of recruitment and conditions of service of persons appointed under the Central Government and its undertakings in connection with the affairs of the Union. Under Section 5(1) of the said Act Tribunal was to consist of a Chairman, Vice-Chairman, Judicial and Administrative Members. Under Section 6(1)(c) of the said Act a person who hac' held the post of Secretary to the Government of India or any other post under Central or State G Government carrying a scale of pay which was not less than that of a Secretary to the Government of India could be appointed as the Chairman of the Tribunal. The original Act vested the entire power of appointment of Chairman, ViceChairman, Administrative & Judicial Members of the Tribunal in the Central Government without providing for their appointments being made in H 674 SUPREME COURT REPORTS [2003) I S.C.R. A consultation with the Chief Justice of India. Writ Petition No. 12437 of 1985, S.P. Sampath Kumar v. Union of India and Ors., connected cases were filed in this CoLtrt under Article 32 of the Constitution of India challenging the validity of the Administrative Tribunals Act, 1985 including Section 28 of the said Act whereby the High B Courts were divested of their jurisdiction under Articles 226 and 227 of the Constitution in respect of matters within the juri1diction of the Administrative Tribunals, i.e., in respect of service matters pe1taining to employees of the Central Govemment, State Govemment or any undertaking which were brought within the jurisdiction of the Tribunals. 'SP. Sampath Kumar's case and other C connected cases were referred to and disposed of by a Constitution Bench of this Court and the same is reported in [1987) I SCC I 24. By the said decision, this Court upheld the constitutional validity of the Administrative Tribunals Act but directions were issued to the Central Government to amend the Act, )r inter alia, to delete the provisions providing for IAS Officers to be appointed as Chainnan of the Tribunal and providing for appointment of Chairman, D Vice-Chairman and other members of the Tribunal in consultation with the Chief Justice of India. Thereafter in I 987 by Administrative Tribunals (Amendment) Act, section 6( I)( c) of the said Act .were omitted and section 6 (7) was substituted providing for appointment of Chairman, Vice-Chairman and members of the Tribunal in consultation with the Chief Justice of India. E F. G H In Krishna Sahai v. State of U.P., [I 990) 2 SCC 673 and Rajendra Singh Yadav v. State of U.P., [I 990] 2 SCC 763, this Court directed the State of U.P. to consider the feasibility of setting up an appropriate Tribunal under the Central Tribunal Act, I 985 in place of the Services Tribunals functioning at present, and in case the existing State Tribunals were continued. This Court observed: " ...... it would be appropriate for the State of Uttar Pradesh to change its manning and a sufficient number of people qualified in Law should be on the Tribunal to ensure adequate dispensation of justice and to I . . maintain judicial temper in the functioning of the. Tribunal. .. " In the later decision in Rajendra Singh Yadav's case (supra), this Court reiterated its earlier view, a few other observations to improve the functioning of the ·services Tribunal were made. The said observations read as under: "We have been told that the Services Tribunal mostly consists of Administrative Officers and the judicial element in the manning part )IL . PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATEOFU.P lASHOKBHAN,J.] 675 of the Tribunal is very small. As was pointed out by us in S.P. A Sampath Kumar v. Union of India, the disputes require judicial handling and the adjudication being essentially judicial in character it is necessary that an adequate number of judges of the appropriate level should man the Services Tribunals. This would create appropriate temper and generate the atmosphere suitable in aff adjudicatory Tribunal and the institution as well would command the requisite B confidence of the disputants. We have indicated in the connected matter that steps should be taken to replace the Services Tribunals by Tribunals under the Administrative Tribunals Act, 1985. That would give the Tribunal the necessary colour in terms of Article 323-A of the Constitution. As a consequence of setting up of such Tribunals, C the jurisdiction of the High Court would be taken away and the Tribunals can with plenary powers function appropriately. The disputes which have arisen on account of the Services Tribunals not having complete jurisdiction to deal with every situation arising before it would then not arise. We have pointed out that notice has been issued in a later case for the State's response to the question of Tribunals to be located at different parts of the State. State of Uttar Pradesh territorially is the second largest State in lndia but considering the population it comes first. Almost every part of the State is well advanced and service litigation in such setting is likely to arise everywhere. To locate the seat of the Tribunals at the State capital in such a situation is not appropriate. The accepted philosophy relevant to the question today is that justice should be taken to everyone's doors. This, of course, D E is not a statement which should be taken literally but undoubtedly the redressal forum should be available near about so that litigation may F be cheap and the forum of ventilating grievance may not be difficult to approach. Keeping that in view which is a legitimate consideratjon it would be appropriate for the State Government to consider, firstly, increase in the number of benches of the Tribunal and secondly, to locate them not at the same station but at various sectors or depending upon the number of institution of disputes and pendency at the level G of independent Commissionerate or by clubbing two or three of them together. This, of course, is a matter which would require further examination at the administrative level and, therefore, we express no opinion regarding location of such Tribunals although we are of the definite view that there should be Tribunals available in different H A 676 SUPREME COURT REPORTS [2003) I S.C.R. parts of the State and all the benches of the Tribunal should not be located at one place." Thereafter in 1992 the U.P. Public Services (Tribunals) (Amendment) Act (U.P. Act No. 7 of 1992) was promulgated amending drastically the provisions of the original Act. Only one Tribunal with separate division and B single member benches replaced the several Tribunals constituted under the original Act. According to section 3(2) of the Amending Act the Tribunal was to consist of one Chairman, one Vice-Chairman, Judicial and Administrative Members. Under section 3(3)(c) of the Amending A;t an IAS Officer could be appointed as Chairman of that Tribunal. Similarly, under C section 3(4) (c) of the Amending Act an IAS officer could also be appointed as Vice-Chairman of the Tribunal. Another significant change brought about by the Amending Act was that vide Section 5-A of the Amending Act the Tribunal was vested with the powers of punishment for its contempt in the same manner as the High Court has under the provisions of the Contempt· of Courts Act. Thereafter in 1993 Sri S. Venkat Ramani, an IAS officer was D appointed by the State Government as Chairman of the Tribunal. Sanjai Kumar Srivastava filed writ petition No.16 I 9(MB) of 1993 before the Allahabad High Court challenging the appointment of Sri Venkat Ramani as· Chairman of the Tribunal as well as challenging the constitutional validity of the provisions of section 5(3) (c) and 5(4)(c) of the Act as amended in 1992 E whereby an IAS officer could be appointed as Chairman and Vice-Chairman of the Tribunal. A Full Bench of the Allahabad High Court by its judgment dated 26th May, 1995 struck down the provisions of Section 5 (3) (c) and 5(4) (c) of the Act and quashed the appointment of Sri Venkat Ramani an IAS officer as Chairman of the Tribunal. F In 1994 the U.P. Public Services (Tribunal) (Amendment) Ordinance ,,, (U.P. Ordinance No. 23 of 1994) was promulgated whereby sub-section 5-C was inserted to section 5 of the Act divesting the Tribunal from passing any interim order in respect of an adverse entry awarded to a public servant and providing that all interim orders passed in respect of any such adverse entry before the promulgation of the Ordinance would stand vacated. This Ordinance G in due course of time lapsed and thereafter in the year 1995 again the same Ordinance was promulgated by U.P. Ordinance No. 8 of 1995 introducing the same amendments as were in U.P. Ordinance No. 23 of 1994. This Ordinance also lapsed in due course of time and thereafter on 25t!fAugust, 1995 the U.P. Public Services (Tribunal) (Amendment) (Second) Ordinance, . H 1995 (U.P. Ordinance No.32 of 1995) was promulgated by the Governor re- ·+ PUBLIC SERVICES TRIBUl,AL BAR ASSOCIATION "·STATE OF U.P. (ASHOK BHAN, J.] 677 promulgating U.P. Ordinance No. 8 of 1995 which had lapsed on expiry of A -+ ' the period specified in Article 213(2) of the Constitution. In February, 1997 a former Judge of the Allahabad High Court, Justice K.L. Sharma (retd.) was appointed as the Chairman of the Tribunal. Justice Sharma retired as Chairman of the Tribunal on 10th July, 1999. On 10th of September, 1999 U.P. Public Services (Tribunal) Amendment Ordinance,·1999 (U.P. Ordinance No. 17of1999) was promulgated by the Governor ofU.P. and published vide notification dated 9th September, 1999. By Ordinance No. 17of1999 Section 4(J) was substituted in place ofsect!on B 4 of the Act, further Section (5-C) was added to Section 5. Writ Petition No. C 4285(MB) of 1999 was filed by the U.P. Public Services Tribunal Bar Association. The constitutional validity of newly added Section 4( I), subsection (5-C) and Section 5(5-B) was challenged being ultra vires the Constitution. A further prayer was made that a writ in the nature of mandamus be issued commanding the State Government to modify the Act strictly in conformity with the Central Administrative Tribunals Act, 1985 as per the D law laid down by this Court in S.P. Sampath Kumar's case (supra) and L. Chandra Kumar v. Union of India, [1997] 3 SCC 261. Lastly it was prayed that the U.P. Public Services Tribunal be given comprehensive powers to grant interim relief to make the Tribunal more efficient and 1 effective. Subsequently the impugned U.P. Ordinance No. 17 of 1999 was replaced by E U.P. Act No. 5 of2000. Thereafter an application for amendment of the writ petition challenging the U.P. Act No. 5 of 2000 was moved which was allowed. Sri Satish Chand Shukla, a practising advocate of Allahabad High Court filed writ petition No. 5 J 03 (MB) of 1999 challenging the constitutional F validity of the U.P. Public Services (Tribunal) Act, 1976 on the ground that the same was beyond the legislative competence of the State Legislature. Shri Afzal Ahmad Siddiqui, a practising advocate filed writ petition No. 748 (MB) of 1999 challenging the constitutional validity of Section 3(5), G (7) and (8) of the Act with a prayer to annul the above sections in order to remove the infirmities of the Act as pointed out by this Court in S.P.Sampath X Kumar's case (supra). The same advocate Shri Afzal Ahmad Siddiqui filed another writ petition No. 1636 (MB) of 1999 challenging the constitutional validity of the U.P. Ordinance No. 17 of 1999. After the coming into force of the U.P. Act No. 5 of 2000 replacing the Ordinance No.17 of 1999 Shri H 678 SUPREME COURT REPORTS [2003) I S.C.R. A Afzal Ahmad Siddiqui filed writ petition No. 871 (MB) of 2000 challe1"11ging the provisions of the U.P. Act No. 5 of 2000. Relief claimed in writ petition + No: 871 (MB) of 2000 was the same as had been claimed in writ petition Nos. 748 (MB) of 1999 and 1636 (MB) of 1999 filed by him in which he had challenged the provisions of the Ordinance. B The provisions of the Act which are under challenge and other relevant c D provisions are reproduced below for reference: "Section 3. Constitution of the Tribunal -(I) As soon as may be after the commencement of the Uttar Pradesh Public Services (Tribunals) (Amendment) Act, 1992, the State Government shall, by notification, establish a Tribunal to be called the State Public Services Tribunal. (2) The Trbinual shall consist of a Chairman, a Vice Chairman (Judicial), A Vice-Chairman (Administrative) and such number of other Judicial and Administrative Members not less than five in each category, as may be determined by the State Government. (3) A person shall not be qualified for appointment as Chairman, unless he- (a) has been a Judge of a High Court, or E (b) has, for at least two years held the post of Vice-Chairman, or F (c) has been a member of the Indian Administrative Service who has held the post of a Secretary to the Government of India or any other post under the Central or the State Government equivalent thereto, and has adequate experience in dispensation of justice. (4) A person shall not be qualified for appointment as Vice-Chairman (Judicial) unless he,- (a) has held the post of District Judge or any other J?OSt equivalent thereto for at least five years; or G (b) has, for at least two years, held the post of a Judicial Member. (4-A) A person shall not be quaiified for appointment as ViceChairman (Administrative) unless he- (a) has, for at least two ye~rs, held the post of an Administrative H Member; or x PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION "·STATE OF U.P. [ASHOK BHAN, J.] 679 (b) has, for at least two years, held the post of Additional Secretary A to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India and has, in the opinion of the State Government, adequate experience in dispensation of Justice. (5) A person shall not be qualified for appointment as a Judicial Member, unless he has held the post of District Judge, or any other post equivalent thereto. B (6) A person shall not be qualified for appointment as an Administrative Member, unless he has held, or has been eligible to C hold, the post of Commissioner of a Division or Joint Secretary to the Government of Cndia and has in the opinion of the State Government, adequate experience in dispensation of justice. (7) The Chairman, Vice-Chairman and every other member shall be appointed by the State Government after consultation with the Chief D Justice for which proposal will be initiated by the State Government: Provided that no person shall assume the Office of Chairman, ViceChairman or other member, as the case may be, unless he has resigned or retired from, as the case may be, the Judgeship of the High Court, or the Indian Administrative Service or the Uttar Pradesh Higher E Judicial Service or any other service in which he was serving except the service as Vice-Chairman or Member. Section 4. Reference of claim to Tribunal-(J) Subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the F jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance. Explanation-For the purpose of this sub-section "order" means an order made by the State Government or a local authority or any other Corporation or company referred to in clause (b) of Section 2 or by G an officer, committee or other body or agency of the State Government or such local authority or Cor~oration or company: Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public H servant. . A B c D 680 SUPREME COURT REPORTS (2003) I S.C.R . Section 5. Powers and procedure of the Tribunal-( I )(a) The Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (Act 5 of 1908), or the rules of evidence contained in the Indian Evidence Act, 1872 (Act I of 1872), but shall be guided by the principles of natural justice, and subject to the provisions of this s~tion and of any rules made under Section 7, the Tribunal shall hav~i power to regulate its own procedure (including the fixing of places.and times of its sittings and deciding whether to sit in public or private): Provided that where, in respect of the subject-matter of a reference, a competent court has already passed a decree or order or issued a ''· writ or direction, and such decree, order, writ or direction has become final, the principle of res judicata shall apply. Section (5-B) Notwithstanding anything in the foregoing sub-sections, c the Tribunal shall have no power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an order made or purporting to be made by an employer for the suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant, and every interim order (whether by way of injunction or stay or in any other manner), in respect of such matter, which was made by a Tribunal E before the date of commencement of this sub-section and which if in F G force on that day, shall stand vacated. Section (5-C) Notwithstanding anything in the forgoing sub-sections, the Tribunal shall have no power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an adverse entry made by an employer against a public servant, and every interim order (whether by way of injunction or stay or in any other manner) in respect of an adverse entry, which was made by a Tribunal before the commencement of the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 2000 and which is in force on the date of such commencement shall stand vacated." The validity of Section 4(1) inserted by Act N0.5 OF 2000 has been challenged on the ground that a public servant could not approach the Tribunal for 'in action' on the part of the authorities in respect of his legal rights. If there was inaction on the part of the employer a publi<;. servant had no H remedy before the Tribunal and further the incumbent could not approach the PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION >«STATE OF U.P. [AS HOK BHAN, l.l 68 J Civil Court for the reason that the jurisdiction of the Civil Court had already A been barred under Section 6 of the Act. That by the amendments made in the impugned Act the powers of the Tribunal regarding judicial review of administrative in-action deprives the litigants of their valuable right. Divesting of power of judicial revie\v too was ultra vires to the Constitution of India. Judicial review being basic .and essential feature of the Constitution as held B by this Court in Minerva Mills Lid v. Union of India, reported in [1980] 3 SCC 625. The object of the Act was not to leave a public servant without any remedy. It was further averred that initially there were provisions in the Act conferring powers upon the Tribunal to grant interim relief. However, in due course of time on one pretext or the other the jurisdiction of the Tribunal to grant interim reliefs has gradually been taken away. Firstly embargo was put C with respect to grant of interim relief in certain matters. Subsequently the jurisdiction with respect to transfer was taken away and lastly the power to make interim order in respect of an adverse entry made.~n employer against a public servant has been taken away. By the impugned action of the respondents the whole concept of the aims and objects of the Act have been diluted. If the Tribunal is not conferred with full powers of the court and the D authority to grant effective relief to the public servants then it cannot be the real substitute of the courts. If the Tribunal is not empowered to deal with every situation with respect to the services of the public servants then it will loose its identity. If the rule of law is to prevail the Tribunal has to play effective role in administration of justice and in the process the Tribunal E should have all powers as are vested in courts.