IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: CWP.No. 736/2001. Date of Decision :3rd June, 2008. Harinder Pal Chauhan and others. ..Petitioners. Versus: State of H.P. and others. …Respondents. Coram: The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 For the Petitionrs. Mr.Shrawan Dogra, Advocate with Mr.Vikram Thakur, Advocate. . For Respondent-1 to 3. Mr.Rajesh Mandhotra, Addl. Advocate General. For Respondents 4 to 21. Mr.Ashok Sharma, Advocate. R.B.Misra, J(Oral). The present writ petition has been filed against the order dated 29th June, 2001 rejecting the O.A. No. 584 of 1998 preferred before Himachal Pradesh Administrative Tribunal (hereinafter referred to as the ‘Tribunal’) challenging the validity of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules 1972, (in short called Rules 1972) and the Rules 5(1) of the said Rules 1972 as well as challenging the fixation of seniority granted to respondents No. 4 to 21 and further prayer 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 seeking direction to State authorities to redraw a fresh seniority list of school cadre lecturers and to consider the petitioner to the post of Principal on the basis of such seniority list drawn. 2. After taking into consideration the averments and the contentions advanced by the petitioners herein and the rival contentions advanced by the private respondents No. 4 to 21 as well as the submissions of the State, learned Tribunal has observed that the above mentioned ‘Rules 1972’ have been made in order to give the benefit of approved military service to the ex-servicemen on joining new government jobs and to encourage the young persons to join the military services and treating the said rules as the policy has not interfered into it and the Original Application of the petitioner has been rejected. 3. The first and foremost prayer of the petitioner before learned Tribunal was regarding questioning the validity of ‘Rules 1972’ with specific prayer for declaration that the ‘Rules 1972’ as well as Rule 5(1) of ‘Rules, 1972’ be declared as ultra vires. However, learned Tribunal has not adjudicated to test the validity and legal competence of ‘Rules 1972’ as well as Rule 5(1) of ‘Rules 1972’. Without indicating anything about the validity of ‘Rules 1972’ and without any analysis, the applicability of ‘Rules 1972’ as well as Rules 5(1) of ‘Rules 1972’ has been taken for granted as legally valid. According to learned counsel for the petitioners in such 3 circumstances, the said order cannot be said to be legally sustainable. 4. As argued by Mr.Vikram Thakur, learned counsel for the petitioners that in view of the decision of Hon’ble Supreme Court in L.Chandra Kumar Vs. Union of India and others, (1997) 3 SCC 261, the legislative competence of any Act or Rules challenged before the Tribunal could be tested by the Division Bench of learned Tribunal as the Tribunals are created under Articles 323-A and Article 323-B of the Constitution are possessed of the competence to test constitutional validity of statutory provisions and rules. To strengthen his arguments, Mr. Vikram Thakur, learned counsel for the petitioners has drawn our attention to the relevant paragraph-99 of L.Chandra Kumar’s case (supra) extracted as below: “99 In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. 4 While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Court even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.” 5. Mr.Vikram Thakur, inter alia above submissions has also submitted that learned Tribunal has failed to analyse the genuineness of the claim of respondents No. 4 to 21 and has also failed to appreciate the contentions of the petitioners. 6. On the other hand, Mr. Ashok Sharma, learned counsel appearing for respondents No. 4 to 21 has, however, submitted that on the basis of the analysis having been made 5 by learned Tribunal, the decision of the learned Tribunal is perfectly legal and requires no interference. According to Mr. Sharma in catena of decisions validity of similar provisions of different statutes under challenge before the competent court or learned Tribunal were upheld, therefore, ‘Rules 1972’ are to be taken as valid. However, Mr. Sharma has fairly accepted that the detailed analysis and reasons in respect of the validity of ‘Rules 1972’ as well as Rule 5(1) of ‘Rules 1972’ have not been indicated by learned Tribunal in its order, therefore, in that respect only the impugned order has not to be discarded. 7. After hearing learned counsel for the parties, we are of the considered view that when specifically ‘Rules 1972’ and Rules 5(1) of ‘Rules 1972’ were challenged by the petitioners then learned Tribunal was under obligation to deal and test its validity and legality and after analyzing the competence of the said Rules then the subsequent verdict could have been arrived at. 8. In the facts and circumstances and in the light of the above observations, we are of the considered view that for not dealing the competence, legality in view of the specific prayer for declaring ‘Rules 1972’ and Rule 5(1) of ‘Rules 1972’ as ultra vires, the impugned order cannot be said to be legally sustainable, therefore, it is set aside, consequent upon the O.A. No 584 of 1998 and the matter is relegated back to 6 learned Tribunal so that O.A. may be adjudicated afresh expeditiously by the learned Tribunal. 9. The learned Tribunal has also to consider the decisions of the Hon’ble Supreme Court, on the subject, namely, Chittaranjan Singh Chima and another Vs. State of Punjab and others, (1997) 11 SCC 447, Ram Janam Singh Vs. State of U.P. and another, (1994) 2 SCC 622, Indu Shekhar Singh and others Vs. State of U.P. and others (2006) 8 SCC 129 and State of U.P. and another Vs. Dinkar Sinha (2007) 10 SCC 548 while adjudicating the O.A. No. 584 of 1998. 10. In view of the fresh submissions to be advanced in the light of the some more decisions of the Hon’ble Supreme Court, in addition to the decisions indicated above, the O.A. above mentioned has to be adjudicated upon by learned Tribunal. The writ petition is accordingly allowed with no order as to costs. (R.B.Misra), Judge. (Sanjay Karol), Judge. June 3, 2008(R) 7