IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.521/2008 Decided on.28.5.2008 Suresh Kumar. …Petitioner. Versus State of H.P. and others. …Respondents Coram The Hon’ble Mr. Justice Jagdish Bhalla, C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr. K.S. Thakur, Advocate. For the respondents : Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General for respondent No.1. Rajiv Sharma, J. (oral): The present petition is being disposed of at the admission stage with the consent of the parties. The brief facts necessary for the disposal of the writ petition are that the petitioner approached the Himachal Pradesh Administrative Tribunal by way of O.A. No. 3377/2007 seeking following reliefs: (a) This Hon’ble Tribunal may kindly be pleased to allow this application and order or direct respondent No.1 to remove and correct the repugnant, arbitrary, invalid and unconstitutional provisions of the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 impugned Rules as aforesaid in para 6 above; OR in the alternative declare these provisions void; (b) Order or direct respondent No.1 that the impugned provisions of the rules declared void, be not acted upon while considering the instant promotion of the applicant; (c) Order or direct respondent No.1 to consider the applicant for promotion along with other eligible incumbents against one of the vacant posts of Principals (School Cadre) which are available in the respondent department and vacant before the date of enforcement of the Amendment Rules, 2007, in accordance to the old rules as existing on the day and time when the vacancies in question arose in the service; (d) Declare the law that the amendments to the rules normally take effect prospectively and till amendment is made, the earlier rules remain in force and for filling the available vacancies, the authorities have to keep in view the Rules and Instructions as were existent at the time of availability of the posts and further order to direct the respondent No.1 to act within the four corners of law and to obey and abide by the Government instructions, rules and policy on the matter; (e) The costs of the litigation be granted in favour of the applicant; (f) Any other relief deemed fit and proper in the facts and circumstances of the case of the applicant may kindly also be granted. The original application came up for admission before the Member (Administrative) on 31.12.2007. The order dated 31.12.2007 reads thus: “Heard. Issue notice to respondent No.2 returnable on March 14, 2008 with direction to file reply. Sh. G.S. Sisodia, Law Officer, appears and waives service of notice on 3 behalf of respondent No.1, hence, such notice need not be issued to respondent No.1 who may file reply in the meanwhile. In the meantime, vacancies which have arisen before amendment of rules be not filled under amended rules till next date of hearing. Dasti copy.” The order dated 31.12.2007 was modified by the learned Member (Administrative) on 26.3.2008. The order dated 26.3.2008 passed in M.A. No. 4193/2008 in OA. No. 3377/2007 reads thus: “Heard. The applicant who is an Ex-Serviceman and presently serving as Lecturer (School Cadre) herein, being aggrieved of the amended Recruitment and Promotion (First Amendment) Rules, 2007 Annexure A-6 for the promotion to the post of Principal Government Senior Secondary/Basic Training Schools, whereby 8 years teaching experience as Lecturer School cadre on regular basis has been prescribed instead of earlier eligibility requirement of 3 years regular service as Lecturer School Cadre, has filed this original application No.3377/2007. On the basis of pleadings of the applicant this Tribunal has granted interim order on December 31, 2007, which reads as under:- “In the meantime, vacancies which have arisen before amendment of rules be not filled under amended rules till next date of hearing.” Respondent State has filed this Misc. Application for vacation/modification of interim order dated 31.12.2007 because out of 1194 posts of Principals in various Government Senior Secondary Schools and DIETs, approximately 700 posts of Principal School Cadre are lying vacant. These vacancies are required to be filled up urgently keeping in view the smooth functioning of the institutions and interest of the student community. The eligible Lecturers and Headmasters are also being 4 deprived of their promotion as some of them are at the verge of retirement. The applicant in the reply filed to this Misc. Application has averred that this situation has arisen due to omission and commission of respondent department. From the pleadings and submissions made by the learned counsel for the parties what clearly emerges is that under old Rules as well as under amended rules there were/are two feeder categories viz. Headmaster and Lecturer School cadre for promotion to the post of Principal Government Senior Secondary/ Basic Training Schools/DIETs. In the original application the applicant who belongs to Lecturer School cadre has not mentioned any thing about the promotion to the post of Principal to be made from feeder category of Headmaster. The learned counsel for the applicant states that the applicant is merely concerned about the posts of Principals which are to be filled from the feeder category of Lecturer School Cadre. As per averments made by the respondent in Misc. Application there are about 20 Ex-servicemen who have completed 3 years or more service as Lecturer (School Cadre) and few of them have passed the departmental examination which is mandatory for the promotion of Principal (School Cadre). Keeping in view the facts and circumstances of the case and the larger public interest and also balance of convenience of eligible Lecturers School cadre some of them are at the verge of retirement as mentioned by the respondent department in the Misc. Application, the interim order granted by this Tribunal on 31.12.2007 is hereby modified to the extent that respondent department are directed that out of the total vacant posts of Principal School cadre which are to be filled from the feeder category of Lecturer School Cadre, 20 posts of Principal School Cadre which fell vacant first in time, be not filled under the amended rules till further orders and the remaining posts may be filled up under amended rules. However, promotion, if any, made and 5 inter-se seniority of the applicant on promotion shall be subject to final out come of this Original Application. This Misc. Application stands disposed of. OA No. 3377/2007 This matter involves interpretation of law and as also mentioned in the reply to above Misc. Application by the applicant, it is to be heard by the Division Bench. Therefore, list this matter before Division Bench as and when available.” The Member (Administrative) as is evident from this order dated 26.3.2008 has opined that since the matter involves interpretation of law, the same was to be heard by the Division Bench. Mr. K.S. Thakur, Advocate submits that thereafter the matter was listed before the Division Bench, but his application for early hearing was declined by the Division Bench. It is intriguing that the Member (Administrative) despite the definite pronouncement of law by the Hon’ble Supreme Court in L. Chandra Kumar versus Union of India and others, (1997) 3 SCC 261 has heard the matter on 31.12.2007. It is evident from the pleadings of the parties as well as from the reliefs sought for in the original application that the petitioner had challenged the vires of the Act. Their Lordships of the Hon’ble Supreme Court have held in L. Chandra’s case (supra) that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a Single Member Bench of the Administrative Tribunal, the proviso to Section 5 (6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. Their Lordships have further put a rider that this will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a 6 Single Bench or a Bench which does not consist of a Judicial Member. Their Lordships have held as under: “Since we have analyzed the issue of the constitutional validity of Section 5 (6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the provision was not in question in Dr. Mahabal Ram case, we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which section 5 (2) and 6 (6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a Single Member Bench of the Administrative Tribunal, the proviso to Section 5 (6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a Single Bench or a Bench which does not consist of a Judicial Member. So constructed, section 5 (6) will no longer be susceptible to charges of unconstitutionality.” The Member (Administrative) in the present case should have referred the matter to a Bench consisting of at least two Members, one of whom ought to have been a Judicial Member at the threshold. Let us see how the Member (Administrative) has proceeded with the matter despite the definite pronouncement of law by the Hon’ble Supreme Court in ‘L. Chandra’ case. He has heard the matter on 31.12.007 and has passed an interim order. He modified the order on 26.3.2008 and also directed the matter to be listed before the Division Bench since the interpretation of law was involved. The Member (Administrative) could not hear the matter at the first instance. He was required to refer the matter to the Division Bench comprising of Judicial 7 and Administrative Members or as per the practice he could simply direct the Registry to place the matter before the Hon’ble Chairman for the constitution of a Bench. It will be against the judicial/procedural proprietary to hear the matter at the first instance without jurisdiction, grant interim order, modify the order and thereafter to make observation to list the matter before the Division Bench since the interpretation of law is involved. In the present case, the interpretation as well as the vires of the Act in question was involved. We hope and trust that the Members of the Tribunal henceforth will be cautious about the pronouncement of law by the Hon’ble Supreme Court, which is binding under Article 141 of the Constitution of India on all the authorities, including the Courts. If any matter is listed before the Member Administrative or the Judicial involving the vires of the Act or interpretation of law, the same should be brought to the notice of the Chairman for the constitution of the proper Bench as per the law laid down in ‘L. Chandra’ case a fortiori by way of abundant caution as and when the Members of the Tribunal including the Chairman come to a conclusion that they cannot hear a particular matter, it will be against the procedural proprietary to grant ad-interim or interim stay in these cases. These cases have to be simply adjourned to maintain probity which is basic facet of rule of law. Mr. K.S. Thakur, Advocate submits that the matter was listed after the orders dated 26.3.2008 before the Division Bench and he had also filed an application for early hearing, which was dismissed by the learned Tribunal. We have gone through the pleadings of the parties carefully and have heard the parties at length. We are of the considered opinion that the ends of justice will be met if the petitioner is permitted to make a fresh application for early hearing for the adjudication of the original application. 8 Consequently, the petitioner may file an application before the learned Tribunal for early hearing of the original application which will be duly considered by the learned Tribunal in accordance with law within a period of 15 days from its listing. In view of the observations made hereinabove, the writ petition is disposed of. There shall be no order as to costs. (Jagdish Bhalla), C.J. May 28, 2008 (Rajiv Sharma ), J. *awasthi*