Case: Public Services Tribunal Bar Association Vs. State Of U.P.

reasons given by us for upholding the validity of Sub-section (5-B) would equally apply for upholding the validity of Sub-section (5-C) as well. 42. Sub-sections (5-B) and (5-C) are not arbitrary as contended by the counsel for the appellant as this Court in earlier cases has taken the view that orders of suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant normally should not be interfered with at an interim stage as the employee can be suitably compensated in case the order of suspension, dismissal, removal, etc. in found not to be in order. The cases in which the operation of orders of dismissal, removal, termination etc. is stayed by way of interim order is later on upheld at the final stage then it results in wrong usurpation of the office by the employee during the operation of the interim order. This act becomes irreversible and the employer cannot be suitably compensated by moulding the relief at the final stage. In an extreme and rare case where the order is prima facie on the face of it is mala fide or bad in law then it is open to a public servant to approach the High Court by filing a writ petition under Article 226 of the Constitution of India for stay of such an order. The employee is not left without any remedy. In an extreme and rare case an employee is to approach the High Court for interim relief resulting in some extra expense by itself is no reason to strike down the Sub-section (5-B) being arbitrary and violative of Articles 14 and 16 of the Constitution of India. 43. The Principal Act was promulgated in 1976 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the Government Corporations and Companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial member and one administrative member. Out of them one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the Original Act was amended by U.P. Act No. 7 of 1992. Sub-sections 3 (1), (2), (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice Chairman at least five Judicial Members and Five Administrative Members which were to function at different Benches consisting of a Single Member or two members for the disposal of such references of claims and other matters as ay be specified by the Chairman. Under the Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkatramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava in the High Court. It was contended that administrative member could not become a Chairman and the appointment of Chairman. Vice Chairman and members could not be made without consulting the Chief Justice of the State. This objection was upheld and accordingly Section 3(3)(c) and Section 3(4)(c) of the Act were struck down. State was permitted to make suitable amendments to bring about suitable amendments in the Act. It was also directed that in future all appointments to the Tribunal be made only after effective consultation with the Chief Justice of the State. Special Leave Petition filed against the judgment was dismissed by this Court. The Government thereafter deleted the offending clauses of Section 3(3)(c) and Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was promulgated which culminating in the passing of Act 5 of 2000. Section 3(2) of the Principal At was substituted for the words "a Vice-Chairman", the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)". From now onwards there are two Vice Chairmen instead of one Chairman. In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-section (4-A) was inserted which prescribed the qualification for appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was the same as was earlier in Sub-section 4(b) by deleting the words "or an Administrative". The new Sub-section (4-A) (b) was an addition now added in 1999. This is in pari materia of Section 6 (2)(b) of the Administrative Tribunals Act, 1985 except the words. "Additional Secretary" instead of "Secretary" to the Government of India. Sub-Section (4-A) (b) is the same as the original Section 3(6) except adding the words as under: " "has adequate experience", the words "has, in the opinion of the State Government, adequate experience" have been added." Challenge to Sub-Section (4-A) (b) of Section 3 that the same is not in conformity with the judgment in Sanjai Kumar Srivastava case is unfounded because this sub-section 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 Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed by the High Court in Sanjai Kumar Srivastava case.44. Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has no substance. 45. For the reasons stated above, we find that the State Legislature was competent to enact the impugned provisions. Further that the provisions enacted are not arbitrary and therefore not violative of Articles 14, 16 or any other provisions of the Constitution. They are not against the basic structure of the Constitution of India either.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]32. We agree with the view taken by the High Court that unless a clarification is made by the Legislature in the Act clarifying that an order would include an "omission" or "inaction" on the part of the authority, the "inaction" on the part of the authority can be challenged in High Court by filing the writ petition under Article 226 of the Constitution of India. It cannot be said that the public servant 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 the High Court can effectively deal with the same.Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has been taken a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.The Principal Act was promulgated in 1976 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the Government Corporations and Companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial member and one administrative member. Out of them one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the Original Act was amended by U.P. Act No. 7 of 1992. Sub-sections 3 (1), (2), (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice Chairman at least five Judicial Members and Five Administrative Members which were to function at different Benches consisting of a Single Member or two members for the disposal of such references of claims and other matters as ay be specified by the Chairman. Under the Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkatramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava in the High Court. It was contended that administrative member could not become a Chairman and the appointment of Chairman. Vice Chairman and members could not be made without consulting the Chief Justice of the State. This objection was upheld and accordingly Section 3(3)(c) and Section 3(4)(c) of the Act were struck down. State was permitted to make suitable amendments to bring about suitable amendments in the Act. It was also directed that in future all appointments to the Tribunal be made only after effective consultation with the Chief Justice of the State. Special Leave Petition filed against the judgment was dismissed by this Court. The Government thereafter deleted the offending clauses of Section 3(3)(c) and Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was promulgated which culminating in the passing of Act 5 of 2000. Section 3(2) of the Principal At was substituted for the words "a Vice-Chairman", the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)". From now onwards there are two Vice Chairmen instead of one Chairman. In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-section (4-A) was inserted which prescribed the qualification for appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was the same as was earlier in Sub-section 4(b) by deleting the words "or an Administrative". The new Sub-section (4-A) (b) was an addition now added in 1999. This is in pari materia of Section 6 (2)(b) of the Administrative Tribunals Act, 1985 except the words. "Additional Secretary" instead of "Secretary" to the Government of India. Sub-Section (4-A) (b) is the same as the original Section 3(6) except adding the words as"has adequate experience", the words "has, in the opinion of the State Government, adequate experience" have beento Sub-Section (4-A) (b) of Section 3 that the same is not in conformity with the judgment in Sanjai Kumar Srivastava case is unfounded because this sub-section 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 Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed by the High Court in Sanjai Kumar Srivastava case.44. Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has no substance.Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has nofind that the State Legislature was competent to enact the impugned provisions. Further that the provisions enacted are not arbitrary and therefore not violative of Articles 14, 16 or any other provisions of the Constitution. They are not against the basic structure of the Constitution of India either.