(para 292), Shelat and Grover, JJ. (para 582), Hegde and Mukherjea, JJ. (paras 632 & 661) and Jaganmohan Reddy, J.

(paras 1159 & 1161).] The aspect of judicial review does not find elaborate mention in all the majority judgments. Khanna, J. did, however, squarely address the issue (at para 1529): (SCC p. 818) "... The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution.... As long as some fundamental rights exist and are a part of the Constitution, the power of 34 L.P.A. No.244 of 2024 judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened.... Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions."

(emphasis added)

76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The doctrine of basic structure was evolved in Kesavananda Bharati case [(1973) 4 SCC 225] . However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat and Grover, JJ., Hegde and Mukherjea, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi case [1975 Supp SCC 1] , Chandrachud, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the 35 L.P.A. No.244 of 2024 country. (supra at pp. 751-752). This approach was specifically adopted by Bhagwati, J. in Minerva Mills case [(1980) 3 SCC 625] (at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law."

86. The Hon'ble Apex Court, in the said case, has also considered the propriety of the amendment inserted by virtue of insertion of Article 323A and 323B.

87. The Hon'ble Apex Court, in the caser of L. Chandra Kumar v. Union of India and Others (Supra) has considered that when a Constitution Bench in the case of S.P. Sampath Kumar v. Union of India and Others (Supra) has adopted the theory of alternative institutional mechanisms, it was attempting to remedy an alarming practical situation and the approach selected by it appeared to be most appropriate to meet the exigencies of the time, for ready reference, paragraph 82 needs to be referred herein which reads hereunder as :-

88. The Hon'ble Apex Court in paragraph 99 has been pleased to 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 has been held to be part of the inviolable basic structure of the Constitution. It has further been held that 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 37 L.P.A. No.244 of 2024 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 Courts 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, for ready reference, paragraph 99 is being quoted hereunder as :-

89. It is, thus, evident that the Tribunal created by virtue of enactment of the Administrative Tribunal Act, 1985 can exercise the power conferred under Article 226/227 of the Constitution of India which will be amenable to the High Court to be heard by the Division Bench.

90. Even the constitutional validity of the vires of the statutory provision has also been conferred to be exercised save and except that the Act under which the Tribunal has been created itself is under challenge. It means that the 39 L.P.A. No.244 of 2024 Tribunal has been given the power to exercise the power conferred under Article 226 of the Constitution of India as has been conferred by the Constitution to be exercised by the High Court.

91. However, if the judgment rendered in the case of L. Chandra Kumar v. Union of India and Others (Supra) will be taken into consideration in entirety, the High Court has been conferred with the power to judicially review the decision passed by the Central Administrative Tribunal for the purpose of maintaining the basic structure of the Constitution of India that in each State there will be one High Court, meaning thereby, the power which is to be exercised under Article 226 of the Constitution of India is only by the High Courts but the Hon'ble Apex Court taking into consideration the burden which is to be put upon the High Courts if the scrutiny of the order passed by the Tribunal will not be done by exercising the power of judicial review, having no power of administrative review and, as such, in order to reduce the load, such decision has been taken by the Hon'ble Apex Court in the case of L. Chandra Kumar v. Union of India and Others (Supra) by making the Central Administrative Tribunal as a court of first instance.

40 L.P.A. No.244 of 2024

92. It needs to refer herein that there is difference in between the Court of first instance and the forum available in the statute by way of alternative remedy.

93. The Court of first instance means that the said court, depending upon the nature of case to be entertained, will have its original jurisdiction while on the other hand, the alternative forum as provided under the statute is also the original adjudicatory forum but in case of availability of alternative forum under the statute, there is no embargo for the High Court not to exercise the power conferred under Article 226 of the Constitution of India, rather, the High Court can exercise the power conferred under Article 226 of the Constitution of India since the High Court is having the self-imposed restriction and depending upon the situation or availability of the conditions, the High Court can exercise the jurisdiction conferred under Article 226 of the Constitution of India as has been dealt with by the Hon'ble Apex Court in the case of Maharashtra Chess Association v. Union of India and Others reported in (2020) 13 SCC 285, wherein, as under paragraphs 19, 20 and 22, has held as under:-

22. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors."

94. The Hon'ble Apex Court in the case of M/s Godrej Sara Lee Ltd. v. The Excise and Taxation Officer-cum- Assessing Authority & Ors. reported in 2023 1 Supreme 257 wherein, as under paragraph 4, has held as under:-

is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper."

95. But, the said principle will not be applicable if the matter pertains to the Administrative Tribunal Act, 1985 , rather, the Tribunal being the Court of first instance and as has been held in paragraph 99 of L. Chandra Kumar v. Union of India and Others (Supra), all the matters pertaining to the service disputes or concerning the service disputes is to be filed before the Tribunal by way of first instance and in such circumstances, the fact about the principle of self-imposed restriction will not be applicable, 44 L.P.A. No.244 of 2024 rather, the principle of embargo in the High Court will be applicable in view of the fact that the Tribunal is also having the constitutional status by carving out the court of first instance by judicial pronouncement of the Hon'ble Apex Court.

96. Further, the Tribunal has also been conferred with the power to decide the question of vires of the statutory legislation.

97. The Hon'ble Apex Court, in view thereof, has laid down at para 99 that it will not be open for the litigants to directly approach the Hon'ble Apex Court even in cases where they question the "vires of statutory legislation".

98. This Court deems it fit and proper to refer the various statutory provision in order to appreciate the argument advanced on behalf of the parties, the relevant is Section 14 of the Administrative Tribunal Act, 1985 which reads hereunder as :-

(b) all service matters concerning-- (i) a member of any All-India Service; or

(ii) a person [not being a member of an All-India Service or a person referred to in clause

(c)] appointed to any civil service of the Union or any civil post under the Union; or

(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation 3 [or society] owned or controlled by the Government; (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.

[Explanation.--For the removal of doubts, it is hereby declared that references to "Union" in this sub-section shall be construed as including references also to a Union territory.] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controlled by Government, not being a local or other authority 46 L.P.A. No.244 of 2024 or corporation [or society] controlled or owned by a State Government:

99. This Court, after going through the provision as contained under Section 14 of the Act, of 1985, needs to refer herein the definition of "application", "service matters"

100. The "application" means, as defined under Section 3(b) , that an application made under Section 19 .

101. The "service matters" as defined under Section 2(q) means in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects-- (i) remuneration (including allowances), pension and other retirement benefits; (ii) 48 L.P.A. No.244 of 2024 tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever.

102. The Section 3(q)(v) is the issue of consideration in the present case wherein it has been stipulated that any other matter whatsoever which does imply that otherwise the issue as referred in 3(q) (i) or 3(q)(ii), 3(q)(iii) and 3(q)(iv), all other matters of any nature will be considered to be the "service matters".

103. The Section 3(r) contains the definition of "service rules as to redressal of grievances", which means in relation to any matter, means the rules, regulations, orders or other instruments or arrangements as in force for the time being with respect to redressal, otherwise than under this Act, of any grievances in relation to such matters.

104. The Section 19 contains the applications to be filed to the Tribunal if a person is aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.

105. As per the explanation to Section 19 - For the purposes of this sub-section, "order" means an order made-- (a) by the Government or a local or other authority within the territory of India or under the control of the 49 L.P.A. No.244 of 2024 Government of India or by any corporation or society owned or controlled by the Government; or (b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation or society referred to in clause (a). The Section 19 reads hereunder as :-

106. Now adverting to the facts of the present case, it is evident from the order passed by the Election Commission of India dated 06.12.2021 can be considered to be a service dispute within the meaning of the definition of "service matters" as per the definition contained under Section 3(q) .

107. The Section 14 provides that the service matter is "recruitment and matters concerning recruitment", to any All-India Service as also all service matters concerning a member of All India Service. Further, all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b).

108. It needs to refer herein that the respondent - writ petitioner is a member of All India Service holding the post during the relevant time as the Deputy Commissioner, Deoghar, an IAS Officer.

109. The "service matter" as has been defined in respect to any other matter whatsoever also including the remuneration, (including allowances), pension and other 51 L.P.A. No.244 of 2024 retirement benefits, tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation, leave of any kind and disciplinary matters.

110. The stipulation made under 3(q)(v) is having the wider scope and any other matter whatsoever of a member of All India Service or as per the requirement as stipulated under Section 14 of the Act, 1985 concerning a member of an All India Service or a person appointed to any civil service of the Union or any civil post under the Union or a civilian not being a member of an All-India Service or a person referred to in clause (c) appointed to any defence services or a post connected with defence and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation.

111. Although, the impugned order is a recommendation made by the Election Commission of India with respect to the conduct of the respondent - writ petitioner, after the election having been notified but such recommendation has been made after conclusion of the process of election but the conduct of the petitioner has been considered to be not in accordance with law by the Election Commission of 52 L.P.A. No.244 of 2024 India in exercise of power conferred under Section 28A of the Representation of People Act, 1951.

112. The provision as contained under Section 28A of the Representation of People Act, 1951 since confers power upon Election Commission of India after the notification of the election and till the conclusion of the election to have the control over all the public servant posted in the area where the election has been notified which means that the Election Commission of India will have all the powers to put the things under control and even by exercising the power to deal with the concerned public servant under the Conduct Rules, meaning thereby, the Election Commission of India can also exercise the power under the relevant Conduct Rules during the course of election.

113. However, here it is not the case that the Election Commission has exercised such power but due recommendation was made to the State Government to initiate a proceeding.

114. The proceeding will ultimately lead to the decision to be taken by the State where the cadre of the respondent

-writ petitioner has been allocated. However, the relevant rule which will be applicable is the Central Civil Services (Classification, Control and Appeal) Rules, 1965 to deal with the conduct of the petitioner by initiating appropriate proceeding as per the rule contained therein. 53 L.P.A. No.244 of 2024

115. It is, thus, evident that on the basis of the said recommendation, the State is to initiate the proceeding under the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The moment the disciplinary proceeding will be initiated acting upon the recommendation of the Election Commission of India, there might be two possibilities that the respondent - writ petitioner might be exonerated on conclusion of the proceeding or there will be chance of punishment.

116. This Court, therefore, is of the view that the recommendation which has been made by the Election Commission of India will ultimately lead to initiation of the departmental proceeding under the relevant Conduct Rules, i.e., Central Civil Services (Classification, Control and Appeal) Rules, 1965, and in such circumstances it will be said to be the service matter under the fold of any other matter whatsoever.

117. At this juncture the import of section 14 of The Administrative Tribunals Act, 1985 is required to be discussed, wherein the Jurisdiction, powers and authority of the Central Administrative Tribunal has been stipulated.

118. A bare perusal of aforesaid provision makes it crystal clear that all service matters concerning to not only All-India Service but also to any civil service of the Union or to any civil post under the Union, fall within the 54 L.P.A. No.244 of 2024 jurisdiction, power and authority of the Central Administrative Tribunal.

119. Further, at this juncture, it would be just and proper to discuss the power of the Election Commission (respondent no.2/appellant) which has been enshrined in the constitution.

120. As per the constitutional mandate Article 324(5) stipulates that the president or the Governor of the state, shall, when requested by the Election commission; make available such staffs may be necessary for the discharge of the functions as per the constitutional mandate conferred on the Election Commission.

121. ln pursuance of the above constitutional provisions, a well-defined structure of electoral machinery has been provided in the election laws, contained in part II(A) (sec.13A to 13CC) of Representation of the People Act, 1950 and corresponding provisions given in part IV (Scc.20 to 29) of Representation of the People Act, 1951 .

122. For ready reference the section 13CC of the Representation of the People Act, 1950 is being quoted as under:-

123. A similar provision is contained in section 28 A of the Representation of the People Act,195l , which is also being quoted as under:-

124. From bare perusal of the aforesaid section it is evident that the returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of 56 L.P.A. No.244 of 2024 such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.

125. ln view of Section 28A of l95l Act, all the State (Govt. officials who have been involved in elections in any capacity, also shall deemed to be on deputation to the Election Commission and they are thus by law, officers of the Commission being on deputation to it and are subject to its control, superintendence and discipline and are answerable to the commission.

126. Now this court is adverting to the fact of the instant case wherefrom it is evident that the petitioner was posted as Deputy Commissioner, Deoghar during bye-election of Madhupur Legislative Assembly Constituency held in the month of April, 2021. The petitioner being the Deputy Commissioner-cum-District Election Officer informed the Chief Electoral Officer, Jharkhand vide letter dated 15.04.2021 citing various incidents of violating Model Code of Conduct by Dr. Nishikant Dubey, Member of Parliament from Godda Loksabha Constituency during the election campaign of the said by-election.

127. Further, a complaint dated 19.04.2021 was received by the ECI from Dr. Nishikant Dubey, M.P., Godda via email wherein it was alleged that the petitioner being the DEO, Deoghar and the Superintendent of Police, Deoghar 57 L.P.A. No.244 of 2024 were working as agents of a political party during the aforesaid by-election thereafter, the ECI removed the petitioner from the position of DEO-cum-DC, Deoghar vide letter dated 26.04. 2021.The process of election was completed on 02.05.2021.

128. The petitioner was again posted as D.C, Deoghar vide notification dated 3.05.2021 thereafter petitioner vide letter dated 28.05.2021 and few other letters called for a report regarding the action taken against Dr. Nishikant Dubey, MP for violating Model Code of Conduct during the said by-election pursuant to the said letter dated 15.04.2021 and vide letter dated 23.10.2021 the writ petitioner directed the concerned authorities to take legal action against Dr. Nishikant Dubey.

129. The Chief Electoral Officer, Jharkhand vide letter no.2472 dated 26.10.2021 informed the petitioner that his complaint/letter dated 15.04.2021 was already sent to the ECI vide letter dated 18.04.2021 for necessary action.

130. The ECI also received a report from Chief Electoral Officer (CEO), Jharkhand on 26.10.2021 mentioning inter alia that five F.I.Rs. had been lodged against Dr. Nishikant Dubey for violating Model Code of Conduct during the by- election.

131. It was further reported by the CEO, Jharkhand that neither any intimation was received from the petitioner 58 L.P.A. No.244 of 2024 before/after lodging of the FIRs. nor any direction was issued from the CEO office in this regard. The ECI vide letter dated 3.11.2021 addressed to the CEO, Jharkhand, Ranchi called explanation from the petitioner on various points.

132. The petitioner replied the letter of ECI vide letter no. 1131 dated 11.11.2021 but, the said reply having not been found satisfactory by the ECI and thereafter, ECI issued the directions as contained in the impugned letter dated 6.12.2021 by which State Government has been directed to initiate disciplinary proceeding for major penalty against the petitioner by issuing memo of charge against him with further direction to immediately remove him from the post of Deputy Commissioner-Cum-District Election Officer, Deoghar and not to post him as DC/DEO or on any other election duty without prior permission of the ECI.

133. The writ petitioner being aggrieved with the Memo dated 06.12.2021 has preferred the writ petition being W.P.(S) No. 5716 of 2022 before this Court.

134. On the basis of the aforesaid discussion this Court to examine nothing more except the fact whether there is jurisdiction, power and authority to the Central Administrative Tribunal in service matter of petitioners in the instant case, as per the provisions of section 14 of The Administrative Tribunals Act, 1985 (for short 'the Act') 59 L.P.A. No.244 of 2024

135. In L. Chandra Kumar v. Union of India and others AIR 1997 SC 1127 at paragraph 99, the Hon'ble Supreme Court has held that the Tribunals constituted under the Administrative Tribunals Act, 1985 act like courts to 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 Courts even in cases where they question the vires of statutory legislation (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.

136. As discussed above, the object of forming the Tribunal is to minimise the work load of the High Courts in deciding the matters under Article 226 of the Constitution and that way, such Tribunal was created as Court of first instance. This is the true import of L. Chandra Kumar's case (supra).

137. We cannot be forgetful that the question of alternative remedy and the question of the Court of first instance, are the two different aspects all together.

138. No doubt, the writ Court in a particular situation, can ignore a question of alternative remedy and can start hearing of a matter on merits instead of sending the same back for exhausting the alternative remedy. 60 L.P.A. No.244 of 2024

139. But, when the Central Administrative Tribunal is created as a Court of first instance and all decisions of such Tribunal are subjected to scrutiny by a Division Bench of the High Court, this question cannot be ignored. If this Division Bench of the High Court hearing the writ matters regarding service passes an order ignoring the existence of the Central Administrative Tribunal and as a Court of first instance, it will become a jurisdictional error.

140. In L. Chandra Kumar 's case (supra) it has been categorically ruled by the Hon'ble Apex Court that the Central Administrative Tribunal is a Court of first instance i.e. first hearing will be made by the Tribunal and thereafter against the decision of the Tribunal, it will be heard by the Division Bench of the High Court.

141. In this way, the Constitution Bench of Hon'ble Supreme Court has propounded a principle of universal application to all the High Courts that the matters arising out of the decisions of the Tribunal, will be cognizable, exclusively by the Division Bench of the High Court under Article 226 of the Constitution and the Tribunals will hear the matters as a Court of first instance.

142. Therefore, if the High Court, under Article 226 of the Constitution, ignores this aspect and holds that the alternative forum of adjudication can be ignored and even in such matters High Court can be directly approached, it 61 L.P.A. No.244 of 2024 would lead to an anomalous position and would frustrate the objective sought to be achieved by creating the Tribunal as a Court of first instance.

143. Contention of the writ Petitioner that the jurisdiction of the High Court under Article 226 is a part of inviolable basic structure and framework of our Constitution is a proposition which cannot be disputed. However, in view of the binding dictum of the Constitution Bench of the Supreme Court in L. Chandra Kumar (supra) in the context of remedy before the Central Administrative Tribunal, the writ petition cannot be entertained.

144. The presumption on which the arguments of the petitioner are premised is that approaching the Tribunal is an alternative remedy and therefore if the remedy is not efficacious, a writ can be filed.

145. This argument cannot be sustained in view of the observations of the Supreme Court in L. Chandra Kumar (supra) that the remedy to approach the Tribunal in service disputes with respect to employees who are amenable to its jurisdiction is not an alternative remedy but is the only remedy, the Tribunal being a Court of first instance. Employees aggrieved by the decision of the Tribunal can certainly approach the respective High Court having territorial jurisdiction over the matter in its power of judicial review over the decisions of the Tribunal. 62 L.P.A. No.244 of 2024

146. Further by virtue of section 14 of the Act 1985 itself, person aggrieved, can directly invoke the jurisdiction of the Central Administrative Tribunal In the instant case, although the petitioner has not invoked the jurisdiction of the Tribunal, which is not only the alternative forum of adjudication but also is a Court of first instance.

147. This Court, in such circumstances, is now proceeding to examine the argument advanced on behalf of the parties.

148. Mr. Rajeev Sinha, learned counsel appearing for the Election Commission of India has raised the jurisdictional issue of this High Court wherein the order of recommendation dated 06.12.2021 has been challenged on the ground that such recommendation will come under the fold of any other matter whatsoever.

149. While on the other hand, Mr. Indrajit Sinha, learned counsel appearing for the respondent - writ petitioner, has submitted that since the order dated 06.12.2021 is merely a recommendation which can be accepted or which cannot be accepted also by the State and, as such, it will not come under the fold of any other matter whatsoever and, therefore, the writ petition will lie before the High Court.

150. This Court, on rival submission advanced on behalf of the parties, as above, is of the view that what has been argued by Mr. Indrajit Sinha, learned counsel for the 63 L.P.A. No.244 of 2024 respondent - writ petitioner, that the recommendation so made by the Election Commission of India is not binding.

151. If that be so, then why the writ petition has been filed since, according to him, the said recommendation is yet to be accepted and in such circumstances, the writ petition will be said to be premature.

152. The writ petition since has been filed on the basis that the respondent-writ petitioner has considered himself to be aggrieved party after issuance of the order dated 06.12.2021 making recommendation to initiate departmental proceeding which itself and impliedly means that the recommendation is not optional upon the State, rather, it binds the State and that is the mandate also if the provision of Section 28A of the Representation of People Act, 1951 will be taken into consideration wherein it has been provided that if any irregularity in discharge of service has been conducted either by the employee working in the State Government or the Central Government, the Election Commission will have power to make such recommendation.

153. However, herein such recommendation has been made on conclusion of the election but the conduct of the petitioner which is the basis of making recommendation is in course of the period of election, i.e., after notification of the election and before conclusion of the process of election 64 L.P.A. No.244 of 2024 and, as such, this Court is of the view that such recommendation which has been made by the Election Commission of India dated 06.12.2021 cannot be said to be optional, rather, it is mandatorily to be accepted by the State otherwise the constitutional spirit of establishment of Election Commission of India will be frustrated and if the same will be frustrated, the same will be nothing but hitting the basic structure of the Constitution of India, which, as per the Kesavananda Bharati v. State of Kerala (Supra) case, is not permissible.

154. This Court, therefore, is of the view that the recommendation as made by the Election Commission is the basis of initiation of the service dispute and, as such, it will come under the fold of "any other matter whatsoever"

155. Accordingly, the issues are answered.

156. Having answered the issue, this Court, based upon the aforesaid discussion made hereinabove, is of the view that this Court is having no jurisdiction to act as a Court of first instance giving go-bye to the Court of first instance which is the Central Administrative Tribunal.

157. This Court, having discussed and coming across the order passed by the learned Single Judge, wherein the learned Single Judge has observed that the impugned order dated 06.12.2021 has been passed in purported exercise of the power under section 20-A of the Act, 1951 and not under any service rules governing the terms and conditions of service of the petitioner, thus, the present writ petition is maintainable, is of the view that the same suffers from an error and needs to be interfered with.

158. Therefore, the order passed by the learned Single Judge dated 26.02.2024 in W.P.(S) No.5716 of 2022 is hereby quashed and set aside.

159. In the result, the instant appeal stands allowed.

160. The respondent-writ petitioner is at liberty to approach the Tribunal.

161. However, passing of this Order will not affect the petitioner's right, if any, to approach the Central Administrative Tribunal in accordance with law, if so advised.

66 L.P.A. No.244 of 2024

162. Pending interlocutory application, if any, also stands disposed of.