- (1.) These appeals and the special leave petition are directed against the judgment of the High court of Madhya Pradesh dated 29/7/1993 whereby the High court has quashed the appointment of Shri R. P. Kapur (appellant in CA No. 5061 of 1993 as Vice-Chairman of the Madhya Pradesh Stateadministrative tribunal (hereinafter referred to as 'the tribunal') and S/shri Sarwan Singh Lamba, Girija Shanker Patel, P. M. Rajwade and Dr Narinder Nath Veermani (appellants in CA No. 5061 of 1993 as members of the tribunal. The tribunal was constituted under the provisions of the Administrative TRIBUNALS Act, 1985 (hereinafter referred to as 'the Act') on 29/7/1988. It consists of the Chairman, the Vice-Chairman and the judicial as well as administrative members. The seat of the tribunal is at Jabalpur and it has benches at Gwalior, Indore and Bhopal. Shri R. P. Kapur was appointed as Vice-Chairman of the tribunal by order dated 28/8/1991 and the four members aforementioned were appointed as the members of the tribunal by order dated 27/5/1991. A writ petition was filed in the High court of Madhya Pradesh challenging the said appointments which has been allowed by the High court by the impugned judgment.
(2.) The Act has been enacted in exercise of the power conferred by clause (1 of Article 323-A of the Constitution which was introduced in the Constitution by the Constitution (Forty-second Amendment) Act, 1976. The said clause empowers Parliament to provide, by law, for adjudication or trial by administrative TRIBUNALS of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts 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 owned or controlled by the government. In sub-clause (d) of clause (2 of Article 323-A, it is provided that a law made under clause (1 may exclude the jurisdiction of all courts, except the jurisdiction of the Supreme court under Article 136, with respect to the disputes or complaints referred to in clause (1. The Act, in Section 28, provides for exclusion of the jurisdiction vested in the High courts under Articles 226 and 227 of the Constitution in respect of service matters specified in Section 28 of the Act.
(3.) The constitutional validity of the various provisions of the Act was considered by a Constitution bench of this court in S. P. Sampath Kumar v. Union of India. It was argued that the exclusion of the jurisdiction vested in the High courts under Articles 226 and 227 of the Constitution in respect of service matters and vesting of such jurisdiction in the Administrative TRIBUNALS constituted under the Act was destructive of the power of judicial review which is a basic and essential feature of the Constitution. While dealing with the said contention Misra, J. (as the learned chief justice then was) , who delivered the main judgment, has observed : "What, however, has to be kept in view is that the tribunal should be a real substitute for the High court not only in form and de jure but in content and de facto. The High courts have been functioning over a century and a quarter and until the Federal court was established under the government of India Act, 1935, used to be the highest courts within their respective jurisdictions subject to an appeal to the Privy council in a limited category of cases. In this long period of about six scores of years, the High courts have played their role effectively, efficiently as also satisfactorily. The litigant in this country has seasoned himself to look up to the High court as the unfailing protector of his person, property and honour. The institution has served its purpose very well and the common man has thus come to repose great confidence therein. Disciplined, independent and trained judges well versed in law and working with all openness in an unattached and objective manner have ensured dispensation of justice over the years. Aggrieved people approach the court the social mechanism to act as the arbiter not under legal obligation but under the belief and faith that justice shall be done to them and the State's authorities would implement the decision of the court. It is, therefore, of paramount importance that the substitute institution the tribunal must be a worthy successor of the High court in all respects. " Similarly Bhagwati, C. J. has stated : "Consequently, the impugned Act excluding the jurisdiction of the High court under Articles 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative tribunal can pass the test of constitutionality as being within the ambit and coverage of clause (2 (d) of Article 323-A, only if it can be shown that the Administrative tribunal set up under the impugned Act is equally efficacious as the High court, so far as the power of judicial review over service matters is concerned. ";