- (1.) These Writ Petitions challenge the constitutional validity of Cl. (5) of Art. 371-D, of the Constitution. Though originally when the writ petitions were filed, the constitutional validity of Cl. (3) of Art. 371-D was also assailed, this challenge was not pressed on behalf of the petitioners and the arguments were confined only to the challenge against the constitutional validity of Cl. (5) of that Article. But in order to understand the true scope and ambit of the controversy raised before us in regard to the constitutional validity of Cl. (5), it is necessary for us to refer also to the provision enacted in Cl. (3) of Art. 371-D. Cls. (3) and (5) of Art. 371-D read as follows :- "The President may, by order, provide for the Constitution of an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers and authority including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty-Second Amendment) Act, 1973, was exercisable by any Court (other than the Supreme Court) or by any Tribunal or other authority as may be specified in the order with respect to the following matters, namely :- (A) to (C) ..................................... (5) The order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier; Provided that the State Government may, by special order made in writing for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be." Article 371-D was introduced in the Constitution by the Constitution (Thirty-second Amendment) Act, 1973 which came into force with effect from 1st July 1974. The genesis of this Amendment made in the Constitution by introduction of Art. 371-D lay in the formation of the State of Andhra Pradesh on 1st November, 1956. The State of Andhra Pradesh was constituted of portions of territories drawn from the erstwhile States of Andhra and Hyderabad. The territories from the erstwhile State of Hyderabad which were included in the State of Andhra Pradesh commonly known as the Telengna area. Before the territories of the Telengana area were amalgamated with the other territories to form the State of Andhra Pradesh, there was a set of rules known as the Mulki Rules in operation in the Telengana area under the regime of the Nizam of Hyderabad and these rules provided for residential clarification for all public employment. Soon after the formation of the State of Andhra Pradesh Parliament enacted Public Employment (Requirement as to Residence) Act, 1957 making special provision for requirement as to residence for public employment and brought it into force with effect from 21st March, 1957. The constitutional validity of this Act was challenged by some of the persons employed in the ministerial services of the Andhra Pradesh Government in Narasimha Rao v. State of Andhra Pradesh, (1970) 1 SCR 115: (AIR 1970 SC 422) and this Court by its judgment dated 28th March, 1969 held S. 3 of this Act in so far as it related to the Telengana are ultra vires Cl. (3), Art. 16 of the Constitution. This Court, however, left open the question whether in view of the constitutional invalidity of this Act the Mulki Rules existing in the Telengana area could be said to be continuing in force by virtue of Art. 35(b) of the Constitution. This question, however, came up for consideration before this Court in Director of Industries and Commerce v. V. V. Reddy, (1973) 2 SCR 562 : (AIR 1973 SC 827). This Court held that the Mulki Rules continued in force even after the formation of the State of Andhra Pradesh under Art. 35(b) of the Constitution. Meanwhile, however, there were two widespread agitations one in the Telengana area and the other in the Andhra region of the State between 1969 and 1972 creating a political turmoil and virtually the paralysing administration of the State. The political leaders of the State were considerably exercised over this situation and they made a concerted effort to find an endeavouring solution to this problem in order to secure full emotional integration of the people of the State. On 21st September 1973 a Six-Point Formula was evolved by the political leaders to provide for a uniform approach for promoting accelerated development of the backward areas of 'the State so as to secure balanced development of the State as a whole and providing equitable opportunities to different areas of the State in the matter of education and employment in public services. The implementation of this Six-Point Formula envisaged inter alia amendment of the Constitution conferring power on the President of India in order to secure smooth implementation of the measures based upon the Six-Point Formula without giving rise to litigation and consequent uncertainty. It was in pursuance of this requirement that Art. 371 D was introduced in the Constitution in order to give effect to the Six-Point Formula. One of the measures contemplated in the Six-Point Formula related to the setting up of an Administrative Tribunal with jurisdiction to deal with grievances relating to public services and Cls. (3) to (8) of Art. 371-D gave effect to this proposal and provided for the establishment of an Administrative Tribunal and its constitution and powers. Pursuant to Cl. (3) of Art. 371-D, the President of India made an order on 19th May 1975 constituting an Administrative Tribunal for the State of Andhra Pradesh with jurisdiction to deal with the service matters specified in that order.
(2.) No constitutional objection to the validity of Cl. (3) of Art. 371-D could possibly he taken since we have already held in S. P. Sampath Kumar v. Union of India, decided on 9th December, 1986 (reported in AIR 1987 SC 386) that judicial review is a basic and essential feature of the Constitution and it cannot be-abrogated without affecting the basic structure of the Constitution, but Parliament can certainly without in any way violating the basic structure doctrine amend the Constitution so as to set up an effective alternative institutional mechanism or arrangement for judicial review. One of us (Bhagwati, C. J.) pointed out in the judgment delivered in that case that : "the basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is not less efficacious than the High Court." We summarised the constitutional position in regard to the power of Parliament to amend the Constitution with a view to taking up the jurisdiction of the High Court in the following words : "............if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential condition is fulfilled, namely, that the alternative institutional mechanism or authority set up by the Parliamentary amendment is no less effective than the High Court." Parliament was therefore competent by enacting Cl. (3) of Art. 371-D to provide for setting up an Administrative Tribunal and excluding the jurisdiction of the High Court in regard to the matters coming within the jurisdiction of the Administrative Tribunal, so long as the Administrative Tribunal was not less effective or efficacious than the High Court in so far as the power of judicial review is concerned. The constitutional validity of Cl. (3) of Art. 371-D could not therefore be successfuly assailed on the ground that it excluded the jurisdiction of the High Court in regard to certain specified service matters and vested it in the Administrative Tribunal.
(3.) But the real controversy between the parties centered round the constitutional validity of Cl. (5) of Art. 371-D. This clause provides that the order of the Administrative Tribunal finally disposing of the case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier. Standing by itself, this clause could not be regarded as in any way rendering the Administrative Tribunal less efficacious than the High Court because it would not be an extraordinary or unusual provision to lay down a period of time during which an order made by a tribunal may not be given effect to presumably in order to enable the State Government either to make arrangements for implementing the order of the tribunal or to prefer an appeal against it. But what really introduces an infirmity in Cl. (5) of Art. 371-D is the provision enacted in the proviso which says that the State Government may by special order made in writing and for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be. The state Government is given the power to modify or annul any order of the Administrative Tribunal before it becomes effective either by confirmation by the State Government or on the expiration of the period of three months from the date of the order. The State Government can at any time before the expiry of three months from the date of the order modify or annul the order unless it has by it prior signification of its will confirmed the order. It will thus be seen that the period of three months from the date of the order is provided in Cl. (5) in order to enable the State Government to decide whether it would confirm the order or modify or annul it. Now almost invariably the State Government would be a party in every service dispute brought before the Administrative Tribunal and the effect of the Proviso to Cl. (5) is that the State Government which is a party to the proceeding before the Administrative Tribunal and which contests the claim of the public servant who comes before the Administrative Tribunal seeking redress of his grievance against the State Government would have the ultimate authority to uphold or reject the determination of the Administrative Tribunal. It would be open to the State Government, after it has lost before the Administrative Tribunal, to set at naught the decision given by the Administrative Tribunal against it. Such a provision is, to say the least, shocking and is clearly subversive of the principles of justice. How can a party to the litigation be given the power to override the decision given by the Tribunal in the litigation, without violating the basic concept of justice It would make a mockery of the entire adjudicative process. Not only is the power conferred on the State Government to modify or annul the decision of the Administrative Tribunal startling and wholly repugnant to our notion of justice but it is also a power which can be abused or misused. It is significant to note that in the last about three years this power has been exercised by the State Government in an inordinately large number of cases and even interim orders made by the Administrative Tribunal have been set at naught by the State Government though no such power is conferred on the State Government under the Proviso to Cl. (5). It is clear on a proper construction of the proviso read with Cl. (5) that it is only an order of the Administrative Tribunal finally disposing of the case which can be modified or annulled by the State Government and not an interim order made by the Administrative Tribunal. But we find from the record that this limitation has been completely brushed aside by the State Government and it would be no exaggeration to say that the State Government has behaved in a most extravagant manner in modifying or annulling orders made by the Administrative Tribunal which were found inconvenient. We may point out that even at the time when Art. 371-D was introduced in the Constitution, Parliament debates show that the Home Minister who piloted the bill did not envisage exercise of this power save in the most exceptional cases. Here, however, we find that this power has been indiscriminately used by the State Government. But that apart, we do think that this power conferred on the State Government is clearly violative of the basic concept of Justice.;