K.C. Agrawal, J. - (1.) The question arising is whether subsequent to November 2, 1985. when the Central Government has established the Central Administrative Tribunal (for short the Tribunal), this Court retains the jurisdiction, power and authority under Article 226 of the Constitution to entertain writ petitions in relation to matters concerning recruitment to any Service or post or service concerning members or any Service or persons appointed to any Service or post, as defined in the Administrative Tribunals Act, 1985 (Central Act 13 of 1985). Section 14 (1) of the Act lays down that, as and from the appointed day, save as otherwise expressly provided in the Act, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court under Article 136 of the Constitution) in relation to matters specified thereunder shall be exercised by the Tribunal, Section 28 (exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution) reads as under:- "On and from tho date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or persons appointed to any Service or post of service matters concerning members of any Service or persons appointed to any Service or post, no Court (Except the Supreme Court under Article 136 of the ConstitutioN.S.all have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."
(2.) In Section 29 (1) of the Act the provision made for transfer of pending cases is to the effect that i "Every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal. Provided that nothing in this Sub-section shall apply to any appeal pending as aforesaid before a High Court or the Supreme Court."
(3.) Tho issue was raised the other day before a Division Bench in the form of preliminary objection in Writ Petition No. 10888 of 1983, M.B. Shukla and others v. Union of India and others, decided on 28th November, 1985 reported in 1986 UPLBBC 317 (DB). The objection was overruled by the Bench. The validity of the Act had not been challenged, but there are observations contained in the judgment pointing out that no amendment could be made which may result in curtailment of power conferred on High Court under Article 226. The view taken is that the power conferred by this Article is extraordinary distinct from that exercisable keeping in view of Article 225 : The Tribunal has not been Conferred with the jurisdiction to issue Writs, referred to in Article 226 and hence there is no exclusion thereof under Section 28 of the Act so far as the High Court is concerned. In the opinion of the learned Judges constituting the Bench, it is not correct to say that after the issuance of the notification under Section 14 of the Act, the High Courts have ceased to have jurisdiction to entertain writ petitions in service matters. It is another thing that the Court may not exercise this power except on constitutional challenge or exceptional circumstances on the principle of self-restraint. Referring to clause (3) of Article 323-A it is observed that the Parliament may have been conferred power to enact a law which may have effect notwithstanding any provision in the Constitution, but the Parliament has not made provision debarring High Courts from entertaining writ petitions. The word 'proceeding' appearing in Section 29 (1), it was held, does not cover a writ petition, and further that : "As writ petition cannot be deemed to be included in the word 'proceeding' the omission to mention it in proviso cannot by indirect process or reasoning lead to conclusion that it shall be deemed to be included in it".;