M.R. SHAH, J.
1.Leave granted
2.Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.10.2021 passed by the High Court of Uttarakhand at Nainital in WPSB No. 407/2020, by which, the High Court has allowed the said writ petition and has set aside order dated 04.12.2020 passed by the Chairman, Central Administrative Tribunal (CAT), Principal Bench, New Delhi by which the learned Principal Bench of the Tribunal transferred Original Application (OA) Natarajan from the Allahabad Bench (Nainital Circuit Bench) to the Principal Bench, New Delhi, the Union of India has preferred the present appeal.
3.The facts leading to the present appeal in a nutshell are
under:
3.1 That the contesting respondent No. 1 herein – original writ
petitioner filed original application (OA) before the Nainital
Circuit Bench, CAT with the following prayers:
"a. To call for records and issue appropriate
direction/order for quashing present system of 360
degree appraisal being used in empanelment of officers at
the level of Joint Secretary and above in Central
Government, being arbitrary, unreasonable, in violation of
principles of natural justice, being in supersession of
statutory rules and finding of Parliamentary Committee
Report.
b. To restrain the respondents from filling up the
posts of Joint Secretary/equivalent to Joint Secretary
rank and also posts above in rank of Joint Secretary in
Central Government, through contract system, in future. c. To set aside all those provisions of present
Central Staffing Scheme, governing constitution of and
evaluation by Expert Panel for the purpose of
empanelment at Joint Secretary level in Government,
issued vide O.M. 36/77/94-EO Central (SM-1)" date
05.01.1996 and modified subsequently, being arbitrary,
unreasonable, violative of principles of natural justice and
in violation of basic federal structure enshrined into the
Constitution.
d. To direct the respondents to remove huge
artificial time lag created between empanelment of officers
of different services and between same levels in Central
Government and State Government, in case of All India
Service Officers.
e. To direct the respondents to consider the case of
Applicant for empanelment to the level of Joint Secretary
in view of fulfillment of all the eligibility criteria regarding
completion of requisite number of years of service and
elevation into Level-14 of Pay Matrix; or alternatively,
issue directions to respondents not to reject
abovementioned case of Applicant, on any
ulterior/subjective/oblique consideration, and decide the
same objectively, on merit, facts and in accordance with
law only.
f. To order and appropriate investigation so as to fix
responsibility into various irregularities into recruitment
process of Joint Secretary rank officers through contract
system, taken place in the year 2019, in view of
irregularities brought out in para 3.5 of factual matrix."
3.2 That thereafter, the Union of India filed transfer
application under Section 25 of the Administrative
Tribunals Act, 1985 (Act, 1985) seeking transfer of OA filed
by the writ petitioner from Nainital Circuit Bench to the
Principal Bench, New Delhi. That by order dated
04.12.2020, the Chairman of the Tribunal, Principal
Bench, New Delhi, ordered transfer of the said OA to the
Principal Bench, New Delhi by observing that:
"A perusal of the prayer in the O.A. discloses that the very procedure for empanelment for the post of Joint Secretary is sought to be assailed. The matters of this nature have their own impact on the very functioning of the Central Government. It is felt that the O.A. deserves to be heard by Principal Bench. Since the hearings are taking place through video conferencing, no prejudice are taking place through video conferencing, no prejudice would be caused to the respondent in the P.T., i.e. applicant in the O.A. also'”
3.3 The order dated 04.12.2020 transferring OA No.
331/109/2020 from Nainital Circuit Bench to the
Principal Bench, New Delhi came to be challenged by the
original writ petitioner – original applicant before the High
Court of Uttarakhand. It was submitted on behalf of the
original writ petitioner before the High Court that what
was challenged in the OA was the recruitment selection
process for the post of Joint Secretary. He was also
aggrieved of the fact that although eligible candidates were
available for the post of Joint Secretary, within the All
India Services, a policy decision has been taken by the
Central Government that the post of Joint Secretary would
be filled by hiring persons on contractual basis for a period
of three to five years and the said policy decision would
adversely affect the rights of the persons who are in the
All-India Services. It was also submitted on behalf of the
original writ petitioner – original applicant that the ground
on which the Union of India sought transfer of OA that,
since the original writ petitioner has challenged a policy
decision and since the policy decision has “nationwide
repercussion”, therefore, the OA deserves to be transferred
to the Principal Bench, New Delhi, is untenable. It was
submitted that if the Parliament were of the opinion that
issues of “national importance” need to be decided only by
the Principal Bench, a provision would have existed in the
Administrative Tribunals Act, debarring other Benches of
CAT from hearing issues of “national importance” or
having “nationwide repercussion.” However, there is no
such bar contained in the Administrative Tribunals Act,
preventing other Benches of CAT, which are considered to
be equivalent to the Principal Bench, from hearing or from
examining a policy decision of the Central Government. It
was submitted that all the Benches constituted under
Section 5 of the Act, 1985 would have equal jurisdiction.
3.4 The petition was opposed on behalf of the Union of India.
The Union of India challenged the territorial jurisdiction of
the High Court of Uttarakhand to entertain the writ
petition. It was submitted on behalf of the Union of India
that since all the relevant files and papers are at New Delhi
the case should be transferred to New Delhi. It was also
the case on behalf of the Union of India that since no
cause of action had arisen in Uttarakhand, the Nainital
Circuit Bench does not have the territorial jurisdiction to
hear the petition. It was submitted that as the policy was
framed in New Delhi, the names were invited for selection
in New Delhi, the selection process begins and ends in New
Delhi, therefore, only the Principal Bench at New Delhi has
territorial jurisdiction to hear the OA. It was also
submitted that since the relevant files are lying in New
Delhi and since the relevant witnesses would be available
in New Delhi, it would be in the interest of justice to
transfer the case to the Principal Bench, rather than
keeping the case pending before the Nainital Circuit
Bench. It was lastly submitted that since the decision with
regard to a policy decision of the Central Government
would have nationwide repercussions, therefore, only the
Principal Bench would be the suitable bench for deciding
the validity of the policy decision. Therefore, it was
submitted that the Chairman has rightly transferred the
OA from the Nainital Circuit Bench to the Principal Bench
in exercise of powers under Section 25 of the Act, 1985. In
the rejoinder, it was the case on behalf of the original writ
petitioner as regards the cause of action, that part cause of
action has arisen in Uttarakhand as the names of the
eligible candidates for the post of Joint Secretary are called
from the States; thus, the names are recommended by the
States; the service records of the eligible candidates are
with the State and the service records are forwarded by the
State. Moreover, as the decision to appoint the Joint
Secretaries on contractual basis adversely affects his right
of consideration for the post of Joint Secretary, hence, the
impact of the policy decision deprives his right in the State
of Uttarakhand and therefore, a part of cause of action has
arisen in the State of Uttarakhand and therefore, the
Nainital Circuit Bench has jurisdiction to hear the OA.
3.5 That thereafter, after considering the relevant provisions of
the Act, 1985 and following the decision of this Court in
the case of L. Chandra Kumar Vs. Union of India (1997)
3 SCC 261, the High Court has allowed the writ petition
and has set aside the order dated 04.12.2020 passed by
the Chairman, Central Administrative Tribunal, New Delhi
by observing that there is no requirement of law that a
policy decision must, necessarily, be challenged before the
Principal Bench and that there is no provision under the
Act, 1985 that a challenge to a policy decision can be
heard only by the Principal Bench.
3.6 Feeling aggrieved with the impugned judgment and order
passed by the High Court, Union of India has preferred the
present appeal.
4.Shri Tushar Mehta, learned Solicitor General appearing on behalf of the Union of India has vehemently submitted that as such the High Court of Uttarakhand has erred in entertaining the writ petition. It is submitted that as such no cause of action has arisen within the territory of Uttarakhand High Court, the Uttarakhand High Court lacked the territorial jurisdiction to entertain the writ petition against the order passed by the Chairman, Central Administrative Tribunal, Principal Bench, New Delhi. Heavy reliance is placed on the decision of this Court in the case of L. Chandra Kumar (supra) as well as on the decision of this Court in the case of Union of India Vs. Alapan Bandyopadhyay (2022) 3 SCC 133. 4.1 In the case of Alapan Bandyopadhyay (supra) after considering and following the decision of this Court in the case of L. Chandra Kumar (supra), it is specifically observed and held that “all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.” It is submitted that before this Court an identification question arises. That before this Court in the case of Alapan Bandyopadhyay (supra) the High Court at Calcutta set aside the order passed by the Principal Bench, New Delhi transferring the OA and its files from the Calcutta Bench to the Principal Bench (New Delhi). That it is observed and held by this Court that the Calcutta High Court lacked territorial jurisdiction. Shri Tushar Mehta, learned Solicitor General heavily relied upon paragraphs 15 to 17. 4.2 Making the above submissions and relying upon the above decisions it is vehemently submitted by Shri Tushar Mehta, learned Solicitor General that the impugned judgment and order passed by the High Court of Uttarakhand is wholly without jurisdiction. 4.3 Shri Tushar Mehta, learned Solicitor General has made elaborate submissions on merits also, namely, on the powers of the Chairman conferred under Section 25 of the Act, 1985.
5.Shri Shyam Divan, learned Senior Advocate has appeared
on behalf of the original writ petitioner. On the
submissions made on behalf of the Union of India that the
High Court of Uttarakhand would have no jurisdiction to
entertain the writ petition challenging the decision of the
Chairman, CAT, to transfer the OA from Nainital Circuit
Bench to Principal Bench, New Delhi, it is vehemently
submitted by Shri Shyam Divan, learned Senior Advocate
that under Article 226 (2) of the Constitution of India any
High Court can exercise jurisdiction under Article 226
provided a part cause of action has arisen in its
jurisdiction irrespective of whether the authority or
government which passed the order is not located within
the jurisdiction of the said High Court. Thus, there can be
no doubt that the High Court can exercise the powers
under Article 226, if the cause of action, wholly or in part,
arises in the territorial jurisdiction of that High Court.
5.1 It is submitted that the decision of this Court in the case of
L. Chandra Kumar (supra) while recognising the
jurisdiction of a High Court under whose jurisdiction the
Tribunal falls, may not be read to be limiting the
jurisdiction of other High Court under Article 226(2), if
otherwise available. It is submitted that the decision of this
Court does not confer exclusive jurisdiction on the High
Court under whose jurisdiction the Tribunal falls. It is
submitted that the judgment ought not to be read as
constricting the scope of Article 226(2). Therefore, to this
extent the decision of this Court in the case of Alapan
Bandyopadhyay (supra) may require reconsideration.
5.2 It is further submitted by Shri Shyam Divan, learned
Senior Advocate that under the Constitutional scheme, the
remedies under Article 226 and Article 227 are extremely
valuable remedies available to citizens where they reside or
carry on business or are posted. The scheme does not
require citizens to come exclusively all the way to Delhi to
seek redressal. Thus, limiting the remedy under Article
226 is contrary to the spirit of the Constitution, contrary to
the spirit and principle of access to justice and contrary to
the basic structure of the Constitution which enables
judicial review across the country and not at one
concentrated location.
5.3 It submitted that this Court, by way of a judicial order,
ought not to take away jurisdiction from other high courts
which are otherwise empowered under Article 226(2) to
entertain a Writ Petition against the order of a Tribunal
located in the territory beyond the territorial jurisdiction of
the said high courts. It is further submitted that if such an
interpretation is taken to its logical conclusion, then it
would result in undue hardship and inconvenience to the
employees of the central government itself who are posted
across the country.
5.4 Shri Shyam Divan, learned Senior Advocate has taken us
to the historical background of Article 226 of the
Constitution of India and the development of the law on
the jurisdiction of the High Courts including the statement
of objects and reasons to the Constitution (Fifteenth
Amendment) Act, 1963 and the remarks of the then Law
Minister at the time of introducing the amendment.
5.5 It is submitted that in the subsequent decision of this
Court in the case of Kusum Ingots and Alloys Ltd. Vs.
Union of India and Anr., (2004) 6 SCC 254, which was
after the introduction of Article 226(2), has observed and
held that the High Court would have jurisdiction if a part
of the cause of action arises in its jurisdiction irrespective
of location/residence of the authority. 5.6 It is submitted that this Court in the case of Alchemist
Ltd. and Anr. Vs. State Bank of Sikkim and Ors., (2007)
11 SCC 335, noting the development of law in relation to
the territorial jurisdiction of the High Courts under Article
226 has held that “the legislative history of the
constitutional provisions, therefore, makes it clear that
after 1963, cause of action is relevant and germane and a
writ petition can be instituted in a High Court within the
territorial jurisdiction of which cause of action in whole or
in part arises.”
5.7 It is further submitted that the observations made by this
Court in the case of L. Chandra Kumar (supra) that all
decisions of tribunals would be subject to scrutiny before a
Division Bench of the High Court within whose jurisdiction
the tribunal concerned falls, is not an exclusion of the
jurisdiction of the other high courts which may have
jurisdiction, particularly, under Article 226(2) of the
Constitution of India. It is submitted that therefore, the
judgment of this Court in the case of Alapan
Bandyopadhyay (supra) may require reconsideration.
5.8 In support of his above request, he has made following
submissions:
(i) The Judgement of this Court in the case of Alapan
Bandyopadhyay (supra) arose out of an order passed
by the Chairman, Central Administrative Tribunal
exercising powers under Section 25 of the
Administrative Tribunals Act, 1985 transferring the
O.A. filed by the Respondent therein from the Calcutta
Bench of the Central Administrative Tribunal to the
Principal Bench at New Delhi. The said Transfer Order
was quashed by the Calcutta High Court by allowing
the Writ Petition filed by the Respondent therein.
(ii) The Order of the Calcutta High Court was challenged
by the Union of India on the ground that a challenge
against the order passed in the Transfer Application by
the Central Administrative Tribunal, Principal Bench
at New Delhi, was maintainable only before the High
Court of Delhi as the Principal Bench of the Tribunal
lies within its territorial jurisdiction.
(iii) This Hon'ble Court, referring to paragraph 99 of the
Judgment in L. Chandra Kumar (supra), held that any
decision of the Tribunal can only be subjected to
scrutiny before a Division Bench of a High Court
within whose jurisdiction the Tribunal concerned falls.
Consequently, it was held that the jurisdiction lies
with the High Court of Delhi since the Principal Bench
of the Central Administrative Tribunal is located at
New Delhi.
5.9 It is submitted that the relevant paragraphs from the
judgment of this Hon'ble Court in Alapan Bandyopadhyay
(supra) are reproduced herein below:
“36. In view of the reasoning adopted the Constitution
Bench in L. Chandra Kumar case [L. Chandra
Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC
(L&S) 577] held Section 28 of the Act and the
“exclusion jurisdiction” clauses in all other legislations
enacted under the aegis of Articles 323-A and 323-B,
to the extent they exclude the jurisdiction of the High
Courts under Articles 226/227 and the Supreme
Court under Article 32, of the Constitution, was held
unconstitutional besides holding clause 2(d) of Article
323-A and clause 3(d) of Article 323-B, to the same
extent, as unconstitutional.
37. Further, it was held thus : (L. Chandra Kumar
case [L. Chandra Kumar v. Union of India, (1997) 3
SCC 261 : 1997 SCC (L&S) 577] , SCC p. 311, para 99)
“99. … The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon the Supreme
Court under Article 32 of the Constitution is a part of
the inviolable basic structure of our Constitution.
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 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.”
(emphasis supplied)
38. When once a Constitution Bench of this Court
declared the law that “all decisions of Tribunals
created under Article 323-A and Article 323-B of the
Constitution will be subject to the scrutiny before a
Division Bench of the High Court within whose
jurisdiction the Tribunal concerned falls”, it is
impermissible to make any further construction on the
said issue. The expression “all decisions of these
Tribunals” used by the Constitution Bench will cover
and take within its sweep orders passed on
applications or otherwise in the matter of transfer of
original applications from one Bench of the Tribunal to
another Bench of the Tribunal in exercise of the power
under Section 25 of the Act.
39. In other words, any decision of such a Tribunal,
including the one passed under Section 25 of the Act
could be subjected to scrutiny only before a Division
Bench of a High Court within whose jurisdiction the
Tribunal concerned falls. This unambiguous exposition
of law has to be followed scrupulously while deciding
the jurisdictional High Court for the purpose of
bringing in challenge against an order of transfer of an
original application from one Bench of Tribunal to
another Bench in the invocation of Section 25 of the
Act.
40. The law thus declared by the Constitution Bench
cannot be revisited by a Bench of lesser quorum or for
that matter by the High Courts by looking into the
bundle of facts to ascertain whether they would confer
territorial jurisdiction to the High Court within the
ambit of Article 226(2) of the Constitution. We are of
the considered view that taking another view would
undoubtedly result in indefiniteness and multiplicity
in the matter of jurisdiction in situations when a
decision passed under Section 25 of the Act is to be
called in question especially in cases involving multiple
parties residing within the jurisdiction of different High
Courts albeit aggrieved by one common order passed
by the Chairman at the Principal Bench at New Delhi.”
5.10 It is submitted that the Constitution Bench in L. Chandra
Kumar (supra) was dealing with a challenge to the
constitutional validity of Article 323-A(2d), Article 323
B(3d) of the Constitution of India and Section 28 of the
Administrative Tribunals Act, 1985 which excluded
jurisdiction of the Hon'ble Supreme Court under Article 32
and of the High Courts under Article 226. The final
conclusion reached by the Constitution Bench in L.
Chandra Kumar (supra) at paragraph 99, was that: (a) the power of Judicial Review guaranteed under Article
32 and Article 226/227 is part of the inviolable basic
structure of our constitution. (b) the provisions under challenge were declared
unconstitutional to the extent that they exclude the
jurisdiction of the High Courts and the Supreme Court
under Article 226/227 and 32 of the Constitution of
India respectively. (c) However, it was held that all service matters must at
the first instance go to the Administrative Tribunal and
upon the tribunal delivering the judgment the same
could be subjected to a challenge under the writ
jurisdiction of the High Court within whose jurisdiction
the tribunal falls.
5.11 It is submitted that judgment in the case of L. Chandra
Kumar (supra) ought not to be read to have held that only
the High Court under whose territorial jurisdiction the
tribunal falls will have jurisdiction to entertain a Writ
Petition against the order of the said tribunal.
5.12 The effect of the Judgment in Alapan Bandyopadhyay
(supra) is that only the High Court under whose territorial
jurisdiction the tribunal falls would have jurisdiction to
entertain a Writ Petition against the order of the said
Tribunal.
5.13 It is submitted that as is clear from the section dealing
with the development of law relating to the territorial
jurisdiction of the High Courts, the intent and purpose
behind adding clause (2) under Article 226 would be
defeated if paragraph 99 of L. Chandra Kumar (supra) is
interpreted in such a manner.
5.14 It is further submitted that the power of judicial review is
an integral and essential feature of the Constitution and
even a constitutional amendment cannot exclude the
power of the high courts and the Supreme Court to
exercise their power of judicial review and this power can
never be ousted.
5.15 It is respectfully submitted that this Court, by way of a
judicial order, ought not to take away jurisdiction from
other high courts which are otherwise empowered under
Article 226(2) to entertain a Writ Petition against the order
of a Tribunal located in the territory beyond the territorial
jurisdiction of the said high courts.
5.16 It is submitted that under the Constitutional scheme, all
twenty-five High Courts have equivalent jurisdiction, and
no discrimination or special treatment is envisaged to any
particular High Court. This is one of the facets of
independence of judiciary.
5.17 It is further submitted that if such an interpretation is
taken to its logical conclusion, then it would result in
undue hardship and inconvenience to the employees of the
central government itself who are posted across the
country. For example, if an application were to be filed by
an aggrieved employee before the Ernakulam Bench of the
Central Administrative Tribunal, and an Order for its
Transfer to another Bench were to be passed by the
Principal Bench at Delhi, the aggrieved would be forced to
travel all the way from Ernakulam to Delhi to challenge the
Transfer Order and contest the case. As already submitted
above, this would defeat the very purpose of inserting
Article 226(2) into the Constitution with the specific intent
of providing a cheap, effective and efficacious remedy in
law at the doorstep of the aggrieved person.
5.18 It is therefore prayed that the decision of this Hon'ble
Court rendered in Alapan Bandyopadhyay (supra) case
ought to be reconsidered in light of the submissions made
above.
6.Regard being had to the important issue raised by Shri Shyam Divan, learned Senior Advocate appearing on behalf of respondent No. 1 and the submissions made by Shri Tushar Mehta, learned Solicitor General and having gone through the judgment(s) and order(s) passed by this Court in L. Chandra Kumar (supra) and Alapan Bandyopadhyay (supra) and that the issue involved is with respect to the territorial jurisdiction of the High Courts and the effect of introduction of Article 226(2) of the Constitution of India and the statement of the Law Minister while introducing Article 226(2) of the Constitution referred to hereinabove and that the issue involved affects a large number of employees and is of public importance, we think it appropriate that the matter involving the issue of territorial jurisdiction of the concerned High Court to decide a challenge to an order passed by the Chairman, CAT, Principal Bench, New Delhi should be considered by a Larger Bench. Let the registry place the matter before the Chief Justice of India for appropriate orders at the earliest so that the aforesaid issue is resolved at the earliest. [M.R. SHAH] MARCH 03, 2023 [B.V. NAGARATHNA]