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No. 12437 of 1985 etc.
(Under Article 32 of the Constitution of India) Raju Ramachandra, Mukul Mudgal, Mrs. R. Ramachandran, N.J. Mehta, P.H. Parekh, D. Krishnamurthy, K.N. Rai, K.R. Nagaraja, Ms. Malinio Poduval, N.N. Verma, S.K. Bhardwaj and P.D. Sharma for the Petitioners.
K. Parasaran, Attorney General, V.P. Sarthy and Ms. A. Subhashini for the Respondents.
S.K. Sinha and S.K. Verma for the Respondents.
The Judgment of the Court was delivered by BHAGWATI, CJ.
I am in entire agreement with the judgment prepared by my learned brother Ranganath Misra, but since the questions involved in these writ petitions are of semi nal importance affecting as they do, the structure of the judicial system and the principle of independence of the Judiciary, I think I would be failing in my duty if I did not add a few words of my own.
There are two questions which arise for consideration in these writ petitions and they have been succinctly set out in the judgment of Ranganath Misra, J. The first question is whether the exclusion of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution in service matters specified in section 218of the Administrative Tribu nals Act, 1985 (hereinafter referred to as the impugned Act) and the vesting of exclusive jurisdiction in such service matters in the Administrative Tribunal to be constituted under the impugend Act, subject to an exception in favour of the jurisdiction of this Court under Articles 32 and 136, is unconstitutional and void and in any event, even if the first question be answered against the petitioners and in favour of 441 the Government, the second question required to be consid ered is, whether the composition of the Administrative Tribunal and the mode of appointment of Chairman, Vice Chairmen and members have the effect of introducing a con stitutional infirmity invalidating the provisions of the impugned Act.
I agreed with the answers given to these questions in the judgment of Ranganath Misra, J. I would articulate my reasons as follows: It is now well settled as a result of the decision of this Court in Minerva Mills Ltd. & Others vs Union of India and Ors. ; that judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away.
If the power of judicial review is abrogated or taken away the Constitution will cease to be what it is.
It is a fundamental principle of our constitu tional scheme that every organ of the State, every authority under the Constitution, derives its power from the Constitu tion and has to act within the limits of such power.
It is a limited Government which we have under the Constitution and both the executive and the legislature have to act within the limits of the power conferred upon them under the Con stitution.
Now a question may arise as to what are the powers of the executive and whether the executive has acted within the scope of its power.
Such a question obviously cannot be left to the executive to decide and for two very good reasons.
First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action.
So also if the legislature makes a law and a dispute arises whether in making the law, the legislature has acted outside the area of its legislative competence or the law is viola tive of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same rea sons, be left to the determination of the legislature.
The Constitution has, therefore created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature.
The judiciary is constituted the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power con ferred on each branch of Government, what are the limits on the exercise of such power under the Constitution and wheth er any action of any branch transgresses such limits.
It is also a basic principle of the rule of law which permeates every provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in 442 accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities.
This function is discharged by the judi ciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for mainte nance of the rule of law.
The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality.
That is why I observed in my judgment in Minerva Mills 'Ltd. case (supra) at pages 287 and 288: "I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the mainte nance of democracy and the rule of law, it is the power of judicial review and it is unques tionably, to my mind, part of the basic struc ture of the Constitution.
Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament.
But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.
If by a Constitutional amendment, the power of judi cial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subver sion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.
So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be.questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the consti tutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Consti tution.
The conclusion must therefore inevita bly follow that clause (4) of the Article 368 is unconstitutional and void as damaging the basic structure of the Constitution.
" 443 It is undoubtedly true that my judgment in Minerva Mills Ltd. case (supra) was a minority judgment but so far as this aspect is concerned, the majority Judges also took the same view and held 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 and it is equally clear from the same decision that though judicial review cannot be altogether abrogated by Parliament by amending the Constitution in exercise of its constituent power, Parliament can certainly, without in any way violat ing the basic structure doctrine, set up effective alterna tive institutional mechanisms or arrangements for judicial review.
The basic and essential feature of judicial review cannot be dispensed with but it would be within the compe tence 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 no less efficacious than the High Court.
Then, instead of the High Court, it would be another insti tutional mechanism or authority which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the rule of law.
Therefore, if any constitutional amendment made by Parlia ment 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 viola tive of the basic structure doctrine, so long as the essen tial condition is fulfilled, namely that the alternative institutional mechanism or authority set up by the parlia mentary amendment is no less effective than the High Court.
Here, in the present case, the impugned Act has been enacted by Parliament in exercise of the power conferred by clause (1) of Article 323A which was introduced in the Constitution by Constitution (42nd Amendemnt) Act, 1976.
Clause (2) (d) of this Article provides that a law made by Parliament under clause (1) may exclude the jurisdiction of courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1).
The exclusion of the jurisdiction of the High Court under Articles 226 and 227 by any law made by Parliament under clause (1 ) of Article 323A is, there fore, specifically authorised by the constitutional amend ment enacted in clause (2) (d) of that Article.
It is dear from the discussion in the preceding paragraph that this constitutional amendment authorising exclusion of the juris diction of the High Court under Articles 226 and 227 postu lates for its validity that the law made under clause (1) of Article 323A excluding the jurisdiction of the High Court under Articles 226 and 227 must provide for an effective alternative institutional mechanism or authority for judi cial review.
If this constitutional amendment were to permit a law made under clause (1) of Article 323A to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative 444 institutional mechanism or arrangement for judicial review, it would be violative of the basic structure doctrine and hence outside the constituent power of Parliament.
It must, therefore, be read as implicit in this constitutional amend ment that the law excluding the jurisdiction of the High Court under Articles 226 and 227 permissible under it must not leave a void but it must set up another effective insti tutional mechanism or authority and vest the power of judi cial review in it.
Consequently, the impugned Act excluding the jurisdiction of the High Court under Articles 226 and 227 in respect of service matters and vesting such jurisdic tion in the Administrative Tribunal can pass the test of constitutionality as being within the ambit and coverage of clause (2) (d) of Article 323A, 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 matter is concerned.
We must, therefore, address ourselves to the question whether the Administrative Tribunal established under the impugned Act can be regarded as equally effective and efficacious in exercising the power or judicial review as the High Court acting under Articles 226 and 227 of the Constitution.
It is necessary to bear in mind that service matters which are removed from the jurisdiction of the High Court under Articles 226 and 227 of the Constitution and entrusted to the Administrative Tribunal set up under the impugned Act for adjudication involve questions of interpretation and applicability of Articles 14, 15, 16 and 311 in quite a large number of cases.
These questions require for their determination not only judicial approach but also knowledge and expertise in this particular branch of constitutional law.
It is necessary that those who adjudicate upon these questions should have same modicum of legal training and judicial experience because we find that some of these questions are so difficult and complex that they baffle the minds of even trained Judges in the High Courts and the Supreme Court.
That is the reason why at the time of the preliminary hearing of these writ petitions we insisted that every bench of the Administrative Tribunal should consist of one judicial member and one administrative member and there should be no preponderance of administrative members on any bench.
Of course, the presence of the administrative member would provide input of practical experience in the function ing of the services and add to the efficiency of the Admin istrative Tribunal but the legal input would undeniably be more important and sacrificing the legal input or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal as compared to the High Court.
Now section 6 provides that the Chairman of the Administrative Tribunal should be or should have been a Judge of the High Court or he should have for at least two years held office of Vice Chairman or he should have for at least two years held the post of 445 Secretary to the Government of India or any other post under the Central or State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India.
I entirely agree with Ranganath Misra, J. that the Chairman of the Administrative Tribunal should be or should have been a Judge of a High Court or he should have for at least two years held office as Vice Chairman.
If he has held office as Vice Chairman for a period of at least two years he would have gathered sufficient experience and also within such period of two years, acquired reasonable familiarity with the constitutional and legal questions involved in service matters, But substituting the Chief Justice of a High Court by a Chairman of the Administrative Tribunal who has merely held the post of a Secretary to the Government and who has no legal or judicial experience would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the,High Court.
We cannot afford to forget that it is the High Court which is being supplant ed by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity.
Of course, I must make it clear that when I say this, I do not wish to cast any reflection on the mem bers of the Civil Services because fortunately we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and who have remarkable capacity to resolve and overcome administrative problems of great complexity.
But what is needed in a judicial tribunal which is intended to supplant the High Court is legal train ing and experience.
I am, therefore, of the view, in agree ment with Ranganath Misra, J. that clause (c) of section 6 (1) must be struck down as invalid.
I also fail to see why a District Judge or an advocate who is qualified to be a Judge of a High Court should not be eligible to be considered for appointment as Vice Chairman of the Administrative Tribunal.
It may be noted that since the Administrative Tribunal has been created in substitution of the High Court, the Vice Chairman of the Administrative Tribunal would be in the position of a High Court Judge and if a District Judge or an advocate qualified to be a Judge of the High Court, is eligible to be a High Court Judge, there is no reason why he should not equally be eligible to be a Vice Chairman of the Administrative Tribunal.
Can the position of a Vice Chairman of the Administrative Tribunal be considered higher than that of a High Court Judge so that a person who is eligible to be a High Court Judge may yet be regarded as ineligible for becoming a Vice Chairman of the Administrative Tribunal? It does appear that the provisions of the impugned Act in regard to the composition of the Administrative Tribunal are a little weighted in favour of members of the Services.
This weightage in favour of the members of the Services and value discounting of the judi cial members does have the effect of 446 making the Administrative Tribunal less effective and effi cacious than the High Court.
I would therefore suggest that a District Judge or an Advocate who is qualified to be a Judge of the High Court should be regarded as eligible for being Vice Chairman of the Administrative Tribunal and unless an amendment to that effect is carried out on or before 31st March, 1987, the impugned Act would have to be declared to be invalid, because the provision in regard to composition of the Administrative Tribunal cannot be severed from the other provisions contained in the impugned Act.
That takes me to another serious infirmity in the provi sions of the impugned Act in regard to the mode of appoint ment of the Chairman, Vice Chairman and members of the Administrative Tribunal.
So far as the appointment of judi cial members of the Administrative Tribunal is concerned, there is a provision introduced in the impugned Act by way of amendment that the judicial members shall be appointed by the Government concerned in consultation with the Chief Justice of India.
Obviously no exception can be taken to this provision, because even so far as Judges of the High Court are concerned, their appointment is required to be made by the President inter alia in consultation with the Chief Justice of India.
But so far as the appointment of Chairman, Vice Chairmen and administrative members is con cerned, the sole and exclusive power to make such appoint ment is conferred on the Government under the impugned Act.
There is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf.
The result is that it is left to the absolute unfettered discretion of the Government to appoint such person or persons as it likes as Chairman, Vice Chairman and administrative members of the Administra tive Tribunal.
Now it may be noted that almost all cases in regard to service matters which come before the Administra tive Tribunal would be against the Government or any of its officers and it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the executive to appoint the Chairman, Vice Chairmen and administrative members, if a judicial member or an adminis trative member is looking forward to promotion as Vice Chairman or Chairman, he would have to depend on the good will and favourable stance of the executive and that would be likely to affect the independence and impartiality of the members of the Tribunal.
The same would be the position vis a vis promotion to the office of Chairman of the ' Admin istrative Tribunal.
The administrative members would also be likely to carry a sense of obligation to the executive for having been appointed members of the Administrative Tribunal and that would have a tendency to impair the independence and objectivity of the members of the Tribunal.
There can be no doubt that the power of appointment and promotion vested in the executive can have prejudicial effect on the 447 independence of the Chairman, Vice Chairmen and members of the Administrative Tribunal, if such power is absolute and unfettered.
If the members have to look to the executive for advancement, it may tend, directly or indirectly, to influ ence their decision making process particularly since the Government would be a litigant in most of the cases coming before the Administrative Tribunal and it is the action of the Government which would be challenged in such cases.
That is the reason why in case of appointment of High Court Judges, the power of appointment vested in the executive is not an absolute unfettered power but it is hedged in by a wholesome check and safeguard and the President cannot make an appointment of a High Court Judge without consultation with the Chief Justice of the High Court and the Chief Justice of India and a healthy convention has grown up that no appointment would be made by the Government which is not approved by the Chief Justice of India.
This check or safe guard is totally absent in the case of appointment of the Chairman, Vice Chairmen and administrative members of the Administrative Tribunal and the possibility cannot be ruled out indeed the litigating public would certainly carry a feeling that the decisionmaking process of the Chairman, Vice Chairmen and members of the Administrative Tribunal might be likely to be affected by reason of dependence on the executive for appointment and promotion.
It can no longer be disputed that total insulation of the judiciary from all forms of interference from the coordinate branches of Government is a basic essential feature of the Constitu tion.
The Constitution makers have made anxious provision to secure total independence of the judiciary from executive pressure or influence.
Obviously, therefore if the Adminis trative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Articles 226 and 227 is taken away and vested in the Administrative Tribunal, the same independence from possibility of execu tive pressure or influence must also be ensured to the Chairman, Vice Chairmen and members of the Administrative Tribunal.
Or else the Administrative Tribunal would cease to be an equally effective and efficacious substitute for the High Court and the provisions of the impugned Act would be rendered invalid.
I am, therefore, of the view that the appointment of Chairman, Vice Chairmen and administrative members should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be invited to such reasons.
There is also another alternative which may be adopted by the Government for making appointments of Chairman, Vice Chairmen and mem bers and that may be by setting up a High Powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of 448 India.
Both these mOdes of appointment will ensure selection of proper and competent persons to man the Administrative Tribunal and give it prestige and reputation which would inspire confidence in the public mind in regard to the competence, objectivity and impartiality of those manning the Administrative Tribunal.
If either of these two modes of appointment is adopted, it would save the impugned Act from invalidation.
Otherwise, it will be outside the scope of the power conferred on Parliament under Article 323 A.
I would, however hasten to add that this judgment will operate only prospectively and will not invalidate appointments already made to the Administrative Tribunal.
But if any appointments of Vice Chairmen or administrative members are to be made hereafter, the same shall be made by the Government in accordance with either of the aforesaid two modes of ap pointment.
I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act can be sustained, there must be a permanent or if there is not sufficient work, then a Circuit Bench of the Administrative Tribunal at every place where there is a seat of the High Court.
I would, therefore, direct the Government to set up a permanent bench and if that is not feasible having regard to the volume of work, then at least a Circuit Bench of the Administrative Tribunal wherever there is a seat of the High Court, on or before 31st March, 1987.
That would be neces sary if the provisions of the impugned Act are to be sus tained.
So far as rest of the points dealt with in the judgment of Ranganath Misra, J. are concerned, I express my entire agreement with the view taken by him.
RANGANATH MISRA J: The challenge raised to the vires of the , (hereinafter re ferred to as 'the Act ') in an application under Article 32 of the Constitution and the other connected matters has been referred to the Constitution Bench for adjudication.
Indis putably the Act has been framed within the ambit of Article 323A which was brought into the Constitution by the Forty Second Amendment Act in 1976.
In exercise of power vested under Section 1(3) of the Act, the Central Government ap pointed 1.11.1985 as the date from which the Act would come into force.
Thereupon Sampat Kumar and others (W.P. 12460 of 1985) moved this Court and the connected matters were brought before this Court or different High Courts which have since been transferred ' to this Court to be analogously heard.
On 31.10.
1985 a Division Bench of this Court gave certain interim directions including stay of transfer of the pending applications under Article 32 which were liable to be transferred to the Tribunal and also for continuance of exercise of jurisdiction under Article 32 in regard to disputes covered under the Act notwithstanding the bar provided in Section 28.
449 In the writ applications as presented the main challenge was to the abolition of the Jurisdiction of this Court under Article 32 in respect of specified service disputes.
Chal lenge was also raised against the taking away of the juris diction of the High Court under Articles 226 and 227.
It was further canvassed that establishment of benches of the Tribunal at Allahabad, Bangalore, Bombay, Calcutta, Gauhati, Madras.
and Nagpur with the principal seat at Delhi would still prejudice the parties whose cases were already pending before the respective High Courts located at places other than these places and unless at the seat of every High Court facilities for presentation of applications and for hearing thereof were provided the parties and their lawyers would be adversely affected.
The interim order made on October 31, 1985, made provisions to meet the working difficulties.
Learned Attorney General on behalf of the Central Government assured the Court that early steps would be taken to amend the law so as to save the jurisdiction under Article 32, remove other minor anomalies and set up a bench of the Tribunal at the seat of every High Court.
By the Administra tive Tribunals (Amendment) Ordinance, 1986, these amendments were brought about and by now an appropriate Act of Parlia ment has replaced the Ordinance.
Most of the original grounds of attack thus do not survive and the contentions that were canvassed at the hearing by the counsel appearing for different parties are these (1) Judicial review is a fundamental aspect of the basic structure of our Constitution and bar of the jurisdiction of the High Court under Articles 226 and 227 as contained in Section 28 of the Act cannot be sustained; (2) Even if the bar of jurisdiction is upheld, the Tribunal being a substitute of the High Court, its constitution and set up should be such that it would in fact function as such substitute and become an institution in which the parties could repose faith and trust; (3) Benches of the Tribunal should not only be established at the seat of every High Court but should be available at every place where the High Courts have permanent benches; (4) So far as Tribunals set up or to be set up by the Central or the State Govern ments are concerned, they should have no jurisdiction in respect of employees of the Supreme Court or members of the subordinate judiciary and employees working in such estab lishments inasmuch as exercise of jurisdiction of the Tribunal would interfere with the control absolutely vested in 450 the respective High Courts in regard to the judicial and other subordinate officers under Article 235 of the Constitution.
After oral arguments were over, learned Attorney Gener al, after obtaining instructions from the Central Government filed a memorandum to the effect that section 2(q) of the Act would be suitably amended so as to exclude officers and servants in the employment of the Supreme Court and members and staff of the subordinate judiciary from the purview of the Act.
In the same memorandum it has also been said that Government would arrange for sittings of the benches of the Tribunal at the seat or seats of each High Court on the basis that 'sittings ' will include 'circuit sittings ' and the details thereof would be worked out by the Chairman or the Vice Chairman concerned.
With these concessions made by the learned Attorney General, only two aspects remain to be dealt with by us, namely, those covered by the first and the second conten tions.
Strong reliance was placed on the judgment of Bhagwati, J (one of us presently the learned Chief Justice) in Minerva Mills Ltd. & Ors.
vs Union of India & Ors.
, ; , 287 where it was said: "The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illu sion and a promise of unreality.
I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution.
Of course, when 1 say this I should not be taken to suggest that, however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament.
But what I wish to empha sise is that judicial review is a vital prin ciple of our Constitution and it cannot be abrogated without affecting the basic struc ture of the Constitution.
If by a constitu tional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the Legislature or is violative of any 451 fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.
So also if a constitu tional amendment is made which has the effect of taking away the power of judicial review.
" Article 32 was described by Dr. Ambedkar in course of the debate in the Constituent Assembly as the 'soul ' and 'heart ' of the Constitution and it is in recognition of this position that though Article 323A(2)(d) authorised exclusion of jurisdiction under Article 32 and the original Act had in Section 28 provided for it, by amendment jurisdiction under Article 32 has been left untouched.
The Act thus saves jurisdiction of this Court both under Article 32 in respect of original proceedings as also under Article 136 for enter taining appeals against decisions of the Tribunal on grant of Special Leave.
Judicial review by the apex court has thus been left in tact.
The question that arises, however, for consideration is whether bar of jurisdiction under Articles 226 and 227 affects the provision for judicial review.
The right to move the High Court in its writ jurisdiction unlike the one under Article 32, is not a fundamental right.
Yet, the High Courts, as the working experience of three and a half dec ades shows have in exercise of the power of judicial review played a definite and positive role in the matter of preser vation of fundamental and other rights and in keeping admin istrative action under reasonable control.
In these thirty six years following the enforcement of the Constitution, not only has India 's population been more than doubled but also the number of litigations before the courts including the High Courts has greatly increased.
As the pendency in the High Courts increased and soon became the pressing problem of backlog, the nation 's attention came to be bestowed on this aspect.
Ways and means to relieve the High Courts of the load began to engage the attention of the Government at the Centre as also in the various States.
As early as 1969, a Committee was set up by the Central Government under the chairmanship of Mr. Justice Shah of this Court to make recommendations suggesting ways and means for effective, expeditious and satisfactory disposal of matters relating to service disputes of Government servants as it Was found that a sizable portion of pending litigations related to this category.
The Committee recommended the setting up of an independent Tribunal to handle the pending cases before this Court and the High Courts.
While this report was still engaging the attention of Government, the Administrative Reforms Commission also took note of the situation and recommended the setting up of Civil Services Tribunals to deal with appeals of Government servants against discipli nary action.
In certain States, Tribunals of this type came into existence and started functioning.
But the Central 452 Government looked into the matter further as it transpired that the major chunk of service litigation related to mat ters other than disciplinary action.
In May 1976, a Confer ence of Chief Secretaries of the States discussed this problem.
Then came the Forty Second Amendment of the Consti tution bringing in Article 323A which authorised Parliament to provide by law "for the adjudication or trial by adminis trative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connexion with the affairs of the Union or of any State or of any local or other au thority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government.
" As already stated this Arti cle envisaged exclusion of 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).
Though the Constitution now contained the enabling power, no immediate steps were taken to set up any Tribunal as contemplated by Article 323A.
A Constitution Bench of this Court in K.K. Dutta vs Union of India, ; observed: "There are few other litigative areas than disputes between members of various services inter se, where the principle that public policy requires that all litigation must have an end can apply with greater force.
Public servants ought not to be driven or required to dissipate their time and energy in court room battles.
Thereby their attention is diverted from public to private affairs and their inter se disputes affect their sense of oneness without which no institution can function effectively.
The constitution of Service Tribunals by State GOvernments with an apex Tribunal at the Centre which in the generality of the cases, should be the final arbiter of controversies relating to conditions of serv ice, including the vexed question of seniori ty, may save the courts from the avalanche of writ petitions and appeals in service matters.
The proceedings of such Tribunals can have the merit Of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many. " In the meantime the problem of the backlog of cases in the High Courts becomes more acute and pressing and came to be further discussed in Parliament and in conferences and seminars.
Ultimately in January 1985, both Houses of Parlia ment passed the Bill and with the Presidential assent on 27th February, 1985, the law enabling the long awaited Tribunal to be constituted came into existence.
As already noticed, the Central Government notified the Act to come into force with effect from 1.11.1985.
453 Exclusion of the jurisdiction of the High Courts in service matters and its propriety as also validity have thus to be examined in the background indicated above.
We have already seen that judicial review by this Court is left wholly unaffected and thus there is a forum where matters of importance and grave injustice can be brought for determina tion or rectification.
Thus exclusion of the jurisdiction of the High Court does not totally bar judicial review.
This Court in Minerva Mills ' case did point out that "effective alternative institutional mechanisms or arrangements for judicial review" can be made by Parliament.
Thus it is possible to set up an alternative institution in place of the High Court for providing judicial review.
The debates and deliberations spread over almost two decades for explor ing ways and means for relieving the High Courts of the load of backlog of cases and for assuring quick settlement of service disputes in the interest of the public servants as also the country cannot be lost sight of while considering this aspect.
It has not been disputed before us and perhaps could not. have been that the Tribunal under the scheme of the Act would take over a part of the existing backlog and a share of the normal load of the High Courts.
The Tribunal has been contemplated as a substitute and not as supplemen tal to the High Court in the scheme of administration of justice.
To provide the Tribunal as an additional forum from where parties could go to the High Court would certainly have been a retrograde step considering the situation and circumstances to meet which the innovation has been brought about.
Thus barring of the jurisdiction of the High Court can indeed not be a valid ground of attack.
What, however, has to be kept in view is that the Tribu nal should be a real substitute of the High Court not only in form and de jure but in content and de facto.
As was pointed out in Minerva 's Mills, the alternative arrangement has to be effective and efficient as also capable of uphold ing the constitutional limitations.
Article 16 of the Con stitution guarantees equality of opportunity in matters of public employment.
Article 15 bars discrimination on grounds of religion, race, caste, sex or place of birth.
The touch stone of equality enshrined in Article 14 is the greatest of guarantees for the citizen.
Centering around these articles in the Constitution a service jurisprudence has already grown in this country.
Under Sections 14 and 15 of the Act all the powers of the Courts except those of this Court in regard to matters specified therein vest in the Tribunal either Central or State.
Thus the Tribunal is the substitute of the 'High Court and is entitled to exercise the powers thereof.
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 jurisdiction subject to an appeal to the Privy Council in a limited category of cases.
In this 454 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 upto the High Court as the unfailing protec tor 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, inde pendent 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.
That is exactly what this Court intended to convey when it spoke of an alternative mechanism in Minerva Mills ' case.
Chapter II of the Act deals with establishment of Tribu nals and Benches thereof.
Section 4 provides for establish ment while Section 5 deals with composition of the Tribunal and Benches thereof.
Section 6 lays down the qualifications of Chairman, Vice Chairman and members.
So far as the Chair man is concerned, sub section (1) requires that he should be or have been (a) a Judge of a High Court; or (b) has for at least two years, held office as Vice Chairman; or (c) has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India.
Sub section (2) prescribing the qualification for Vice Chairman provides that he should be or have been (a) a Judge of a High Court; or (b) for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Gov ernment carrying a scale of pay which is not less than that of a Secretary to the Govern ment of India; or (bb) for at least five years, held the post of an Additional 455 Secretary to Government of India or any other post carrying equivalent pay; or (c) for a period of not less than three years held office as a judicial member of an Admin istrative Tribunal.
Sub section (3) prescribes the qualification of a judi cial member and requires that: (a) he should be or should have been or qualified to be a Judge of a High Court; or (b) has been a member of the Indian Legal Service and has held a post in Grade I of that service for at least three years.
Sub section (3 A) provides the qualification for ap pointment as administrative member and lays down that such person should have, for at least two years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay not less than that of an Additional Secretary to Government of India; or (b) has, for at least three years, held the post of a Joint Secretary to the Government of India or any other post under the Central or the State Government carrying a scale of pay which is not less than that of a Joint Secretary to Government of India.
So far as the Chairman is concerned, we are of the view that ordinari ly a retiring or retired Chief Justice of a High Court or when such a person is not available, a Senior Judge of proved ability either in office or retired should be ap pointed.
That office should for all practical purposes be equated with the office of Chief Justice of a High Court.
We must immediately point out that we have no bias, in any manner, against members of the Service.
Some of them do exhibit great candour, wisdom, capacity to deal with intri cate problems with understanding, detachment and objective ness but judicial discipline generated by experience and training in an adequate dose is, in our opinion, a necessary qualification for the post of Chairman.
We agree that a Vice Chairman with these qualifications and experience of two years may be considered for appointment as Chairman but in order that the Tribunal may be acceptable to the liti gants who are themselves members of the various services, section 6(1)(c) should be omitted.
We do not want to say anything about Vice Chairman and members dealt with in sub sections (2), (3) or (3A) because so far as their selection is concerned, we are of the view that such selection when it is not of a sitting Judge or retired Judge of a High Court should be done by a high powered committee with a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India as its Chairman.
This will ensure selection of proper and competent people to man these high offices of trust and help to build up reputation and acceptability.
Once the qualifications indicated for appointment of Chair man are adopted and the manner of selection of Vice Chairman and members is followed, we are inclined to think that the manning of the Tribunal would be proper and conducive to appropriate functioning.
We 456 do not propose to strike down the prescriptions containing different requirements but would commend to the Central Government to take prompt steps to bring the provisions in accord with what we have indicated.
We must state that unless the same be done, the constitution of the Tribunal as a substitute of the High Court would be open to challenge.
We hasten to add that our judgment shall operate prospec tively and would not affect appointments already made to the offices of Vice Chairman and Member both administrative and judicial.
Section 8 of the Act prescribes the term of office and provides that the term for Chairman, Vice Chairman or mem bers shall be of five years from the date on which he enters upon his office or until he attains the age of 65 in the case of Chairman or Vice Chairman and 62 in the case of member, whichever is earlier.
The retiring age of 62 or 65 for the different categories is in accord with the pattern and fits into the scheme in comparable situations.
We would, however, like to indicate that appointment for a term of five years may occasionally operate as a dis incentive for well qualified people to accept the offer to join the Tribu nal.
There may be competent people belonging to younger age groups who would have more than five years to reach the prevailing age of retirement.
The fact that such people would be required to go out on completing the five year period but long before the superannuation age is reached is bound to operate as a deterrent.
Those who come to be Chair man, Vice Chairman or members resign appointments, if any, held by them before joining the Tribunal and, as such, there would be no scope for their return to the place or places from where they come.
A five year period is not a long one.
Ordinarily some time would be taken for most of the members to get used to the service jurisprudence and when the period is only five years, many would have to go out by the time they are fully acquainted with the law and have good grip over the job.
To require retirement at the end of five years is thus neither convenient to the person selected for the job nor expedient to the scheme.
At the hearing, learned Attorney General referred to the case of a member of the Public Service Commission who is appointed for a term and even suffers the disqualification in the matter of further employment.
We do not think that is a comparable situation.
On the other hand, membership in other high powered Tribu nals like the Income tax Appellate Tribunal or the Tribunal under the Customs Act can be referred to.
When amendments to the Act are undertaken, this aspect of the matter deserves to be considered, particularly because the choice in that event would be wide leaving scope for proper selection to be made.
We hope and trust that within a reasonable period not beyond 31st 457 March, 1987, the amendments indicated shall be brought about so as to remove the defects found in the Act.
Khalid, Oza and Dutt 3.3.
We have read both the Judgments just delivered the main judgment of learned Brother Ranganath Misra and the other of Hon 'ble the Chief Justice.
We agree with both.

Output:
Clause (1) of article 323 A, brought in by Constitution (42nd Amendment) Act, 1976, authorised Parliament to provide by law for the adjudication or trial by administrative tribunals of disputes and complaints with respect to re cruitment and conditions of service of persons appointed to public services.
Clause (2)(d) of that Article envisaged exclusion of the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136 with re spect to the disputes or complaints referred to in cl.
Section 28 of the originally enacted within the ambit of article 323 A, provided for exclusion of jurisdiction of the Supreme Court under article 32.
The Act as amended by the Administrative Tribunals (Amendment) Ordinance, 1986, replaced by Act No. 19 of 1987 now saves the jurisdiction of Supreme Court both under article 32 in respect of original proceedings as also under article 136 for entertaining appeals.
Section 6(1)of the Act which lays down qualifications of Chairman, states that he should be or have been (a) a Judge of a High Court, or (b) has for at least two years held office of Vice Chairman, or (c) has for at least two years held the post of Secretary to the Govern ment of India.
Sub section (2) provides that a Vice Chairman should be or have been (a) a Judge of a High Court, or (b) for at least two years held the post of a Secretary to the Government of India, or (bb) for at least five years held the post of Additional Secretary to the Government of India, or (c) for a period of not less than three years held office as a Judicial Member of an Administrative Tribunal.
Sub section (3) states that the Judicial Member (a) should or should have been qualified to be a Judge of a High 436 Court, or (b) has been a member of the Indian Legal Service, Grade 1, for at least three years.
Sub section (3A) provides that a person to be appointed as Administrative Member (a) should have for at least two years held the post of Addi tional Secretary to the Government of India, or (b) has for at least three years held the post of a Joint Secretary to the Government of India.
The petitioners in these writ petitions and transfer petitions challenged the vires of the 1985 Act.
It was contended that the exclusion of the jurisdiction of the High Court under articles 226 and 227 in service matters specified in s.28 of the Act was unconstitutional and void, and that the composition of the Tribunal and mode of appointment of Chairman, Vice Chairman and Members was outside the scope of the power conferred on Parliament under article 323 A.
Allowing the petitions in part, the Court, By the Court HELD: It is the High Court which is being supplanted by Administrative Tribunal.
The office of Chairman of the Tribunal, therefore, for all practical purposes should be equated with the office of the Chief Justice of a High Court.
Judicial discipline generated by experience and training in an adequate dose is a necessary qualification for that post.
It is thus essential that he should have been a Judge of the High Court or he should have for at least two years held office as Vice Chairman.
A person who has merely held the post of Secretary to the Government of India and who has no legal and judicial experience if appointed Chair man would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the High Court.
Clause (c) of s.6(1) of the Act, therefore, must be struck down as invalid.
[445 C, 455 DE, 445 ABE] Per Bhagwati, CJ.
1.1 Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away.
It is, however, within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court another alternative institutional mechanism or ar rangement for judicial review without in any way violating the basic structure doctrine, provided it is no less effica cious than the High Court.
Then it would be another authori ty which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the rule of law.
[441 B, Minerva Mills Ltd. & Ors.
vs Union of India & Ors.
[1981]1 SCR 206, referred to.
1.2 Clause (2Xd) of article 323 A specifically authorises the exclusion of the jurisdiction of the High Court under articles 226 and 227 by any law made by Parliament under cl.(1).
If this constitutional amendment were to permit a law to exclude the jurisdiction of the High Court under article 226 and 227 without sating up an effective alternative institutional mechanism or arrangement for judicial review it would be violative of the basic structure doctrine and hence outside the constitutent power of Parliament.
It must, therefore, be read as implicit in the amendment that such a law to be coustitutionally valid must not leave a void but it must set up another equally effective alternative author ity and vest the power of judicial review in it.
[443 F, H, 44 A B] 2.1 What is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience.
Service matters which are removed from the jurisdiction of the High Court under articles 226 and 227 and entrusted to the Administrative Tribunal invariably involve questions of interpretation and applicability of articles 14, 15, 16 and 311 which require for their determination not only judicial approach but also knowledge and expertise in this particular branch of constitutional law.
[445 D, 444 D] 2.2 The Chairman of the Administrative Tribunal should be or should have been a Judge of a High Court or he should have for at least two years held office as Vice Chairman.
It is the High Court which is being supplanted by the Adminis trative Tribunal.
Substituting the Chief Justice of a High Court by a Chairman of the Administrative Tribunal who has merely held the post of a Secretary to the Government of India and who has no legal or judicial experience would not only fall to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effec tive and efficacious mechanism than the High Court.
Clause (c) of s.6(1) of the Act, therefore, must be struck down as invalid.
[445 A, C, B, E] 3.
Since the Administrative Tribunal has been created in substitution of the High Court, its Vice Chairman would be in the position of a High Court Judge.
Therefore, a District Judge or an advocate who is qualified to be a Judge of the High Court should be regarded as digible for being Vice Chairman of the Administrative Tribunal.
The provisions of the Act in regard to the composition of the Administrative Tribunal are weighted in favour of members of the Services.
This value discounting of the judicial members does have the effect of making the Administrative Tribunal less effective and efficacious than the High Court.
Unless an amendment to that effect is carried out on or before 31st March, 1987 the Act would have to be declared to be invalid because the 438 provision in regard to the composition of the Administrative Tribunal cannot be severed from the other provisions con tained in the Act.
A, 445 G, 446 B] 4.1 Under the Act the sole and exclusive power to make appointment of Chairman, Vice Chairman and Administrative Members is conferred on the Government.
No obligation is cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf.
Total insulation of the judiciary from all forms of interference from the coordinate branches of Government is a basic essential feature of the Constitution.
In case of High Court Judges the President cannot make any appointment without consultation with the Chief Justice of the High Court and the Chief Justice of India.
This check or safe guard is totally absent in the case of appointment of the Chairman, Vice Chairman and Administrative Members of the Administrative Tribunal.
If the Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under articles 226 and 227 is taken away and vested in it, it is but essential that the same independence from possibility of executive pressure or influence must also be ensured to the Chairman, Vice Chairman and Members of the Tribunal.
[446 D, 447 D, B, E] 4.2 The appointment o[ Chairman, Vice Chairman and Administrative Members, therefore, should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective.
Alternatively, a High Powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of India may be set up for making these appointments.
If either of these two modes of appointment is adopted, it would save the impunged Act from invalidation.
Otherwise, it will be outside the scope of the power con ferred on Parliament under article 323 A. [447 F, G, 448 B] 5.
The Government should set up a permanent bench and if that is not feasible having regard to the volume of work, then at least a circuit bench of the Administrative Tribunal wherever there is a seat of the High Court on or before 31st March 1987 so that the provisions of the Act could be sus tained.
[448 D] 6.
Judgment to operate only prospectively and not to invalidate appointments already made.
[448 B] Per Ranganath Misra, J. 1.
The Administrative Tribunal Act, 1985, as amended by Act No. 19 of 1986 saves jurisdiction of the Supreme Court both under Article 32 in respect of original proceedings as also under Article 136 for entertaining appeals.
There is thus a forum where matters of importance and grave injustice can be brought 439 for determination or rectification.
The exclusion of the jurisdiction of the High Court, therefore, does not totally bar judicial review.
[451 C, 453 A] 2.1 It is open to Parliament to make effective alterna tive institutional mechanisms or arrangements in place of the High Court for providing judicial review.
But such an authority or tribunal must be a worthy successor and real substitute of the High Court not only in form and de jure but in content and de facto so as to be effective and effi cient as also capable of upholding the constitutional limi tations enshrined in Articles 14, 15 and 16 of the Constitu tion.
[453 B, 454 C, 453 E] 2.2 The Tribunal under the scheme of the Act has been contemplated as a substitute and not as supplemental to the High Court.
It is not designed as an additional froum from where parties could go to the High Court.
Under sections 14 and 15 of the Act all the powers of the Courts, except those of the Supreme Court, in regard to matters specified therein vest in the Tribunal either Central or State.
Barring of the jurisdiction of the High Court under articles 226 and 227 cannot, therefore, be said to be ultra vires the Constitu tion.
[443 CD, FG, 449 A] Minerva Mills Ltd. & Ors.
vs Union of India & Ors.
, ; , 287 and K.K. Dutta vs Union of India, ; , referred to.
3.1 The Office of Chairman of the Tribunal should for all practical purposes be equated with the office of Chief Justice of a High Court.
Judicial discipline generated by experience and training in an adequate dose being a neces sary qualification for that post, ordinarily a retiring or retired Chief Justice of a High Court or when such a person is not available, a senior Judge of proved ability, either in office or retired should be appointed.
In order that the Tribunal may be acceptable to the litigants, who are them selves members of the various Services, therefore, s.6(1)(c) of the Act, which makes a Secretary to the Government of India also eligible for the post of Chairman, should be omitted.
[455 D F] 3.2 The selection of Vice Chairman and Members, when it is not of a sitting Judge or retired Judge of a High Court, should be done by a high powered committee with a sitting Judge of the Supreme Court, to be nominated by the Chief Justice of India, as its Chairman.
This will ensure selec tion of proper and competent people to man these high of fices of trust and help to build up reputation and accept ability.
The Central Government to bring the provisions of the Act in accord within a reasonable time not beyond March 31, 1987.
Or else, the constitution of Tribunal as a substi tute of the High Court would be open to challenge.
[455 G, 456 A, H] 3.3 The judgment to operate prospectively and not to affect the 440 appointments already made to the office of Vice Chairman and Members.
[456 B] 4.
The term of five years prescribed under s.8 of the Act for Chairman, Vice Chairman and Members of the Tribunal requiting them to retire at the end of it is too short, which is neither convenient to the person selected for the job nor expedient to the scheme.
When amendments to the Act are undertaken this aspect of the matter deserves to be considered.
[456 C, F, G]


Input:
ivil Appeal No. 2494 of 1978.
From the Judgment and Order dated 9.12.
1977 of the Andhra Pradesh High Court in Writ Appeal No. 465 of 1976.
A. Subba Rao for the Appellant.
A.S. Nambiar, B. Parthasarthy, G. Prabhakar and K. Ram Kumar for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the common Judgment of the High Court of Andhra Pradesh dismiss ing two writ appeals and a writ petition.
The Andhra Pradesh (Andhra Area) District Municipalities Act, 1920 (hereinafter referred to as the 'old Act ') was applicable to Vijayawada Municipality of Andhra Pradesh and property tax was levied under that Act.
The Andhra Pradesh Municipalities Act 1965 (hereinafter referred to as the new Act ') came into force on 2.4.1965.
Section 2(11) of the new Act defined "council" to mean "a municipal council constituted under this Act.
" Section 391(1) of the new Act repealed the old Act.
Section 389 of the new Act provided: "389.
Act to be read subject to Schedule IX in regard to first reconstitution of a council etc.
: In regard to the first constitution of a council for any local area under Section 3. or to the first reconstitution in accordance with the provisions of this Act, of a council in existence at the commencement thereof, and otherwise in first giving effect to the provisions of this Act, this Act shall be read subject to the rules in schedule IX.
" 384 The Schedule IX to the new Act contained the transitional provisions in the rules therein.
Rule 12 thereof dealt with levy of taxes etc.
and said: "12.
Levy of taxes etc.
Any tax, cess or fee which was being lawfully levied by or on behalf of any council at the com mencement of this Act and which may be lawfully levied under this Act, shall notwithstanding any change in the method or manner of assessment or levy of such tax, cess or fee be levied by or on behalf of the council at such rate as may be prevailing at such commencement or at such other rate as may be determined by the council from time to time, by a resolu tion for the year in which this Act is brought into force, and unless the Government by general or special order other wise direct, for subsequent years also.
" The result was that tax lawfully levied and continued to be levied under the old Act had to be continued unless the council by resolution determined such other rate from time to time, and unless the Government by general or special order otherwise directed under the transitional provisions.
On 18.9.
1969 the Government of Andhra Pradesh issued G.O. Ms. No. 749 M.A. in exercise of its powers under the afore said Rule 12 of Schedule IX directing that all Municipal Councils, shall with effect from 1.4.70 levy the Property tax as per the provisions of the new Act.
But due to certain administrative difficulties the revision could not be com pleted before 1.4.
1970 and the Government, therefore. issued G.O. Ms. No. 293 M.A. dated 18.4.
1970 directing the Municipal Council to levy the property tax as per the provi sions of the new Act from 1.10. 1970.
By another G.O. Ms. No. 81 M.A. dated 30.1.1971 the Government directed the Municipal Council of vijayawada to continue to levy the property tax under the provisions of the old Act as certain rate payers had filed writ petition in the High Court and obtained stay.
However, by G.O. Ms. No. 675 M.A. the G.O. Ms. No. 81 was rescinded and the Vijayawada Municipal Coun cil was directed to collect revised taxes under the provi sions of the new Act with effect from 1.10. 1970.
This latter G.O. Ms. No. 675 was in its turn rescinded by G.O. Ms. No. 255 M.A. dated 15.6.73 whereby the Government or dered that the Vijayawada Municipal Council shall continue to levy the property tax under the provisions of the old Act and that G.O. was to be deemed to have come into force from 1.10.1970.
As a result the Vijayawada Municipality continued to levy and enhance the property tax under the provisions of the old Act.
It 385 may be mentioned that under section 82 of the old Act property, tax was levied on the basis of gross annual rental value, whereas under section 87 of the new Act the basis of assessment in owner occupied building was the capital value thereof to be determined in the prescribed manner.
The G.O. Ms. No. 255 dated 15.6.73 was challenged by house property owners in the High Court in two writ peti tions under Article 226 of the Constitution of India seeking writ in the nature of mandamus or order or direction re straining the Vijayawada Municipal Council from enforcing it and declaring the same illegal and void.
It was inter alia contended before the learned Single Judge that by earlier G.Os.
the Government having directed that taxes should be levied under the new Act, the transitional power under rule 12 had been already exercised and the power to levy any tax under the old Act therefore ceased and it was not open to the Government to rescind the previous orders and re direct taxes to be levied under the old Act.
That contention was accepted observing: "The language of the Rule is clear that once the Government by a general or special order, otherwise directs, the power to levy tax under the old Act is exhausted.
" Even so, it was held that in view of the provisions in section 4(1) of the Andhra Pradesh Municipalities (Fourth Amendment) Act (23 of 1975) which validated the actions taken, those could not be challenged as invalid.
The submissions that the Amendment Act was not retrospective and that the enhancement of the tax was not made following the procedure prescribed by law, were also negatived holding that the procedure prescribed under the old Act was followed inasmuch as under the old Act the property tax was levied on the basis of only rental value whereas under the new Act it was on the basis either of the rental value or of the capital value, and that under the old Act when tax was being levied on the basis of rental value there was no need to ascertain the capital value of the land and for enhancing the assessment all that the authority had to know was whether there had been an increase in the rent and Rule 6 of Schedule II which dealt with the value of the building for the purposes of property tax was inapplicable as the levy under the old Act on the basis of rental value and enhancement could be done accord ing to the procedure contained in Schedule VII Rule 10 of the old Act.
It was not denied that special notice as re quired under the old Act was given.
The writ petitions were accordingly dismissed.
386 Two writ appeals were filed by the writ petitioners.
Another writ petition having raised identical questions was heard with the two appeals by the Division Bench.
The Divi sion Bench held that the finding of the Single Bench that having already given directions by the General Orders under the transitory provision of Schedule IX Rule 12 the Govern ment 's power under that provision ceased and it had no power to rescind that order and direct that the taxes which were under the old Act must be continued to be collected was not challenged before it.
The Division Bench held that the Fourth Amendment Act had entrusted to the Municipal Councils the power to tax under the old Act, though that Act had been repealed.
It held that though the actions of the Vijayawada Municipal Council pursuant to the General Order might have been invalid those were validated by section 4(1) of the Fourth Amendment Act.
It was also held that the appellant could pursue their remedies by way of revision under the new Act.
Thus, the Division Bench having dismissed the two writ appeals as well as the writ petition by the impugned judg ment and also having refused the certificate, the appellant has obtained special leave.
Mr. A. Subba Rao, the learned counsel for the appellant, submits that under the old Act the basis for assessment of property tax was the annual rental value while under the new Act it was capital value.
By the G.O. No. 749 the Government having directed that property tax would be levied under the new Act, the subsequent G.Os.passed after rescinding the said G.O. No. 749 and redirecting assessment to be made under the old Act were invalid as was held by the Single Bench and that finding was not challenged before the Divi sion Bench.
Consequently, it is submitted, during the period from 1969 to 1973 there was no valid law to enable the Municipal Council to levy taxes under the old Act and the actions under the G.Os.
are sought to be validated by the Fourth Amendment Act of 1975, but unless the substantive law relating to the method of assessment was also amended retro spectively, the invalid actions could not be validated, as that law could not be deemed to have been in existence by a legal fiction.
Council submits that section 87 of the new Act relating to levy of Property Tax was amended so as to bring it in conformity with the corresponding provision of section 20 of the old Act which prescribed rental value as the basis for assessment.
It is pointed out that section 3 of the Fourth Amendment Act did not contain any indication that the said amendment was retrospective so as to bring it on the statute book by a fiction prior to 1973 when the invalid assessment was made.
The Fourth Amendment Act came into force only from 10th June, 1975 which was the date of the Ordinance.
The amendment of section 87 of the new Act 387 being not retrospective in its operation prior to 1973, it is submitted that the invalid assessments could not have been validated.
Mr. A.S. Nambiar, the learned counsel for the respond ents, submits that the old Act entitled the Municipality to collect the taxes which had been collected in accordance with law and after coming into force of the new Act accord ing to the intermediate G.Os.; and that the impugned G.O. Ms. No. 255 dated 15.6.73 having directed the taxes to be levied and collected in accordance with the old Act, there was.
no infirmity in the Judgments of the High Court.
It appears that after the writ petitions were filed challenging G.O. Ms. No. 255 dated 15.6.73 the Government issued the Andhra Pradesh Municipalities (Amendment) Ordi nance 1975 (Ordinance 1 of 1975) which became the Andhra Pradesh Municipalities (Fourth Amendment) Act, 1975 which was deemed to have come into force on the 10th June, 1975.
By the said Amendment act not only sections 85 and 87 of the new Act were amended but also certain intervening actions of the Municipal Council were sought to be validated.
Section 85 dealt with levy of tax and sub section (1) thereof said: "Where the council by resolution determines that a property tax shall be levied, such tax shall be levied on a11 build ings and lands within the municipal limits save those ex empted by or under this Act or any other law." Sub section (2) provided: "Save as otherwise provided in this Act and subject to the provisions of sections 81 & 87 and in accordance with the rules made by the Government in this behalf, these taxes shall be levied . .
Section 2 of the Fourth Amendment Act amended section 85 of the new Act by substituting clauses (a) and (b) of sub section (2) excluding the proviso thereto, by the following words: "At such percentages of the annual rental value of lands or buildings or both as may be fixed by the council.
" Section 86 of the new Act provided as follows: "86.
Levy of property tax on a direction by Government: 388 (1) The Government may, after consultation with the council by order published in the Andhra Pradesh Gazette, direct any council to levy the property tax referred to in sub section (1) of Section 81 or any class of such tax, at such rate and with effect from such date, not being earlier than the first day of the half year immediately following that in which the order is published, as may be specified in the order.
(2) When an order under sub section (1) has been published, the provisions of this Act relating to property tax shall apply as if the council had.
on the date of publication of such order, by resolution, determined to levy the tax at the rate and with effect from the date specified in the order and as if no other resolution of the council under Section 81 determining the rate at which and the date from which property tax shall be levied, had taken effect.
(3) A council shall not alter the rate at which the property tax of any class or such tax is levied in pursuance of an order under sub section (1) or abolish such tax except with the previous sanction of the Government.
" Section 87(1) of the new Act provided: "87(1) Every building shall be assessed together with its site and other adjacent premises occupied as an appurtenance thereto unless the owner of the building is a different person from the owner of such site or premises.
, ' By section 3 of the Fourth Amendment Act in sub section (2) of section 87 of the new Act the following words were substituted, namely: "(2) The annual rental value of lands and buildings Shall be deemed to be the gross annual rent at which they may reason ably be expected to let from month to month or from year to year less a deduction, in the case of buildings, of ten per cent of that portion of such annual rent which is attributa ble to the buildings alone, apart from their sites and the adjacent lands occupied as an appurtenance thereto; and the said deduction shall be in lieu of all allowance for repairs or on any other account whatever.
389 Provided that in respect of any building and the land appur tenant thereto, the fair rent of which has been fixed under section 4 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the gross annual rent shall be the annual amount of the fair rent so fixed.
" Section 4 of the Fourth Amendment Act sought to validate the actions taken earlier by providing as under: "4(1) Notwithstanding anything in the provisions of the principal Act or any order of the Government made under the rule 12 in Schedule IX to the Principal Act, any,action taken till the commencement of this Act by any municipal council to continue to levy and collect the property tax in accordance with the method or manner or assessment or levy as provided in the Andhra Pradesh (Andhra Area) District Municipalities Act, 1920 or the Andhra Pradesh (Telangana Area) District Municipalities Act, 1956, as the case may be, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that such action was taken by the said municipal council during the period when the power in this behalf had not been validly entrusted to it in accordance with the provisions of the principal Act or the rules made thereunder and accordingly: (a) The levy and collection of property tax made in pursu ance of such action shall for all purposes be deemed to be, and to have always been, made in accordance with law; and (b) no suit or other proceeding shall be instituted or continued in any court against the municipal council con cerned or any person or authority whatsoever on its behalf on the ground only that any such action or levy and collec tion was not taken or made in accordance with law.
(2) Notwithstanding anything in sections 85 and 87 of the Principal Act as amended by this Act, the property tax levied in accordance with the provisions of the Principal Act as it stood before the commencement of this Act by such of the municipalities as have come into existence after the commencement of the principal Act shall continue to.
be levied and collected by or on behalf of the Municipal 390 Council of any such municipality for the year commencing on the 1st April, 1975 .
" Admittedly the validity of the Fourth Amendment Act had not been challenged in the High Court.
In fact it was passed during the pendency of the writ petitions in the High Court.
Mr Suba Rao 's submission is that section 3 of the Fourth Amend ment Act having not been made retrospective, section 4 of the Act could not have said that the levy and collection of property tax made in pursuance of such action for all purposes be deemed to be and to have always been made in accordance with law.
It is true that only sub section (2) of Section 87 of the new Act was substituted as stated above by the Fourth Amendment Act.
However.
once the amendment substituted sub section (2) of section 87 it formed a part of that section.
This amendment only provided the basis of assessment and it itself did not provide for the commencement of such calcula tion which however might be taken from the other provisions of the new Act or from the General Orders issued by the Government.
Section 4(1) of the Fourth Amendment Act ex pressly validated any action taken till the commencement of that Act notwithstanding anything in the provisions of the new Act or in any Government Order made under rule 12 of Schedule IX of the new Act and the Municipal Council should continue to levy and collect the property tax in accordance with the method or manner of assessment or levy as provided in the old Act and those acts shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that such action was taken by the said municipal coun cil during the period when the power in this behalf had not been validly entrusted to it in accordance with the provi sions of the new Act or the rules made thereunder and that the levy and collection of property tax may in pursuance of such action shall for all purposes be deemed to be, and to have always been, made in accordance with law.
From the above provisions of section 4( 1 ) of the Fourth Amendment Act there is no doubt that the legislature intended to validate the actions taken under the general orders and under the old as well as the new Act.
It may be interpreted that the impugned G.O. having been validated, the tenure covered by it must also be held to have been covered by it, so that there was really no interregnum in the process or procedure of assessment of property tax.
Mr. Subba Rao relies on Janapada Sabha, Chhindwara vs The Central Provinces Syndicate Ltd. and Anr., ; In that case in 1935, the Independent Mining Local Board, Chhindwara con 391 stituted under C.P. Local Self Government Act, 1920 resolved to levy a cess on coal extracted within the area at 3 pies per ton.
The sanction of the Local Government, as required by section 51(2) of the Act, was obtained for the levy.
In 1943, the levy was enhanced to 4 pies, in 1946 to 7 pies and in 1947 to 9 pies.
The validity of the enhanced levy was chal lenged and this Court, in appeal, held that the increased levy would also require the previous sanction of the Local Government and such sanction not having been obtained, the levy at a rate higher than 3 pies was illegal.
The State legislature thereafter enacted the Madhya Pradesh Koyala Upkar (Manyatakaran) Adhiniyam, 1964.
Section 2(a) of that act defined "Board" to mean the independent Mining Local Board, Chhindwara and its successor body the Janapada Sabha Chhindwara, the appellant, constituted under the C.P. and Berar Local Government Act, 1948.
Section 2(b) defined "cess" to mean "a cess imposed by the independent Mining Local Board Chhindwara or its successor" Section 3(1) of that Act provided that 'notwithstanding a judgment of any court, cesses imposed, assessed or collected by the Board in pursuance of the notifications specified in the Schedule shall.
for all purposes, be deemed to be, and to have been validly imposed.
assessed or collected as if the enactment under which they were issued stood amended at material times so as to empower the Board to issue the said notifications.
In the Schedule were specified three notifications enhancing the rate of cess.
On the question whether the enhanced levy was validated by the 1964 Act, this Court held that the Act did not give legal effect to the imposition of cess at the enhanced rates.
It was pointed out that the text or even the nature of the amendments was not disclosed though Section 51(2) of the 1920 Act could not be deemed to have been repealed by the 1964 Act, because the latter Act, in terms was limited in its application to the Independent Mining Local Board, Chhindwara, and its successor body and only in respect of the three notifications specified in the Sched ule.
An Act so limited in its application to one Local Board and to specified notification could not repeal the sub section which applied to all Boards.
Nor was there anything to indicate that notifications issued by the appellant Board without the sanction of the State Government must be deemed to have been issued validly.
It was held that such an in tendment could not be implied without express language, in a taxing statute.
It was further observed that it was open to the legislature within certain limits to amend the provi sions of an Act retrospectively and to declare what the law shall be deemed to have been.
But the Legislature, in that case attempted to overrule or set aside a decision of the Court.
It was not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought 392 before it shall be deemed to be ineffective either as a precedent or between the parties.
That case is, therefore, clearly distinguishable from the instant case on facts.
Firstly, in the instant case there is no question of any judgment of any Court having been overruled or set aside.
The Single Bench Judgment was passed on 23.3.76, that is, after the Amendment Act which came into force on 10.6.75.
Secondly the language of Section 4(1) is very clear as to the intention of the legislature as to the contents of the amendment.
What the amendment in the instant case did was to amend the new Act and also validate actions taken under the G.O. impugned in the case.
What was prescribed by the im pugned G.O. was the same as was prescribed by the old Act which itself stood repealed by the new Act.
The procedure thus prescribed was one under the G.O. and not under the old Act, and Section 4(1) validated those actions without reviv ing the repealed old Act itself but by amending the new Act and validating the transitory measure taken by virtue of the Government 's orders issued under the transitional provision Schedule IX, of the new Act particularly Rule 12 thereunder.
The validity of Section 4(1) itself having not been chal lenged, it was not open for the Courts to give.
an interpre tation contrary to the clear and unequivocal language of the Section.
The rule is that an amendment Act must be read as if the words of amendment had been written into the Act except where that would lead to an inconsistency.
(Shamarao V. Parulekar vs The District Magistrate, Thana Bombay, at 689) Power of the legislature to pass a law includes the power to validate actions retrospectively, of course, within Constitutional limitations.
It is apt to remember that the State 's power to tax is derived from the Constitution and the municipality 's power to tax is derived from the State Legislature which could delegate that power in the manner the Constitution permits to the municipal council, an agent of the State Government, and the munici pality cannot refuse to raise taxes as directed.
The proper authority to determine what should and what should not constitute a public burden is the Legislature of the State.
This is not only true for the State itself but it is also true in respect of each municipality of the State; these inferior corporate bodies having only such authority in this regard as the legislature shall confer upon them.
A statute will not be declared unconstitutional unless it is specifi cally challenged and the principle is equally applicable to an enactment authorising levy of a tax for a public purpose.
The power to tax is a sovereign power and is legislative in character and it has to be exercised within the Constitu tional limitations.
The statutes relating to municipal taxes may be changed according to the existing legislative rules of State policy unless forbidden by the Constitution from doing so.
Irregular assessment may 393 also be regularised with retrospective effect within.
the same Constitutional limitations.
Where the Court has not already declared invalid a taxing measure which was of doubtful validity, it is permissible for appropriate legis lature to validate it by retrospective legislation.
No legal fiction is involved in such a case.
Mr. Subba Rao 's submis sion has, therefore, to be rejected.
We find force in the submission of Mr. Nambiar in this regard.
The G.O. impugned before the High Court has been covered and validated by the above provisions, the G.O. itself covered the period after the repeal of the old Act and till the date of commencement of the Fourth Amendment so that no interregnum was really there.
The assessment made according to the provisions of the old Act were validated as actions taken by the council pursuant to the impugned G.O. and not under the provisions of the old Act which was al ready repealed.
While referring to the old Act, the G.O. did not revive the Act but only prescribed the same procedure as was found in the repealed Act as a transitory measure.
The validity of section 4(1) of the Fourth Amendment Act having not been challenged before the High Court, we do not find any infirmity in the impugned judgments of the High Court.
In the result, this appeal fails and is dismissed but under the facts and circumstances of the case without any order as to costs.
Y. Lal Appeal dismissed.

Output:
Vijayawada Municipality of Andhra Pradesh earlier levied property tax under the Andhra Pradesh (Andhra Areas) Dis trict Municipalities Act, 1920.
That Act 'was repealed and the new Act known as the Andhra Pradesh Municipalities Act, 1965 came into force on 2.4.1965.
Under the old act property tax was levied on the basis of gross annual rental value, whereas under section 87 of the new Act the basis of assess ment in owner occupied building was the capital value there of to be determined in the prescribed manner.
Section 389 of the new Act provided that that Act was to be read subject to Schedule IX which contained transitional provisions in the rules.
Rule 12 thereof dealt with levy of taxes etc.
The Government under Rule 12 issued a G.O. Ms. No. 749 M.A. directing that all Municipal Councils shall with effect from 1.4.70 levy the property tax as per the provisions of the new Act, which date by a subsequent G.O. was changed to 1.10.1970.
By another G.O.Ms.
No. 81 M.A. dated 30.1.71, the Government directed the Vijayawada Municipal Council to continue to levy the property tax under the provisions of the old Act as rate payers had filed writ petitions in the High Court and obtained stay.
However, by G.O.Ms.
675 M.A., the G.O.No. 81 was rescinded and the Vijayawada Municipal Council was directed to collect revised taxes under the provisions of the new Act with effect from 1.10.70.
This G.O. was rescinded and by G.O. Ms. No. 255 M.A. dated 15.6.73 the Government directed the Vijayawada Council to levy the property tax under the old Act.
As a consequence, the Vijayawada Municipal continued to levy and enhance the property tax under the old Act.
The validity of G.O.Ms.
No. 255 dated 15.6.73 was chal lenged by house property owners in the High Court in two writ petitions seeking an order restraining the Vijayawada Municipal Council from enforcing it.
and declaring the same illegal and void.
The petitioners ' contention 382 amongst others was that the Government having directed that the taxes be levied under the new Act, the transitional power under rule 12 stood exercised, and the power to levy tax under the old Act had ceased and it was no longer open to the government to rescind the previous orders.
The High Court accepted the said contention, but held that in view of the provisions of section 4(1) of the Andhra Pradesh Munici palities (Fourth Amendment) Act (23 of 1975), which validat ed the actions taken, those could not be challenged as invalid.
The writ petitions were therefore dismissed.
Ap peals to 'the Division Bench, having failed, this appeal has been filed after obtaining special leave.
Dismissing the appeal, this Court, HELD: The State 's power to tax is derived from the Constitution, and the municipality 's power to tax is derived from the State Legislature, which could delegate that power in the manner the Constitution permits to the municipal council, an agent of the State Government and the municipal ity cannot refuse to raise taxes as directed.
The proper authority to determine what should and what should not constitute a public burden is the Legislature of the State.
This is not only true for the State itself, but it is also true in respect of each municipality of the State; these inferior corporate bodies having only such authority in this regard as the legislature shall confer upon them.
[202E F] A statute will not be declared unconstitutional unless it is specifically challenged and the principle is equally applicable to an enactment authorising levy of a tax for a public purpose.
The power to tax is a sovereign power and is legislative in character and it has to be exercised within the constitutional limitations.
The statutes relating to municipal taxes may be changed according to the existing legislative rules of State policy unless forbidden by the Constitution from doing so.
[202G H] Irregular assessment may also be regularised with retro spective effect within the Constitutional limitations.
Where the Court has not already declared invalid a taxing measure which was of doubtful validity, it is permissible for appro priate legislature to validate it by retrospective legisla tion.
No legal fiction is involved in such a case.
[203A C] The G.O. itself covered the period after the repeal of the old Act and till the date of commencement of the fourth amendment so that no interregnum was really there.
The assessment made according to the provisions of the old Act were validated as actions taken by the Council 383 pursuant to the impugned G.O. and not under the provisions of the old Act which was already repealed.
While referring to the old Act, the G.O. did not revive the Act but only prescribed the same procedure as was found in the repealed Act as a transitory measure.
[203B C] Janapada Sabha Chhindwara vs The Central Provim 'es Syndicate Ltd. and Anr., ; , referred to.