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Hanuman Prasad v. State Of Uttar Pradesh And Another
Structured Summary of the Opinion Delivered by Hon'ble K.C. Agarwal, J.
Factual and Procedural Background
This petition, filed under Article 226 of the Constitution, was heard together with connected writ petitions nos. 5648 of 1987 (Samar Veer Johri v. State of U.P.), 4382 of 1987 (Shashi Bala v. State), 4373 of 1987 (Ashok Kumar v. State) and 4385 of 1987 (Rajesh Kumar v. State of U.P.). The main arguments in the group were advanced by Sri Amit Bose, Advocate, supported by Sri G.S.L. Verma, Advocate.
The petitioners challenged the continued applicability and jurisdiction of tribunals constituted under the U.P. Public Services (Tribunals) Act, 1976 (Act No. XVII of 1976), contending that the Central Administrative Tribunal Act, 1985 (Act No. 13 of 1985), enacted following insertion of Articles 323-A and 323-B by the 42nd Amendment, had rendered the State Act redundant for matters relating to employment of public servants of the State of U.P. The petition sought reliefs based on that contention.
Legal Issues Presented
- Whether, following the enactment of the Administrative Tribunal Act, 1985 and the insertion of Articles 323-A and 323-B, the U.P. Public Services (Tribunals) Act, 1976 has become redundant or inoperative insofar as service matters of State employees are concerned.
- Whether the U.P. Act is repugnant to the Central Administrative Tribunal Act, 1985 and therefore excluded under constitutional doctrine (Articles 245, 246 and 254).
- Whether sub-article (3) of Article 323-A (the "notwithstanding" clause) operates to oust the jurisdiction of State-created tribunals under the U.P. Act without further legislative action by the Parliament or notification under Section 1(4) of the Central Act.
- Whether Section 3 of the U.P. Public Services (Tribunals) Act, 1976 should be struck down in the light of the Central Act and related Supreme Court jurisprudence (notably S.P. Sampath Kumar).
Arguments of the Parties
Petitioner's Arguments
- After enactment of the Central Administrative Tribunal Act, 1985 (Act No. 13 of 1985), the U.P. Public Services (Tribunals) Act, 1976 became redundant and the Tribunals constituted under the U.P. Act no longer had power to adjudicate matters relating to employment of State public servants.
- Sub-article (3) of Article 323-A (which contains the word "notwithstanding") meant that the provisions of Article 323-A have overriding effect and therefore State Act provisions were deemed repealed or inoperative.
- The U.P. Act was repugnant to the Central Act and, under Articles 245, 246 and 254(2) of the Constitution, the Central enactment should prevail.
- Reliance on authorities (Municipal Council, Palai v. T.I. Joseph; Trust Mal Luchhmi Sailkoti Baradari v. Amritsar Improvement Trust; Mathura Prasad and Sons v. State of Punjab) to argue implied repeal of the U.P. Act by the Central Act.
- Reliance on authorities interpreting the "notwithstanding" language (South India Corporation Pvt. Ltd. v. Secy. Board of Revenue; Mohinder Singh Gill v. Chief Election Commissioner; N.P. Poonuswami v. Returning Officer; Hari Vishnu Kamath v. Ahmad Ishaque) to support the contention that the U.P. Act was overridden.
- Counsel asked that Section 3 of the U.P. Act be struck down and that the State be directed to conform to the Central scheme, relying on S.P. Sampath Kumar v. Union of India.
The opinion does not contain a detailed account of the respondents' separate legal arguments in the pleadings; the court's narrative focuses principally on the petitioners' submissions and the court's analysis and authorities.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in this Opinion |
|---|---|---|
| Ramashraya Yadav v. State of U.P. and others (1982 U.P. Services Cases, 147) | Held that Article 323-A is an enabling provision and does not itself oust jurisdiction of tribunals created by any Act; in absence of a law enacted by Parliament under Article 323-A, repugnancy does not arise. | The court relied on this decision to support the conclusion that Article 323-A is enabling and that the U.P. Act continues to operate until Parliament enacts a law applicable to the State (or notification under Central Act is made). |
| Lal ji Harijan v. State of U.P. and others (1982 U.P. Services Cases, 142) | Article 323-A vested concurrent power in Parliament but did not take away State Legislature's powers; where Parliament has not enacted law, State law prevails. | Used by the court as corroborative authority for the proposition that State law remains operative in absence of Parliament enacting and applying the Central Act to the State. |
| Zaverbhai v. State of Bombay, AIR 1954 SC 752 | One of the Supreme Court decisions cited as settling legal position on repugnancy/conflict between laws. | Listed among authorities from which the court distilled guiding principles governing repugnancy and conflict between laws (see principles (i)–(iii) in the opinion). |
| Tika Ramji v. State of U.P., AIR 1956 SC 676 | One of the Supreme Court decisions cited on the legal position regarding legislative conflict/repugnancy. | Included in the group of authorities used to extract guiding principles about when repugnancy arises and how to determine direct conflict/exhaustive code/field occupation. |
| Deep Chand v. State of U.P., AIR 1959 SC 648 | One of the Supreme Court decisions cited on repugnancy/conflict principles. | Relied upon as part of the jurisprudential foundation for the court's summary of the tests for repugnancy. |
| Karunanidhi v. Union of India, AIR 1979 SC 898 | One of the Supreme Court decisions cited on the legal position regarding conflict and legislative competence. | Referenced by the court when setting out the guiding principles for resolving alleged repugnancy. |
| Hoechst Pharmaceuticals v. State of Bihar, AIR 1963 SC 1019 | Another Supreme Court decision cited as part of settled law on repugnancy and legislative conflict. | Used collectively with other authorities to derive the three guiding principles summarized in the opinion. |
| Municipal Council, Palai v. T.I. Joseph, AIR 1963 SC 1561 | Cited by petitioner's counsel to support an argument of implied repeal of State law by subsequent Central legislation. | The court rejected the submission of implied repeal in this context, on the ground that the Central Administrative Tribunal Act did not apply to the State (no notification) and therefore there was no question of repeal. |
| Trust Mal Luchhmi Sailkoti Baradari v. Amritsar Improvement Trust, AIR 1963 SC 976 | Cited for the proposition concerning implied repeal. | Counsel relied on it, but the court held the submission untenable because the Central Act was not applicable to the State absent notification; thus no implied repeal. |
| Mathura Prasad and Sons v. State of Punjab, AIR 1962 SC 745 | Another authority relied upon for implied repeal. | The court found the reliance inapplicable for the present facts for reasons stated (no application of Central Act to the State by notification). |
| South India Corporation Pvt. Ltd. v. Secy. Board of Revenue, AIR 1964 SC 207 | Cited by petitioner's counsel to support a broad reading of "notwithstanding" clauses. | The court observed that the controversy before it was different from that in the cited cases and found no occasion to apply the broader principle urged from these authorities. |
| Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 | Cited for principles concerning the effect of "notwithstanding" and constitutional provisions. | The court noted the difference in factual and legal context and did not apply the case's principle to hold the U.P. Act overridden. |
| N.P. Poonuswami v. Returning Officer, AIR 1952 SC 64 | Cited regarding the meaning/effect of "notwithstanding" clauses. | The court concluded the present controversy did not require application of the reasoning of that case. |
| Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 | Cited in support of the "notwithstanding" clause interpretation. | The court held that sub-article (3) would have overriding effect in appropriate circumstances, but those circumstances did not obtain in the present case. |
| S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 | Discussed the constitutionality of excluding High Court jurisdiction under Articles 226 and 227 and required that any substitute tribunal must be "equally efficacious" for review. | The court quoted this decision and used it to distinguish the U.P. Act (whose tribunals remain under High Court supervisory control) from the Central Act (which excludes High Court jurisdiction). The court therefore refused to strike down the U.P. Act on the ground invoked by petitioners. |
Court's Reasoning and Analysis
The court engaged in a step-by-step legal analysis strictly tied to the materials in the opinion:
- The court began by characterizing Articles 323-A and 323-B (inserted by the 42nd Amendment) as enabling, not self-executing, provisions. They authorize specified legislatures to make laws establishing tribunals but do not themselves effectuate repeal or ouster of pre-existing tribunal jurisdiction.
- The Administrative Tribunal Act, 1985 (Central Act) was held to be applicable to Central Government employees by its terms. For the Act to apply to State employees, the Central Government must bring it into force in a State by a notification under sub-clause (4) of Section 1 of the Central Act. The text of that sub-clause was reproduced in the opinion.
- It was admitted (and the court found) that no notification under Section 1(4) of the Administrative Tribunal Act, 1985 had been issued applying it to the State of U.P. Consequently, the Central Act did not apply ipso facto to State employees covered by the U.P. Act; therefore, the U.P. Public Services (Tribunals) Act, 1976 continued to govern their disputes.
- The court explained the constitutional doctrine of repugnancy: repugnancy arises primarily when both Union and State legislate in the same field under entries in the Concurrent List; Article 254(1) operates only where both laws relate to a subject in the Concurrent List and occupy the same field. The court relied on a series of prior decisions (summarized as guiding principles) to explain this test.
- The court observed that the State Legislature enacted the U.P. Act under its power from Entry 41 of List II (State Public Services). The enactment was within State competence and was not taken away merely by insertion of Articles 323-A and 323-B.
- The petitioner's contention of implied repeal (relying on pre-existing authorities) was rejected because, given that the Central Act was not in force for the State (no notification), there was no factual basis for concluding that the U.P. Act had been repealed or rendered inoperative.
- On the petitioner's argument that the "notwithstanding" language in sub-article (3) of Article 323-A automatically overrode the State Act, the court said that while the sub-article has overriding effect where applicable, the present controversy was not of the same character as the authorities relied upon; thus, the principle was not invoked to displace the State Act here.
- Regarding the submission to strike down Section 3 of the U.P. Act (invoking S.P. Sampath Kumar), the court distinguished the Central Act from the State Act on a critical point: the Central Act purports to exclude High Court jurisdiction under Articles 226 and 227, whereas the U.P. Act's tribunals remain under supervisory control of the High Court (their orders can be challenged under Article 226). Because the U.P. tribunal system does not leave a void in judicial review (unlike the Central Act's exclusion), the court would not declare sub-article (3) invalid on the ground urged.
- The court quoted the S.P. Sampath Kumar passage to emphasize that any law excluding High Court jurisdiction must set up an equally efficacious alternative; the U.P. scheme, being subject to High Court supervision, does not present the constitutional infirmity asserted by petitioners.
Holding and Implications
Holding: In the result, the writ petition fails and is rejected; the petition is dismissed. (As stated in the opinion: "The writ petition fails and is rejected. (Petition dismissed)")
Implications and direct effects:
- The U.P. Public Services (Tribunals) Act, 1976 remains operative and continues to govern service disputes of State employees of U.P., because the Administrative Tribunal Act, 1985 has not been applied to the State by notification under Section 1(4) of the Central Act.
- Tribunals constituted under the U.P. Act continue to function under the supervisory jurisdiction of the High Court (their orders can be challenged by writ petition under Article 226), distinguishing them from tribunals constituted under the Central Act which exclude High Court jurisdiction.
- The court found no basis to hold the U.P. Act repugnant to the Central Act in the factual circumstances before it and rejected arguments of implied repeal and automatic displacement via the "notwithstanding" clause.
- No broader constitutional invalidation of provisions of the U.P. Act was undertaken by the court; the immediate consequence is dismissal of the petition and preservation of the status quo as to the jurisdiction of the State tribunals. The opinion does not purport to announce a novel legal principle beyond its application to the facts before the court.
This summary is strictly confined to the facts, arguments, authorities and reasoning expressly set out in the provided opinion. No information has been invented or inferred beyond that text.
Delivered by Hon'ble K.C. Agarwal, J. -
This petition under Article 226 of the Constitution raises the same questions for decision, which arise in the connected writ petition nos. 5648 of 1987 Samar Veer Johri v. State of U. P., 4382 of 1987 Shashi Bala v. State, 4373 of 1987 Ashok Kumar v. State, and 4385 of 1987 Rajesh Kumar v. State of U.P.
2. The main arguments in this bunch had been advanced by Sri Amit Bose, Advocate. He was supported by Sri G.S.L. Verma, Advocate.
3. The points urged were:
“That after the enactment and implementation of the Central Administrative Tribunal Act, 1985 (Act No. 13 of 1985) (hereinafter referred to as Act No. 13 of 1985), by the Parliament, the U.P. Public Services (Tribunals) Act, 1976, (Act No. XVII of 1976) (hereinafter referred to as Act No. XVII of 1976) by the State Legislature has become redundant. The Tribunals created under Act No. XVII of 1976, therefore, have no power to adjudicate in respect of the matters relating to employment of the public servants of the State of U.P.”
4. In 1976, the State Legislature passed the U.P. Public Services (Tribunals) Act, 1976 to provide for the establishment of the Public Services Tribunals pertaining to the employment matters of the Government servants and also of the employees of the local authorities and Government Corporation and Companies, so that the employees could get quick and inexpensive justice.
5. The validity of the aforesaid Act was challenged before this Court in a number of cases. The Act was found valid.
6. articles 323-a and 323-b were inserted by the Constitution (42nd Amendment) Act, 1976 and appended a new chapter in Indian Constitutional and Administrative law by excluding judicial review of the administrative decisions. The intention behind the insertion of these two Articles was to provide for constitution of the Tribunals for exclusively deciding the cases of the Central Government employees, its Corporations etc. In pursuance of Article 323-A, the Parliament enacted the Administrative Tribunal Act, 1985 (Act No. 13 of 1985). The object of this Act was to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with regard to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or of any corporation owned or controlled by the Government and for matters connected therewith or incidental thereto.
7. After the enforcement of this Act, the Tribunals were constituted by the Central Government, in various States. section 14 of the aforesaid act lays down the powers and authority of the Central Administrative Tribunals. It further excluded all the jurisdiction, powers and authority exercisable before the enactment of Act No. XIII of 1985 by all Courts (except the Supreme Court under Article 136 of the Constitution) in relation to matters specified in clauses (a) to (c) of Section 14.
8. The first submission made by the petitioner's counsel was that in view of sub-article (3) of Article 323 A, the provisions of U.P. Act No. XVII of 1976 were deemed to have been repealed and, as such, the Tribunals created under the U.P. Act No. XVII of 1976 cease to have jurisdiction to try the service disputes in respect of the employees of the State of U.P. Sub-Article (3) reads as under : --
“The provisions of this article shall have effect not withstanding anything in any other provision of this Constitution or in any other law for the time being in force.”
9. Amongst others, the main submission of the petitioner's counsel was that U.P. Act No. XVII of 1976 is repugnant to the provisions of central act no. 13 of 1985 and, as such, the U.P. Act became inoperative. We had been taken through the various provisions of the two Acts by the learned counsel for the purpose of showing the inconsistency between them. Counsel urged that in view of Articles 245, 246 and 254 (2), the Central Act will; prevail over the State Act.
10. Neither Article 323 A nor 323 B is self-executing provision. They merely authorise the specified Legislature to make laws and set up such Tribunals and to include therein ancillary provisions. In other words, they only offer the constitutional authority for such legislation. It follows that so long as no law is made under Article 323 A (2)(d) or 323B(3)(d), the existing jurisdiction of the Tribunals created under a valid legislation would continue and will not be ousted simply because, according to the 42nd Amendment Act, these matters are triable by Tribunals to the exclusion of the Courts including the Tribunals created by the State Legislatures. Article 323 A (1) read with clause (d) would indicate that these are enabling provisions which have been given a constitutional authority for making of a law excluding the jurisdiction of the Civil Courts including that of the High Court.
11. The Administrative Tribunal Act,1985 became applicable to the employees of the Central Government, but so far as those of the States are concerned, it had to be made applicable to them by a notification to be made under sub-clause (4) of Section 1 of the Administrative Tribunal Act. Subclause (4) of Section 1 reads as under :
“The provisions of this Act, in so far as they relate to an Administrative Tribunal, for a State, shall come into force in a State on such date as the Central Government may, by notification, appoint.”
12. The Administrative Tribunal Act, 1985 did not become applicable ipso facto to the State employees and those who were governed by the U.P. Public Services (Tribunals) Act, 1976. It is admitted that no such notification as is provided under sub-section (4) of Section 1 of Act No. 13 of 1985, had been notified. Consequently, the Administrative Tribunal Act, 1985 does not apply to the State employees. The disputes relating to their service conditions are governed by the U.P. Public Services (Tribunals) Act, 1976. After the enactment of Article 323 A, a controversy arose in two cases before this court whether the U.P. Public Services (Tribunals) Act, 1976 had been rendered invalid. This court in Ramashraya Yadav v. State of U.P. and others, 1982 U.P. Services cases, 147, held:
“Article 323 A is merely an enabling provision and does not itself oust the jurisdiction of the Tribunals created by any Act. The enactment of U.P. Public Services (Tribunals) Act, 1976 was within the legislative competence of the State Legislature under Entry 41 of List II of the Seventh Schedule of the Constitution. In absence of a law enacted by the Parliament in exercise of the power conferred by Article 323 A, the question of repugnancy does not arise.”
13. Similar view was taken by another Division Bench in Lal ji Harijan v. State of U.P. and others, 1982 U.P. Services cases, 142. It is as under: --
“Article 323 A of the Constitution of India vested in the Union Legislature a concurrent power to provide for adjudication by administrative tribunals of service disputes but did not take away the powers of the State Legislature. Since Parliament has not enacted any such law, the law made by the State Legislature shall prevail.”
14. Power to enact a law is derived by the State Assembly from List II of the Seventh Schedule of the Constitution. Entry 41 confers upon a State Legislature the power to make “State Public Services; State Public Services Commission”. Under this Entry, a State Legislature has the power to constitute State Public Services and to regulate their service conditions, emoluments and provide for disciplinary matters etc.. This power had not been in any case taken away by the enactment of the Articles 323 A and 323 B of the Constitution. As a notification under sub-section (4) of Section 1 applying the Administrative Tribunal Act had not been issued, the State Legislature could have the power to enact on the matters covered by Entry 41 of List II of the Seventh Schedule. If an Act under Entry 41 had already been passed by the State Legislature, it would continue to have force and (be) applicable to all those who are covered by it. Article 323 A was merely an enabling provision and does not oust the jurisdiction of the Tribunals created by any other Act.
15. So far as the question of repugnancy argued by the learned counsel for the petitioner is concerned, we may mention that the question of repugnancy arises only when the two Acts have been passed by the Central and the State Legislature under an Entry made in the Concurrent List. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise when such laws operate in the same field and the two cannot possibly stand together. For all such cases, the law made by the Parliament shall prevail over the State Law under Article 254 (1).
16. The decisions of the Supreme Court in Zaverbhai v. State of Bombay, AIR 1954 SC 752, Tika Ramji v. State of U.P., AIR 1956 SC 676, Deep Chand v. State of U.P., AIR 1959 SC 648, Karunanidhi v. Union of India, AIR 1979 SC 898 and Hoechst Pharmaceuticals v. State of Bihar, AIR 1963 SC 1019, have settled the legal position.
17. The guiding principles in those decisions are, in a nutshell, as follows : --
(i) whether there is direct conflict between the two provisions;
(ii) whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and
(iii) whether the law made by Parliament and the law made by the State Legislature occupy the same field.
18. The underlying principle is that the question of repugnancy arises when both the Legislatures are competent to legislate in the same field with respect to one of the matters enumerated in the Concurrent List and, therefore, Article 254 (1) cannot apply unless both the Union and the State Laws relate to a subject specified in the Concurrent List and they occupy the same field.
19. This being the position, there appears to be no legal basis for accepting the argument of the petitioner's counsel. Both the Central as well as the State Legislature have acted in law in exercise of the powers conferred on them and not in the same field.
20. Counsel for the petitioner relied upon the following decision for the submission that the U.P. Act stood impliedly repealed.
1. AIR 1963 SC 1561, Municipal Council, Palai v. T.I. Joseph.
2. AIR 1963 SC 976, Trust Mal Luchhmi Sailkoti Baradari v. Amritsar Improvement Trust.
3. AIR 1962 SC 745, Mathura Prasad and Sons v. State of Punjab.
The submission is untenable. Subject to constitutional restriction, the general rule is that the power of a legislative body to repeal a law is co-extensive with its power to enact such a law. In the instant case, we have found above that the Administrative Tribunal Act does not apply to U.P. State as no notification under sub-section (4) of Section 1 has been notified. Consequently, there is no question of repeal. The U.P. Act will apply as before the enactment of the Administrative Tribunal Act, 1985.
2. Relying on sub-article (3) of Article 323 A, counsel urged that the expression “notwithstanding” indicates that irrespective of any thing, the U.P. Act had become redundant. He relies on the following cases for this proposition.
1. AIR 1964 SC 207: South India Corporation Pvt. Ltd. v. Secy. Board of Revenue.
2. AIR 1978 SC 851: Mohinder Singh Gill v. Chief Election Commissioner.
3. AIR 1952 SC 64: N.P. Poonuswami v. Returning Officer.
4. AIR 1955 SC 233: Hari Vishnu Kamath v. Ahmad Ishaque.
22. But the controversy, in the instant case, is not one which arose for decision in those cases. Sub-article (3) would, of course, have overriding effect but there is no occasion for applying that principle in the instant case.
23. Counsel next urged that this court should strike down Section 3 of the U.P. Public Services (Tribunals) Act, 1976 and give a direction to the State Government on the same lines as it was done by the Supreme Court in S.P. Sampat Kumar v. Union of India, AIR 1987 SC 386. There is a vital difference between the Administrative Tribunal Act and the U.P. Services (Tribunals) Act, 1976. Under the former Act, the High Court's jurisdiction under Article 226 and 227 has been completely excluded whereas the Tribunal created under the U.P. Public Services (Tribunals) Act are under the supervisory control of the High Court. Thus, the order or judgment passed by the Tribunal under the U.P. Public Services (Tribunals) Act can be challenged by means of a writ petition under Article 226 of the Constitution whereas that cannot be done as against a judgment of the Tribunal created under the Central Act. The Tribunal under the Central Act has been contemplated as a substitute and not as a supplement to the Act. Such is not the position in respect of the Tribunal under the U.P. Public Services (Tribunals) Act. Consequently, we cannot hold the provisions of sub-article (3) invalid on that ground. At this place, we may extract a portion of the judgment of the Supreme Court, which deals with this controversy, in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386. The same is as under:
“It must, therefore, be read as implicit in this constitutional amendment that the law excluding the jurisdiction of the High Court under Arts. 226 and 227 permissible under it must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the High Court under Arts. 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being within the ambit and coverage of Cl. (2) (d) of Art. 323 A, only if it “can be shown that the Administrative Tribunal set up under the impugned Act is equally efficacious as the High Court, so far as the power of judicial review over service 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 of judicial review as the High Court acting under Articles 226 and 227 of the Constitution.”
24. In the result, the writ petition fails and is rejected.
(Petition dismissed)
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