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TMI Blog2023 (3) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... sing to fill the vacancies in the OAT or not - failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT - Union Government became functus officio after establishing the OAT. An overview of the proceedings arising from the abolition of the Madhya Pradesh Administrative Tribunal (MPAT) and the Tamil Nadu Administrative Tribunal (TNAT) - HELD THAT:- The MPAT Abolition Case [ 2004 (9) TMI 665 - SUPREME COURT] concerned the powers of the State of Madhya Pradesh under the Madhya Pradesh Reorganization Act 2000 as well as the constitutional validity of certain provisions of that enactment. This Court was not called upon to adjudicate whether Section 21 of the General Clauses Act would be applicable to Section 4(2) of the Administrative Tribunals Act. A decision on the abolition of an SAT by the exercise of special powers under a legislation enacted for the reorganization of a state does not have any bearing on whether an SAT may be abolished in exercise of powers under the Administrative Tribunals Act. The MPAT Abolition Case is therefore not germane to the issue of whether Section 21 of the General Clauses Act would be applicable to Section 4(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word shall. Article 323-A is a directory, enabling provision which confers the Union Government with the discretion to establish an administrative tribunal. The corollary of this is that Article 323-A does not act as a bar to the Union Government abolishing an administrative tribunal once it is created. Applicability of Section 21 of the General Clauses Act - HELD THAT:- This Court answered in the negative because Section 3 of the Commissions of Inquiry Act 1952 provided for the power to fill any vacancies whereas Section 7 provided for the only situation in which a Commission which was already constituted would cease to exist. This Court observed that the Commissions of Inquiry Act 1952 did not provide for the power to reconstitute a Commission or replace its members. The scheme of the enactment and its context indicated that Section 21 of the General Clauses Act could not be invoked. Further, the object of the Commissions of Inquiry Act 1952 would be frustrated if the appropriate government were permitted to reconstitute a Commission midway through the task that it was charged with completing because it made it possible for an independent agency to exist, free from government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, parties are free to seek judicial review or to prefer an appeal. Alternatively, their rights are determined with finality. Similar considerations do not apply to decisions by the state which are based entirely on policy or expediency. In the present case, the State and Union Governments' authority has not been exhausted after the establishment of an SAT. Similarly, the State and Union Governments cannot be said to have fulfilled the purpose of their creation and to be of no further virtue or effect once they have established an SAT. The state may revisit its policy decisions in accordance with law. For these reasons, the Union Government was not rendered functus officio after establishing the OAT. The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India - HELD THAT:- In the present case, the notification dated 2 August 2019 was not issued in the name of the President. However, this does not render the notification invalid. The effect of not complying with Article 77 is that the Union Government cannot claim the benefit of the irrebuttable presumption that the notification dated 2 August 2019 was issued by the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sa High Court was limited to the validity of the decision to abolish the OAT. The failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT does not vitiate its decision to abolish the OAT - HELD THAT:- An assessment such as the one directed to be conducted would only shed light on the impediments faced in the delivery of justice. The lack of an assessment precludes any well-informed, intelligent action concerning tribunals in the country (as a whole). This, in turn, has cascading effects for the citizenry, which is deprived of a well-oiled machinery by which it can access justice. We therefore reiterate the directions of this Court in Rojer Mathew [ 2019 (11) TMI 716 - SUPREME COURT] and direct the Ministry of Law and Justice to conduct a judicial impact assessment at the earliest. Thus, the abolition of the OAT was constitutionally valid - The challenge to the constitutional validity of the impugned notification dated 2 August 2019 by which the OAT was abolished is rejected. The judgment of the High Court shall stand affirmed. Appeal dismissed. - DR. D.Y. CHANDRACHUD, C.J.I. AND HIMA KOHLI, J. For the Appellant : Ashok Panigrahi, AOR, Rag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government shall establish an administrative tribunal known as the Central Administrative Tribunal CAT to adjudicate disputes concerning the recruitment and conditions of service of persons in connection with posts under the Union or All-India Service, Section 14 read with Section 3(q), Administrative Tribunals Act including disputes with respect to remuneration, pension, tenure, leave, and disciplinary matters. Section 3(q), Administrative Tribunals Act In terms of Section 4(2) of the Administrative Tribunals Act, the Central Government may establish an administrative tribunal for a particular state, upon receiving a request in this regard from the concerned State Government. Once created, the state administrative tribunal SAT is charged with exercising exclusive jurisdiction over disputes concerning the recruitment and conditions of service of persons in connection with posts under the concerned state or any civil service of that state, Section 15 read with Section 3(q), Administrative Tribunals Act including disputes with respect to remuneration, pension, tenure, leave, and disciplinary matters. Section 3(q), Administrative Tribunals Act 6. The SAT is prohibited from exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar v. Union of India (1997) 3 SCC 261. In its decision in that case, this Court inter alia ruled that: a. Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B were unconstitutional to the extent that they excluded the jurisdiction of the High Courts Under Articles 226 and 227 and of the Supreme Court Under Article 32 of the Constitution; b. Section 28 of the Administrative Tribunals Act was unconstitutional as were 'exclusion of jurisdiction' clauses in all other legislation enacted Under Articles 323-A and 323-B; c. The jurisdiction conferred upon the High Courts Under Articles 226 and 227 and upon the Supreme Court Under Article 32 of the Constitution form a part of the basic structure of the Constitution; and d. Other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. As a consequence of this decision, challenges Under Article 226 of the Constitution to the decisions rendered by the SATs lay to Division Benches of the respective High Courts within whose jurisdiction the SATs operated. The Supreme Court's jurisdiction could be invoked Under Article 136 against the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court, and regarding the plan of action with respect to the employees of the OAT. Accordingly, on 1 February 2016, the State of Odisha solicited the Orissa High Court's views on the matter. Thereafter, the Union Government communicated its 'in-principle' approval of the proposal to abolish the OAT to the State of Odisha. 10. By a letter dated 5 February 2019 to the Union Government and the State of Odisha, the Orissa High Court conveyed that that it had resolved to accept the decision to abolish the OAT and the attendant proposals regarding the transfer of employees and pending cases. On 22 February 2019, the State of Odisha wrote to the Union of India, intimating it that the employees of the OAT would be suitably adjusted in other heads of the department under the Government of Odisha depending upon the vacancies in equivalent cadre and post. The letter also stated that the State Government had decided to transfer the cases pending before the OAT to the Orissa High Court and that the latter had accepted this decision. 11. The Union Government took recourse to Section 21 of the General Clauses Act 1897 General Clauses Act and abolished the OAT by issuing Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nments was not arbitrary, irrational, or unreasonable, and it did not violate Article 14 of the Constitution; h. There is no factual foundation for the allegation that the decision to abolish the OAT was motivated by government servants seeking to avoid contempt proceedings before the OAT. In any event, all cases including contempt proceedings would be heard by the Orissa High Court; and i. The notification dated 2 August 2019 was not vitiated for the reason that it did not state that it had been issued in the name of the President of India. The High Court also observed that the procedure adopted by the Union Government may have been rendered arbitrary if it had failed to ensure that the High Court was consulted prior to abolishing the OAT because such a decision would directly impact the functioning of the High Court. B. Submissions 13. Mr. Ashok Panigrahi and Dr. Aman Hingorani, learned Counsel led arguments on behalf of the Appellants. They were joined by Mr. C Ravichandran Iyer, Advocate-on-Record, who is an intervenor in this appeal. 14. Their submissions were: a. Article 323-A of the Constitution is in the nature of a mandate. It requires the Union Government to establish SAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one has the power to create or enlarge jurisdiction; k. The real reason for the abolition of the OAT is that officials in Odisha faced charges of contempt before the OAT and sought to avoid these proceedings by having the OAT abolished; l. A judicial impact assessment ought to have been carried out before abolishing the OAT; m. Once the Union Government established the OAT, it became functus officio; and n. The Union Government ought to have obtained the permission of this Court before issuing the notification dated 2 August 2019. 15. The submissions urged on behalf of the Appellants have been opposed by the Union of India and the State of Odisha. Mr. Balbir Singh, Additional Solicitor General made the following submissions for the Union of India: a. Section 4(2) of the Administrative Tribunals Act enables the Union Government to establish an SAT upon receiving a request in this behalf from the State Government. Consequently, it is the prerogative of the State Government to establish, continue, or abolish the relevant SAT; b. Section 21 of the General Clauses Act may be pressed into service to abolish an SAT. Neither the Constitution nor the Administrative Tribunals Act is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for shifting pending cases, and a dedicated branch called the 'OA Branch' was created to deal exclusively with transferred matters. C. Issues 18. Based on the submissions which have been canvassed by the parties, the issues which arise for determination are: a. Whether the Writ Petitions instituted by the Appellants before the Orissa High Court were maintainable; b. Whether Article 323-A of the Constitution makes it mandatory for the Union Government to establish SATs; c. Whether Section 21 of the General Clauses Act can be invoked to rescind the notification establishing the OAT, thereby abolishing the OAT; d. Whether the abolition of the OAT is arbitrary and therefore violative of Article 14 of the Constitution; e. Whether the abolition of the OAT is violative of the fundamental right of access to justice; f. Whether the Union and State Governments have violated the principles of natural justice by failing to provide the OAT Bar Association and the litigants before the OAT with an opportunity to be heard before arriving at a decision to abolish the OAT; g. Whether the notification dated 2 August 2019 is invalid because it is not expressed in the name of the President of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was required to request the Union Government to issue a notification abolishing the MPAT because the MPAT was established by the Union Government. It held that the Union Government would have no choice but to accept such a request and issue a notification to this effect. The High Court accordingly quashed the notification issued by the State of Madhya Pradesh by which the MPAT was abolished. 23. On appeal, this Court upheld the interpretation accorded to the Madhya Pradesh Reorganization Act 2000 by the Madhya Pradesh High Court. The decision of this Court was reported as M.P. High Court Bar Assn. v. Union of India (2004) 11 SCC 766. MPAT Abolition Case As seen from a discussion of the facts, the MPAT Abolition Case (supra) concerned the powers of the State of Madhya Pradesh under the Madhya Pradesh Reorganization Act 2000 as well as the constitutional validity of certain provisions of that enactment. This Court was not called upon to adjudicate whether Section 21 of the General Clauses Act would be applicable to Section 4(2) of the Administrative Tribunals Act. A decision on the abolition of an SAT by the exercise of special powers under a legislation enacted for the reorganiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal could be adjudicated on merits, the Union Government issued a notification on 17 February 2006 abolishing the TNAT. On 28 March 2017, this Court dismissed the appeal for having become infructuous. It observed that the question of law had been kept open. 25. The TNAT Abolition Case (supra) does not hence constitute a precedent which binds this Court. The proceedings arising from the TNAT Abolition Case (supra) in appeal before this Court, too, do not have a bearing on the approach to be adopted while deciding the merits of the issues before us because the question of law was expressly kept open. ii. The Writ Petitions instituted before the Orissa High Court were maintainable 26. The State of Odisha has interrogated the maintainability of the Writ Petitions instituted by the Appellants before the Orissa High Court (which led to the impugned judgment) on the ground that the rights of the Petitioners were not impacted by the abolition of the OAT. 27. The Appellants are the OAT Bar Association, Cuttack and the Odisha Retired Police Officers' Welfare Association. Both associations are registered under the Societies Registration Act 1860. Section 6 of the Societies Registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court Under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court Under Article 226 is wide in that sense, the concluding words of the Article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition Under Article 226. (emphasis supplied) 30. In this case, the Odisha Retired Police Officers' Welfare Association alleged that its right to speedy redressal of grievances (a facet of the fundamental right of access to justice) was violated. The OAT Bar Association joined the Odisha Retired Police Officers' Welfare Association in alleging that the state's action of abolishing the OAT violated its right Under Article 14 of the Constitution. Having alleged that these rights were violated by the abolition of the OAT, they were entitled to invoke the High Court's jurisdiction Under Article 226 of the Constitution. Whether there is substance in the grievance is a separate matter which has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Parliament to enact a law to give effect to it. Parliament is entrusted with the discretion to enact a law which provides for the adjudication of certain disputes by administrative tribunals. It is a permissive provision. The provision is facilitative and enabling. 33. However, in certain cases, the power to do something may be coupled with a duty to exercise that power. In Official Liquidator v. Dharti Dhan (P) Ltd. (1977) 2 SCC 166, this Court expounded on when the word may carries with it an obligation to exercise the power conferred by that word in a particular manner: 8. Thus, the question to be determined in such cases always is whether the power conferred by the use of the word may has, annexed to it, an obligation that, on the fulfilment of certain legally prescribed conditions, to be shown by evidence, a particular kind of order must be made. If the statute leaves no room for discretion the power has to be exercised in the manner indicated by the other legal provisions which provide the legal context. Even then the facts must establish that the legal conditions are fulfilled... It is not the conferment of a power which the word may indicates that annexes any obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enact laws providing for the adjudication of certain disputes by administrative tribunals must be exercised. It therefore cannot be said that Parliament was obligated to exercise this power upon the fulfilment of certain conditions. 37. The legal and factual context of the power to enact laws providing for administrative tribunals may be understood from the Statement of Objects and Reasons appended to the Constitution (Forty-fourth Amendment) Bill 1976. The Statement of Objects indicates that the object was To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters Under Article 136 of the Constitution. It is also necessary to make certain modifications in the writ jurisdiction of the High Courts Under Article 226. The Statement of Objects and Reasons also sheds light on the purpose of the power to provide for administrative tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts of members and chairpersons of the tribunals; f. Whether SATs do indeed reduce arrears in the High Courts and streamline the justice delivery mechanism; g. The cost incurred by the state; and h. The costs (monetary and otherwise) to litigants. The Orissa High Court refers to some of these factors in paragraphs 70 to 75 of the impugned judgment albeit in a slightly different context. The intention of Parliament could not have been to prevent the Union or State Governments from evaluating the efficiency and desirability of administrative tribunals once they were established. However, the effect of reading Article 323-A as a mandatory provision would be to do precisely that. 39. The Appellants have relied on the decision of this Court in Dilip K. Basu v. State of West Bengal (2015) 8 SCC 744 to argue that it is mandatory for the Union Government to establish SATs. In that case, this Court was required to interpret Section 21 of the Protection of Human Rights Act 1993 which stipulated that State Governments may constitute a State Human Rights Commission. The question was whether the word may ought to be read as the word shall. This Court noted that the Protection of Human Rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, Rules or byelaws so issued. 43. The Appellants contend that the Union Government could not have taken recourse to Section 21 of the General Clauses Act. A two-step analysis must precede the answer to the question posed by the Appellants. a. There is no bar to the applicability of Section 21 of the General Clauses Act to the administrative order establishing the OAT 44. In Indian National Congress (I) v. Institute of Social Welfare (2002) 5 SCC 685, this Court held that Section 21 of the General Clauses Act cannot be pressed into service to vary, amend, or review a quasi-judicial order or notification. It is important to note that a quasi-judicial order or notification cannot be rescinded by relying upon Section 21 of the General Clauses Act. The notification dated 2 August 2019 rescinded the notification dated 4 July 1986 by which the OAT was established. It is therefore the notification dated 4 July 1986 which established the OAT which must be analysed to determine whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ively is dictated by the policy and expediency. 47. In Board of High School and Intermediate Education v. Ghanshyam Das Gupta AIR 1962 SC 1110, this Court expounded upon when an authority is required to act judicially: 8.... Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the right affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. 48. From the above decisions, it emerges that: a. The decision of an authority is prima facie, and in the absence of any other factor, a quasi-judicial act when there is a lis befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of Section 21 of the General Clauses Act does not stand excluded in the present case. 51. The Appellants' reliance on Industrial Infrastructure Development Corporation (Gwalior) M.P. Ltd. v. CIT (2018) 4 SCC 494 is misplaced for similar reasons. In that case, Section 21 of the General Clauses Act was found to be inapplicable to the order because it was a quasi-judicial order. For the reasons discussed above, the order establishing the OAT is an administrative order. 52. We clarify that the distinction between quasi-judicial and administrative decisions has been invoked for the purpose of determining whether Section 21 of the General Clauses Act may be invoked to reverse the decision to establish an SAT. Administrative orders continue to be amenable to judicial review in accordance with law. b. Section 21 of the General Clauses Act is otherwise applicable to the Administrative Tribunals Act 53. Having decided that there is no threshold bar to the applicability of Section 21 of the General Clauses Act, we now consider whether it applies in the present case. The locus classicus on this subject is State of Bihar v. D.N. Ganguly 1959 SCR 1191, where this Court held: 9.... It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction of the tribunal if the cause of action in such suit or proceeding had arisen after the establishment of the tribunal, stands transferred to the tribunal on the date of its establishment. 57. The Administrative Tribunals Act does not contain a provision and a corresponding procedure for the abolition of an SAT once it is established. However, this does not mean that the abolition of an SAT, once it is set up, is impermissible. First, the Administrative Tribunals Act does not proscribe the abolition of an SAT by the Union Government, upon the latter receiving a request from the concerned State Government. Second, nothing in the scheme of the statute implies or suggests that such an abolition would be incompatible with the objective sought to be achieved. To the contrary, if the concerned State Government is of the considered view that the SAT is failing to meet the objectives of the Administrative Tribunals Act or that an alternate route for meeting the same objectives is preferable to that of operating an SAT, it is free to act upon its view and request the Union Government to abolish the SAT. An amendment to the Administrative Tribunals Act is not a prerequisite for the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h (supra), this Court held that the Rule of construction embodied in Section 21 of the General Clauses Act did not apply to the provisions of the Commissions of Inquiry Act 1952 because the subject-matter, context and effect of its provisions were inconsistent with the application of Section 21. In that case, the State of Madhya Pradesh had constituted a single-member high powered committee to investigate an issue of public importance that had arisen within its territory. It later attempted to reconstitute the high-powered committee by replacing the single member. The question in Ajay Singh (supra) was whether the state government could rely on Section 21 of the General Clauses Act to rescind the notification by which it had appointed the member at the first instance. 61. This Court answered in the negative because Section 3 of the Commissions of Inquiry Act 1952 provided for the power to fill any vacancies whereas Section 7 provided for the only situation in which a Commission which was already constituted would cease to exist. This Court observed that the Commissions of Inquiry Act 1952 did not provide for the power to reconstitute a Commission or replace its members. The scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r them futile. M. Pentiah v. Muddala Veeramallappa (1961) 2 SCR 295 64. The Appellants have also submitted that what cannot be done directly cannot be done indirectly. For the reasons discussed above, neither Article 323-A of the Constitution nor the Administrative Tribunals Act prohibit the abolition of SATs. Hence, it cannot be said that the Union Government is barred from abolishing the SATs directly and that it has resorted to Section 21 of the General Clauses Act to evade such a ban and indirectly abolish the OAT. The Union Government's reliance on Section 21 of the General Clauses Act to abolish the OAT is legally permissible. 65. The Appellants have urged that the Administrative Tribunal (Amendment) Bill 2006 was introduced in Parliament to provide an enabling provision for the abolition of SATs and for the transfer of pending cases from the abolished SAT to the relevant High Court. This bill was referred to the Rajya Sabha Standing Committee on Personnel, Public Grievances, Law and Justice, which submitted its report on 5 December 2006. The report recommended that the power to abolish an SAT should not be granted to the executive. It is argued that the Union Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission which is made on a question of law by counsel appearing for a party (in this case, the state) cannot bind that party or for that matter, preclude this Court from correctly interpreting the law. The Union Government's stance before the Madras High Court in the TNAT Abolition Case (supra) will therefore not steer this Court's exegesis of the law. 69. At this juncture, we may also deal with three interrelated arguments put forward by the Appellants with respect to the transfer of cases from the abolished OAT to the Orissa High Court: a. The Constitution of India (including Article 323-A) does not envisage a transfer of cases from any court or tribunal to a particular High Court except in terms of Article 228 of the Constitution; b. While Section 29 of the Administrative Tribunals Act provides for the transfer of cases from the High Courts (or other courts and authorities) to the relevant SATs, there is no provision which enables the transfer of cases from the abolished SATs back to the forum in which they would have been heard if not for the establishment of SATs; and c. The abolition of the OAT has the effect of enlarging the jurisdiction of the Orissa High Court but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... airness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. (emphasis supplied) The State Government's decision to abolish the OAT will therefore have to be scrutinized with a view to understanding whether any extraneous or irrelevant considerations intruded into the decision. 74. The phrase 'arbitrary' is often used synonymously with the phrase 'unreasonable.' The test as to whether an action is reasonable was formulated by the Court of Appeal in Associated Provincial Picture Houses, Limited v. Wednesbury Corporation [1948] 1 K.B. 223: It is true the discretion must be exercised reasonably. Now what does that mean?... For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s extracted below: This is to state that the State Administrative Tribunal has been functioning in Odisha since 14.07.1986. Government of Odisha is of the view that the Tribunal is not able to serve its original objectives, particularly after the Hon'ble Apex Court gave the judgment in L. Chandra Kumar case of 1997. As a result of this judgment, very purpose of having a State Administrative Tribunal (SAT) for speedy redressal of the grievances of the State Government employees is not fulfilled as any way the aggrieved parties have to approach the Hon'ble High Court before approaching the Apex Court for a final verdict. Government of Odisha, after taking into account this, have decided to recommend to the Government of India to abolish the Odisha Administrative Tribunal. A note indicating the rationale adopted by the State Government in arriving at this decision is enclosed herewith for your ready reference. (emphasis supplied) 76. Similar reasons have been recorded in various other documents of the State Government which relate to the abolition of the OAT. The State Government requested the Union Government to establish the OAT with a view to creating an alternate forum to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose that it intended to achieve with the establishment of the OAT. Tribunals, including administrative tribunals, may be set up for any number of reasons. All the reasons which could possibly or theoretically have had a bearing on the State Government's decision to establish the OAT are not relevant. Only the State Government's actual reason for establishing the OAT is relevant in considering whether it misinterpreted L. Chandra Kumar's case (supra). The State Government's reason for setting up the OAT was to achieve speedy justice. A crucial factor (to its mind) was the elimination of a tier of litigation. The State Government was of the opinion that the creation of the OAT would not fulfil the purpose of a speedy redressal of grievances because there was no improvement to the justice delivery system through the elimination of a tier of litigation. 79. As for the submission that the Orissa High Court's pendency will increase if the cases pending before the OAT are transferred to it, the State Government is entitled to structure its justice delivery systems within the parameters defined by law. Its decision may be set aside only if it is unconstitutional or wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abolish the OAT was not one which was so absurd that no reasonable person or authority would ever have taken it. The decision to abolish a tribunal which it had established, based on an analysis of relevant factors is, by no stretch of imagination, an absurd or unreasonable decision. 82. This Court reached a similar conclusion in the MPAT Abolition Case (supra). The Appellants in that case argued that the decision to abolish the MPAT was arbitrary, unreasonable, and violative of Article 14 of the Constitution. This Court rejected their argument in the following terms: 57.... The notification was issued by the Central Government in 1988 and the State Administrative Tribunal was established for the State of Madhya Pradesh. At that time, as per well-settled legal position, decisions rendered by the Administrative Tribunals constituted under the Act of 1985 were final subject to jurisdiction of this Court Under Article 136 of the Constitution.... If, in view of subsequent development of law in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L S) 577 : AIR 1997 SC 1125] the State of Madhya Pradesh felt that continuation of State Administrative Tribunal would be one more tier in the admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desirable and would facilitate a participatory democracy. However, each member of the class that would be impacted by a policy decision cannot be afforded an opportunity of hearing. This would not only be time consuming and expensive, but deeply impractical. 86. BALCO Employees' Union (Regd.) v. Union of India (2002) 2 SCC 333 concerned the validity of the decision of the Union of India to disinvest and transfer 51% shares of Bharat Aluminium Company Limited. The Petitioner in that case (the union of the company's employees) inter alia submitted that it had a right to be heard before and during the process of disinvestment. This Court rejected this argument, observing that: 57.... As a matter of good governance and administration whenever such policy decisions are taken, it is desirable that there should be wide range of consultations including considering any representations which may have been filed, but there is no provision in law which would require a hearing to be granted before taking a policy decision. In exercise of executive powers, policy decisions have to be taken from time to time. It will be impossible and impracticable to give a formal hearing to those who m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that the authority is exhausted 90. Black's Law Dictionary (5th edition) defines the term as follows: Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority... an instrument, power, agency, etc. which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect. 91. The doctrine of functus officio gives effect to the principle of finality. Once a judge or a quasi-judicial authority has rendered a decision, it is not open to her to revisit the decision and amend, correct, clarify, or reverse it (except in the exercise of the power of review, conferred by law). Once a judicial or quasi-judicial decision attains finality, it is subject to change only in proceedings before the appellate court. 92. For instance, Section 362 of the Code of Criminal Procedure 1973 provides that a court of law is not to alter its judgment once it is signed: 362. Court not to alter judgment.--Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... social welfare would be frozen if the doctrine of functus officio were to be applied to administrative decisions. This is not conceivable because it would defeat the purpose of having a government and the foundation of governance. By their very nature, policies are subject to change depending on the circumstances prevailing in society at any given time. The doctrine of functus officio cannot ordinarily be applied in cases where the government is formulating and implementing a policy. 96. In the present case, the State and Union Governments' authority has not been exhausted after the establishment of an SAT. Similarly, the State and Union Governments cannot be said to have fulfilled the purpose of their creation and to be of no further virtue or effect once they have established an SAT. The state may revisit its policy decisions in accordance with law. For these reasons, the Union Government was not rendered functus officio after establishing the OAT. vii. The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India 97. The Appellants challenge the notification dated 2 August 2019 on the ground that it does not comply with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken in the name of President, does not render it invalid. Clause (2) of Article 77 insulates an executive action of the Government formally taken in the name of President from challenge on the ground that it is not an order or instrument made or executed by President. Even if an executive action of the Central Government is not formally expressed to have been taken in the name of President, Article 77 does not provide that it would, therefore, be rendered void or invalid.... In Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195, a two-judge bench of this Court held: 25.... Shortly stated, the legal position is this: Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in Rule (2) of the said Article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any non-compliance with the provisions of the said Rule does not invalidate the order, but it prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary, Section 4 of the Administrative Tribunals Act empowers the Union Government to issue a notification establishing the OAT and as discussed previously, the attendant power to rescind a notification so issued is also available to the Union Government. The issuance of both notifications was an exercise of the Union Government's statutory power under the Administrative Tribunals Act. 104. The Appellants place reliance on the decision of a Constitution Bench of this Court in Dattatraya Moreshwar Pangarkar v. State of Bombay (1952) 1 SCC 372 and specifically on the sentence in paragraph 24, which states: 24....when the executive decision affects an outsider or is required to be officially notified or to be communicated it should normally be expressed in the form mentioned in Article 166(1) i.e. in the name of the Governor. 105. The Appellants have failed to notice the very next sentence in paragraph 24, by which this Court accepts the argument that Article 166 is a directory provision: 24.... The learned Attorney General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support their case. However, the decision in this case does not support the position urged by the Appellants because it, too, holds that the consequence of non-compliance with Article 77(1) is that it deprives the Union Government of the immunity conferred by Article 77(2). It also notices that executive action exercised pursuant to powers conferred under a statute stands on a different footing from executive action taken independent of a statute: 19. Article 77 of the Constitution provides the form in which the Executive must make and authenticate its orders and decisions. Clause (1) of Article 77 provides that all executive action of the Government must be expressed to be taken in the name of the President. The celebrated author H.M. Seervai in Constitutional Law of India, 4th Edn., Vol. 2, 1999 describes the consequences of government orders or instructions not being in accordance with Clauses (1) or (2) of Article 77 by opining that the same would deprive the orders of the immunity conferred by the aforesaid clauses and they may be open to challenge on the ground that they have not been made by or under the authority of the President in which case the burden would be on the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India. However, it cannot be interpreted to mean that every village, town, or city must house every forum of adjudication created by statute or the Constitution. It is an undeniable fact that some courts and forums will be located in some towns and cities and not others. Some or the other litigants will be required to travel some distance to access a particular forum or court. 112. To reiterate the ruling in Anita Kushwaha (supra), adjudicatory mechanisms must be reasonably accessible in terms of distance. The High Court of Orissa has creatively utilised technology to bridge the time taken to travel from other parts of Odisha to Cuttack. Indeed, other High Courts must replicate the use of technology to ensure that access to justice is provided to widely dispersed areas. This will ensure that citizens have true access to justice by observing and participating in the proceedings before the High Courts in cases of concern to them. The submission made on behalf of the State of Odisha that compensation schemes may be used to alleviate financial hardships must also be taken into account. Further, legal aid programs sponsored by the state are also useful in addressing any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This led to the OAT Bar Association, Cuttack filing W.P.(C) No. 15693 of 2017 in this Court seeking a mandamus to the Government of Odisha to fill up the vacancies in the OAT. (emphasis supplied) Therefore, the State Government discontinued appointments to the OAT as a result of its decision to abolish the OAT and not vice versa. The Appellants' averment confuses the sequence of events on which their argument is based. The State Government based its decision on an evaluation of the OAT's functioning in the year 2014, which was prior to its decision to abolish the OAT. Hence, there is no wrong which the State Government took advantage of. Similarly, we do not agree with the argument of the Appellants that the Union of India had systematically made the OAT non-functional. 118. A related argument put forth by the Appellants is that the State Government's failure to fill the vacancies in the OAT is a breach of Article 256 of the Constitution. Article 256 inter alia stipulates that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament. It is not necessary for us to address ourselves to this argument because the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr. D.Y. Chandrachud, J. or Deepak Gupta, J. contain a direction to the effect that a tribunal shall not be abolished in the absence of a judicial impact assessment. In the present case, the Union Government issued the notification dated 2 August 2019 in a valid exercise of its powers Under Section 21 of the General Clauses Act. The failure to conduct a judicial impact assessment does not vitiate its decision to abolish the OAT. Nothing in the judgment in Rojer Mathew (supra) also indicates the need for the Union Government to obtain the permission of this Court before abolishing the OAT. 122. However, this is not to say that the Union Government and more specifically, the Ministry of Law and Justice may dispense with the directions of this Court in Rojer Mathew (supra). The judgment was delivered on 13 November 2019. More than three years have since passed and the Ministry of Law and Justice is yet to conduct a judicial impact assessment. 123. An assessment such as the one directed to be conducted would only shed light on the impediments faced in the delivery of justice. The lack of an assessment precludes any well-informed, intelligent action concerning tribunals in the country ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the intention of the legislature establish that there is no duty to exercise the power conferred by the Administrative Tribunals Act, such that the enabling provision becomes a mandatory provision; c. The Union Government acted in valid exercise of its powers when it invoked Section 21 of the General Clauses Act read with Section 4(2) of the Administrative Tribunals Act to rescind the notification establishing the OAT because the decision to establish the OAT was an administrative decision and not a quasi-judicial decision. Moreover, Section 21 of the General Clauses Act is not repugnant to the subject-matter, context and effect of the Administrative Tribunals Act and is in harmony with its scheme and object; d. The notification dated 2 August 2019 by which the OAT was abolished is not violative of Article 14 of the Constitution. The State Government did not consider any irrelevant or extraneous factors while arriving at the decision to request the Union Government to abolish the OAT. The decision to abolish the OAT is itself not absurd or so unreasonable that no reasonable person would have taken it; e. The principles of natural justice were not violated because the class of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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