ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA & OTHERS

Citation: [2023] 6 S.C.R. 731

Court: Supreme Court of India

Bench: DR. DHANANJAYA Y CHANDRACHUD, CJI AND HIMA KOHLI, JJ.

Judgment text

SUPREME COURT OF INDIA ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA & OTHERS Writ petition before the Orissa High Court alleging violation of constitutional rights by abolition of OAT ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA & OTHERS (Civil Appeal No 6805 of 2022) MARCH 21, 2023 [DR. DHANANJAYA Y CHANDRACHUD, CJI AND HIMA KOHLI, JJ. ] Constitution of India: Art. 226 - Odisha Administrative Tribunal-OAT - Abolition of, by Notification No. GSR 552(E) dt 2 August 2019 - Constitutional Validity of the Notification - Held: Abolition of OAT is constitutionally valid - Challenge to the constitutional validity of the impugned notification dated 2 August 2019 by which the OAT was abolished is rejected - Administrative Tribunals Act, 1985 - s. 4(2) - General Clauses Act, 1897 - s. 21.

Article 226 - Odisha Administrative Tribunal-OAT - Abolition of - Writ petition before the Orissa High Court alleging violation of constitutional rights by abolition of OAT - Maintainability of - Held: Writ petitioners entitled to invoke jurisdiction of the High Court u/ Art. 226. Arts. 323A and 323B - Administrative Tribunal - Establishment of State Administrative Tribunals-SAT by the Union Government, if mandatory u/Art. 323-A - Held: Word 'may' in Art. 323-A is not imparted with the character of the word 'shall' - Art. 323-A does not preclude the Union Government from abolishing SATs - Art. 323-A is a directory, enabling provision which confers the Union Government with the discretion to establish an administrative tribunal - Art. 323-A does not act as a bar to the Union Government abolishing an administrative tribunal once it is created - Administrative Tribunals Act, 1985. Art. 14 - Notification dated 2. 8.

2019 by which Odisha Administrative Tribunal-OAT was abolished - If arbitrary and thus, violative of Art. 14 - Held : Notification dated 2. 08. 2019 by which the OAT was abolished is not violative of Art. 14 - State Government did not consider any irrelevant or extraneous factors while arriving 731 at the decision to request the Union Government to abolish the OAT - Decision to abolish the OAT is itself not absurd or so unreasonable that no reasonable person would have taken it - Administrative Tribunals Act, 1985. Art. 14 - Abolition of the Odisha Administrative Tribunal- OAT, if violative of the fundamental right of access to justice - Held : Abolition of the OAT not violative of the fundamental right of access to justice - Orissa High Court will hear cases which were pending before the OAT prior to its abolition - Administrative Tribunals Act, 1985. Art.

14 - Abolition of Odisha Administrative Tribunal-OAT - Plea that Union and State Governments violated the principle of natural justice by failing to provide the OAT Bar Association and litigants before the OAT with an opportunity to be heard before abolishing the OAT - Held: Principles of natural justice not violated - Class of people who were affected by the decision to abolish the OAT did not have a right to be heard - Public at large (or some sections of it) did not have a right to be heard before the policy decision was taken - Principles of natural justice - Administrative Tribunals Act,1985. Art. 77 - Notification dated 2. 08. 2019 abolishing OAT - Not expressed in the name of the President of India - Validity of - Held: Notification dated 2. 08. 2019 is valid though it is not expressed in the name of the President of India - Non-compliance with Art. 77 does not invalidate a notification or render it unconstitutional - Administrative Tribunals Act, 1985.

Administrative Tribunals Act,1985: Establishment of Odisha Administrative Tribunal-OAT - Union Government if rendered functus officio after establishing the OAT - Held: Union Government did not become functus officio after establishing the OAT - Doctrine of functus officio cannot ordinarily be applied in cases where the government is formulating and implementing a policy. Establishment of Odisha Administrative Tribunal-OAT - Plea that State Government took advantage of its own wrong by ceasing to fill the vacancies in the OAT - Held: State Government did not ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA take advantage of its own wrong - It stopped filling the vacancies of the OAT only after deciding to abolish it - It did not rely on the vacancies (and the consequent increase in pendency) created by its inaction to abolish the OAT.

Odisha Administrative Tribunal-OAT - Judicial impact assessment - Conduct of before abolishing the OAT - Failure by the Union Government, if vitiates its decision to abolish the OAT - Held: Failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT does not vitiate its decision to abolish the OAT - Directions to conduct a judicial impact assessment in Rojer Mathew's case were of a general nature and did not prohibit the abolition of specific tribunals such as the OAT in the absence of a judicial impact assessment - However, the Ministry of Law and Justice directed to conduct a judicial impact assessment as directed by this Court in Rojer Mathew's case. General Clauses Act, 1897: s 21 - Applicability/ Invocation of - To rescind the notification establishing the OAT, thereby abolishing the OAT - Held: Union Government acted in valid exercise of its powers when it invoked s. 21 r/w s.

4(2) of the Administrative Tribunals Act to rescind the notification establishing the OAT - Decision to establish the OAT was an administrative decision and not a quasi-judicial decision - Administrative decisions, unlike quasi-judicial decisions, may be reversed by the application of s. 21 - Moreover, s. 21 is not repugnant to the subjectmatter, context and effect of the Administrative Tribunals Act and is in harmony with its scheme and object - Administrative Tribunals Act, 1985 - s. 4(2). Words and Phrases - " Functus officio" - Meaning of. Dismissing the appeals, the Court HELD : 1. 1 The abolition of the Odisha Administrative Tribunal-OAT was constitutionally valid for the following reasons: a. The Writ Petitions instituted before the Orissa High Court were maintainable because the appellants claimed that their constitutional rights had been violated. They were therefore entitled to invoke the jurisdiction of the High Court under Article 226 of the Constitution; b.

Article 323-A does not preclude the Union Government from abolishing SATs because it is an enabling provision which confers the Union Government with the power to establish an administrative tribunal at its discretion (upon receiving a request from the relevant State Government in terms of the Administrative Tribunals Act). The legal and factual context of the power to establish administrative tribunals, the purpose of this power 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 people who were affected by the decision to abolish the OAT did not have a right to be heard. The public at large (or some sections of it) did not have a right to be heard before the policy decision was taken; f.

The Union Government did not become functus officio after establishing the OAT because the doctrine cannot ordinarily be applied in cases where the government is formulating and implementing a policy; ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA g. The notification dated 2 August 2019 is valid though it is not expressed in the name of the President of India because non- compliance with Article 77 of the Constitution does not invalidate a notification or render it unconstitutional; h. The abolition of the OAT is not violative of the fundamental right of access to justice because the Orissa High Court will hear cases which were pending before the OAT prior to its abolition; i. The State Government did not take advantage of its own wrong because it stopped filling the vacancies of the OAT only after deciding to abolish it. It did not rely on the vacancies (and the consequent increase in pendency) created by its inaction to abolish the OAT; and j.

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 because the directions in Rojer Mathew's case were of a general nature and did not prohibit the abolition of specific tribunals such as the OAT in the absence of a judicial impact assessment. However, the Ministry of Law and Justice is directed to conduct a judicial impact assessment as directed by this Court in Rojer Mathew's case. [Para 128][804-A- E; 805-A-F] 1. 2 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 is upheld in terms of the conclusions recorded. [Para 129][805-F- G] Writ Petitions instituted before the Orissa High Court were maintainable. 2. Having alleged that the rights under Art.

14 were violated by the abolition of the OAT, the appellants were entitled to invoke the High Court's jurisdiction under Article 226 of the Constitution. [Para 31][765-E-F] Ghulam Qadir v. Special Tribunal(2002) 1 SCC 33 : [2001] 3 Suppl. SCR 504;State of Orissa v. Ram Chandra DevAIR 1964 SC 685 - referred to. Article 323-A does not preclude the Union Government from abolishing SATs 3. 1 Clauses (1) and (2) of Article 323-A use the expression "may," indicating that Article 323-A does not compel 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. However, in certain cases, the power to do something may be coupled with a duty to exercise that power. [Para 33, 34][766-H; 767-A-B] 3.

2 The word "may" in Article 323-A of the Constitution is not imparted with the character of 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. [Para 42][771-C-D] Official Liquidator v. Dharti Dhan (P) Ltd. (1977) 2 SCC 166 : [1977] 2 SCR 964;Dhampur Sugar Mills Ltd. v. State of U. P. (2007) 8 SCC 338 : [2007] 10 SCR 245;Dilip K Basu v. State of West Bengal (2015) 8 SCC 744 : [2015] 7 SCR 814 - referred to. Applicability of Section 21 of the General Clauses Act 4. 1 The Union Government 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. Section 21 of the General Clauses Act, is a rule of construction. [Para 43][771-E] 4.

2 The Union Government was not acting in a judicial capacity when it set up the OAT. On the establishment of the OAT, pending cases before the High Court were transferred to the OAT. Indeed, the decision to establish an SAT is based on policy and expediency. It is up to each State Government to evaluate the need for an SAT within their state, to consider the advantages and disadvantages as well as the financial, ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA administrative, and other practical aspects of establishing an SAT. The Union Government may then establish the SAT upon receiving a request, in terms of Section 4(2) of the Administrative Tribunals Act. The decision to establish an SAT is undoubtedly an administrative decision. Administrative decisions, unlike quasi-judicial decisions, may be reversed by the application of Section 21 of the General Clauses Act.

The applicability of Section 21 of the General Clauses Act does not stand excluded in the instant case. The order establishing the OAT is an administrative order. [Para 51, 52][774-E-H; 775-A] 4. 3 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. [Para 53][775-B] Industrial Infrastructure Development Corpn. (Gwalior) M. P. Ltd. v. CIT(2018) 4 SCC 494 : [2018] 10 SCR 481 - held inapplicable. Indian National Congress (I) v. Institute of Social Welfare(2002) 5 SCC 685 : [2002] 3 SCR 1040; Province of Bombay v. Khushaldas S. Advani(1950) SCC 551;Board of High School and Intermediate Education v. Ghanshyam Das GuptaAIR 1962 SC 1110 : [1962] Suppl. SCR 36 - referred to.

Section 21 of the General Clauses Act is otherwise applicable to the Administrative Tribunals Act 5. 1 Section 21 of the General Clauses Act can be invoked when its application would not be repugnant to the subject-matter, context, and effect of the statute and when it is in harmony with its scheme and object. The court may refer to the provisions of the statute in question to determine whether Section 21 of the General Clauses Act will be applicable. [Para 56][776-B] 5. 2 The object of the Administrative Tribunals Act is to reduce arrears and enable the provision of speedy justice to litigants. Abolishing an SAT would not frustrate this objective because SATs are not the only method by which the object is capable of being achieved. Further, the effect of such an abolition would not be to deprive litigants of a remedy because the cases before the SAT would stand revived in the forum in which they were pending prior to the establishment of that SAT.

The subject matter and the context of the Administrative Tribunals Act, too, do not militate against the application of Section 21 of the General Clauses Act. There is therefore nothing in the Administrative Tribunals Act which is repugnant to the application of Section 21 of the General Clauses Act. The relevant State Government has the implied power to issue a request to abolish the SAT in its state to the Union Government. The Union Government in turn has the implied power to rescind the notification by which that SAT was established, thereby abolishing the SAT. [Para 59][777- B-E] 5. 3 In the present case, there is no such impediment to the application of Section 21 of the General Clauses Act. The object of the Administrative Tribunals Act would not stand frustrated if an SAT is created and then abolished. The Union and State Governments may take alternate routes (some of which may have already been in operation, supplementing SATs) towards achieving the same objective.

[Para 62][778-F-G] 5. 4. The appellants have also argued that the Union Government's power to abolish SATs must flow from the same legislation that vests it with the power to establish them. It is their contention that the Union Government does not have the power to abolish SATs because the Administrative Tribunals Act does not provide for it. This argument fails for the simple reason that the very purpose of Section 21 of the General Clauses Act is to provide for contingencies such as the instant case when the statute in question does not explicitly provide for the power to add to, amend, vary, or rescind a notification (or order, rule, or by-law) which has been issued. Of course, the application of Section 21 of the General Clauses Act is subject to the test laid down in D N Ganguly's case as well as the other requirements mentioned in the provision itself. If the argument of the appellants were to be accepted, Section 21 of the General Clauses Act would be rendered otiose.

It would not apply to any statute which does ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA not explicitly provide for the power to add to, amend, vary, or rescind notifications, orders, rules or bye-laws. On the other hand, if the statute itself conferred the power to add to, amend, vary, or rescind notifications, orders, rules or by-laws, there would be no need to rely on Section 21 of the General Clauses Act. This is not a conceivable position because courts must interpret statutes so as to give effect to their provisions rather than to render them futile. [Para 63, 64][778-H; 779-A-D] 5. 5 The appellants submitted that what cannot be done directly cannot be done indirectly. 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. [Para 65][779-D-F] 5. 6 The transfer of cases from the OAT to the Orissa High Court is, properly characterized, a revival of the latter's jurisdiction. The impugned judgment that the Orissa High Court's jurisdiction in relation to matters pending before the OAT is not being created or enlarged by the abolition of the OAT. It previously exercised such jurisdiction and is merely resuming its jurisdiction over the same subject matter. The natural consequence of the Union Government rescinding the notification establishing the OAT would be to restore the status quo ante.

Nothing in either Article 323-A of the Constitution or the Administrative Tribunals Act prevents such a revival. Further, the absence of a provision in the Constitution which explicitly permits a revival does not act as a barrier to such a revival. The Union Government's reliance on Section 21 of the General Clauses Act is in accordance with law. [Para 71, 72][781-F-H; 782-A-B] Lt. Governor of H. P. Avinash Sharma(1970) 2 SCC 149 : [1971] 1 SCR 413 - distinguished. A. R. Antulay v. R. S. Nayak(1988) 2 SCC 602 : [1988] 1 Suppl. SCR 1 - held inapplicable. State of Bihar v. D N Ganguly1959 SCR 1191;Kamla Prasad Khetan v. Union of India1957 SCR 1052;State of M. P. v. Ajay Singh(1993) 1 SCC 302 : [1992] 2 Suppl. SCR 274; Tamil Nadu Government All Department Watchman and Basic Servants Association v. Union of India 2005 SCC OnLine Mad 333;Zakir Abdul Mirajkar v. State of Maharashtra(2022) SCC OnLine SC 1092; M. Pentiah v. Muddala Veeramallappa(1961) 2 SCR 295 - referred to.

The notification dated 2 August 2019 is not violative of Article 14 of the Constitution 6. 1 While arriving at the decision to abolish the OAT, the State Government considered relevant reasons. It considered whether the OAT was capable of fulfilling the purpose for which it was established after the decision in L. Chandra Kumar. It placed in the balance the expenditure incurred to operate the OAT as well as the rate of disposal of cases. These reasons were not irrelevant to the decision as to whether a tribunal ought to be continued; 6. 2 The State Government's act of consulting the Orissa High Court (upon receiving a request to this effect from the Union Government) before deciding to abolish the OAT was not irrelevant or extraneous. The cases before the OAT were to be transferred to the Orissa High Court and the opinion of the latter was relevant to State Government's decision. 6. 3 The State Government did not consider factors which were irrelevant or extraneous to its decision.

The decision to 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. It does not violate Article 14 of the Constitution. [Para 82][788-A-E] 6. 4 The decision to establish, continue or abolish the OAT is in the nature of a policy formulated and implemented by the State Government (acting with the Union Government under the ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA Administrative Tribunals Act). The public at large does not have a right to be heard before a policy is formulated and implemented. The process of consultation with the public, with experts, and with other stakeholders may be 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. [Para 86][789-G; 790-A- B] 6. 5 The absence of a right to be heard before the formulation or implementation of a policy does not mean that affected parties are precluded from challenging the policy in a court of law. What it means is that a policy decision cannot be struck down on the ground that it was arrived at without offering the members of the public at large (or some section of it) an opportunity to be heard. The challenge to a policy may be sustainable if it is found to vitiate constitutional rights or is otherwise in breach of a mandate of law. Thus, the decision to abolish the OAT cannot be assailed on the ground that there was a violation of the principles of natural justice. Article 14 of the Constitution has not been violated.

[Para 88, 89][791-B-D] BALCO Employees' Union (Regd. ) v. Union of India (2002) 2 SCC 333 : [2001] 5 Suppl. SCR 511 - relied on. L. Chandra Kumar v. Union of India(1997) 3 SCC 261 : [1997] 2 SCR 1186;E. P. Royappa v. State of T. N. (1974) 4 SCC 3 : [1974] 2 SCR 348;G. B. Mahajan v. Jalgaon Municipal Council(1991) 3 SCC 91 : [1990] 3 Suppl. SCR 20;Tata Cellular v. Union of India(1994) 6 SCC 651 : [1994] 2 Suppl. SCR 122;Punjab Communications Ltd. v. Union of India(1999) 4 SCC 727 : [1999] 2 SCR 1033; Union of India v. International Trading Co. (2003) 5 SCC 437 : [2003] 1 Suppl. SCR 55;Om Kumar v. Union of India AIR (2000) SC 3689 : [2000] 4 Suppl. SCR 693;Teri Oat Estates (P) Ltd. v. UT, Chandigarh(2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235;M. P. High Court Bar Assn. v. Union of India(2004) 11 SCC 766 : [2004] 4 Suppl. SCR 520 - referred to. Associated Provincial Picture Houses, Limited Wednesbury Corporation [1948] 1 K. B. 223 - referred to.

Union Government did not become functus officio after establishing the OAT 7. 1 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. [Para 92][791-G-H] 7. 2 The doctrine of functus officio exists to provide a clear point where the adjudicative process ends and to bring quietus to the dispute. Without it, decision-making bodies such as courts could endlessly revisit their decisions. With a definitive endpoint to a case before a court or quasi-judicial 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. [Para 94][792-E-F] 7. 3 The appellants' argument that the Union Government was rendered functus officio after establishing the OAT does not stand scrutiny. The decision to establish the OAT was administrative and based on policy considerations. If the doctrine of functus officio were to be applied to the sphere of administrative decision-making by the state, its executive power would be crippled. The state would find itself unable to change or reverse any policy or policy-based decision and its functioning would grind to a halt. All policies would attain finality and any change would be close to impossible to effectuate. [Para 95][792-G; 793-A] 7. 4 This would impact not only major policy decisions but also minor ones.

Major policy decisions such as those concerning subsidies, corporate governance, housing, education and social ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA 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. [Para 96][793-B-D] 7. 5 In the instant 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. [Para 97][793-D-E] Hari Singh Mann v. Harbhajan Singh Bajwa(2001) 1 SCC 169 : [2000] 4 Suppl. SCR 313 - referred to. P Ramanatha Aiyer's The Law Lexicon (1997 edition); Black's Law Dictionary(5th edition) - referred to. The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India 8. 1 A notification which is not in compliance with clause (1) of Article 77 is not invalid, unconstitutional or non-est for that reason alone. Rather, the irrebuttable presumption that the notification was issued by the President of India (acting for the Union Government) is no longer available to the Union Government. The notification continues to be valid and it is open to the Union Government to prove that the order was indeed issued by the appropriate authority. [Para 101][795-F-G] 8.

2 In the instant 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 President. Hence, the appellants' submission that the notification dated 2 August 2019 is invalid and unconstitutional is specious. [Para 102][795-G-H; 796-A] 8. 3 Both the notification dated 4 July 1986 and the notification dated 2 August 2019 were, in substance, issued by the President (acting for the Union Government). The notifications were published in the Gazette of India in accordance with law and there is nothing on record to support the suggestion that an authority which is not empowered to issue the notification has issued it.

To the contrary, Section 4 of the Administrative Tribunals Act empowers the Union Government to issue a notification establishing the OAT and 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. [Para 104][796-C-E] 8. 4 Article 77 is a directory provision. Article 77(1) refers to the form in which the decision taken by the executive is to be expressed. This is evident from the phrase "expressed to be taken" in clause (1) of Article 77. It does not have any bearing on the process of decision-making itself. The public or the citizenry would stand to suffer most from the consequences of declaring an order that is not expressed in the name of the President null and void. [Para 107][797-D-E] 8.

5 In the instant case, the notification dated 2 August 2019 was issued in exercise of the statutory powers under the Administrative Tribunals Act. Thus, the notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India. [Para 109, 110][798-H; 799-A] Dattatraya Moreshwar Pangarkar v. State of Bombay (1952) 1 SCC 372;State of Uttaranchal v. Sunil Kumar Vaish(2011) 8 SCC 670 : [2011] 13 SCR 754;Gulf Goans Hotel Co. Ltd. v. Union of India(2014) 10 SCC 673 : [2014] 10 SCR 536 - held inapplicable. Air India Cabin Crew Assn. v. Yeshaswinee Merchant (2003) 6 SCC 277 : [2003] 1 Suppl. SCR 455 - referred to. ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA Abolition of the OAT is not violative of the fundamental right of access to justice 9. 1 The fundamental right of access to justice is no doubt a crucial and indispensable right under the 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. [Para 112][799-G-H] 9. 2 The Orissa High Court has established benches which will operate virtually in multiple cities and towns across the state. This negates the appellants' argument that the Orissa High Court is less accessible than the OAT. In fact, the number of virtual benches of the High Court is greater than the number of benches of the OAT. Litigants from across the state can access the High Court with greater ease than they could access the OAT. [Para 114][800-E] 9. 3 Litigants may therefore approach the Orissa High Court for the resolution of disputes.

The abolition of the OAT does not leave litigants without a remedy or without a forum to adjudicate the dispute in question. It is therefore not violative of the fundamental right of access to justice. [Para 115][800-F] Anita Kushwaha v. Pushap Sudan(2016) 8 SCC 509 : [2016] 9 SCR 560 - relied on. The State Government did not take advantage of its own wrong 10. The State Government discontinued appointments to the OAT as a result of its decision to abolish the OAT and not vice versa. 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, it cannot be said that the Union of India had systematically made the OAT non-functional. [Para 118][801-E-F] Failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT does not vitiate its decision to abolish the OAT 11.

1 The direction to conduct a judicial impact assessment in Rojer Mathew's case was of a general nature. It was not geared towards proposals to abolish specific tribunals such as the OAT. Rather, a need was felt to analyse the consequences of the restructuring of tribunals by the Finance Act 2017 and a writ of mandamus was issued in this regard to the Ministry of Law and Justice. The judicial impact assessment was also directed to be conducted in order to better understand the case load, efficacy, financial impact, and accessibility of tribunals at large, in addition to the filling of vacancies. Neither the majority opinion authored by Ranjan Gogoi, CJI nor the opinions of Dr. DY 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 instant 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's case also indicates the need for the Union Government to obtain the permission of this Court before abolishing the OAT. [Para 122][802-E-H; 803-A-B] 11. 2 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's case. 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. 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 welloiled machinery by which it can access justice. Therefore the directions of this Court in Rojer Mathew's case is reiterated and ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA the Ministry of Law and Justice is directed to conduct a judicial impact assessment at the earliest. [Para 123, 124][803-B-D] Rojer Mathew v. South Indian Bank Ltd. (2020) 6 SCC 1 : [2019] 16 SCR 1 - followed. Case Law Reference [1997] 2 SCR 1186 referred to Para 7 [2004] 4 Suppl. SCR 520 referred to Para 24 [2001] 3 Suppl. SCR 504 referred to Para 29 AIR 1964 SC 685 referred to Para 30 [1977] 2 SCR 964 referred to Para 34 [2007] 10 SCR 245 referred to Para 35 [2015] 7 SCR 814 referred to Para 40 [2002] 3 SCR 1040 referred to Para 45 (1950) SCC 551 referred to Para 46 [1962] Suppl.

SCR 36 referred to Para 48 [2018] 10 SCR 481 held inapplicable Para 52 1959 SCR 1191 referred to Para 54 1957 SCR 1052 referred to Para 55 [1971] 1 SCR 413 distinguished Para 60 [1992] 2 Suppl. SCR 274 referred to Para 60 (1961) 2 SCR 295 referred to Para 64 [1988] 1 Suppl. SCR 1 held inapplicable Para 71 [1974] 2 SCR 348 referred to Para 74 [1990] 3 Suppl. SCR 20 referred to Para 75 [1994] 2 Suppl. SCR 122 referred to Para 75 [1999] 2 SCR 1033 referred to Para 75 [2003] 1 Suppl. SCR 55 referred to Para 75 [2000] 4 Suppl. SCR 693 referred to Para 84 [2003] 6 Suppl. SCR 1235 referred to Para 84 [2001] 5 Suppl. SCR 511 relied on Para 87 [2000] 4 Suppl. SCR 313 referred to Para 93 [2003] 1 Suppl.

SCR 455 referred to Para 100 (1952) 1 SCC 372 held inapplicable Para 107 [2011] 13 SCR 754 held inapplicable Para 108 [2014] 10 SCR 536 held inapplicable Para 109 [2016] 9 SCR 560 relied on Para 113 [2019] 16 SCR 1 followed Para 122, 123, 124, 128(j) CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6805 of 2022. From the Judgment and Order dated 07. 06. 2021 of the High Court of Orissa at Cuttack in WPC No. 13789 of 2019. With Civil Appeal No. 6806 of 2022. Ashok Panigrahi, Ms. Geetanjali Das Krishnan, Nabab Singh, Ms. Nikita Jaydevan, Ms. Varnalee Mishra, Dr. Aman Hingorani, Kedar Nath Tripathy, Bhuwar Raj, Himanshu Yadav, Advs. for the Appellant. Balbir Singh, ASG, Ashok Kr Parija, Adv. Gen. , Sibo Sankar Mishra, Arnav Behera, Avnish Kumar Sharma, Debabrat Dash, Niranjan Sahu, Umakant Mishra, Rajesh Kumar Nayak, Santosh Kumar, Sanjay Kr Tyagi, Ms. Swarupama Chaturvedi, Ms. Shraddha Deshmukh, Shiv Mangal Sharma, Arvind Kumar Sharma, C. Ravichandran Iyer, Advs. for the Respondents.

ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI Table of Contents* A. Background .............................................................................. 4 i. Factual background ............................................................. 4 ii. The impugned judgment.................................................. 10 B. Submissions ............................................................................. 12 C. Issues ....................................................................................... 17 D. Analysis ................................................................................... 19 i. An overview of the proceedings arising from the abolition of the Madhya Pradesh Administrative Tribunal and the Tamil Nadu Administrative Tribunal.................... 19 a. The abolition of the MPAT ........................................... 19 b.

The abolition of the TNAT ........................................... 21 ii. The Writ Petitions instituted before the Orissa High Court were maintainable ........................................... 23 iii. Article 323-A does not preclude the Union Government from abolishing SATs.................................... 25 iv. Applicability of Section 21 of the General Clauses Act ........................................................................................... 32 a. There is no bar to the applicability of Section 21 of the General Clauses Act to the administrative order establishing the OAT ........................................... 33 b. Section 21 of the General Clauses Act is otherwise applicable to the Administrative Tribunals Act................................................................................ 37 v. The notification dated 2 August 2019 is not violative of Article 14 of the Constitution ............................................. 47 *Ed.

Note : Pagination in the Table of Contents is as per the original judgment. a. The notification dated 2 August 2019 is not absurd or based on irrelevant or extraneous considerations......... 47 b. The principles of natural justice have not been violated......................................................................... 56 vi. The Union Government did not become functus officio after establishing the OAT .................................................. 58 vii. The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India........................................................................................ 61 viii. The abolition of the OAT is not violative of the fundamental right of access to justice............................... 67 ix. The State Government did not take advantage of its own wrong....................................................................................... 70 x.

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............. 71 xi. Miscellaneous contentions.................................................. 74 E. Findings and conclusion ....................................................... 75 1. IA No. 52385 of 2022 (application for intervention by Mr C Ravichandran Iyer) is allowed. A. Background i. Factual background 2. This appeal arises from a judgment of the Orissa High Court dated 7 June 2021 in a batch of writ petitions challenging the abolition of the Odisha Administrative Tribunal. 1 Before setting out the facts which gave rise to the issues in this appeal, it is necessary to understand the context in which they arose. 3. Parliament inserted Part XIV-A of the Constitution of India by the Constitution (Forty-second Amendment) Act 1976. Part XIV-A con- 1 "OAT" ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR.

DHANANJAYA Y CHANDRACHUD, CJI] sists of two articles, Articles 323A and 323B. Article 323A empowers Parliament to provide for the adjudication of certain disputes by administrative tribunals. Disputes concerning the 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 local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government, may be adjudicated by administrative tribunals. Article 323B empowers the legislatures of states to provide for the adjudication of certain dis- putes (enumerated in clause 2 of Article 323B) by tribunals. 4. In pursuance of the power conferred upon it by Article 323A(1), Parliament enacted the Administrative Tribunals Act 1985.

2 The Statements of Objects and Reasons of this legislation records that it was enacted in order to give effect to Article 323A, and also because: "a large number of cases relating to service matters are pending before the various courts. It is expected that the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of the various courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances. " 5.

Section 4(1) of the Administrative Tribunals Act provides that the Central Government shall establish an administrative tribunal known as the "Central Administrative Tribunal"3 to adjudicate disputes concerning the recruitment and conditions of service of persons in connection with posts under the Union or All-India Service,4 including disputes with respect to remuneration, pension, tenure, leave, and disciplinary matters. 5 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 tribunal6 is charged with exercising exclusive jurisdiction over disputes 2 "Administrative Tribunals Act" 3 "CAT" 4 Section 14 read with Section 3(q), Administrative Tribunals Act 5 Section 3(q), Administrative Tribunals Act 6 "SAT" concerning the recruitment and conditions of service of persons in connection with posts under the concerned state or any civil service of that state,7 including disputes with respect to remuneration, pension, tenure, leave, and disciplinary matters. 8 6. The SAT is prohibited from exercising jurisdiction, authority, or power over a matter which the CAT's jurisdiction extends. 9 While Section 4(2) of the Administrative Tribunals Act governs the establishment of SATs, there is no corresponding provision which stipulates the procedure to be followed to discontinue or abolish them.

In terms of Section 29 of the Administrative Tribunals Act, suits or other proceedings pending before courts or other authorities which would have been within the jurisdiction of the SAT if the cause of action in such suit or proceeding had arisen after the establishment of the SAT, stand transferred to the SAT on the date of its establishment. In other words, cases pending before other fora (including cases pending before the High Court of the relevant state but excluding those pending before the Supreme Court) stand transferred to the SAT upon its establishment. Following the enactment of the Administrative Tribunals Act, various states including Andhra Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, and Maharashtra requested the Central Government to establish an SAT, and the Central Government issued notifications establishing them. Odisha was one amongst these states.

Upon receiving a request from the State of Odisha, the Central Government established the OAT on 4 July 1986 by issuing Notification No. GSR 934(E), which was published in the Gazette of India. The OAT commenced functioning soon thereafter. 7. At this time, Section 28 of the Administrative Tribunals Act was still in force. Section 28 excluded the jurisdiction of all courts except the Supreme Court or the Industrial Tribunal or Labour Court in relation to matters over which the CAT and the SAT exercised jurisdiction. Section 28 was enacted pursuant to the enabling provision in Article 323-A of the Constitution, namely clause 2(d) of Article 323-A.

Clause 2(d) provided that Parliament may exclude the jurisdiction of all courts, except of the Supreme Court under Article 136 of the Constitution with respect to disputes which administrative tribunals were empowered to adjudicate 7 Section 15 read with Section 3(q), Administrative Tribunals Act 8 Section 3(q), Administrative Tribunals Act 9 Section 15(4), Administrative Tribunals Act ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] under clause 1 of Article 323-A. The effect of Section 28 of the Administrative Tribunals Act, therefore, was that appeals from the OAT lay directly to the Supreme Court under Article 136 of the Constitution. However, this changed with the decision of this Court in L. Chandra Kumar 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 decisions of the High Courts. 8. The decision in L. Chandra Kumar (supra)seems to have influenced the State of Odisha to request the Union Government to abolish the OAT. By a letter dated 16 September 2015, the Chief Secretary to the Government of Odisha requested the Secretary to the Government of India, Department of Personnel and Training to issue a notification under the Administrative Tribunals Act abolishing the OAT. The letter recorded the State Government's reason for making this request in the following terms: "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, the 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. " A note annexed to the letter dated 16 September 2015 elaborated on the State Government's rationale for seeking to abolish the OAT: "As a consequence of the landmark judgment of the Supreme Court [in L. Chandra Kumar], the objective of the establishment of the Tribunal to give quick justice to the government employees was defeated... The aggrieved parties are approaching the High Court against OAT orders and then the Supreme Court resulting in protracted litigation ... Government is incurring a significant sum of expenditure on the OAT ...

The abolition of the Tribunal will reduce the burden of litigation for the Government and will also reduce the time for resolution of disputes / litigation. " Evidently, the State of Odisha was of the opinion that the raison d'etre of the OAT was defeated - the fact that the OAT's decisions were subject to two tiers of challenge (first before the High Court and then the Supreme Court) meant that speedy justice could not be delivered. The State Government proposed to transfer the cases pending before the OAT to the Orissa High Court. 9. On 12 January 2016, the Union Government requested the State of Odisha to provide information about the Orissa High Court's views on the proposal to abolish the OAT, the legal mechanism by which the cases pending before the OAT could be transferred to the Orissa High 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 ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] 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 189710 and abolished the OAT by issuing Notification GSR 552(E) on 2 August 2019. The relevant portion of this notification is extracted below: "Now, therefore, in exercise of the powers conferred by sub- section (2) of Section 4 of the Administrative Tribunals Act 1985, read with Section 21 of the General Clauses Act 1897 (10 of 1897), the Central Government hereby rescinds the said notification number GSR 934(E), dated the 4th July 1986, except as respects things done or omitted to be done before such rescission, with effect from the date of publication of this notification in the Gazette of India. " ii. The impugned judgment 12. In 2019, each of the appellants filed a Writ Petition before the Orissa High Court for quashing the notification dated 2 August 2019 (as well as the decision of the Cabinet of the State Government dated 9 September 2015 to abolish the OAT).

After considering the rival submissions, the Orissa High Court dismissed the Writ Petitions by its common judgment dated 7 June 2021, for the following reasons: 13. a. Article 323-A is an enabling provision. It does not make it mandatory for the Union Government to establish administrative tribunals or refrain from abolishing them once they are established; b. The decision to abolish the OAT is an administrative decision. There is therefore no bar to the Union Government invoking Section 21 of the General Clauses Act read with Section 4(2) of the Administrative Tribunals Act to rescind the notification establishing the OAT; c. The invocation of Section 21 of the General Clauses Act does not result in a denial of justice because the cases pending 10 "General Clauses Act" before the OAT will be heard by the Orissa High Court. Hence, litigants are not prejudiced by the invocation of Section 21; d.

The proposition that what cannot be done directly cannot be done indirectly is not applicable because neither Article 323- A of the Constitution nor Section 4(2) of the Administrative Tribunals Act prohibits the Union or State Government from abolishing an SAT; e. The Union Government was not rendered functus-officio after it established the OAT because it was exercising an administrative function and not a judicial or quasi-judicial function; f. The jurisdiction of the Orissa High Court was neither created nor enlarged as a consequence of the notification dated 2 August 2019. Rather, the High Court's jurisdiction was revived; g. The decision-making process of the Union and State Governments 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 14. Mr. Ashok Panigrahi and Dr. Aman Hingorani, learned coun- sel 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. ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] 15. Their submissions were: a. Article 323-A of the Constitution is in the nature of a mandate.

It requires the Union Government to establish SATs and does not empower the Union Government to abolish a SAT, once established; b. Section 21 of the General Clauses Act cannot be invoked to abolish the OAT. The power to abolish a SAT must flow from the same legislation that vests the Union Government with the power to establish SATs. The Administrative Tribunals Act does not vest either the Union Government or the State Government with the power to abolish SATs. In any event, the conditions for the invocation of Section 21 of the General Clauses Act are not satisfied. The abolition of the OAT was therefore without legal basis; c. The Administrative Tribunal (Amendment) Bill 2006 was introduced 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 not enacted into law and therefore the Union Government and the State Governments do not have the power to abolish SATs; d.

The State Government's interpretation of the decision in L. Chandra Kumar (supra) as reducing the efficiency of the adjudication process for service matters is incorrect and unreasonable; e. The OAT has two regular benches and two circuit benches but the High Court has a single bench in Cuttack. The abolition of the OAT makes the court system less accessible to litigants and violates the fundamental right of access to justice; f. 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 abolishing the OAT. This is also violative of Article 14 of the Constitution; g. The notification dated 2 August 2019 by which the OAT was abolished is invalid because it is not expressed in the name of the President of India in terms of Article 77 of the Constitution; h.

The Constitution does not envisage a transfer of cases from any court to a particular High Court except as specified in Article 228 of the Constitution; i. The State Government is trying to take advantage of its own wrong by failing to fill the vacancies in the OAT and creating the conditions for the abolition of the OAT. The failure of the State Government to fill the vacancies is also a breach of Article 256 of the Constitution; j. The abolition of the OAT has the effect of enlarging the jurisdiction of the Orissa High Court but Parliament alone 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. 16. 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 to be amended to give the Union Government the power to abolish an SAT; ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] c.

The fundamental right to justice has not been violated because the cases pending before the OAT were transferred to the Orissa High Court; 17. Mr. Ashok Kr Parija, learned Advocate General for the State of Odisha supplemented the arguments put forward by the Union of India. He urged that: a. The Writ Petitions before the Orissa High Court which led to the impugned judgment were not maintainable because the rights of the petitioners were not affected by the abolition of the OAT. Litigants cannot claim a fundamental right to access the OAT; b. The State Government took a policy decision to abolish the OAT, in light of the low rate of disposal of cases by the OAT. The State Government is also of the view that the purpose of the OAT (to ensure speedy disposal of cases) is not served subsequent to the decision of this Court in L. Chandra Kumar (supra); c. The word "may" in Section 4 of the Administrative Tribunals Act is unambiguous and must be interpreted strictly. d.

An intra-court appeal is different from an appeal to a separate forum and the former streamlines the process of adjudication. It cannot be said that there is no advantage to be had by abolishing the OAT; e. The principles of natural justice were not violated; The abolition of the OAT does not make the court system less accessible to litigants because they would have been required to travel to Cuttack in any event in order to participate in the writ proceedings before the Orissa High Court. The number of cases transferred from the Circuit Benches of the OAT at Berhampur and Sambalpur to the Orissa High Court are 275 and 235 respectively. The Principal Bench at Bhubaneswar and the regular Bench at Cuttack, on the other hand, had 11,483 and 32,911 cases respectively, which were transferred to the Orissa High Court. Financial hardships faced by litigants can be alleviated through compensation schemes which exist for this purpose; and f.

It was not mandatory for the government to conduct a judicial impact assessment test before abolishing the OAT. 18. In its counter affidavit, the Orissa High Court detailed the action taken to transfer the cases pending before the OAT to the High Court - nodal officers were appointed to monitor the transfer, a committee was constituted to oversee the transfer, the committee devised a methodology for shifting pending cases, and a dedicated branch called the 'OA Branch' was created to deal exclusively with transferred matters. C. Issues 19. 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 in- voked 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 India; h. Whether the transfer of cases from the OAT to the Orissa High Court has the effect of enlarging the jurisdiction of the latter; i.

Whether the State Government took advantage of its own wrong by ceasing to fill the vacancies in the OAT; ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] j. Whether the failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT vitiates its decision to abolish the OAT; and k. Whether the Union Government became functus officio after establishing the OAT. D. Analysis i. An overview of the proceedings arising from the abolition of the Madhya Pradesh Administrative Tribunal11 and the Tamil Nadu Administrative Tribunal12 20. The parties to this appeal have advanced some arguments in relation to decisions arising from the abolition of certain other SATs. It is therefore necessary to understand the decisions of this Court in relation to the abolition of those SATs. To this end, the abolition of the MPAT and the TNAT as well as the legal proceedings arising from those decisions are briefly discussed.

The effect of these proceedings on the decision in this case is also examined. a. The abolition of the MPAT 21. The State of Madhya Pradesh was reorganized into the State of Madhya Pradesh and the State of Chhattisgarh with the enactment of the Madhya Pradesh Reorganization Act 2000. Section 74(1)(ii) of this legislation vested the State Governments of these two states with the power to abolish "every 1. Commission, Authority, Tribunal, University, Board or any other body constituted under a Central Act, State Act or Provincial Act and having jurisdiction over the existing State of Madhya Pradesh. " 22. The State of Madhya Pradesh issued a notification abolishing the MPAT pursuant to a decision taken by it along with the State of Chhattisgarh. This notification was challenged before the Madhya Pradesh High Court. The petitioners in that case also challenged the constitutionality of Section 74 of the Madhya Pradesh Reorganization Act 2000. 23.

The High Court upheld the constitutional validity of sub-clause (1) of Section 74. It held that sub-clauses (2) and (3) of Section 71 (concerning the termination of employees and the compensation for the 11 "MPAT" 12 "TNAT" unexpired period of their tenure respectively) were ultra vires the Constitution. The High Court also held that the State Government could not have abolished the MPAT by issuing a notification. Rather, 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. 24. 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. 13 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 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 (supra) is therefore not germane to the issue of whether Section 21 of the General Clauses Act would be applicable to Section 4(2) of the Administrative Tribunals Act.

However, the issue whether the decision to abolish the MPAT was arbitrary, unreasonable and therefore violative of Article 14 of the Constitution was decided in that case. A similar issue is before us in the present case and this aspect of the decision in the MPAT Abolition Case (supra) may be instructive. b. The abolition of the TNAT Between 1994 and 2004, the Government of Tamil Nadu requested the Union Government to abolish the TNAT. Thereafter, it stopped ap- pointing the Chairperson, the Vice Chairperson and the Members of the TNAT, which was rendered inoperative as a result. Approximately 30,000 cases were pending before it at this time. Various parties instituted writ 13 "MPAT Abolition Case" ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] petitions before the Madras High Court seeking directions to the State Government of Tamil Nadu to fill the vacancies in the TNAT to enable it to function until it was abolished.

These writ petitions culminated in the decision of the Madras High Court in Tamil Nadu Government All De- partment Watchman and Basic Servants Association v. Union of In- dia14. 25. In its decision in the above case, the Madras High Court held that the Union Government had the power to rescind a notification es- tablishing an SAT, under Section 21 of the General Clauses Act. It relied on the MPAT Abolition Case (supra) to hold that it was open to the State Government to take a "policy decision" to abolish the SAT and request the Union Government to abolish it. It further held that the latter would have no option but to issue a notification in this regard. On this basis, it directed the Union Government to issue a notification abolishing the TNAT "as there is no necessity for the Central Government to wait for the amendment before the Parliament and the mere issuance of Notification would suffice for abolition of the Tribunal.

" Two appeals against the decision in the TNAT Abolition Case (supra) were preferred before this Court. The first was dismissed in limine by an order dated 16 August 2005. The second was an appeal filed by the Union of India. Before this 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 ap- peal for having become infructuous. It observed that the question of law had been kept open. 26. The TNAT Abolition Case (supra) does not hence consti- tute 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 ex- pressly kept open. ii. The Writ Petitions instituted before the Orissa High Court were maintainable 27.

The State of Odisha has interrogated the maintainability of the Writ Petitions instituted by the appellants before the Orissa High 14 2005 SCC OnLine Mad 333- "TNAT Abolition Case" 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. 28. 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 Registration Act 1860 authorizes registered societies to sue and be sued. Both the appellants are therefore organizations which are entitled to approach the High Court under Article 226 of the Consti- tution. 29. Both appellants have also alleged that an existing legal right of theirs was violated. As held by this Court in Ghulam Qadir v.

Special Tribunal (2002) 1 SCC 33, the existence of a legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under Article 226: "38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article.

The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi. " (emphasis supplied) ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] 30. In State of Orissa v.

Ram Chandra Dev AIR 1964 SC 685, a Constitution Bench of this Court held that the existence of a right is the foundation of a petition under Article 226: "8. ... Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High 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) 31. 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 to be analysed. iii. Article 323-A does not preclude the Union Government from abolishing SATs 32. In order to assess whether it is mandatory for the Union Gov- ernment to establish SATs, it is necessary to advert to Article 323-A of the Constitution of India: "323A. Administrative tribunals.

--(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect 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 under the control of the Government of India or of any corporation owned or controlled by the Government.

(2) A law made under clause (1) may-- (a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals; (c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals; (d) exclude 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); (e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment; (f) repeal or amend any order made by the President under clause (3) of article 371D; (g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. " (emphasis supplied) 33. Clauses (1) and (2) of Article 323-A use the expression "may," indicating that Article 323-A does not compel Parliament to enact a law to give effect to it. Parliament is entrusted with the discretion to enact a ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] law which provides for the adjudication of certain disputes by administrative tribunals. It is a permissive provision. The provision is facilitative and enabling. 34. 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 to its exercise but the legal and factual context of it. ... 10. The principle laid down above has been followed consistently by this Court whenever it has been contended that the word "may" carries with it the obligation to exercise a power in a particular manner or direction.

In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exercised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. " (emphasis supplied) 35. In Dhampur Sugar Mills Ltd. v. State of U. P. 15, this Court held that the intention of the legislature must be discerned while determining whether a provision is directory or mandatory: 15 (2007) 8 SCC 338 "36. ... In our judgment, mere use of word "may" or "shall" is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application.

Such controversy has to be decided by ascertaining the intention of the legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue. " 36. In order for the word "may" to acquire the character of the word "shall", the following aspects of the provision or legislation (or in this case, the Constitution) must be analysed: a. The legal and factual context of the conferment of the power; b. The purpose of the power; c. Whether the statute (or the Constitution) specifies the conditions in which the power is to be exercised; and d.

The intention of the legislature discerned inter alia from the scheme of the enactment, the purpose and object of the provision, the consequences of reading the provision one way or another, and other relevant considerations. This is not an exhaustive list of factors which will aid courts in interpreting whether a provision is directory or mandatory. 37. Article 323-A does not specify the conditions in which the power to 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. 38. 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 ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] other matters of special importance in the context of the socioeconomic 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 tribunals i. e. , to reduce mounting arrears in the High Courts and to secure the speedy disposal of service matters.

The purpose and the legal and factual context of the power conferred by Article 323-A do not have the effect of narrowing the scope of the discretio