Chanchal Sharma & Others vs State Of Uttarakhand & Others

Lok Pal Singh, J

Petitioners have approached this Court seeking the following reliefs:-

i) Issue a writ in the nature of certiorari quashing the order dated 29.04.2020 passed by respondent no.3.

ii) Issue a writ in the nature of mandamus directing respondent no.2 to decide the representation of the petitioners dated 04.06.2020 before proceeding

with promotions on the post of Circle Officer.

Admittedly, petitioners are public servants in view of Section 2(b)(i) of The U.P. Public Services (Tribunal) Act, 1976. Thus, the petitioners have an

alternative and efficacious remedy of filing a claim petition before the Public Service Tribunal in view of Section 4 of The U.P. Public Services

(Tribunal) Act, 1976. For convenience, Section of the Act is quoted hereunder:-

Reference of claim to Tribunal.-(1) Subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by

an order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his

grievance.

Explanation.- For the purpose of this sub-section “order†means an order made by the State Government or local authority or any other

Corporation or company referred to in clause (b) of section 2 or by an office, committee or other body or agency of the State Government or such

local authority or Corporation of company:

Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant.

The Constitution Bench of the Supreme Court inL . Chandra Kumar v. Union of India (1997) 3 SCC 261 has held that the Tribunals created

pursuant to Article 323-A or under Article 323-B of the Constitution of India are competent to hear matters entrusted to them and will continue to act

as only Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It was categorically observed that it will

not be open for litigants to directly approach the High Court even in cases where there is a challenge to the vires of statutory Legislation, by

overlooking the jurisdiction of the concerned Tribunal. Paragraphs 93 and 99 of the said judgment are relevant, which are reproduced hereunder:-

“93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The

Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they

cannot act as substitutes for the High Courts and the Supreme court which have, under our constitutional set-up, been specifically entrusted

with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject o

scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of

subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not

entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an

Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All

other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent

statues, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will,

however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we

mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory

legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction

of the Tribunal concerned.

In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they

exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.

Section 28 of the Act and the “exclusion of jurisdiction†clauses in all other legislations enacted under the aegis of Articles 323-A and

323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the

Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction

cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and

32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to

teset the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before

a Division Bench of the High Court within those jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act

like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to

directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which

creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and

constitutional and is to be interpreted in the manner we have indicated.â€​

In view of the above, writ petition is dismissed on the ground of alternative remedy.