UNION OF INDIA versus SANJIV CHATURVEDI on 3 March 2023

1. Leave grantedF

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 23.10.2021 passed by the High Court of Uttarakhand atNainital in WPSB No. 407/2020, by which, the High Court has allowedthe said writ petition and has set aside order dated 04.12.2020 passed bythe Chairman, Central Administrative Tribunal (CAT), Principal Bench,GNew Delhi by which the learned Principal Bench of the Tribunaltransferred Original Application (OA) No. 331/109/2020 filed by theoriginal writ petitioner, from the Allahabad Bench (Nainital Circuit Bench)to the Principal Bench, New Delhi, the Union of India has preferred thepresent appeal.

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3. The facts leading to the present appeal in a nutshell are under:-3.1 That the contesting respondent No. 1 herein – original writpetitioner filed original application (OA) before the Nainital Circuit Bench,CAT with the following prayers: -

“a. To call for records and issue appropriate direction/orderfor quashing present system of 360 degree appraisal being usedin empanelment of officers at the level of Joint Secretary andabove in Central Government, being arbitrary, unreasonable, inviolation of principles of natural justice, being in supersession ofstatutory rules and finding of Parliamentary Committee Report.

b. To restrain the respondents from filling up the posts ofJoint Secretary/equivalent to Joint Secretary rank and also postsabove in rank of Joint Secretary in Central Government, throughcontract system, in future.

c. To set aside all those provisions of present CentralStaffing Scheme, governing constitution of and evaluation byExpert Panel for the purpose of empanelment at Joint Secretarylevel in Government, issued vide O.M. 36/77/94-EO Central(SM-1)” date 05.01.1996 and modified subsequently, beingarbitrary, unreasonable, violative of principles of natural justiceand in violation of basic federal structure enshrined into theConstitution.

d. To direct the respondents to remove huge artificial timelag created between empanelment of officers of different servicesand between same levels in Central Government and StateGovernment, in case of All India Service Officers.

e. To direct the respondents to consider the case ofApplicant for empanelment to the level of Joint Secretary in viewof fulfillment of all the eligibility criteria regarding completion ofrequisite number of years of service and elevation into Level-14of Pay Matrix; or alternatively, issue directions to respondents notto reject abovementioned case of Applicant, on any ulterior/subjective/oblique consideration, and decide the same objectively,on merit, facts and in accordance with law only.

f. To order and appropriate investigation so as to fixresponsibility into various irregularities into recruitment process A

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Aof Joint Secretary rank officers through contract system, takenplace in the year 2019, in view of irregularities brought out in para 3.5 of factual matrix.”

3.2 That thereafter, the Union of India filed transfer applicationunder Section 25 of the Administrative Tribunals Act, 1985 (Act, 1985)Bseeking transfer of OA filed by the writ petitioner from Nainital CircuitBench to the Principal Bench, New Delhi. That by order dated 04.12.2020,the Chairman of the Tribunal, Principal Bench, New Delhi, orderedtransfer of the said OA to the Principal Bench, New Delhi by observingthat: - C“A perusal of the prayer in the O.A. discloses that the veryprocedure for empanelment for the post of Joint Secretary is soughtto be assailed. The matters of this nature have their own impacton the very functioning of the Central Government. It is felt thatthe O.A. deserves to be heard by Principal Bench. Since thehearings are taking place through video conferencing, no prejudiceDare taking place through video conferencing, no prejudice wouldbe caused to the respondent in the P.T., i.e. applicant in the O.A.also’”

3.3 The order dated 04.12.2020 transferring OA No. 331/109/2020 from Nainital Circuit Bench to the Principal Bench, New DelhiEcame to be challenged by the original writ petitioner – original applicantbefore the High Court of Uttarakhand. It was submitted on behalf of theoriginal writ petitioner before the High Court that what was challengedin the OA was the recruitment selection process for the post of JointSecretary. He was also aggrieved of the fact that although eligibleFcandidates were available for the post of Joint Secretary, within the All-India Services, a policy decision has been taken by the CentralGovernment that the post of Joint Secretary would be filled by hiringpersons on contractual basis for a period of three to five years and thesaid policy decision would adversely affect the rights of the personswho are in the All-India Services. It was also submitted on behalf of theGoriginal writ petitioner – original applicant that the ground on which theUnion of India sought transfer of OA that, since the original writ petitionerhas challenged a policy decision and since the policy decision has“nationwide repercussion”, therefore, the OA deserves to be transferredto the Principal Bench, New Delhi, is untenable. It was submitted that ifHthe Parliament were of the opinion that issues of “national importance”

need to be decided only by the Principal Bench, a provision would haveexisted in the Administrative Tribunals Act, debarring other Benches ofCAT from hearing issues of “national importance” or having “nationwiderepercussion.” However, there is no such bar contained in theAdministrative Tribunals Act, preventing other Benches of CAT, whichare considered to be equivalent to the Principal Bench, from hearing orfrom examining a policy decision of the Central Government. It wassubmitted that all the Benches constituted under Section 5 of the Act,1985 would have equal jurisdiction.

3.4 The petition was opposed on behalf of the Union of India. TheUnion of India challenged the territorial jurisdiction of the High Court ofUttarakhand to entertain the writ petition. It was submitted on behalf ofthe Union of India that since all the relevant files and papers are at NewDelhi the case should be transferred to New Delhi. It was also the caseon behalf of the Union of India that since no cause of action had arisenin Uttarakhand, the Nainital Circuit Bench does not have the territorialjurisdiction to hear the petition. It was submitted that as the policy wasframed in New Delhi, the names were invited for selection in New Delhi,the selection process begins and ends in New Delhi, therefore, only thePrincipal Bench at New Delhi has territorial jurisdiction to hear the OA.It was also submitted that since the relevant files are lying in New Delhiand since the relevant witnesses would be available in New Delhi, itwould be in the interest of justice to transfer the case to the PrincipalBench, rather than keeping the case pending before the Nainital CircuitBench. It was lastly submitted that since the decision with regard to apolicy decision of the Central Government would have nationwiderepercussions, therefore, only the Principal Bench would be the suitablebench for deciding the validity of the policy decision. Therefore, it wassubmitted that the Chairman has rightly transferred the OA from theNainital Circuit Bench to the Principal Bench in exercise of powersunder Section 25 of the Act, 1985. In the rejoinder, it was the case onbehalf of the original writ petitioner as regards the cause of action, thatpart cause of action has arisen in Uttarakhand as the names of theeligible candidates for the post of Joint Secretary are called from theStates; thus, the names are recommended by the States; the servicerecords of the eligible candidates are with the State and the servicerecords are forwarded by the State. Moreover, as the decision to appointthe Joint Secretaries on contractual basis adversely affects his right ofconsideration for the post of Joint Secretary, hence, the impact of the A

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Apolicy decision deprives his right in the State of Uttarakhand andtherefore, a part of cause of action has arisen in the State of Uttarakhandand therefore, the Nainital Circuit Bench has jurisdiction to hear theOA.

3.5 That thereafter, after considering the relevant provisions ofBthe Act, 1985 and following the decision of this Court in the case of L.Chandra Kumar Vs. Union of India (1997) 3 SCC 261, the HighCourt has allowed the writ petition and has set aside the order dated04.12.2020 passed by the Chairman, Central Administrative Tribunal,New Delhi by observing that there is no requirement of law that a policydecision must, necessarily, be challenged before the Principal BenchCand that there is no provision under the Act, 1985 that a challenge to apolicy decision can be heard only by the Principal Bench.

3.6 Feeling aggrieved with the impugned judgment and order passedby the High Court, Union of India has preferred the present appeal.

D4. Shri Tushar Mehta, learned Solicitor General appearing onbehalf of the Union of India has vehemently submitted that as such theHigh Court of Uttarakhand has erred in entertaining the writ petition. Itis submitted that as such no cause of action has arisen within the territoryof Uttarakhand High Court, the Uttarakhand High Court lacked theterritorial jurisdiction to entertain the writ petition against the order passedEby the Chairman, Central Administrative Tribunal, Principal Bench, NewDelhi. Heavy reliance is placed on the decision of this Court in the caseof L. Chandra Kumar (supra) as well as on the decision of this Courtin the case of Union of India Vs. Alapan Bandyopadhyay (2022) 3SCC 133.F4.1 In the caseof after 4.1 In the caseof Alapan Bandyopadhyay (supra) afterconsidering and following the decision of this Court in the case of L.Chandra Kumar (supra), it is specifically observed and held that “alldecisions of Tribunals created under Article 323A and Article 323B ofthe Constitution will be subject to the scrutiny before a Division BenchGof the High Court within whose jurisdiction the concerned Tribunal falls.”It is submitted that before this Court an identification question arises.That before this Court in the case of Alapan Bandyopadhyay (supra)the High Court at Calcutta set aside the order passed by the PrincipalBench, New Delhi transferring the OA and its files from the CalcuttaBench to the Principal Bench (New Delhi). That it is observed and heldH

by this Court that the Calcutta High Court lacked territorial jurisdiction.Shri Tushar Mehta, learned Solicitor General heavily relied uponparagraphs 15 to 17.

4.2 Making the above submissions and relying upon the abovedecisions it is vehemently submitted by Shri Tushar Mehta, learnedSolicitor General that the impugned judgment and order passed by theHigh Court of Uttarakhand is wholly without jurisdiction.

4.3 Shri Tushar Mehta, learned Solicitor General has madeelaborate submissions on merits also, namely, on the powers of theChairman conferred under Section 25 of the Act, 1985.

5. Shri Shyam Divan, learned Senior Advocate has appeared onbehalf of the original writ petitioner. On the submissions made on behalfof the Union of India that the High Court of Uttarakhand would have nojurisdiction to entertain the writ petition challenging the decision of theChairman, CAT, to transfer the OA from Nainital Circuit Bench toPrincipal Bench, New Delhi, it is vehemently submitted by Shri ShyamDivan, learned Senior Advocate that under Article 226 (2) of theConstitution of India any High Court can exercise jurisdiction under Article226 provided a part cause of action has arisen in its jurisdiction irrespectiveof whether the authority or government which passed the order is notlocated within the jurisdiction of the said High Court. Thus, there can beno doubt that the High Court can exercise the powers under Article 226,if the cause of action, wholly or in part, arises in the territorial jurisdictionof that High Court.

5.1 It is submitted that the decision of this Court in the case of L.Chandra Kumar (supra) while recognising the jurisdiction of a HighCourt under whose jurisdiction the Tribunal falls, may not be read to belimiting the jurisdiction of other High Court under Article 226(2), ifotherwise available. It is submitted that the decision of this Court doesnot confer exclusive jurisdiction on the High Court under whose jurisdictionthe Tribunal falls. It is submitted that the judgment ought not to be readas constricting the scope of Article 226(2). Therefore, to this extent thedecision of this Court in the case of Alapan Bandyopadhyay (supra)may require reconsideration.

5.2 It is further submitted by Shri Shyam Divan, learned SeniorAdvocate that under the Constitutional scheme, the remedies under Article226 and Article 227 are extremely valuable remedies available to citizens A

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Awhere they reside or carry on business or are posted. The scheme doesnot require citizens to come exclusively all the way to Delhi to seekredressal. Thus, limiting the remedy under Article 226 is contrary to thespirit of the Constitution, contrary to the spirit and principle of access tojustice and contrary to the basic structure of the Constitution which enablesjudicial review across the country and not at one concentrated location.B

5.3 It submitted that this Court, by way of a judicial order, oughtnot to take away jurisdiction from other high courts which are otherwiseempowered under Article 226(2) to entertain a Writ Petition against theorder of a Tribunal located in the territory beyond the territorial jurisdictionof the said high courts. It is further submitted that if such an interpretationCis taken to its logical conclusion, then it would result in undue hardshipand inconvenience to the employees of the central government itselfwho are posted across the country.

5.4 Shri Shyam Divan, learned Senior Advocate has taken us tothe historical background of Article 226 of the Constitution of India andDthe development of the law on the jurisdiction of the High Courts includingthe statement of objects and reasons to the Constitution (FifteenthAmendment) Act, 1963 and the remarks of the then Law Minister at thetime of introducing the amendment.

5.5 It is submitted that in the subsequent decision of this Court inEthe case of Kusum Ingots and Alloys Ltd. Vs. Union of India andAnr., (2004) 6 SCC 254, which was after the introduction of Article226(2), has observed and held that the High Court would have jurisdictionif a part of the cause of action arises in its jurisdiction irrespective oflocation/residence of the authority.F5.6 It is submitted that this Court in the case of Alchemist Ltd.

5.6 It is submitted that this Court in the case of Alchemist Ltd.and Anr. Vs. State Bank of Sikkim and Ors., (2007) 11 SCC 335,noting the development of law in relation to the territorial jurisdiction ofthe High Courts under Article 226 has held that “the legislative history ofthe constitutional provisions, therefore, makes it clear that after 1963,Gcause of action is relevant and germane and a writ petition can be institutedin a High Court within the territorial jurisdiction of which cause of actionin whole or in part arises.”

5.7 It is further submitted that the observations made by this Courtin the case of L. Chandra Kumar (supra) that all decisions of tribunalswould be subject to scrutiny before a Division Bench of the High CourtH

within whose jurisdiction the tribunal concerned falls, is not an exclusionof the jurisdiction of the other high courts which may have jurisdiction,particularly, under Article 226(2) of the Constitution of India. It issubmitted that therefore, the judgment of this Court in the case of AlapanBandyopadhyay (supra) may require reconsideration.

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5.8 In support of his above request, he has made followingsubmissions: - B

(i) The Judgement of this Court in the case of AlapanBandyopadhyay (supra) arose out of an order passed bythe Chairman, Central Administrative Tribunal exercisingpowers under Section 25 of the Administrative TribunalsCAct, 1985 transferring the O.A. filed by the Respondenttherein from the Calcutta Bench of the CentralAdministrative Tribunal to the Principal Bench at New Delhi.The said Transfer Order was quashed by the Calcutta HighCourt by allowing the Writ Petition filed by the RespondentDtherein.

(ii) The Order of the Calcutta High Court was challenged bythe Union of India on the ground that a challenge againstthe order passed in the Transfer Application by the CentralAdministrative Tribunal, Principal Bench at New Delhi, wasmaintainable only before the High Court of Delhi as thePrincipal Bench of the Tribunal lies within its territorialjurisdiction.

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(iii) This Hon’ble Court, referring to paragraph 99 of theJudgment in L. Chandra Kumar (supra), held that anydecision of the Tribunal can only be subjected to scrutinybefore a Division Bench of a High Court within whosejurisdiction the Tribunal concerned falls. Consequently, itwas held that the jurisdiction lies with the High Court ofDelhi since the Principal Bench of the Central AdministrativeTribunal is located at New Delhi.

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5.9 It is submitted that the relevant paragraphs from the judgmentof this Hon’ble Court in Alapan Bandyopadhyay (supra) are reproducedherein below:

“36. In view of the reasoning adopted the Constitution Bench inL. Chandra Kumar case [L. Chandra Kumar v. Union of India, H

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(1997) 3 SCC 261 : 1997 SCC (L&S) 577] held Section 28 of theAct and the “exclusion jurisdiction” clauses in all other legislationsenacted under the aegis of Articles 323-A and 323-B, to the extentthey exclude the jurisdiction of the High Courts under Articles226/227 and the Supreme Court under Article 32, of theConstitution, was held unconstitutional besides holding clause 2(d)of Article 323-A and clause 3(d) of Article 323-B, to the sameextent, as unconstitutional.

37. Further, it was held thus : (L. Chandra Kumar case [L.Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997SCC (L&S) 577] , SCC p. 311, para 99) “99. … The jurisdictionconferred upon the High Courts under Articles 226/227 and uponthe Supreme Court under Article 32 of the Constitution is a partof the inviolable basic structure of our Constitution. While thisjurisdiction cannot be ousted, other Courts and Tribunals mayperform a supplemental role in discharging the powers conferredby Articles 226/227 and 32 of the Constitution. The Tribunalscreated under Article 323-A and Article 323-B of the Constitutionare possessed of the competence to test the constitutional validityof statutory provisions and rules. All decisions of these Tribunalswill, however, be subject to scrutiny before a Division Benchof the High Court within whose jurisdiction the Tribunalconcerned falls.”

(emphasis supplied)

(emphasis supplied)

38. When once a Constitution Bench of this Court declared thelaw that “all decisions of Tribunals created under Article 323-Aand Article 323-B of the Constitution will be subject to the scrutinybefore a Division Bench of the High Court within whose jurisdictionthe Tribunal concerned falls”, it is impermissible to make any furtherconstruction on the said issue. The expression “all decisions ofthese Tribunals” used by the Constitution Bench will cover andtake within its sweep orders passed on applications or otherwisein the matter of transfer of original applications from one Benchof the Tribunal to another Bench of the Tribunal in exercise of thepower under Section 25 of the Act.

39. In other words, any decision of such a Tribunal, including theone passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court withinwhose jurisdiction the Tribunal concerned falls. This unambiguousexposition of law has to be followed scrupulously while decidingthe jurisdictional High Court for the purpose of bringing in challengeagainst an order of transfer of an original application from oneBench of Tribunal to another Bench in the invocation of Section25 of the Act.

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40. The law thus declared by the Constitution Bench cannot berevisited by a Bench of lesser quorum or for that matter by theHigh Courts by looking into the bundle of facts to ascertain whetherthey would confer territorial jurisdiction to the High Court withinthe ambit of Article 226(2) of the Constitution. We are of theconsidered view that taking another view would undoubtedly resultin indefiniteness and multiplicity in the matter of jurisdiction insituations when a decision passed under Section 25 of the Act isto be called in question especially in cases involving multiple partiesresiding within the jurisdiction of different High Courts albeitaggrieved by one common order passed by the Chairman at thePrincipal Bench at New Delhi.”

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5.10 It is submitted that the Constitution Bench in L. ChandraKumar (supra) was dealing with a challenge to the constitutionalvalidity of Article 323-A(2d), Article 323- B(3d) of the Constitution ofIndia and Section 28 of the Administrative Tribunals Act, 1985 whichexcluded jurisdiction of the Hon’ble Supreme Court under Article 32and of the High Courts under Article 226. The final conclusion reachedby the Constitution Bench in L. Chandra Kumar (supra) at paragraph99, was that:

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(a) the power of Judicial Review guaranteed under Article 32and Article 226/227 is part of the inviolable basic structureof our constitution.

(b) the provisions under challenge were declaredunconstitutional to the extent that they exclude the jurisdictionGof the High Courts and the Supreme Court under Article226/227 and 32 of the Constitution of India respectively.

(c) However, it was held that all service matters must at thefirst instance go to the Administrative Tribunal and uponthe tribunal delivering the judgment the same could be H

Asubjected to a challenge under the writ jurisdiction of theHigh Court within whose jurisdiction the tribunal falls.

5.11 It is submitted that judgment in the case of L. ChandraKumar (supra) ought not to be read to have held that only the HighCourt under whose territorial jurisdiction the tribunal falls will haveBjurisdiction to entertain a Writ Petition against the order of the saidtribunal.

5.12 The effect of the Judgment in Alapan Bandyopadhyay(supra) is that only the High Court under whose territorial jurisdictionthe tribunal falls would have jurisdiction to entertain a Writ Petition againstCthe order of the said Tribunal.

5.13 It is submitted that as is clear from the section dealing withthe development of law relating to the territorial jurisdiction of the HighCourts, the intent and purpose behind adding clause (2) under Article226 would be defeated if paragraph 99 of L. Chandra Kumar (supra)Dis interpreted in such a manner.

5.14 It is further submitted that the power of judicial review is anintegral and essential feature of the Constitution and even a constitutionalamendment cannot exclude the power of the high courts and the SupremeCourt to exercise their power of judicial review and this power cannever be ousted.E

5.15 It is respectfully submitted that this Court, by way of a judicialorder, ought not to take away jurisdiction from other high courts whichare otherwise empowered under Article 226(2) to entertain a Writ Petitionagainst the order of a Tribunal located in the territory beyond the territorialjurisdiction of the said high courts.

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5.16 It is submitted that under the Constitutional scheme, alltwenty-five High Courts have equivalent jurisdiction, and no discriminationor special treatment is envisaged to any particular High Court. This isone of the facets of independence of judiciary.

5.17 It is further submitted that if such an interpretation is takento its logical conclusion, then it would result in undue hardship andinconvenience to the employees of the central government itself whoare posted across the country. For example, if an application were to befiled by an aggrieved employee before the Ernakulam Bench of theCentral Administrative Tribunal, and an Order for its Transfer to another G

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Bench were to be passed by the Principal Bench at Delhi, the aggrievedwould be forced to travel all the way from Ernakulam to Delhi to challengethe Transfer Order and contest the case. As already submitted above,this would defeat the very purpose of inserting Article 226(2) into theConstitution with the specific intent of providing a cheap, effective andefficacious remedy in law at the doorstep of the aggrieved person.

5.18 It is therefore prayed that the decision of this Hon’ble Courtrendered in Alapan Bandyopadhyay (supra) case ought to bereconsidered in light of the submissions made above.

6. Regard being had to the important issue raised by Shri ShyamDivan, learned Senior Advocate appearing on behalf of respondent No.1 and the submissions made by Shri Tushar Mehta, learned SolicitorGeneral and having gone through the judgment(s) and order(s) passedby this Court in L. Chandra Kumar (supra) and AlapanBandyopadhyay (supra) and that the issue involved is with respect tothe territorial jurisdiction of the High Courts and the effect of introductionof Article 226(2) of the Constitution of India and the statement of theLaw Minister while introducing Article 226(2) of the Constitution referredto hereinabove and that the issue involved affects a large number ofemployees and is of public importance, we think it appropriate that thematter involving the issue of territorial jurisdiction of the concerned HighCourt to decide a challenge to an order passed by the Chairman, CAT,Principal Bench, New Delhi should be considered by a Larger Bench.Let the registry place the matter before the Chief Justice of India forappropriate orders at the earliest so that the aforesaid issue is resolvedat the earliest.

Ankit Gyan(Assisted by : Abhishek Agnihotri, LCRA)

Matter referred to larger Bench.

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