ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION versus UNION OF INDIA & OTHERS

[2023] 6 S.C.R. 731

ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION

UNION OF INDIA & OTHERS

(Civil Appeal No 6805 of 2022)

MARCH 21, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI ANDHIMA KOHLI, JJ.]

Constitution of India:

Art. 226 – Odisha Administrative Tribunal-OAT – Abolitionof, by Notification No. GSR 552(E) dt 2 August 2019 – ConstitutionalValidity of the Notification – Held: Abolition of OAT is constitutionallyvalid – Challenge to the constitutional validity of the impugnednotification dated 2 August 2019 by which the OAT was abolishedis rejected - Administrative Tribunals Act, 1985 – s. 4(2) – GeneralClauses Act, 1897 – s. 21.

Article 226 – Odisha Administrative Tribunal-OAT – Abolitionof – Writ petition before the Orissa High Court alleging violation ofconstitutional 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 UnionGovernment, 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 abolishingSATs – Art. 323-A is directory, enabling provision which confersthe Union Government with the discretion to establish anadministrative tribunal – Art. 323-A does not act as bar to theUnion Government abolishing an administrative tribunal once it iscreated – Administrative Tribunals Act, 1985.

Art. 14 – Notification dated 2.8. 2019 by which OdishaAdministrative Tribunal-OAT was abolished – If arbitrary and thus,violative of Art. 14 – Held : Notification dated 2.08.2019 by whichthe OAT was abolished is not violative of Art. 14 – State Governmentdid not consider any irrelevant or extraneous factors while arriving

Aat the decision to request the Union Government to abolish the OAT– Decision to abolish the OAT is itself not absurd or so unreasonablethat no reasonable person would have taken it – AdministrativeTribunals Act, 1985.

Art. 14 – Abolition of the Odisha Administrative Tribunal-BOAT, if violative of the fundamental right of access to justice –Held : Abolition of the OAT not violative of the fundamental rightof access to justice – Orissa High Court will hear cases which werepending before the OAT prior to its abolition – AdministrativeTribunals Act, 1985.CArt. 14 – Abolition of Odisha Administrative Tribunal-OAT –Plea that Union and State Governments violated the principle ofnatural justice by failing to provide the OAT Bar Association andlitigants before the OAT with an opportunity to be heard beforeabolishing the OAT – Held: Principles of natural justice not violated– Class of people who were affected by the decision to abolish theDOAT did not have right to be heard – Public at large (or somesections of it) did not have right to be heard before the policydecision was taken – Principles of natural justice – AdministrativeTribunals Act,1985.

Art. 77 – Notification dated 2.08.2019 abolishing OAT – NotEexpressed in the name of the President of India – Validity of – Held:Notification dated 2.08.2019 is valid though it is not expressed inthe name of the President of India – Non-compliance with Art.77does not invalidate notification or render it unconstitutional –Administrative Tribunals Act, 1985.FAdministrative Tribunals Act,1985:

Establishment of Odisha Administrative Tribunal-OAT – UnionGovernment if rendered functus officio after establishing the OAT– Held: Union Government did not become functus officio afterestablishing the OAT – Doctrine of functus officio cannot ordinarilyGbe applied in cases where the government is formulating andimplementing policy.

Establishment of Odisha Administrative Tribunal-OAT – Pleathat State Government took advantage of its own wrong by ceasingto fill the vacancies in the OAT – Held: State Government did notH

take advantage of its own wrong – It stopped filling the vacanciesof the OAT only after deciding to abolish it – It did not rely on thevacancies (and the consequent increase in pendency) created by itsinaction to abolish the OAT.

Odisha Administrative Tribunal-OAT – Judicial impactassessment – Conduct of before abolishing the OAT - Failure by theUnion Government, if vitiates its decision to abolish the OAT – Held:Failure of the Union Government to conduct judicial impactassessment before abolishing the OAT does not vitiate its decisionto abolish the OAT – Directions to conduct judicial impactassessment in Rojer Mathew’s case were of general nature anddid not prohibit the abolition of specific tribunals such as the OATin the absence of judicial impact assessment - However, theMinistry of Law and Justice directed to conduct judicial impactassessment as directed by this Court in Rojer Mathew’s case.

General Clauses Act, 1897: s 21 – Applicability/ Invocationof – To rescind the notification establishing the OAT, therebyabolishing the OAT – Held: Union Government acted in validexercise of its powers when it invoked s. 21 r/w s. 4(2) of theAdministrative Tribunals Act to rescind the notification establishingthe OAT – Decision to establish the OAT was an administrativedecision and not quasi-judicial decision – Administrative decisions,unlike quasi-judicial decisions, may be reversed by the applicationof s. 21 – Moreover, s. 21 is not repugnant to the subject- matter,context and effect of the Administrative Tribunals Act and is inharmony 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 AdministrativeTribunal-OAT was constitutionally valid for the following reasons:

a. The Writ Petitions instituted before the Orissa HighCourt were maintainable because the appellants claimed that theirconstitutional rights had been violated. They were thereforeentitled to invoke the jurisdiction of the High Court under Article226 of the Constitution;

Ab. Article 323-A does not preclude the Union Governmentfrom abolishing SATs because it is an enabling provision whichconfers the Union Government with the power to establish anadministrative tribunal at its discretion (upon receiving requestfrom the relevant State Government in terms of the AdministrativeTribunals Act). The legal and factual context of the power toBestablish administrative tribunals, the purpose of this power andthe intention of the legislature establish that there is no duty toexercise the power conferred by the Administrative TribunalsAct, such that the enabling provision becomes mandatoryprovision;C

c. The Union Government acted in valid exercise of itspowers when it invoked Section 21 of the General Clauses Actread with Section 4(2) of the Administrative Tribunals Act torescind the notification establishing the OAT because thedecision to establish the OAT was an administrative decision andDnot quasi-judicial decision. Moreover, Section 21 of the GeneralClauses Act is not repugnant to the subject- matter, context andeffect of the Administrative Tribunals Act and is in harmony withits scheme and object;

d. The notification dated 2 August 2019 by which the OATEwas abolished is not violative of Article 14 of the Constitution.The State Government did not consider any irrelevant orextraneous factors while arriving at the decision to request theUnion Government to abolish the OAT. The decision to abolishthe OAT is itself not absurd or so unreasonable that no reasonableperson would have taken it;F

e. The principles of natural justice were not violatedbecause the class of people who were affected by the decision toabolish the OAT did not have right to be heard. The public atlarge (or some sections of it) did not have right to be heardbefore the policy decision was taken;G

f. The Union Government did not become functus officioafter establishing the OAT because the doctrine cannot ordinarilybe applied in cases where the government is formulating andimplementing policy;

g. The notification dated 2 August 2019 is valid though it isnot expressed in the name of the President of India because non-compliance with Article 77 of the Constitution does not invalidatea notification or render it unconstitutional;

h. The abolition of the OAT is not violative of thefundamental right of access to justice because the Orissa HighCourt will hear cases which were pending before the OAT priorto its abolition;

i. The State Government did not take advantage of its ownwrong because it stopped filling the vacancies of the OAT onlyafter deciding to abolish it. It did not rely on the vacancies (andthe consequent increase in pendency) created by its inaction toabolish the OAT; and

j. The failure of the Union Government to conduct judicialimpact assessment before abolishing the OAT does not vitiateits decision to abolish the OAT because the directions in RojerMathew’s case were of general nature and did not prohibit theabolition of specific tribunals such as the OAT in the absence ofa judicial impact assessment. However, the Ministry of Law andJustice is directed to conduct judicial impact assessment asdirected 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 theimpugned notification dated 2 August 2019 by which the OATwas abolished is rejected. The judgment of the High Court isupheld in terms of the conclusions recorded. [Para 129][805-F-G]

Writ Petitions instituted before the Orissa High Court weremaintainable.

2. Having alleged that the rights under Art. 14 wereviolated by the abolition of the OAT, the appellants were entitledto invoke the High Court’s jurisdiction under Article 226 of theConstitution. [Para 31][765-E-F]

Ghulam Qadir v. Special Tribunal(2002) 1 SCC 33 :[2001] 3 Suppl. SCR 504;State of Orissa v. RamChandra DevAIR 1964 SC 685 – referred to.

AArticle 323-A does not preclude the Union Governmentfrom abolishing SATs

3.1 Clauses (1) and (2) of Article 323-A use the expression“may,” indicating that Article 323-A does not compel Parliamentto enact law to give effect to it. Parliament is entrusted with theBdiscretion to enact law which provides for the adjudication ofcertain disputes by administrative tribunals. It is permissiveprovision. The provision is facilitative and enabling. However, incertain cases, the power to do something may be coupled with aduty to exercise that power. [Para 33, 34][766-H; 767-A-B]

C3.2 The word “may” in Article 323-A of the Constitution isnot imparted with the character of the word “shall.” Article 323-A is directory, enabling provision which confers the UnionGovernment with the discretion to establish an administrativetribunal. The corollary of this is that Article 323-A does not actas bar to the Union Government abolishing an administrativeDtribunal once it is created. [Para 42][771-C-D]

Official Liquidator v. Dharti Dhan (P) Ltd.(1977) 2SCC 166 : [1977] 2 SCR 964;Dhampur Sugar MillsLtd. v. State of U.P.(2007) 8 SCC 338 : [2007] 10SCR 245;Dilip K Basu v. State of West Bengal (2015)E8 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 theGeneral Clauses Act read with Section 4(2) of the AdministrativeFTribunals Act to rescind the notification establishing the OAT.Section 21 of the General Clauses Act, is rule of construction.[Para 43][771-E]

4.2 The Union Government was not acting in judicialcapacity when it set up the OAT. On the establishment of theOAT, pending cases before the High Court were transferred toGthe OAT. Indeed, the decision to establish an SAT is based onpolicy and expediency. It is up to each State Government toevaluate the need for an SAT within their state, to consider theadvantages and disadvantages as well as the financial,

administrative, and other practical aspects of establishing an SAT.The Union Government may then establish the SAT uponreceiving request, in terms of Section 4(2) of the AdministrativeTribunals Act. The decision to establish an SAT is undoubtedlyan administrative decision. Administrative decisions, unlikequasi-judicial decisions, may be reversed by the application ofSection 21 of the General Clauses Act. The applicability of Section21 of the General Clauses Act does not stand excluded in theinstant case. The order establishing the OAT is an administrativeorder. [Para 51, 52][774-E-H; 775-A]

4.3 The distinction between quasi-judicial andadministrative decisions has been invoked for the purpose ofdetermining whether Section 21 of the General Clauses Act maybe invoked to reverse the decision to establish an SAT.Administrative orders continue to be amenable to judicial reviewin accordance with law. [Para 53][775-B]

Industrial Infrastructure Development Corpn. (Gwalior)M.P. Ltd. v. CIT(2018) 4 SCC 494 : [2018] 10 SCR481 – held inapplicable.

Indian National Congress (I) v. Institute of SocialWelfare(2002) 5 SCC 685 : [2002] 3 SCR 1040;Province of Bombay v. Khushaldas S. Advani(1950)SCC 551;Board of High School and IntermediateEducation v. Ghanshyam Das GuptaAIR 1962 SC 1110: [1962] Suppl. SCR 36 – referred to.

Section 21 of the General Clauses Act is otherwiseapplicable to the Administrative Tribunals Act

5.1 Section 21 of the General Clauses Act can be invokedwhen its application would not be repugnant to the subject-matter,context, and effect of the statute and when it is in harmony withits scheme and object. The court may refer to the provisions ofthe statute in question to determine whether Section 21 of theGeneral Clauses Act will be applicable. [Para 56][776-B]

5.2 The object of the Administrative Tribunals Act is toreduce arrears and enable the provision of speedy justice tolitigants. Abolishing an SAT would not frustrate this objective

Abecause SATs are not the only method by which the object iscapable of being achieved. Further, the effect of such an abolitionwould not be to deprive litigants of remedy because the casesbefore the SAT would stand revived in the forum in which theywere pending prior to the establishment of that SAT. The subjectmatter and the context of the Administrative Tribunals Act, too,Bdo not militate against the application of Section 21 of the GeneralClauses Act. There is therefore nothing in the AdministrativeTribunals Act which is repugnant to the application of Section 21of the General Clauses Act. The relevant State Government hasthe implied power to issue request to abolish the SAT in itsCstate to the Union Government. The Union Government in turnhas the implied power to rescind the notification by which thatSAT was established, thereby abolishing the SAT. [Para 59][777-B-E]5.3 In the present case, there is no such impediment to theDapplication of Section 21 of the General Clauses Act. The objectof the Administrative Tribunals Act would not stand frustrated ifan SAT is created and then abolished. The Union and StateGovernments may take alternate routes (some of which may havealready been in operation, supplementing SATs) towardsachieving the same objective. [Para 62][778-F-G]E

5.4. The appellants have also argued that the UnionGovernment’s power to abolish SATs must flow from the samelegislation that vests it with the power to establish them. It istheir contention that the Union Government does not have thepower to abolish SATs because the Administrative Tribunals ActFdoes not provide for it. This argument fails for the simple reasonthat the very purpose of Section 21 of the General Clauses Act isto provide for contingencies such as the instant case when thestatute in question does not explicitly provide for the power toadd to, amend, vary, or rescind notification (or order, rule, orGby-law) which has been issued. Of course, the application ofSection 21 of the General Clauses Act is subject to the test laiddown in N Ganguly’s case as well as the other requirementsmentioned in the provision itself. If the argument of the appellantswere to be accepted, Section 21 of the General Clauses Act wouldbe rendered otiose. It would not apply to any statute which doesH

not explicitly provide for the power to add to, amend, vary, orrescind notifications, orders, rules or bye-laws. On the otherhand, if the statute itself conferred the power to add to, amend,vary, or rescind notifications, orders, rules or by-laws, there wouldbe no need to rely on Section 21 of the General Clauses Act.This is not conceivable position because courts must interpretstatutes so as to give effect to their provisions rather than torender them futile. [Para 63, 64][778-H; 779-A-D]

5.5 The appellants submitted that what cannot be donedirectly cannot be done indirectly. Neither Article 323-A of theConstitution nor the Administrative Tribunals Act prohibit theabolition of SATs. Hence, it cannot be said that the UnionGovernment is barred from abolishing the SATs “directly” andthat it has resorted to Section 21 of the General Clauses Act toevade such ban and “indirectly” abolish the OAT. The UnionGovernment’s reliance on Section 21 of the General Clauses Actto abolish the OAT is legally permissible. [Para 65][779-D-F]

5.6 The transfer of cases from the OAT to the Orissa HighCourt is, properly characterized, revival of the latter’sjurisdiction. The impugned judgment that the Orissa High Court’sjurisdiction in relation to matters pending before the OAT is notbeing created or enlarged by the abolition of the OAT. Itpreviously exercised such jurisdiction and is merely resumingits jurisdiction over the same subject matter. The naturalconsequence of the Union Government rescinding the notificationestablishing the OAT would be to restore the status quo ante.Nothing in either Article 323-A of the Constitution or theAdministrative Tribunals Act prevents such revival. Further,the absence of provision in the Constitution which explicitlypermits revival does not act as barrier to such revival. TheUnion Government’s reliance on Section 21 of the GeneralClauses Act is in accordance with law. [Para 71, 72][781-F-H;782-A-B]

Lt. Governor of H.P. Avinash Sharma(1970) 2 SCC149 : [1971] 1 SCR 413 – distinguished.

A.R. Antulay v. R.S. Nayak(1988) 2 SCC 602 : [1988]

1 Suppl. SCR 1 – held inapplicable.

AState of Bihar v. N Ganguly1959 SCR 1191;KamlaPrasad Khetan v. Union of India1957 SCR 1052;Stateof M.P. v. Ajay Singh(1993) 1 SCC 302 : [1992] 2Suppl. SCR 274;Tamil Nadu Government AllDepartment Watchman and Basic Servants Associationv. Union of India 2005 SCC OnLine Mad 333;ZakirBAbdul Mirajkar v. State of Maharashtra(2022) SCCOnLine SC 1092;M. Pentiah v. MuddalaVeeramallappa(1961) 2 SCR 295 – referred to.

The notification dated 2 August 2019 is not violative ofArticle 14 of the ConstitutionC

6.1 While arriving at the decision to abolish the OAT, theState Government considered relevant reasons. It consideredwhether the OAT was capable of fulfilling the purpose for whichit was established after the decision in L. Chandra Kumar. Itplaced in the balance the expenditure incurred to operate theDOAT as well as the rate of disposal of cases. These reasons werenot irrelevant to the decision as to whether tribunal ought to becontinued;

6.2 The State Government’s act of consulting the OrissaHigh Court (upon receiving request to this effect from the UnionEGovernment) before deciding to abolish the OAT was notirrelevant or extraneous. The cases before the OAT were to betransferred to the Orissa High Court and the opinion of the latterwas relevant to State Government’s decision.

6.3 The State Government did not consider factors whichFwere irrelevant or extraneous to its decision. The decision toabolish the OAT was not one which was so absurd that noreasonable person or authority would ever have taken it. Thedecision to abolish tribunal which it had established, based onan analysis of relevant factors is, by no stretch of imagination, anabsurd or unreasonable decision. It does not violate Article 14 ofGthe Constitution. [Para 82][788-A-E]

6.4 The decision to establish, continue or abolish the OATis in the nature of policy formulated and implemented by theState Government (acting with the Union Government under the

Administrative Tribunals Act). The public at large does not havea right to be heard before policy is formulated and implemented.The process of consultation with the public, with experts, andwith other stakeholders may be desirable and would facilitate aparticipatory democracy. However, each member of the class thatwould be impacted by policy decision cannot be afforded anopportunity of hearing. This would not only be time consumingand expensive, but deeply impractical. [Para 86][789-G; 790-A-B]

6.5 The absence of right to be heard before the formulationor implementation of policy does not mean that affected partiesare precluded from challenging the policy in court of law. Whatit means is that policy decision cannot be struck down on theground that it was arrived at without offering the members of thepublic at large (or some section of it) an opportunity to be heard.The challenge to policy may be sustainable if it is found to vitiateconstitutional rights or is otherwise in breach of mandate oflaw. Thus, the decision to abolish the OAT cannot be assailed onthe ground that there was violation of the principles of naturaljustice. Article 14 of the Constitution has not been violated. [Para88, 89][791-B-D]

BALCO Employees’ Union (Regd.) v. Union of India(2002) 2 SCC 333 : [2001] 5 Suppl. SCR 511 – reliedon.

L. Chandra Kumar v. Union of India(1997) 3 SCC261 : [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;PunjabCommunications Ltd. v. Union of India(1999) 4 SCC727 : [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 OatEstates (P) Ltd. v. UT, Chandigarh(2004) 2 SCC 130 :[2003] 6 Suppl. SCR 1235;M.P. High Court Bar Assn.

Av. Union of India(2004) 11 SCC 766 : [2004] 4 Suppl.SCR 520 – referred to.

Associated Provincial Picture Houses, LimitedWednesbury Corporation [1948] 1 K.B. 223 – referredto.

BUnion Government did not become functus officio afterestablishing the OAT

7.1 The doctrine of functus officio gives effect to theprinciple of finality. Once judge or quasi-judicial authority hasrendered decision, it is not open to her to revisit the decisionCand amend, correct, clarify, or reverse it (except in the exerciseof the power of review, conferred by law). Once judicial or quasi-judicial decision attains finality, it is subject to change only inproceedings before the appellate court. [Para 92][791-G-H]

7.2 The doctrine of functus officio exists to provide clearDpoint where the adjudicative process ends and to bring quietusto the dispute. Without it, decision-making bodies such as courtscould endlessly revisit their decisions. With definitive endpointto case before court or quasi-judicial authority, parties arefree to seek judicial review or to prefer an appeal. Alternatively,Etheir rights are determined with finality. Similar considerationsdo not apply to decisions by the state which are based entirely onpolicy or expediency. [Para 94][792-E-F]

7.3 The appellants’ argument that the Union Governmentwas rendered functus officio after establishing the OAT does notFstand scrutiny. The decision to establish the OAT wasadministrative and based on policy considerations. If the doctrineof functus officio were to be applied to the sphere of administrativedecision-making by the state, its executive power would becrippled. The state would find itself unable to change or reverseany policy or policy-based decision and its functioning would grindGto halt. All policies would attain finality and any change wouldbe close to impossible to effectuate. [Para 95][792-G; 793-A]

7.4 This would impact not only major policy decisions butalso minor ones. Major policy decisions such as those concerningsubsidies, corporate governance, housing, education and socialH

welfare would be frozen if the doctrine of functus officio were tobe applied to administrative decisions. This is not conceivablebecause it would defeat the purpose of having government andthe foundation of governance. By their very nature, policies aresubject to change depending on the circumstances prevailing insociety at any given time. The doctrine of functus officio cannotordinarily be applied in cases where the government is formulatingand implementing 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 anSAT. Similarly, the State and Union Governments cannot be saidto have fulfilled the purpose of their creation and to be of nofurther virtue or effect once they have established an SAT. Thestate may revisit its policy decisions in accordance with law. Forthese reasons, the Union Government was not rendered functusofficio after establishing the OAT. [Para 97][793-D-E]

Hari Singh Mann v. Harbhajan Singh Bajwa(2001) 1SCC 169 : [2000] 4 Suppl. SCR 313 – referred to.

P Ramanatha Aiyer’s The Law Lexicon (1997 edition);Black’s Law Dictionary(5[th] edition) – referred to.

The notification dated 2 August 2019 is valid despite notbeing expressed in the name of the President of India

8.1 notification which is not in compliance with clause (1)of Article 77 is not invalid, unconstitutional or non-est for thatreason alone. Rather, the irrebuttable presumption that thenotification was issued by the President of India (acting for theUnion Government) is no longer available to the UnionGovernment. The notification continues to be valid and it is opento the Union Government to prove that the order was indeedissued by the appropriate authority. [Para 101][795-F-G]

8.2 In the instant case, the notification dated 2 August 2019was not issued in the name of the President. However, this doesnot render the notification invalid. The effect of not complyingwith Article 77 is that the Union Government cannot claim thebenefit of the irrebuttable presumption that the notification dated

A2 August 2019 was issued by the President. Hence, the appellants’submission that the notification dated 2 August 2019 is invalidand unconstitutional is specious. [Para 102][795-G-H; 796-A]

8.3 Both the notification dated 4 July 1986 and thenotification dated 2 August 2019 were, in substance, issued byBthe President (acting for the Union Government). The notificationswere published in the Gazette of India in accordance with law andthere is nothing on record to support the suggestion that anauthority which is not empowered to issue the notification hasissued it. To the contrary, Section 4 of the AdministrativeTribunals Act empowers the Union Government to issue aCnotification establishing the OAT and the attendant power torescind notification so issued is also available to the UnionGovernment. The issuance of both notifications was an exerciseof the Union Government’s statutory power under theAdministrative Tribunals Act. [Para 104][796-C-E]

8.4 Article 77 is directory provision. Article 77(1) refersto the form in which the decision taken by the executive is to beexpressed. This is evident from the phrase “expressed to betaken” in clause (1) of Article 77. It does not have any bearing onthe process of decision-making itself. The public or the citizenryEwould stand to suffer most from the consequences of declaringan order that is not expressed in the name of the President nulland void. [Para 107][797-D-E]

8.5 In the instant case, the notification dated 2 August 2019was issued in exercise of the statutory powers under theFAdministrative Tribunals Act. Thus, the notification dated 2August 2019 is valid despite not being expressed in the name ofthe 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 KumarGVaish(2011) 8 SCC 670 : [2011] 13 SCR 754;GulfGoans Hotel Co. Ltd. v. Union of India(2014) 10 SCC673 : [2014] 10 SCR 536 – held inapplicable.

Air India Cabin Crew Assn. v. Yeshaswinee Merchant(2003) 6 SCC 277 : [2003] 1 Suppl. SCR 455 – referredto.

Abolition of the OAT is not violative of the fundamentalright of access to justice

9.1 The fundamental right of access to justice is no doubt acrucial 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 bystatute or the Constitution. It is an undeniable fact that somecourts and forums will be located in some towns and cities andnot others. Some or the other litigants will be required to travelsome distance to access particular forum or court. [Para112][799-G-H]

9.2 The Orissa High Court has established benches whichwill operate virtually in multiple cities and towns across the state.This negates the appellants’ argument that the Orissa High Courtis less accessible than the OAT. In fact, the number of virtualbenches of the High Court is greater than the number of benchesof the OAT. Litigants from across the state can access the HighCourt with greater ease than they could access the OAT. [Para114][800-E]

9.3 Litigants may therefore approach the Orissa High Courtfor the resolution of disputes. The abolition of the OAT does notleave litigants without remedy or without forum to adjudicatethe dispute in question. It is therefore not violative of thefundamental 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 ownwrong

10. The State Government discontinued appointments tothe OAT as result of its decision to abolish the OAT and notvice versa. The State Government based its decision on anevaluation of the OAT’s functioning in the year 2014, which wasprior 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 madethe OAT non-functional. [Para 118][801-E-F]

AFailure of the Union Government to conduct judicialimpact assessment before abolishing the OAT does not vitiateits decision to abolish the OAT

11.1 The direction to conduct judicial impact assessmentin Rojer Mathew’s case was of general nature. It was not gearedBtowards proposals to abolish specific tribunals such as the OAT.Rather, need was felt to analyse the consequences of therestructuring of tribunals by the Finance Act 2017 and writ ofmandamus was issued in this regard to the Ministry of Law andJustice. The judicial impact assessment was also directed to beconducted in order to better understand the case load, efficacy,Cfinancial impact, and accessibility of tribunals at large, in additionto the filling of vacancies. Neither the majority opinion authoredby Ranjan Gogoi, CJI nor the opinions of Dr. DY Chandrachud,J. or Deepak Gupta, J. contain direction to the effect that atribunal shall not be abolished in the absence of judicial impactDassessment. In the instant case, the Union Government issuedthe notification dated 2 August 2019 in valid exercise of itspowers under Section 21 of the General Clauses Act. The failureto conduct judicial impact assessment does not vitiate itsdecision to abolish the OAT. Nothing in the judgment in RojerMathew’s case also indicates the need for the Union GovernmentEto 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 Governmentand more specifically, the Ministry of Law and Justice maydispense with the directions of this Court in Rojer Mathew’s case.FThe judgment was delivered on 13 November 2019. More thanthree years have since passed and the Ministry of Law and Justiceis yet to conduct judicial impact assessment. An assessmentsuch as the one directed to be conducted would only shed lighton the impediments faced in the delivery of justice. The lack ofGan assessment precludes any well-informed, intelligent actionconcerning tribunals in the country (as whole). This, in turn,has cascading effects for the citizenry, which is deprived of well-oiled machinery by which it can access justice. Therefore thedirections of this Court in Rojer Mathew’s case is reiterated and

the Ministry of Law and Justice is directed to conduct judicialimpact assessment at the earliest. [Para 123, 124][803-B-D]

Rojer Mathew v. South Indian Bank Ltd.(2020) 6 SCC1 : [2019] 16 SCR 1 – followed.

[1997] 2 SCR 1186[2004] 4 Suppl. SCR 520[2001] 3 Suppl. SCR 504AIR 1964 SC 685[1977] 2 SCR 964[2007] 10 SCR 245[2015] 7 SCR 814[2002] 3 SCR 1040(1950) SCC 551[1962] Suppl. SCR 36[2018] 10 SCR 4811959 SCR 11911957 SCR 1052[1971] 1 SCR 413[1992] 2 Suppl. SCR 274(1961) 2 SCR 295[1988] 1 Suppl. SCR 1[1974] 2 SCR 348[1990] 3 Suppl. SCR 20[1994] 2 Suppl. SCR 122[1999] 2 SCR 1033

[2023] 6 S.C.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.6805of 2022.

From the Judgment and Order dated 07.06.2021 of the High CourtEof 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.FNikita Jaydevan, Ms. Varnalee Mishra, Dr. Aman Hingorani, Kedar NathTripathy, 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 KrGTyagi, Ms. Swarupama Chaturvedi, Ms. Shraddha Deshmukh, ShivMangal 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

*Ed. Note : Pagination in the Table of Contents is as per the original judgment.

750SUPREME COURT REPORTS

[2023] 6 S.C.R.

Aa.The notification dated 2 August 2019 is not absurd orbased on irrelevant or extraneous considerations......... 47b.The principles of natural justice have not beenviolated ......................................................................... 56

Bvi.The Union Government did not become functus officioafter establishing the OAT .................................................. 58

vii.The notification dated 2 August 2019 is valid despitenot being expressed in the name of the President ofCIndia ........................................................................................ 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 ownDwrong.......................................................................................70

x.The failure of the Union Government to conduct ajudicial impact assessment before abolishing the OATdoes not vitiate its decision to abolish the OAT ............. 71E

xi.Miscellaneous contentions..................................................74

E.Findings and conclusion ....................................................... 75

1. IA No. 52385 of 2022 (application for intervention by Mr CRavichandran Iyer) is allowed.FA. Background

i. Factual background

2. This appeal arises from judgment of the Orissa High Courtdated 7 June 2021 in batch of writ petitions challenging the abolition ofGthe Odisha Administrative Tribunal.[1] Before setting out the facts whichgave rise to the issues in this appeal, it is necessary to understand thecontext in which they arose.

3. Parliament inserted Part XIV-A of the Constitution of India bythe Constitution (Forty-second Amendment) Act 1976. Part XIV-A con-H1 “OAT”

sists of two articles, Articles 323A and 323B. Article 323A empowersParliament to provide for the adjudication of certain disputes by admin-istrative tribunals. Disputes concerning the recruitment and conditionsof service of persons appointed to public services and posts in connec-tion with the affairs of the Union or of any State or local or other author-ity within the territory of India or under the control of the Government ofIndia or of any corporation owned or controlled by the Government,may be adjudicated by administrative tribunals. Article 323B empowersthe 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 State-ments of Objects and Reasons of this legislation records that it wasenacted in order to give effect to Article 323A, and also because:

“a large number of cases relating to service matters are pendingbefore the various courts. It is expected that the setting up ofsuch Administrative Tribunals to deal exclusively with servicematters would go long way in not only reducing the burden ofthe various courts and thereby giving them more time to deal withother cases expeditiously but would also provide to the personscovered by the Administrative Tribunals speedy relief in respectof their grievances.”

5. Section 4(1) of the Administrative Tribunals Act provides thatthe Central Government shall establish an administrative tribunal knownas the “Central Administrative Tribunal”[3] to adjudicate disputes concerningthe recruitment and conditions of service of persons in connection withposts under the Union or All-India Service,[4] including disputes with respectto remuneration, pension, tenure, leave, and disciplinary matters.[5]

In terms of Section 4(2) of the Administrative Tribunals Act, theCentral Government may establish an administrative tribunal for aparticular state, upon receiving request in this regard from theconcerned State Government. Once created, the state administrativetribunal[6] 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”

Aconcerning the recruitment and conditions of service of persons inconnection with posts under the concerned state or any civil service ofthat state,[7] including disputes with respect to remuneration, pension,tenure, leave, and disciplinary matters.[8]

6. The SAT is prohibited from exercising jurisdiction, authority, orBpower over matter which the CAT’s jurisdiction extends.[9] While Section4(2) of the Administrative Tribunals Act governs the establishment ofSATs, there is no corresponding provision which stipulates the procedureto be followed to discontinue or abolish them. In terms of Section 29 ofthe Administrative Tribunals Act, suits or other proceedings pending beforecourts or other authorities which would have been within the jurisdictionCof the SAT if the cause of action in such suit or proceeding had arisenafter the establishment of the SAT, stand transferred to the SAT on thedate of its establishment. In other words, cases pending before otherfora (including cases pending before the High Court of the relevant statebut excluding those pending before the Supreme Court) stand transferredDto 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 Governmentto establish an SAT, and the Central Government issued notificationsEestablishing them. Odisha was one amongst these states. Upon receivinga request from the State of Odisha, the Central Government establishedthe OAT on 4 July 1986 by issuing Notification No. GSR 934(E), whichwas published in the Gazette of India. The OAT commenced functioningsoon thereafter.

F7. At this time, Section 28 of the Administrative Tribunals Actwas still in force. Section 28 excluded the jurisdiction of all courts exceptthe Supreme Court or the Industrial Tribunal or Labour Court in relationto matters over which the CAT and the SAT exercised jurisdiction. Section28 was enacted pursuant to the enabling provision in Article 323-A ofthe Constitution, namely clause 2(d) of Article 323-A. Clause 2(d)Gprovided that Parliament may exclude the jurisdiction of all courts, exceptof the Supreme Court under Article 136 of the Constitution with respectto 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 theAdministrative Tribunals Act, therefore, was that appeals from the OATlay directly to the Supreme Court under Article 136 of the Constitution.However, this changed with the decision of this Court in L. ChandraKumar v. Union of India (1997) 3 SCC 261. In its decision in thatcase, 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 thejurisdiction of the High Courts under Articles 226 and 227and of the Supreme Court under Article 32 of the Constitution;

b.Section 28 of the Administrative Tribunals Act wasCunconstitutional as were ‘exclusion of jurisdiction’ clauses inall other legislation enacted under Articles 323-A and 323-B;c. The jurisdiction conferred upon the High Courts underArticles 226 and 227 and upon the Supreme Court underArticle 32 of the Constitution form part of the basic structureDof the Constitution; and

d.Other courts and Tribunals may perform supplemental rolein discharging the powers conferred by Articles 226/227 and32 of the Constitution.

As consequence of this decision, challenges under Article 226of the Constitution to the decisions rendered by the SATs lay to DivisionBenches of the respective High Courts within whose jurisdiction theSATs operated. The Supreme Court’s jurisdiction could be invoked underArticle 136 against the decisions of the High Courts.

8. The decision in L. Chandra Kumar (supra)seems to haveinfluenced the State of Odisha to request the Union Government to abolishthe OAT. By letter dated 16 September 2015, the Chief Secretary tothe Government of Odisha requested the Secretary to the Governmentof India, Department of Personnel and Training to issue notificationunder the Administrative Tribunals Act abolishing the OAT. The letterrecorded the State Government’s reason for making this request in thefollowing terms:

“Government of Odisha is of the view that the Tribunal is not ableto serve its original objectives, particularly after the Hon’ble ApexCourt gave the Judgment in L. Chandra Kumar case of 1997. Asa result of this judgment, the very purpose of having State

AAdministrative Tribunal (SAT) for speedy redressal of thegrievances of the State Government employees is not fulfilled asany way the aggrieved parties have to approach the Hon’ble HighCourt before approaching the Apex Court for final verdict.”

note annexed to the letter dated 16 September 2015 elaboratedBon the State Government’s rationale for seeking to abolish the OAT:

“As consequence of the landmark judgment of the SupremeCourt [in L. Chandra Kumar], the objective of the establishmentof the Tribunal to give quick justice to the government employeeswas defeated… The aggrieved parties are approaching the HighCCourt against OAT orders and then the Supreme Court resultingin protracted litigation … Government is incurring significantsum of expenditure on the OAT … The abolition of the Tribunalwill reduce the burden of litigation for the Government and willalso reduce the time for resolution of disputes / litigation.”

DEvidently, the State of Odisha was of the opinion that the raisond’etre of the OAT was defeated – the fact that the OAT’s decisionswere subject to two tiers of challenge (first before the High Court andthen the Supreme Court) meant that speedy justice could not be delivered.The State Government proposed to transfer the cases pending beforethe OAT to the Orissa High Court.E

9. On 12 January 2016, the Union Government requested the Stateof Odisha to provide information about the Orissa High Court’s viewson the proposal to abolish the OAT, the legal mechanism by which thecases pending before the OAT could be transferred to the Orissa HighCourt, and regarding the plan of action with respect to the employees ofFthe OAT. Accordingly, on 1 February 2016, the State of Odisha solicitedthe Orissa High Court’s views on the matter. Thereafter, the UnionGovernment communicated its ‘in-principle’ approval of the proposal toabolish the OAT to the State of Odisha.

10. By letter dated 5 February 2019 to the Union GovernmentGand the State of Odisha, the Orissa High Court conveyed that that it hadresolved to accept the decision to abolish the OAT and the attendantproposals regarding the transfer of employees and pending cases. On22 February 2019, the State of Odisha wrote to the Union of India,intimating it that the employees of the OAT would be “suitably adjustedin other heads of the department under the Government of OdishaH

ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v.UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

depending upon the vacancies in equivalent cadre and post.” The letteralso stated that the State Government had decided to transfer the casespending before the OAT to the Orissa High Court and that the latter hadaccepted this decision.

11. The Union Government took recourse to Section 21 of theGeneral Clauses Act 1897[10] and abolished the OAT by issuing NotificationGSR 552(E) on 2 August 2019. The relevant portion of this notificationis 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 of1897), the Central Government hereby rescinds the said notificationnumber GSR 934(E), dated the 4[th] July 1986, except as respectsthings done or omitted to be done before such rescission, witheffect from the date of publication of this notification in the Gazetteof India.”

ii. The impugned judgment

12. In 2019, each of the appellants filed Writ Petition before theOrissa High Court for quashing the notification dated 2 August 2019 (aswell as the decision of the Cabinet of the State Government dated 9September 2015 to abolish the OAT). After considering the rival sub-missions, the Orissa High Court dismissed the Writ Petitions by its com-mon judgment dated 7 June 2021, for the following reasons:

a. Article 323-A is an enabling provision. It does not make itmandatory for the Union Government to establishadministrative tribunals or refrain from abolishing them oncethey are established;

b. The decision to abolish the OAT is an administrative decision.There is therefore no bar to the Union Government invokingSection 21 of the General Clauses Act read with Section 4(2)of the Administrative Tribunals Act to rescind the notificationestablishing the OAT;

c. The invocation of Section 21 of the General Clauses Act doesnot result in denial of justice because the cases pending

10 “General Clauses Act”

Abefore 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 bedone indirectly is not applicable because neither Article 323-A of the Constitution nor Section 4(2) of the AdministrativeBTribunals Act prohibits the Union or State Government fromabolishing an SAT;

e. The Union Government was not rendered functus-officio afterit established the OAT because it was exercising anadministrative function and not judicial or quasi-judicialCfunction;

f.The jurisdiction of the Orissa High Court was neither creatednor enlarged as consequence of the notification dated 2August 2019. Rather, the High Court’s jurisdiction was revived;

g. The decision-making process of the Union and StateDGovernments 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 decisionto abolish the OAT was motivated by government servantsseeking to avoid contempt proceedings before the OAT. InEany event, all cases including contempt proceedings would beheard by the Orissa High Court; and

i.The notification dated 2 August 2019 was not vitiated for thereason that it did not state that it had been issued in the nameof the President of India.

The High Court also observed that the procedure adopted by theUnion Government may have been rendered arbitrary if it had failed toensure that the High Court was consulted prior to abolishing the OATbecause such decision would directly impact the functioning of theHigh 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 thisappeal.

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 mandate.It requires the Union Government to establish SATs and doesnot empower the Union Government to abolish SAT, onceestablished;

b. Section 21 of the General Clauses Act cannot be invoked toabolish the OAT. The power to abolish SAT must flow fromthe same legislation that vests the Union Government withthe power to establish SATs. The Administrative TribunalsAct does not vest either the Union Government or the StateGovernment with the power to abolish SATs. In any event,the conditions for the invocation of Section 21 of the GeneralClauses Act are not satisfied. The abolition of the OAT wastherefore without legal basis;

c. The Administrative Tribunal (Amendment) Bill 2006 wasintroduced to provide an enabling provision for the abolition ofSATs and for the transfer of pending cases from the abolishedSAT to the relevant High Court. This bill was not enacted intolaw and therefore the Union Government and the StateGovernments 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 theadjudication process for service matters is incorrect andunreasonable;

e. The OAT has two regular benches and two circuit benchesbut the High Court has single bench in Cuttack. The abolitionof the OAT makes the court system less accessible to litigantsand violates the fundamental right of access to justice;

f.The Union and State Governments have violated the principlesof natural justice by failing to provide the OAT Bar Associationand the litigants before the OAT with an opportunity to beheard before abolishing the OAT. This is also violative ofArticle 14 of the Constitution;

g. The notification dated 2 August 2019 by which the OAT wasabolished is invalid because it is not expressed in the name ofthe President of India in terms of Article 77 of the Constitution;

Ah. The Constitution does not envisage transfer of cases fromany court to particular High Court except as specified inArticle 228 of the Constitution;

i.The State Government is trying to take advantage of its ownwrong by failing to fill the vacancies in the OAT and creatingBthe conditions for the abolition of the OAT. The failure of theState Government to fill the vacancies is also breach ofArticle 256 of the Constitution;

j.The abolition of the OAT has the effect of enlarging thejurisdiction of the Orissa High Court but Parliament alone hasCthe power to create or enlarge jurisdiction;

k. The real reason for the abolition of the OAT is that officials inOdisha faced charges of contempt before the OAT and soughtto avoid these proceedings by having the OAT abolished;

l.A judicial impact assessment ought to have been carried outDbefore abolishing the OAT;

m. Once the Union Government established the OAT, it becamefunctus officio; and

n. The Union Government ought to have obtained the permissionof this Court before issuing the notification dated 2 AugustE2019.

16. The submissions urged on behalf of the appellants have beenopposed by the Union of India and the State of Odisha. Mr. Balbir Singh,Additional Solicitor General made the following submissions for the Unionof India:F

a. Section 4(2) of the Administrative Tribunals Act enables theUnion Government to establish an SAT upon receiving arequest in this behalf from the State Government.Consequently, it is the prerogative of the State Government toestablish, continue, or abolish the relevant SAT;G

b. Section 21 of the General Clauses Act may be pressed intoservice to abolish an SAT. Neither the Constitution nor theAdministrative Tribunals Act is required to be amended togive 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 becausethe cases pending before the OAT were transferred to theOrissa High Court;

17. Mr. Ashok Kr Parija, learned Advocate General for the Stateof Odisha supplemented the arguments put forward by the Union ofIndia. He urged that:

a. The Writ Petitions before the Orissa High Court which led tothe impugned judgment were not maintainable because therights of the petitioners were not affected by the abolition ofthe OAT. Litigants cannot claim fundamental right to accessthe OAT;

b. The State Government took policy decision to abolish theOAT, in light of the low rate of disposal of cases by the OAT.The State Government is also of the view that the purpose ofthe OAT (to ensure speedy disposal of cases) is not servedsubsequent to the decision of this Court in L. Chandra Kumar(supra);

c. The word “may” in Section 4 of the Administrative TribunalsAct is unambiguous and must be interpreted strictly.

d. An intra-court appeal is different from an appeal to separateforum and the former streamlines the process of adjudication.It cannot be said that there is no advantage to be had byabolishing the OAT;

e. The principles of natural justice were not violated;

The abolition of the OAT does not make the court system lessaccessible to litigants because they would have been requiredto travel to Cuttack in any event in order to participate in thewrit proceedings before the Orissa High Court. The numberof cases transferred from the Circuit Benches of the OAT atBerhampur and Sambalpur to the Orissa High Court are 275and 235 respectively. The Principal Bench at Bhubaneswarand the regular Bench at Cuttack, on the other hand, had 11,483and 32,911 cases respectively, which were transferred to theOrissa High Court. Financial hardships faced by litigants canbe alleviated through compensation schemes which exist forthis purpose; and

760SUPREME COURT REPORTS

Af.It was not mandatory for the government to conduct judicialimpact assessment test before abolishing the OAT.

18. In its counter affidavit, the Orissa High Court detailed theaction taken to transfer the cases pending before the OAT to the HighCourt – nodal officers were appointed to monitor the transfer, aBcommittee was constituted to oversee the transfer, the committee deviseda methodology for shifting pending cases, and dedicated branch calledthe ‘OA Branch’ was created to deal exclusively with transferredmatters.

C. IssuesC19. Based on the submissions which have been canvassed by theparties, the issues which arise for determination are:

a. Whether the Writ Petitions instituted by the appellants beforethe Orissa High Court were maintainable;

b. Whether Article 323-A of the Constitution makes it manda-Dtory 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, therebyabolishing the OAT;

d. Whether the abolition of the OAT is arbitrary and thereforeEviolative of Article 14 of the Constitution;

e. Whether the abolition of the OAT is violative of thefundamental right of access to justice;

f.Whether the Union and State Governments have violated theFprinciples of natural justice by failing to provide the OAT BarAssociation and the litigants before the OAT with anopportunity to be heard before arriving at decision to abolishthe OAT;

g. Whether the notification dated 2 August 2019 is invalid becauseGit is not expressed in the name of the President of India;

h. Whether the transfer of cases from the OAT to the OrissaHigh Court has the effect of enlarging the jurisdiction of thelatter;

i.Whether the State Government took advantage of its ownHwrong 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 ajudicial impact assessment before abolishing the OAT vitiatesits decision to abolish the OAT; and

k. Whether the Union Government became functus officio afterestablishing the OAT.

D. Analysis

i.An overview of the proceedings arising from the abolition ofthe Madhya Pradesh Administrative Tribunal11and the TamilNadu Administrative Tribunal12

20. The parties to this appeal have advanced some arguments inrelation to decisions arising from the abolition of certain other SATs. It istherefore necessary to understand the decisions of this Court in relationto the abolition of those SATs. To this end, the abolition of the MPAT andthe TNAT as well as the legal proceedings arising from those decisionsare briefly discussed. The effect of these proceedings on the decision inthis case is also examined.

a. The abolition of the MPAT

21. The State of Madhya Pradesh was reorganized into the Stateof Madhya Pradesh and the State of Chhattisgarh with the enactment ofthe Madhya Pradesh Reorganization Act 2000. Section 74(1)(ii) of thislegislation vested the State Governments of these two states with thepower to abolish “every 1. Commission, Authority, Tribunal, University,Board or any other body constituted under Central Act, State Act orProvincial Act and having jurisdiction over the existing State of MadhyaPradesh.”

22. The State of Madhya Pradesh issued notification abolishingthe MPAT pursuant to decision taken by it along with the State ofChhattisgarh. This notification was challenged before the MadhyaPradesh High Court. The petitioners in that case also challenged theconstitutionality of Section 74 of the Madhya Pradesh ReorganizationAct 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 the11 “MPAT”12 “TNAT”

Aunexpired period of their tenure respectively) were ultra vires theConstitution. The High Court also held that the State Government couldnot have abolished the MPAT by issuing notification. Rather, it wasrequired to request the Union Government to issue notification abolishingthe MPAT because the MPAT was established by the Union Government.It held that the Union Government would have no choice but to acceptBsuch request and issue notification to this effect. The High Courtaccordingly quashed the notification issued by the State of MadhyaPradesh by which the MPAT was abolished.

24. On appeal, this Court upheld the interpretation accorded tothe Madhya Pradesh Reorganization Act 2000 by the Madhya PradeshCHigh Court. The decision of this Court was reported as M.P. HighCourt Bar Assn. v. Union of India (2004) 11 SCC 766.[13]

As seen from discussion of the facts, the MPAT AbolitionCase (supra) concerned the powers of the State of Madhya Pradeshunder the Madhya Pradesh Reorganization Act 2000 as well as theDconstitutional validity of certain provisions of that enactment. This Courtwas not called upon to adjudicate whether Section 21 of the GeneralClauses Act would be applicable to Section 4(2) of the AdministrativeTribunals Act. decision on the abolition of an SAT by the exercise ofspecial powers under legislation enacted for the reorganization of aEstate does not have any bearing on whether an SAT may be abolished inexercise of powers under the Administrative Tribunals Act. The MPATAbolition Case (supra) is therefore not germane to the issue of whetherSection 21 of the General Clauses Act would be applicable to Section4(2) of the Administrative Tribunals Act. However, the issue whetherthe decision to abolish the MPAT was arbitrary, unreasonable andFtherefore violative of Article 14 of the Constitution was decided in thatcase. similar issue is before us in the present case and this aspect ofthe decision in the MPAT Abolition Case (supra) may be instructive.

b. The abolition of the TNAT

GBetween 1994 and 2004, the Government of Tamil Nadu requestedthe Union Government to abolish the TNAT. Thereafter, it stopped ap-pointing the Chairperson, the Vice Chairperson and the Members of theTNAT, which was rendered inoperative as result. Approximately 30,000cases were pending before it at this time. Various parties instituted writ

petitions before the Madras High Court seeking directions to the StateGovernment of Tamil Nadu to fill the vacancies in the TNAT to enable itto function until it was abolished. These writ petitions culminated in thedecision of the Madras High Court in Tamil Nadu Government All De-partment Watchman and Basic Servants Association v. Union of In-dia[14].

25. In its decision in the above case, the Madras High Court heldthat the Union Government had the power to rescind notification es-tablishing an SAT, under Section 21 of the General Clauses Act. It reliedon the MPAT Abolition Case (supra) to hold that it was open to theState Government to take “policy decision” to abolish the SAT andrequest the Union Government to abolish it. It further held that the latterwould have no option but to issue notification in this regard. On thisbasis, it directed the Union Government to issue notification abolishingthe TNAT “as there is no necessity for the Central Government towait for the amendment before the Parliament and the mere issu-ance 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 inlimine by an order dated 16 August 2005. The second was an appealfiled by the Union of India. Before this appeal could be adjudicated onmerits, the Union Government issued notification on 17 February 2006abolishing the TNAT. On 28 March 2017, this Court dismissed the ap-peal for having become infructuous. It observed that the question of lawhad been kept open.

26. The TNAT Abolition Case (supra) does not hence consti-tute precedent which binds this Court. The proceedings arising fromthe TNAT Abolition Case (supra) in appeal before this Court, too, donot have bearing on the approach to be adopted while deciding themerits of the issues before us because the question of law was ex-pressly kept open.

ii. The Writ Petitions instituted before the Orissa High Courtwere maintainable

27. The State of Odisha has interrogated the maintainability ofthe Writ Petitions instituted by the appellants before the Orissa High

ACourt (which led to the impugned judgment) on the ground that the rightsof the petitioners were not impacted by the abolition of the OAT.

28. The appellants are the OAT Bar Association, Cuttack and theOdisha Retired Police Officers’ Welfare Association. Both associationsare registered under the Societies Registration Act 1860. Section 6 ofBthe Societies Registration Act 1860 authorizes registered societies tosue and be sued. Both the appellants are therefore organizations whichare entitled to approach the High Court under Article 226 of the Consti-tution.

29. Both appellants have also alleged that an existing legal right ofCtheirs was violated. As held by this Court in Ghulam Qadir v. SpecialTribunal (2002) 1 SCC 33, the existence of legal right of the petitionerwhich is alleged to have been violated is the foundation for invoking thejurisdiction of the High Court under Article 226:

“38. There is no dispute regarding the legal proposition that theDrights under Article 226 of the Constitution of India can be enforcedonly by an aggrieved person except in the case where the writprayed for is for habeas corpus or quo warranto. Another exceptionin the general rule is the filing of writ petition in public interest.The existence of the legal right of the petitioner which isalleged to have been violated is the foundation for invokingEthe jurisdiction of the High Court under the aforesaid article.The orthodox rule of interpretation regarding the locus standi of aperson to reach the court has undergone sea change with thedevelopment of constitutional law in our country and theconstitutional courts have been adopting liberal approach inFdealing with the cases or dislodging the claim of litigant merelyon hypertechnical grounds. If person approaching the courtcan satisfy that the impugned action is likely to adverselyaffect his right which is shown to be having source in somestatutory provision, the petition filed by such personcannot be rejected on the ground of his not having the locusGstandi. In other words, if the person is found to be not merely astranger having no right whatsoever to any post or property, hecannot be non-suited on the ground of his not having the locusstandi.”

(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 right is thefoundation of petition under Article 226:

“8. … Under Article 226 of the Constitution, the jurisdiction of theHigh Court is undoubtedly very wide. Appropriate writs can beissued by the High Court under the said article even for purposesother than the enforcement of the fundamental rights and in thatsense, party who invokes the special jurisdiction of the HighCourt under Article 226 is not confined to cases of illegal invasionof his fundamental rights alone. But though the jurisdiction of theHigh Court under Article 226 is wide in that sense, the concludingwords of the article clearly indicate that before writ or anappropriate order can be issued in favour of party, it must beestablished that the party has right and the said right is illegallyinvaded or threatened. The existence of right is thus thefoundation of petition under Article 226.”

(emphasis supplied)

31. In this case, the Odisha Retired Police Officers’ WelfareAssociation alleged that its right to speedy redressal of grievances (afacet of the fundamental right of access to justice) was violated. TheOAT Bar Association joined the Odisha Retired Police Officers’ WelfareAssociation in alleging that the state’s action of abolishing the OATviolated its right under Article 14 of the Constitution. Having alleged thatthese rights were violated by the abolition of the OAT, they were entitledto invoke the High Court’s jurisdiction under Article 226 of the Constitution.Whether there is substance in the grievance is separate matter whichhas to be analysed.

iii. Article 323-A does not preclude the Union Governmentfrom 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 ofthe Constitution of India:

“323A. Administrative tribunals.—(1) Parliament may, by law,provide for the adjudication or trial by administrative tribunals ofdisputes and complaints with respect to recruitment and conditionsof service of persons appointed to public services and posts inconnection with the affairs of the Union or of any State or of any

local or other authority within the territory of India or under thecontrol of the Government of India or of any corporation ownedor controlled by the Government.

—(2) law made under clause (1) may

(a) provide for the establishment of an administrative tribunal forthe Union and separate administrative tribunal for each State orfor two or more States;

(b) specify the jurisdiction, powers (including the power to punishfor contempt) and authority which may be exercised by each ofthe said tribunals;

(c) provide for the procedure (including provisions as to limitationand rules of evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction ofthe Supreme Court under article 136, with respect to the disputesor complaints referred to in clause (1);

(e) provide for the transfer to each such administrative tribunal ofany cases pending before any court or other authority immediatelybefore the establishment of such tribunal as would have beenwithin the jurisdiction of such tribunal if the causes of action onwhich such suits or proceedings are based had arisen after suchEestablishment;

(f) repeal or amend any order made by the President under clause(3) of article 371D;

(g) contain such supplemental, incidental and consequentialprovisions (including provisions as to fees) as Parliament maydeem necessary for the effective functioning of, and for the speedydisposal of cases by, and the enforcement of the orders of, suchtribunals.

(3) The provisions of this article shall have effect notwithstandingGanything in any other provision of this Constitution or in any otherlaw 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 lawHto give effect to it. Parliament is entrusted with the discretion to enact

law which provides for the adjudication of certain disputes byadministrative tribunals. It is permissive provision. The provision isfacilitative and enabling.

34. However, in certain cases, the power to do something may becoupled with duty to exercise that power. In Official Liquidator v.Dharti Dhan (P) Ltd. (1977) 2 SCC 166, this Court expounded on whenthe word “may” carries with it an obligation to exercise the powerconferred by that word in particular manner:

“8. Thus, the question to be determined in such cases always iswhether the power conferred by the use of the word “may” has,annexed to it, an obligation that, on the fulfilment of certain legallyprescribed conditions, to be shown by evidence, particular kindof order must be made. If the statute leaves no room for discretionthe power has to be exercised in the manner indicated by theother legal provisions which provide the legal context. Even thenthe facts must establish that the legal conditions are fulfilled … Itis not the conferment of power which the word “may”indicates that annexes any obligation to its exercise butthe legal and factual context of it.

10. The principle laid down above has been followed consistentlyby this Court whenever it has been contended that the word “may”carries with it the obligation to exercise power in particularmanner or direction. In such case, it is always the purposeof the power which has to be examined in order todetermine the scope of the discretion conferred upon thedonee of the power. If the conditions in which the power isto be exercised in particular cases are also specified by astatute then, on the fulfilment of those conditions, the powerconferred becomes annexed with duty to exercise it inthat manner.”

(emphasis supplied)

35. In Dhampur Sugar Mills Ltd. v. State of U.P.[15], this Courtheld that the intention of the legislature must be discerned whiledetermining whether provision is directory or mandatory:

A“36. … In our judgment, mere use of word “may” or “shall” is notconclusive. The question whether particular provision of statuteis directory or mandatory cannot be resolved by laying down anygeneral rule of universal application. Such controversy has to bedecided by ascertaining the intention of the legislature and not bylooking at the language in which the provision is clothed. And forBfinding out the legislative intent, the court must examine the schemeof the Act, purpose and object underlying the provision,consequences likely to ensue or inconvenience likely to result ifthe provision is read one way or the other and many moreconsiderations relevant to the issue.”

C36. In order for the word “may” to acquire the character of theword “shall”, the following aspects of the provision or legislation (or inthis case, the Constitution) must be analysed:

a. The legal and factual context of the conferment of the power;

Db. The purpose of the power;

c. Whether the statute (or the Constitution) specifies the conditionsin which the power is to be exercised; and

d. The intention of the legislature discerned inter alia from thescheme of the enactment, the purpose and object of theEprovision, the consequences of reading the provision one wayor another, and other relevant considerations.

This is not an exhaustive list of factors which will aid courts ininterpreting whether provision is directory or mandatory.

37. Article 323-A does not specify the conditions in which theFpower to enact laws providing for the adjudication of certain disputes byadministrative tribunals must be exercised. It therefore cannot be saidthat Parliament was obligated to exercise this power upon the fulfilmentof certain conditions.

38. The legal and factual context of the power to enact lawsGproviding for administrative tribunals may be understood from theStatement of Objects and Reasons appended to the Constitution (Forty-fourth Amendment) Bill 1976. The Statement of Objects indicates thatthe object was

“To reduce the mounting arrears in High Courts and to secure theHspeedy disposal of service matters, revenue matters and certain

other matters of special importance in the context of the socio-economic development and progress, it is considered expedient toprovide for administrative and other tribunals for dealing with suchmatters while preserving the jurisdiction of the Supreme Court inregard to such matters under Article 136 of the Constitution. It isalso necessary to make certain modifications in the writ jurisdictionof the High Courts under article 226.”

The Statement of Objects and Reasons also sheds light on thepurpose of the power to provide for administrative tribunals i.e., to reducemounting arrears in the High Courts and to secure the speedy disposalof service matters. The purpose and the legal and factual context of thepower conferred by Article 323-A do not have the effect of narrowingthe scope of the discretion afforded to Parliament by the word “may.”The purpose of reducing arrears in the High Courts or securing thespeedy disposal of service cases is not of nature as to cast an obligationupon Parliament to enact laws providing for administrative tribunals.This is because the same purpose can be achieved through other routes.Article 323-A merely provides for the enactment of legislation as of oneof many routes. It is open to Parliament to choose any legally acceptablemethod to reduce arrears in the High Courts and secure the speedydisposal of service matters, including but not limited to creatingadministrative tribunals. Article 323-A does not deprive Parliament ofthe power to choose an alternate course of action to reduce arrears orensure speedy justice, by any other modality, including by strengtheningother adjudicatory mechanisms. The intention of Parliament could nothave been to mandate the establishment and continuation of administrativetribunals. Besides the purpose of the provision discussed above, nothingin the scheme of Article 323-A indicates that it is mandatory provision.The consequences of reading Article 323-A as mandating the creationof administrative tribunals, would be to foreclose the possibility of theadoption of an alternate course of action to achieve the desired objectiveof reducing arrears and ensuring speedy justice. This, too, indicates thatit could not have been the intention of Parliament to mandate theestablishment of administrative tribunals as the only remedy to mountingarrears or as the only manner in which speedy justice could be secured.

39. Another important consequence of interpreting Article 323-Aas being mandatory is that it prevents Parliament and the StateGovernments from evaluating the manner in which administrativetribunals function by inter alia accounting for:

Aa. The rate of disposal of cases;

b. The quality of the judgments;

c. How often the decisions of the SAT are overturned in the writjurisdiction, appeal or review;

d. Whether the tribunals are functioning independently;

e. The availability of qualified and suitable candidates for the postsof members and chairpersons of the tribunals;

f. Whether SATs do indeed reduce arrears in the High Courtsand streamline the justice delivery mechanism;

Cg. The cost incurred by the state; and

h. The costs (monetary and otherwise) to litigants.

The Orissa High Court refers to some of these factors inparagraphs 70 to 75 of the impugned judgment albeit in slightly differentcontext. The intention of Parliament could not have been to prevent theDUnion or State Governments from evaluating the efficiency anddesirability of administrative tribunals once they were established.However, the effect of reading Article 323-A as mandatory provisionwould be to do precisely that.

40. The appellants have relied on the decision of this Court inEDilip K Basu v. State of West Bengal (2015) 8 SCC 744 to argue thatit is mandatory for the Union Government to establish SATs. In thatcase, this Court was required to interpret Section 21 of the Protection ofHuman Rights Act 1993 which stipulated that State Governments “may”constitute State Human Rights Commission. The question was whetherthe word “may” ought to be read as the word “shall.” This Court notedFthat the Protection of Human Rights Act 1993 enjoined the State HumanRights Commissions to promote human rights, prevent their violation,and provide redressal. It held that this legislative intent would be negatedif State Human Rights Commissions were not established in every state.This Court reasoned that the consequence of this was that Section 21 ofGthe Protection of Human Rights Act 1993 not only conferred StateGovernments with the power to set up State Human Rights Commissionsbut also imposed on them the duty to do so. In the present case, theintention of Parliament in enacting Article 323-A of the Constitution (i.e.,to reduce arrears and provide speedy justice) would not necessarily benegated in the absence of SATs in each state, for the reasons discussedHabove.41. We also note that in Dilip K Basu (supra), the fact that victimsor complainants would not have access to an efficacious remedy in theabsence of State Human Rights Commissions weighed heavily with thisCourt. They would be required to approach the National Human RightsCommission, which this Court noted could prove inaccessible to peopleliving in places far away from New Delhi where it is headquartered.Here, the absence of SATs does not leave litigants without an efficaciousremedy. The High Courts or other forums already designated for thepurpose of adjudicating service matters continue to be operational ineach state and the absence of SATs does not inconvenience litigants anymore than they otherwise would have been.

42. Hence, the word “may” in Article 323-A of the Constitution isnot imparted with the character of the word “shall.” Article 323-A is adirectory, enabling provision which confers the Union Government withthe discretion to establish an administrative tribunal. The corollary ofthis is that Article 323-A does not act as bar to the Union Governmentabolishing an administrative tribunal once it is created.

iv. Applicability of Section 21 of the General Clauses Act

43. The Union Government invoked Section 21 of the GeneralClauses Act read with Section 4(2) of the Administrative Tribunals Actto rescind the notification establishing the OAT. Section 21 of the Gen-eral Clauses Act, which is rule of construction, is extracted below:

“Power to make, to include power to add to, amend, vary or rescind,orders, rules or bye-laws.— Where, by any Act or Regulation, apower to issue notifications, orders, rules or bye-laws is conferredthen that power includes power, exercisable in the like mannerand subject to the like sanction and conditions (if any), to add to,amend, vary or rescind any notifications, orders, rules or byelawsso issued.”

44. The appellants contend that the Union Government could nothave taken recourse to Section 21 of the General Clauses Act. two-step analysis must precede the answer to the question posed by theappellants.

a. There is no bar to the applicability of Section 21 of theGeneral Clauses Act to the administrative order establish-ing the OAT

A45. In Indian National Congress (I) v. Institute of SocialWelfare[16], this Court held that Section 21 of the General Clauses Actcannot be pressed into service to vary, amend, or review quasi-judicialorder or notification. It is important to note that quasi-judicial order ornotification cannot be rescinded by relying upon Section 21 of the Gen-eral Clauses Act. The notification dated 2 August 2019 rescinded theBnotification dated 4 July 1986 by which the OAT was established. It istherefore the notification dated 4 July 1986 which established the OATwhich must be analysed to determine whether it is quasi-judicial noti-fication, and not the notification dated 2 August 2019, the effect of whichwas to abolish the OAT. If the answer is that the decision to establishCthe OAT was indeed quasi-judicial decision, Section 21 of the GeneralClauses Act cannot be relied on to reverse this decision. As conse-quence, the notification dated 2 August 2019 will be invalid, being im-properly issued. If, however, the decision to establish the OAT was ad-ministrative , there would be no bar to the invocation of Section 21 of theGeneral Clauses Act to rescind the notification establishing the OAT.D46. This Court discussed the meaning and contours of quasi-judicial act in Province of Bombay v. Khushaldas S. Advani[17], whereSR Das, J. in his concurring opinion held:“80.1.(i) that if statute empowers an authority, not being courtEin the ordinary sense, to decide disputes arising out of claimmade by one party under the statute which claim is opposed byanother party and to determine the respective rights of thecontesting parties who are opposed to each other, there is lisand prima facie and in the absence of anything in the statute tothe contrary it is the duty of the authority to act judicially and theFdecision of the authority is quasi-judicial act; and

80.2.(ii) that if statutory authority has power to do any act whichwill prejudicially affect the subject, then, although there are nottwo parties apart from the authority and the contest is betweenthe authority proposing to do the act and the subject opposing it,Gthe final determination of the authority will yet be quasi-judicialact provided the authority is required by the statute to act judicially.

81. In other words, while the presence of two parties besides thedeciding authority will prima facie, and in the absence of any other

16 (2002) 5 SCC 685H17 (1950) SCC 551

ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v.UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

factor impose upon the authority the duty to act judicially, theabsence of two such parties is not decisive in taking the act of theauthority out of the category of quasi-judicial act if the authority isnevertheless required by the statute to act judicially.”

47. In Indian National Congress (I) (supra), this Court held

that:

“29. … another test which distinguishes administrative functionfrom quasi-judicial function is, the authority who acts quasi-judicially is required to act according to the rules, whereas theauthority which acts administratively is dictated by the policy andexpediency.”

48. In Board of High School and Intermediate Education v.Ghanshyam Das Gupta[18], this Court expounded upon when an authorityis required to act judicially:

“8. … Now it may be mentioned that the statute is not likely toprovide in so many words that the authority passing the order isrequired to act judicially; that can only be inferred from the expressprovisions of the statute in the first instance in each case and noone circumstance alone will be determinative of the questionwhether the authority set up by the statute has the duty to actjudicially or not. The inference whether the authority acting undera statute where it is silent has the duty to act judicially will dependon the express provisions of the statute read along with the natureof the right affected, the manner of the disposal provided, theobjective criterion if any to be adopted, the effect of the decisionon the person affected and other indicia afforded by the statute.”

49. From the above decisions, it emerges that:

a. The decision of an authority is prima facie, and in the absenceof any other factor, quasi-judicial act when there is lis beforeit, with two parties with competing claims;

b. When the authority has the power to do something which willprejudicially affect the subject, the decision it takes is quasi-judicial act even in the absence of lis and two parties withcompeting claims, when the authority is required by the statutein question to act judicially. The express provisions of the statute,

Athe nature of the right affected, the manner of disposal, theobjective criterion (if any) to be adopted while deciding oneway or the other, the effect of the decision, and other signs inthe statute may be considered when evaluating whether thereis duty to act judicially; and

Bc. The decision of an authority is quasi-judicial when it is made inaccordance with rules. The decision is administrative when itis dictated by policy and expediency.

50. Having laid down the above principles, it must be realised thatthe distinction between quasi-judicial and administrative acts is not alwaysCwell defined and its application is not always certain. Doctrine andpractice are not necessarily happy partners. The instant case evidentlydoes not involve lis or two parties with competing claims appearingbefore an authority who will determine their respective rights. Further,the act of the Union Government establishing the OAT did not prejudiciallyaffect the subject in any manner. Litigants or other citizens were not leftDwithout forum. They could continue to pursue their remedies beforethe OAT when it was first established, instead of before the Orissa HighCourt.

51. The Union Government was not acting in judicial capacitywhen it set up the OAT. On the establishment of the OAT, pendingEcases before the High Court were transferred to the OAT. Indeed, thedecision to establish an SAT is based on policy and expediency. It is upto each State Government to evaluate the need for an SAT within theirstate, to consider the advantages and disadvantages as well as thefinancial, administrative, and other practical aspects of establishing anFSAT. The Union Government may then establish the SAT upon receivinga 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 reversedby the application of Section 21 of the General Clauses Act. Theapplicability of Section 21 of the General Clauses Act does not standGexcluded in the present case.

52. The appellants’ reliance on Industrial InfrastructureDevelopment Corpn. (Gwalior) M.P. Ltd. v. CIT[19] is misplaced forsimilar reasons. In that case, Section 21 of the General Clauses Act was

19 (2018) 4 SCC 494H

found to be inapplicable to the order because it was quasi-judicialorder. For the reasons discussed above, the order establishing the OATis an administrative order.

53. We clarify that the distinction between quasi-judicial andadministrative decisions has been invoked for the purpose of determiningwhether Section 21 of the General Clauses Act may be invoked to reversethe decision to establish an SAT. Administrative orders continue to beamenable to judicial review in accordance with law.

b. Section 21 of the General Clauses Act is otherwise appli-cable to the Administrative Tribunals Act

54. Having decided that there is no threshold bar to the applicabil-ity of Section 21 of the General Clauses Act, we now consider whetherit applies in the present case. The locus classicus on this subject is Stateof Bihar v. N Ganguly[20], where this Court held:

“9. … It is well settled that this section embodies rule ofconstruction and the question whether or not it applies to theprovisions of particular statute would depend on the subject-matter, context, and, the effect, of the relevant provisions of thesaid statute. In other words, it would be necessary to examinecarefully the scheme of the Act, its object and all its relevant andmaterial provisions before deciding whether by the application ofthe rule of construction enunciated by Section 21, the appellant’scontention is justified that the power to cancel the reference madeunder Section 10(1) can be said to vest in the appropriategovernment by necessary implication. If we come to the conclusionthat the context and effect of the relevant provisions is repugnantto the application of the said rule of construction, the appellantwould not be entitled to invoke the assistance of the said section.We must, therefore, proceed to examine the relevant provisionsof the Act itself.”

55. In Kamla Prasad Khetan v. Union of India[21], ConstitutionBench of this Court held that:

“10. … Section 21 of the General Clauses Act embodies rule ofconstruction, and that rule must have reference to the context

20 1959 SCR 1191

21 1957 SCR 1052

DEF

Aand subject-matter of the particular statute to which it is beingapplied”

56. Section 21 of the General Clauses Act can be invoked whenits application would not be repugnant to the subject-matter, context, andeffect of the statute and when it is in harmony with its scheme andBobject. The court may refer to the provisions of the statute in question todetermine whether Section 21 of the General Clauses Act will beapplicable.

57. The scheme of the Administrative Tribunals Act is brieflyanalysed below:

a. Section 4 enables the Union Government to establish an SATupon receipt of request in this behalf from the concernedState Government;

b. Section 5 provides for the composition of SATs. Sections 8and 10B stipulate the term of office of the Chairperson andDthe Members;

c. Section 15 governs the jurisdiction of SATs;

d. Chapter IV sets out the procedure to be followed before theTribunal as well as the powers exercisable by it; and

Ee. Section 29 provides that every suit or proceeding pendingbefore any court or authority immediately before the date ofestablishment of tribunal under the Administrative TribunalsAct which would have been within the jurisdiction of thetribunal if the cause of action in such suit or proceeding hadarisen after the establishment of the tribunal, stands transferredFto the tribunal on the date of its establishment.

58. The Administrative Tribunals Act does not contain provisionand corresponding procedure for the abolition of an SAT once it isestablished. However, this does not mean that the abolition of an SAT,once it is set up, is impermissible. First, the Administrative Tribunals ActGdoes not proscribe the abolition of an SAT by the Union Government,upon the latter receiving request from the concerned State Government.Second, nothing in the scheme of the statute implies or suggests thatsuch an abolition would be incompatible with the objective sought to beachieved. To the contrary, if the concerned State Government is of theHconsidered view that the SAT is failing to meet the objectives of the

Administrative Tribunals Act or that an alternate route for meeting thesame objectives is preferable to that of operating an SAT, it is free to actupon its view and request the Union Government to abolish the SAT. Anamendment to the Administrative Tribunals Act is not prerequisite forthe State Government to make request to the Union Government.

59. As noticed above, the object of the Administrative TribunalsAct is to reduce arrears and enable the provision of speedy justice tolitigants. Abolishing an SAT would not frustrate this objective becauseSATs are not the only method by which the object is capable of beingachieved. Further, the effect of such an abolition would not be to deprivelitigants of remedy because the cases before the SAT would standrevived in the forum in which they were pending prior to the establishmentof that SAT. The subject matter and the context of the AdministrativeTribunals Act, too, do not militate against the application of Section 21 ofthe General Clauses Act. There is therefore nothing in the AdministrativeTribunals Act which is repugnant to the application of Section 21 of theGeneral Clauses Act. The relevant State Government has the impliedpower to issue request to abolish the SAT in its state to the UnionGovernment. The Union Government in turn has the implied power torescind the notification by which that SAT was established, therebyabolishing the SAT.

60. The appellants have relied on decisions of this Court in Lt.Governor of H.P. v. Avinash Sharma[22] and State of M.P. v. AjaySingh[23] to support their case. In Avinash Sharma (supra), this Courtheld that after the Government takes possession of land pursuant to anotification under Section 17(1) of the Land Acquisition Act 1894, theland vests with the Government and the notification cannot be cancelledunder Section 21 of the General Clauses Act. Further, the notificationcould not be withdrawn in exercise of the powers under Section 48 ofthe Land Acquisition Act 1894, once possession of the land was taken.The present case does not concern the acquisition of land, making thedecision in Avinash Sharma (supra) irrelevant to the question at hand.Moreover, Section 48 of the Land Acquisition Act 1894 had specificprovision governing withdrawal from acquisition and hence theconditions contained in the statutory provision could not be obviated bytaking recourse to Section 21 of the General Clauses Act. The scheme

22 (1970) 2 SCC 149

23 (1993) 1 SCC 302

Aof the Land Acquisition Act 1894 and the scheme of the AdministrativeTribunals Act are different and the scheme and context of eachenactment must be considered on its own merits.

61. In Ajay Singh (supra), this Court held that the rule ofconstruction embodied in Section 21 of the General Clauses Act did notBapply to the provisions of the Commissions of Inquiry Act 1952 becausethe subject-matter, context and effect of its provisions were inconsistentwith the application of Section 21. In that case, the State of MadhyaPradesh had constituted single-member high powered committee toinvestigate an issue of public importance that had arisen within its territory.It later attempted to reconstitute the high-powered committee by replacingCthe single member. The question in Ajay Singh (supra) was whether thestate government could rely on Section 21 of the General Clauses Act torescind the notification by which it had appointed the member at the firstinstance.62. This Court answered in the negative because Section 3 of theDCommissions of Inquiry Act 1952 provided for the power to fill anyvacancies whereas Section 7 provided for the only situation in which aCommission which was already constituted would cease to exist. ThisCourt observed that the Commissions of Inquiry Act 1952 did not providefor the power to reconstitute Commission or replace its members. TheEscheme of the enactment and its context indicated that Section 21 of theGeneral Clauses Act could not be invoked. Further, the object of theCommissions of Inquiry Act 1952 would be frustrated if the appropriategovernment were permitted to reconstitute Commission midway throughthe task that it was charged with completing because it made it possiblefor an independent agency to exist, free from governmental control. InFthe present case, there is no such impediment to the application of Section21 of the General Clauses Act. The object of the Administrative TribunalsAct would not stand frustrated if an SAT is created and then abolished.The Union and State Governments may take alternate routes (some ofwhich may have already been in operation, supplementing SATs) towardsGachieving the same objective. Hence, the decision in Ajay Singh (supra)does not assist the appellants’ case.

63. The appellants have also argued that the Union Government’spower to abolish SATs must flow from the same legislation that vests itwith the power to establish them. It is their contention that the UnionHGovernment does not have the power to abolish SATs because the

Administrative Tribunals Act does not provide for it. This argument failsfor the simple reason that the very purpose of Section 21 of the GeneralClauses Act is to provide for contingencies such as the instant casewhen the statute in question does not explicitly provide for the power toadd to, amend, vary, or rescind notification (or order, rule, or by-law)which has been issued. Of course, the application of Section 21 of theGeneral Clauses Act is subject to the test laid down in N Ganguly(supra) as discussed previously as well as the other requirementsmentioned in the provision itself.

64. If the argument of the appellants were to be accepted, Section21 of the General Clauses Act would be rendered otiose. It would notapply to any statute which does not explicitly provide for the power toadd 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 wouldbe no need to rely on Section 21 of the General Clauses Act. This is nota conceivable position because courts must interpret statutes so as togive effect to their provisions rather than to render them futile.[24]

65. The appellants have also submitted that what cannot be donedirectly cannot be done indirectly. For the reasons discussed above, neitherArticle 323-A of the Constitution nor the Administrative Tribunals Actprohibit the abolition of SATs. Hence, it cannot be said that the UnionGovernment is barred from abolishing the SATs “directly” and that it hasresorted to Section 21 of the General Clauses Act to evade such banand “indirectly” abolish the OAT. The Union Government’s reliance onSection 21 of the General Clauses Act to abolish the OAT is legallypermissible.

66. The appellants have urged that the Administrative Tribunal(Amendment) Bill 2006 was introduced in Parliament to provide anenabling provision for the abolition of SATs and for the transfer of pendingcases from the abolished SAT to the relevant High Court. This bill wasreferred to the Rajya Sabha Standing Committee on Personnel, PublicGrievances, Law and Justice, which submitted its report on 5 December2006. The report recommended that the power to abolish an SAT shouldnot be granted to the executive. It is argued that the Union Governmentdoes not have the power to abolish SATs because this Bill was not enacted

24 M. Pentiah v. Muddala Veeramallappa (1961) 2 SCR 295

Ainto law because of the recommendations contained in the report of theStanding Committee.

67. The appellants seem to be implying that Parliament was ofthe opinion that the Union Government did not have the power to abolishSATs in the absence of an enabling provision. It may also be the caseBthat Parliament introduced the Administrative Tribunal (Amendment)Bill 2006 in order to clarify the power of the Union Government toabolish SATs rather than to confer it with that power. This Court cannotpossibly enter into discussion or analysis of all the potential reasons fora proposed amendment.C68. The appellants have put forth another argument on similarlines. It is their case the Union Government’s stance before the MadrasHigh Court in the TNAT Abolition Case (supra) must influence thisCourt’s decision on whether the Union Government has the power torescind notification establishing SATs. The Union Government’s stancewas recorded in paragraph 4 of the TNAT Abolition Case (supra):D“4. On the other hand, the stand taken by the Central Government,the first respondent herein, is that though the Government of TamilNadu has sent proposal to the Central Government for abolition,this cannot be done through Notification. The appropriatelegislation for this proposal has to be brought in the ParliamentEand the same is being contemplated by the Law Department whichafter due processing and approval will be brought before theParliament. Mere Notification of the Central Government wouldnot suffice in this case, since Section 74 of the Madhya PradeshReorganisation Act, 2000 would specifically provide for the abolitionthrough Notification. But, such provision is not available in thisFState. Therefore, suitable Parliamentary amendment to theAdministrative Tribunal Act is necessary to consider such proposal.The necessary steps for the same are being taken by the CentralGovernment.”

69. The Union Government’s stance on question of law beforeGa court in another case or for that matter, any party’s position on aquestion of law, does not preclude this Court from interpreting the law.In Zakir Abdul Mirajkar v. State of Maharashtra[25], two-judge Benchof this Court (of which one of us, Dr. DY Chandrachud, J. was part)held:H25 (2022) SCC OnLine SC 1092

“36. … submission which is made on question of law bycounsel appearing for party (in this case, the state) cannot bindthat party or for that matter, preclude this Court from correctlyinterpreting the law.”

The Union Government’s stance before the Madras High Courtin the TNAT Abolition Case (supra) will therefore not steer this Court’sexegesis of the law.

70. At this juncture, we may also deal with three interrelatedarguments put forward by the appellants with respect to the transfer ofcases from the abolished OAT to the Orissa High Court:

a.The Constitution of India (including Article 323-A) doesnot envisage transfer of cases from any court or tribunalto particular High Court except in terms of Article 228 ofthe Constitution;

b.While Section 29 of the Administrative Tribunals Act providesfor the transfer of cases from the High Courts (or othercourts and authorities) to the relevant SATs, there is noprovision which enables the transfer of cases from theabolished SATs back to the forum in which they would havebeen heard if not for the establishment of SATs; and

c.The abolition of the OAT has the effect of enlarging thejurisdiction of the Orissa High Court but Parliament alonehas the power to create or enlarge jurisdiction. Reliance isplaced on A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602.

71. The response to the three arguments is that the transfer ofcases from the OAT to the Orissa High Court is, properly characterized,a revival of the latter’s jurisdiction. We agree with the impugned judgmentthat the Orissa High Court’s jurisdiction in relation to matters pendingbefore the OAT is not being created or enlarged by the abolition of theOAT. It previously exercised such jurisdiction and is merely resuming itsjurisdiction over the same subject matter. It is for this reason that thedecision in A.R. Antulay (supra) is not applicable to the facts of thepresent case.

72. The natural consequence of the Union Government rescindingthe notification establishing the OAT would be to restore the status quoante. Nothing in either Article 323-A of the Constitution or the

AAdministrative Tribunals Act prevents such revival. Further, the absenceof provision in the Constitution which explicitly permits revival doesnot act as barrier to such revival. For the reasons discussed above,we hold that the Union Government’s reliance on Section 21 of theGeneral Clauses Act is in accordance with law.

Bv.The notification dated 2 August 2019 is not violative ofArticle 14 of the Constitution

a. The notification dated 2 August 2019 is not based on ir-relevant or extraneous considerations

73. The appellants have urged that the notification dated 2 AugustC2019 is based on an incorrect understanding of the decision in L. ChandraKumar (supra) and is arbitrary, unreasonable and violative of Article 14of the Constitution.

74. The principle that Article 14 strikes at arbitrariness and thatarbitrary action by the state violates the fundamental guarantee of equalityDhas been recognized as basic postulate since the decision in E.P.Royappa v. State of T.N.[26]:

“85. … equality is antithetic to arbitrariness. In fact equality andarbitrariness are sworn enemies; one belongs to the rule of law ina republic while the other, to the whim and caprice of an absoluteEmonarch. Where an act is arbitrary, it is implicit in it that itis unequal both according to political logic and constitutionallaw and is therefore violative of Article 14 … Articles 14 and16 strike at arbitrariness in State action and ensure fairness andequality of treatment. They require that State action must beFbased on valid relevant principles applicable alike to allsimilarly situate and it must not be guided by any extraneousor irrelevant considerations because that would be denialof equality.”

(emphasis supplied)

GThe State Government’s decision to abolish the OAT will thereforehave to be scrutinized with view to understanding whether anyextraneous or irrelevant considerations intruded into the decision.

75. The phrase ‘arbitrary’ is often used synonymously with thephrase ‘unreasonable.’ The test as to whether an action is reasonableH26 (1974) 4 SCC 3

was formulated by the Court of Appeal in Associated ProvincialPicture Houses, Limited v. Wednesbury Corporation[27]:

“It is true the discretion must be exercised reasonably. Now whatdoes that mean? … For instance, person entrusted with adiscretion must, so to speak, direct himself properly in law. Hemust call his own attention to the matters which he is bound toconsider. He must exclude from his consideration matters whichare irrelevant to what he has to consider. If he does not obeythose rules, he may truly be said, and often is said, to be acting“unreasonably.” Similarly, there may be something so absurd thatno sensible person could ever dream that it lay within the powersof the authority.”This Court has consistently assessed the validity of executiveaction on the anvil of the test laid down in Wednesbury Corporation(supra), including in G.B. Mahajan v. Jalgaon Municipal Council[28],Tata Cellular v. Union of India[29], Punjab Communications Ltd. v.Union of India[30] and Union of India v. International Trading Co.[31].

76. The reasons for the State Government’s decision to abolishthe OAT are recorded in document titled ‘A note indicating the rationale’with the subject ‘Abolition of Odisha Administrative Tribunal.’ This notewas prepared by the General Administration Department, Governmentof Odisha and is dated 16 September 2015. The relevant parts of thenote are extracted below:

“1. Background

Odisha Administrative Tribunal (OAT) was established on 14thJuly, 1986 under the Administrative Tribunal Act, 1985 byGovernment of India on the request of Government of Odisha.The Tribunal under the Act was to have similar jurisdiction as theHigh Court. The applicants were supposed to be freed fromthe requirement of having to approach the High Court fordisposal of their grievances. In lieu of the High Court theaggrieved government employees could go to the Tribunal andfrom there on to the Supreme Court directly …

27 [1948] 1 K.B. 22328 (1991) 3 SCC 9129 (1994) 6 SCC 65130 (1999) 4 SCC 72731 (2003) 5 SCC 437

2. Supreme Court Landmark Judgment (18[th] March, 1997)

However, with the decision of the Supreme Court in L ChandraKumar (1997) the provision of the Act that aggrieved parties couldappeal before the Supreme Court against the orders of the Tribunalwas held unconstitutional … it was held that the partiesBaggrieved with the orders of the Tribunal may approachthe High Court first before going to the Supreme Court …

3. Impact of the Supreme Court Judgment

As consequence of the landmark judgment of the Supreme Court,the objective of the establishment of the Tribunal to give quickjustice to the government employees was defeated and severalStates felt that the existence of the Tribunal was rendered futile.”

(emphasis supplied)

The State Government enclosed this note with its letter dated 16DSeptember 2015 to the Union Government, requesting it to abolish theOAT. The relevant portion of the letter is extracted below:

“This is to state that the State Administrative Tribunal has beenfunctioning in Odisha since 14.07.1986. Government of Odisha isof the view that the Tribunal is not able to serve its originalobjectives, particularly after the Hon’ble Apex Court gave theEJudgment in L. Chandra Kumar case of 1997.As result ofthis judgment, very purpose of having StateAdministrative Tribunal (SAT) for speedy redressal of thegrievances of the State Government employees is notfulfilled as any way the aggrieved parties have to approachFthe Hon’ble High Court before approaching the Apex Courtfor final verdict.

Government of Odisha, after taking into account this, have decidedto recommend to the Government of India to abolish the OdishaAdministrative Tribunal. note indicating the rationale adoptedGby the State Government in arriving at this decision is enclosedherewith for your ready reference.”

(emphasis supplied)

77. Similar reasons have been recorded in various other documentsof the State Government which relate to the abolition of the OAT. The

State Government requested the Union Government to establish the OATwith view to creating an alternate forum to the Orissa High Court. TheState Government envisioned structure of litigation whereby appealsfrom the OAT would lie directly to the Supreme Court, and would excludethe High Court both as the court of first instance as well as forum ofappeal. In the State Government’s view, the structure of litigation underthe Administrative Tribunals Act would ensure that the dispute achievedquietus in maximum of two tiers of litigation. However, the decision ofthis Court in L. Chandra Kumar (supra) held that the jurisdiction ofHigh Courts could not be ousted. This resulted in the creation of threetiers of litigation under the Administrative Tribunals Act – first, beforethe OAT, followed by the High Court, and culminating with the SupremeCourt. The State Government was consequently of the opinion that the“speedy redressal of grievances” was no longer possible in view of theadditional rung of litigation. It was of the opinion that its reason forestablishing the OAT no longer survived.

78. The appellants contend that the State Government hasmisinterpreted the decision in L. Chandra Kumar (supra). It is theirsubmission that the number of tiers of litigation remains the same even ifthe OAT is abolished and that there is therefore no advantage to beobtained by abolishing the OAT. Instead of parties instituting casebefore the OAT at the first instance and preferring petition under Article226 before Division Bench of the High Court and Special LeavePetition under Article 136 before the Supreme Court, they will institute acase directly before the High Court. This will be heard by single judgeand parties have the remedy of writ appeal before Division Bench ofthe High Court and further challenge before this Court. There arehence, three tiers of litigation, regardless of the forum in which theproceedings are conducted. The appellants also contend that the OrissaHigh Court is itself burdened with large number of pending cases andthat an increase in its workload would not result in efficiency in thedisposal of cases.

79. It was not the State Government’s case that it was obliged toabolish the OAT as result of the decision in L. Chandra Kumar (supra)or that the abolition of the OAT would result in fewer tiers of litigation.Rather, the State Government evaluated the effect of the decision in L.Chandra Kumar (supra) on the purpose that it intended to achieve withthe establishment of the OAT. Tribunals, including administrative tribunals,

Amay be set up for any number of reasons. All the reasons which couldpossibly or theoretically have had bearing on the State Government’sdecision to establish the OAT are not relevant. Only the StateGovernment’s actual reason for establishing the OAT is relevant inconsidering whether it misinterpreted L. Chandra Kumar’s case(supra). The State Government’s reason for setting up the OAT was toBachieve speedy justice. crucial factor (to its mind) was the eliminationof tier of litigation. The State Government was of the opinion thatthe creation of the OAT would not fulfil the purpose of speedy redressalof grievances because there was no improvement to the justice deliverysystem through the elimination of tier of litigation.

80. As for the submission that the Orissa High Court’s pendencywill increase if the cases pending before the OAT are transferred to it,the State Government is entitled to structure its justice delivery systemswithin the parameters defined by law. Its decision may be set aside onlyif it is unconstitutional or without the authority of law.

81. In addition to the impact of the decision in L. Chandra Kumar(supra), the State Government considered other factors related to thefunctioning of the OAT. In the note dated 16 September 2015, the StateGovernment furnished other reasons for its decision to abolish the OAT:

E“Government is incurring significant sum of expenditure on theOAT as is exhibited in the table given below:

Table 1: Plan and Non-Plan Provision for OAT (Rs in Lakhs)

The following table represents the institution and disposal of OAand MP cases in OAT month wise from January 2014 to December2014:-

Table 2 shows that there were 47,619 cases pending at thebeginning of 2014. During the calendar year 2014, 7417 caseswere disposed whereas 13,823 fresh cases were instituted. Atthe end of the year 2014, the number of pending cases went up to54,334 … As an institutional mechanism it seems the Tribunal hasFnot been able to provide speedy decisions …”

(emphasis in original)

The State Government was therefore concerned not only withthe additional tier of litigation at the Orissa High Court but also with theexpenditure incurred to operate the OAT as well as the rate at which theOAT disposed of cases. It was persuaded to abolish the OAT due to acombination of all these factors.

82. From the above discussion, the following conclusions emerge:

Aa. While arriving at the decision to abolish the OAT, the StateGovernment considered relevant reasons. It consideredwhether the OAT was capable of fulfilling the purpose forwhich it was established after the decision in L. ChandraKumar (supra). It placed in the balance the expenditureincurred to operate the OAT as well as the rate of disposal ofBcases. These reasons were not irrelevant to the decision as towhether tribunal ought to be continued;

b. The State Government’s act of consulting the Orissa HighCourt (upon receiving request to this effect from the UnionGovernment) before deciding to abolish the OAT was notCirrelevant or extraneous. The cases before the OAT were tobe transferred to the Orissa High Court and the opinion of thelatter was relevant to State Government’s decision;

c. The State Government did not consider factors which wereirrelevant or extraneous to its decision; andD

d. The decision to abolish the OAT was not one which was soabsurd that no reasonable person or authority would ever havetaken it. The decision to abolish tribunal which it hadestablished, based on an analysis of relevant factors is, by nostretch of imagination, an absurd or unreasonable decision.

83. This Court reached similar conclusion in the MPATAbolition Case (supra). The appellants in that case argued that thedecision to abolish the MPAT was arbitrary, unreasonable, and violativeof Article 14 of the Constitution. This Court rejected their argument inthe following terms:F

“57. … The notification was issued by the Central Government in1988 and the State Administrative Tribunal was established forthe State of Madhya Pradesh. At that time, as per well-settledlegal position, decisions rendered by the Administrative Tribunalsconstituted under the Act of 1985 were “final” subject to jurisdictionGof this Court under Article 136 of the Constitution. … If, in viewof subsequent development of law in L. Chandra Kumar [(1997)3 SCC 261 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125] the Stateof Madhya Pradesh felt that continuation of State AdministrativeTribunal would be “one more tier” in the administration of justiceinasmuch as after decision is rendered by the State Administrative

Tribunal, an aggrieved party could approach the High Court underArticles 226/227 of the Constitution and, hence, it felt that suchTribunal should not be continued further, in our opinion, it cannotbe said that such decision is arbitrary, irrational or unreasonable.From the correspondence between the State of Madhya Pradeshand the Central Government as well as from the affidavit-in-reply,it is clear that the decision of this Court in L. Chandra Kumar[(1997) 3 SCC 261 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125]had been considered by the State of Madhya Pradesh in arrivingat decision to abolish State Administrative Tribunal. Such aconsideration, in our opinion, was relevant, germane and valid.”

The decision to abolish the MPAT was based on similarconsiderations as the decision to abolish the OAT. For these reasons, theabolition of the OAT is not arbitrary or unreasonable. It does not violateArticle 14 of the Constitution.

84. Our choice of the test articulated in WednesburyCorporation (supra) must not be understood to mean that no otheryardstick may be utilized to test the constitutional legitimacy of executiveaction, under Article 14. This Court has previously approved of the useof the proportionality test to evaluate the validity of certain kinds ofexecutive action, including in Om Kumar v. Union of India[32]and TeriOat Estates (P) Ltd. v. UT, Chandigarh[33]. The proportionality testmay well be applicable to other cases where executive overreach isalleged.

b. The principles of natural justice have not been violated

85. The appellants submit that the Union and State Governmentshave violated the principles of natural justice by failing to provide theOAT Bar Association and the litigants before the OAT with an opportu-nity to be heard before abolishing the OAT. They argue that this violatesArticle 14 of the Constitution.

86. The decision to establish, continue or abolish the OAT is in thenature of policy formulated and implemented by the State Government(acting with the Union Government under the Administrative TribunalsAct). The public at large does not have right to be heard before apolicy is formulated and implemented. The process of consultation with

32 AIR (2000) SC 3689

33 (2004) 2 SCC 130

Athe public, with experts, and with other stakeholders may be desirableand would facilitate participatory democracy. However, each memberof the class that would be impacted by policy decision cannot be af-forded an opportunity of hearing. This would not only be time consumingand expensive, but deeply impractical.

B87. BALCO Employees’ Union (Regd.) v. Union of India[34] con-cerned the validity of the decision of the Union of India to disinvest andtransfer 51% shares of Bharat Aluminium Company Limited. The peti-tioner in that case (the union of the company’s employees) inter aliasubmitted that it had right to be heard before and during the process ofdisinvestment. This Court rejected this argument, observing that:C

“57. … As matter of good governance and administrationwhenever such policy decisions are taken, it is desirable that thereshould be wide range of consultations including considering anyrepresentations which may have been filed, but there is no provisionin law which would require hearing to be granted before takingDa policy decision. In exercise of executive powers, policy decisionshave to be taken from time to time. It will be impossible andimpracticable to give formal hearing to those who may be affectedwhenever policy decision is taken. One of the objects of givinga hearing in application of the principles of natural justice is to seeEthat an illegal action or decision does not take place. Any wrongorder may adversely affect person and it is essentially for thisreason that reasonable opportunity may have to be granted beforepassing of an administrative order. In case of the policy decision,however, it is impracticable, and at times against the public interest,to do so, but this does not mean that policy decision which isFcontrary to law cannot be challenged. … If the decision isotherwise illegal as being contrary to law or any constitutionalprovision, the persons affected like the workmen, can impugn thesame, but not giving pre-decisional hearing cannot be groundfor quashing the decision.”

(emphasis supplied)

Although the decision in BALCO Employees’ Union (Regd.)(supra) was rendered in the context of policy decision with economicimplications, it would be applicable in the present case. The principle

enunciated in that case is equally applicable to other categories of policydecisions. This is because it is impractical to hear every member of theclass impacted by policy decision.

88. The absence of right to be heard before the formulation orimplementation of policy does not mean that affected parties areprecluded from challenging the policy in court of law. What it means isthat policy decision cannot be struck down on the ground that it wasarrived at without offering the members of the public at large (or somesection of it) an opportunity to be heard. The challenge to policy maybe sustainable if it is found to vitiate constitutional rights or is otherwisein breach of mandate of law.

89. For the reasons discussed above, the decision to abolish theOAT cannot be assailed on the ground that there was violation of theprinciples of natural justice. Article 14 of the Constitution has not beenviolated.

vi. The Union Government did not become functus officio afterestablishing the OAT

90. P Ramanatha Aiyer’s The Law Lexicon (1997 edition)defines the term functus officio as:

“A term applied to something which once has had life and power,but which has become of no virtue whatsoever … One who hasfulfilled his office or is out of office; an authority who has performedthe act authorised so that the authority is exhausted”

91. Black’s Law Dictionary (5[th] edition) defines the term asfollows:

“Having fulfilled the function, discharged the office, oraccomplished the purpose, and therefore of no further force orauthority … an instrument, power, agency, etc. which has fulfilledthe purpose of its creation, and is therefore of no further virtue oreffect.”

92. The doctrine of functus officio gives effect to the principle offinality. Once judge or quasi-judicial authority has rendered decision,it is not open to her to revisit the decision and amend, correct, clarify, orreverse it (except in the exercise of the power of review, conferred bylaw). Once judicial or quasi-judicial decision attains finality, it is subjectto change only in proceedings before the appellate court.

A93. For instance, Section 362 of the Code of Criminal Procedure1973 provides that court of law is not to alter its judgment once it issigned:

“362. Court not to alter judgment.—Save as otherwise providedby this Code or by any other law for the time being in force, noBCourt, when it has signed its judgment or final order disposing ofa case, shall alter or review the same except to correct clericalor arithmetical error.”

In Hari Singh Mann v. Harbhajan Singh Bajwa[35], this Courtrecognized that Section 362 was based on the doctrine of functus officio:C

“10. … The section is based on an acknowledged principle of lawthat once matter is finally disposed of by court, the said courtin the absence of specific statutory provision becomes functusofficio and disentitled to entertain fresh prayer for the samerelief unless the former order of final disposal is set aside by aDcourt of competent jurisdiction in manner prescribed by law.The court becomes functus officio the moment the official orderdisposing of case is signed. Such an order cannot be alteredexcept to the extent of correcting clerical or an arithmeticalerror.”

E94. The doctrine of functus officio exists to provide clear pointwhere the adjudicative process ends and to bring quietus to the dispute.Without it, decision-making bodies such as courts could endlessly revisittheir decisions. With definitive endpoint to case before court orquasi-judicial authority, parties are free to seek judicial review or to preferan appeal. Alternatively, their rights are determined with finality. SimilarFconsiderations do not apply to decisions by the state which are basedentirely on policy or expediency.

95. Turning to the present case, the appellants’ argument that theUnion Government was rendered functus officio after establishing theOAT does not stand scrutiny. The decision to establish the OAT wasGadministrative and based on policy considerations. If the doctrine offunctus officio were to be applied to the sphere of administrative decision-making by the state, its executive power would be crippled. The statewould find itself unable to change or reverse any policy or policy-based

35 (2001) 1 SCC 169H

decision and its functioning would grind to halt. All policies would attainfinality and any change would be close to impossible to effectuate.

96. This would impact not only major policy decisions but alsominor ones. For example, minor policy decision such as bus routewould not be amenable to any modification once it was notified. Oncedetermined, the bus route would stay the same regardless of the demandfor, say, an additional stop at popular destination. Major policy decisionssuch as those concerning subsidies, corporate governance, housing,education and social welfare would be frozen if the doctrine of functusofficio were to be applied to administrative decisions. This is notconceivable because it would defeat the purpose of having governmentand the foundation of governance. By their very nature, policies aresubject to change depending on the circumstances prevailing in societyat any given time. The doctrine of functus officio cannot ordinarily beapplied in cases where the government is formulating and implementinga policy.97. In the present case, the State and Union Governments’ authorityhas not been exhausted after the establishment of an SAT. Similarly, theState and Union Governments cannot be said to have fulfilled the purposeof their creation and to be of no further virtue or effect once they haveestablished an SAT. The state may revisit its policy decisions inaccordance with law. For these reasons, the Union Government wasnot rendered functus officio after establishing the OAT.

vii. The notification dated 2 August 2019 is valid despite notbeing expressed in the name of the President of India

98. The appellants challenge the notification dated 2 August 2019on the ground that it does not comply with the requirements of clause (1)of Article 77 because it was not issued in the name of the President ofIndia.

99. Article 77 of the Constitution of India indicates:

“Conduct of business of the Government of India.—

(1) All executive action of the Government of India shall beexpressed to be taken in the name of the President.

(2) Orders and other instruments made and executed in the nameof the President shall be authenticated in such manner as may bespecified in rules to be made by the President, and the validity of

an order or instrument which is so authenticated shall not be calledin question on the ground that it is not an order or instrumentmade or executed by the President.

(3) The President shall make rules for the more convenienttransaction of the business of the Government of India, and forthe allocation among Ministers of the said business”

Article 166 corresponds to Article 77. It states:

“Conduct of Business of the Government of State.—

(1) All executive action of the Government of State shall beexpressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the nameof the Governor shall be authenticated in such manner as may bespecified in rules to be made by the Governor, and the validity ofan order or instrument which is so authenticated shall not be calledDin question on the ground that it is not an order or instrumentmade or executed by the Governor.

(3) The Governor shall make rules for the more convenienttransaction of the business of the Government of the State, andfor the allocation among Ministers of the said business in so far asit is not business with respect to which the Governor is by orEunder this Constitution required to act in his discretion”

Clause (1) of Article 166 corresponds to clause (1) of Article 77.As consequence, decisions of this Court with respect to clause (1) ofArticle 166 will be of persuasive value while interpreting clause (1) ofArticle 77.F

100. In Air India Cabin Crew Assn. v. YeshaswineeMerchant[36], two-judge Bench of this Court held that the exercise ofstatutory power is not rendered invalid if it is not expressed to have beentaken in the name of the President:

“72. In our opinion, reference to Article 77 is wholly inappropriate.The exercise of statutory power under Section 34 by the CentralGovernment, even though not expressed to have been taken inthe name of President, does not render it invalid. Clause (2) ofArticle 77 insulates an executive action of the Government formally

H36 (2003) 6 SCC 277

taken in the name of President from challenge on the ground thatit is not an order or instrument made or executed by President.Even if an executive action of the Central Government is notformally expressed to have been taken in the name of President,Article 77 does not provide that it would, therefore, be renderedvoid or invalid. … In Major E.G. Barsay v. State of Bombay(1962) 2 SCR 195, two-judge bench of this Court held:

“25. … Shortly stated, the legal position is this: Article 166(1) isonly directory. Though an impugned order was not issued in strictcompliance with the provisions of Article 166(1), it can beestablished by evidence aliunde that the order was made by theappropriate authority. If an order is issued in the name of theGovernor and is duly authenticated in the manner prescribed inRule (2) of the said Article, there is an irrebuttable presumptionthat the order or instrument is made or executed by theGovernor. Any non-compliance with the provisions of thesaid rule does not invalidate the order, but it precludes thedrawing of any such irrebuttable presumption. This doesnot prevent any party from proving by other evidence thatas matter of fact the order has been made by theappropriate authority.Article 77 which relates to conduct ofbusiness of the Government of India is couched in terms similarto those in Article 166 and the same principles must governthe interpretation of that provision.”

(emphasis supplied)

101. Similar principles govern the interpretation of Article 166and Article 77. notification which is not in compliance with clause (1)of Article 77 is not invalid, unconstitutional or non-est for that reasonalone. Rather, the irrebuttable presumption that the notification was issuedby the President of India (acting for the Union Government) is no longeravailable to the Union Government. The notification continues to be validand it is open to the Union Government to prove that the order wasindeed issued by the appropriate authority.

102. In the present case, the notification dated 2 August 2019was not issued in the name of the President. However, this does notrender the notification invalid. The effect of not complying with Article77 is that the Union Government cannot claim the benefit of the

Airrebuttable presumption that the notification dated 2 August 2019 wasissued by the President. Hence, the appellants’ argument that thenotification dated 2 August 2019 is invalid and unconstitutional is specious.

103. Here, it is appropriate to note that the notification dated 4July 1986 (by which the OAT was established) was also not issued inBthe name of the President. However, the appellants seek to preserve theestablishment of the OAT by that notification while assailing thenotification abolishing the OAT. If the arguments of the appellants wereto be accepted, the notification dated 4 July 1986 would be invalid. Weare therefore not inclined to entertain the argument that the notificationdated 2 August 2019 is invalid and non-est.C

104. We are satisfied that both the notification dated 4 July 1986and the notification dated 2 August 2019 were, in substance, issued bythe President (acting for the Union Government). The notifications werepublished in the Gazette of India in accordance with law and there isnothing on record to support the suggestion that an authority which is notDempowered to issue the notification has issued it. To the contrary, Section4 of the Administrative Tribunals Act empowers the Union Governmentto issue notification establishing the OAT and as discussed previously,the attendant power to rescind notification so issued is also available tothe Union Government. The issuance of both notifications was an exerciseEof the Union Government’s statutory power under the AdministrativeTribunals Act.105. The appellants place reliance on the decision of ConstitutionBench of this Court in Dattatraya Moreshwar Pangarkar v. State ofBombay[37] and specifically on the sentence in paragraph 24, which states:F“24. …when the executive decision affects an outsider or isrequired to be officially notified or to be communicated it shouldnormally be expressed in the form mentioned in Article 166(1) i.e.in the name of the Governor.”

106. The appellants have failed to notice the very next sentenceGin paragraph 24, by which this Court accepts the argument that Article166 is directory provision:

“24. … The learned Attorney General then falls back upon theplea that an omission to make and authenticate an executive

decision in the form mentioned in Article 166 does not make thedecision itself illegal, for the provisions of that article, like theircounterpart in the Government of India Act, are merely directoryand not mandatory … In my opinion, this contention of the learnedAttorney General must prevail.

25. It is well settled that generally speaking the provisions of astatute creating public duties are directory and those conferringprivate rights are imperative. When the provisions of statuterelate to the performance of public duty and the case is suchthat to hold null and void acts done in neglect of this duty wouldwork serious general inconvenience or injustice to persons whohave no control over those entrusted with the duty and at thesame time would not promote the main object of the legislature, ithas been the practice of the courts to hold such provisions to bedirectory only, the neglect of them not affecting the validity of theacts done.”

107. Article 77 is directory provision. Article 77(1) refers to theform 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) ofArticle 77. It does not have any bearing on the process of decision-making itself. The public or the citizenry would stand to suffer mostfrom the consequences of declaring an order that is not expressed in thename of the President null and void. Hence, the appellants’ reliance onDattatraya Moreshwar Pangarkar (supra) is misplaced.

108. The appellants also seek to rely on State of Uttaranchal v.Sunil Kumar Vaish[38], where two-judge bench of this Court observed:

“23. … unless an order is expressed in the name of the Presidentor the Governor and is authenticated in the manner prescribed bythe rules, the same cannot be treated as an order on behalf of theGovernment.”

In this case, no reference is made to the decision of the ConstitutionBench in Dattatraya Moreshwar Pangarkar (supra), which would bebinding on the two-judge bench in Sunil Kumar Vaish (supra). As notedabove, Dattatraya Moreshwar Pangarkar (supra) held that theprovisions of Article 166 were directory and not mandatory. This would

38 (2011) 8 SCC 670

Aapply squarely to the provisions of Article 77 as well. The decision inSunil Kumar Vaish (supra) is of no assistance to the appellants’ case.

109. Finally, the appellants have relied on Gulf Goans Hotel Co.Ltd. v. Union of India[39] to support their case. However, the decision inthis case does not support the position urged by the appellants becauseBit, too, holds that the consequence of non-compliance with Article 77(1)is that it deprives the Union Government of the immunity conferred byArticle 77(2). It also notices that executive action exercised pursuant topowers conferred under statute stands on different footing fromexecutive action taken independent of statute:“19. Article 77 of the Constitution provides the form in which theCExecutive must make and authenticate its orders and decisions.Clause (1) of Article 77 provides that all executive action of theGovernment must be expressed to be taken in the name of thePresident. The celebrated author H.M. Seervai in ConstitutionalLaw of India, 4th Edn., Vol. 2, 1999 describes the consequencesDof government orders or instructions not being inaccordance with clauses (1) or (2) of Article 77 by opiningthat the same would deprive the orders of the immunityconferred by the aforesaid clauses and they may be open tochallenge on the ground that they have not been made byor under the authority of the President in which case theEburden would be on the Government to show that they were,in fact, so made. In the present case, the said burden has notbeen discharged in any manner whatsoever. The decision inAir India Cabin Crew Assn. v. Yeshaswinee Merchant[(2003) 6 SCC 277, p. 311, para 72 : 2003 SCC (L&S) 840], taking somewhat different view can, perhaps, beFexplained by the fact that in the said casethe impugneddirections contained in the government letter (notexpressed in the name of the President) was in exercise ofthe statutory power under Section 34 of the Air CorporationsAct, 1953. In the present case, the impugned guidelinesGhave not been issued under any existing statute.”

(emphasis supplied)

In the present case, the notification dated 2 August 2019 wasissued in exercise of the statutory powers under the AdministrativeTribunals Act.H39 (2014) 10 SCC 673

110. For the reasons discussed in this segment, the notificationdated 2 August 2019 is valid despite not being expressed in the name ofthe President of India.

viii. The abolition of the OAT is not violative of the funda-mental right of access to justice

111. The appellants have urged that the abolition of the OAT hasmade the court system less accessible to litigants and that it is thereforeviolative of the fundamental right of access to justice. They have reliedon the decision in Anita Kushwaha v. Pushap Sudan[40], where Con-stitution Bench of this Court discussed the components of access tojustice:

“33. Four main facets that, in our opinion, constitute the essenceof access to justice are:

(i) the State must provide an effective adjudicatory mechanism;

(ii) the mechanism so provided must be reasonably accessible interms of distance;

(iii) the process of adjudication must be speedy; and

(iv) the litigant’s access to the adjudicatory process must beaffordable.”

The appellants contend that the abolition of the OAT breachesthe second and fourth facets of the right of access to justice. Theyargue that the OAT has two regular benches and two circuit benchesbut the Orissa High Court has one seat in Cuttack, thereby making theadjudicatory mechanism less accessible in terms of distance. They urgethat the distance also makes the adjudicatory process less affordablebecause of the cost of travelling to Cuttack from different parts of thestate.

112. The fundamental right of access to justice is no doubt crucialand indispensable right under the Constitution of India. However, it cannotbe interpreted to mean that every village, town, or city must house everyforum of adjudication created by statute or the Constitution. It is anundeniable fact that some courts and forums will be located in sometowns and cities and not others. Some or the other litigants will be requiredto travel some distance to access particular forum or court.

A113. To reiterate the ruling in Anita Kushwaha (supra),adjudicatory mechanisms must be reasonably accessible in terms ofdistance. The High Court of Orissa has creatively utilised technology tobridge the time taken to travel from other parts of Odisha to Cuttack.Indeed, other High Courts must replicate the use of technology to ensurethat access to justice is provided to widely dispersed areas. This willBensure that citizens have true access to justice by observing andparticipating in the proceedings before the High Courts in cases of concernto them. The submission made on behalf of the State of Odisha thatcompensation schemes may be used to alleviate financial hardships mustalso be taken into account. Further, legal aid programs sponsored by theCstate are also useful in addressing any financial hardships, as observedby this Court in Anita Kushwaha (supra):

“40. Affordability of access to justice has been, to an extent, takencare of by the State-sponsored legal aid programmes under theLegal Services Authorities Act, 1987. Legal aid programmes haveDbeen providing the much needed support to the poorer sections ofthe society in accessing justice in courts.”

114. Significantly, the Orissa High Court has established bencheswhich will operate virtually in multiple cities and towns across the state.This negates the appellants’ argument that the Orissa High Court is lessEaccessible than the OAT. In fact, the number of virtual benches of theHigh Court is greater than the number of benches of the OAT. Litigantsfrom across the state can access the High Court with greater ease thanthey could access the OAT.

115. Litigants may therefore approach the Orissa High Court forFthe resolution of disputes. The abolition of the OAT does not leave litigantswithout remedy or without forum to adjudicate the dispute in question.It is therefore not violative of the fundamental right of access to justice.

ix. The State Government did not take advantage of its ownwrong

G116. The appellants have argued that the State Government triedto take advantage of its own wrong by failing to fill the vacancies in theOAT and creating the conditions for the abolition of the OAT.

117. In paragraph 85 of this judgment, portion of the note pre-pared by the General Administration Department, Government of Odisha

dated 16 September 2015 is extracted. The note details the StateGovernment’s reasons for requesting the Union Government to abolishthe OAT. The extract in paragraph 85 reflects data on the institution,disposal, and pendency of cases before the OAT for the year 2014. TheState Government had not ceased to make appointments to the OAT atthe time at which this note was prepared. At that time, the OAT wasfunctioning as it usually did. The State Government found the OAT’susual performance (i.e., rate of disposal of cases) to be unsatisfactory.This aspect of the OAT’s functioning played role in the StateGovernment’s decision to abolish the OAT.

118. As noticed in the impugned judgment:

“48. … after the decision of the Government of Odisha to abolishthe OAT became public, it ceased to make appointments to fill upthe vacancies in the OAT. This led to the OAT Bar Association,Cuttack filing W.P.(C) No. 15693 of 2017 in this Court seeking amandamus to the Government of Odisha to fill up the vacanciesin the OAT.”

(emphasis supplied)

Therefore, the State Government discontinued appointments tothe OAT as result of its decision to abolish the OAT and not viceversa. The appellants’ averment confuses the sequence of events onwhich their argument is based. The State Government based its decisionon an evaluation of the OAT’s functioning in the year 2014, which wasprior to its decision to abolish the OAT. Hence, there is no “wrong”which the State Government took advantage of. Similarly, we do notagree with the argument of the appellants that the Union of India hadsystematically made the OAT non-functional.119. related argument put forth by the appellants is that theState Government’s failure to fill the vacancies in the OAT is breachof Article 256 of the Constitution. Article 256 inter alia stipulates that theexecutive power of every State shall be so exercised as to ensurecompliance with the laws made by Parliament. It is not necessary for usto address ourselves to this argument because the prayers in the WritPetitions which resulted in the impugned judgment did not seek anadjudication as to the violation of Article 256. The lis before the OrissaHigh Court was limited to the validity of the decision to abolish the OAT.We therefore confine our judgment on appeal to the same issue.

Ax. The failure of the Union Government to conduct judi-cial impact assessment before abolishing the OAT doesnot vitiate its decision to abolish the OAT

120. The appellants contend that the Union Government ought tohave mandatorily complied with the directions of Constitution BenchBof this Court (of which one of us, Dr, DY Chandrachud, J was part) inRojer Mathew v. South Indian Bank Ltd.[41] prior to abolishing theOAT. The intervenor in this matter has also advanced the argument thatthe Union Government ought to have taken the permission of this Courtbefore abolishing the OAT.

121. In Rojer Mathew (supra), this Court directed the UnionCGovernment to conduct judicial impact assessment of certain tribu-nals. The operative part of this judgment (from the majority opinion ofRanjan Gogoi, CJI) in relation to judicial impact assessments is extractedbelow:

“223.7. There is need-based requirement to conduct “judicialDimpact assessment” of all the Tribunals referable to the FinanceAct, 2017 so as to analyse the ramifications of the changes in theframework of tribunals as provided under the Finance Act, 2017.Thus, we find it appropriate to issue writ of mandamus to theMinistry of Law and Justice to carry out such “judicial impactassessment” and submit the result of the findings before theEcompetent legislative authority.”

122. The direction to conduct judicial impact assessment,therefore, was of general nature. It was not geared towards proposalsto abolish specific tribunals such as the OAT. Rather, need was felt toanalyse the consequences of the restructuring of tribunals by the FinanceFAct 2017 and writ of mandamus was issued in this regard to the Ministryof Law and Justice. The judicial impact assessment was also directed tobe conducted in order to better understand the case load, efficacy,financial impact, and accessibility of tribunals at large, in addition to thefilling of vacancies.[42] We note that neither the majority opinion authoredGby Ranjan Gogoi, CJI nor the opinions of Dr. DY Chandrachud, J. orDeepak Gupta, J. contain direction to the effect that tribunal shall notbe abolished in the absence of judicial impact assessment. In the presentcase, the Union Government issued the notification dated 2 August 2019

41 (2020) 6 SCC 1H42 See paragraphs 185, 222, 223.7, 234, 387 – 390.

in valid exercise of its powers under Section 21 of the General ClausesAct. The failure to conduct judicial impact assessment does not vitiateits decision to abolish the OAT. Nothing in the judgment in Rojer Mathew(supra) also indicates the need for the Union Government to obtain thepermission of this Court before abolishing the OAT.

123. However, this is not to say that the Union Government andmore specifically, the Ministry of Law and Justice may dispense withthe directions of this Court in Rojer Mathew (supra). The judgmentwas delivered on 13 November 2019. More than three years have sincepassed and the Ministry of Law and Justice is yet to conduct judicialimpact assessment.

124. An assessment such as the one directed to be conductedwould only shed light on the impediments faced in the delivery of justice.The lack of an assessment precludes any well-informed, intelligent actionconcerning tribunals in the country (as whole). This, in turn, hascascading effects for the citizenry, which is deprived of well-oiledmachinery by which it can access justice. We therefore reiterate thedirections of this Court in Rojer Mathew (supra) and direct the Ministryof Law and Justice to conduct judicial impact assessment at the earliest.

xi. Miscellaneous contentions

125. miscellaneous contention remains to be considered.

126. The appellants have submitted that the so-called real reasonfor the abolition of the OAT is that many top-ranking officials facedcharges of contempt before the OAT, for the reason that they had failedto implement its orders. It is averred that these officials influenced theState Government to abolish the OAT. The appellants argue that theState and Union Governments did not deny this allegation in their counteraffidavits before the Orissa High Court and that this allegation is truebecause of ‘non-traverse.’

127. There is nothing on record which indicates the truth of theappellants’ allegations or even points to possibility of the truth of suchan allegation. It is entirely unsubstantiated and appears to be last-ditchattempt to sustain their challenge to the abolition of the OAT. In anyevent, the averment belies logic. All cases pending before the OAT wouldbe transferred to the Orissa High Court, without exception. This in-cludes contempt petitions. Hence, it would not be possible for officialsor others to avoid contempt proceedings as result of the abolition ofthe OAT.

AE. Findings and conclusion128. In view of the discussion above, we hold that the abolition ofthe OAT was constitutionally valid for the following reasons:

a.The Writ Petitions instituted before the Orissa High Courtwere maintainable because the appellants claimed that theirBconstitutional rights had been violated. They were thereforeentitled to invoke the jurisdiction of the High Court underArticle 226 of the Constitution;

b.Article 323-A does not preclude the Union Government fromabolishing SATs because it is an enabling provision whichCconfers the Union Government with the power to establishan administrative tribunal at its discretion (upon receiving arequest from the relevant State Government in terms of theAdministrative Tribunals Act). The legal and factual contextof the power to establish administrative tribunals, the pur-pose of this power and the intention of the legislature estab-Dlish that there is no duty to exercise the power conferred bythe Administrative Tribunals Act, such that the enabling pro-vision becomes mandatory provision;

c.The Union Government acted in valid exercise of its powerswhen it invoked Section 21 of the General Clauses Act readEwith Section 4(2) of the Administrative Tribunals Act to re-scind the notification establishing the OAT because the de-cision to establish the OAT was an administrative decisionand not quasi-judicial decision. Moreover, Section 21 ofthe General Clauses Act is not repugnant to the subject-matter,context and effect of the Administrative Tribunals Act and isFin harmony with its scheme and object;d.The notification dated 2 August 2019 by which the OAT wasabolished is not violative of Article 14 of the Constitution.The State Government did not consider any irrelevant orextraneous factors while arriving at the decision to requestGthe Union Government to abolish the OAT. The decision toabolish the OAT is itself not absurd or so unreasonable thatno reasonable person would have taken it;

e.The principles of natural justice were not violated becausethe class of people who were affected by the decision toHabolish the OAT did not have right to be heard. The public

at large (or some sections of it) did not have right to beheard before the policy decision was taken;

f.The Union Government did not become functus officio afterestablishing the OAT because the doctrine cannot ordinarilybe applied in cases where the government is formulating andimplementing policy;

g.The notification dated 2 August 2019 is valid though it is notexpressed in the name of the President of India becausenon-compliance with Article 77 of the Constitution does notinvalidate notification or render it unconstitutional;

h.The abolition of the OAT is not violative of the fundamentalright of access to justice because the Orissa High Court willhear cases which were pending before the OAT prior to itsabolition;

i.The State Government did not take advantage of its ownwrong because it stopped filling the vacancies of the OATonly after deciding to abolish it. It did not rely on the vacan-cies (and the consequent increase in pendency) created byits inaction to abolish the OAT; and

j.The failure of the Union Government to conduct judicialimpact assessment before abolishing the OAT does not viti-ate its decision to abolish the OAT because the directions inRojer Mathew (supra) were of general nature and didnot prohibit the abolition of specific tribunals such as theOAT in the absence of judicial impact assessment. How-ever, the Ministry of Law and Justice is directed to conducta judicial impact assessment as directed by this Court in RojerMathew (supra).

129. The challenge to the constitutional validity of the impugnednotification dated 2 August 2019 by which the OAT was abolished isrejected. The judgment of the High Court shall stand affirmed in termsof the conclusions recorded above. The appeals are dismissed.

130. Pending applications, if any, stand disposed of.

Nidhi Jain

Appeals dismissed.

(Assisted by : Tamana, LCRA)