Holding

Clause (5) of Article 371‑D and its proviso are unconstitutional and void as they violate the basic structure doctrine by emasculating the Tribunal’s judicial review function.

Summary

The petitioners challenged the constitutional validity of clause (5) of Article 371‑D, which required a state government’s confirmation for an Administrative Tribunal’s order to become effective and allowed the government to modify or annul such orders. The Court held that while clause (3) establishing the Tribunal was permissible, the proviso to clause (5) gave the state an unchecked veto over the Tribunal’s decisions, rendering the Tribunal less effective than a High Court and violating the basic structure doctrine. The power to modify or annul Tribunal orders was deemed subversive to the rule of law and justice. Consequently, clause (5) and its proviso were declared unconstitutional and void, and the State Government was directed to amend the Presidential Order accordingly. The Court also quashed all orders made by the State Government under the invalid provision and remanded pending cases to the Tribunal.

Issues considered

The constitutionality of clause (5) of Article 371‑D and its proviso under the basic structure doctrine
Whether the power granted to the State Government to modify or annul Administrative Tribunal orders violates the rule of law and judicial review
Whether clause (3) of Article 371‑D, which establishes the Administrative Tribunal, is valid

Legislation cited

Subjects

basic structure doctrinejudicial reviewArticle 371-Dadministrative tribunalrule of lawstate government powerconstitutional amendmentseparation of powers

Judgment

P. SAMBAMURTHY & ORS. ETC. ETC.
A
v.
STATE OF ANDHRA PRADESH & ANR.

DECEMBER 20, 1986/MA Y 5, 1987

[P.N. BHAGWATI CJ., RANGANATH MISRA, V. KHALID, ll
G.L. OZA AND M.M. DUTT, JJ.]

Constitution of India, 1950--Art. 371-D, els. (3) and (5)-
Amending Power of Parliament-Exclusion of High Court's power of
judicial review by an enactment-Not violative of basic structure
·) doctrine-If the enactment provides for an equally effective and efficaci-
ous alternative mechanism or authority for judicial review-Proviso to
cl. (5)-Conferring power on State Government-To modify or annul
·+ final order of Administrative Tribunal-Held, violative of basic
structure doctrine, against concept of justice and principle of rule of
law-Held, ultra vires the amending power of Parliament-Main part
1
of cl. (5 ), being closely inter-related With the proviso, held, a/so uncon- D
stitutional and void.

Administrative Law: State Administrative Tribunal-Power con-
ferred on government to modify or annul order of Tribunal-Held,
violates rule of law as also basic structure doctrine and declared
' ).-. unconstitutional. E

Article 371-D was introduced in the Constitution by the Constitu-
tion (Thirty-Second Amendment) Act 1973, which came into force with
effect from Isl July, 1974, and pursuant to cl.(3) thereof the President
of India made an order on 19th May, 1975 constituting"" Administra-
tive Tribunal for the State of Andhra Pradesh with jurisdiction to deal F

~
with service matters specified in that order.

I In these petitions under Art. 32, the petitioners challenged the
validity of els. (3) & (5) of Art. 371-D. However, challenge lo cl. (3) was
not pressed' and arguments confined only to cl. (5).
G
Allowing the Petitions,

+ HELD: (I) Clause (5) of Art. 371-D of the Constitution along
with the Proviso Is dedared to be llllCObStlh1tional ud void. Tbe
Government of India is directed to ensure that the necessary amend-
ment is carried out in the Presidential Order dated !9th May, 1975 so as H

879
880 SUPREME COURT REPORTS [1987] I S.C.R.
j . •.
A to bring it in confonnity. with the law laid down by this Court in the
instant case. The Orders made by the State Government in exercise of
the power conferred under the Proviso to cl. (5) of Art. 371-D shall be
quashed and set aside. [890G-H]

(2) Clause (5) of Art. 371-D provides that the order of the Ad-
B ministrative Tribunal finally disposing of the case shall becm;ne effective ~·
upon its confinnation by the State Government or on the expiry of three
months from the date on which the order is made, whichever is earlier.
This clause by itself could not be regarded as in any way rendering the.
Administrative Tribunal less efficacious than the High Court because it
would not .be an extra-ordinary or unusual provision to lay down a
-(-
\
period of time during which an order made by a Tribunal may not be
C given effect to, enabling the State Government either to make arrange-
ments for implementing the order of the Tribunal or to prefer an appeal
+-'
against it, but what really introduces an infinnity in cl. (5) is the
provision enacted in the Proviso, which says that the State Government
may by special order made in writing for rasons to be specified therein,
D modify or annnal any order of the AcbDinistrative Tribunal before it be-
comes effective and in such a ca<1e, the order of the A•l111i11N1 atlve Tribunal
shall have effect only in such modified form or be ofno effect. [8870-G]

(3) Invariably the State Government would be a party in every -~
service dispute brought before the Administrative Tribunal and the
.
E effect of the Proviso is that the State Government which is a party to the
proceeding before the Administrative Trillunal and which contests the
claim of the public servant who comes before the Administrative Tri-
bunal seeking redress of his grievance against the State Government
would have the ultimate authority to uphold or reject the determination
-
of the Administrative Tribunal. It would be open to the State Govern-
F ment, after it has lost before the Administrative Tribunal, to set at
naught the decision given by the Administrative Tribunal against it.
Such a provision is, to say the least, -shocking and is clearly subversive
of the principles of justice. A party to the litigation cannot be given the
power to over-ride the decision given by the Tribunal. It would be
violating the basic concept of justice and make a mockery of the entire
G adjudicative process. Not only is the power conferred on the State Gov-
ernment to modify or annul the decision of the Administrative Tribunal
starting and wholly repugnant to the notion of justice hut it is also a
power which can be abused or misused. [888B-E]

(4) In the last about three years this power has been exercised by
H the State Government in large number of CL'les and even interim orders
P. SAMBAMURTHY v. ANDHRA PRADESH 881

made by the Administrative Tribunal have been set at naught though no
such power is conferred on the State Government. It is only an order of A
the Administrative Tribunal finally disposing of the case which can be
modified or annulled by the State Government and not an interim order
made by the Administr,.tive Tribunal. The record shows that this limi-
tation has been completely brushed aside and the State Government has
t behaved in a most extrangant manner in modifying or annulling orders B
made by the Administrative Tribunal which were found inconvenient.
Even the Parliament debates show that the bill envisaged exercise of this
power in most exceptional cases. However, this power has been indis-
criminately used by the State Government. [888E-H]

(5) It is a basic principle of the rule of law that the exercise of
power by the executive or any other authority must not only be con- C
ditioned by the Constitution hut must also be in accordance with law
and the power of judicial review is conferred hy the Constitution with a
view to ensuring that the law is observed and there is compliance with
the requirement of law on the part of the executive and other autho-
rities. It is through the, power of judicial review conferred on an in- o
dependent institutional authority such as the High Court that the rule of
law is maintained and every organ of the State is kept within the limits
of the law. If the exercise of the power of judicial review can be set at
naught by the State Government hy over-riding the decision given
against it, it would sound the death knell the rule of law. The rule of law
would be meaningless as it would be open to the State Government to E
defy the law and yet to get away with it. The Proviso to cl.(5) of Art.
371-D is, therefore, violative of the basic structure doctrine. (8898-E]

(6) Clause (3) of Art. 371-D empowers the President hy order to
provide for the setting up of the Administrative Tribunal and vesting in
it the jurisdiction of the High Court in respect of the specified service F
matters. This constitutional amendment authorising exclusion of the
jurisdiction of the High Court and the vesting of such Jurisdiction in the
Administrative Tribunal postulates for its validity that the Administra-
tive Tribunal must be as effective an institutional mechanism or author-
ity for judicial review as the High Court. If the Administrative Tribunal
is less effective and efficacious than the High Court in the matter of G
judicial review in respect of the specified service matters, the constitu-
tional amendment would fall foul of the basic structure doctrine. Undis-
putedly the provision enacted in the Proviso to cl. (5)of Art. 371-D
deprives the Administrative Tribunal of its effectiveness and efficacy
because it enables the State Government which is a party to the litiga-
tion before the Administrative Tribunal to over-ride its decision. The H
882 SUPREME COURT REPORTS [1987] 1 S.C.R.

A power of judicial review vested io the High Court under Arts. 226 and
227 does not suffer from any such infirmity because whatever the High
Court decides is hindiog on the State Government, subject only to a
right of appeal to a Court or superior jurisdictior and the State Govern-
ment cannot, for any reason, set at naught ',ii"~ decision or the High
Covrt. But the power of judicial review conf1 rrred on the Admioistra-
B live Tribunal is, by reason or the Proviso to CI. (5) or Art. 371-D,
subject to the veto of the State Government and it is not at all effective
or efficacious because the State Government can defeat its exercise by
just passing an order modifying or nullifying the decision of the
Administrative Tribunal. The Proviso to CI. (5) has the effect of
emasculating the striking power of the Administrative Tribunal and the
State Government can make the decision of the Administrative
C Tribunal impotent and sterile. Therefore, the Proviso to CI. (5) renders +-
the Administrative Tribunal a much less effective and elf"teacious
institutional mechanism or authority for judicial review than the High
court in respect of the specified service matters. The conclusion is that
the Proviso to CI. (5) of Art. 371-D by which power has been conferred
D on the State Government to modify or annul the final order of the
Administrative Tribunal is violative of the basic strncture doctrine and
it is only by striking down that provision that els. (3) to (8) of Art. 371-D
can he sustained. [889E-H; 890A-E]

(7) Therefore, the Proviso to Cl. (5) of Art. 371-D is unconstitu-
E tional as being ultra vires the amending power of Parliament and if tbe
Proviso goes, the main part of cl. (5) must also fall alongwith it, since it
is closely inter-related with the proviso and cannot have any rationale
for its existence apart from the Proviso. The main part of cl. (5) of
Article 371-D woold, therefore, also have to he declared unconstitu-
tional and void. [890E-F]
F
(8) If any constitutional amendment made by Parliament takes
away from the High Court the power of judicial review in any parti·
cular area and vests it in any other institutional mechanism or autho-
rity, it would not be violative of the basic strncture doctrine, so long as
the essential condition is fulfilled that the alternative institutional
G mechanism or authority set up by the parliamentary amendment is no
less effective than the High Court. [887A-B]

(9) Parliament was, therefore, competent by enacting cl. (3) of
Art. 371-D to provide for setting up an Administrative Tribunal and
excluding the jurisdiction of the High Court in regard to the matters
H coming within the jurisdiction of the Administrative Tribunal, so long
P. SAMBAMURTHY v. ANDHRA PRADESH 883

as the Administrative Tribunal was not les.s effective or efticaciowi than the
High Court in so far as the power of judicial review is concerned. [887B-D] A

S.P. Sampath Kumar v. Union of India and Ors., [1987] I SCC
124, folfuwed and Narasimha Rao v. State of Andhra Pradesh, [1970] I
SCR 115 and Director of Industries and Commerce v. V. V. Reddy,
[1973] 2 SCR 562, referred to. B

(R.S Pathak CJ, Ranganath Misra v. Khalid, G.L. Oza and
M.M. Dutt, JJ.)

5th May, I987

Disposing of the review Petitions, c
HELD: I. The operation of the judgment and order dated
December 20, 1986 shall extend to those cases only which were con-
sidered by this Court. [891A-B]
D
2. The cases in which Petitions were filed directly will now stand
remanded to the Administrative Tribunal for judicial consideration in
accordance with the observations of this Court in the judgment of
December 20, 1986. [8918-C]

3. This direction will also cover those writ petitions which were
E
transferred from the High Court to this Court. They sbaU stand transfer-
red to the Administrative Tribunal and be considered similarly. [89IC-D]

4. Those cases in which the State Government modified or
superseded the orders of the Administrative Tribunal shall be treated as
concluded by the relative orders of the Administrative Tribunal as they
F
stood before the said orders were interfered with by the State
Government. [891D-E]

ORIGINAL JURISDICTION: Writ Petition No. 90 of !977 etc.

(Under Article 32 of the Constitution of India.)
G
AND

Review Petition No. -+l7-.\5.\/87 etc.

T.S. Krishnamurthi Iyer, C. Sitaramiah, L.N. Sinha, A.S. H
,, 884
:t SUPREME COURT REPORTS [ 1987] 1 S.C.R.

A Nambiar. G. Narayana Rao, K. Ramkumar, K. Ram Mohan, M.S.
Guru. Raj Rao. Subodh Markandeya, Ashok K. Sharma, M.S.
Ganesh, P.N. Misra, D.C. Taneja, B. Parthasarathi, B.B. Sawhney.
P. Krishna Rao, B. Krishna Prasad, Ms. Malini, T.V.S.N. Chari. Ms.
Vrinda Grover, S. Wasim A. Qadri, Naresh Mathur, Ms. Sunita, P.P.
B Singh and Ms. S. Relan for the appearing parties.

The Judgment of the Court was delivered by

BHAGWATI, C.J, These writ petitions challenge the constitu-
tional validity of clause (5) of Article 371-D of the Constitution.
Though original when the writ petitions were filed, the constitutional
C validity of clause (3) of Article 371-D was also assailed. this challenge
was not pressed on behalf of the petitioners and the arguments were
confined only to the challenge against the constitutional validity of
caluse (5) of that Article. But in order to understand the true scope and
ambit of the controversy raised before us in regard to the constitu-
D tional validity of clause (5), it is necessary for us to refer also to the
provision enacted in clause (3) of Article 37 l-D. Clauses (3) and (5) of
Article 371-D read as follows:-

"The President may, by order, provide for the Constitution
of an Administrative Tribunal for the State of Andhra
Pradesh to exercise such jurisdiction, powers and authority
E
including any jurisdiction, power and authority which im-
mediately before the commencement of the Constitution
(Thirty-Second Amendment) Act, 1973. was exerciseable
by any Court (other than the Supreme Court) or by any
Tribunal or other authority as may be specified in the order
with respect to the following matters, namely:-
F
(A)

(B)

(C)
G
(5) The order of the Administrative Tribunal finally dis-
posing of any case shall become effective upon its confir-
mation by the State Government or on the expiry of three
months from the date on which the order is made, which-
ever is earlier;
H
P. SAMBAMURTHY v. ANDHRA PRADESH [BHAGWATI, CJ.I 885

Provided that the State Government may, by special
order made in writing for reasons to be specified therein, A
modify or annul any order of the Administrative Tribunal
before it becomes effective and in such a case, the on;ler of
the Administrative Tribunal shall have effect only in such

-!
f modified form or be of no effect, as the case may be."
8
Article 37 J-D was introduced in the Constitution by the Constitution
(Thirty-Second Amendment) Act 1973 which came into force with
effect from Isl July 1974. The genesis of this Amendment made in the
Constitution by introduction of Article 371-D lay in the formation of
the State of Andhra Pradesh on !st November 1956. The State of
·+ Andhra Pradesh was constituted of portions of territories drawn from
the erstwhile State, of Andhra and Hyderabad. The territories from the C
erstwhile State of Hyderabad which were included in the State of
Andhra Pradesh commonly known as the Telengana area. Before the
territories of the Telengana area were amalgamated with the other
territories to form the State of Andhra Pradesh, there was a set of
rules known as the Mulki Rules in operation in the Telengana area D
under the regime of the Nizam of Hyderabad and these rules provided
for residential clarification for all public employment. Soon after the
formation of the State of Andhra Pradesh Parliament enacted Public
Employment (Requirement as to Residence) Act 1957 making special
provision for requirement as to residence for public employment and
brought it into force with effrrt from 2 lst March 1957. The constitu- E
tional validity of this Act was challenged by some of the persons
employed in the ministerial services of the Andhra Pradesh Govern-
ment in Narasimha Rao v. State of Andhra Pradesh, [ 1970] l SCR 115
and this Court by its judgment dated 28th March 1969 held Section 3 of
this Act in so far as it related to the Telengana area ultra vires clause
(3) Article 16 of the Constitution. This Court, however left open the F
question whether in view of the constitutional invalidity of this Act the
Mulki Rules existing in the Telengana area could be said to be continu-
ing in force by virtue of Article 35(b) of the Constitution. This ques-
tion, however, came up for consideration before this Court in Director
of Industries and Commerce v. V. V. Reddy, [1973] 2 SCR 562. This
Court held that the Mulki Rules continued in force even after the G
formation of the State of Andhra Pradesh under Article 35(b) of the
Constitution. Meanwhile, however, there were two wide-spread agita-
tions one in the Telengana area and the other in the Andhra region of
the State between 1969 and 1972, creating a political turmoil and virtu-
ally the paralysing administration of the State. The political leaders of
the State were considerably exercise over this situation and they made H
886 SUPREME COURT REPORTS [1987] l S.C.R.

A concerted effort to find an endeavouring solution to this problem in
order to secure full emotion integration of the people of the State. On
21st September 1973 a six-Point Formula was evolved by the political
leaders to provide for a uniform approach for promoting accelerated
development of the backward areas of the State so as to secure
balanced development of the State as a whole and providing equitable
8 opportunities to different areas of the State in the matter of education
and employment in public services. The implementation of this Six-
Point Formula envisaged inter alia amendment of the Constitution
conferring power on the President of India in order to secure smooth
implementation of the measures based upon the Six-Point Formula
without giving rise to litigation and consequent uncertainty. It was in
C pursuance of this requirement that Article 371-D was introduced in the
Constitution in order to give effect to the Six-Point Formula. One of +-.
the measured contemplated in the Six-Point Formula related to the
setting up of an Administrative Tribunal with jurisdiction to deal with
grievances relating to public services and clauses (3) to (8) of Article
371-D gave effect to this proposal and provided for the establishment
D of an Administrative Tribunal and its constitution and powers.
Pursuant to Cluase (3) of Article 371-D, the President of India made
an order on 19th May 1975 constituting an Administrative Tribunal for
the State of Andhra Pradesh with jurisdiction to deal with the service
matters specified in that order.

E No constitutional objection to the validity of Clause (3) of Arti-
cle 371-D could possibly be taken since we have already held in S.P.
Sampath Kumarv. Union of India and Ors., [1987] l S.C.C. 124, decided
on 9th December, 1986 that judicial review is a basic and essential feature
of the Constitution and it cannot be abrogated without affecting the basic
structure of the Constitution, but Parliament can certainly without in
F any way violating the basic structure doctrine amend the Constitution
so as to set up an effective alternative institutional mechanism or
arrangement for judicial review. One of us (Bhagwati, CJ.) pointed
out in ihe judgment delivered in that case that: "the basic and es.<ential
feature of judicial review cannot be dispensed with but it would be
within the competence of Parliament to amend the Constitution so as
G to substitute in place of the High Court, another alternative institu-
tional mechanism or arrangement for judicial review, provided it is not
less efficacious than the High Court.". We summarised the constitu-
tional position in regard to the power of Parliament to amend the
Constitution with a view to taking up the jurisdiction of the High
Court in the following words:-
H
P. SAMBAMURTHY v. ANDHRA PRADESH lBHAGWATI, CJ.] 887

." ...... if any constitutional amendment made by Parlia-
ment takes away from the High Court the power of judicial A
review in any particular area and vests it in any other
institutional mechanism or authority, it would not be viola-
tive of the basic structure doctrine, so long as the essential
condition is fulfilled, namely, that the alternative institu-
tional mechanism or authority set up by the parliamentary B
amendment is no less effective than the High Court."·

Parliament was therefore competent by enacting Clause (3) of Article
371-D to provide for setting up an Administrative Tribunal and ex-
cluding the jurisdiction of the High Court in regard to the matters
coming within the jurisdiction of the Administrative Tribunal, so long
as the Administrative Tribunal was not less effective or efficacious C
than the High Court in so far as the power of judicial review is con-
cerned. The constitutional validity of Clause (3) of Article 371-D could
not therefore be successfully assailed on the ground that it excluded
the jurisdiction of the High Court in regard to certain specified service
matters and vested it in the Administrative Tribunal. D

But the real controversy between the parties centered round the
constitutional validity of Clause (5) of Article 371-D. This clause pro-
vides that the order of the Administrative Tribunal finally disposing of
the case shall become effective upon its confirmation by the State
Government or on the expiry of three month~ from the date on which E
the order is made, whichever is earlier. Standing by itself, this clause
could not be regarded as in any way rendering the Administrative
Tribunal less efficacious than the High Court because it would not be
an extraordinary or unusual provision to lay down a period of time
during which an order made by a tribunal may not be given effect to
presumably in order to enable the State Government either to make F
arrangements for implementing the order of the tribunal or to prefer
an appeal aginst it. But what really introduces an ·infirmity in Clause
(5) of Article 371-D is the provision enacted in the proviso which says
that the State Government may by special order made in writing and
for reasons to be specified therein, modify or annul any order of the
Administrative Tribunal before it becomes effective and in such a G
case, the order of the Administrative Tribunal shall have effect only in
such modified form or be no effect, as the case may be. The State
Government is given the power to modify or annul any order of the
Administrative Tribunal before it becomes effective either by confir-
mation by the State Government or on the expiration of the period of
three months from the date of the order. The State Government can at H
888 SUPREME COURT REPORTS [ 1987) 1 S.C.R.
...
A any time before the expiry of three months from the date of the order
modify or annul the order unless it has, by a prior signification of its
will, confirmed the order. It will thus be seen that the period of three
"
months from the. date of the order is provided in Clause (5) in order to
enable the State Government to decide whether it would confirm the

B
order or modify or annul it. Now almost invariably the State Govern-
ment would be a party in every service dispute brought before the +
Administrative Tribunal and the effect of the proviso to Clause (5) is
that the State Government which is a party to the proceeding before
the Administrative Tribunal and which contests the claim of the public
servant who comes before the Administrative Tribunal seeking redress
of his grievance against the State Government, would have the ultimate
-(..
authority to uphold or reject the determination of the Administrative
c Tribunal. It would be open to the State Government, after it has lost t- •
before the Administrative Tribunal, to set at naught the decision given
by the Administrative Tribunal against it. Such a provision is, to say
the least, shocking and is clearly subversive of the principles of justice.
How can a party to the litigation be given the power to over-ride the
D decision given by the Tribunal in the litigation, without violating the
basic concept of justice? It would make a mockery of the entire adjudi-
cative process. Not only is the power conferred on the State Govern-
ment to modify or annul the decision of the Administrative Tribunal
startling and wholly repugnant to our notion of justice but it is also a ~
power which can be abused or misused. It is significant to note that in
E the last about three years this power has been exercised by the State
Government in an inordinately large number of cases and even interim
orders made by the Administrative Tribunal have been set at naught ...
by the State Government though no such power is conferred on the
]
r
r State Government under the proviso to Clause (5). It is clear on a
proper construction of the proviso read with Clause (5) that it is only
F an order of the Administrative Tribunal finally disposing of the case
" which can be modified or annulled by the State Government and not
'' an interim order made by the Administrative Tribunal. But we find
from the record that this limitation has been completely brushed aside
by the State Government and· it would be no exaggeration to say that
the State Government has behaved in a most extravagant manner in
G modifying or annulling orders made by the Administrative Tribunal
which were found inconvenient. We may point out that even at the
time when Article 37 l-D was introduced in the Constitution, Parlia- +"
ment debates show that the Home Minister who piloted the bill did not
envisage exercise of this power save in the most exceptional cases.
Here, however, we find that this power has been indiscriminately used
H by the State Government. But that apart, we do think that this power
P. SAMBAMURTHY v. ANDHRA PRADESH (BHAGWATI, CJ.] 889

conferred on the State Government is clearly violative of the basic A
concept of justice.

It is obvious from what we have stated above that this power of
modifying or annulling an order of the Administrative Tribunal confer-
~ red on the State Government under the proviso to Clause (5) is viola-
tive of the rule of law which is clearly a basic ana essential feature of B
the Constitution. It is a basic principle of the rule of law that the
exercise of power by the executive or any other authority must not
only be conditioned by the Constitution but must also be in accordance
· 'r-- with law and the power of judicial review is conferred by the Constitu-
tion with a view to ensuring that the law is observed and there is
~ l.. compliance with the requirement of law on the part of the executive
--r and other authorities. It is through the power of judicial review confer- C
red on an independent institutional authority such as the High Court
that "the rule of law is maintained and every organ of the State is kept
within the limits of the law. Now if the exercise of the power of judicial
review can be set at naught by the State Government by over-riding
the decision given against it, it would sound the death/knell of the rule D
of law. The rule of law would cease to have any meaning, because then
it would be open to the State Government to defy the la~ and yet get
away with it. The Proviso to Clause (5) of Article 371-0 is therefore
f- clearly violative of the basic structure doctrine.

The question of constitutional validity of the Proviso to Article E
37 1-D can also be looked at from another angle. Clause (3) of Article
37 l-D empowers the President by order to provide for the setting up of
the Administrative Tribunal and vesting in the Administrative
Tribunal the jurisdiction of the High Court in respect of the specified
service matters. This constitutional amendment authorising exclusion
o.f the juris~iction of the High Court and vesting of such jurisdiction in F
the Administrative Tribunal postulates for its validity that the
Administrative Tribunal must be as effective an institutional
mechanism or authority for judicial review as the High Court. If the
Administrative Tribunal is less effective and efficacious than the High
Court in the matter of judici'!,,l review in respect of the specified service
matters, the constitutional amendment would fall foul of the basic G
structure doctrine . Now it can hardly be disputed that the provision
enacted in the Proviso to Clause (5) of Article 371-D deprives the
Administrative Tribunal of its effectiveness and efficacy because it
enables the State Government which is a party to the litigation before
•the Administrative Tribunal to over-ride the de cision given by the
Administrative Tribunal. The power of judicial review vested in the H
890 SUPREME COURT REPORTS [1987) 1 S.C.R.

A High Court under Articles 226 and 227 does not suffer from any such
infirmity because whatever the High Court decides is binding on the
State Government, subject only to a right of appeal to a court of
superior jurisdiction and the State Government cannot, for any
reason, set at naught the decision of the High Court. But the power of
B judicial review conferred on the Administrative Tribunal is by
reason of the Proviso to Clause (5) of Article 371-D subject to the veto
of the State Government and it is not at all effective or efficacious
because the State Government can ·defeat its exercise by just passing
an order modifying or nullifying the decision of the Administrative
Tribunal. The Proviso to Clause (5) of Article 371-D has the effect of
emasculating the striking power of the Administrative Tribunal and
-y-
C the State Government can make the decision of the Administrative
Tribunal impotent and sterile. It is therefore obvious that the Proviso
to Clause (5) of Article 371-D renders the Administrative Tribunal a
much less effective and efficacious instiutional mechanism or authority
for judicial review than the High Court in respect of the specified
service matters. In the circumstances the conclusion is inescapable that
D the proviso to Clause (5) of Article 371-D by which power has been
conferred on .the State Government to modify or annul the final order
of the Administrative Tribunal is violative of the basic structure
doctrine since it is that which makes the Administrative Tribunal a less
effective and efficacious institutional mechanism or authority for judi-
cial review and it is only by striking down that provision as being
E outside the constitutent power of Parliament that Clauses (3) to (8) of
Article 371-D can be sustained. We must therefore hold that the Pro-
viso to Clause (5) of Article 371-D is unconstitutional as being ultra
vires the amending power of Parliament and if the Proviso goes, the
main part of clause (5) must also fall alongwith it, since it is closely
inter-related with the proviso and cannot have any rationable for its
F existence apart from the Proviso. The main part of clause (5) of Article
371-D would, therefore, also have to be declared unconstitutional and
void.

We accordingly allow the writ petitions and declare clause (5) of
Article .371-D alongwith the Proviso to be unconstitutional and void.
G The Government of India is directed to ensure that the necessary
amendment is carried out in the Presidential Order, so as to bring it in
conformity with the law laid down by us in this judgment. The Orders
made by the State Government in exercise of the/ power conferred
under the proviso to clause (5) of Art. 371-D shall be quashed and set
aside. There will be no order as to costs.
H
P. SAMBAMURTHY v. ANDHRA PRADESH [BHAGWATI, CJ.] 891

-'\: ORDER A

We direct that the operation of the Judgment and Order dated
December 20, 1986 pronounced by this Court shall extend to those
cases only which were made the subject of consideration by this Court
by virtue of these petitions and appeal having been filed in this Court.
~ l3
We direct further that in those cases where the petitions were
filed directly and without having been processed judicially and decided
by the Administrative Tribunal, the Order will operate insofar that
those cases will now stand remanded to the Administrative Tribunal
for judicial consideration in accordance with the observations of this
Court in the Judgment of December 20, 1986. c
This direction will also cover those Writ Petitions which were
transferred from the High Court to this Court. They shall stand trans-
ferred to the Administrative Tribunal and be considered similarly.

In all those cases where Writ Petitions were filed against the D
Orders of the State Government modifying or superseding the Orders
of the Administrative Tribunal, we direct that those cases shall be
treated as concluded by the relative orders of the Administrative Tri-
bunal as they stood before the said orders were interfered with by the
State Government.
E

I
We may add that Mr. L.N. Sinha, learned counsel appearing for
the Union of India in all these cases, sought the permission of the
Court to urge a ground in respect of the interpretation of Article
371-D of the Constitution. He contended that the power of Judicial
review, even construed as a basic feature of the Constitution, was not
precluded by the provisions of Article 371-D of the Constitution and F
t therefore the Judgment of this Court called for review. We are not
satisfied, however, that we should interfere.

The Review Petitions are disposed of accordingly.

A.P.J. Petitions allowed. G