[This is a guest post by Tanishk Goyal.]
On March 3, 2021, a Division Bench of the Allahabad High Court took suo motto cognizance of the Uttar Pradesh Education Service Tribunal Bill, 2021. This cognizance was against the backdrop of a week-long abstention from judicial work by the advocates at the call of the Allahabad High Court Bar Association and the Awadh Bar Association, Lucknow. Briefly put, The Uttar Pradesh Education Service Tribunal Bill, 2021 seeks to establish an Education Tribunal for expeditious disposal of service cases relating to teaching and non-teaching staff of of Basic, Secondary and Higher Educational Institutions in the State. In order to do so, the Bill proposes to establish the principle bench of the Tribunal at Lucknow with a circuit bench at Allahabad. The proposed location of the Tribunal has been the subject matter of controversy since 2019, when this Bill was first passed by the State Legislature.
Taking cognizance of the said matter In Re Constitution Of Education Tribunals, the Division Bench did two things. First, it availed the details of the pendency in Service Law matters in the State which were sought to be adjudicated by the Education Tribunal. Upon availing the above details through the Court’s Registry, the Bench came to the conclusion that the pendency in Service Law matters was “not too much” and the same could be effectively remedied through the constitution of special benches by the High Court itself. Second, it passed the following directions. The wordings and implications of the directions so passed are instructive and deserve to be quoted in full:
“(i) The Chief Justice, Allahabad High Court be requested to
constitute appropriate dedicated Benches at Allahabad as well as at Lucknow for expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions.
(ii) The Legislature may complete the process of enacting the Act of 2021, if so desires, but, shall establish Educational Tribunals as proposed only after the leave of this Court”. (emphasis supplied).
While the concerns regarding the constitutionality of the bill itself have been raised on this blog earlier, through the present piece, I only seek to highlight certain constitutional concerns with the stay order passed by the Division Bench of the Allahabad High Court on March 3, 2021. However, before analyzing the constitutional concerns with the said order, it would be pertinent to understand the object and purpose of the Uttar Pradesh Service Tribunal Bill, 2021.
The Object and Purpose of the UP Service Tribunal Bill, 2021
The ultimate objective of the Bill of 2021 as evidenced through its Statement of Objects and Reasons is twofold. Firstly, “to provide a mechanism for the speedy resolution of disputes in service matters of teachers and non-teaching employees of basic, secondary and higher educational institutions”. Secondly and relatedly, “to maintain and improve the quality of efficient functioning of institutions of basic secondary and higher education”. This objective was against the backdrop of the rapid growth in litigations involving service matters of teaching and non teaching staff of these institutions. This objective was also against the backdrop of the judgment of an eleven-judge bench of the Supreme Court in the case of T.M.A Pai Foundation v. State of Karnataka, where it held that:
64. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education […]. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective.” (emphasis supplied).
Thus, the constitution of a Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. In order to achieve the said objective, the Bill of 2021, through Sections 3-11 vests the Tribunal with various powers. These Sections, inter-alia provide for the establishment and composition of the Tribunal, the procedures to be adopted before it, the bar on civil suits, the power of the Tribunal to punish for its contempt and most importantly, a revisional jurisdiction to be exercised by the High Court. However, as will be illustrated forthwith, the Division Bench order of March 3, 2021 strikes at this heart of the Bill and renders it nugatory for all practical purposes.
Before analyzing the order of the Division Bench any further, it would be pertinent to reiterate here that while the Bill of 2021 still suffers from the same statutory defects that the Bill of 2019 did, which may ultimately render it ultra vires the Constitution, it is still not upon the judiciary to pre-empt its implications and put a stay upon its enforcement. This has been discussed forthwith.
The Order of the Division Bench of the Allahabad High Court
Having apprised the reader of the object and purpose of the Bill of 2021, an important point of departure here would be highlight the concerns that arise with respect to the two directions issued by the Division Bench in its order of March 3, 2021. The first direction holds that dedicated benches shall be created at Allahabad as well as Lucknow for the expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions. This direction essentially creates an Original jurisdiction of the High Court when only a revisional jurisdiction had been envisaged by the Bill of 2021. The second direction issued by the Division Bench restrained the State from constituting the Education Tribunal under Section 3 of the Bill of 2021 without the leave of the Court. As discussed earlier, the constitution of an Educational Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. Therefore, while the order says that“The Legislature may complete the process of enacting the Act of 2021, if it so desires”, the Court has effectively aborted the very essence legislation even before it came into effect.
This issuance of the above directions is classic example of the exercise of judicial fiat by the Division Bench where it has effectively defeated the legislative exercise undertaken by the State Legislature. The Bench has done so by essentially pre-empting that a dedicated Education Tribunal would be of no use if the original jurisdiction of the High Court is able to dispose off the cases in its capacity as the Court of First instance. Having pre-empted so, the Bench has also stayed the constitution of the Education Tribunal until a leave is sought from the Court. In doing so, the Bench only relied on the pendency data made available to it by the Registry of the Court. This essentially means that the Court discounted the need for any debate or discussion on the pendency data which was done in the Legislature when the Bill of 2021 was passed.
This approach was condemned by the U.S Supreme Court in the American Federation of Labour v. American Sash and Door Co., 335 US 538 (1949). Speaking through Justice Frankfurter, the Court held that:
“But, even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed by the legislature than that the law should be aborted by judicial fiat. Such, an assertion of judicial power defeats responsibility from those on whom in a democratic society it ultimately rests” (emphasis supplied).
In a similar situation in India where the Court had extended the applicability of the Easements Act, 1882 to the State of Assam when the legislature had made it clear that the said Act had no application in Assam, the Court, in Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 held that:
“12. It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary” (emphasis supplied).
It is trite to mention here that while interpreting a statute, the Courts defer to the legislative wisdom by adopting a construction which makes it effective and workable. This deference is essentially in light of the principle of Separation of Powers and in light of the accepted fact that the legislature represents the will of the people, and the Court cannot substitute such wisdom with that of its own, unless the legislation is impossible to sustain. The Division Bench, in its order of March 3, 2021 has not given any reasons why such Bill may be impossible to sustain. Despite the absence of these reasons, the Bench not only struck at the heart of the Bill of 2021, It also usurped the field reserved for the legislature by creating an Original jurisdiction where only a revisional jurisdiction existed, based on empirical data which has neither been verified nor debated upon the by the State Legislature.
While the concerns with respect to putting a stay on a legislation have been raised on this blog earlier, the Allahabad High Court’s substitution of the legislative will with its own notions of expediency, and its pre-emption of the ineffectiveness of an Education Tribunal (which ultimately led to the abortion of the Bill in its infancy), has struck at the root of separation of powers enshrined in Article 50 of the Constitution of India. Not only does this order go against the judgment of the eleven judge bench in T.M.A Pai(supra), it also violates the Basic Structure of the Constitution. This sentiment was emphatically echoed by a Constitution Bench of the Supreme Court in the case of GVK Industries Ltd. v. ITO [(2011) 4 SCC 36 where it held that:
“34. […] One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and machinery of Government to be able to pursue the constitutional vision into the indeterminate and unforeseeable future.
35. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. […] Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities” (emphasis supplied).
Notwithstanding the fate of vires of the Bill of 2021, it is imperative that the March 3rd order of the Allahabad High Court not become precedent for future cases. This is essentially because the order gives power to any Court which is conscious of an ongoing legislative process, to injunct the same quia timet, and transgress into a field which has only been reserved for the Legislature under the Constitution.
Having said that, it is now upon the State to contest this petition (the status of which is still shown as pending) and it can only be hoped that the above order is rectified so that the separation of powers as envisaged by the Constitution is brought to fruition in letter and in spirit in the times to come.