P.A. Mohammed, J.
1. This is a Writ Petition filed under Articles 226 and 227 of the Constitution of India challenging Ext.P6 order passed by the Central Administrative Tribunal, Ernakulam Bench on December 7, 1998 rejecting O.A. No. 1676 of 1998 under Section 19(3) of the Administrative Tribunals Act, 1985 (for short 'the Act')
2. While the appellant was working as Transmission Executive in the office of the All India Radio, Calicut he was transferred to its Trichur office vide Ext.P2 order dated November 19, 1998 issued by the first respondent Director General, All India Radio, New Delhi, Consequent to the transfer order, the second respondent, Station Engineer, All India Radio, Calicut issued Ext.P3 relieving order to the appellant on November 27, 1998 with a direction to report himself for duty to the Station Director, Trichur. Being aggrieved by this order the petitioner filed Ext.P4 representation on November 30, 1998 before the second respondent. Thereafter the petitioner filed Ext.P5 application O.A. No. 1676 of 1998 before the Central Administrative Tribunal, Ernakulam, on December 2, 1998. After the enquiry, the Tribunal passed Ext.P6 order on December 7, 1998 rejecting the application observing no prima facie case had been made out for its interference.
3. As pointed out above, Ext.P6 order has been passed by the Tribunal under Sub-section (3) of Section 19 which runs thus:
'(3) On receipt of an application under Sub-section (1) the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons'.
The above provision envisages the admission or rejection of an application fifed under Sub-section (1) of Section 19 of the Act by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. On receipt of an application, the Tribunal shall if satisfied after such enquiry as it may deem necessary that the application is a fit case for enquiry or trial, admit such application. In case the Tribunal is not so satisfied it may summarily reject the application under Sub-section (3) after recording the reasons. Thus, in the case of summary rejection of the application it is imperative for the Tribunal to record the reasons. The question therefore, is whether this Court can exercise judicial review under Articles 226 and 227 of the Constitution in respect of the orders passed by the Tribunal under Section 19(3) of the Act and if so to what extent?
4. As a result of the introduction of the Constitution (Forty- Second Amendment) Act, 1976 Part XIV A was inserted in the Constitution with effect from January 3, 1977. Thus Article 323A was included in the said part authorising the Parliament by law to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India. Article 323B(2)(d) provides thus:
(2) A law made under Clause (1) may -..............................................(d) exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in Clause (1).
By virtue of the above provision, the jurisdiction of all Courts was excluded except the jurisdiction of the Supreme Court under Article 136 with respect to the disputes or complaints referred to in Clause (1) of Article 323A. The result is that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Articles 226 and 227 was also excluded.
5. In pursuance of the power conferred upon the Parliament by Clause (1) of Article 323A it enacted the Administrative Tribunals Act, 1985 (Act 13 of 1985). In view of Article 323A(2)(d), Section 28 was originally inserted in the said Act for exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution. The said section was later amended by the Administrative Tribunals (Amendment) Act, 1986 with effect from November 1, 1985. The result of the said amendment is that no Court except the Supreme Court or any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law in force shall have or be entitled to exercise any jurisdiction, power or authority in relation to recruitment or matters concerning such recruitment and service thereon. If the said Section 28 remained as such unaltered this Court has no jurisdiction under Article 226 and 227 to examine the correctness or otherwise of the orders passed by the Central Administrative Tribunal either under Section 19(3) or any other provision of the Act. But the Constitution Bench of the Supreme Court in L. Chandrakumar, v. Union of India and Ors. (1997) 3 SCC 261 by its judgment dated March 18, 1997 unanimously held that Clause 2(d) of Article 323A and Section 28 of the Act to the extend they exclude the jurisdiction of the High Courts and Supreme Court under Articles 226 and 227 and 32 of the Constitution are unconstitutional. In this context, we feel it appropriate to reproduce the following conclusions of the Supreme Court in the said decision as contained in paragraph 99 of the report.
'99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323A to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution are unconstitutional. Section 28 of the Act and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is apart of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Divisional Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunal will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statuary legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.'
6. Thus the power or jurisdiction is specifically conferred on the Division Bench of the High Courts to scrutinise all decisions of the Tribunal under Articles 226 and 227 of the Constitution by virtue of the above decision of the Supreme Court in Chandrakumar's case. This conferment is intended to serve two purposes. 'While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter'. When the exercise of the power under Articles 226 and 227 of the Constitution is thus purpose-oriented the Division Bench of the High Court shall exercise such power in abundanti cautela, that is to say in abundant caution and care. This is all the more so in the case of an order passed by the Tribunal under Section (6) of the Act whereby it is empowered to reject the application summarily. The only requirement to be complied with by the-Tribunal while doing so is to record its reasons.
7. In the aforestated premise we have therefore, to examine the correctness or otherwise of Ext.P6 order passed by the Tribunal in exercise of judicial review under Articles 226/227 of the Constitution. In this context, we confine ourselves to this limited question without attempting to embark on the ambit and scope of the judicial review conferred on us though the counsel on both sides supplied case laws in that behalf.
8. Before the Tribunal, while challengingthe order of transfer issued by the first respondentthe petitioner-applicant urged it was vitiated for exercise of power mala fide and that there weretwo or three persons who have longer stay atCalicut than him. These contentions werenegatived by the Tribunal for the reasonsrecorded. However, the said contentions havebeen reiterated before us on behalf of theappellant in order to attract the judicial review bythis Court. In this context we are reminded ofwhat Lord DENNING M.R. said in R. v. PrestonAppeal Tribunal (1915) 2 All E.R. 807.
'In short, the Court should be ready to lay down the broad guidelines for Tribunals, but no further. The Courts should not be used as if there was an appeal to them. Individual cases of particular application must be left to the Tribunals. And, of course, the Courts will always be ready to interfere if the Tribunals have exceeded their jurisdiction or acted contrary to natural justice. That goes without saying.'
It is arduous for this Court to observe that the Tribunal has exceeded its jurisdiction or acted in violation of the principles of natural justice while passing Ext.P6.
9. In public service the transfer is an incidence of service; but it cannot be said to be a condition of service either expressed or implied unless it works out to be punitive. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, the Supreme Court said in E. P. Royappa v. State of Tamil Nadu AIR 1974 SC 555 thus;
'The Government is the best judge to decide how to distribute and utilise the services of its employees. However this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power.'
In the present case, as aforesaid, the impugned order is attacked on the ground of malafide. In this context it may be noticed that the Tribunal said there was no specific allegations constituting mala fide. The allegation of mala fide must be certain and specific and it is not a matter that can be left to assumption. Though Ext.P2 order has been passed by the first respondent no allegation of mala fide has been pleaded by the appellant against him. The allegation is that the second respondent is harbouring malafide against the appellant.
10. The appellant is a person holding a transferable post and hence he cannot dictate that he shall be posted to a station according to his preference. It is lor the first respondent to decide as to how the service of the appellant is to be utilised in public service.
11. On a careful and cautious scrutiny of Ext. P6. we are of the view that no judicial review is called for in the facts of the present case. The writ petition is accordingly dismissed.