| SooperKanoon Citation | sooperkanoon.com/448117 |
| Subject | Constitution |
| Court | Allahabad High Court |
| Decided On | Feb-08-1989 |
| Case Number | Writ Petn. No. 1949 of 1989 |
| Judge | S. Saghir Ahmad and ;V. Kumar, JJ. |
| Reported in | AIR1991All27 |
| Acts | Constitution of India - Article 226; Uttar Pradesh Public Services Tribunal Act; Administrative Tribunals Act, 1985 - Sections 6(1) |
| Appellant | Sher Singh |
| Respondent | State of U.P. |
| Appellant Advocate | Surya Kant, Adv. |
| Respondent Advocate | Chief Standing Counsel |
1. In this petition the petitioner has claimed the following reliefs :--
(i) To issue a suitable order, direction or writ declaring the U. P. Public Services Tribunal Act as haste, unguided, unjust and unconstitutional Legislation having no rule at all uptil now.
(ii) To issue a situable order, directions or writ declaring the presence of administrative member as unconstitutional in view of AIR 1987 SC 386.
(iii) To issue any other suitable order direction or writ which this Hon'ble High Court may deem fit just and proper in the facts and circumstances of the case and for securing the justice.
(iv) cost of this writ petition may be awarded to the petitioner and against the opposite party.'
2. The petitioner is not challenging any order or proceedings of the Services Tribunal although it is stated that his claim petition is pending before the U. P. Public Services Tribunal. He wants a mere declaration that the Act under which the Tribunal has been constituted is unconstitutional.
3. It is true that the powers available to a High Court under Art. 226 of the Constitution are very wide and are not fettered by rules of technicalities and procedure, still, it does not, as a rule, give advisory opinion or bare declaratory judgments on the Constitutionality of a legislation.
4. In Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41, it was laid down that the court does not express merely advisory opinion nor does it pass mere declaratory judgment on the constitutionality of legislation. Similar view was expressed by a Full Bench of the Nagpur High Court in Sheoshankar v. State Government of Madhya Pradesh, AIR 1951 Nagpur 58.
5. In Kavalappara Kottarathil Kochunni v. State of Madras, AIR 1959 SC 725, the Supreme Court expressed the view that a declaratory order can be made where such an order would constitute proper relief to be given to the aggrieved party.
6. This would again indicate that there has to be some grievance raised before the Court before it can be called upon to adjudicate the constitutionality of a legislation. Suffice it to say that the court does not entertain petitions merely for a declaratory judgment to decide hypothetical questions of express opinion on such questions. It would not be out of place to quote the following observations of Hon'ble Vankataramiah, J. in S.P. Gupta v. President of India, AIR 1982 SC 149 :--
'The Court does not decide issues in tb3 he abstract. It undertakes determination of controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The, Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The Court cannot lake upon itself the role of a commission of inquiry -- a knight errant roaming at will with a view to destroy evil wherever it is found.'
7. We may also say a few words about relief (ii) in which it has been prayed that the presence of Administrative Member may be declared to be unconstitutional on the basis of the judgment of Hon'ble Supreme Court in S. P. Samrath v. Union of India, AIR 1987 SC 386.
8. In this case Hon'ble Supreme Court had held the provisions of S. 6(l)(c) of the Administrative Tribunals Act, 13 of 1985 to be bad principally on the ground that since the Tribunal constituted under the Act was a substitute for the High Court, it would be of paramount importance that the substituted institution, namely, Tribunal, must be a worthy successor to the High Court in all respects and that Chairman should be a retiring or retired Chief Justice or a Senior Judge (retired or in office) to proved ability. It was for this reason that the Supreme Court struck down the provision for appointment of Secretary to the Government of India as Chairman of the Tribunal. This decision, therefore, is clearly distinguishable and cannot be applied to the Tribunals constituted under the U. P. Public Services Tribunal Act particularly as the order or judgment passed by such Tribunals are open to judicial scrutiny and review by the High Court apart from being amenable to the supervisory jurisdiction of the High Court.
9. In view of the above it is not possible to entertain the present petition in which thepetitioner has merely sought a declaratory judgment on the constitutionality of the provisions of U. P. Public Services Tribunal Act.
10. For the reasons stated above the petition is dismissed at the admission stage.
11. After the above order was passed counsel for the petitioner prayed for leave to appeal to Supreme Court. The leave prayed for is refused as no question of general importance is involved for the decision of the Supreme Court.
12. Petition dismissed.