Holding

The abolition of the Odisha Administrative Tribunal by the 2 August 2019 notification is constitutionally valid and the challenges to it are dismissed.

Summary

The Odisha Administrative Tribunal (OAT) was created in 1986 under the Administrative Tribunals Act, 1985, but was abolished by a Union Government notification dated 2 August 2019, issued under Section 21 of the General Clauses Act in conjunction with Section 4(2) of the same Act, after the State of Odisha requested its removal. The OAT Bar Association and the Odisha Retired Police Officers’ Welfare Association filed writ petitions in the Orissa High Court alleging that the abolition violated Article 14, the right of access to justice, principles of natural justice, and that the Union had become functus officio and the notification was invalid for not being issued in the President’s name. The High Court dismissed the petitions; the appellants appealed to the Supreme Court. The Court examined whether Article 323‑A mandates the creation of State Administrative Tribunals, whether Section 21 GCA could be used to rescind the OAT notification, and whether the abolition was arbitrary, violated natural justice, or the fundamental right of access to justice. It held that Article 323‑A is a directory provision, does not bar abolition, and that the decision to establish the OAT was an administrative act amenable to reversal under Section 21. The notification was not arbitrary, did not breach Article 14, did not infringe natural‑justice rights, and the lack of a pre‑abolition judicial impact assessment did not vitiate the decision. Consequently, the abolition of the OAT was declared constitutionally valid.

Issues considered

The writ petitions were maintainable under Article 226.
Whether Article 323‑A imposes a mandatory duty on the Union to establish State Administrative Tribunals and thus bars their abolition.
Whether Section 21 of the General Clauses Act can be invoked to rescind the notification establishing the OAT.
Whether the abolition of the OAT is arbitrary and violative of Article 14 of the Constitution.
Whether the abolition infringes the fundamental right of access to justice.
Whether the principles of natural justice were violated by not hearing the OAT Bar Association and litigants.
Whether the notification’s lack of expression in the President’s name renders it invalid under Article 77.
Whether the Union Government became functus officio after establishing the OAT.
Whether the State Government took advantage of its own wrong by ceasing to fill OAT vacancies.
Whether the failure to conduct a judicial impact assessment before abolition vitiates the decision.

Legislation cited

Administrative Tribunals Act, 1985s. 29, s. 4(2)
General Clauses Act, 1897s. 21

Subjects

constitutional validityadministrative tribunalArticle 323-ASection 21 General Clauses ActArticle 14natural justicefunctus officioaccess to justicenotificationabolition

Judgment

[2023] 6 S.C.R. 731 731

ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION A
v.
UNION OF INDIA & OTHERS
(Civil Appeal No 6805 of 2022)
MARCH 21, 2023 B
[DR. DHANANJAYA Y CHANDRACHUD, CJI AND
HIMA KOHLI, JJ.]
Constitution of India:
Art. 226 – Odisha Administrative Tribunal-OAT – Abolition
C
of, by Notification No. GSR 552(E) dt 2 August 2019 – Constitutional
Validity of the Notification – Held: Abolition of OAT is constitutionally
valid – Challenge to the constitutional validity of the impugned
notification dated 2 August 2019 by which the OAT was abolished
is rejected - Administrative Tribunals Act, 1985 – s. 4(2) – General
Clauses Act, 1897 – s. 21. D
Article 226 – Odisha Administrative Tribunal-OAT – Abolition
of – Writ petition before the Orissa High Court alleging violation of
constitutional rights by abolition of OAT – Maintainability of – Held:
Writ petitioners entitled to invoke jurisdiction of the High Court u/
Art. 226. E
Arts. 323A and 323B – Administrative Tribunal –
Establishment of State Administrative Tribunals-SAT by the Union
Government, 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 abolishing F
SATs – Art. 323-A is a directory, enabling provision which confers
the Union Government with the discretion to establish an
administrative tribunal – Art. 323-A does not act as a bar to the
Union Government abolishing an administrative tribunal once it is
created – Administrative Tribunals Act, 1985.
G
Art. 14 – Notification dated 2.8. 2019 by which Odisha
Administrative Tribunal-OAT was abolished – If arbitrary and thus,
violative of Art. 14 – Held : Notification dated 2.08.2019 by which
the OAT was abolished is not violative of Art. 14 – State Government
did not consider any irrelevant or extraneous factors while arriving
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732 SUPREME COURT REPORTS [2023] 6 S.C.R.

A at the decision to request the Union Government to abolish the OAT
– Decision to abolish the OAT is itself not absurd or so unreasonable
that no reasonable person would have taken it – Administrative
Tribunals Act, 1985.
Art. 14 – Abolition of the Odisha Administrative Tribunal-
B OAT, if violative of the fundamental right of access to justice –
Held : Abolition of the OAT not violative of the fundamental right
of access to justice – Orissa High Court will hear cases which were
pending before the OAT prior to its abolition – Administrative
Tribunals Act, 1985.
C Art. 14 – Abolition of Odisha Administrative Tribunal-OAT –
Plea that Union and State Governments violated the principle of
natural justice by failing to provide the OAT Bar Association and
litigants before the OAT with an opportunity to be heard before
abolishing the OAT – Held: Principles of natural justice not violated
– Class of people who were affected by the decision to abolish the
D OAT did not have a right to be heard – Public at large (or some
sections of it) did not have a right to be heard before the policy
decision was taken – Principles of natural justice – Administrative
Tribunals Act,1985.
Art. 77 – Notification dated 2.08.2019 abolishing OAT – Not
E expressed in the name of the President of India – Validity of – Held:
Notification dated 2.08.2019 is valid though it is not expressed in
the name of the President of India – Non-compliance with Art.77
does not invalidate a notification or render it unconstitutional –
Administrative Tribunals Act, 1985.
F Administrative Tribunals Act,1985:
Establishment of Odisha Administrative Tribunal-OAT – Union
Government if rendered functus officio after establishing the OAT
– Held: Union Government did not become functus officio after
establishing the OAT – Doctrine of functus officio cannot ordinarily
G be applied in cases where the government is formulating and
implementing a policy.
Establishment of Odisha Administrative Tribunal-OAT – Plea
that State Government took advantage of its own wrong by ceasing
to fill the vacancies in the OAT – Held: State Government did not
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take advantage of its own wrong – It stopped filling the vacancies A
of the OAT only after deciding to abolish it – It did not rely on the
vacancies (and the consequent increase in pendency) created by its
inaction to abolish the OAT.
Odisha Administrative Tribunal-OAT – Judicial impact
assessment – Conduct of before abolishing the OAT - Failure by the B
Union Government, if vitiates its decision to abolish the OAT – Held:
Failure of the Union Government to conduct a judicial impact
assessment before abolishing the OAT does not vitiate its decision
to abolish the OAT – Directions to conduct a judicial impact
assessment in Rojer Mathew’s case were of a general nature and
did not prohibit the abolition of specific tribunals such as the OAT C
in the absence of a judicial impact assessment - However, the
Ministry of Law and Justice directed to conduct a judicial impact
assessment as directed by this Court in Rojer Mathew’s case.
General Clauses Act, 1897: s 21 – Applicability/ Invocation
of – To rescind the notification establishing the OAT, thereby D
abolishing the OAT – Held: Union Government acted in valid
exercise of its powers when it invoked s. 21 r/w s. 4(2) of the
Administrative Tribunals Act to rescind the notification establishing
the OAT – Decision to establish the OAT was an administrative
decision and not a quasi-judicial decision – Administrative decisions, E
unlike quasi-judicial decisions, may be reversed by the application
of s. 21 – Moreover, s. 21 is not repugnant to the subject- matter,
context and effect of the Administrative Tribunals Act and is in
harmony with its scheme and object – Administrative Tribunals Act,
1985 – s.4(2).
F
Words and Phrases - “ Functus officio” - Meaning of.
Dismissing the appeals, the Court
HELD : 1.1 The abolition of the Odisha Administrative
Tribunal-OAT was constitutionally valid for the following reasons:
G
a. The Writ Petitions instituted before the Orissa High
Court were maintainable because the appellants claimed that their
constitutional rights had been violated. They were therefore
entitled to invoke the jurisdiction of the High Court under Article
226 of the Constitution;
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A b. Article 323-A does not preclude the Union Government
from abolishing SATs because it is an enabling provision which
confers the Union Government with the power to establish an
administrative tribunal at its discretion (upon receiving a request
from the relevant State Government in terms of the Administrative
Tribunals Act). The legal and factual context of the power to
B
establish administrative tribunals, the purpose of this power and
the intention of the legislature establish that there is no duty to
exercise the power conferred by the Administrative Tribunals
Act, such that the enabling provision becomes a mandatory
provision;
C c. The Union Government acted in valid exercise of its
powers when it invoked Section 21 of the General Clauses Act
read with Section 4(2) of the Administrative Tribunals Act to
rescind the notification establishing the OAT because the
decision to establish the OAT was an administrative decision and
D not a quasi-judicial decision. Moreover, Section 21 of the General
Clauses Act is not repugnant to the subject- matter, context and
effect of the Administrative Tribunals Act and is in harmony with
its scheme and object;
d. The notification dated 2 August 2019 by which the OAT
E was abolished is not violative of Article 14 of the Constitution.
The State Government did not consider any irrelevant or
extraneous factors while arriving at the decision to request the
Union Government to abolish the OAT. The decision to abolish
the OAT is itself not absurd or so unreasonable that no reasonable
person would have taken it;
F
e. The principles of natural justice were not violated
because the class of people who were affected by the decision to
abolish the OAT did not have a right to be heard. The public at
large (or some sections of it) did not have a right to be heard
before the policy decision was taken;
G
f. The Union Government did not become functus officio
after establishing the OAT because the doctrine cannot ordinarily
be applied in cases where the government is formulating and
implementing a policy;

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g. The notification dated 2 August 2019 is valid though it is A
not expressed in the name of the President of India because non-
compliance with Article 77 of the Constitution does not invalidate
a notification or render it unconstitutional;
h. The abolition of the OAT is not violative of the
fundamental right of access to justice because the Orissa High B
Court will hear cases which were pending before the OAT prior
to its abolition;
i. The State Government did not take advantage of its own
wrong because it stopped filling the vacancies of the OAT only
after deciding to abolish it. It did not rely on the vacancies (and C
the consequent increase in pendency) created by its inaction to
abolish the OAT; and
j. The failure of the Union Government to conduct a judicial
impact assessment before abolishing the OAT does not vitiate
its decision to abolish the OAT because the directions in Rojer D
Mathew’s case were of a general nature and did not prohibit the
abolition of specific tribunals such as the OAT in the absence of
a judicial impact assessment. However, the Ministry of Law and
Justice is directed to conduct a judicial impact assessment as
directed by this Court in Rojer Mathew’s case. [Para 128][804-A-
E; 805-A-F] E

1.2 The challenge to the constitutional validity of the
impugned notification dated 2 August 2019 by which the OAT
was abolished is rejected. The judgment of the High Court is
upheld in terms of the conclusions recorded. [Para 129][805-F-
G] F
Writ Petitions instituted before the Orissa High Court were
maintainable.
2. Having alleged that the rights under Art. 14 were
violated by the abolition of the OAT, the appellants were entitled
G
to invoke the High Court’s jurisdiction under Article 226 of the
Constitution. [Para 31][765-E-F]
Ghulam Qadir v. Special Tribunal (2002) 1 SCC 33 :
[2001] 3 Suppl. SCR 504; State of Orissa v. Ram
Chandra Dev AIR 1964 SC 685 – referred to.
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A Article 323-A does not preclude the Union Government
from abolishing SATs
3.1 Clauses (1) and (2) of Article 323-A use the expression
“may,” indicating that Article 323-A does not compel Parliament
to enact a law to give effect to it. Parliament is entrusted with the
B discretion to enact a law which provides for the adjudication of
certain disputes by administrative tribunals. It is a permissive
provision. The provision is facilitative and enabling. However, in
certain cases, the power to do something may be coupled with a
duty to exercise that power. [Para 33, 34][766-H; 767-A-B]
C 3.2 The word “may” in Article 323-A of the Constitution is
not imparted with the character of the word “shall.” Article 323-
A is a directory, enabling provision which confers the Union
Government with the discretion to establish an administrative
tribunal. The corollary of this is that Article 323-A does not act
as a bar to the Union Government abolishing an administrative
D tribunal once it is created. [Para 42][771-C-D]
Official Liquidator v. Dharti Dhan (P) Ltd. (1977) 2
SCC 166 : [1977] 2 SCR 964; Dhampur Sugar Mills
Ltd. v. State of U.P. (2007) 8 SCC 338 : [2007] 10
SCR 245; Dilip K Basu v. State of West Bengal (2015)
E 8 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 the
General Clauses Act read with Section 4(2) of the Administrative
F Tribunals Act to rescind the notification establishing the OAT.
Section 21 of the General Clauses Act, is a rule of construction.
[Para 43][771-E]
4.2 The Union Government was not acting in a judicial
capacity when it set up the OAT. On the establishment of the
OAT, pending cases before the High Court were transferred to
G
the OAT. Indeed, the decision to establish an SAT is based on
policy and expediency. It is up to each State Government to
evaluate the need for an SAT within their state, to consider the
advantages and disadvantages as well as the financial,

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administrative, and other practical aspects of establishing an SAT. A
The Union Government may then establish the SAT upon
receiving a 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 reversed by the application of
B
Section 21 of the General Clauses Act. The applicability of Section
21 of the General Clauses Act does not stand excluded in the
instant case. The order establishing the OAT is an administrative
order. [Para 51, 52][774-E-H; 775-A]
4.3 The distinction between quasi-judicial and
administrative decisions has been invoked for the purpose of C
determining whether Section 21 of the General Clauses Act may
be invoked to reverse the decision to establish an SAT.
Administrative orders continue to be amenable to judicial review
in accordance with law. [Para 53][775-B]
Industrial Infrastructure Development Corpn. (Gwalior) D
M.P. Ltd. v. CIT (2018) 4 SCC 494 : [2018] 10 SCR
481 – held inapplicable.
Indian National Congress (I) v. Institute of Social
Welfare (2002) 5 SCC 685 : [2002] 3 SCR 1040;
Province of Bombay v. Khushaldas S. Advani (1950) E
SCC 551; Board of High School and Intermediate
Education v. Ghanshyam Das Gupta AIR 1962 SC 1110
: [1962] Suppl. SCR 36 – referred to.
Section 21 of the General Clauses Act is otherwise
applicable to the Administrative Tribunals Act F
5.1 Section 21 of the General Clauses Act can be invoked
when its application would not be repugnant to the subject-matter,
context, and effect of the statute and when it is in harmony with
its scheme and object. The court may refer to the provisions of
the statute in question to determine whether Section 21 of the G
General Clauses Act will be applicable. [Para 56][776-B]
5.2 The object of the Administrative Tribunals Act is to
reduce arrears and enable the provision of speedy justice to
litigants. Abolishing an SAT would not frustrate this objective
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A because SATs are not the only method by which the object is
capable of being achieved. Further, the effect of such an abolition
would not be to deprive litigants of a remedy because the cases
before the SAT would stand revived in the forum in which they
were pending prior to the establishment of that SAT. The subject
matter and the context of the Administrative Tribunals Act, too,
B
do not militate against the application of Section 21 of the General
Clauses Act. There is therefore nothing in the Administrative
Tribunals Act which is repugnant to the application of Section 21
of the General Clauses Act. The relevant State Government has
the implied power to issue a request to abolish the SAT in its
C state to the Union Government. The Union Government in turn
has the implied power to rescind the notification by which that
SAT was established, thereby abolishing the SAT. [Para 59][777-
B-E]
5.3 In the present case, there is no such impediment to the
D application of Section 21 of the General Clauses Act. The object
of the Administrative Tribunals Act would not stand frustrated if
an SAT is created and then abolished. The Union and State
Governments may take alternate routes (some of which may have
already been in operation, supplementing SATs) towards
achieving the same objective. [Para 62][778-F-G]
E
5.4. The appellants have also argued that the Union
Government’s power to abolish SATs must flow from the same
legislation that vests it with the power to establish them. It is
their contention that the Union Government does not have the
power to abolish SATs because the Administrative Tribunals Act
F does not provide for it. This argument fails for the simple reason
that the very purpose of Section 21 of the General Clauses Act is
to provide for contingencies such as the instant case when the
statute in question does not explicitly provide for the power to
add to, amend, vary, or rescind a notification (or order, rule, or
G by-law) which has been issued. Of course, the application of
Section 21 of the General Clauses Act is subject to the test laid
down in D N Ganguly’s case as well as the other requirements
mentioned in the provision itself. If the argument of the appellants
were to be accepted, Section 21 of the General Clauses Act would
be rendered otiose. It would not apply to any statute which does
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not explicitly provide for the power to add to, amend, vary, or A
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 would
be no need to rely on Section 21 of the General Clauses Act.
This is not a conceivable position because courts must interpret
B
statutes so as to give effect to their provisions rather than to
render them futile. [Para 63, 64][778-H; 779-A-D]
5.5 The appellants submitted that what cannot be done
directly cannot be done indirectly. Neither Article 323-A of the
Constitution nor the Administrative Tribunals Act prohibit the
abolition of SATs. Hence, it cannot be said that the Union C
Government is barred from abolishing the SATs “directly” and
that it has resorted to Section 21 of the General Clauses Act to
evade such a ban and “indirectly” abolish the OAT. The Union
Government’s reliance on Section 21 of the General Clauses Act
to abolish the OAT is legally permissible. [Para 65][779-D-F] D
5.6 The transfer of cases from the OAT to the Orissa High
Court is, properly characterized, a revival of the latter’s
jurisdiction. The impugned judgment that the Orissa High Court’s
jurisdiction in relation to matters pending before the OAT is not
being created or enlarged by the abolition of the OAT. It E
previously exercised such jurisdiction and is merely resuming
its jurisdiction over the same subject matter. The natural
consequence of the Union Government rescinding the notification
establishing the OAT would be to restore the status quo ante.
Nothing in either Article 323-A of the Constitution or the
Administrative Tribunals Act prevents such a revival. Further, F
the absence of a provision in the Constitution which explicitly
permits a revival does not act as a barrier to such a revival. The
Union Government’s reliance on Section 21 of the General
Clauses Act is in accordance with law. [Para 71, 72][781-F-H;
782-A-B] G
Lt. Governor of H.P. Avinash Sharma (1970) 2 SCC
149 : [1971] 1 SCR 413 – distinguished.
A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 : [1988]
1 Suppl. SCR 1 – held inapplicable.
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740 SUPREME COURT REPORTS [2023] 6 S.C.R.

A State of Bihar v. D N Ganguly 1959 SCR 1191; Kamla
Prasad Khetan v. Union of India 1957 SCR 1052; State
of M.P. v. Ajay Singh (1993) 1 SCC 302 : [1992] 2
Suppl. SCR 274; Tamil Nadu Government All
Department Watchman and Basic Servants Association
v. Union of India 2005 SCC OnLine Mad 333; Zakir
B
Abdul Mirajkar v. State of Maharashtra (2022) SCC
OnLine SC 1092; M. Pentiah v. Muddala
Veeramallappa (1961) 2 SCR 295 – referred to.
The notification dated 2 August 2019 is not violative of
Article 14 of the Constitution
C
6.1 While arriving at the decision to abolish the OAT, the
State Government considered relevant reasons. It considered
whether the OAT was capable of fulfilling the purpose for which
it was established after the decision in L. Chandra Kumar. It
placed in the balance the expenditure incurred to operate the
D OAT as well as the rate of disposal of cases. These reasons were
not irrelevant to the decision as to whether a tribunal ought to be
continued;
6.2 The State Government’s act of consulting the Orissa
High Court (upon receiving a request to this effect from the Union
E Government) before deciding to abolish the OAT was not
irrelevant or extraneous. The cases before the OAT were to be
transferred to the Orissa High Court and the opinion of the latter
was relevant to State Government’s decision.
6.3 The State Government did not consider factors which
F were irrelevant or extraneous to its decision. The decision to
abolish the OAT was not one which was so absurd that no
reasonable person or authority would ever have taken it. The
decision to abolish a tribunal which it had established, based on
an analysis of relevant factors is, by no stretch of imagination, an
G absurd or unreasonable decision. It does not violate Article 14 of
the Constitution. [Para 82][788-A-E]
6.4 The decision to establish, continue or abolish the OAT
is in the nature of a policy formulated and implemented by the
State Government (acting with the Union Government under the
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Administrative Tribunals Act). The public at large does not have A
a right to be heard before a policy is formulated and implemented.
The process of consultation with the public, with experts, and
with other stakeholders may be desirable and would facilitate a
participatory democracy. However, each member of the class that
would be impacted by a policy decision cannot be afforded an
B
opportunity of hearing. This would not only be time consuming
and expensive, but deeply impractical. [Para 86][789-G; 790-A-
B]
6.5 The absence of a right to be heard before the formulation
or implementation of a policy does not mean that affected parties
are precluded from challenging the policy in a court of law. What C
it means is that a policy decision cannot be struck down on the
ground that it was arrived at without offering the members of the
public at large (or some section of it) an opportunity to be heard.
The challenge to a policy may be sustainable if it is found to vitiate
constitutional rights or is otherwise in breach of a mandate of D
law. Thus, the decision to abolish the OAT cannot be assailed on
the ground that there was a violation of the principles of natural
justice. Article 14 of the Constitution has not been violated. [Para
88, 89][791-B-D]
BALCO Employees’ Union (Regd.) v. Union of India E
(2002) 2 SCC 333 : [2001] 5 Suppl. SCR 511 – relied
on.
L. Chandra Kumar v. Union of India (1997) 3 SCC
261 : [1997] 2 SCR 1186; E.P. Royappa v. State of T.N.
(1974) 4 SCC 3 : [1974] 2 SCR 348; G.B. Mahajan v. F
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; Punjab
Communications Ltd. v. Union of India (1999) 4 SCC
727 : [1999] 2 SCR 1033; Union of India v.
International Trading Co. (2003) 5 SCC 437 : [2003] G
1 Suppl. SCR 55; Om Kumar v. Union of India AIR
(2000) SC 3689 : [2000] 4 Suppl. SCR 693; Teri Oat
Estates (P) Ltd. v. UT, Chandigarh (2004) 2 SCC 130 :
[2003] 6 Suppl. SCR 1235; M.P. High Court Bar Assn.
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A v. Union of India (2004) 11 SCC 766 : [2004] 4 Suppl.
SCR 520 – referred to.
Associated Provincial Picture Houses, Limited
Wednesbury Corporation [1948] 1 K.B. 223 – referred
to.
B Union Government did not become functus officio after
establishing the OAT
7.1 The doctrine of functus officio gives effect to the
principle of finality. Once a judge or a quasi-judicial authority has
rendered a decision, it is not open to her to revisit the decision
C and amend, correct, clarify, or reverse it (except in the exercise
of the power of review, conferred by law). Once a judicial or quasi-
judicial decision attains finality, it is subject to change only in
proceedings before the appellate court. [Para 92][791-G-H]
7.2 The doctrine of functus officio exists to provide a clear
D point where the adjudicative process ends and to bring quietus
to the dispute. Without it, decision-making bodies such as courts
could endlessly revisit their decisions. With a definitive endpoint
to a case before a court or quasi-judicial authority, parties are
free to seek judicial review or to prefer an appeal. Alternatively,
E their rights are determined with finality. Similar considerations
do not apply to decisions by the state which are based entirely on
policy or expediency. [Para 94][792-E-F]
7.3 The appellants’ argument that the Union Government
was rendered functus officio after establishing the OAT does not
F stand scrutiny. The decision to establish the OAT was
administrative and based on policy considerations. If the doctrine
of functus officio were to be applied to the sphere of administrative
decision-making by the state, its executive power would be
crippled. The state would find itself unable to change or reverse
any policy or policy-based decision and its functioning would grind
G to a halt. All policies would attain finality and any change would
be close to impossible to effectuate. [Para 95][792-G; 793-A]
7.4 This would impact not only major policy decisions but
also minor ones. Major policy decisions such as those concerning
subsidies, corporate governance, housing, education and social
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welfare would be frozen if the doctrine of functus officio were to A
be applied to administrative decisions. This is not conceivable
because it would defeat the purpose of having a government and
the foundation of governance. By their very nature, policies are
subject to change depending on the circumstances prevailing in
society at any given time. The doctrine of functus officio cannot
B
ordinarily be applied in cases where the government is formulating
and implementing a 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 an
SAT. Similarly, the State and Union Governments cannot be said
to have fulfilled the purpose of their creation and to be of no C
further virtue or effect once they have established an SAT. The
state may revisit its policy decisions in accordance with law. For
these reasons, the Union Government was not rendered functus
officio after establishing the OAT. [Para 97][793-D-E]
Hari Singh Mann v. Harbhajan Singh Bajwa (2001) 1 D
SCC 169 : [2000] 4 Suppl. SCR 313 – referred to.
P Ramanatha Aiyer’s The Law Lexicon (1997 edition);
Black’s Law Dictionary (5th edition) – referred to.
The notification dated 2 August 2019 is valid despite not E
being expressed in the name of the President of India
8.1 A notification which is not in compliance with clause (1)
of Article 77 is not invalid, unconstitutional or non-est for that
reason alone. Rather, the irrebuttable presumption that the
notification was issued by the President of India (acting for the F
Union Government) is no longer available to the Union
Government. The notification continues to be valid and it is open
to the Union Government to prove that the order was indeed
issued by the appropriate authority. [Para 101][795-F-G]
8.2 In the instant case, the notification dated 2 August 2019
G
was not issued in the name of the President. However, this does
not render the notification invalid. The effect of not complying
with Article 77 is that the Union Government cannot claim the
benefit of the irrebuttable presumption that the notification dated

H
744 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 2 August 2019 was issued by the President. Hence, the appellants’
submission that the notification dated 2 August 2019 is invalid
and unconstitutional is specious. [Para 102][795-G-H; 796-A]
8.3 Both the notification dated 4 July 1986 and the
notification dated 2 August 2019 were, in substance, issued by
B the President (acting for the Union Government). The notifications
were published in the Gazette of India in accordance with law and
there is nothing on record to support the suggestion that an
authority which is not empowered to issue the notification has
issued it. To the contrary, Section 4 of the Administrative
Tribunals Act empowers the Union Government to issue a
C notification establishing the OAT and the attendant power to
rescind a notification so issued is also available to the Union
Government. The issuance of both notifications was an exercise
of the Union Government’s statutory power under the
Administrative Tribunals Act. [Para 104][796-C-E]
D 8.4 Article 77 is a directory provision. Article 77(1) refers
to the form 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) of Article 77. It does not have any bearing on
the process of decision-making itself. The public or the citizenry
E would stand to suffer most from the consequences of declaring
an order that is not expressed in the name of the President null
and void. [Para 107][797-D-E]
8.5 In the instant case, the notification dated 2 August 2019
was issued in exercise of the statutory powers under the
F Administrative Tribunals Act. Thus, the notification dated 2
August 2019 is valid despite not being expressed in the name of
the 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 Kumar
G Vaish (2011) 8 SCC 670 : [2011] 13 SCR 754; Gulf
Goans Hotel Co. Ltd. v. Union of India (2014) 10 SCC
673 : [2014] 10 SCR 536 – held inapplicable.
Air India Cabin Crew Assn. v. Yeshaswinee Merchant
(2003) 6 SCC 277 : [2003] 1 Suppl. SCR 455 – referred
to.
H
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UNION OF INDIA

Abolition of the OAT is not violative of the fundamental A
right of access to justice
9.1 The fundamental right of access to justice is no doubt a
crucial 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 by B
statute or the Constitution. It is an undeniable fact that some
courts and forums will be located in some towns and cities and
not others. Some or the other litigants will be required to travel
some distance to access a particular forum or court. [Para
112][799-G-H]
C
9.2 The Orissa High Court has established benches which
will operate virtually in multiple cities and towns across the state.
This negates the appellants’ argument that the Orissa High Court
is less accessible than the OAT. In fact, the number of virtual
benches of the High Court is greater than the number of benches
of the OAT. Litigants from across the state can access the High D
Court with greater ease than they could access the OAT. [Para
114][800-E]
9.3 Litigants may therefore approach the Orissa High Court
for the resolution of disputes. The abolition of the OAT does not
leave litigants without a remedy or without a forum to adjudicate E
the dispute in question. It is therefore not violative of the
fundamental right of access to justice. [Para 115][800-F]
Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509 :
[2016] 9 SCR 560 – relied on.
F
The State Government did not take advantage of its own
wrong
10. The State Government discontinued appointments to
the OAT as a result of its decision to abolish the OAT and not
vice versa. The State Government based its decision on an
G
evaluation of the OAT’s functioning in the year 2014, which was
prior 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 made
the OAT non-functional. [Para 118][801-E-F]
H
746 SUPREME COURT REPORTS [2023] 6 S.C.R.

A Failure of the Union Government to conduct a judicial
impact assessment before abolishing the OAT does not vitiate
its decision to abolish the OAT
11.1 The direction to conduct a judicial impact assessment
in Rojer Mathew’s case was of a general nature. It was not geared
B towards proposals to abolish specific tribunals such as the OAT.
Rather, a need was felt to analyse the consequences of the
restructuring of tribunals by the Finance Act 2017 and a writ of
mandamus was issued in this regard to the Ministry of Law and
Justice. The judicial impact assessment was also directed to be
conducted in order to better understand the case load, efficacy,
C
financial impact, and accessibility of tribunals at large, in addition
to the filling of vacancies. Neither the majority opinion authored
by Ranjan Gogoi, CJI nor the opinions of Dr. DY Chandrachud,
J. or Deepak Gupta, J. contain a direction to the effect that a
tribunal shall not be abolished in the absence of a judicial impact
D assessment. In the instant case, the Union Government issued
the notification dated 2 August 2019 in a valid exercise of its
powers under Section 21 of the General Clauses Act. The failure
to conduct a judicial impact assessment does not vitiate its
decision to abolish the OAT. Nothing in the judgment in Rojer
Mathew’s case also indicates the need for the Union Government
E
to 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 Government
and more specifically, the Ministry of Law and Justice may
dispense with the directions of this Court in Rojer Mathew’s case.
F
The judgment was delivered on 13 November 2019. More than
three years have since passed and the Ministry of Law and Justice
is yet to conduct a judicial impact assessment. An assessment
such as the one directed to be conducted would only shed light
on the impediments faced in the delivery of justice. The lack of
G an assessment precludes any well-informed, intelligent action
concerning tribunals in the country (as a whole). This, in turn,
has cascading effects for the citizenry, which is deprived of a well-
oiled machinery by which it can access justice. Therefore the
directions of this Court in Rojer Mathew’s case is reiterated and
H
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the Ministry of Law and Justice is directed to conduct a judicial A
impact assessment at the earliest. [Para 123, 124][803-B-D]
Rojer Mathew v. South Indian Bank Ltd. (2020) 6 SCC
1 : [2019] 16 SCR 1 – followed.
Case Law Reference
B
[1997] 2 SCR 1186 referred to Para 7
[2004] 4 Suppl. SCR 520 referred to Para 24
[2001] 3 Suppl. SCR 504 referred to Para 29
AIR 1964 SC 685 referred to Para 30 C

[1977] 2 SCR 964 referred to Para 34
[2007] 10 SCR 245 referred to Para 35
[2015] 7 SCR 814 referred to Para 40
D
[2002] 3 SCR 1040 referred to Para 45
(1950) SCC 551 referred to Para 46
[1962] Suppl. SCR 36 referred to Para 48
[2018] 10 SCR 481 held inapplicable Para 52 E
1959 SCR 1191 referred to Para 54
1957 SCR 1052 referred to Para 55
[1971] 1 SCR 413 distinguished Para 60
F
[1992] 2 Suppl. SCR 274 referred to Para 60
(1961) 2 SCR 295 referred to Para 64
[1988] 1 Suppl. SCR 1 held inapplicable Para 71
[1974] 2 SCR 348 referred to Para 74 G
[1990] 3 Suppl. SCR 20 referred to Para 75
[1994] 2 Suppl. SCR 122 referred to Para 75
[1999] 2 SCR 1033 referred to Para 75
H
748 SUPREME COURT REPORTS [2023] 6 S.C.R.

A [2003] 1 Suppl. SCR 55 referred to Para 75
[2000] 4 Suppl. SCR 693 referred to Para 84
[2003] 6 Suppl. SCR 1235 referred to Para 84
[2001] 5 Suppl. SCR 511 relied on Para 87
B
[2000] 4 Suppl. SCR 313 referred to Para 93
[2003] 1 Suppl. SCR 455 referred to Para 100
(1952) 1 SCC 372 held inapplicable Para 107

C [2011] 13 SCR 754 held inapplicable Para 108
[2014] 10 SCR 536 held inapplicable Para 109
[2016] 9 SCR 560 relied on Para 113
[2019] 16 SCR 1 followed Para 122, 123,
D 124, 128(j)
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6805
of 2022.
From the Judgment and Order dated 07.06.2021 of the High Court
E of 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.
F Nikita Jaydevan, Ms. Varnalee Mishra, Dr. Aman Hingorani, Kedar Nath
Tripathy, 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 Kr
G Tyagi, Ms. Swarupama Chaturvedi, Ms. Shraddha Deshmukh, Shiv
Mangal Sharma, Arvind Kumar Sharma, C. Ravichandran Iyer, Advs.
for the Respondents.

H
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UNION OF INDIA

The Judgment of the Court was delivered by A
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents*
A. Background .............................................................................. 4
i. Factual background ............................................................. 4 B
ii. The impugned judgment .................................................. 10
B. Submissions ............................................................................. 12
C. Issues ....................................................................................... 17
D. Analysis ................................................................................... 19 C
i. An overview of the proceedings arising from the
abolition of the Madhya Pradesh Administrative Tribunal
and the Tamil Nadu Administrative Tribunal .................... 19
a. The abolition of the MPAT ........................................... 19 D
b. The abolition of the TNAT ........................................... 21
ii. The Writ Petitions instituted before the Orissa
High Court were maintainable ........................................... 23
iii. Article 323-A does not preclude the Union E
Government from abolishing SATs .................................... 25
iv. Applicability of Section 21 of the General Clauses
Act ........................................................................................... 32
a. There is no bar to the applicability of Section 21 of F
the General Clauses Act to the administrative
order establishing the OAT ........................................... 33
b. Section 21 of the General Clauses Act is
otherwise applicable to the Administrative Tribunals G
Act ................................................................................ 37
v. The notification dated 2 August 2019 is not violative of
Article 14 of the Constitution ............................................. 47
*Ed. Note : Pagination in the Table of Contents is as per the original judgment. H
750 SUPREME COURT REPORTS [2023] 6 S.C.R.

A a. The notification dated 2 August 2019 is not absurd or
based on irrelevant or extraneous considerations ......... 47
b. The principles of natural justice have not been
violated ......................................................................... 56
B vi. The Union Government did not become functus officio
after establishing the OAT .................................................. 58
vii. The notification dated 2 August 2019 is valid despite
not being expressed in the name of the President of
C
India ........................................................................................ 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 own
D
wrong ....................................................................................... 70
x. The failure of the Union Government to conduct a
judicial impact assessment before abolishing the OAT
does not vitiate its decision to abolish the OAT ............. 71
E
xi. Miscellaneous contentions .................................................. 74
E. Findings and conclusion ....................................................... 75
1. IA No. 52385 of 2022 (application for intervention by Mr C
Ravichandran Iyer) is allowed.
F
A. Background
i. Factual background
2. This appeal arises from a judgment of the Orissa High Court
dated 7 June 2021 in a batch of writ petitions challenging the abolition of
G the Odisha Administrative Tribunal.1 Before setting out the facts which
gave rise to the issues in this appeal, it is necessary to understand the
context in which they arose.
3. Parliament inserted Part XIV-A of the Constitution of India by
the Constitution (Forty-second Amendment) Act 1976. Part XIV-A con-
H 1
“OAT”
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sists of two articles, Articles 323A and 323B. Article 323A empowers A
Parliament to provide for the adjudication of certain disputes by admin-
istrative tribunals. Disputes concerning the recruitment and conditions
of 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 of
B
India or of any corporation owned or controlled by the Government,
may be adjudicated by administrative tribunals. Article 323B empowers
the 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- C
ments of Objects and Reasons of this legislation records that it was
enacted in order to give effect to Article 323A, and also because:
“a large number of cases relating to service matters are pending
before the various courts. It is expected that the setting up of
such Administrative Tribunals to deal exclusively with service D
matters would go a long way in not only reducing the burden of
the various courts and thereby giving them more time to deal with
other cases expeditiously but would also provide to the persons
covered by the Administrative Tribunals speedy relief in respect
of their grievances.” E
5. Section 4(1) of the Administrative Tribunals Act provides that
the Central Government shall establish an administrative tribunal known
as the “Central Administrative Tribunal”3 to adjudicate disputes concerning
the recruitment and conditions of service of persons in connection with
posts under the Union or All-India Service,4 including disputes with respect F
to remuneration, pension, tenure, leave, and disciplinary matters.5
In terms of Section 4(2) of the Administrative Tribunals Act, the
Central Government may establish an administrative tribunal for a
particular state, upon receiving a request in this regard from the
concerned State Government. Once created, the state administrative G
tribunal6 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” H
752 SUPREME COURT REPORTS [2023] 6 S.C.R.

A concerning the recruitment and conditions of service of persons in
connection with posts under the concerned state or any civil service of
that state,7 including disputes with respect to remuneration, pension,
tenure, leave, and disciplinary matters.8
6. The SAT is prohibited from exercising jurisdiction, authority, or
B power over a matter which the CAT’s jurisdiction extends.9 While Section
4(2) of the Administrative Tribunals Act governs the establishment of
SATs, there is no corresponding provision which stipulates the procedure
to be followed to discontinue or abolish them. In terms of Section 29 of
the Administrative Tribunals Act, suits or other proceedings pending before
courts or other authorities which would have been within the jurisdiction
C of the SAT if the cause of action in such suit or proceeding had arisen
after the establishment of the SAT, stand transferred to the SAT on the
date of its establishment. In other words, cases pending before other
fora (including cases pending before the High Court of the relevant state
but excluding those pending before the Supreme Court) stand transferred
D to 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 Government
to establish an SAT, and the Central Government issued notifications
E establishing them. Odisha was one amongst these states. Upon receiving
a request from the State of Odisha, the Central Government established
the OAT on 4 July 1986 by issuing Notification No. GSR 934(E), which
was published in the Gazette of India. The OAT commenced functioning
soon thereafter.

F 7. At this time, Section 28 of the Administrative Tribunals Act
was still in force. Section 28 excluded the jurisdiction of all courts except
the Supreme Court or the Industrial Tribunal or Labour Court in relation
to matters over which the CAT and the SAT exercised jurisdiction. Section
28 was enacted pursuant to the enabling provision in Article 323-A of
the Constitution, namely clause 2(d) of Article 323-A. Clause 2(d)
G provided that Parliament may exclude the jurisdiction of all courts, except
of the Supreme Court under Article 136 of the Constitution with respect
to 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
H Section 15(4), Administrative Tribunals Act
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under clause 1 of Article 323-A. The effect of Section 28 of the A
Administrative Tribunals Act, therefore, was that appeals from the OAT
lay directly to the Supreme Court under Article 136 of the Constitution.
However, this changed with the decision of this Court in L. Chandra
Kumar v. Union of India (1997) 3 SCC 261. In its decision in that
case, this Court inter alia ruled that:
B
a. Clause 2(d) of Article 323-A and clause 3(d) of Article 323-
B were unconstitutional to the extent that they excluded the
jurisdiction of the High Courts under Articles 226 and 227
and of the Supreme Court under Article 32 of the Constitution;
b. Section 28 of the Administrative Tribunals Act was C
unconstitutional as were ‘exclusion of jurisdiction’ clauses in
all other legislation enacted under Articles 323-A and 323-
B;c. The jurisdiction conferred upon the High Courts under
Articles 226 and 227 and upon the Supreme Court under
Article 32 of the Constitution form a part of the basic structure
of the Constitution; and D

d. Other courts and Tribunals may perform a supplemental role
in discharging the powers conferred by Articles 226/227 and
32 of the Constitution.
As a consequence of this decision, challenges under Article 226 E
of the Constitution to the decisions rendered by the SATs lay to Division
Benches of the respective High Courts within whose jurisdiction the
SATs operated. The Supreme Court’s jurisdiction could be invoked under
Article 136 against the decisions of the High Courts.
8. The decision in L. Chandra Kumar (supra) seems to have F
influenced the State of Odisha to request the Union Government to abolish
the OAT. By a letter dated 16 September 2015, the Chief Secretary to
the Government of Odisha requested the Secretary to the Government
of India, Department of Personnel and Training to issue a notification
under the Administrative Tribunals Act abolishing the OAT. The letter
recorded the State Government’s reason for making this request in the G
following terms:
“Government of Odisha is of the view that the Tribunal is not able
to serve its original objectives, particularly after the Hon’ble Apex
Court gave the Judgment in L. Chandra Kumar case of 1997. As
a result of this judgment, the very purpose of having a State H
754 SUPREME COURT REPORTS [2023] 6 S.C.R.

A Administrative Tribunal (SAT) for speedy redressal of the
grievances of the State Government employees is not fulfilled as
any way the aggrieved parties have to approach the Hon’ble High
Court before approaching the Apex Court for a final verdict.”
A note annexed to the letter dated 16 September 2015 elaborated
B on the State Government’s rationale for seeking to abolish the OAT:
“As a consequence of the landmark judgment of the Supreme
Court [in L. Chandra Kumar], the objective of the establishment
of the Tribunal to give quick justice to the government employees
was defeated… The aggrieved parties are approaching the High
C Court against OAT orders and then the Supreme Court resulting
in protracted litigation … Government is incurring a significant
sum of expenditure on the OAT … The abolition of the Tribunal
will reduce the burden of litigation for the Government and will
also reduce the time for resolution of disputes / litigation.”

D Evidently, the State of Odisha was of the opinion that the raison
d’etre of the OAT was defeated – the fact that the OAT’s decisions
were subject to two tiers of challenge (first before the High Court and
then the Supreme Court) meant that speedy justice could not be delivered.
The State Government proposed to transfer the cases pending before
the OAT to the Orissa High Court.
E
9. On 12 January 2016, the Union Government requested the State
of Odisha to provide information about the Orissa High Court’s views
on the proposal to abolish the OAT, the legal mechanism by which the
cases pending before the OAT could be transferred to the Orissa High
Court, and regarding the plan of action with respect to the employees of
F the OAT. Accordingly, on 1 February 2016, the State of Odisha solicited
the Orissa High Court’s views on the matter. Thereafter, the Union
Government communicated its ‘in-principle’ approval of the proposal to
abolish the OAT to the State of Odisha.
10. By a letter dated 5 February 2019 to the Union Government
G and the State of Odisha, the Orissa High Court conveyed that that it had
resolved to accept the decision to abolish the OAT and the attendant
proposals regarding the transfer of employees and pending cases. On
22 February 2019, the State of Odisha wrote to the Union of India,
intimating it that the employees of the OAT would be “suitably adjusted
in other heads of the department under the Government of Odisha
H
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depending upon the vacancies in equivalent cadre and post.” The letter A
also stated that the State Government had decided to transfer the cases
pending before the OAT to the Orissa High Court and that the latter had
accepted this decision.
11. The Union Government took recourse to Section 21 of the
General Clauses Act 189710 and abolished the OAT by issuing Notification B
GSR 552(E) on 2 August 2019. The relevant portion of this notification
is 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 of C
1897), the Central Government hereby rescinds the said notification
number GSR 934(E), dated the 4th July 1986, except as respects
things done or omitted to be done before such rescission, with
effect from the date of publication of this notification in the Gazette
of India.”
D
ii. The impugned judgment
12. In 2019, each of the appellants filed a Writ Petition before the
Orissa High Court for quashing the notification dated 2 August 2019 (as
well as the decision of the Cabinet of the State Government dated 9
September 2015 to abolish the OAT). After considering the rival sub- E
missions, the Orissa High Court dismissed the Writ Petitions by its com-
mon judgment dated 7 June 2021, for the following reasons:
13.
a. Article 323-A is an enabling provision. It does not make it
mandatory for the Union Government to establish F
administrative tribunals or refrain from abolishing them once
they are established;
b. The decision to abolish the OAT is an administrative decision.
There is therefore no bar to the Union Government invoking
Section 21 of the General Clauses Act read with Section 4(2) G
of the Administrative Tribunals Act to rescind the notification
establishing the OAT;
c. The invocation of Section 21 of the General Clauses Act does
not result in a denial of justice because the cases pending
10
“General Clauses Act” H
756 SUPREME COURT REPORTS [2023] 6 S.C.R.

A before 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 be
done indirectly is not applicable because neither Article 323-
A of the Constitution nor Section 4(2) of the Administrative
B Tribunals Act prohibits the Union or State Government from
abolishing an SAT;
e. The Union Government was not rendered functus-officio after
it established the OAT because it was exercising an
administrative function and not a judicial or quasi-judicial
C function;
f. The jurisdiction of the Orissa High Court was neither created
nor enlarged as a consequence of the notification dated 2
August 2019. Rather, the High Court’s jurisdiction was revived;
g. The decision-making process of the Union and State
D Governments 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 decision
to abolish the OAT was motivated by government servants
seeking to avoid contempt proceedings before the OAT. In
E any event, all cases including contempt proceedings would be
heard by the Orissa High Court; and
i. The notification dated 2 August 2019 was not vitiated for the
reason that it did not state that it had been issued in the name
of the President of India.
F
The High Court also observed that the procedure adopted by the
Union Government may have been rendered arbitrary if it had failed to
ensure that the High Court was consulted prior to abolishing the OAT
because such a decision would directly impact the functioning of the
High Court.
G 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 this
appeal.
H
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15. Their submissions were: A
a. Article 323-A of the Constitution is in the nature of a mandate.
It requires the Union Government to establish SATs and does
not empower the Union Government to abolish a SAT, once
established;
b. Section 21 of the General Clauses Act cannot be invoked to B
abolish the OAT. The power to abolish a SAT must flow from
the same legislation that vests the Union Government with
the power to establish SATs. The Administrative Tribunals
Act does not vest either the Union Government or the State
Government with the power to abolish SATs. In any event, C
the conditions for the invocation of Section 21 of the General
Clauses Act are not satisfied. The abolition of the OAT was
therefore without legal basis;
c. The Administrative Tribunal (Amendment) Bill 2006 was
introduced to provide an enabling provision for the abolition of D
SATs and for the transfer of pending cases from the abolished
SAT to the relevant High Court. This bill was not enacted into
law and therefore the Union Government and the State
Governments do not have the power to abolish SATs;
d. The State Government’s interpretation of the decision in L. E
Chandra Kumar (supra) as reducing the efficiency of the
adjudication process for service matters is incorrect and
unreasonable;
e. The OAT has two regular benches and two circuit benches
but the High Court has a single bench in Cuttack. The abolition F
of the OAT makes the court system less accessible to litigants
and violates the fundamental right of access to justice;
f. The Union and State Governments have violated the principles
of natural justice by failing to provide the OAT Bar Association
and the litigants before the OAT with an opportunity to be
G
heard before abolishing the OAT. This is also violative of
Article 14 of the Constitution;
g. The notification dated 2 August 2019 by which the OAT was
abolished is invalid because it is not expressed in the name of
the President of India in terms of Article 77 of the Constitution;
H
758 SUPREME COURT REPORTS [2023] 6 S.C.R.

A h. The Constitution does not envisage a transfer of cases from
any court to a particular High Court except as specified in
Article 228 of the Constitution;
i. The State Government is trying to take advantage of its own
wrong by failing to fill the vacancies in the OAT and creating
B the conditions for the abolition of the OAT. The failure of the
State Government to fill the vacancies is also a breach of
Article 256 of the Constitution;
j. The abolition of the OAT has the effect of enlarging the
jurisdiction of the Orissa High Court but Parliament alone has
C the power to create or enlarge jurisdiction;
k. The real reason for the abolition of the OAT is that officials in
Odisha faced charges of contempt before the OAT and sought
to avoid these proceedings by having the OAT abolished;
l. A judicial impact assessment ought to have been carried out
D before abolishing the OAT;
m. Once the Union Government established the OAT, it became
functus officio; and
n. The Union Government ought to have obtained the permission
of this Court before issuing the notification dated 2 August
E
2019.
16. The submissions urged on behalf of the appellants have been
opposed by the Union of India and the State of Odisha. Mr. Balbir Singh,
Additional Solicitor General made the following submissions for the Union
of India:
F
a. Section 4(2) of the Administrative Tribunals Act enables the
Union Government to establish an SAT upon receiving a
request in this behalf from the State Government.
Consequently, it is the prerogative of the State Government to
establish, continue, or abolish the relevant SAT;
G
b. Section 21 of the General Clauses Act may be pressed into
service to abolish an SAT. Neither the Constitution nor the
Administrative Tribunals Act is required to be amended to
give the Union Government the power to abolish an SAT;

H
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UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

c. The fundamental right to justice has not been violated because A
the cases pending before the OAT were transferred to the
Orissa High Court;
17. Mr. Ashok Kr Parija, learned Advocate General for the State
of Odisha supplemented the arguments put forward by the Union of
India. He urged that: B
a. The Writ Petitions before the Orissa High Court which led to
the impugned judgment were not maintainable because the
rights of the petitioners were not affected by the abolition of
the OAT. Litigants cannot claim a fundamental right to access
the OAT; C
b. The State Government took a policy decision to abolish the
OAT, in light of the low rate of disposal of cases by the OAT.
The State Government is also of the view that the purpose of
the OAT (to ensure speedy disposal of cases) is not served
subsequent to the decision of this Court in L. Chandra Kumar D
(supra);
c. The word “may” in Section 4 of the Administrative Tribunals
Act is unambiguous and must be interpreted strictly.
d. An intra-court appeal is different from an appeal to a separate
forum and the former streamlines the process of adjudication. E
It cannot be said that there is no advantage to be had by
abolishing the OAT;
e. The principles of natural justice were not violated;
The abolition of the OAT does not make the court system less
F
accessible to litigants because they would have been required
to travel to Cuttack in any event in order to participate in the
writ proceedings before the Orissa High Court. The number
of cases transferred from the Circuit Benches of the OAT at
Berhampur and Sambalpur to the Orissa High Court are 275
and 235 respectively. The Principal Bench at Bhubaneswar G
and the regular Bench at Cuttack, on the other hand, had 11,483
and 32,911 cases respectively, which were transferred to the
Orissa High Court. Financial hardships faced by litigants can
be alleviated through compensation schemes which exist for
this purpose; and
H
760 SUPREME COURT REPORTS [2023] 6 S.C.R.

A f. It was not mandatory for the government to conduct a judicial
impact assessment test before abolishing the OAT.
18. In its counter affidavit, the Orissa High Court detailed the
action taken to transfer the cases pending before the OAT to the High
Court – nodal officers were appointed to monitor the transfer, a
B committee was constituted to oversee the transfer, the committee devised
a methodology for shifting pending cases, and a dedicated branch called
the ‘OA Branch’ was created to deal exclusively with transferred
matters.
C. Issues
C 19. Based on the submissions which have been canvassed by the
parties, the issues which arise for determination are:
a. Whether the Writ Petitions instituted by the appellants before
the Orissa High Court were maintainable;

D b. Whether Article 323-A of the Constitution makes it manda-
tory 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, thereby
abolishing the OAT;
d. Whether the abolition of the OAT is arbitrary and therefore
E
violative of Article 14 of the Constitution;
e. Whether the abolition of the OAT is violative of the
fundamental right of access to justice;
f. Whether the Union and State Governments have violated the
F principles of natural justice by failing to provide the OAT Bar
Association and the litigants before the OAT with an
opportunity to be heard before arriving at a decision to abolish
the OAT;
g. Whether the notification dated 2 August 2019 is invalid because
G it is not expressed in the name of the President of India;
h. Whether the transfer of cases from the OAT to the Orissa
High Court has the effect of enlarging the jurisdiction of the
latter;
i. Whether the State Government took advantage of its own
H wrong by ceasing to fill the vacancies in the OAT;
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 761
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

j. Whether the failure of the Union Government to conduct a A
judicial impact assessment before abolishing the OAT vitiates
its decision to abolish the OAT; and
k. Whether the Union Government became functus officio after
establishing the OAT.
D. Analysis B

i. An overview of the proceedings arising from the abolition of
the Madhya Pradesh Administrative Tribunal11 and the Tamil
Nadu Administrative Tribunal12
20. The parties to this appeal have advanced some arguments in C
relation to decisions arising from the abolition of certain other SATs. It is
therefore necessary to understand the decisions of this Court in relation
to the abolition of those SATs. To this end, the abolition of the MPAT and
the TNAT as well as the legal proceedings arising from those decisions
are briefly discussed. The effect of these proceedings on the decision in
this case is also examined. D
a. The abolition of the MPAT
21. The State of Madhya Pradesh was reorganized into the State
of Madhya Pradesh and the State of Chhattisgarh with the enactment of
the Madhya Pradesh Reorganization Act 2000. Section 74(1)(ii) of this
E
legislation vested the State Governments of these two states with the
power to abolish “every 1. Commission, Authority, Tribunal, University,
Board or any other body constituted under a Central Act, State Act or
Provincial Act and having jurisdiction over the existing State of Madhya
Pradesh.”
F
22. The State of Madhya Pradesh issued a notification abolishing
the MPAT pursuant to a decision taken by it along with the State of
Chhattisgarh. This notification was challenged before the Madhya
Pradesh High Court. The petitioners in that case also challenged the
constitutionality of Section 74 of the Madhya Pradesh Reorganization
Act 2000. G
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 the
11
“MPAT”
12
“TNAT” H
762 SUPREME COURT REPORTS [2023] 6 S.C.R.

A unexpired period of their tenure respectively) were ultra vires the
Constitution. The High Court also held that the State Government could
not have abolished the MPAT by issuing a notification. Rather, it was
required to request the Union Government to issue a notification abolishing
the MPAT because the MPAT was established by the Union Government.
It held that the Union Government would have no choice but to accept
B
such a request and issue a notification to this effect. The High Court
accordingly quashed the notification issued by the State of Madhya
Pradesh by which the MPAT was abolished.
24. On appeal, this Court upheld the interpretation accorded to
the Madhya Pradesh Reorganization Act 2000 by the Madhya Pradesh
C High Court. The decision of this Court was reported as M.P. High
Court Bar Assn. v. Union of India (2004) 11 SCC 766.13
As seen from a discussion of the facts, the MPAT Abolition
Case (supra) concerned the powers of the State of Madhya Pradesh
under the Madhya Pradesh Reorganization Act 2000 as well as the
D constitutional validity of certain provisions of that enactment. This Court
was not called upon to adjudicate whether Section 21 of the General
Clauses Act would be applicable to Section 4(2) of the Administrative
Tribunals Act. A decision on the abolition of an SAT by the exercise of
special powers under a legislation enacted for the reorganization of a
E state does not have any bearing on whether an SAT may be abolished in
exercise of powers under the Administrative Tribunals Act. The MPAT
Abolition Case (supra) is therefore not germane to the issue of whether
Section 21 of the General Clauses Act would be applicable to Section
4(2) of the Administrative Tribunals Act. However, the issue whether
the decision to abolish the MPAT was arbitrary, unreasonable and
F therefore violative of Article 14 of the Constitution was decided in that
case. A similar issue is before us in the present case and this aspect of
the decision in the MPAT Abolition Case (supra) may be instructive.
b. The abolition of the TNAT

G Between 1994 and 2004, the Government of Tamil Nadu requested
the Union Government to abolish the TNAT. Thereafter, it stopped ap-
pointing the Chairperson, the Vice Chairperson and the Members of the
TNAT, which was rendered inoperative as a result. Approximately 30,000
cases were pending before it at this time. Various parties instituted writ
13
H “MPAT Abolition Case”
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petitions before the Madras High Court seeking directions to the State A
Government of Tamil Nadu to fill the vacancies in the TNAT to enable it
to function until it was abolished. These writ petitions culminated in the
decision of the Madras High Court in Tamil Nadu Government All De-
partment Watchman and Basic Servants Association v. Union of In-
dia14.
B
25. In its decision in the above case, the Madras High Court held
that the Union Government had the power to rescind a notification es-
tablishing an SAT, under Section 21 of the General Clauses Act. It relied
on the MPAT Abolition Case (supra) to hold that it was open to the
State Government to take a “policy decision” to abolish the SAT and
request the Union Government to abolish it. It further held that the latter C
would have no option but to issue a notification in this regard. On this
basis, it directed the Union Government to issue a notification abolishing
the TNAT “as there is no necessity for the Central Government to
wait for the amendment before the Parliament and the mere issu-
ance of Notification would suffice for abolition of the Tribunal.” D
Two appeals against the decision in the TNAT Abolition Case
(supra) were preferred before this Court. The first was dismissed in
limine by an order dated 16 August 2005. The second was an appeal
filed by the Union of India. Before this appeal could be adjudicated on
merits, the Union Government issued a notification on 17 February 2006 E
abolishing the TNAT. On 28 March 2017, this Court dismissed the ap-
peal for having become infructuous. It observed that the question of law
had been kept open.
26. The TNAT Abolition Case (supra) does not hence consti-
tute a precedent which binds this Court. The proceedings arising from F
the TNAT Abolition Case (supra) in appeal before this Court, too, do
not have a bearing on the approach to be adopted while deciding the
merits of the issues before us because the question of law was ex-
pressly kept open.
ii. The Writ Petitions instituted before the Orissa High Court G
were maintainable
27. The State of Odisha has interrogated the maintainability of
the Writ Petitions instituted by the appellants before the Orissa High
14
2005 SCC OnLine Mad 333- “TNAT Abolition Case”
H
764 SUPREME COURT REPORTS [2023] 6 S.C.R.

A Court (which led to the impugned judgment) on the ground that the rights
of the petitioners were not impacted by the abolition of the OAT.
28. The appellants are the OAT Bar Association, Cuttack and the
Odisha Retired Police Officers’ Welfare Association. Both associations
are registered under the Societies Registration Act 1860. Section 6 of
B the Societies Registration Act 1860 authorizes registered societies to
sue and be sued. Both the appellants are therefore organizations which
are entitled to approach the High Court under Article 226 of the Consti-
tution.
29. Both appellants have also alleged that an existing legal right of
C theirs was violated. As held by this Court in Ghulam Qadir v. Special
Tribunal (2002) 1 SCC 33, the existence of a legal right of the petitioner
which is alleged to have been violated is the foundation for invoking the
jurisdiction of the High Court under Article 226:
“38. There is no dispute regarding the legal proposition that the
D rights under Article 226 of the Constitution of India can be enforced
only by an aggrieved person except in the case where the writ
prayed for is for habeas corpus or quo warranto. Another exception
in the general rule is the filing of a writ petition in public interest.
The existence of the legal right of the petitioner which is
alleged to have been violated is the foundation for invoking
E the jurisdiction of the High Court under the aforesaid article.
The orthodox rule of interpretation regarding the locus standi of a
person to reach the court has undergone a sea change with the
development of constitutional law in our country and the
constitutional courts have been adopting a liberal approach in
F dealing with the cases or dislodging the claim of a litigant merely
on hypertechnical grounds. If a person approaching the court
can satisfy that the impugned action is likely to adversely
affect his right which is shown to be having source in some
statutory provision, the petition filed by such a person
cannot be rejected on the ground of his not having the locus
G standi. In other words, if the person is found to be not merely a
stranger having no right whatsoever to any post or property, he
cannot be non-suited on the ground of his not having the locus
standi.”
(emphasis supplied)
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30. In State of Orissa v. Ram Chandra Dev AIR 1964 SC 685, A
a Constitution Bench of this Court held that the existence of a right is the
foundation of a petition under Article 226:
“8. … Under Article 226 of the Constitution, the jurisdiction of the
High Court is undoubtedly very wide. Appropriate writs can be
issued by the High Court under the said article even for purposes B
other than the enforcement of the fundamental rights and in that
sense, a party who invokes the special jurisdiction of the High
Court under Article 226 is not confined to cases of illegal invasion
of his fundamental rights alone. But though the jurisdiction of the
High Court under Article 226 is wide in that sense, the concluding
words of the article clearly indicate that before a writ or an C
appropriate order can be issued in favour of a party, it must be
established that the party has a right and the said right is illegally
invaded or threatened. The existence of a right is thus the
foundation of a petition under Article 226.”
(emphasis supplied) D

31. In this case, the Odisha Retired Police Officers’ Welfare
Association alleged that its right to speedy redressal of grievances (a
facet of the fundamental right of access to justice) was violated. The
OAT Bar Association joined the Odisha Retired Police Officers’ Welfare
Association in alleging that the state’s action of abolishing the OAT E
violated its right under Article 14 of the Constitution. Having alleged that
these rights were violated by the abolition of the OAT, they were entitled
to invoke the High Court’s jurisdiction under Article 226 of the Constitution.
Whether there is substance in the grievance is a separate matter which
has to be analysed. F
iii. Article 323-A does not preclude the Union Government
from 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 of
the Constitution of India: G
“323A. Administrative tribunals.—(1) Parliament may, by law,
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 H
766 SUPREME COURT REPORTS [2023] 6 S.C.R.

A local or other authority within the territory of India or under the
control of the Government of India or of any corporation owned
or controlled by the Government.
(2) A law made under clause (1) may—
(a) provide for the establishment of an administrative tribunal for
B the Union and a separate administrative tribunal for each State or
for two or more States;
(b) specify the jurisdiction, powers (including the power to punish
for contempt) and authority which may be exercised by each of
the said tribunals;
C
(c) provide for the procedure (including provisions as to limitation
and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of
the Supreme Court under article 136, with respect to the disputes
D or complaints referred to in clause (1);
(e) provide for the transfer to each such administrative tribunal of
any cases pending before any court or other authority immediately
before the establishment of such tribunal as would have been
within the jurisdiction of such tribunal if the causes of action on
which such suits or proceedings are based had arisen after such
E
establishment;
(f) repeal or amend any order made by the President under clause
(3) of article 371D;
(g) contain such supplemental, incidental and consequential
F provisions (including provisions as to fees) as Parliament may
deem necessary for the effective functioning of, and for the speedy
disposal of cases by, and the enforcement of the orders of, such
tribunals.
(3) The provisions of this article shall have effect notwithstanding
G anything in any other provision of this Constitution or in any other
law 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 a law
H to give effect to it. Parliament is entrusted with the discretion to enact a
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 767
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

law which provides for the adjudication of certain disputes by A
administrative tribunals. It is a permissive provision. The provision is
facilitative and enabling.
34. However, in certain cases, the power to do something may be
coupled with a duty to exercise that power. In Official Liquidator v.
Dharti Dhan (P) Ltd. (1977) 2 SCC 166, this Court expounded on when B
the word “may” carries with it an obligation to exercise the power
conferred by that word in a particular manner:
“8. Thus, the question to be determined in such cases always is
whether the power conferred by the use of the word “may” has,
annexed to it, an obligation that, on the fulfilment of certain legally C
prescribed conditions, to be shown by evidence, a particular kind
of order must be made. If the statute leaves no room for discretion
the power has to be exercised in the manner indicated by the
other legal provisions which provide the legal context. Even then
the facts must establish that the legal conditions are fulfilled … It
is not the conferment of a power which the word “may” D
indicates that annexes any obligation to its exercise but
the legal and factual context of it.
…
10. The principle laid down above has been followed consistently E
by this Court whenever it has been contended that the word “may”
carries with it the obligation to exercise a power in a particular
manner or direction. In such a case, it is always the purpose
of the power which has to be examined in order to
determine the scope of the discretion conferred upon the
donee of the power. If the conditions in which the power is F
to be exercised in particular cases are also specified by a
statute then, on the fulfilment of those conditions, the power
conferred becomes annexed with a duty to exercise it in
that manner.”
(emphasis supplied) G
35. In Dhampur Sugar Mills Ltd. v. State of U.P.15, this Court
held that the intention of the legislature must be discerned while
determining whether a provision is directory or mandatory:
15
(2007) 8 SCC 338
H
768 SUPREME COURT REPORTS [2023] 6 S.C.R.

A “36. … In our judgment, mere use of word “may” or “shall” is not
conclusive. The question whether a particular provision of a statute
is directory or mandatory cannot be resolved by laying down any
general rule of universal application. Such controversy has to be
decided by ascertaining the intention of the legislature and not by
looking at the language in which the provision is clothed. And for
B
finding out the legislative intent, the court must examine the scheme
of the Act, purpose and object underlying the provision,
consequences likely to ensue or inconvenience likely to result if
the provision is read one way or the other and many more
considerations relevant to the issue.”
C 36. In order for the word “may” to acquire the character of the
word “shall”, the following aspects of the provision or legislation (or in
this case, the Constitution) must be analysed:
a. The legal and factual context of the conferment of the power;

D b. The purpose of the power;
c. Whether the statute (or the Constitution) specifies the conditions
in which the power is to be exercised; and
d. The intention of the legislature discerned inter alia from the
scheme of the enactment, the purpose and object of the
E provision, the consequences of reading the provision one way
or another, and other relevant considerations.
This is not an exhaustive list of factors which will aid courts in
interpreting whether a provision is directory or mandatory.
37. Article 323-A does not specify the conditions in which the
F
power to enact laws providing for the adjudication of certain disputes by
administrative tribunals must be exercised. It therefore cannot be said
that Parliament was obligated to exercise this power upon the fulfilment
of certain conditions.
38. The legal and factual context of the power to enact laws
G providing for administrative tribunals may be understood from the
Statement of Objects and Reasons appended to the Constitution (Forty-
fourth Amendment) Bill 1976. The Statement of Objects indicates that
the object was
“To reduce the mounting arrears in High Courts and to secure the
H speedy disposal of service matters, revenue matters and certain
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 769
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

other matters of special importance in the context of the socio- A
economic development and progress, it is considered expedient to
provide for administrative and other tribunals for dealing with such
matters while preserving the jurisdiction of the Supreme Court in
regard to such matters under Article 136 of the Constitution. It is
also necessary to make certain modifications in the writ jurisdiction
B
of the High Courts under article 226.”
The Statement of Objects and Reasons also sheds light on the
purpose of the power to provide for administrative tribunals i.e., to reduce
mounting arrears in the High Courts and to secure the speedy disposal
of service matters. The purpose and the legal and factual context of the
power conferred by Article 323-A do not have the effect of narrowing C
the scope of the discretion afforded to Parliament by the word “may.”
The purpose of reducing arrears in the High Courts or securing the
speedy disposal of service cases is not of a nature as to cast an obligation
upon Parliament to enact laws providing for administrative tribunals.
This is because the same purpose can be achieved through other routes. D
Article 323-A merely provides for the enactment of legislation as of one
of many routes. It is open to Parliament to choose any legally acceptable
method to reduce arrears in the High Courts and secure the speedy
disposal of service matters, including but not limited to creating
administrative tribunals. Article 323-A does not deprive Parliament of
the power to choose an alternate course of action to reduce arrears or E
ensure speedy justice, by any other modality, including by strengthening
other adjudicatory mechanisms. The intention of Parliament could not
have been to mandate the establishment and continuation of administrative
tribunals. Besides the purpose of the provision discussed above, nothing
in the scheme of Article 323-A indicates that it is a mandatory provision. F
The consequences of reading Article 323-A as mandating the creation
of administrative tribunals, would be to foreclose the possibility of the
adoption of an alternate course of action to achieve the desired objective
of reducing arrears and ensuring speedy justice. This, too, indicates that
it could not have been the intention of Parliament to mandate the
establishment of administrative tribunals as the only remedy to mounting G
arrears or as the only manner in which speedy justice could be secured.
39. Another important consequence of interpreting Article 323-A
as being mandatory is that it prevents Parliament and the State
Governments from evaluating the manner in which administrative
tribunals function by inter alia accounting for: H
770 SUPREME COURT REPORTS [2023] 6 S.C.R.

A a. The rate of disposal of cases;
b. The quality of the judgments;
c. How often the decisions of the SAT are overturned in the writ
jurisdiction, appeal or review;
d. Whether the tribunals are functioning independently;
B
e. The availability of qualified and suitable candidates for the posts
of members and chairpersons of the tribunals;
f. Whether SATs do indeed reduce arrears in the High Courts
and streamline the justice delivery mechanism;
C g. 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 in
paragraphs 70 to 75 of the impugned judgment albeit in a slightly different
context. The intention of Parliament could not have been to prevent the
D Union or State Governments from evaluating the efficiency and
desirability of administrative tribunals once they were established.
However, the effect of reading Article 323-A as a mandatory provision
would be to do precisely that.
40. The appellants have relied on the decision of this Court in
E Dilip K Basu v. State of West Bengal (2015) 8 SCC 744 to argue that
it is mandatory for the Union Government to establish SATs. In that
case, this Court was required to interpret Section 21 of the Protection of
Human Rights Act 1993 which stipulated that State Governments “may”
constitute a State Human Rights Commission. The question was whether
the word “may” ought to be read as the word “shall.” This Court noted
F that the Protection of Human Rights Act 1993 enjoined the State Human
Rights Commissions to promote human rights, prevent their violation,
and provide redressal. It held that this legislative intent would be negated
if State Human Rights Commissions were not established in every state.
This Court reasoned that the consequence of this was that Section 21 of
G the Protection of Human Rights Act 1993 not only conferred State
Governments with the power to set up State Human Rights Commissions
but also imposed on them the duty to do so. In the present case, the
intention of Parliament in enacting Article 323-A of the Constitution (i.e.,
to reduce arrears and provide speedy justice) would not necessarily be
negated in the absence of SATs in each state, for the reasons discussed
H above.
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41. We also note that in Dilip K Basu (supra), the fact that victims A
or complainants would not have access to an efficacious remedy in the
absence of State Human Rights Commissions weighed heavily with this
Court. They would be required to approach the National Human Rights
Commission, which this Court noted could prove inaccessible to people
living in places far away from New Delhi where it is headquartered.
B
Here, the absence of SATs does not leave litigants without an efficacious
remedy. The High Courts or other forums already designated for the
purpose of adjudicating service matters continue to be operational in
each state and the absence of SATs does not inconvenience litigants any
more than they otherwise would have been.
42. Hence, the word “may” in Article 323-A of the Constitution is C
not imparted with the character of the word “shall.” Article 323-A is a
directory, enabling provision which confers the Union Government with
the discretion to establish an administrative tribunal. The corollary of
this is that Article 323-A does not act as a bar to the Union Government
abolishing an administrative tribunal once it is created. D
iv. Applicability of Section 21 of the General Clauses Act
43. The Union Government invoked Section 21 of the General
Clauses Act read with Section 4(2) of the Administrative Tribunals Act
to rescind the notification establishing the OAT. Section 21 of the Gen-
eral Clauses Act, which is a rule of construction, is extracted below: E
“Power to make, to include power to add to, amend, vary or rescind,
orders, rules or bye-laws.— Where, by any Act or Regulation, a
power to issue notifications, orders, rules or bye-laws is conferred
then that power includes a power, exercisable in the like manner
and subject to the like sanction and conditions (if any), to add to, F
amend, vary or rescind any notifications, orders, rules or byelaws
so issued.”
44. The appellants contend that the Union Government could not
have taken recourse to Section 21 of the General Clauses Act. A two-
step analysis must precede the answer to the question posed by the
G
appellants.
a. There is no bar to the applicability of Section 21 of the
General Clauses Act to the administrative order establish-
ing the OAT

H
772 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 45. In Indian National Congress (I) v. Institute of Social
Welfare16, this Court held that Section 21 of the General Clauses Act
cannot be pressed into service to vary, amend, or review a quasi-judicial
order or notification. It is important to note that a quasi-judicial order or
notification cannot be rescinded by relying upon Section 21 of the Gen-
eral Clauses Act. The notification dated 2 August 2019 rescinded the
B
notification dated 4 July 1986 by which the OAT was established. It is
therefore the notification dated 4 July 1986 which established the OAT
which must be analysed to determine whether it is a quasi-judicial noti-
fication, and not the notification dated 2 August 2019, the effect of which
was to abolish the OAT. If the answer is that the decision to establish
C the OAT was indeed a quasi-judicial decision, Section 21 of the General
Clauses Act cannot be relied on to reverse this decision. As a 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 the
General Clauses Act to rescind the notification establishing the OAT.
D
46. This Court discussed the meaning and contours of a quasi-
judicial act in Province of Bombay v. Khushaldas S. Advani17, where
SR Das, J. in his concurring opinion held:
“80.1.(i) that if a statute empowers an authority, not being a court
E in the ordinary sense, to decide disputes arising out of a claim
made by one party under the statute which claim is opposed by
another party and to determine the respective rights of the
contesting parties who are opposed to each other, there is a lis
and prima facie and in the absence of anything in the statute to
the contrary it is the duty of the authority to act judicially and the
F decision of the authority is a quasi-judicial act; and
80.2.(ii) that if a statutory authority has power to do any act which
will prejudicially affect the subject, then, although there are not
two parties apart from the authority and the contest is between
the authority proposing to do the act and the subject opposing it,
G the final determination of the authority will yet be a quasi-judicial
act provided the authority is required by the statute to act judicially.
81. In other words, while the presence of two parties besides the
deciding authority will prima facie, and in the absence of any other
16
(2002) 5 SCC 685
H 17
(1950) SCC 551
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factor impose upon the authority the duty to act judicially, the A
absence of two such parties is not decisive in taking the act of the
authority out of the category of quasi-judicial act if the authority is
nevertheless required by the statute to act judicially.”
47. In Indian National Congress (I) (supra), this Court held
that: B
“29. … another test which distinguishes administrative function
from quasi-judicial function is, the authority who acts quasi-
judicially is required to act according to the rules, whereas the
authority which acts administratively is dictated by the policy and
expediency.” C
48. In Board of High School and Intermediate Education v.
Ghanshyam Das Gupta18, this Court expounded upon when an authority
is required to act judicially:
“8. … Now it may be mentioned that the statute is not likely to
provide in so many words that the authority passing the order is D
required to act judicially; that can only be inferred from the express
provisions of the statute in the first instance in each case and no
one circumstance alone will be determinative of the question
whether the authority set up by the statute has the duty to act
judicially or not. The inference whether the authority acting under E
a statute where it is silent has the duty to act judicially will depend
on the express provisions of the statute read along with the nature
of the right affected, the manner of the disposal provided, the
objective criterion if any to be adopted, the effect of the decision
on the person affected and other indicia afforded by the statute.”
F
49. From the above decisions, it emerges that:
a. The decision of an authority is prima facie, and in the absence
of any other factor, a quasi-judicial act when there is a lis before
it, with two parties with competing claims;
b. When the authority has the power to do something which will G
prejudicially affect the subject, the decision it takes is a quasi-
judicial act even in the absence of a lis and two parties with
competing claims, when the authority is required by the statute
in question to act judicially. The express provisions of the statute,
18
AIR 1962 SC 1110 H
774 SUPREME COURT REPORTS [2023] 6 S.C.R.

A the nature of the right affected, the manner of disposal, the
objective criterion (if any) to be adopted while deciding one
way or the other, the effect of the decision, and other signs in
the statute may be considered when evaluating whether there
is a duty to act judicially; and
B c. The decision of an authority is quasi-judicial when it is made in
accordance with rules. The decision is administrative when it
is dictated by policy and expediency.
50. Having laid down the above principles, it must be realised that
the distinction between quasi-judicial and administrative acts is not always
C well defined and its application is not always certain. Doctrine and
practice are not necessarily happy partners. The instant case evidently
does not involve a lis or two parties with competing claims appearing
before an authority who will determine their respective rights. Further,
the act of the Union Government establishing the OAT did not prejudicially
affect the subject in any manner. Litigants or other citizens were not left
D without a forum. They could continue to pursue their remedies before
the OAT when it was first established, instead of before the Orissa High
Court.
51. The Union Government was not acting in a judicial capacity
when it set up the OAT. On the establishment of the OAT, pending
E cases before the High Court were transferred to the OAT. Indeed, the
decision to establish an SAT is based on policy and expediency. It is up
to each State Government to evaluate the need for an SAT within their
state, to consider the advantages and disadvantages as well as the
financial, administrative, and other practical aspects of establishing an
F SAT. The Union Government may then establish the SAT upon receiving
a 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 reversed
by the application of Section 21 of the General Clauses Act. The
applicability of Section 21 of the General Clauses Act does not stand
G excluded in the present case.
52. The appellants’ reliance on Industrial Infrastructure
Development Corpn. (Gwalior) M.P. Ltd. v. CIT19 is misplaced for
similar reasons. In that case, Section 21 of the General Clauses Act was
19
(2018) 4 SCC 494
H
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UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

found to be inapplicable to the order because it was a quasi-judicial A
order. For the reasons discussed above, the order establishing the OAT
is an administrative order.
53. We clarify that the distinction between quasi-judicial and
administrative decisions has been invoked for the purpose of determining
whether Section 21 of the General Clauses Act may be invoked to reverse B
the decision to establish an SAT. Administrative orders continue to be
amenable 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- C
ity of Section 21 of the General Clauses Act, we now consider whether
it applies in the present case. The locus classicus on this subject is State
of Bihar v. D N Ganguly20, where this Court held:
“9. … It is well settled that this section embodies a rule of
construction and the question whether or not it applies to the D
provisions of a particular statute would depend on the subject-
matter, context, and, the effect, of the relevant provisions of the
said statute. In other words, it would be necessary to examine
carefully the scheme of the Act, its object and all its relevant and
material provisions before deciding whether by the application of E
the rule of construction enunciated by Section 21, the appellant’s
contention is justified that the power to cancel the reference made
under Section 10(1) can be said to vest in the appropriate
government by necessary implication. If we come to the conclusion
that the context and effect of the relevant provisions is repugnant
to the application of the said rule of construction, the appellant F
would not be entitled to invoke the assistance of the said section.
We must, therefore, proceed to examine the relevant provisions
of the Act itself.”
55. In Kamla Prasad Khetan v. Union of India21, a Constitution
Bench of this Court held that: G
“10. … Section 21 of the General Clauses Act embodies a rule of
construction, and that rule must have reference to the context
20
1959 SCR 1191
21
1957 SCR 1052
H
776 SUPREME COURT REPORTS [2023] 6 S.C.R.

A and subject-matter of the particular statute to which it is being
applied”
56. Section 21 of the General Clauses Act can be invoked when
its application would not be repugnant to the subject-matter, context, and
effect of the statute and when it is in harmony with its scheme and
B object. The court may refer to the provisions of the statute in question to
determine whether Section 21 of the General Clauses Act will be
applicable.
57. The scheme of the Administrative Tribunals Act is briefly
analysed below:
C a. Section 4 enables the Union Government to establish an SAT
upon receipt of a request in this behalf from the concerned
State Government;
b. Section 5 provides for the composition of SATs. Sections 8
and 10B stipulate the term of office of the Chairperson and
D the Members;
c. Section 15 governs the jurisdiction of SATs;
d. Chapter IV sets out the procedure to be followed before the
Tribunal as well as the powers exercisable by it; and
E e. Section 29 provides that every suit or proceeding pending
before any court or authority immediately before the date of
establishment of a tribunal under the Administrative Tribunals
Act which would have been within the jurisdiction of the
tribunal if the cause of action in such suit or proceeding had
arisen after the establishment of the tribunal, stands transferred
F
to the tribunal on the date of its establishment.
58. The Administrative Tribunals Act does not contain a provision
and a corresponding procedure for the abolition of an SAT once it is
established. However, this does not mean that the abolition of an SAT,
once it is set up, is impermissible. First, the Administrative Tribunals Act
G does not proscribe the abolition of an SAT by the Union Government,
upon the latter receiving a request from the concerned State Government.
Second, nothing in the scheme of the statute implies or suggests that
such an abolition would be incompatible with the objective sought to be
achieved. To the contrary, if the concerned State Government is of the
H considered view that the SAT is failing to meet the objectives of the
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 777
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

Administrative Tribunals Act or that an alternate route for meeting the A
same objectives is preferable to that of operating an SAT, it is free to act
upon its view and request the Union Government to abolish the SAT. An
amendment to the Administrative Tribunals Act is not a prerequisite for
the State Government to make a request to the Union Government.
59. As noticed above, the object of the Administrative Tribunals B
Act is to reduce arrears and enable the provision of speedy justice to
litigants. Abolishing an SAT would not frustrate this objective because
SATs are not the only method by which the object is capable of being
achieved. Further, the effect of such an abolition would not be to deprive
litigants of a remedy because the cases before the SAT would stand
revived in the forum in which they were pending prior to the establishment C
of that SAT. The subject matter and the context of the Administrative
Tribunals Act, too, do not militate against the application of Section 21 of
the General Clauses Act. There is therefore nothing in the Administrative
Tribunals Act which is repugnant to the application of Section 21 of the
General Clauses Act. The relevant State Government has the implied D
power to issue a request to abolish the SAT in its state to the Union
Government. The Union Government in turn has the implied power to
rescind the notification by which that SAT was established, thereby
abolishing the SAT.
60. The appellants have relied on decisions of this Court in Lt. E
Governor of H.P. v. Avinash Sharma22 and State of M.P. v. Ajay
Singh23 to support their case. In Avinash Sharma (supra), this Court
held that after the Government takes possession of land pursuant to a
notification under Section 17(1) of the Land Acquisition Act 1894, the
land vests with the Government and the notification cannot be cancelled
under Section 21 of the General Clauses Act. Further, the notification F
could not be withdrawn in exercise of the powers under Section 48 of
the Land Acquisition Act 1894, once possession of the land was taken.
The present case does not concern the acquisition of land, making the
decision in Avinash Sharma (supra) irrelevant to the question at hand.
Moreover, Section 48 of the Land Acquisition Act 1894 had a specific G
provision governing a withdrawal from acquisition and hence the
conditions contained in the statutory provision could not be obviated by
taking recourse to Section 21 of the General Clauses Act. The scheme
22
(1970) 2 SCC 149
23
(1993) 1 SCC 302 H
778 SUPREME COURT REPORTS [2023] 6 S.C.R.

A of the Land Acquisition Act 1894 and the scheme of the Administrative
Tribunals Act are different and the scheme and context of each
enactment must be considered on its own merits.
61. In Ajay Singh (supra), this Court held that the rule of
construction embodied in Section 21 of the General Clauses Act did not
B apply to the provisions of the Commissions of Inquiry Act 1952 because
the subject-matter, context and effect of its provisions were inconsistent
with the application of Section 21. In that case, the State of Madhya
Pradesh had constituted a single-member high powered committee to
investigate an issue of public importance that had arisen within its territory.
It later attempted to reconstitute the high-powered committee by replacing
C the single member. The question in Ajay Singh (supra) was whether the
state government could rely on Section 21 of the General Clauses Act to
rescind the notification by which it had appointed the member at the first
instance.
62. This Court answered in the negative because Section 3 of the
D Commissions of Inquiry Act 1952 provided for the power to fill any
vacancies whereas Section 7 provided for the only situation in which a
Commission which was already constituted would cease to exist. This
Court observed that the Commissions of Inquiry Act 1952 did not provide
for the power to reconstitute a Commission or replace its members. The
E scheme of the enactment and its context indicated that Section 21 of the
General Clauses Act could not be invoked. Further, the object of the
Commissions of Inquiry Act 1952 would be frustrated if the appropriate
government were permitted to reconstitute a Commission midway through
the task that it was charged with completing because it made it possible
for an independent agency to exist, free from governmental control. In
F the present case, there is no such impediment to the application of Section
21 of the General Clauses Act. The object of the Administrative Tribunals
Act would not stand frustrated if an SAT is created and then abolished.
The Union and State Governments may take alternate routes (some of
which may have already been in operation, supplementing SATs) towards
G achieving 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’s
power to abolish SATs must flow from the same legislation that vests it
with the power to establish them. It is their contention that the Union
H Government does not have the power to abolish SATs because the
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 779
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

Administrative Tribunals Act does not provide for it. This argument fails A
for the simple reason that the very purpose of Section 21 of the General
Clauses Act is to provide for contingencies such as the instant case
when the statute in question does not explicitly provide for the power to
add to, amend, vary, or rescind a notification (or order, rule, or by-law)
which has been issued. Of course, the application of Section 21 of the
B
General Clauses Act is subject to the test laid down in D N Ganguly
(supra) as discussed previously as well as the other requirements
mentioned in the provision itself.
64. If the argument of the appellants were to be accepted, Section
21 of the General Clauses Act would be rendered otiose. It would not
apply to any statute which does not explicitly provide for the power to C
add 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 would
be no need to rely on Section 21 of the General Clauses Act. This is not
a conceivable position because courts must interpret statutes so as to D
give effect to their provisions rather than to render them futile.24
65. The appellants have also submitted that what cannot be done
directly cannot be done indirectly. For the reasons discussed above, neither
Article 323-A of the Constitution nor the Administrative Tribunals Act
prohibit the abolition of SATs. Hence, it cannot be said that the Union E
Government is barred from abolishing the SATs “directly” and that it has
resorted to Section 21 of the General Clauses Act to evade such a ban
and “indirectly” abolish the OAT. The Union Government’s reliance on
Section 21 of the General Clauses Act to abolish the OAT is legally
permissible.
F
66. The appellants have urged that the Administrative Tribunal
(Amendment) Bill 2006 was introduced in Parliament to provide an
enabling provision for the abolition of SATs and for the transfer of pending
cases from the abolished SAT to the relevant High Court. This bill was
referred to the Rajya Sabha Standing Committee on Personnel, Public
Grievances, Law and Justice, which submitted its report on 5 December G
2006. The report recommended that the power to abolish an SAT should
not be granted to the executive. It is argued that the Union Government
does not have the power to abolish SATs because this Bill was not enacted
24
M. Pentiah v. Muddala Veeramallappa (1961) 2 SCR 295
H
780 SUPREME COURT REPORTS [2023] 6 S.C.R.

A into law because of the recommendations contained in the report of the
Standing Committee.
67. The appellants seem to be implying that Parliament was of
the opinion that the Union Government did not have the power to abolish
SATs in the absence of an enabling provision. It may also be the case
B that Parliament introduced the Administrative Tribunal (Amendment)
Bill 2006 in order to clarify the power of the Union Government to
abolish SATs rather than to confer it with that power. This Court cannot
possibly enter into a discussion or analysis of all the potential reasons for
a proposed amendment.

C 68. The appellants have put forth another argument on similar
lines. It is their case the Union Government’s stance before the Madras
High Court in the TNAT Abolition Case (supra) must influence this
Court’s decision on whether the Union Government has the power to
rescind a notification establishing SATs. The Union Government’s stance
was 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 Tamil
Nadu has sent a proposal to the Central Government for abolition,
this cannot be done through Notification. The appropriate
legislation for this proposal has to be brought in the Parliament
E and the same is being contemplated by the Law Department which
after due processing and approval will be brought before the
Parliament. Mere Notification of the Central Government would
not suffice in this case, since Section 74 of the Madhya Pradesh
Reorganisation Act, 2000 would specifically provide for the abolition
through Notification. But, such a provision is not available in this
F State. Therefore, suitable Parliamentary amendment to the
Administrative Tribunal Act is necessary to consider such proposal.
The necessary steps for the same are being taken by the Central
Government.”
69. The Union Government’s stance on a question of law before
G a court in another case or for that matter, any party’s position on a
question of law, does not preclude this Court from interpreting the law.
In Zakir Abdul Mirajkar v. State of Maharashtra25, a two-judge Bench
of this Court (of which one of us, Dr. DY Chandrachud, J. was a part)
held:
25
H (2022) SCC OnLine SC 1092
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 781
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

“36. … A submission which is made on a question of law by A
counsel appearing for a party (in this case, the state) cannot bind
that party or for that matter, preclude this Court from correctly
interpreting the law.”
The Union Government’s stance before the Madras High Court
in the TNAT Abolition Case (supra) will therefore not steer this Court’s B
exegesis of the law.
70. At this juncture, we may also deal with three interrelated
arguments put forward by the appellants with respect to the transfer of
cases from the abolished OAT to the Orissa High Court:
a. The Constitution of India (including Article 323-A) does C
not envisage a transfer of cases from any court or tribunal
to a particular High Court except in terms of Article 228 of
the Constitution;
b. While Section 29 of the Administrative Tribunals Act provides
for the transfer of cases from the High Courts (or other D
courts and authorities) to the relevant SATs, there is no
provision which enables the transfer of cases from the
abolished SATs back to the forum in which they would have
been heard if not for the establishment of SATs; and
c. The abolition of the OAT has the effect of enlarging the E
jurisdiction of the Orissa High Court but Parliament alone
has the power to create or enlarge jurisdiction. Reliance is
placed on A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602.
71. The response to the three arguments is that the transfer of
cases from the OAT to the Orissa High Court is, properly characterized, F
a revival of the latter’s jurisdiction. We agree with the impugned judgment
that the Orissa High Court’s jurisdiction in relation to matters pending
before the OAT is not being created or enlarged by the abolition of the
OAT. It previously exercised such jurisdiction and is merely resuming its
jurisdiction over the same subject matter. It is for this reason that the
G
decision in A.R. Antulay (supra) is not applicable to the facts of the
present case.
72. The natural consequence of the Union Government rescinding
the notification establishing the OAT would be to restore the status quo
ante. Nothing in either Article 323-A of the Constitution or the
H
782 SUPREME COURT REPORTS [2023] 6 S.C.R.

A Administrative Tribunals Act prevents such a revival. Further, the absence
of a provision in the Constitution which explicitly permits a revival does
not act as a barrier to such a revival. For the reasons discussed above,
we hold that the Union Government’s reliance on Section 21 of the
General Clauses Act is in accordance with law.
B v. The notification dated 2 August 2019 is not violative of
Article 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 August
C 2019 is based on an incorrect understanding of the decision in L. Chandra
Kumar (supra) and is arbitrary, unreasonable and violative of Article 14
of the Constitution.
74. The principle that Article 14 strikes at arbitrariness and that
arbitrary action by the state violates the fundamental guarantee of equality
D has been recognized as a basic postulate since the decision in E.P.
Royappa v. State of T.N.26:
“85. … equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law in
a republic while the other, to the whim and caprice of an absolute
E monarch. Where an act is arbitrary, it is implicit in it that it
is unequal both according to political logic and constitutional
law and is therefore violative of Article 14 … Articles 14 and
16 strike at arbitrariness in State action and ensure fairness and
equality of treatment. They require that State action must be
F based on valid relevant principles applicable alike to all
similarly situate and it must not be guided by any extraneous
or irrelevant considerations because that would be denial
of equality.”
(emphasis supplied)
G The State Government’s decision to abolish the OAT will therefore
have to be scrutinized with a view to understanding whether any
extraneous or irrelevant considerations intruded into the decision.
75. The phrase ‘arbitrary’ is often used synonymously with the
phrase ‘unreasonable.’ The test as to whether an action is reasonable
26
H (1974) 4 SCC 3
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 783
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

was formulated by the Court of Appeal in Associated Provincial A
Picture Houses, Limited v. Wednesbury Corporation27:
“It is true the discretion must be exercised reasonably. Now what
does that mean? … For instance, a person entrusted with a
discretion must, so to speak, direct himself properly in law. He
must call his own attention to the matters which he is bound to B
consider. He must exclude from his consideration matters which
are irrelevant to what he has to consider. If he does not obey
those rules, he may truly be said, and often is said, to be acting
“unreasonably.” Similarly, there may be something so absurd that
no sensible person could ever dream that it lay within the powers
of the authority.” C

This Court has consistently assessed the validity of executive
action on the anvil of the test laid down in Wednesbury Corporation
(supra), including in G.B. Mahajan v. Jalgaon Municipal Council28,
Tata Cellular v. Union of India29, Punjab Communications Ltd. v.
Union of India30 and Union of India v. International Trading Co.31. D

76. The reasons for the State Government’s decision to abolish
the OAT are recorded in a document titled ‘A note indicating the rationale’
with the subject ‘Abolition of Odisha Administrative Tribunal.’ This note
was prepared by the General Administration Department, Government
of Odisha and is dated 16 September 2015. The relevant parts of the E
note are extracted below:
“1. Background
Odisha Administrative Tribunal (OAT) was established on 14th
July, 1986 under the Administrative Tribunal Act, 1985 by F
Government of India on the request of Government of Odisha.
The Tribunal under the Act was to have similar jurisdiction as the
High Court. The applicants were supposed to be freed from
the requirement of having to approach the High Court for
disposal of their grievances. In lieu of the High Court the
aggrieved government employees could go to the Tribunal and G
from there on to the Supreme Court directly …
27
[1948] 1 K.B. 223
28
(1991) 3 SCC 91
29
(1994) 6 SCC 651
30
(1999) 4 SCC 727
31
(2003) 5 SCC 437 H
784 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 2. Supreme Court Landmark Judgment (18th March, 1997)
However, with the decision of the Supreme Court in L Chandra
Kumar (1997) the provision of the Act that aggrieved parties could
appeal before the Supreme Court against the orders of the Tribunal
was held unconstitutional … it was held that the parties
B aggrieved with the orders of the Tribunal may approach
the High Court first before going to the Supreme Court …
3. Impact of the Supreme Court Judgment
As a consequence of the landmark judgment of the Supreme Court,
the objective of the establishment of the Tribunal to give quick
C justice to the government employees was defeated and several
States felt that the existence of the Tribunal was rendered futile.”
(emphasis supplied)
The State Government enclosed this note with its letter dated 16
D September 2015 to the Union Government, requesting it to abolish the
OAT. The relevant portion of the letter is extracted below:
“This is to state that the State Administrative Tribunal has been
functioning in Odisha since 14.07.1986. Government of Odisha is
of the view that the Tribunal is not able to serve its original
objectives, particularly after the Hon’ble Apex Court gave the
E
Judgment in L. Chandra Kumar case of 1997. As a result of
this judgment, very purpose of having a State
Administrative Tribunal (SAT) for speedy redressal of the
grievances of the State Government employees is not
fulfilled as any way the aggrieved parties have to approach
F the Hon’ble High Court before approaching the Apex Court
for a final verdict.
Government of Odisha, after taking into account this, have decided
to recommend to the Government of India to abolish the Odisha
Administrative Tribunal. A note indicating the rationale adopted
G by the State Government in arriving at this decision is enclosed
herewith for your ready reference.”
(emphasis supplied)
77. Similar reasons have been recorded in various other documents
of the State Government which relate to the abolition of the OAT. The
H
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 785
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

State Government requested the Union Government to establish the OAT A
with a view to creating an alternate forum to the Orissa High Court. The
State Government envisioned a structure of litigation whereby appeals
from the OAT would lie directly to the Supreme Court, and would exclude
the High Court both as the court of first instance as well as a forum of
appeal. In the State Government’s view, the structure of litigation under
B
the Administrative Tribunals Act would ensure that the dispute achieved
quietus in a maximum of two tiers of litigation. However, the decision of
this Court in L. Chandra Kumar (supra) held that the jurisdiction of
High Courts could not be ousted. This resulted in the creation of three
tiers of litigation under the Administrative Tribunals Act – first, before
the OAT, followed by the High Court, and culminating with the Supreme C
Court. The State Government was consequently of the opinion that the
“speedy redressal of grievances” was no longer possible in view of the
additional rung of litigation. It was of the opinion that its reason for
establishing the OAT no longer survived.
78. The appellants contend that the State Government has D
misinterpreted the decision in L. Chandra Kumar (supra). It is their
submission that the number of tiers of litigation remains the same even if
the OAT is abolished and that there is therefore no advantage to be
obtained by abolishing the OAT. Instead of parties instituting a case
before the OAT at the first instance and preferring a petition under Article
226 before a Division Bench of the High Court and a Special Leave E
Petition under Article 136 before the Supreme Court, they will institute a
case directly before the High Court. This will be heard by a single judge
and parties have the remedy of a writ appeal before a Division Bench of
the High Court and a further challenge before this Court. There are
hence, three tiers of litigation, regardless of the forum in which the F
proceedings are conducted. The appellants also contend that the Orissa
High Court is itself burdened with a large number of pending cases and
that an increase in its workload would not result in efficiency in the
disposal of cases.
79. It was not the State Government’s case that it was obliged to G
abolish the OAT as a 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 with
the establishment of the OAT. Tribunals, including administrative tribunals,
H
786 SUPREME COURT REPORTS [2023] 6 S.C.R.

A may be set up for any number of reasons. All the reasons which could
possibly or theoretically have had a bearing on the State Government’s
decision to establish the OAT are not relevant. Only the State
Government’s actual reason for establishing the OAT is relevant in
considering whether it misinterpreted L. Chandra Kumar’s case
(supra). The State Government’s reason for setting up the OAT was to
B
achieve speedy justice. A crucial factor (to its mind) was the elimination
of a tier of litigation. The State Government was of the opinion that
the creation of the OAT would not fulfil the purpose of a speedy redressal
of grievances because there was no improvement to the justice delivery
system through the elimination of a tier of litigation.
C
80. As for the submission that the Orissa High Court’s pendency
will increase if the cases pending before the OAT are transferred to it,
the State Government is entitled to structure its justice delivery systems
within the parameters defined by law. Its decision may be set aside only
if it is unconstitutional or without the authority of law.
D
81. In addition to the impact of the decision in L. Chandra Kumar
(supra), the State Government considered other factors related to the
functioning of the OAT. In the note dated 16 September 2015, the State
Government furnished other reasons for its decision to abolish the OAT:

E “Government is incurring a significant sum of expenditure on the
OAT as is exhibited in the table given below:
Table 1: Plan and Non-Plan Provision for OAT (Rs in Lakhs)
Head of Expenditure 2014-15 2015-16
F Plan 205.59 200

Non-Plan 616.24 697.69

Total 821.83 897.69

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

H
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 787
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

A

B

C

D

E
Table 2 shows that there were 47,619 cases pending at the
beginning of 2014. During the calendar year 2014, 7417 cases
were disposed whereas 13,823 fresh cases were instituted. At
the end of the year 2014, the number of pending cases went up to
54,334 … As an institutional mechanism it seems the Tribunal has F
not been able to provide speedy decisions …”
(emphasis in original)
The State Government was therefore concerned not only with
the additional tier of litigation at the Orissa High Court but also with the
expenditure incurred to operate the OAT as well as the rate at which the G
OAT disposed of cases. It was persuaded to abolish the OAT due to a
combination of all these factors.
82. From the above discussion, the following conclusions emerge:

H
788 SUPREME COURT REPORTS [2023] 6 S.C.R.

A a. While arriving at the decision to abolish the OAT, the State
Government considered relevant reasons. It considered
whether the OAT was capable of fulfilling the purpose for
which it was established after the decision in L. Chandra
Kumar (supra). It placed in the balance the expenditure
incurred to operate the OAT as well as the rate of disposal of
B
cases. These reasons were not irrelevant to the decision as to
whether a tribunal ought to be continued;
b. The State Government’s act of consulting the Orissa High
Court (upon receiving a request to this effect from the Union
Government) before deciding to abolish the OAT was not
C irrelevant or extraneous. The cases before the OAT were to
be transferred to the Orissa High Court and the opinion of the
latter was relevant to State Government’s decision;
c. The State Government did not consider factors which were
irrelevant or extraneous to its decision; and
D
d. The decision to abolish the OAT was not one which was so
absurd that no reasonable person or authority would ever have
taken it. The decision to abolish a tribunal which it had
established, based on an analysis of relevant factors is, by no
stretch of imagination, an absurd or unreasonable decision.
E
83. This Court reached a similar conclusion in the MPAT
Abolition Case (supra). The appellants in that case argued that the
decision to abolish the MPAT was arbitrary, unreasonable, and violative
of Article 14 of the Constitution. This Court rejected their argument in
the following terms:
F
“57. … The notification was issued by the Central Government in
1988 and the State Administrative Tribunal was established for
the State of Madhya Pradesh. At that time, as per well-settled
legal position, decisions rendered by the Administrative Tribunals
constituted under the Act of 1985 were “final” subject to jurisdiction
G of this Court under Article 136 of the Constitution. … If, in view
of subsequent development of law in L. Chandra Kumar [(1997)
3 SCC 261 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125] the State
of Madhya Pradesh felt that continuation of State Administrative
Tribunal would be “one more tier” in the administration of justice
inasmuch as after a decision is rendered by the State Administrative
H
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 789
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

Tribunal, an aggrieved party could approach the High Court under A
Articles 226/227 of the Constitution and, hence, it felt that such
Tribunal should not be continued further, in our opinion, it cannot
be said that such a decision is arbitrary, irrational or unreasonable.
From the correspondence between the State of Madhya Pradesh
and the Central Government as well as from the affidavit-in-reply,
B
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 arriving
at a decision to abolish State Administrative Tribunal. Such a
consideration, in our opinion, was relevant, germane and valid.”
The decision to abolish the MPAT was based on similar C
considerations as the decision to abolish the OAT. For these reasons, the
abolition of the OAT is not arbitrary or unreasonable. It does not violate
Article 14 of the Constitution.
84. Our choice of the test articulated in Wednesbury
Corporation (supra) must not be understood to mean that no other D
yardstick may be utilized to test the constitutional legitimacy of executive
action, under Article 14. This Court has previously approved of the use
of the proportionality test to evaluate the validity of certain kinds of
executive action, including in Om Kumar v. Union of India32 and Teri
Oat Estates (P) Ltd. v. UT, Chandigarh33. The proportionality test E
may well be applicable to other cases where executive overreach is
alleged.
b. The principles of natural justice have not been violated
85. The appellants submit that the Union and State Governments
have violated the principles of natural justice by failing to provide the F
OAT Bar Association and the litigants before the OAT with an opportu-
nity to be heard before abolishing the OAT. They argue that this violates
Article 14 of the Constitution.
86. The decision to establish, continue or abolish the OAT is in the
nature of a policy formulated and implemented by the State Government G
(acting with the Union Government under the Administrative Tribunals
Act). The public at large does not have a right to be heard before a
policy is formulated and implemented. The process of consultation with
32
AIR (2000) SC 3689
33
(2004) 2 SCC 130 H
790 SUPREME COURT REPORTS [2023] 6 S.C.R.

A the public, with experts, and with other stakeholders may be desirable
and would facilitate a participatory democracy. However, each member
of the class that would be impacted by a policy decision cannot be af-
forded an opportunity of hearing. This would not only be time consuming
and expensive, but deeply impractical.
B 87. BALCO Employees’ Union (Regd.) v. Union of India34 con-
cerned the validity of the decision of the Union of India to disinvest and
transfer 51% shares of Bharat Aluminium Company Limited. The peti-
tioner in that case (the union of the company’s employees) inter alia
submitted that it had a right to be heard before and during the process of
disinvestment. This Court rejected this argument, observing that:
C
“57. … As a matter of good governance and administration
whenever such policy decisions are taken, it is desirable that there
should be wide range of consultations including considering any
representations which may have been filed, but there is no provision
in law which would require a hearing to be granted before taking
D a policy decision. In exercise of executive powers, policy decisions
have to be taken from time to time. It will be impossible and
impracticable to give a formal hearing to those who may be affected
whenever a policy decision is taken. One of the objects of giving
a hearing in application of the principles of natural justice is to see
E that an illegal action or decision does not take place. Any wrong
order may adversely affect a person and it is essentially for this
reason that a reasonable opportunity may have to be granted before
passing 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 a policy decision which is
F contrary to law cannot be challenged. … If the decision is
otherwise illegal as being contrary to law or any constitutional
provision, the persons affected like the workmen, can impugn the
same, but not giving a pre-decisional hearing cannot be a ground
for quashing the decision.”
G (emphasis supplied)
Although the decision in BALCO Employees’ Union (Regd.)
(supra) was rendered in the context of a policy decision with economic
implications, it would be applicable in the present case. The principle
34
H (2002) 2 SCC 333
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 791
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

enunciated in that case is equally applicable to other categories of policy A
decisions. This is because it is impractical to hear every member of the
class impacted by a policy decision.
88. The absence of a right to be heard before the formulation or
implementation of a policy does not mean that affected parties are
precluded from challenging the policy in a court of law. What it means is B
that a policy decision cannot be struck down on the ground that it was
arrived at without offering the members of the public at large (or some
section of it) an opportunity to be heard. The challenge to a policy may
be sustainable if it is found to vitiate constitutional rights or is otherwise
in breach of a mandate of law.
C
89. For the reasons discussed above, the decision to abolish the
OAT cannot be assailed on the ground that there was a violation of the
principles of natural justice. Article 14 of the Constitution has not been
violated.
vi. The Union Government did not become functus officio after D
establishing 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 a life and power,
but which has become of no virtue whatsoever … One who has E
fulfilled his office or is out of office; an authority who has performed
the act authorised so that the authority is exhausted”
91. Black’s Law Dictionary (5th edition) defines the term as
follows:
F
“Having fulfilled the function, discharged the office, or
accomplished the purpose, and therefore of no further force or
authority … an instrument, power, agency, etc. which has fulfilled
the purpose of its creation, and is therefore of no further virtue or
effect.”
92. The doctrine of functus officio gives effect to the principle of G
finality. Once a judge or a quasi-judicial authority has rendered a decision,
it is not open to her to revisit the decision and amend, correct, clarify, or
reverse it (except in the exercise of the power of review, conferred by
law). Once a judicial or quasi-judicial decision attains finality, it is subject
to change only in proceedings before the appellate court. H
792 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 93. For instance, Section 362 of the Code of Criminal Procedure
1973 provides that a court of law is not to alter its judgment once it is
signed:
“362. Court not to alter judgment.—Save as otherwise provided
by this Code or by any other law for the time being in force, no
B Court, when it has signed its judgment or final order disposing of
a case, shall alter or review the same except to correct a clerical
or arithmetical error.”
In Hari Singh Mann v. Harbhajan Singh Bajwa35, this Court
recognized that Section 362 was based on the doctrine of functus officio:
C “10. … The section is based on an acknowledged principle of law
that once a matter is finally disposed of by a court, the said court
in the absence of a specific statutory provision becomes functus
officio and disentitled to entertain a fresh prayer for the same
relief unless the former order of final disposal is set aside by a
D court of competent jurisdiction in a manner prescribed by law.
The court becomes functus officio the moment the official order
disposing of a case is signed. Such an order cannot be altered
except to the extent of correcting a clerical or an arithmetical
error.”

E 94. The doctrine of functus officio exists to provide a clear point
where the adjudicative process ends and to bring quietus to the dispute.
Without it, decision-making bodies such as courts could endlessly revisit
their decisions. With a definitive endpoint to a case before a court or
quasi-judicial authority, parties are free to seek judicial review or to prefer
an appeal. Alternatively, their rights are determined with finality. Similar
F considerations do not apply to decisions by the state which are based
entirely on policy or expediency.
95. Turning to the present case, the appellants’ argument that the
Union Government was rendered functus officio after establishing the
OAT does not stand scrutiny. The decision to establish the OAT was
G administrative and based on policy considerations. If the doctrine of
functus officio were to be applied to the sphere of administrative decision-
making by the state, its executive power would be crippled. The state
would find itself unable to change or reverse any policy or policy-based
35
(2001) 1 SCC 169
H
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 793
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

decision and its functioning would grind to a halt. All policies would attain A
finality and any change would be close to impossible to effectuate.
96. This would impact not only major policy decisions but also
minor ones. For example, a minor policy decision such as a bus route
would not be amenable to any modification once it was notified. Once
determined, the bus route would stay the same regardless of the demand B
for, say, an additional stop at a popular destination. Major policy decisions
such as those concerning subsidies, corporate governance, housing,
education and social welfare would be frozen if the doctrine of functus
officio were to be applied to administrative decisions. This is not
conceivable because it would defeat the purpose of having a government
and the foundation of governance. By their very nature, policies are C
subject to change depending on the circumstances prevailing in society
at any given time. The doctrine of functus officio cannot ordinarily be
applied in cases where the government is formulating and implementing
a policy.
97. In the present case, the State and Union Governments’ authority D
has not been exhausted after the establishment of an SAT. Similarly, the
State and Union Governments cannot be said to have fulfilled the purpose
of their creation and to be of no further virtue or effect once they have
established an SAT. The state may revisit its policy decisions in
accordance with law. For these reasons, the Union Government was E
not rendered functus officio after establishing the OAT.
vii. The notification dated 2 August 2019 is valid despite not
being expressed in the name of the President of India
98. The appellants challenge the notification dated 2 August 2019
on the ground that it does not comply with the requirements of clause (1) F
of Article 77 because it was not issued in the name of the President of
India.
99. Article 77 of the Constitution of India indicates:
“Conduct of business of the Government of India.—
G
(1) All executive action of the Government of India shall be
expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name
of the President shall be authenticated in such manner as may be
specified in rules to be made by the President, and the validity of H
794 SUPREME COURT REPORTS [2023] 6 S.C.R.

A an order or instrument which is so authenticated shall not be called
in question on the ground that it is not an order or instrument
made or executed by the President.
(3) The President shall make rules for the more convenient
transaction of the business of the Government of India, and for
B the allocation among Ministers of the said business”
Article 166 corresponds to Article 77. It states:
“Conduct of Business of the Government of a State.—
(1) All executive action of the Government of a State shall be
C expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name
of the Governor shall be authenticated in such manner as may be
specified in rules to be made by the Governor, and the validity of
an order or instrument which is so authenticated shall not be called
D in question on the ground that it is not an order or instrument
made or executed by the Governor.
(3) The Governor shall make rules for the more convenient
transaction of the business of the Government of the State, and
for the allocation among Ministers of the said business in so far as
it is not business with respect to which the Governor is by or
E
under this Constitution required to act in his discretion”
Clause (1) of Article 166 corresponds to clause (1) of Article 77.
As a consequence, decisions of this Court with respect to clause (1) of
Article 166 will be of persuasive value while interpreting clause (1) of
Article 77.
F
100. In Air India Cabin Crew Assn. v. Yeshaswinee
Merchant36, a two-judge Bench of this Court held that the exercise of
statutory power is not rendered invalid if it is not expressed to have been
taken in the name of the President:
G “72. In our opinion, reference to Article 77 is wholly inappropriate.
The exercise of statutory power under Section 34 by the Central
Government, even though not expressed to have been taken in
the name of President, does not render it invalid. Clause (2) of
Article 77 insulates an executive action of the Government formally
36
H (2003) 6 SCC 277
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 795
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

taken in the name of President from challenge on the ground that A
it is not an order or instrument made or executed by President.
Even if an executive action of the Central Government is not
formally expressed to have been taken in the name of President,
Article 77 does not provide that it would, therefore, be rendered
void or invalid. … In Major E.G. Barsay v. State of Bombay
B
(1962) 2 SCR 195, a two-judge bench of this Court held:
“25. … Shortly stated, the legal position is this: Article 166(1) is
only directory. Though an impugned order was not issued in strict
compliance with the provisions of Article 166(1), it can be
established by evidence aliunde that the order was made by the
appropriate authority. If an order is issued in the name of the C
Governor and is duly authenticated in the manner prescribed in
Rule (2) of the said Article, there is an irrebuttable presumption
that the order or instrument is made or executed by the
Governor. Any non-compliance with the provisions of the
said rule does not invalidate the order, but it precludes the D
drawing of any such irrebuttable presumption. This does
not prevent any party from proving by other evidence that
as a matter of fact the order has been made by the
appropriate authority. Article 77 which relates to conduct of
business of the Government of India is couched in terms similar
to those in Article 166 and the same principles must govern E
the interpretation of that provision.”
(emphasis supplied)
101. Similar principles govern the interpretation of Article 166
and Article 77. A notification which is not in compliance with clause (1) F
of Article 77 is not invalid, unconstitutional or non-est for that reason
alone. Rather, the irrebuttable presumption that the notification was issued
by the President of India (acting for the Union Government) is no longer
available to the Union Government. The notification continues to be valid
and it is open to the Union Government to prove that the order was
indeed issued by the appropriate authority. G
102. In the present case, the notification dated 2 August 2019
was not issued in the name of the President. However, this does not
render the notification invalid. The effect of not complying with Article
77 is that the Union Government cannot claim the benefit of the
H
796 SUPREME COURT REPORTS [2023] 6 S.C.R.

A irrebuttable presumption that the notification dated 2 August 2019 was
issued by the President. Hence, the appellants’ argument that the
notification dated 2 August 2019 is invalid and unconstitutional is specious.
103. Here, it is appropriate to note that the notification dated 4
July 1986 (by which the OAT was established) was also not issued in
B the name of the President. However, the appellants seek to preserve the
establishment of the OAT by that notification while assailing the
notification abolishing the OAT. If the arguments of the appellants were
to be accepted, the notification dated 4 July 1986 would be invalid. We
are therefore not inclined to entertain the argument that the notification
dated 2 August 2019 is invalid and non-est.
C
104. We are satisfied that both the notification dated 4 July 1986
and the notification dated 2 August 2019 were, in substance, issued by
the President (acting for the Union Government). The notifications were
published in the Gazette of India in accordance with law and there is
nothing on record to support the suggestion that an authority which is not
D empowered to issue the notification has issued it. To the contrary, Section
4 of the Administrative Tribunals Act empowers the Union Government
to issue a notification establishing the OAT and as discussed previously,
the attendant power to rescind a notification so issued is also available to
the Union Government. The issuance of both notifications was an exercise
E of the Union Government’s statutory power under the Administrative
Tribunals Act.
105. The appellants place reliance on the decision of a Constitution
Bench of this Court in Dattatraya Moreshwar Pangarkar v. State of
Bombay37 and specifically on the sentence in paragraph 24, which states:
F “24. …when the executive decision affects an outsider or is
required to be officially notified or to be communicated it should
normally 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 sentence
G in paragraph 24, by which this Court accepts the argument that Article
166 is a directory provision:
“24. … The learned Attorney General then falls back upon the
plea that an omission to make and authenticate an executive

37
H (1952) 1 SCC 372
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 797
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

decision in the form mentioned in Article 166 does not make the A
decision itself illegal, for the provisions of that article, like their
counterpart in the Government of India Act, are merely directory
and not mandatory … In my opinion, this contention of the learned
Attorney General must prevail.
25. It is well settled that generally speaking the provisions of a B
statute creating public duties are directory and those conferring
private rights are imperative. When the provisions of a statute
relate to the performance of a public duty and the case is such
that to hold null and void acts done in neglect of this duty would
work serious general inconvenience or injustice to persons who
have no control over those entrusted with the duty and at the C
same time would not promote the main object of the legislature, it
has been the practice of the courts to hold such provisions to be
directory only, the neglect of them not affecting the validity of the
acts done.”
107. Article 77 is a directory provision. Article 77(1) refers to the D
form 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) of
Article 77. It does not have any bearing on the process of decision-
making itself. The public or the citizenry would stand to suffer most
from the consequences of declaring an order that is not expressed in the E
name of the President null and void. Hence, the appellants’ reliance on
Dattatraya Moreshwar Pangarkar (supra) is misplaced.
108. The appellants also seek to rely on State of Uttaranchal v.
Sunil Kumar Vaish38, where a two-judge bench of this Court observed:
“23. … unless an order is expressed in the name of the President F
or the Governor and is authenticated in the manner prescribed by
the rules, the same cannot be treated as an order on behalf of the
Government.”
In this case, no reference is made to the decision of the Constitution
Bench in Dattatraya Moreshwar Pangarkar (supra), which would be G
binding on the two-judge bench in Sunil Kumar Vaish (supra). As noted
above, Dattatraya Moreshwar Pangarkar (supra) held that the
provisions of Article 166 were directory and not mandatory. This would
38
(2011) 8 SCC 670
H
798 SUPREME COURT REPORTS [2023] 6 S.C.R.

A apply squarely to the provisions of Article 77 as well. The decision in
Sunil 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 India39 to support their case. However, the decision in
this case does not support the position urged by the appellants because
B it, too, holds that the consequence of non-compliance with Article 77(1)
is that it deprives the Union Government of the immunity conferred by
Article 77(2). It also notices that executive action exercised pursuant to
powers conferred under a statute stands on a different footing from
executive action taken independent of a statute:
“19. Article 77 of the Constitution provides the form in which the
C Executive must make and authenticate its orders and decisions.
Clause (1) of Article 77 provides that all executive action of the
Government must be expressed to be taken in the name of the
President. The celebrated author H.M. Seervai in Constitutional
Law of India, 4th Edn., Vol. 2, 1999 describes the consequences
D of government orders or instructions not being in
accordance with clauses (1) or (2) of Article 77 by opining
that the same would deprive the orders of the immunity
conferred by the aforesaid clauses and they may be open to
challenge on the ground that they have not been made by
or under the authority of the President in which case the
E burden would be on the Government to show that they were,
in fact, so made. In the present case, the said burden has not
been discharged in any manner whatsoever. The decision in
Air India Cabin Crew Assn. v. Yeshaswinee Merchant
[(2003) 6 SCC 277, p. 311, para 72 : 2003 SCC (L&S) 840]
, taking a somewhat different view can, perhaps, be
F
explained by the fact that in the said case the impugned
directions contained in the government letter (not
expressed in the name of the President) was in exercise of
the statutory power under Section 34 of the Air Corporations
Act, 1953. In the present case, the impugned guidelines
G have not been issued under any existing statute.”
(emphasis supplied)
In the present case, the notification dated 2 August 2019 was
issued in exercise of the statutory powers under the Administrative
Tribunals Act.
39
H (2014) 10 SCC 673
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 799
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

110. For the reasons discussed in this segment, the notification A
dated 2 August 2019 is valid despite not being expressed in the name of
the 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 has B
made the court system less accessible to litigants and that it is therefore
violative of the fundamental right of access to justice. They have relied
on the decision in Anita Kushwaha v. Pushap Sudan40, where a Con-
stitution Bench of this Court discussed the components of access to
justice: C
“33. Four main facets that, in our opinion, constitute the essence
of access to justice are:
(i) the State must provide an effective adjudicatory mechanism;
(ii) the mechanism so provided must be reasonably accessible in D
terms of distance;
(iii) the process of adjudication must be speedy; and
(iv) the litigant’s access to the adjudicatory process must be
affordable.”
The appellants contend that the abolition of the OAT breaches E
the second and fourth facets of the right of access to justice. They
argue that the OAT has two regular benches and two circuit benches
but the Orissa High Court has one seat in Cuttack, thereby making the
adjudicatory mechanism less accessible in terms of distance. They urge
that the distance also makes the adjudicatory process less affordable F
because of the cost of travelling to Cuttack from different parts of the
state.
112. The fundamental right of access to justice is no doubt a crucial
and indispensable right under the Constitution of India. However, it cannot
be interpreted to mean that every village, town, or city must house every G
forum of adjudication created by statute or the Constitution. It is an
undeniable fact that some courts and forums will be located in some
towns and cities and not others. Some or the other litigants will be required
to travel some distance to access a particular forum or court.
40
(2016) 8 SCC 509
H
800 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 113. To reiterate the ruling in Anita Kushwaha (supra),
adjudicatory mechanisms must be reasonably accessible in terms of
distance. The High Court of Orissa has creatively utilised technology to
bridge the time taken to travel from other parts of Odisha to Cuttack.
Indeed, other High Courts must replicate the use of technology to ensure
that access to justice is provided to widely dispersed areas. This will
B
ensure that citizens have true access to justice by observing and
participating in the proceedings before the High Courts in cases of concern
to them. The submission made on behalf of the State of Odisha that
compensation schemes may be used to alleviate financial hardships must
also be taken into account. Further, legal aid programs sponsored by the
C state are also useful in addressing any financial hardships, as observed
by this Court in Anita Kushwaha (supra):
“40. Affordability of access to justice has been, to an extent, taken
care of by the State-sponsored legal aid programmes under the
Legal Services Authorities Act, 1987. Legal aid programmes have
D been providing the much needed support to the poorer sections of
the society in accessing justice in courts.”
114. Significantly, the Orissa High Court has established benches
which will operate virtually in multiple cities and towns across the state.
This negates the appellants’ argument that the Orissa High Court is less
E accessible than the OAT. In fact, the number of virtual benches of the
High Court is greater than the number of benches of the OAT. Litigants
from across the state can access the High Court with greater ease than
they could access the OAT.
115. Litigants may therefore approach the Orissa High Court for
F the resolution of disputes. The abolition of the OAT does not leave litigants
without a remedy or without a 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 own
wrong
G 116. The appellants have argued that the State Government tried
to take advantage of its own wrong by failing to fill the vacancies in the
OAT and creating the conditions for the abolition of the OAT.
117. In paragraph 85 of this judgment, a portion of the note pre-
pared by the General Administration Department, Government of Odisha
H
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 801
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

dated 16 September 2015 is extracted. The note details the State A
Government’s reasons for requesting the Union Government to abolish
the OAT. The extract in paragraph 85 reflects data on the institution,
disposal, and pendency of cases before the OAT for the year 2014. The
State Government had not ceased to make appointments to the OAT at
the time at which this note was prepared. At that time, the OAT was
B
functioning as it usually did. The State Government found the OAT’s
usual performance (i.e., rate of disposal of cases) to be unsatisfactory.
This aspect of the OAT’s functioning played a role in the State
Government’s decision to abolish the OAT.
118. As noticed in the impugned judgment:
C
“48. … after the decision of the Government of Odisha to abolish
the OAT became public, it ceased to make appointments to fill up
the vacancies in the OAT. This led to the OAT Bar Association,
Cuttack filing W.P.(C) No. 15693 of 2017 in this Court seeking a
mandamus to the Government of Odisha to fill up the vacancies
in the OAT.” D

(emphasis supplied)
Therefore, the State Government discontinued appointments to
the OAT as a result of its decision to abolish the OAT and not vice
versa. The appellants’ averment confuses the sequence of events on E
which their argument is based. The State Government based its decision
on an evaluation of the OAT’s functioning in the year 2014, which was
prior to its decision to abolish the OAT. Hence, there is no “wrong”
which the State Government took advantage of. Similarly, we do not
agree with the argument of the appellants that the Union of India had
systematically made the OAT non-functional. F
119. A related argument put forth by the appellants is that the
State Government’s failure to fill the vacancies in the OAT is a breach
of Article 256 of the Constitution. Article 256 inter alia stipulates that the
executive power of every State shall be so exercised as to ensure
compliance with the laws made by Parliament. It is not necessary for us G
to address ourselves to this argument because the prayers in the Writ
Petitions which resulted in the impugned judgment did not seek an
adjudication as to the violation of Article 256. The lis before the Orissa
High Court was limited to the validity of the decision to abolish the OAT.
We therefore confine our judgment on appeal to the same issue.
H
802 SUPREME COURT REPORTS [2023] 6 S.C.R.

A x. The failure of the Union Government to conduct a judi-
cial impact assessment before abolishing the OAT does
not vitiate its decision to abolish the OAT
120. The appellants contend that the Union Government ought to
have mandatorily complied with the directions of a Constitution Bench
B of this Court (of which one of us, Dr, DY Chandrachud, J was a part) in
Rojer Mathew v. South Indian Bank Ltd.41 prior to abolishing the
OAT. The intervenor in this matter has also advanced the argument that
the Union Government ought to have taken the permission of this Court
before abolishing the OAT.
121. In Rojer Mathew (supra), this Court directed the Union
C Government to conduct a judicial impact assessment of certain tribu-
nals. The operative part of this judgment (from the majority opinion of
Ranjan Gogoi, CJI) in relation to judicial impact assessments is extracted
below:
“223.7. There is a need-based requirement to conduct “judicial
D impact assessment” of all the Tribunals referable to the Finance
Act, 2017 so as to analyse the ramifications of the changes in the
framework of tribunals as provided under the Finance Act, 2017.
Thus, we find it appropriate to issue a writ of mandamus to the
Ministry of Law and Justice to carry out such “judicial impact
E assessment” and submit the result of the findings before the
competent legislative authority.”
122. The direction to conduct a judicial impact assessment,
therefore, was of a general nature. It was not geared towards proposals
to abolish specific tribunals such as the OAT. Rather, a need was felt to
analyse the consequences of the restructuring of tribunals by the Finance
F Act 2017 and a writ of mandamus was issued in this regard to the Ministry
of Law and Justice. The judicial impact assessment was also directed to
be conducted in order to better understand the case load, efficacy,
financial impact, and accessibility of tribunals at large, in addition to the
filling of vacancies.42 We note that neither the majority opinion authored
G by Ranjan Gogoi, CJI nor the opinions of Dr. DY Chandrachud, J. or
Deepak Gupta, J. contain a direction to the effect that a tribunal shall not
be abolished in the absence of a judicial impact assessment. In the present
case, the Union Government issued the notification dated 2 August 2019
41
(2020) 6 SCC 1
42
H See paragraphs 185, 222, 223.7, 234, 387 – 390.
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 803
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

in a valid exercise of its powers under Section 21 of the General Clauses A
Act. The failure to conduct a judicial impact assessment does not vitiate
its decision to abolish the OAT. Nothing in the judgment in Rojer Mathew
(supra) also indicates the need for the Union Government to obtain the
permission of this Court before abolishing the OAT.
123. However, this is not to say that the Union Government and B
more specifically, the Ministry of Law and Justice may dispense with
the directions of this Court in Rojer Mathew (supra). The judgment
was delivered on 13 November 2019. More than three years have since
passed and the Ministry of Law and Justice is yet to conduct a judicial
impact assessment.
124. An assessment such as the one directed to be conducted C
would only shed light on the impediments faced in the delivery of justice.
The lack of an assessment precludes any well-informed, intelligent action
concerning tribunals in the country (as a whole). This, in turn, has
cascading effects for the citizenry, which is deprived of a well-oiled
machinery by which it can access justice. We therefore reiterate the D
directions of this Court in Rojer Mathew (supra) and direct the Ministry
of Law and Justice to conduct a judicial impact assessment at the earliest.
xi. Miscellaneous contentions
125. A miscellaneous contention remains to be considered.
126. The appellants have submitted that the so-called real reason E
for the abolition of the OAT is that many top-ranking officials faced
charges of contempt before the OAT, for the reason that they had failed
to implement its orders. It is averred that these officials influenced the
State Government to abolish the OAT. The appellants argue that the
State and Union Governments did not deny this allegation in their counter
F
affidavits before the Orissa High Court and that this allegation is true
because of ‘non-traverse.’
127. There is nothing on record which indicates the truth of the
appellants’ allegations or even points to a possibility of the truth of such
an allegation. It is entirely unsubstantiated and appears to be a last-ditch
attempt to sustain their challenge to the abolition of the OAT. In any G
event, the averment belies logic. All cases pending before the OAT would
be transferred to the Orissa High Court, without exception. This in-
cludes contempt petitions. Hence, it would not be possible for officials
or others to avoid contempt proceedings as a result of the abolition of
the OAT. H
804 SUPREME COURT REPORTS [2023] 6 S.C.R.

A E. Findings and conclusion
128. In view of the discussion above, we hold that the abolition of
the OAT was constitutionally valid for the following reasons:
a. The Writ Petitions instituted before the Orissa High Court
were maintainable because the appellants claimed that their
B constitutional rights had been violated. They were therefore
entitled to invoke the jurisdiction of the High Court under
Article 226 of the Constitution;
b. Article 323-A does not preclude the Union Government from
abolishing SATs because it is an enabling provision which
C confers the Union Government with the power to establish
an administrative tribunal at its discretion (upon receiving a
request from the relevant State Government in terms of the
Administrative Tribunals Act). The legal and factual context
of the power to establish administrative tribunals, the pur-
pose of this power and the intention of the legislature estab-
D lish that there is no duty to exercise the power conferred by
the Administrative Tribunals Act, such that the enabling pro-
vision becomes a mandatory provision;
c. The Union Government acted in valid exercise of its powers
when it invoked Section 21 of the General Clauses Act read
E with 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 decision
and not a quasi-judicial decision. Moreover, Section 21 of
the General Clauses Act is not repugnant to the subject-matter,
context and effect of the Administrative Tribunals Act and is
F in harmony with its scheme and object;
d. The notification dated 2 August 2019 by which the OAT was
abolished is not violative of Article 14 of the Constitution.
The State Government did not consider any irrelevant or
extraneous factors while arriving at the decision to request
G the Union Government to abolish the OAT. The decision to
abolish the OAT is itself not absurd or so unreasonable that
no reasonable person would have taken it;
e. The principles of natural justice were not violated because
the class of people who were affected by the decision to
H abolish the OAT did not have a right to be heard. The public
ORISSA ADMINISTRATIVE TRIBUNAL BAR ASSOCIATION v. 805
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

at large (or some sections of it) did not have a right to be A
heard before the policy decision was taken;
f. The Union Government did not become functus officio after
establishing the OAT because the doctrine cannot ordinarily
be applied in cases where the government is formulating and
implementing a policy; B
g. The notification dated 2 August 2019 is valid though it is not
expressed in the name of the President of India because
non-compliance with Article 77 of the Constitution does not
invalidate a notification or render it unconstitutional;
h. The abolition of the OAT is not violative of the fundamental C
right of access to justice because the Orissa High Court will
hear cases which were pending before the OAT prior to its
abolition;
i. The State Government did not take advantage of its own
wrong because it stopped filling the vacancies of the OAT
only after deciding to abolish it. It did not rely on the vacan- D
cies (and the consequent increase in pendency) created by
its inaction to abolish the OAT; and
j. The failure of the Union Government to conduct a judicial
impact assessment before abolishing the OAT does not viti-
ate its decision to abolish the OAT because the directions in E
Rojer Mathew (supra) were of a general nature and did
not prohibit the abolition of specific tribunals such as the
OAT in the absence of a judicial impact assessment. How-
ever, the Ministry of Law and Justice is directed to conduct
a judicial impact assessment as directed by this Court in Rojer
F
Mathew (supra).
129. The challenge to the constitutional validity of the impugned
notification dated 2 August 2019 by which the OAT was abolished is
rejected. The judgment of the High Court shall stand affirmed in terms
of the conclusions recorded above. The appeals are dismissed.
G
130. Pending applications, if any, stand disposed of.

Nidhi Jain Appeals dismissed.
(Assisted by : Tamana, LCRA)

H