The state abolished its own tribunal. The Supreme Court said it could.

When the State Decided Its Own Tribunal Was Redundant

The Orissa Administrative Tribunal Bar Association had a simple argument: you cannot abolish a court-like body that the Constitution itself contemplates. The State of Odisha had a simpler answer: we don't need it anymore. After sixteen years of appeals, the Supreme Court of India sided with the State. But the judgment, delivered by a bench of Dr. Dhananjaya Y. Chandrachud, CJI and Hima Kohli, J. on 21 March 2023, did more than just uphold the abolition of the OAT. It settled a question that had been nagging administrative law for decades: can the government unmake what it once made?

At stake was the fate of thousands of pending cases before the OAT, the livelihoods of its staff, and the broader question of whether every State must maintain a separate tribunal for its government employees. The appellants—the Bar Association and a retired officers' welfare association—argued that the government had no power to rescind the notification that created the tribunal. The Supreme Court disagreed. And in doing so, it gave the government a playbook for dismantling tribunals it no longer finds useful.

The Cabinet Decision That Started It All

On 9 September 2015, the Cabinet of the Government of Odisha took a decision. It resolved to request the Union Government to abolish the Orissa Administrative Tribunal. The reason? The Supreme Court's landmark judgment in L. Chandra Kumar v. Union of India (1997) 3 SCC 261 had already declared that the High Court's jurisdiction under Articles 226 and 227 could not be excluded by tribunal setups. In Odisha's view, the OAT had become an unnecessary layer of litigation. Government employees could go directly to the High Court anyway. Why keep a tribunal that only added time and cost?

The State's logic was cold, hard, and practical. The Union Government agreed. After consulting the Orissa High Court—a step the Supreme Court later noted was crucial—the Central Government issued Notification GSR 552(E) on 2 August 2019. It rescinded the original notification GSR 934(E) dated 4 July 1986 that had established the OAT. The power was claimed under Section 4(2) of the Administrative Tribunals Act 1985 read with Section 21 of the General Clauses Act 1897.

The Bar Association and the retired officers' association moved the Orissa High Court. They lost. On 7 June 2021, the High Court dismissed their writ petitions. They appealed to the Supreme Court.

What the Appellants Argued

The challenge was multi-pronged. First, the appellants argued that Article 323A of the Constitution mandated the establishment of administrative tribunals. If the Constitution required it, the government could not simply abolish one. Second, they said the Administrative Tribunals Act 1985 contained no express power to abolish a tribunal once established. The government had become functus officio—it had exhausted its power the moment it issued the original notification. Third, they claimed the abolition violated natural justice: the users of the tribunal, including the Bar, had a right to be heard before the tribunal was shut down. Fourth, they argued the notification was invalid because it was not expressed in the name of the President as required by Article 77 of the Constitution. Fifth, they said the abolition violated the fundamental right of access to justice under Article 14. And sixth, they pointed to the precedent of M.P. High Court Bar Assn. v. Union of India (2004) 11 SCC 766, where the Supreme Court had held that the State Government must request the Union to abolish a State Administrative Tribunal, and the Union must accept such a request.

It was a formidable list. But the Supreme Court dismantled each argument with surgical precision.

Article 323A: Enabling, Not Mandatory

The Court began with the Constitution. Article 323A uses the word "may"—the Parliament may provide for the establishment of administrative tribunals. The word is not "shall." The provision is enabling, not mandatory. The Court held that Article 323A does not mandate the establishment of SATs, nor does it preclude the Union Government from abolishing them once established. The constitutional foundation of the appellants' case crumbled at the first blow.

This is a critical distinction for practitioners. When a constitutional provision uses "may," the government retains discretion. The discretion to create includes the discretion to uncreate—unless the statute says otherwise.

The Power to Rescind: Section 21 of the General Clauses Act

The core of the judgment turned on statutory interpretation. The Administrative Tribunals Act 1985, Section 4(2), empowers the Central Government to establish a State Administrative Tribunal by notification. But the Act is silent on whether that notification can be rescinded. The Court found the answer in Section 21 of the General Clauses Act 1897, which provides that where a power is conferred to issue a notification, that power includes a power to rescind it, unless a contrary intention appears.

The Court held that no contrary intention appears in the Administrative Tribunals Act. The power to establish includes the power to abolish. The government was not functus officio. The doctrine of functus officio cannot ordinarily be applied where the government is formulating and implementing policy. Policy decisions can be revisited. The Union Government retains the power to revisit the establishment of a SAT.

The Court distinguished M.P. High Court Bar Assn. on the ground that it arose under the Madhya Pradesh Reorganization Act, not the Administrative Tribunals Act. That case did not lay down a general principle applicable to all SATs. The precedent was confined to its own statutory context.

No Right to Be Heard Before a Policy Decision

The natural justice argument was briskly rejected. The decision to establish, continue, or abolish a SAT is a policy decision. The public at large has no right to be heard before such a policy is formulated and implemented. The Court observed that the users of the tribunal—litigants, lawyers, staff—are not entitled to a hearing before the government decides that the tribunal is no longer necessary. Policy decisions are made by the executive, not by stakeholders.

This is a hard but necessary principle. Governments cannot be held hostage by the beneficiaries of a policy when they decide to change it. The right to be heard attaches to individual rights, not to the existence of a forum.

Article 77: The Formality That Did Not Invalidate

The appellants argued that the notification was invalid because it was not expressed in the name of the President. Article 77 requires that all executive actions of the Government of India be expressed in the name of the President. The Court held that a notification not expressed in the name of the President is not invalid for that reason alone. The irrebuttable presumption of presidential issuance is lost, but the notification remains valid if the government proves that it was issued with proper authority. The Court found that the government had established proper authority. The formality was not fatal.

Access to Justice: The Forum Is Not the Right

The most significant argument was the last. The appellants claimed that abolishing the OAT violated the fundamental right of access to justice under Article 14. The Court rejected this with a principle that will resonate far beyond this case: the fundamental right of access to justice does not require every forum of adjudication to exist in every location. It is satisfied when an alternative forum is available.

Here, the alternative forum was the Orissa High Court. The High Court's jurisdiction under Articles 226 and 227 had never been excluded by the OAT's existence. After L. Chandra Kumar, the High Court had always retained supervisory jurisdiction over tribunal orders. The abolition of the OAT simply meant that government employees would now go directly to the High Court. Access to justice was not diminished; the route was shortened.

The Court also noted that the Orissa High Court had been consulted before the abolition. The High Court had indicated it could handle the additional workload. This consultation, the Court observed, was crucial. Had the government failed to consult the High Court, the procedure might have been arbitrary, as it would directly impact the High Court's functioning. This obiter observation may become a mandatory procedural requirement for future SAT abolitions.

THE PLAY: If you are advising a State Government that wants to abolish its SAT, the first step is to consult the High Court. Without that consultation, the abolition may be struck down as procedurally arbitrary.

Why This Matters in Practice

For advocates, this judgment is a masterclass in statutory interpretation. The interplay between the Administrative Tribunals Act and the General Clauses Act is now settled. The power to rescind is implied unless the statute expressly excludes it. For CFOs and founders, the principle is broader: when the government creates a regulatory body, it retains the power to dismantle it. No body is permanent. No forum is guaranteed.

For the Orissa Administrative Tribunal Bar Association, the loss is real. The tribunal is gone. Pending cases have been transferred to the High Court under Section 29 of the Administrative Tribunals Act. The staff has been redeployed. The Bar has lost its practice forum. But the Supreme Court's message is clear: tribunals are instruments of policy, not constitutional imperatives. When the policy changes, the instrument can be discarded.

The judgment also signals a legislative gap. The Court noted that the Administrative Tribunal (Amendment) Bill 2006 was introduced to provide enabling provisions for SAT abolition but was never enacted. Parliament may still address this. Future challenges may cite this legislative inaction. But for now, the government's power to abolish is judicially confirmed.

The Bottom Line

The Supreme Court dismissed the appeals. The abolition of the Orissa Administrative Tribunal was upheld. The government has the power to rescind the notification establishing a State Administrative Tribunal under Section 4(2) of the Administrative Tribunals Act read with Section 21 of the General Clauses Act, provided it consults the High Court and the decision is a bona fide policy choice. No tribunal is forever.