CASE NO.: Appeal (civil) 2826 of 1977 PETITIONER: CHIEF JUSTICE OF A.P. & ANR. RESPONDENT: L.V.A. DIKSHITULU & ORS. DATE OF JUDGMENT: 12/09/1978 BENCH: Y.V. CHANDRACHUD (CJ) & R. S. SARKARIA & N.L. UNTWALIA & A.D. KOSHAL & A.P. SEN JUDGMENT:
JUDGMENT
1979 AIR 193 = 1979 ( 1 ) SCR 26 = 1979 ( 3 ) SCC 34
With
Civil Appeal 278 of 1978
The Judgment was delivered by : SARKARIA
SARKARIA, J. : – This judgment will not only dispose of this Appeal (C. A.
2826 of 1977) but also furnish reasons in support of our short order dated
August 4, 1978, by which we allowed Civil Appeal No. 278 of 1978.
2. Both these Appeals raise a common question with regard to the
interpretation, scope and impact of Article 371-D on Articles 226, 229 and
235 of the Constitution.
3. In Civil Appeal 2826 of 1977, appellant 1 is the Chief Justice and
appellant 2 is the High Court of Andhra Pradesh represented by the
Registrar of that Court. Respondent 1, Shri L. V. A. Dikshitulu is a former
employee of the High Court whose premature retirmeent is in question.
Respondents 2 and 3 are the Government, and the Accountant General,
respectively, of Andhra Pradesh.
4. Respondent 1 was a permanent employee of the former Hyderabad High Court
prior to November 1, 1956. He was confirmed in the post of Chief
Superintendent on the establishment of that High Court on October 6, 1956.
At the time of his confirmation, he was serving on deputation, with the
concurrence of the Chief Justice of the Hyderabad High Court, as Junior Law
Officer in the Ministry of Law, Government of India. In March 1965, with
the concurrence of the Chief Justice of the High Court of Andhra Pradesh –
which was the successor High Court to the Hyderabad High Court – he was
appointed as a temporary Deputy Secretary in the Law Department of the
Government of Andhra Pradesh.
5. By an order dated February 6, 1968, the State Government replaced his
services at the disposal of the Chief Justice. On his reversion from
deputation he rejoined the establishment of the High Court as Sub-Assistant
Registrar on February 8, 1968.
6. On that very day, the High Court received a complaint petition from one
Smt. Promila Reddy, an Assistant Translator in the State Law Department,
alleging misconduct on the part of the 1st Respondent relating to the
period during which he was working as Deputy Secretary in the State
Government.
7. A preliminary inquiry was conducted by the then Registrar Shri M.
Ramachandra Raju (later Judge of High Court of Andhra Pradesh) respondent 4
herein. The Registrar submitted his preliminary inquiry report to the then
Chief Justice. After considering the report the then Chief Justice
suspended the 1st respondent and ordered a departmental inquiry against him
by Mr. Justice Chinappa Reddy. After due inquiry, the enquiring Judge found
the 1st respondent guilty of misconduct and recommended his suspension from
service for three years. The Chief Justice, however, differed with the
enquiring Judge, regarding the punishment, and proposed to impose the
punishment of compulsory retirement after issue of a show-cause notice to
that effect. After considering the representations made by the 1st
Respondent, the Chief Justice by an order, dated January 3, 1969,
compulsorily retired him from service.
8. The 1st respondent then moved the High Court under Article 226 of the
Constitution by a writ petition (No. 1425 of 1969) questioning the order of
the State Government replacing his services with the High Court and
assailing the penalty of compulsory retirement inflicted upon him by the
Chief Justice. The High Court set aside the order of reversion of the first
respondent from deputation to the High Court staff on the ground that there
was a stigma attached thereto. It also set aside the order of compulsory
retirement, not on merits, but on the ground that the recommendation of the
enquiring Judge in regard to punishment, viz. stoppage of increments, was
not communicated to him (1st respondent). The High Court while allowing the
writ petition observed that it will be open to the State Government to take
action against him in accordance with the Andhra Pradesh Civil Service (C.
C. A.) Rules pertaining to lent officers.
9. After the first respondent’s writ petition (No. 1425 of 1969) was
allowed, the State Government by an order, dated November 10, 1970,
reinstated the 1st respondent as Deputy Secretary with effect from February
8, 1968, and once again replaced his services at the disposal of the Chief
Justice with effect from April 25, 1968. The State Government did not take
further departmental action on the complaint of Smt. Promila Reddy.
10. The 1st respondent then filed another Writ Petition (No. 5442 of 1970)
under Article 226 of the Constitution in the High Court impugning the
order, dated November 10, 1970, of the State Government. But, the High
Court dismissed the same by a judgment, dated December 30, 1970. The first
respondent’s appeals (C. A. 476 and CA. 1536 of 1971) against the order of
the High Court in the aforesaid writ petitions are pending in this Court.
11. After the dismissal of his writ petition (No.5442/70), the first
respondent on reinstatement, joined duty as Sub-Assistant Registrar in the
High Court. Thereafter, he was promoted by the then Chief Justice as
Assistant Registrar. Later, he was promoted as Deputy Registrar.
12. In 1975, A. P. Government Servants’ Premature Retirement Rules, 1975
came into force. Under the Rules, which amended Andhra Pradesh Liberalised
Pension Rules, 1961 and the Hyderabad Civil Service Rules, employees of the
State who have completed 25 years of service or completed 50 years age can
be prematurely retired after 3 months’ notice or grant of 3 months’ pay in
lieu of notice. Rule 19 of the Andhra Pradesh High Court Service Rules
contains a similar provision.
13. Thereafter on September 19, 1975, a Committee was constituted under an
order of the Chief Justice. It consisted of the Acting Chief Justice and
two Judges (Madhava Reddy and Ramachandra Raju, JJ.) of the High Court. The
Committee reviewed the service records of the servants and officers of the
High Court who had reached the age of 50 years. The 1st Respondent, Sri
Dikshitulu had attained the age of 50 years on March 12, 1974. The
Committee resolved to retire him prematurely, among others, in public
interest. By an order, dated September 26, 1975, of the Acting Chief
Justice, purporting to have been passed under Article 229 of the
Constitution read with Rule 19 of the Andhra Pradesh High Court Service
Rules, R. 3 (2) (a) of Andhra Pradesh Liberalised Pension Rules 1961/Rule
292 of the Hyderabad Civil Service Rules and Rule 2 (1) of A.P. Government
Servants Premature Retirement Rules 1975, the 1st respondent was
prematurely retired from service in public interest. On April 8, 1976, he
filed a Review Petition. The then Chief Justice rejected his Review
Petition. The rejection was communicated to him by a latter, dated
September 13, 1976.
14. The first respondent, again, moved the High Court on the Judicial Side
by a writ petition (No. 58908 of 1976) under Article 226 of the
Constitution, praying for a writ of certiorari to quash the orders of his
premature retirement. The writ petition came up for preliminary hearing
before a Division Bench of the High Court, which by a lengthy speaking
order (after hearing the Government Pleader), on October 29, 1976,
dismissed it on the preliminary ground that it was not maintainable because
“the jurisdiction of the High Court which was hitherto being exercised
under Article 226 of the Constitution to correct orders of the Chief
Justice on the administrative side with regard to conditions of service of
officers of the High Court now stands vested in the Administrative Tribunal
by reason of Cl.6(1) of the Administrative Tribunal Order (made by
President) under Article 371-D of the Constitution ”
.
15. The first respondent then on November 16, 1976, moved the Andhra
Pradesh Administrative Tribunal, impugning the order of his compulsory
retirement. In that petition the first respondent inter alia contended that
Mr. Justice M. Ramachandra Raju, who set on the Committee to consider the
case of the 1st respondent for premature retirmenet, was biased against him
and that the impugned order, dated September 26, 1975, of his premature
retirement was arbitrary and capricious. The Tribunal, however, set aside
the impugned order of the 1st respondent’s premature retirement made by the
Chief Justice on the sole ground that it is arbitrary and amounts to a
penalty of dismissal or removal from service and is hit by Article 311 (2)
of the Constitution.
16. Against the aforesaid order, dated August 24, 1977, the appellants have
now come in appeal before us by special leave under Article 136 of the
Constitution.
17. Now, the relevant facts giving rise to Civil Appeal No. 278 of 1978,
may be set out.
The 1st respondent, Shri V. V. S. Krishnamurthy, in that appeal was, at the
material time, a member of the Andhra Pradesh State Judicial Service. He
attained the age of 50 years on November 24, 1974. He was prematurely
retired, in public interest, by an order dated September 29, 1975 of the
State Government on the recommendation of the High Court. Before the
Government passed this order, a Committee of Judges appointed by the High
Court, considered the entire service record of the 1st respondent and
records of other Judicial Officers and decided to prematurely retire the
first respondent in public interest.
18. The first respondent filed a petition before the Andhra Pradesh
Administrative Tribunal, challenging the order of his premature retirement
made by the State Government. It was contended by him that his service
record has throughout been good. Before the Tribunal, the High Court
resisted the respondent’s petition on the ground that the order of
premature retirement was based upon the over-all performance of the
respondent and the order had been passed in public interest and was in
accordance with the Rules.
19. On behalf of the 1st respondent, a memorandum was filed, in which it
was contended that since, according to the Andhra Pradesh State Judicial
Service Rules, the High Court in the case of Subordinate Judges is the
appointment authority, the Governor has no. power or jurisdiction to pass
an order of premature retirement of a member of the State Judicial Service.
The Tribunal accepted this contention and allowed the Respondent’s petition
without considering the other contentions raised in the petition and set
aside the order of the respondent’s premature retirement.
20. Against that Order of the Tribunal, the High Court of Andhra Pradesh
came in appeal (C.A. 278 of 1978) by special leave to this Court under
Article 136 of the Constitution.
21. The first contention of Shri Lal Narain Sinha, appearing for the
appellants, is that in the context of basic and fundamental principles
underlying the Constitution relating to the judiciary including the High
Court, officers and servants of the High Court and members of the judicial
services are outside the scope of Article 371-D of the Constitution. It is
urged that the general expressions indicating class or classes of posts in
Article 371-D (3) must be given a restricted interpretation which is in
harmony with this basic scheme of the Constitution.
22. The thrust of the argument is that in the absence of clear, unequivocal
words in Article 371-D (3) showing a contrary intention, the Article cannot
be construed as taking away the jurisdiction of the High Court under
Article 226 to review administrative action against a member of the High
Court staff or the Subordinate Judiciary. Any other construction, proceeds
the argument, will militate against the exclusiveness of the control vested
in the Chief Justice under Article 229, and in the High Court under Article
235 over the High Court staff or the Subordinate Judiciary, as the case may
be, and will make such control subject and subservient to the wishes of the
Executive Government which, in terms of the Presidential Order constituting
the Administrative Tribunal, is the ultimate authority to confirm, vary or
annul the orders passed by the Tribunal. In support of his contention that
the basic scheme of the Constitution seeks to ensure the independence of
the High Court staff and the judiciary from executive control, learned
counsel has referred to Pradyat Kumar Bose v. The Hon’ble the Chief Justice
of Calcutta High Court : , M. Gurumoorthy v. Accountant General, Assam and
Nagaland 1971 (Supp) SCR 420 : ); State of West Bengal v. Nirpendra Nath
Bagchi ); Baldev Raj Guliani v. Punjab and Haryana High Court : and
State of U. P. v. Batuk Deo Pati Tripathi : (1978 Lab IC 839).
23. As against the above, Shri Vepa Sarathy, appearing for the respective
first respondents in C. A. 2826 of 1977 and in C.A. 278 of 1978 submitted
that when his client filed a writ petition (No. 58908 of 1976) under
Article 226 of the Constitution in the High Court for impugning the order
of his compulsory retirement passed by the Chief Justice, he had served, in
accordance with Rule 5 of the Andhra Pradesh High Court (Original Side)
Rules, notice on the Chief Justice and the Government Pleader, and, in
consequence, at the preliminary hearing of the writ petition before the
Division Bench the Government Pleader appeared on behalf of all the
respondents including the Chief Justice, and raised a preliminary objection
that the writ petition was not maintainable in view of Cl.6 of the Andhra
Pradesh Administrative Tribunal Order made by the President under Article
371-D which had taken away that jurisdiction of the High Court and vested
the same in the Administrative Tribunal. This objection was accepted by the
High Court, and as a result, the writ petition was dismissed in limine. In
these circumstances – proceeds the argument – the appellant is now
precluded on principles of res judicata and estoppel from taking up the
position, that the Tribunal’s order is without jurisdiction. But, when Shri
Sarathy’s attention was invited to the fact that no. notice was actually
served on the Chief Justice and that the Government Pleader who had raised
this objection, had not been instructed by the Chief Justice on their
behalf, the counsel did not pursue this contention further. Moreover, this
is a pure question of law depending upon the interpretation of Article 371-
D. If the argument holds good, it will make the decision of the Tribunal as
having been given by an authority suffering from inherent lack of
jurisdiction. Such a decision cannot be sustained merely by the doctrine of
res judicata or estoppel as urged in this case.
24. In the alternative, Shri Sarathy submitted that the subject-matter of
this case will fall within the purview of sub-clause (c) of Clause (3) of
Article 371-D, because (i) compulsory retirement is a condition of service,
and (ii) the 1st respondent was a person appointed to a post in a “civil
service of the State” within the contemplation of the said Clause.
According to Shri Sarathy, even if an order issued by the President under
Clause (3) of Article 371-D abridges, curtails or takes away the powers
vested in the Chief Justice under Art. 229, or in the High Court under
Articles 226 and 235, or is contrary to the constitutional scheme of
securing independence of the judiciary, such a result was intended to be
brought about by the amendment of the Constitution as is clear from the non
obstante provision in Clause (10) of this Article. Shri Sarathy further
invited our attention to the definition of the expression “public post”
given in the order of the President issued under Article 371-D (3). This
definition according to the learned counsel, is wide enough to include all
posts held by the staff of the High Court and the Subordinate Judiciary.
25. To appreciate the contentions canvassed before us, it is necessary, at
the outset, to have a look at the constitutional scheme delineated in
Chapters V and VI (Part IV), in general, and the content of Articles 229
and 235, in particular.
26. Chapter V is captioned : “The High Court in the States”. It provides
for various matters relating to High Courts, such as constitution of High
Courts (Article 216), Appointment and Conditions of the office of a Judge
(Art. 217) Salaries of Judges (Art. 221), Transfer of Judges (Art. 222).
Jurisdiction of existing High Courts and the powers of the Judges thereof
in relation to the administration of justice in the Court, including the
power to make rules of Court and to regulate the sittings of the Court
(Art. 225), Art. 226 gives power to High Court to issue certain Writs
against any Government for the enforcement of fundamental rights and for
the redress of any substantial injury arising by reason of any substantive
or procedural illegality. Article 228 confers powers on a High Court to
withdraw to its own file cases involving a substantial question of law as
to the interpretation of the Constitution. Then comes the crucial provision
in Article 229, which is the fulcrum of the scheme of this Chapter. Article
229 bears the marginal headings : “Officers and Servants and the expenses
of High Courts”. Clause (1) of the Article provides that
“appointments of officers and servants of a High Court shall be made by the
Chief Justice of the Court or such other Judge or Officer of the Court as
he may direct”
. Then there is a proviso to this clause with which we are not concerned in
the instant case. Clause (2) empowers the Chief Justice or some other Judge
or Officer authorised by him to make rules prescribing the conditions of
service of officers and servants of the High Court. This power, of course,
is “subject to the provisions of any law made by the Legislature of the
State”. Then, there is a proviso to this Clause, also, which requires that
the
“Rules made by the Chief Justice or the Judge or Officer authorised by him
under this Clause shall so far as they relate to salaries, allowances,
leave or pensions, require the approval of the Governor of the State.
Clause (3) makes the administrative expenses of a High Court, including all
salaries, allowances and pensions payable to or in respect of the officers
and servants of the Court, a charge upon the Consolidated Fund of the
State.
27. Now, let us see what is the ambit and scope of the power of
“appointment” in Article 229 (1). In the context of Art. 229, read as a
whole this power is of wide amplitude. The word “appointment” in Article
229 (1) is to be construed according to the axiom that the greater includes
the less. This cardinal canon of interpretation underlies Sec. 16 of the
General Clauses Act which has been made applicable by Article 317 (1) of
the Constitution. Construed in the light of this juristic principle, the
power of “appointment” conferred by Article 229 (1) includes the power to
suspend, dismiss, remove or compulsorily retire from service. In short, in
regard to the servants and officers of the High Court, Article 229 makes
the power of appointment, dismissal, removal, suspension, reduction in
rank, compulsory retirement etc. including the power to prescribe their
conditions of service, the sole preserve of the Chief Justice, and no.
extraneous executive authority can interfere with the exercise of that
power by the Chief Justice or his nominee except to a very limited extent
indicated in the Provisos. In conferring such exclusive and supreme powers
on the Chief Justice, the object which the Founding Fathers had in view,
was to ensure independence of the High Court.
28. The nature and scope of the powers of the Chief Jusitce under Art. 229
has been the subject of several decisions of this Court. In Pradyat Kumar
Bose v. The Hon’ble the Chief Justice of Calcutta ) (supra), two
questions, among others, came up for consideration : (i) Whether the Chief
Justice of a High Court has the power to dismiss from service an officer of
the High Court? (ii) If so, whether the Chief Justice could pass an order
of such dismissal without previous consultation with the Public Service
Commission, as provided by Art. 320 of the Constitution. The Court answered
both the questions in the affirmative.
29. Dealing with the second question, the Court pointed out that members of
the High Court staff are not “persons serving under the Government of a
State”, and that this phrase – used in Art. 320 (3) (c) -”
seems to have reference to such persons in respect of whom the
administrative control is vested in the respective executive Governments
functioning in the name of the President or of the Governor
“. It was held that the servants and officers of the High Court do not fall
within the scope of this phrase”
because in respect of them the administrative control is clearly vested in
the Chief Justice who under the Constitution, has the power of appointment
and removal and of making rules for their conditions of service”. It was
further observed :” The fact that different phrases have been used in the
relevant sections of the Government of India Act (1935) and the
Constitution relating to the constitutional safeguards in this behalf
appears to be meant to emphasise the differentiation of the services of the
High Court from other services”.
“……Therefore, both on the ground that Article 320 (3) (c) would be
contrary to the implication of Article 229 and o the ground that the
language thereof is not applicable to the High Court staff, we are of the
opinion that for the dismissal of the appellant by the Chief Justice, prior
consultation with the Public Service Commission was not necessary
“.
30. It was, however, conceded that for the purposes of Article 311, the
phrase “a person who is a member of a civil service of a State” used in
that Article includes the officers and servants of the High Court.
31. The powers of Chief Justice under Article 229 again came up for
consideration before this Court in M. Gurumoorthy v. Accountant General,
Assam and Nagaland ) (supra). The Stenographers’ Service in the High Court
was recognised. Under the reorganisation scheme, one of these posts created
with the sanction of the State Government was to be that of Selection Grade
Stenographer. On May 7, 1959, the Chief Justice appointed the appellant as
Secretary-cum-Selection Grade Stenographer after merger of the two posts.
The State Government objected that the post of Secretary could not be
merged with that of Selection Grade Stenographer. The Accountant General,
under the Government’s instructions, withheld the appellant’s pay-slips.
The appellant moved the High Court by a writ petition, which was dismissed.
On appeal, this Court held that the Government had authority to sanction
the post, but it could not interfere with the choice of the incumbent,
which undoubtedly was to be of the Chief Justice under Article 229 of the
Constitution. In that context, Grover J., speaking for the Court, neatly
summed up the position, which being apposite to the point under discussion,
may be extracted (at pp. 1854-55) : –
”
The unequivocal purpose and obvious intention of the framers of the
Constitution is enacting Article 229 is that in the matter of appointments
of officers and servants of a High Court, it is the Chief Justice or his
nominee who is to be the supreme authority and there can be no.
interference by the executive except to the limited extent that is provided
in the Article. This was essentially to secure and maintain the
independence of the High Courts. The anxiety of the constitution-makers to
achieve that object is fully shown by putting the administrative expenses
of a High Court including all salaries, allowances and pensions payable to
or in respect of officers and servants of the court at the same level as
the salaries and allowances of the judges of the High Court nor can the
amount of any expenditure so charged be varied even by the legislature.
Clause (1) read with Cl. (2) of Article 229 confers exclusive power not
only in the matter of appointments but also with regard to prescribing the
conditions of service of officers and servants of a High Court by Rules on
the Chief Justice of the Court. This is subject to any legislation by the
State Legislature but only in respect of appointments even the legislature
cannot abridge or modify the powers conferred on the Chief Justice under
Cl. (1). The approval of the Governor, as noticed in the matter of Rules,
is confined only to such rules as relate to salaries, allowances, leave or
pension. All other rules in respect of conditions of service do not require
his approval. Even under the Government of India Act, the power to make
rules relating to the conditions of service of the staff of the High Court
vested in the Chief Justice of the Court under Sec. 242 (4) read with
Section 241 of the Government of India Act, 1935.
”
32. In the result this Court held that any restrictions imposed by the
Government, while communicating the sanction of the post could not bind the
Chief Justice in view of Article 229 of the Constitution.
33. We now turn to Chapter IV. It is captioned : “Subordinate Courts”. It
consists of Articles which provide for matters relating inter alia to
appointment and control of persons who man posts in the subordinate
judiciary. According to the scheme of this Chapter subordinate judiciary
has been classified into (i) ‘District Judges’, and ‘members of the
Judicial Service’. Article 236 defines the expression “district judge” to
include”
judge of a city civil court, additional district judge, joint district
judge, assistant district judge, chief judge of a small cause court, chief
presidency magistrate, additional chief presidency magistrate, sessions
judge, additional sessions judge and assistant sessions judge”. The Article
defines” judicial service”to mean” a service consisting exclusively of
persons intended to fill the post of district judge and other civil
judicial posts inferior to the post of district judge
“.
34. Article 233 gives the High Court an effective voice in the appointment
of District Judges. Clause (1) of the Article peremptorily requires that”
appointments of persons to be, and the posting and promotion of district
judges”shall be made by the Governor” in consultation with the High Court
“. Cl.(2) of the Article provides for direct appointment of District Judges
from Advocates or pleaders of not less than seven years standing who are
not already in the service of the State or of the Union. In the matter of
such direct appointments, also, the Governor can act only on the
recommendation of the High Court. Consultation with the High Court under
Article 233 is not an empty formality. An appointment made in direct or
indirect disobedience of this constitutional mandate, would be invalid.
(See Chandra Mohan v. State of U.P. :); Chandramouleshwar v. Patna High
Court : ). ‘Service’ which under Cl.(1) of Article 233 is the first source
of recruitment of District Judges by promotion, means the ‘judicial
services’ as defined in Art. 236.
35. The word ‘posting’ as used in Article 233, in the context of
‘appointment’ and ‘promotion’ means the first assignment of an appointee or
promotee to a position in the cadre of District Judges. It cannot be
understood in the sense of ‘transfer’. (See Ranga Muhammad’s case ).
36. Article 234 enjoins that the rules in accordance with which
appointments of persons other than district judges to the judicial service
of a State are to be made, shall be framed by the Governor in consultation
with the High Court and the Public Service Commission. The expression
“judicial service” in this Article, carries the same connotation as defined
in Article 236.
37. Article 235 is the pivot around which the entire scheme of the Chapter
revolves. Under it,”
the control over district courts and courts subordinate thereto including
the posting and promotions of, and the grant of leave to persons belonging
to the judicial service of a State
“is vested in the High Court.
38. The interpretation and scope of Article 235 has been the subject of
several decisions of this Court. The position crystallised by those
decisions is that the control over the subordinate judiciary vested in the
High Court under Article 235 is exclusive in nature, comprehensive in
extent and effective in operation. It comprehends a wide variety of
matters. Among others, it includes :
(a) (i) Disciplinary jurisdiction and a complete control subject only to
the power of the Governor in the matter of appointment, dismissal, removal,
reduction in rank of District Judges, and initial posting and promotion to
the cadre of District Judges. In the exercise of this control, the High
Court can hold inquiries against a member of the subordinate judiciary,
impose punishment other than dismissal or removal, subject, however, to the
conditions of service, and a right of appeal, if any, granted thereby and
to the giving of an opportunity of showing cause as required by Article 311
(2).
(ii) In Article 235, the word ‘control’ is accompanied by the word “vest”
which shows that the High Court alone is made the sole custodian of the
control over the judiciary. The control vested in the High Court being
exclusive, and not dual, an inquiry into the conduct of a member of the
judiciary can be held by the High Court alone and no. other authority.
(State of West Bengal v. Nripendra Nath Bagchi ) (supra), Shamsher Singh v.
State of Punjab ) ; Punjab and Haryana High Court v. State of Haryana (sub-
nom Narendra Singh Rao) : .
(iii) Suspension from service of a member of the judiciary with a view to
hold a disciplinary inquiry.
(b) Transfers, promotions and confirmation of such promotions, of persons
holding posts in the judicial service inferior to that of District Judge.
(State of Assam v. S. N. Sen : State of Assam v. Kuseswar Saikia :
(c) Transfers of District Judges (State of Assam v. Ranga Muhammad )
(supra); Chandra Mouleshwar v. Patna High Court (supra).
(d) Recall of District Judges posted on ex-cadre posts or on deputation on
administrative posts. (State of Orissa v. Sudhansu Sekhar Misra
(e) Award of selection grade to the members of the judicial service,
including District Judges, being their further promotion after their
initial appointment to the cadre. (State of Assam v. Kuseswar Saikia
(supra)).
(f) Confirmation of District Judges, who have been on probation or are
officiating, after their initial appointment or promotion by the Governor
to the cadre of District Judges under Article 233, (Punjab and Haryana High
Court v. State of Haryana) (supra).
(g) Premature or compulsory retirement of Judges of the District Courts and
of Subordinate Courts (State of U.P. v. Batuk Deo Pati Tripathi (1978 Lab
IC 839) (SC) (supra)).
39. Since in both these appeals, order of the premature retirement of the
Respondents, viz. of Shri Dikshitulu made by the Chief Justice, and of Shri
Krishnamoorthy by the Governor in consonance with the decision of the High
Court are in question, it will be appropriate to amplify the point a
little. It is well settled that compulsory retirement, simpliciter, in
accordance with the terms and conditions of service, does not amount to
dismissal or removal or reduction in rank under Article 311 or under the
Service Rules because, the Government servant does not lose the terminal
benefits already earned by him. (See Tara Singh v. State of Rajasthan ;
State of Haryana v. Inder Prakash Anand, ).
40. In the last mentioned case the Government servant was officiating in
the cadre of District Judges. The High Court recommended that he should be
reverted to his substantive post of Senior Subordinate Judge/Chief Judicial
Magistrate and, as such, allowed to continnue in service till the age of 58
years. Contrary to the recommendation of the High Court, the State
Government passed an order under Rule 5.32 (c) of the Punjab Civil Service
Rules, compulsorily retiring him from service at the age of 55 years.
Holding that the order of compulsory retirement was invalid, this Court
stressed that the power of deciding whether a judicial officer should be
retained in service after attaining the age of 55 years up to the age of 58
years, vests in the High Court, and to hold otherwise”
will seriously affect the independence of the judiciary and take away the
control vested in the High Court
“. The formal order of retirement however, is passed by the Governor acting
on the recommendation of the High Court, that being “the broad basis of
Article 235″. It was explained that”
in such cases it is contemplation in the Constitution, that the Governor as
the head of the State will act in harmony with the recommendation of the
High Court”. It was concluded that” the vesting of complete control over
the Subordinate Judiciary in the High Court leads to this that the decision
of the High Court in matters within its juridiction will bind the State
“. In other words, while in form, the High Court’s decision to compulsorily
retire a subordinate judicial officer in the exercise of its administrative
or disciplinary jurisdiction under Article 235 is advisory, in substance
and effect, it is wellnigh peremptory.
41. Recently, in State of Uttar Pradesh v. Batuk Deo Pati Tripathi : (1978
Lab IC 839) this Court succinctly summed up the whole position as follows
(at p. 846 of Lab IC) :
”
The ideal which inspired the provision that the control over District
Courts and courts subordinate thereto shall vest in the High Courts is that
those wings of the judiciary should be independent of the executive……It
is in order to effectuate that high purpose that Art. 235 as construed by
the Court in various decisions requires that all matters relating to the
subordinate judiciary including compulsory retirement and disciplinary
proceedings but excluding the imposition of punishments falling within the
scope of Article 311 and the first appointments and promotions, should be
dealt with and decided upon by the High Courts in the exercise of the
control vested in them
“.
42. In sum, the entire scheme of Chapters V and VI in Part VI epitomised in
Articles 229 and 235, has been assiduously designed by the Founding Fathers
to insure independence of the High Court and the subordinate judiciary.
43. The state is now set for noticing the provision of Article 371-D and
the Andhra Pradesh Administrative Tribunal Order, 1975, made by the
President in exercise of the powers conferred by Clauses (3) and (4) of
this Article. Article 371-D was inserted in the Constitution with effect
from July 1, 1974 by the Constitution (Thirtysecond Amendment) Act, 1973.
This Article as its heading shows, makes “special provisions with respect
to the State of Andhra Pradesh”. Cl.(1) of the Article authorises the
President to provide by order”
for equitable opportunities and facilities for the people belonging to
different parts of the State
“in matters of public employment and education. Clause (2) particularises
what an order made by the President under Cl. (1), may require to be done.
Clause (3) is crucial for the purpose of the instant case; and may be
extracted in full. It reads as under : –
(3) The President may, by order, provide for the constitution of an
Administrative Tribunal for the State of Andhra Pradesh to exercise such
jurisdiction, powers and authority (including any jurisdiction, power and
authority which immediately before the commencement of the Constitution
(Thirtysecond Amendment) Act, 1973, was exercisable by any Court (other
than the Supreme Court) or by any tribunal or other authority) as may be
specified in the order with respect to the following matters, namely : –
(a) appointment, allotment or promotion to such class or classes of posts
in any civil service of the State or to such class or classes of civil
posts under the State, or to such class or classes of posts under the
control of any local authority within the State, as may be specified in the
order;
(b) Seniority of persons appointed, allotted or promoted to such class or
classes of posts in any civil service of the State, or to such class or
classes of civil posts under the State, or to such class or classes of
posts under the control of any local authority within the State, as may be
specified in the order.
(c) Such other conditions of service of persons appointed, allotted or
promoted to such class or classes of posts in any civil service of the
State, or to such class or classes of posts under the State, or to such
class or classes of posts under the control of any local authority within
the State, as may be specified in the order. (emphasis supplied).
44. Clause (4) of the Article further provides that an order made under
clause (3) may – (a) authorise the Administrative Tribunal to receive
representation for redress of grievances relating to any matter within its
jurisdiction, as the President may specify, and to make such orders thereon
as the Tribunal may deem fit; (b) contain provisions with respect to the
powers and authorities and procedure of the Administrative Tribunal; (c)
provide for the transfer to the Administrative Tribunal proceedings
relating to classes of posts within its jurisdiction, pending before any
Court (other than the Supreme Court) or tribunal or other authority;
(d) contain supplemental, incidental and consequential provisions including
those relating to fees, limitation, evidence etc.
45. Under Clause (5),”
the order of the Administrative Tribunal finally disposing of any case
shall become effective upon its confirmation by the State Government or on
the expiry of three months from the date on which the order is made,
whichever is earlier
“.
46. Then there is a Proviso to this Clause a most extraordinary provision,
which says : –
Provided that the State Government may, by special order made in writing
and for reasons to be specified therein, modify or annul any order of the
Adminsitrative Tribunal before it becomes effective and in such a case, the
order of the Administrative Tribunal shall have effect only in such
modified form or be of no. effect, as the case may be.
47. This clause shows that unlike a civil Court, or a High Court exercising
jurisdiction under Article 226 (prior to the enactment of Article 371-D),
the Administrative Tribunal set up by an order under clause (3) of the
Article, is not competent to pass definitive or final orders, in the sense
that all its decisions or orders are subject to confirmation, modification
or annulment by the State Government. The Tribunal’s order has no. force
proprio vigore unless confirmed by the State Government, either expressly
within three months of the date on which it was made, or impliedly by not
interfering with that order for the said period of three months. Then there
is no. provision in the Article, requiring the State Government to give an
opportunity of hearing to the parties before modifying or annulling the
order of the Tribunal.
48. Clause (6) requires every special order of the Government made under
Clause (5) to be laid before the State Legislatue. Cl. (7) clarifies that
the High Court or any other Court (other than the Supreme Court) or
tribunal shall have no. jurisdiction, power or authority in respect of any
matter subject to the jurisdiction, power or authority of, or in relation
to, the Administrative Tribunal, Clause (8) gives power to the President to
abolish the Administrative Tribunal, if he is satisfied that its conntinued
existence is not necessary.
49. Clause (9) is a validating provision. As will be presently seen, it was
enacted to get over the difficulties created by the judicial decisions on
Mulki Rules.
Clause (10) gives an overriding effect to the provisions of Article 371-D
and to the Presidential orders made thereunder, by enacting :
”
(10) The provisions of this article and of any order made by the President
thereunder shall have effect notwithstanding anything in any other
provision of the Constitution or in any other law for the time being in
force
“.
50. In the context, we may also have a look at the provisions of the Andhra
Pradesh Administrative Tribunal Order 1975 dated the 19th May, 1975
(published as per G.O. Ms. No. 323, General Administration (Spp-B), 22nd
May 1975), made by the President in exercise of his powers under Clauses
(3) and (4) of Art. 371-D. Paragraph 2 of this order contains definitions
of various expressions used therein. Cl. (d) of this paragraph defines”
person employed”to mean” an individual, in relation to whom the Tribunal
has jurisdiction in respect of the matters specified in paragraph 6 of this
order.
“Paragraphs 3 to 5 are not material to the points under consideration.
Paragraph 6 is important. It provides in regard to “jurisdiction, powers
and authority of the Tribunal”. It confers on the Tribunal”
all the jurisdiction, powers and authority which, immediately before the
commencement of this Order, were exercisable by all Courts (except the
Supreme Court) with respect to appointment, allotment or promotion to any
public post, seniority of persons appointed, allotted or promoted to such
post and all other conditions of service of such persons
“. Sub-para (2) provides that nothing in sub-paragraph (1) of this
paragraph shall apply to, or in relation to,
(a) persons appointed on contract for a specified term or purpose;
(b) members of the All-India Services;
(c) persons on deputation with the State Government or any local authority
within the State being persons in the services of the Central or any other
State Government or other authority;
(d) persons employed, on part-time basis, and
(e) village officers.
51. Sub-para (3) is not relevant. Sub-para (4) makes”
the law in force immediately before the commencement of this Order with
respect to the practice, procedure and disposal of petitions for the issue
of directions, orders or writs under Article 226 of the Constitution by the
High Court of Andhra Pradesh
“applicable (with modifications, if any, made by the Tribunal) to the
disposal of petitions by the Tribunal.
52. There is a proviso to this sub-paragraph which is not relevant for our
purpose. The Explanation appended to this sub-paragraph defines for the
purpose of Paragraph 6, “public post” to mean : –
(a) all classes of posts in all civil services of the State;
(b) all classes of civil posts under the State; and
(c) all classes of posts under the control of any local authority within
the State.
53. Paragraph 7 empowers the Tribunal to receive representation from
persons aggrieved, relating to matters within the jurisdiction of the
Tribunal. Then there is a proviso directing the Tribunal not to admit any
such representation – (a) unless the persons concerned has availed of the
remedies under the relevant rules for making such representation to the
State Government or the local authority, as the case may be,”
or to any other officer or other authority under the State Government or
local authority and has failed;
“or (b) if a period of more than six months has elapsed after a final order
rejecting the representation. The next material provision is in sub-
paragraph (3) which provides that where a representation has been admitted
by the Tribunal”
all proceedings for redress of such grievance pending before the State
Government or local authority
“shall abate.
54. Paragraph 8 is not relevant. Paragraph 9 mandates the Tribunal that
when it passes a final order disposing of any case, it shall forward the
proceedings thereof to the State Government.
55. Paragraph 14 provides for transfer of proceedings from the High Court
and other Courts to the Tribunal, in matters in relation to which
jurisdiction has been conferred on the Tribunal by this Order.
56. The rest of the provisions of the Order are not relevant to the problem
before us.
57. The ground is now clear for considering the question : whether the
officers and servants of the Andhra Pradesh High Court and persons holding
posts in the judicial service of the State, including ‘District Judges’ are
subject to the jurisdiction of the Administrative Tribunal Order, 1975 made
by the President in exercise of his powers under Clauses (3) and (4) of
Article 371-D ?
58. We have seen that the substantive provision is in Clause (3). This
clause defines the extent and delimits the area of the “jurisdiction, power
and authority” with respect to certain matters mentioned therein, which may
be conferred, wholly or in part, on the Administrative Tribunal by an order
made by the President, thereunder.
59. Clause (4) only subserves and elucidates the substantive Clause (3).
60. It is undisputed that compulsory retirement is a condition of service.
The question, therefore, narrows down into the issue : Do the posts held by
officers and servants of the High Court, and members of the subordinate
judiciary fall under any of the “class or classes of posts” mentioned in
sub-clause (c) of Clause (3) of Article 371-D ? For reaching a correct
finding on this issue, it is not necessary to dilate on the Administrative
Tribunal Order made by the President or to explore the scope of the
expression “public post” defined in Paragraph 6 thereof, for, the order
has, merely for the sake of convenience, adopted this brief expression to
cover compendiously all the three phrases commonly employed in sub-clauses
(a), (b) and (c) of Clause (3) of the Article. Though the content of the
first limb of each of the sub-clauses (a), (b) and (c) varies, the rest of
the language employed therein is identical. Each of these three sub-
clauses, in terms, relates to class or classes of : –
(i) “posts in any civil service of the State”, or
(ii) “civil posts under the State”, or
(iii) “posts under the control of any local authority within the State”.
It is manifest that posts on the establishment of the High Court or held by
the members of the judiciary are not “posts under the control of any local
authority.” Neither the Chief Justice, nor the High Court can be called a
“local authority” within the meaning of class (iii). As regards (ii), it is
conceded even by Shri Vepa Sarathy, that persons holding posts on the staff
of the High Court or in the subordinate judiciary do not hold their posts
under the control of the State Government, and as such, those class or
classes of posts do not fall within the purview of phrase (ii), either.
61. The compass of the problem thus further gets reduced into whether the
phrase “posts in the civil services of the State” commonly occurring in
sub-clauses (a), (b) and (c) of Article 371-D (3) covers posts held by the
High Court staff and persons belonging to the subordinate judiciary ? This
phrase is couched in general terms which are susceptible of more than one
interpretation.
62. The phrase “Civil service of the State” remains more or less an
amorphous expression as it has not been defined anywhere in the
Constitution. Contrasted with it, the expressions “judicial service of the
State” and “District Judge” have been specifically defined in Article 236,
and thus given a distinctive, definite meaning by the Constitution makers.
Construed loosely, in its widest general sense, this elastic phrase can be
stretched to include the ‘officers and servants of the High Court’ as well
as members of the Sub-ordinate Judiciary. Understood in its strict narrow
sense, in harmony with the basic constitutional scheme embodied in Chapter
V and VI, Part VI, and centralised in Article 229 and 235, thereof, the
phrase will not take in High Court staff and the Sub-ordinate Judiciary.
Shri Vepa Sarathy canvasses for adoption of the expansible interpretation
which will cover the High Court staff and the subordinate judiciary, while
Shri Lal Narain Sinha urges for acceptance of the restricted but
harmonnious construction of the said phrase. A choice between these two
rival constructions of the phrase “civil services of the State” is to be
made in the light of well settled principles of interpretation of
constitutional and other statutory documents.
63. The primary principle of interpretation is that a constitutional or
statutory provision should be construed “according to the intent of they
that made it”(Coke). Normally, such intent is gathered from the language of
the provision. If the language or the phraseology employed by the
legislation is precise and plain and thus by itself, proclaims the
legislative intent in unequivocal terms, the same must be given effect to,
regardless of the consequences that may follow. But if the words used in
the provision are imprecise, protean, or evocative or can reasonably bear
meaning more than one, the rule of strict grammatical construction ceases
to be a sure guide to reach at the real legislative intent. In such a case,
in order to ascertain the true meaning of the terms and phrases employed,
it is legitimate for the Court to go beyond the arid literal confines of
the provision and to call in aid other well-recognised rules of
construction, such as its legislative history, the basic scheme and
framework of the statute as a whole, each portion throwing light on the
rest, the purpose of the legislation, the object sought to be achieved, and
the consequences that may flow from the adoption of one in preference to
the other possible interpretation.
64. Where two alternative constructions are possible, the Court must choose
the one which will be in accord with the other parts of the statute and
ensure its smooth, harmonious working, and eschew the other which leads to
absurdity, confusion, or friction, contradiction and conflict between its
various provisions, or undermines, or tends to defeat or destroy the basic
scheme and purpose of the enactment. These canons of construction apply to
the interpretation of our Constitution with greater force, because the
Constitution is a living integrated organism, having a soul and
consciousness of its own. The pulse beats emanating from the spinal cord of
the basic framework can be felt all over its body, even in the extremities
of its limbs. Constitutional exposition is not mere literary garniture, nor
a mere exercise in grammar. As one of us (Chandrachud J. as he then was)
put it in Kesavananda Bharati’s case )”
while interpreting words in a solemn document like the Constitution, one
must look at them not in a school-masterly fashion, not with the cold eye
of a lexicographer, but with the realization that they occur in ‘a single
complex instrument in which one part may throw light on the others’ so that
the construction must hold a balance between all its parts
“.
65. Keeping in mind the principles enunciated above, we will first have a
peep into the historical background of the provisions in Article 371-D.
66. The former State of Hyderabad comprised of three linguistic areas :
Telangana, Marathwada and Karnataka. In 1919, the Nizam issued a Firman
promulgating what came to be known as Mulki Rules. The Nizam confirmed
these Rules by another Firman issued in 1949. Those Rules provided inter
alia 15 years’ residence in the State as an essential qualification for
public employment.
67. In 1955, the Rajpramukh in exercise of his powers under Article 309,
Proviso, of the Constitution framed the Hyderabad General Recruitment
Rules, 1955 in supersession of all the previous rules on the subject. One
of these Rules laid down that domicile certificate would be necessary for
appointment to a State or subordinate service, and the issue of such
certificate depended upon residence in the State for a period of not less
than 15 years.
68. On November 1, 1956, as a result of the coming into force of the State
Reorganisation Act, the State of Hyderabad was trifurcated. Telengana
region became a part of the newly formed State of Andhra Pradesh, while
Marathwada and Karnataka regions ultimately became parts of Maharashtra or
Mysore States.
69. With these prefatory remarks, we may now notice the Statement of
Objects and Reasons for the Bill which became the Constitution (32nd
Amendment) Act, 1972. This Statement may be quoted in extenso :
”
When the State of Andhra Pradesh was formed in 1956, certain safeguards
were envisaged for the Telengana area in the matter of development and also
in the matter of employment opportunities and educational facilities for
the residents of that area. The provisions of clause (1) of Article 371 of
the Constitution were intended to give effect to certain features of these
safeguards. The Public Employment (Requirement as to Residence) Act, 1957,
was enacted inter alia to provide for employment opportunities for
residents of Telengana area. But in 1969 (in the case, A.V.S. Narasimha Rao
v. State of Andhra Pradesh, : ), the Supreme Court held the relevant
provision of the Act to be unconstitutional in so far as it related to the
safeguards envisaged for the Telengana area. Owing to a variety of causes,
the working of the safeguards gave rise to a certain amount of
dissatisfaction sometimes in the Telengana area and sometimes in the other
areas of the State. Measures were devised from time to time to resolve the
problems. Recently several leaders of Andhra Pradesh made a concerted
effort to analyse the factors which have been giving rise to the
dissatisfaction and find enduring answers to the problems with a view to
achieving fuller emotional integration of the people of Andhra Pradesh. On
the 21st September 1973, they suggested certain measures (generally known
as the Six Point Formula) indicating a uniform approach for promoting
accelerated development of the backword areas of the State so as to secure
the balanced development of the State as a whole and for providing
equitable opportunities to different areas of the State in the matter of
education, employment and career prospects in public services. This formula
has received wide support in Andhra Pradesh and has been endorsed by the
State Government.
2. This Bill has been brought forward to provide the necessary
constitutional authority for giving effect to the Six-Point Formula in so
far as it relates to the provision of equitable opportunities for people of
different areas of the State in the matter of admission to educational
institutions, and public employment and constitution of an Administrative
Tribunal with jurisdiction to deal with certain disputes and grievances
relating to public services. The Bill also seeks to empower Parliament to
legislate for establishing a Central University in the State and contains
provisions of an incidental and consequential nature including the
provision for the validation of certain appointments made in the past. As
the Six-Point Formula provides for the discontinuance of the Regional
Committee constituted under clause (1) of Article 371 of the Constitution,
the Bill also provides for the repeal of that clause.
”
(Parenthesis and emphasis in Para 1 added).
70. It will be seen from the above extract, that the primary purpose of
enacting Article 371-D was twofold : (i) To promote”
accelerated development of the backward areas of the State of Andhra so as
to secure the balanced development of the State as a whole”, and (ii) to
provide” equitable opportunities to different areas of the State in the
matter of education, employment and career prospects in public service.
71. To achieve this primary object, clause (1) of Article 371-D empowers
the President to provide by order,
“for equitable opportunities and facilities for the people belonging to
different parts of the State in the matter of public employment and in the
matter of education”
. Clause (2) of the Article is complementary to Clause (1). It
particularises the matters which an order made under Clause (1) may
provide. For instance, its sub-clause (c) (i) enables the President to
specify in his Order,
“the extent to which, the manner in which and the conditions subject to
which,”
preference or reservation shall be given or made in the matter of direct
recruitment to posts in any local cadre under the State Government or under
any local authority. Sub-clause (c) further makes it clear that residence
for a specified period in the local area, can be made a condition for
recruitment to any such local cadre. Thus, Clause (4) also is directly
designed to achieve the primary object of the legislation.
72. From the foregoing conspectus it is evident that the evil which was
sought to be remedied, (viz., inequitable opportunites and facilities for
the people belonging to different parts of the State of Andhra Pradesh in
matters of public employment and education) had no. causal nexus, whatever,
with the independence of the High Court and subordinate judiciary which the
Founding Fathers have with solemn concern vouchsafed in Arts. 229 and 235.
Nor did the public agitation which led to the enactment of Article 371-D
make any grievance against the basic scheme of Chapters V and VI in Part VI
of the Constitution.
73. The Statement of Objects and Reasons does not indicate that there was
any intention, whatever, on the part of the legislature to impair or
derogate from the scheme of securing independence of the Judiciary as
enshrined in Article 229 and 235. Indeed, the amendment or abridgment of
this basic scheme was never an issue of debate in Parliament when the
Constitution (32nd Amendment) Bill was considered.
74. One test which may profitably be applied to ascertain whether the High
Court staff and the Subordinate Judiciary were intended to be included in
Clause (3) of Article 371-D, is : Will the exclusion of the judiciary from
the sweep of this Clause substantially affect the scope and utility of the
Article as an instrument for achieving the object which the Legislature had
in view ? The answer cannot but be in the negative. The High Court staff
and members of the Subordinate Judiciary constitute only a fraction of the
number of persons in public employment in the State. Incidentally it may be
mentioned that one of the primary purposes of this Article, viz., to secure
equitable share in public employment to people of certain local areas in
the State on the basis of the Mulki Rules requiring 15 years’ residence in
those areas, could be achieved under those Rules which, as subsequently
clarified by this Court in State of Andhra Pradesh v. V. V. Reddy, 1973
AIR(SC) 823, continued to be in force as valid law in the territories of
the former State of Hyderabad State, even after the constitution of the
State of Andhra Pradesh.
75. Let us now apply another test which in the circumstances of the case
will be decisive. In that connection, we have to see what consequences will
flow if we give this general, undefined and flexible phrase, “Civil
services of the State” in Article 371-D (3), the wider construction so as
to include in it the High Court staff and the members of the subordinate
judiciary. The inevitable result of such an extensive construction will be
that the control vested in the Chief Justice over the staff of the High
Court, and in the High Court over the Subordinate Judiciary will become
shorn of its substance, efficacy and exclusiveness; and after being
processed through the conduit of the Administrative Tribunal, will pass on
into the hands of the Executive Government, which, under Article 371-D (5),
is the supreme authority, having full power to confirm, not to confirm,
modify or annul the orders of the Tribunal. Such a construction will lead
to internecine conflict and contradiction, rob Articles 229 and 235 of
their content, make a mockery of the Directive Principle in Article 50 and
the fundamental concept of the independence of the judiciary, which the
Founding Fathers have with such anxious concern built into the basic scheme
of the Constitution. Parliament, we are sure, could never have intended
such a strange result. In our quest for the true intention of Parliament,
therefore, we must eschew this wide literal interpretation which will
defeat or render otiose the scheme of Chapters IV and V, Part VI
particularised in Articles 229 and 235, and instead, choose the alternative
interpretation according to which members of the High Court staff and the
subordinate judiciary will not fall within the purview of the phrase “civil
services of the State”. Such a restricted construction will ensure smooth
working of the Constitution and harmony amongst its various provisions.
76. It is true that this very phrase in the context of the provision in
Article 311 includes the employees of the High Court and members of the
judicial services. But it must be remembered that the provisions of Article
311 are of a general nature. They give constitutional recognition to a
fundamental principle of natural justice, by making its protection
available uniformly to all Government servants. That is, why in the context
of that Article this phrase has been spaciously construed. As against this,
Article 371-D is a special provision which marks a departure from the
general scheme of the Constitution. The area of the departure cannot be
extended beyond what is unmistakably and specifically delineated by the
words employed therein. A phrase used in the context of a general provision
may not carry the same meaning when employed in the context of a special
provision, particularly when that phrase has nowhere been defined in the
enactment. “Words used with reference to one set of circumstances”, said
Lord Blackburn in Edinburgh Street Tramways Co. v. V. Torbain [1877] 3 A.C.
58 at p.68,
“may convey an intention quite different from what the self same set of
words used in reference to another set of circumstances would or might have
produced”
. This holds true even when the same words are used in different contexts
in the same enactment. Therefore, in a special provision like Article 371-D
as its heading itself proclaims – which derogates from the general scheme
of the Constitution for a specific purpose, general undefined phrases are
not to be interpreted in their widest amplitude but strictly attuned to the
context and purpose of the provisions. Conversely, had it been the
intention of Parliament to include ‘Officers and servants of the High
Court’ and members of the ‘judicial service of the State’ and of the cadre
of ‘District Judges’, in the phrase ‘civil services of the State’ occurring
in Clause (3) of Article 371-D, and thereby depart from the basic scheme of
Chapters IV and VI, Part VI, the language commonly employed in sub-clauses
should have read like this : –
“Class or classes of posts in the civil services of the State including
posts in the “judicial service of the State”, and of “District Judges” in
the State; class or classes of posts of “officers and servants of the High
Court”…..”
77. In our opinion, non use of the phrases “judicial service of the State”
and “District Judges”(which have been specifically defined in Article 236),
and “officers and servants of the High Court” which has been designedly
adopted in Article 235 and 229, respectively, to differentiate them in the
scheme of the Constitution from the other civil services of the State,
gives a clear indication that posts held by the High Court staff or by the
Subordinate Judiciary were advisedly excluded from the purview of Clause
(3) of Art. 371-D. The scope of the non obstante provision in sub-article
(10) which gives an overriding effect to this Article is conterminous with
the ambit of the preceding clauses.
78. The ‘officers and servants of the High Court’ and the members of the
Judicial Service, including District Judges, being outside the purview of
Clause (3), the non obstante provision in Clause (10) cannot operate to
take away the administrative or judicial jurisdiction of the Chief Justice
or of the High Court, as the case may be, under Arts. 229, 235 and 226 of
the Constitution in regard to these public servants in matters or disputes
falling within the scope of the said Articles. Clause (10) will prevail
over any provisions of the Constitution, other than those which are outside
the ambit of Article 371-D, such as Article 229 and 235. Provisions not
otherwise covered by Article 371-D, cannot be brought within its sweep
because of the non obstante Clause (10). It follows as a necessary
corollary that nothing in the Order of the President constituting the
Administrative Tribunal, confers jurisdiction on the Tribunal to entertain,
deal with or decide the representation by a member of the staff of the High
Court or of the Subordinate Judiciary.
79. For the foregoing reasons, we hold that the impugned Order dated August
24, 1977 of the Administrative Tribunal, having been passed without
jurisdiction, is a nullity. Accordingly, we allow Civil Appeal No. 2826 of
1977 leaving the parties to pay and bear their own costs.
80. The reasons given above apply mutatis mutandis to the case of
Krishnamurthy in Civil Appeal No. 278 of 1978 and furnish the basis of our
short Order dated August 4, 1978, by which we had accepted that appeal. In
this Appeal (C.A. No. 278/78) however, the respondent’s costs in this Court
will be borne by the appellant in terms of this Court’s order dated
10-2-1978 in SLP (Civil) No. 626 of 1978.
81. In view of the order dated 28th November, 1977 and 22nd March, 1978,
passed in stay applications Nos. 4804 of 1977 and 1744 of 1978
respectively, and in terms of those orders we direct that since the appeals
have been allowed, the excess payment, if any, made pursuant to the stay
orders shall be adjusted towards pension that may be due to the
respondents. The adjustment shall be made in easy, convenient and
reasonable instalments.
ORDER
82. Respondent 1, Shri V.V.S. Krishna Murthy, may if so advised file a writ
petition in the High Court of Andhra Pradesh for challenging the order of
his compulsory retirement passed by the Governor of Andhra Pradesh on
September 29, 1975. If he files the writ petition within three weeks from
today, the High Court of Andhra Pradesh and the State of Andhra Pradesh,
whom respondent 1 proposes to implead to his writ petition, shall file
their counter-affidavit, it so advised, within three weeks after the filing
of the writ petition. If respondent 1 desires to file a rejoinder he shall
do so within a week after the filing of the counter-affidavit. The High
Court shall take up the writ petition for hearing within six weeks after
the filing of the counter-affidavit.
83. The learned counsel who appeared before us for the High Court as also
the learned counsel who appeared before us for the State of Andhra Pradesh
agree that the High Court and the State Government will not raise any
objection to the maintainability of the writ petition which respondent 1
desires to file for challenging the order of compulsory retirement, either
on the ground of laches or of delay or on any other technical ground. All
the contesting parties before us are agreed that the writ petition to be
filed by respondent 1, as aforesaid, may be disposed of by the High Court
on merits.
84. The Government of Andhra Pradesh shall comply with the order passed by
this Court on March 22, 1978 within four weeks from to-day.
85. We quash the order of the Andhra Pradesh Administrative Tribunal dated
September 19, 1977 in R. P. No. 319 of 1976. We will give our reasons in
support of that conclusion later.