PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
PREM KUMAR JAIN & ORS. ETC.
DATE OF JUDGMENT28/04/1976
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
RAY, A.N. (CJ)
SARKARIA, RANJIT SINGH
SINGH, JASWANT
CITATION:
1976 AIR 1856 1976 SCR 166
1976 SCC (3) 743
ACT:
Constitution of India Article 312-All India Service
Act, 1951 -Whether Union Territories are `States' for the
purpose of.
HEADNOTE:
A new cadre of the Indian Administrative Services was
constituted for Delhi and Himachal Pradesh, and recruitment
to it was made directly without following the normal method
prescribed by Rule 4(1) of the I.A.S. (Recruitment) Rules,
1954. These Rules were amended to provide for a joint cadre
for the Union Territories and the North East Frontier
Agency, and the Central Government formulated a scheme for
extending the Delhi-Himachal Pradesh Cadre to all the Union
Territories by absorbing its officers and appointing
officers from the Indian Frontier Administrative Service and
all other Union Territories initially. The joint cadre was
brought into existence by the Central Government's orders
notified under See. 3(1) of the l.A.S. (Cadre) Rules, 1954,
published in the Gazette of India, Extraordinary. The
creation of the new joint cadre and the appointment of some
of the respondents thereto. were challenged in the High
Court on the ground that they were contrary to Art. 312 of
the Constitution and the All India Services Act, 1951, as
the joint cadre was not common to the Union and the States
inasmuch as a Union Territory was not a State, and the
recruitment of the respondents concerned, was illegal. The
High Court quashed the Central Government's orders and the
scheme for the formation of a joint cadre of the T.A.S. and
held that the creation of the Delhi Himachal Pradesh Cadre
was also ultra vires the Constitution. The question of law
which came up before this court was whether Union
Territories are 'States' for the purpose of art. 312 of the
Constitution, and the all India Service Rules, 1951 ?
Allowing the appeals the Court,
^
HELD : Section 3(58) of the General Clauses Act. 1897,
provides inter alia, that the expression 'State' shall mean
"a state specified in the First Schedule to the Constitution
and shall include a Union Terirtory." By virtue of Article
372-A of the Constitution. which was inserted by the
Constitution (Seventh Amendment) Act 1956 because of the
fact that the power of adaptation under article 372(2) had
come to an end. it was that definition of the expression
'State' which had effect from the 1st day of November, 1956,
and the Constitution expressly provided that it could not be
questioned in any court of law. It was a special provision
which was meant to serve the purpose of making the Seventh
Amendment Act workable. Article 372-A thus gave a fresh
power under article 372(2). As from November 1, 1956 the
President therefore had the power to adapt the laws for the
purpose of bringing the provisions of any law in force in
India in accord with the provisions of the Constitution. It
was under that power that the President issued the
Adaptation of Laws (No. 1) Order, 1956, which substituted
the new clause (58) in section 3 of the General Clauses Act,
1897, referred to above. The High Court went wrong in taking
a contrary view and in holding that "Union Territories" were
not "States" [168G, 169AG, 171D]
Management of Advance Insurance Co. Ltd. v. Shri
Gurudasmal & Ors., [1970] 3 S.C.R. 881, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2289-
2299 of 1969.
(From the judgment and order dated the 25-9-1969 of the
Delhi High Court in Writ Petitions Nos. 405 and 478 to 487
of 1968)
167
V. P. Raman, Addl. Sol. General with P. P. Rao, and S.
P. Nayar, for the appellant.
R. B. Datar, for the respondents.
The Judgment of the Court was delivered by
SHINGHAL, J. These appeals by certificate are directed
against the judgment of the Delhi High Court dated September
25, 1969, allowing Civil Writ Petition No. 405 of 1968 and
connected petitions Nos. 478 to 487 of 1968. The High Court
has quashed the orders of the Central Government notified in
GSR 42 to 49, published in Gazette of India, Extraordinary,
dated January 13, 1968, as well as the scheme for the
formation of a joint cadre of the Indian Administrative
Service, hereinafter referred to as the Service, for the
Union Territories, and has held that the formation of the
Delhi-Himachal cadre of the Service was also ultra vires the
Constitution. As we shall show, the decision has turned on a
short point of law, and it will be enough to refer to those
facts which bear on it.
A new cadre of the Service was constituted for the
Union Territories of Delhi and Himachal Pradesh and
recruitment to that cadre was made directly without
complying with the recruitment of rule 4(1) of the Indian
Administrative Service (Recruitment) Rules, 1954,
hereinafter referred to as the Recruitment Rules, which
prescribed the normal method of recruitment to the Service.
The Rules were amended on December 21, 1967, by providing
for a Joint Cadre in relation to the Union Territories and
the North East Frontier Agency, and the Central Government
formulated the aforesaid scheme to extend the Delhi-Himachal
Pradesh Cadre to all Union Territories by absorbing the
officers of that cadre and by appointing to it officers of
the Indian Frontier Administrative Service and all other
Union Territories at its initial constitution. The Joint
Cadre for all the Union Territories was brought into
existence from January 1, 1968, by GSR 42 under rule 3(1) of
the Indian Administrative Service (Cadre Rules, 1954,
hereinafter referred to as the Cadre Rules, published (along
with certain consequential changes in the other rules of the
Service in Gazette of India, Extraordinary, dated January
13, 1968. The petitioners in the h Court challenged the
creation of the new Joint Cadre for all the Union
Territories and the appointment of some of the respondents
thereto. It was urged in the High Court that the
constitution of the new Joint Cadre was illegal as it was
contrary to the provisions of article 312 of the
Constitution and the All India Services Act, 1951 as it was
not common to the Union and the State inasmuch as a Union
Territory was not a State. and the recruitment of the
respondents concerned to the Joint Cadre was contrary to the
provisions of section 3 of the All India Services Act. 1951.
and the Cadre Rules.
The High Court examined the question whether the Union
Territories were States and reached the conclusion that
this was not so. It therefore held that rule 4(5) of the
Recruitment Rules was Ultra vires the Constitution and the
All India Services Act of the (Cadre in ques
168
tion could not be said to be common to the Union and the
States. The High Court also observed that as the Central
Government was itself the State Government for purposes of a
Union Territory, The Central Government could not consult
itself within the meaning of section 3 of the All India
Services Act and the Recruitment and the Cadre Rules. It
therefore quashed the orders and the scheme mentioned above.
It appears, however, that it was not brought to the
notice of the High Court that, in so far as the Service was
concerned, it was not necessary for Parliament to make a law
providing for its creation as a service common to the Union
and the States, under clause (1) of article 312 of the
Constitution, because clause (2) of that article expressly
provided as follows,-
“312. (2) The services known at the commencement
of this Constitution as the Indian Administrative
Service and the Indian Police Service shall be deemed
to be services created by Parliament under This article
The Service did not therefore have to be created under the
provisions of Clause (1) of article 312 of the Constitution,
or section 2A of the All India Services Act. Section 3(1) of
that Act however made pro vision for the making of rules for
the regulation of recruitment and conditions of service of
persons appointed to an All-India Service “after
consultation with the Governments of the States concerned.”
It was under that provision that the Cadre Rules were made
by the Central Government, and the question which engaged
the attention of the High Court was whether the Union
Territories could be said to be States for purposes of such
consultation. In that connection the High Court examined the
question whether the Union Territories could be said to be
States merely because rule 2(c) of the Cadre Rules defined a
“State’ to mean a State specified in the First Schedule to
the Constitution and including a Union Territory, and
answered it in the negative.
The expression “State” has not been defined in the
Constitution, but it has been defined as follows in section
3(58) of the General Clauses Act (Act X of 1897),-
“State”-
(a) as respects any period before the
commencement of the Constitution (Seventh
Amendment Act, 1956, shall mean a Part A
State. a Part B State or a Part State; and
(b) as respects any period after such
commencement, shall mean a State specified in
the First Schedule to the Constitution and
shall include a Union Territory.”
This was however not the original definition, for it was
substituted by the Adaptation of Laws (No. 1) order, 1956.
Before that order, the expression “State” meant “a Part A
State, a Part State or a Part State.” That definition was,
in its turn, brought in by adaptation under article 372 of
the Constitution by the Adaptation of Laws order, 1950, for
the purpose of bringing the provisions of any law in force
in
169
the territory of India in accord with the provisions of the
Constitution. The original definition has thus been
adapted twice to suit the requirements of the Constitution.
Clause (1) of article 367, Which deals with
“interpretation” of The Constitution, provides as follows,-
“367(1) Unless the context otherwise requires, the
(General Clauses Act, 1897, shall, subject to any
adaptations and modifications that may be made therein
under article 372 apply for the interpretation of this
Constitution as it applies for the interpretation of an
Act of the Legislature of the Dominion of India.”
A cross-reference to article 372(2) shows that while the
purpose of the adaptation was to bring the provisions or any
law in force in the country “into accord with” the
provisions of the Constitution, Clause (3) thereof expressly
stated inter alia, as follows,-
“(3) Nothing in Clause (2) shall be deemed-
(a) to empower the President to make any adaptation or
modification of any law after the expiration of
three years; from the commencement of this
Constitution”
The power of adaptation or modification was therefore spent
after the expiry of three years, and the High Court has
taken the view that as it were only the adaptations made in
the General Clauses Act under article 372(2) which applied
to the interpretation of the Constitution in view of article
367(1) the adaptation made later, by article 372A, were not
so applicable.
A comparison of the provisions of articles 372 and 372A
shows, however, that while the purpose of both the articles
was to bring the provisions of any law in force in India
“into accord” with the provisions of the Constitution,
article. 372 was a general provision enabling the making of
adaptations and modifications in such laws by an order of
the President. whereas article 372A was a special provision
which was made specifically for purposes of the
Constitution (Seventh Amendment) Act. 1956. in as much as
Clause (1) thereof provided as follows
“372 For the purposes of bringing the provisions
of any law in force in India or in any part thereof,
immediately before the commencement of the
Constitution (Seventh Amendment) Act, 1956, into accord
with the pro visions of this Constitution as amended by
that Act, the President may by order made before the
1st day of November, 1957. make such adaptations and
modifications of the law whether by way of repeal or
amendment, as may be necessary or expedient, and
provide that the law shall, as from such date as may be
specified in the order, have effect subject to
170
the adaptations and modifications so made, and any such
adaptation or modification shall not be questioned in
any court of law’ (Emphasis added)
It is obvious therefore that as the power of the President
to make any adaptation or modification of any law under
Clause (2) of article 372 was, spent after three years,
Parliament felt the necessary of giving such a power to the
President once again for The purpose of bringing me
provisions of any law in forced immediately before the
commencement of the constitution (seventh Amendment) Act,
1956, into accord with the provisions or the (constitution
as amended by that Act. that was therefore a necessary power
as it was meant to make the amended (constitution workable.
1 or instance, section 3 (58) of the (general Clauses act,
1897, as it stood before the coming into force of the
seventh Amendment Act, defined a ‘`State” to mean `’a Part A
State, A part B State or a part C State .” As has been
stated, that definition had itself been substituted by the
Adaptation of Laws Order, 1950, to make it workable, and it
served the purpose, for the country had those three types of
States at that time. but an important change was made by the
constitution (seventh Amendment) Act, 1956, which
abolished the distinction of part A, part B and part C
states and provided, inter alia, that the territory of the
country shall comprise the territories of the States and the
Union territories specified in the First Schedule. the
definition the expression “state’ as it stood before
November 1, 1956, became unsuitable and misleading on the
coming into force of the Constitution (Seventh Amendment)
Act, 1956, from November 1, 1956, and it will, for obvious
reasons, be futile to contend that it should have continued
to be applicable for all time to come and remained ‘the
final definition of “State” ” merely because The period of
three years provided by Clause (3) (a) of article., 372 of
the (constitution expired and was not extended by an
amendment of that Clause, or because article 367(1) was not
amended by the Seventh Amendment Act “to say that
adaptations made in the General Clauses Act otherwise than
those made under article 372(2) would be applicable to the
interpretation of the Constitution.” The High Court also
erred in thinking that such “abstention seems to be
deliberate.” On the other hand, it is quite clear from the
fact that Parliament inserted article 372A by the
Constitution (Seventh Amendment) Act, 1956, that it was
aware that the power of adoption under article 372(2) had
come to an end, and was alive to the necessity of giving a
similar power of adapting the laws once again to the
President for the purposes of bringing the provisions of any
law in force in the country immediately before the
commencement of that Act “into accord” with the provisions
of: the Constitution. It is therefore futile to contend that
the definition of the expression “State” which was
applicable upto November, 1956, remained the final
definition for all time to come. That view is incorrect, for
it overlooks or ignores the anxiety or the Parliament to
remove any such misapprehensions by inserting article 372A.
It was a special provision, and it was meant to serve the
purpose of making the Seventh Amendment Act workable. As has
been held by this Court in Management of advance insurance
Co. Ltd. v. Shri. Gurudas
171
mal and others(1), article 372A gave a fresh power to the
President Which was equal and analogous to the power under
article 372(2).
It follows therefore that, as and from November 1,
1956, when the Constitution (Seventh Amendment) Act, 1956,
came into force, the President had the power to adapt the
laws for the purpose of bringing the provisions of any law
in force in India into accord with the provisions of the
Constitution. It was under that power that the President
issued the Adaptation of Laws (No. 1) order, 1956, which, as
has been shown, substituted a new Clause (58) in section 3
of The General Clauses Act providing, inter alia, that the
expression “State” shall, as respects any period after the
commencement of the Constitution (Seventh Amendment) Act
1956. mean “a State specified in the First Schedule to the
Constitution and shall include a Union territory.” It cannot
be said with any justification that there was anything
repugnant in the subject or context to make that definition
inapplicable. By virtue of article 372A(1) of the
Constitution, it was that definition of the expression
“State” which had effect from the 1st day of November, 1956,
and the Constitution expressly provided that it could “not
be questioned in any court of law.” The High Court therefore
went wrong in taking a contrary view and in holding that
“Union Territories are not ‘States’ for purposes of Article
312(1) of the Constitution and 1′ the preamble to the Act of
1951.” That was why the High Court erred in holding that the
definition of “State” in the Cadre Rules was ultra vires the
All India Services Act, 1951 and the Constitution, and that
the Union Territories Cadre of the Service was “not common
to the Union and the States” within the meaning of article
312(1) of the Constitution. and that the Central Government
could not make the Indian Administrative Service (Cadre)
Rules. 1954 in consultation with the State Governments as
there were no such Governments in the Union Territories.
The High Court has held further that section 3 of the
All India Services Act, 1951 and rule 5 of the Cadre Rules
have been contravened by the “direct appointment of
respondents 2 to 37 to the Union Territories Cadre and by
their being not recruited first to the IAS.” But no such
ground appears to have been taken in the writ petition.
Moreover the validity or rule 4(1) of the Recruitment Rules.
which contained a non-obstante Clause providing for
recruitment to the Joint Cadre of the Union Territories on
its initial constitution by such method the Central
(Government may after consultation with the Union Public
Service Commission prescribe was not examined by the High
Court
For the reasons mentioned above. the appeals are
allowed. the impugned judgement of the High Court dated
September 25, 1969 is set aside and the writ petition are
dismissed. There will however be no orders as to the costs.
R#Appeals allowed
(1) [1970] 3 S.C.R. 881
172
