{"id":137527,"date":"1978-09-12T00:00:00","date_gmt":"1978-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chief-justice-of-a-p-anr-vs-l-v-a-dikshitulu-ors-on-12-september-1978"},"modified":"2017-03-21T14:57:05","modified_gmt":"2017-03-21T09:27:05","slug":"chief-justice-of-a-p-anr-vs-l-v-a-dikshitulu-ors-on-12-september-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chief-justice-of-a-p-anr-vs-l-v-a-dikshitulu-ors-on-12-september-1978","title":{"rendered":"Chief Justice Of A.P. & Anr vs L.V.A. Dikshitulu & Ors on 12 September, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Chief Justice Of A.P. & Anr vs L.V.A. Dikshitulu & Ors on 12 September, 1978<\/div>\n
Bench: Y.V. Chandrachud (Cj), R. S. Sarkaria, N.L. Untwalia, A.D. Koshal, A.P. Sen<\/div>\n
           CASE NO.:\nAppeal (civil)  2826 of 1977\n\nPETITIONER:\nCHIEF JUSTICE OF A.P. & ANR. \n\nRESPONDENT:\nL.V.A. DIKSHITULU & ORS. \n\nDATE OF JUDGMENT: 12\/09\/1978\n\nBENCH:\nY.V. CHANDRACHUD (CJ) & R. S. SARKARIA & N.L. UNTWALIA & A.D. KOSHAL & A.P. SEN\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1979 AIR  193 = 1979 ( 1 ) SCR  26 = 1979 ( 3 ) SCC  34<\/p>\n
With
\nCivil Appeal 278 of 1978<\/p>\n
The Judgment was delivered by : SARKARIA<\/p>\n
SARKARIA, J. : – This judgment will not only dispose of this Appeal (C. A.
\n2826 of 1977) but also furnish reasons in support of our short order dated
\nAugust 4, 1978, by which we allowed Civil Appeal No. 278 of 1978.\n<\/p>\n
2. Both these Appeals raise a common question with regard to the
\ninterpretation, scope and impact of Article 371-D on Articles 226, 229 and
\n235 of the Constitution.\n<\/p>\n
3. In Civil Appeal 2826 of 1977, appellant 1 is the Chief Justice and
\nappellant 2 is the High Court of Andhra Pradesh represented by the
\nRegistrar of that Court. Respondent 1, Shri L. V. A. Dikshitulu is a former
\nemployee of the High Court whose premature retirmeent is in question.
\nRespondents 2 and 3 are the Government, and the Accountant General,
\nrespectively, of Andhra Pradesh.\n<\/p>\n
4. Respondent 1 was a permanent employee of the former Hyderabad High Court
\nprior to November 1, 1956. He was confirmed in the post of Chief
\nSuperintendent on the establishment of that High Court on October 6, 1956.
\nAt the time of his confirmation, he was serving on deputation, with the
\nconcurrence of the Chief Justice of the Hyderabad High Court, as Junior Law
\nOfficer in the Ministry of Law, Government of India. In March 1965, with
\nthe concurrence of the Chief Justice of the High Court of Andhra Pradesh –
\nwhich was the successor High Court to the Hyderabad High Court – he was
\nappointed as a temporary Deputy Secretary in the Law Department of the
\nGovernment of Andhra Pradesh.\n<\/p>\n
5. By an order dated February 6, 1968, the State Government replaced his
\nservices at the disposal of the Chief Justice. On his reversion from
\ndeputation he rejoined the establishment of the High Court as Sub-Assistant
\nRegistrar on February 8, 1968.\n<\/p>\n
6. On that very day, the High Court received a complaint petition from one
\nSmt. Promila Reddy, an Assistant Translator in the State Law Department,
\nalleging misconduct on the part of the 1st Respondent relating to the
\nperiod during which he was working as Deputy Secretary in the State
\nGovernment.\n<\/p>\n
7. A preliminary inquiry was conducted by the then Registrar Shri M.
\nRamachandra Raju (later Judge of High Court of Andhra Pradesh) respondent 4
\nherein. The Registrar submitted his preliminary inquiry report to the then
\nChief Justice. After considering the report the then Chief Justice
\nsuspended the 1st respondent and ordered a departmental inquiry against him
\nby Mr. Justice Chinappa Reddy. After due inquiry, the enquiring Judge found
\nthe 1st respondent guilty of misconduct and recommended his suspension from
\nservice for three years. The Chief Justice, however, differed with the
\nenquiring Judge, regarding the punishment, and proposed to impose the
\npunishment of compulsory retirement after issue of a show-cause notice to
\nthat effect. After considering the representations made by the 1st
\nRespondent, the Chief Justice by an order, dated January 3, 1969,
\ncompulsorily retired him from service.\n<\/p>\n
8. The 1st respondent then moved the High Court under Article 226 of the
\nConstitution by a writ petition (No. 1425 of 1969) questioning the order of
\nthe State Government replacing his services with the High Court and
\nassailing the penalty of compulsory retirement inflicted upon him by the
\nChief Justice. The High Court set aside the order of reversion of the first
\nrespondent from deputation to the High Court staff on the ground that there
\nwas a stigma attached thereto. It also set aside the order of compulsory
\nretirement, not on merits, but on the ground that the recommendation of the
\nenquiring Judge in regard to punishment, viz. stoppage of increments, was
\nnot communicated to him (1st respondent). The High Court while allowing the
\nwrit petition observed that it will be open to the State Government to take
\naction against him in accordance with the Andhra Pradesh Civil Service (C.
\nC. A.) Rules pertaining to lent officers.\n<\/p>\n
9. After the first respondent’s writ petition (No. 1425 of 1969) was
\nallowed, the State Government by an order, dated November 10, 1970,
\nreinstated the 1st respondent as Deputy Secretary with effect from February
\n8, 1968, and once again replaced his services at the disposal of the Chief
\nJustice with effect from April 25, 1968. The State Government did not take
\nfurther departmental action on the complaint of Smt. Promila Reddy.\n<\/p>\n
10. The 1st respondent then filed another Writ Petition (No. 5442 of 1970)
\nunder Article 226 of the Constitution in the High Court impugning the
\norder, dated November 10, 1970, of the State Government. But, the High
\nCourt dismissed the same by a judgment, dated December 30, 1970. The first
\nrespondent’s appeals (C. A. 476 and CA. 1536 of 1971) against the order of
\nthe High Court in the aforesaid writ petitions are pending in this Court.\n<\/p>\n
11. After the dismissal of his writ petition (No.5442\/70), the first
\nrespondent on reinstatement, joined duty as Sub-Assistant Registrar in the
\nHigh Court. Thereafter, he was promoted by the then Chief Justice as
\nAssistant Registrar. Later, he was promoted as Deputy Registrar.\n<\/p>\n
12. In 1975, A. P. Government Servants’ Premature Retirement Rules, 1975
\ncame into force. Under the Rules, which amended Andhra Pradesh Liberalised
\nPension Rules, 1961 and the Hyderabad Civil Service Rules, employees of the
\nState who have completed 25 years of service or completed 50 years age can
\nbe prematurely retired after 3 months’ notice or grant of 3 months’ pay in
\nlieu of notice. Rule 19 of the Andhra Pradesh High Court Service Rules
\ncontains a similar provision.\n<\/p>\n
13. Thereafter on September 19, 1975, a Committee was constituted under an
\norder of the Chief Justice. It consisted of the Acting Chief Justice and
\ntwo Judges (Madhava Reddy and Ramachandra Raju, JJ.) of the High Court. The
\nCommittee reviewed the service records of the servants and officers of the
\nHigh Court who had reached the age of 50 years. The 1st Respondent, Sri
\nDikshitulu had attained the age of 50 years on March 12, 1974. The
\nCommittee resolved to retire him prematurely, among others, in public
\ninterest. By an order, dated September 26, 1975, of the Acting Chief
\nJustice, purporting to have been passed under Article 229 of the
\nConstitution read with Rule 19 of the Andhra Pradesh High Court Service
\nRules, R. 3 (2) (a) of Andhra Pradesh Liberalised Pension Rules 1961\/Rule
\n292 of the Hyderabad Civil Service Rules and Rule 2 (1) of A.P. Government
\nServants Premature Retirement Rules 1975, the 1st respondent was
\nprematurely retired from service in public interest. On April 8, 1976, he
\nfiled a Review Petition. The then Chief Justice rejected his Review
\nPetition. The rejection was communicated to him by a latter, dated
\nSeptember 13, 1976.\n<\/p>\n
14. The first respondent, again, moved the High Court on the Judicial Side
\nby a writ petition (No. 58908 of 1976) under Article 226 of the
\nConstitution, praying for a writ of certiorari to quash the orders of his
\npremature retirement. The writ petition came up for preliminary hearing
\nbefore a Division Bench of the High Court, which by a lengthy speaking
\norder (after hearing the Government Pleader), on October 29, 1976,
\ndismissed it on the preliminary ground that it was not maintainable because<\/p>\n
“the jurisdiction of the High Court which was hitherto being exercised
\nunder Article 226 of the Constitution to correct orders of the Chief
\nJustice on the administrative side with regard to conditions of service of
\nofficers of the High Court now stands vested in the Administrative Tribunal
\nby reason of Cl.6(1) of the Administrative Tribunal Order (made by
\nPresident) under Article 371-D of the Constitution ”\n<\/p>\n
.\n<\/p>\n
15. The first respondent then on November 16, 1976, moved the Andhra
\nPradesh Administrative Tribunal, impugning the order of his compulsory
\nretirement. In that petition the first respondent inter alia contended that
\nMr. Justice M. Ramachandra Raju, who set on the Committee to consider the
\ncase of the 1st respondent for premature retirmenet, was biased against him
\nand that the impugned order, dated September 26, 1975, of his premature
\nretirement was arbitrary and capricious. The Tribunal, however, set aside
\nthe impugned order of the 1st respondent’s premature retirement made by the
\nChief Justice on the sole ground that it is arbitrary and amounts to a
\npenalty of dismissal or removal from service and is hit by Article 311 (2)
\nof the Constitution.\n<\/p>\n
16. Against the aforesaid order, dated August 24, 1977, the appellants have
\nnow come in appeal before us by special leave under Article 136 of the
\nConstitution.\n<\/p>\n
17. Now, the relevant facts giving rise to Civil Appeal No. 278 of 1978,
\nmay be set out.\n<\/p>\n
The 1st respondent, Shri V. V. S. Krishnamurthy, in that appeal was, at the
\nmaterial time, a member of the Andhra Pradesh State Judicial Service. He
\nattained the age of 50 years on November 24, 1974. He was prematurely
\nretired, in public interest, by an order dated September 29, 1975 of the
\nState Government on the recommendation of the High Court. Before the
\nGovernment passed this order, a Committee of Judges appointed by the High
\nCourt, considered the entire service record of the 1st respondent and
\nrecords of other Judicial Officers and decided to prematurely retire the
\nfirst respondent in public interest.\n<\/p>\n
18. The first respondent filed a petition before the Andhra Pradesh
\nAdministrative Tribunal, challenging the order of his premature retirement
\nmade by the State Government. It was contended by him that his service
\nrecord has throughout been good. Before the Tribunal, the High Court
\nresisted the respondent’s petition on the ground that the order of
\npremature retirement was based upon the over-all performance of the
\nrespondent and the order had been passed in public interest and was in
\naccordance with the Rules.\n<\/p>\n
19. On behalf of the 1st respondent, a memorandum was filed, in which it
\nwas contended that since, according to the Andhra Pradesh State Judicial
\nService Rules, the High Court in the case of Subordinate Judges is the
\nappointment authority, the Governor has no. power or jurisdiction to pass
\nan order of premature retirement of a member of the State Judicial Service.
\nThe Tribunal accepted this contention and allowed the Respondent’s petition
\nwithout considering the other contentions raised in the petition and set
\naside the order of the respondent’s premature retirement.\n<\/p>\n
20. Against that Order of the Tribunal, the High Court of Andhra Pradesh
\ncame in appeal (C.A. 278 of 1978) by special leave to this Court under
\nArticle 136 of the Constitution.\n<\/p>\n
21. The first contention of Shri Lal Narain Sinha, appearing for the
\nappellants, is that in the context of basic and fundamental principles
\nunderlying the Constitution relating to the judiciary including the High
\nCourt, officers and servants of the High Court and members of the judicial
\nservices are outside the scope of Article 371-D of the Constitution. It is
\nurged that the general expressions indicating class or classes of posts in
\nArticle 371-D (3) must be given a restricted interpretation which is in
\nharmony with this basic scheme of the Constitution.\n<\/p>\n
22. The thrust of the argument is that in the absence of clear, unequivocal
\nwords in Article 371-D (3) showing a contrary intention, the Article cannot
\nbe construed as taking away the jurisdiction of the High Court under
\nArticle 226 to review administrative action against a member of the High
\nCourt staff or the Subordinate Judiciary. Any other construction, proceeds
\nthe argument, will militate against the exclusiveness of the control vested
\nin the Chief Justice under Article 229, and in the High Court under Article
\n235 over the High Court staff or the Subordinate Judiciary, as the case may
\nbe, and will make such control subject and subservient to the wishes of the
\nExecutive Government which, in terms of the Presidential Order constituting
\nthe Administrative Tribunal, is the ultimate authority to confirm, vary or
\nannul the orders passed by the Tribunal. In support of his contention that
\nthe basic scheme of the Constitution seeks to ensure the independence of
\nthe High Court staff and the judiciary from executive control, learned
\ncounsel has referred to Pradyat Kumar Bose v. The Hon’ble the Chief Justice
\nof Calcutta High Court<\/a> : , M. Gurumoorthy v. Accountant General, Assam and
\nNagaland<\/a> 1971 (Supp) SCR 420 :  ); State of West Bengal v. Nirpendra Nath
\nBagchi<\/a>  ); Baldev Raj Guliani v. Punjab and Haryana High Court<\/a>  :  and
\nState of U. P. v. Batuk Deo Pati Tripathi<\/a>  : (1978 Lab IC 839).\n<\/p>\n
23. As against the above, Shri Vepa Sarathy, appearing for the respective
\nfirst respondents in C. A. 2826 of 1977 and in C.A. 278 of 1978 submitted
\nthat when his client filed a writ petition (No. 58908 of 1976) under
\nArticle 226 of the Constitution in the High Court for impugning the order
\nof his compulsory retirement passed by the Chief Justice, he had served, in
\naccordance with Rule 5 of the Andhra Pradesh High Court (Original Side)
\nRules, notice on the Chief Justice and the Government Pleader, and, in
\nconsequence, at the preliminary hearing of the writ petition before the
\nDivision Bench the Government Pleader appeared on behalf of all the
\nrespondents including the Chief Justice, and raised a preliminary objection
\nthat the writ petition was not maintainable in view of Cl.6 of the Andhra
\nPradesh Administrative Tribunal Order made by the President under Article
\n371-D which had taken away that jurisdiction of the High Court and vested
\nthe same in the Administrative Tribunal. This objection was accepted by the
\nHigh Court, and as a result, the writ petition was dismissed in limine. In
\nthese circumstances – proceeds the argument – the appellant is now
\nprecluded on principles of res judicata and estoppel from taking up the
\nposition, that the Tribunal’s order is without jurisdiction. But, when Shri
\nSarathy’s attention was invited to the fact that no. notice was actually
\nserved on the Chief Justice and that the Government Pleader who had raised
\nthis objection, had not been instructed by the Chief Justice on their
\nbehalf, the counsel did not pursue this contention further. Moreover, this
\nis a pure question of law depending upon the interpretation of Article 371-
\nD. If the argument holds good, it will make the decision of the Tribunal as
\nhaving been given by an authority suffering from inherent lack of
\njurisdiction. Such a decision cannot be sustained merely by the doctrine of
\nres judicata or estoppel as urged in this case.\n<\/p>\n
24. In the alternative, Shri Sarathy submitted that the subject-matter of
\nthis case will fall within the purview of sub-clause (c) of Clause (3) of
\nArticle 371-D, because (i) compulsory retirement is a condition of service,
\nand (ii) the 1st respondent was a person appointed to a post in a “civil
\nservice of the State” within the contemplation of the said Clause.
\nAccording to Shri Sarathy, even if an order issued by the President under
\nClause (3) of Article 371-D abridges, curtails or takes away the powers
\nvested in the Chief Justice under Art. 229, or in the High Court under
\nArticles 226 and 235, or is contrary to the constitutional scheme of
\nsecuring independence of the judiciary, such a result was intended to be
\nbrought about by the amendment of the Constitution as is clear from the non
\nobstante provision in Clause (10) of this Article. Shri Sarathy further
\ninvited our attention to the definition of the expression “public post”
\ngiven in the order of the President issued under Article 371-D (3). This
\ndefinition according to the learned counsel, is wide enough to include all
\nposts held by the staff of the High Court and the Subordinate Judiciary.\n<\/p>\n
25. To appreciate the contentions canvassed before us, it is necessary, at
\nthe outset, to have a look at the constitutional scheme delineated in
\nChapters V and VI (Part IV), in general, and the content of Articles 229
\nand 235, in particular.\n<\/p>\n
26. Chapter V is captioned : “The High Court in the States”. It provides
\nfor various matters relating to High Courts, such as constitution of High
\nCourts (Article 216), Appointment and Conditions of the office of a Judge
\n(Art. 217) Salaries of Judges (Art. 221), Transfer of Judges (Art. 222).
\nJurisdiction of existing High Courts and the powers of the Judges thereof
\nin relation to the administration of justice in the Court, including the
\npower to make rules of Court and to regulate the sittings of the Court
\n(Art. 225), Art. 226 gives power to High Court to issue certain Writs
\nagainst any Government for the enforcement of fundamental rights and for
\nthe redress of any substantial injury arising by reason of any substantive
\nor procedural illegality. Article 228 confers powers on a High Court to
\nwithdraw to its own file cases involving a substantial question of law as
\nto the interpretation of the Constitution. Then comes the crucial provision
\nin Article 229, which is the fulcrum of the scheme of this Chapter. Article
\n229 bears the marginal headings : “Officers and Servants and the expenses
\nof High Courts”. Clause (1) of the Article provides that<\/p>\n
“appointments of officers and servants of a High Court shall be made by the
\nChief Justice of the Court or such other Judge or Officer of the Court as
\nhe may direct”\n<\/p>\n
. Then there is a proviso to this clause with which we are not concerned in
\nthe instant case. Clause (2) empowers the Chief Justice or some other Judge
\nor Officer authorised by him to make rules prescribing the conditions of
\nservice of officers and servants of the High Court. This power, of course,
\nis “subject to the provisions of any law made by the Legislature of the
\nState”. Then, there is a proviso to this Clause, also, which requires that
\nthe<\/p>\n
“Rules made by the Chief Justice or the Judge or Officer authorised by him
\nunder this Clause shall so far as they relate to salaries, allowances,
\nleave or pensions, require the approval of the Governor of the State.
\nClause (3) makes the administrative expenses of a High Court, including all
\nsalaries, allowances and pensions payable to or in respect of the officers
\nand servants of the Court, a charge upon the Consolidated Fund of the
\nState.\n<\/p>\n
27. Now, let us see what is the ambit and scope of the power of
\n“appointment” in Article 229 (1). In the context of Art. 229, read as a
\nwhole this power is of wide amplitude. The word “appointment” in Article
\n229 (1) is to be construed according to the axiom that the greater includes
\nthe less. This cardinal canon of interpretation underlies Sec. 16 of the
\nGeneral Clauses Act which has been made applicable by Article 317 (1) of
\nthe Constitution. Construed in the light of this juristic principle, the
\npower of “appointment” conferred by Article 229 (1) includes the power to
\nsuspend, dismiss, remove or compulsorily retire from service. In short, in
\nregard to the servants and officers of the High Court, Article 229 makes
\nthe power of appointment, dismissal, removal, suspension, reduction in
\nrank, compulsory retirement etc. including the power to prescribe their
\nconditions of service, the sole preserve of the Chief Justice, and no.
\nextraneous executive authority can interfere with the exercise of that
\npower by the Chief Justice or his nominee except to a very limited extent
\nindicated in the Provisos. In conferring such exclusive and supreme powers
\non the Chief Justice, the object which the Founding Fathers had in view,
\nwas to ensure independence of the High Court.\n<\/p>\n
28. The nature and scope of the powers of the Chief Jusitce under Art. 229
\nhas been the subject of several decisions of this Court. In Pradyat Kumar
\nBose v. The Hon’ble the Chief Justice of Calcutta<\/a>  ) (supra), two
\nquestions, among others, came up for consideration : (i) Whether the Chief
\nJustice of a High Court has the power to dismiss from service an officer of
\nthe High Court? (ii) If so, whether the Chief Justice could pass an order
\nof such dismissal without previous consultation with the Public Service
\nCommission, as provided by Art. 320 of the Constitution. The Court answered
\nboth the questions in the affirmative.\n<\/p>\n
29. Dealing with the second question, the Court pointed out that members of
\nthe High Court staff are not “persons serving under the Government of a
\nState”, and that this phrase – used in Art. 320 (3) (c) -”\n<\/p>\n
seems to have reference to such persons in respect of whom the
\nadministrative control is vested in the respective executive Governments
\nfunctioning in the name of the President or of the Governor<\/p>\n
“. It was held that the servants and officers of the High Court do not fall
\nwithin the scope of this phrase”\n<\/p>\n
because in respect of them the administrative control is clearly vested in
\nthe Chief Justice who under the Constitution, has the power of appointment
\nand removal and of making rules for their conditions of service”. It was
\nfurther observed :” The fact that different phrases have been used in the
\nrelevant sections of the Government of India Act (1935) and the
\nConstitution relating to the constitutional safeguards in this behalf
\nappears to be meant to emphasise the differentiation of the services of the
\nHigh Court from other services”.\n<\/p>\n
“……Therefore, both on the ground that Article 320 (3) (c) would be
\ncontrary to the implication of Article 229 and o the ground that the
\nlanguage thereof is not applicable to the High Court staff, we are of the
\nopinion that for the dismissal of the appellant by the Chief Justice, prior
\nconsultation with the Public Service Commission was not necessary<\/p>\n
“.\n<\/p>\n
30. It was, however, conceded that for the purposes of Article 311, the
\nphrase “a person who is a member of a civil service of a State” used in
\nthat Article includes the officers and servants of the High Court.\n<\/p>\n
31. The powers of Chief Justice under Article 229 again came up for
\nconsideration before this Court in M. Gurumoorthy v. Accountant General,
\nAssam and Nagaland<\/a>  ) (supra). The Stenographers’ Service in the High Court
\nwas recognised. Under the reorganisation scheme, one of these posts created
\nwith the sanction of the State Government was to be that of Selection Grade
\nStenographer. On May 7, 1959, the Chief Justice appointed the appellant as
\nSecretary-cum-Selection Grade Stenographer after merger of the two posts.
\nThe State Government objected that the post of Secretary could not be
\nmerged with that of Selection Grade Stenographer. The Accountant General,
\nunder the Government’s instructions, withheld the appellant’s pay-slips.
\nThe appellant moved the High Court by a writ petition, which was dismissed.
\nOn appeal, this Court held that the Government had authority to sanction
\nthe post, but it could not interfere with the choice of the incumbent,
\nwhich undoubtedly was to be of the Chief Justice under Article 229 of the
\nConstitution. In that context, Grover J., speaking for the Court, neatly
\nsummed up the position, which being apposite to the point under discussion,
\nmay be extracted (at pp. 1854-55) : –\n<\/p>\n
”\n<\/p>\n
The unequivocal purpose and obvious intention of the framers of the
\nConstitution is enacting Article 229 is that in the matter of appointments
\nof officers and servants of a High Court, it is the Chief Justice or his
\nnominee who is to be the supreme authority and there can be no.
\ninterference by the executive except to the limited extent that is provided
\nin the Article. This was essentially to secure and maintain the
\nindependence of the High Courts. The anxiety of the constitution-makers to
\nachieve that object is fully shown by putting the administrative expenses
\nof a High Court including all salaries, allowances and pensions payable to
\nor in respect of officers and servants of the court at the same level as
\nthe salaries and allowances of the judges of the High Court nor can the
\namount of any expenditure so charged be varied even by the legislature.
\nClause (1) read with Cl. (2) of Article 229 confers exclusive power not
\nonly in the matter of appointments but also with regard to prescribing the
\nconditions of service of officers and servants of a High Court by Rules on
\nthe Chief Justice of the Court. This is subject to any legislation by the
\nState Legislature but only in respect of appointments even the legislature
\ncannot abridge or modify the powers conferred on the Chief Justice under
\nCl. (1). The approval of the Governor, as noticed in the matter of Rules,
\nis confined only to such rules as relate to salaries, allowances, leave or
\npension. All other rules in respect of conditions of service do not require
\nhis approval. Even under the Government of India Act, the power to make
\nrules relating to the conditions of service of the staff of the High Court
\nvested in the Chief Justice of the Court under Sec. 242 (4) read with
\nSection 241 of the Government of India Act, 1935.\n<\/p>\n
”\n<\/p>\n
32. In the result this Court held that any restrictions imposed by the
\nGovernment, while communicating the sanction of the post could not bind the
\nChief Justice in view of Article 229 of the Constitution.\n<\/p>\n
33. We now turn to Chapter IV. It is captioned : “Subordinate Courts”. It
\nconsists of Articles which provide for matters relating inter alia to
\nappointment and control of persons who man posts in the subordinate
\njudiciary. According to the scheme of this Chapter subordinate judiciary
\nhas been classified into (i) ‘District Judges’, and ‘members of the
\nJudicial Service’. Article 236 defines the expression “district judge” to
\ninclude”\n<\/p>\n
judge of a city civil court, additional district judge, joint district
\njudge, assistant district judge, chief judge of a small cause court, chief
\npresidency magistrate, additional chief presidency magistrate, sessions
\njudge, additional sessions judge and assistant sessions judge”. The Article
\ndefines” judicial service”to mean” a service consisting exclusively of
\npersons intended to fill the post of district judge and other civil
\njudicial posts inferior to the post of district judge<\/p>\n
“.\n<\/p>\n
34. Article 233 gives the High Court an effective voice in the appointment
\nof District Judges. Clause (1) of the Article peremptorily requires that”\n<\/p>\n
appointments of persons to be, and the posting and promotion of district
\njudges”shall be made by the Governor” in consultation with the High Court<\/p>\n
“. Cl.(2) of the Article provides for direct appointment of District Judges
\nfrom Advocates or pleaders of not less than seven years standing who are
\nnot already in the service of the State or of the Union. In the matter of
\nsuch direct appointments, also, the Governor can act only on the
\nrecommendation of the High Court. Consultation with the High Court under
\nArticle 233 is not an empty formality. An appointment made in direct or
\nindirect disobedience of this constitutional mandate, would be invalid.
\n(See Chandra Mohan v. State of U.P. :); Chandramouleshwar v. Patna High
\nCourt<\/a>  : ). ‘Service’ which under Cl.(1) of Article 233 is the first source
\nof recruitment of District Judges by promotion, means the ‘judicial
\nservices’ as defined in Art. 236.\n<\/p>\n
35. The word ‘posting’ as used in Article 233, in the context of
\n‘appointment’ and ‘promotion’ means the first assignment of an appointee or
\npromotee to a position in the cadre of District Judges. It cannot be
\nunderstood in the sense of ‘transfer’. (See Ranga Muhammad’s case ).\n<\/p>\n
36. Article 234 enjoins that the rules in accordance with which
\nappointments of persons other than district judges to the judicial service
\nof a State are to be made, shall be framed by the Governor in consultation
\nwith the High Court and the Public Service Commission. The expression
\n“judicial service” in this Article, carries the same connotation as defined
\nin Article 236.\n<\/p>\n
37. Article 235 is the pivot around which the entire scheme of the Chapter
\nrevolves. Under it,”\n<\/p>\n
the control over district courts and courts subordinate thereto including
\nthe posting and promotions of, and the grant of leave to persons belonging
\nto the judicial service of a State<\/p>\n
“is vested in the High Court.\n<\/p>\n
38. The interpretation and scope of Article 235 has been the subject of
\nseveral decisions of this Court. The position crystallised by those
\ndecisions is that the control over the subordinate judiciary vested in the
\nHigh Court under Article 235 is exclusive in nature, comprehensive in
\nextent and effective in operation. It comprehends a wide variety of
\nmatters. Among others, it includes :\n<\/p>\n
(a) (i) Disciplinary jurisdiction and a complete control subject only to
\nthe power of the Governor in the matter of appointment, dismissal, removal,
\nreduction in rank of District Judges, and initial posting and promotion to
\nthe cadre of District Judges. In the exercise of this control, the High
\nCourt can hold inquiries against a member of the subordinate judiciary,
\nimpose punishment other than dismissal or removal, subject, however, to the
\nconditions of service, and a right of appeal, if any, granted thereby and
\nto the giving of an opportunity of showing cause as required by Article 311
\n(2).\n<\/p>\n
(ii) In Article 235, the word ‘control’ is accompanied by the word “vest”
\nwhich shows that the High Court alone is made the sole custodian of the
\ncontrol over the judiciary. The control vested in the High Court being
\nexclusive, and not dual, an inquiry into the conduct of a member of the
\njudiciary can be held by the High Court alone and no. other authority.
\n(State of West Bengal v. Nripendra Nath Bagchi<\/a> ) (supra), Shamsher Singh v.
\nState of Punjab ) ; Punjab and Haryana High Court v. State of Haryana (sub-
\nnom Narendra Singh Rao)  : .\n<\/p>\n
(iii) Suspension from service of a member of the judiciary with a view to
\nhold a disciplinary inquiry.\n<\/p>\n
(b) Transfers, promotions and confirmation of such promotions, of persons
\nholding posts in the judicial service inferior to that of District Judge.
\n(State of Assam v. S. N. Sen<\/a> :  State of Assam v. Kuseswar Saikia<\/a> :\n<\/p>\n
(c) Transfers of District Judges (State of Assam v. Ranga Muhammad<\/a> )
\n(supra); Chandra Mouleshwar v. Patna High Court (supra).\n<\/p>\n
(d) Recall of District Judges posted on ex-cadre posts or on deputation on
\nadministrative posts. (State of Orissa v. Sudhansu Sekhar Misra<\/a><\/p>\n
(e) Award of selection grade to the members of the judicial service,
\nincluding District Judges, being their further promotion after their
\ninitial appointment to the cadre. (State of Assam v. Kuseswar Saikia<\/a>
\n(supra)).\n<\/p>\n
(f) Confirmation of District Judges, who have been on probation or are
\nofficiating, after their initial appointment or promotion by the Governor
\nto the cadre of District Judges under Article 233, (Punjab and Haryana High
\nCourt v. State of Haryana) (supra).\n<\/p>\n
(g) Premature or compulsory retirement of Judges of the District Courts and
\nof Subordinate Courts (State of U.P. v. Batuk Deo Pati Tripathi<\/a> (1978 Lab
\nIC 839) (SC) (supra)).\n<\/p>\n
39. Since in both these appeals, order of the premature retirement of the
\nRespondents, viz. of Shri Dikshitulu made by the Chief Justice, and of Shri
\nKrishnamoorthy by the Governor in consonance with the decision of the High
\nCourt are in question, it will be appropriate to amplify the point a
\nlittle. It is well settled that compulsory retirement, simpliciter, in
\naccordance with the terms and conditions of service, does not amount to
\ndismissal or removal or reduction in rank under Article 311 or under the
\nService Rules because, the Government servant does not lose the terminal
\nbenefits already earned by him. (See Tara Singh v. State of Rajasthan ;
\nState of Haryana v. Inder Prakash Anand,<\/a>  ).\n<\/p>\n
40. In the last mentioned case the Government servant was officiating in
\nthe cadre of District Judges. The High Court recommended that he should be
\nreverted to his substantive post of Senior Subordinate Judge\/Chief Judicial
\nMagistrate and, as such, allowed to continnue in service till the age of 58
\nyears. Contrary to the recommendation of the High Court, the State
\nGovernment passed an order under Rule 5.32 (c) of the Punjab Civil Service
\nRules, compulsorily retiring him from service at the age of 55 years.
\nHolding that the order of compulsory retirement was invalid, this Court
\nstressed that the power of deciding whether a judicial officer should be
\nretained in service after attaining the age of 55 years up to the age of 58
\nyears, vests in the High Court, and to hold otherwise”\n<\/p>\n
will seriously affect the independence of the judiciary and take away the
\ncontrol vested in the High Court<\/p>\n
“. The formal order of retirement however, is passed by the Governor acting
\non the recommendation of the High Court, that being “the broad basis of
\nArticle 235″. It was explained that”\n<\/p>\n
in such cases it is contemplation in the Constitution, that the Governor as
\nthe head of the State will act in harmony with the recommendation of the
\nHigh Court”. It was concluded that” the vesting of complete control over
\nthe Subordinate Judiciary in the High Court leads to this that the decision
\nof the High Court in matters within its juridiction will bind the State<\/p>\n
“. In other words, while in form, the High Court’s decision to compulsorily
\nretire a subordinate judicial officer in the exercise of its administrative
\nor disciplinary jurisdiction under Article 235 is advisory, in substance
\nand effect, it is wellnigh peremptory.\n<\/p>\n
41. Recently, in State of Uttar Pradesh v. Batuk Deo Pati Tripathi<\/a> : (1978
\nLab IC 839) this Court succinctly summed up the whole position as follows
\n(at p. 846 of Lab IC) :\n<\/p>\n
”\n<\/p>\n
The ideal which inspired the provision that the control over District
\nCourts and courts subordinate thereto shall vest in the High Courts is that
\nthose wings of the judiciary should be independent of the executive……It
\nis in order to effectuate that high purpose that Art. 235 as construed by
\nthe Court in various decisions requires that all matters relating to the
\nsubordinate judiciary including compulsory retirement and disciplinary
\nproceedings but excluding the imposition of punishments falling within the
\nscope of Article 311 and the first appointments and promotions, should be
\ndealt with and decided upon by the High Courts in the exercise of the
\ncontrol vested in them<\/p>\n
“.\n<\/p>\n
42. In sum, the entire scheme of Chapters V and VI in Part VI epitomised in
\nArticles 229 and 235, has been assiduously designed by the Founding Fathers
\nto insure independence of the High Court and the subordinate judiciary.\n<\/p>\n
43. The state is now set for noticing the provision of Article 371-D and
\nthe Andhra Pradesh Administrative Tribunal Order, 1975, made by the
\nPresident in exercise of the powers conferred by Clauses (3) and (4) of
\nthis Article. Article 371-D was inserted in the Constitution with effect
\nfrom July 1, 1974 by the Constitution (Thirtysecond Amendment) Act, 1973.
\nThis Article as its heading shows, makes “special provisions with respect
\nto the State of Andhra Pradesh”. Cl.(1) of the Article authorises the
\nPresident to provide by order”\n<\/p>\n
for equitable opportunities and facilities for the people belonging to
\ndifferent parts of the State<\/p>\n
“in matters of public employment and education. Clause (2) particularises
\nwhat an order made by the President under Cl. (1), may require to be done.
\nClause (3) is crucial for the purpose of the instant case; and may be
\nextracted in full. It reads as under : –\n<\/p>\n
(3) The President may, by order, provide for the constitution of an
\nAdministrative Tribunal for the State of Andhra Pradesh to exercise such
\njurisdiction, powers and authority (including any jurisdiction, power and
\nauthority which immediately before the commencement of the Constitution
\n(Thirtysecond Amendment) Act, 1973, was exercisable by any Court (other
\nthan the Supreme Court) or by any tribunal or other authority) as may be
\nspecified in the order with respect to the following matters, namely : –\n<\/p>\n
(a) appointment, allotment or promotion to such class or classes of posts
\nin any civil service of the State or to such class or classes of civil
\nposts under the State, or to such class or classes of posts under the
\ncontrol of any local authority within the State, as may be specified in the
\norder;\n<\/p>\n
(b) Seniority of persons appointed, allotted or promoted to such class or
\nclasses of posts in any civil service of the State, or to such class or
\nclasses of civil posts under the State, or to such class or classes of
\nposts under the control of any local authority within the State, as may be
\nspecified in the order.\n<\/p>\n
(c) Such other conditions of service of persons appointed, allotted or
\npromoted to such class or classes of posts in any civil service of the
\nState, or to such class or classes of posts under the State, or to such
\nclass or classes of posts under the control of any local authority within
\nthe State, as may be specified in the order. (emphasis supplied).\n<\/p>\n
44. Clause (4) of the Article further provides that an order made under
\nclause (3) may – (a) authorise the Administrative Tribunal to receive
\nrepresentation for redress of grievances relating to any matter within its
\njurisdiction, as the President may specify, and to make such orders thereon
\nas the Tribunal may deem fit; (b) contain provisions with respect to the
\npowers and authorities and procedure of the Administrative Tribunal; (c)
\nprovide for the transfer to the Administrative Tribunal proceedings
\nrelating to classes of posts within its jurisdiction, pending before any
\nCourt (other than the Supreme Court) or tribunal or other authority;\n<\/p>\n
(d) contain supplemental, incidental and consequential provisions including
\nthose relating to fees, limitation, evidence etc.<\/p>\n
45. Under Clause (5),”\n<\/p>\n
the order of the Administrative Tribunal finally disposing of any case
\nshall become effective upon its confirmation by the State Government or on
\nthe expiry of three months from the date on which the order is made,
\nwhichever is earlier<\/p>\n
“.\n<\/p>\n
46. Then there is a Proviso to this Clause a most extraordinary provision,
\nwhich says : –\n<\/p>\n
Provided that the State Government may, by special order made in writing
\nand for reasons to be specified therein, modify or annul any order of the
\nAdminsitrative Tribunal before it becomes effective and in such a case, the
\norder of the Administrative Tribunal shall have effect only in such
\nmodified form or be of no. effect, as the case may be.\n<\/p>\n
47. This clause shows that unlike a civil Court, or a High Court exercising
\njurisdiction under Article 226 (prior to the enactment of Article 371-D),
\nthe Administrative Tribunal set up by an order under clause (3) of the
\nArticle, is not competent to pass definitive or final orders, in the sense
\nthat all its decisions or orders are subject to confirmation, modification
\nor annulment by the State Government. The Tribunal’s order has no. force
\nproprio vigore unless confirmed by the State Government, either expressly
\nwithin three months of the date on which it was made, or impliedly by not
\ninterfering with that order for the said period of three months. Then there
\nis no. provision in the Article, requiring the State Government to give an
\nopportunity of hearing to the parties before modifying or annulling the
\norder of the Tribunal.\n<\/p>\n
48. Clause (6) requires every special order of the Government made under
\nClause (5) to be laid before the State Legislatue. Cl. (7) clarifies that
\nthe High Court or any other Court (other than the Supreme Court) or
\ntribunal shall have no. jurisdiction, power or authority in respect of any
\nmatter subject to the jurisdiction, power or authority of, or in relation
\nto, the Administrative Tribunal, Clause (8) gives power to the President to
\nabolish the Administrative Tribunal, if he is satisfied that its conntinued
\nexistence is not necessary.\n<\/p>\n
49. Clause (9) is a validating provision. As will be presently seen, it was
\nenacted to get over the difficulties created by the judicial decisions on
\nMulki Rules.\n<\/p>\n
Clause (10) gives an overriding effect to the provisions of Article 371-D
\nand to the Presidential orders made thereunder, by enacting :\n<\/p>\n
”\n<\/p>\n
(10) The provisions of this article and of any order made by the President
\nthereunder shall have effect notwithstanding anything in any other
\nprovision of the Constitution or in any other law for the time being in
\nforce<\/p>\n
“.\n<\/p>\n
50. In the context, we may also have a look at the provisions of the Andhra
\nPradesh Administrative Tribunal Order 1975 dated the 19th May, 1975
\n(published as per G.O. Ms. No. 323, General Administration (Spp-B), 22nd
\nMay 1975), made by the President in exercise of his powers under Clauses
\n(3) and (4) of Art. 371-D. Paragraph 2 of this order contains definitions
\nof various expressions used therein. Cl. (d) of this paragraph defines”\n<\/p>\n
person employed”to mean” an individual, in relation to whom the Tribunal
\nhas jurisdiction in respect of the matters specified in paragraph 6 of this
\norder.\n<\/p>\n
“Paragraphs 3 to 5 are not material to the points under consideration.
\nParagraph 6 is important. It provides in regard to “jurisdiction, powers
\nand authority of the Tribunal”. It confers on the Tribunal”\n<\/p>\n
all the jurisdiction, powers and authority which, immediately before the
\ncommencement of this Order, were exercisable by all Courts (except the
\nSupreme Court) with respect to appointment, allotment or promotion to any
\npublic post, seniority of persons appointed, allotted or promoted to such
\npost and all other conditions of service of such persons<\/p>\n
“. Sub-para (2) provides that nothing in sub-paragraph (1) of this
\nparagraph shall apply to, or in relation to,<\/p>\n
(a) persons appointed on contract for a specified term or purpose;\n<\/p>\n
(b) members of the All-India Services;\n<\/p>\n
(c) persons on deputation with the State Government or any local authority
\nwithin the State being persons in the services of the Central or any other
\nState Government or other authority;\n<\/p>\n
(d) persons employed, on part-time basis, and<\/p>\n
(e) village officers.\n<\/p>\n
51. Sub-para (3) is not relevant. Sub-para (4) makes”\n<\/p>\n
the law in force immediately before the commencement of this Order with
\nrespect to the practice, procedure and disposal of petitions for the issue
\nof directions, orders or writs under Article 226 of the Constitution by the
\nHigh Court of Andhra Pradesh<\/p>\n
“applicable (with modifications, if any, made by the Tribunal) to the
\ndisposal of petitions by the Tribunal.\n<\/p>\n
52. There is a proviso to this sub-paragraph which is not relevant for our
\npurpose. The Explanation appended to this sub-paragraph defines for the
\npurpose of Paragraph 6, “public post” to mean : –\n<\/p>\n
(a) all classes of posts in all civil services of the State;\n<\/p>\n
(b) all classes of civil posts under the State; and<\/p>\n
(c) all classes of posts under the control of any local authority within
\nthe State.\n<\/p>\n
53. Paragraph 7 empowers the Tribunal to receive representation from
\npersons aggrieved, relating to matters within the jurisdiction of the
\nTribunal. Then there is a proviso directing the Tribunal not to admit any
\nsuch representation – (a) unless the persons concerned has availed of the
\nremedies under the relevant rules for making such representation to the
\nState Government or the local authority, as the case may be,”\n<\/p>\n
or to any other officer or other authority under the State Government or
\nlocal authority and has failed;\n<\/p>\n
“or (b) if a period of more than six months has elapsed after a final order
\nrejecting the representation. The next material provision is in sub-
\nparagraph (3) which provides that where a representation has been admitted
\nby the Tribunal”\n<\/p>\n
all proceedings for redress of such grievance pending before the State
\nGovernment or local authority<\/p>\n
“shall abate.\n<\/p>\n
54. Paragraph 8 is not relevant. Paragraph 9 mandates the Tribunal that
\nwhen it passes a final order disposing of any case, it shall forward the
\nproceedings thereof to the State Government.\n<\/p>\n
55. Paragraph 14 provides for transfer of proceedings from the High Court
\nand other Courts to the Tribunal, in matters in relation to which
\njurisdiction has been conferred on the Tribunal by this Order.\n<\/p>\n
56. The rest of the provisions of the Order are not relevant to the problem
\nbefore us.\n<\/p>\n
57. The ground is now clear for considering the question : whether the
\nofficers and servants of the Andhra Pradesh High Court and persons holding
\nposts in the judicial service of the State, including ‘District Judges’ are
\nsubject to the jurisdiction of the Administrative Tribunal Order, 1975 made
\nby the President in exercise of his powers under Clauses (3) and (4) of
\nArticle 371-D ?\n<\/p>\n
58. We have seen that the substantive provision is in Clause (3). This
\nclause defines the extent and delimits the area of the “jurisdiction, power
\nand authority” with respect to certain matters mentioned therein, which may
\nbe conferred, wholly or in part, on the Administrative Tribunal by an order
\nmade by the President, thereunder.\n<\/p>\n
59. Clause (4) only subserves and elucidates the substantive Clause (3).\n<\/p>\n
60. It is undisputed that compulsory retirement is a condition of service.
\nThe question, therefore, narrows down into the issue : Do the posts held by
\nofficers and servants of the High Court, and members of the subordinate
\njudiciary fall under any of the “class or classes of posts” mentioned in
\nsub-clause (c) of Clause (3) of Article 371-D ? For reaching a correct
\nfinding on this issue, it is not necessary to dilate on the Administrative
\nTribunal Order made by the President or to explore the scope of the
\nexpression “public post” defined in Paragraph 6 thereof, for, the order
\nhas, merely for the sake of convenience, adopted this brief expression to
\ncover compendiously all the three phrases commonly employed in sub-clauses\n<\/p>\n
(a), (b) and (c) of Clause (3) of the Article. Though the content of the
\nfirst limb of each of the sub-clauses (a), (b) and (c) varies, the rest of
\nthe language employed therein is identical. Each of these three sub-
\nclauses, in terms, relates to class or classes of : –\n<\/p>\n
(i) “posts in any civil service of the State”, or<\/p>\n
(ii) “civil posts under the State”, or<\/p>\n
(iii) “posts under the control of any local authority within the State”.\n<\/p>\n
It is manifest that posts on the establishment of the High Court or held by
\nthe members of the judiciary are not “posts under the control of any local
\nauthority.” Neither the Chief Justice, nor the High Court can be called a
\n“local authority” within the meaning of class (iii). As regards (ii), it is
\nconceded even by Shri Vepa Sarathy, that persons holding posts on the staff
\nof the High Court or in the subordinate judiciary do not hold their posts
\nunder the control of the State Government, and as such, those class or
\nclasses of posts do not fall within the purview of phrase (ii), either.\n<\/p>\n
61. The compass of the problem thus further gets reduced into whether the
\nphrase “posts in the civil services of the State” commonly occurring in
\nsub-clauses (a), (b) and (c) of Article 371-D (3) covers posts held by the
\nHigh Court staff and persons belonging to the subordinate judiciary ? This
\nphrase is couched in general terms which are susceptible of more than one
\ninterpretation.\n<\/p>\n
62. The phrase “Civil service of the State” remains more or less an
\namorphous expression as it has not been defined anywhere in the
\nConstitution. Contrasted with it, the expressions “judicial service of the
\nState” and “District Judge” have been specifically defined in Article 236,
\nand thus given a distinctive, definite meaning by the Constitution makers.
\nConstrued loosely, in its widest general sense, this elastic phrase can be
\nstretched to include the ‘officers and servants of the High Court’ as well
\nas members of the Sub-ordinate Judiciary. Understood in its strict narrow
\nsense, in harmony with the basic constitutional scheme embodied in Chapter
\nV and VI, Part VI, and centralised in Article 229 and 235, thereof, the
\nphrase will not take in High Court staff and the Sub-ordinate Judiciary.
\nShri Vepa Sarathy canvasses for adoption of the expansible interpretation
\nwhich will cover the High Court staff and the subordinate judiciary, while
\nShri Lal Narain Sinha urges for acceptance of the restricted but
\nharmonnious construction of the said phrase. A choice between these two
\nrival constructions of the phrase “civil services of the State” is to be
\nmade in the light of well settled principles of interpretation of
\nconstitutional and other statutory documents.\n<\/p>\n
63. The primary principle of interpretation is that a constitutional or
\nstatutory provision should be construed “according to the intent of they
\nthat made it”(Coke). Normally, such intent is gathered from the language of
\nthe provision. If the language or the phraseology employed by the
\nlegislation is precise and plain and thus by itself, proclaims the
\nlegislative intent in unequivocal terms, the same must be given effect to,
\nregardless of the consequences that may follow. But if the words used in
\nthe provision are imprecise, protean, or evocative or can reasonably bear
\nmeaning more than one, the rule of strict grammatical construction ceases
\nto be a sure guide to reach at the real legislative intent. In such a case,
\nin order to ascertain the true meaning of the terms and phrases employed,
\nit is legitimate for the Court to go beyond the arid literal confines of
\nthe provision and to call in aid other well-recognised rules of
\nconstruction, such as its legislative history, the basic scheme and
\nframework of the statute as a whole, each portion throwing light on the
\nrest, the purpose of the legislation, the object sought to be achieved, and
\nthe consequences that may flow from the adoption of one in preference to
\nthe other possible interpretation.\n<\/p>\n
64. Where two alternative constructions are possible, the Court must choose
\nthe one which will be in accord with the other parts of the statute and
\nensure its smooth, harmonious working, and eschew the other which leads to
\nabsurdity, confusion, or friction, contradiction and conflict between its
\nvarious provisions, or undermines, or tends to defeat or destroy the basic
\nscheme and purpose of the enactment. These canons of construction apply to
\nthe interpretation of our Constitution with greater force, because the
\nConstitution is a living integrated organism, having a soul and
\nconsciousness of its own. The pulse beats emanating from the spinal cord of
\nthe basic framework can be felt all over its body, even in the extremities
\nof its limbs. Constitutional exposition is not mere literary garniture, nor
\na mere exercise in grammar. As one of us (Chandrachud J. as he then was)
\nput it in Kesavananda Bharati’s case  )”\n<\/p>\n
while interpreting words in a solemn document like the Constitution, one
\nmust look at them not in a school-masterly fashion, not with the cold eye
\nof a lexicographer, but with the realization that they occur in ‘a single
\ncomplex instrument in which one part may throw light on the others’ so that
\nthe construction must hold a balance between all its parts<\/p>\n
“.\n<\/p>\n
65. Keeping in mind the principles enunciated above, we will first have a
\npeep into the historical background of the provisions in Article 371-D.\n<\/p>\n
66. The former State of Hyderabad comprised of three linguistic areas :
\nTelangana, Marathwada and Karnataka. In 1919, the Nizam issued a Firman
\npromulgating what came to be known as Mulki Rules. The Nizam confirmed
\nthese Rules by another Firman issued in 1949. Those Rules provided inter
\nalia 15 years’ residence in the State as an essential qualification for
\npublic employment.\n<\/p>\n
67. In 1955, the Rajpramukh in exercise of his powers under Article 309,
\nProviso, of the Constitution framed the Hyderabad General Recruitment
\nRules, 1955 in supersession of all the previous rules on the subject. One
\nof these Rules laid down that domicile certificate would be necessary for
\nappointment to a State or subordinate service, and the issue of such
\ncertificate depended upon residence in the State for a period of not less
\nthan 15 years.\n<\/p>\n
68. On November 1, 1956, as a result of the coming into force of the State
\nReorganisation Act, the State of Hyderabad was trifurcated. Telengana
\nregion became a part of the newly formed State of Andhra Pradesh, while
\nMarathwada and Karnataka regions ultimately became parts of Maharashtra or
\nMysore States.\n<\/p>\n
69. With these prefatory remarks, we may now notice the Statement of
\nObjects and Reasons for the Bill which became the Constitution (32nd
\nAmendment) Act, 1972. This Statement may be quoted in extenso :\n<\/p>\n
”\n<\/p>\n
When the State of Andhra Pradesh was formed in 1956, certain safeguards
\nwere envisaged for the Telengana area in the matter of development and also
\nin the matter of employment opportunities and educational facilities for
\nthe residents of that area. The provisions of clause (1) of Article 371 of
\nthe Constitution were intended to give effect to certain features of these
\nsafeguards. The Public Employment (Requirement as to Residence) Act, 1957,
\nwas enacted inter alia to provide for employment opportunities for
\nresidents of Telengana area. But in 1969 (in the case, A.V.S. Narasimha Rao
\nv. State of Andhra Pradesh,<\/a>  : ), the Supreme Court held the relevant
\nprovision of the Act to be unconstitutional in so far as it related to the
\nsafeguards envisaged for the Telengana area. Owing to a variety of causes,
\nthe working of the safeguards gave rise to a certain amount of
\ndissatisfaction sometimes in the Telengana area and sometimes in the other
\nareas of the State. Measures were devised from time to time to resolve the
\nproblems. Recently several leaders of Andhra Pradesh made a concerted
\neffort to analyse the factors which have been giving rise to the
\ndissatisfaction and find enduring answers to the problems with a view to
\nachieving fuller emotional integration of the people of Andhra Pradesh. On
\nthe 21st September 1973, they suggested certain measures (generally known
\nas the Six Point Formula) indicating a uniform approach for promoting
\naccelerated development of the backword areas of the State so as to secure
\nthe balanced development of the State as a whole and for providing
\nequitable opportunities to different areas of the State in the matter of
\neducation, employment and career prospects in public services. This formula
\nhas received wide support in Andhra Pradesh and has been endorsed by the
\nState Government.\n<\/p>\n
2. This Bill has been brought forward to provide the necessary
\nconstitutional authority for giving effect to the Six-Point Formula in so
\nfar as it relates to the provision of equitable opportunities for people of
\ndifferent areas of the State in the matter of admission to educational
\ninstitutions, and public employment and constitution of an Administrative
\nTribunal with jurisdiction to deal with certain disputes and grievances
\nrelating to public services. The Bill also seeks to empower Parliament to
\nlegislate for establishing a Central University in the State and contains
\nprovisions of an incidental and consequential nature including the
\nprovision for the validation of certain appointments made in the past. As
\nthe Six-Point Formula provides for the discontinuance of the Regional
\nCommittee constituted under clause (1) of Article 371 of the Constitution,
\nthe Bill also provides for the repeal of that clause.\n<\/p>\n
”\n<\/p>\n
(Parenthesis and emphasis in Para 1 added).\n<\/p>\n
70. It will be seen from the above extract, that the primary purpose of
\nenacting Article 371-D was twofold : (i) To promote”\n<\/p>\n
accelerated development of the backward areas of the State of Andhra so as
\nto secure the balanced development of the State as a whole”, and (ii) to
\nprovide” equitable opportunities to different areas of the State in the
\nmatter of education, employment and career prospects in public service.\n<\/p>\n
71. To achieve this primary object, clause (1) of Article 371-D empowers
\nthe President to provide by order,<\/p>\n
“for equitable opportunities and facilities for the people belonging to
\ndifferent parts of the State in the matter of public employment and in the
\nmatter of education”\n<\/p>\n
. Clause (2) of the Article is complementary to Clause (1). It
\nparticularises the matters which an order made under Clause (1) may
\nprovide. For instance, its sub-clause (c) (i) enables the President to
\nspecify in his Order,<\/p>\n
“the extent to which, the manner in which and the conditions subject to
\nwhich,”\n<\/p>\n
preference or reservation shall be given or made in the matter of direct
\nrecruitment to posts in any local cadre under the State Government or under
\nany local authority. Sub-clause (c) further makes it clear that residence
\nfor a specified period in the local area, can be made a condition for
\nrecruitment to any such local cadre. Thus, Clause (4) also is directly
\ndesigned to achieve the primary object of the legislation.\n<\/p>\n
72. From the foregoing conspectus it is evident that the evil which was
\nsought to be remedied, (viz., inequitable opportunites and facilities for
\nthe people belonging to different parts of the State of Andhra Pradesh in
\nmatters of public employment and education) had no. causal nexus, whatever,
\nwith the independence of the High Court and subordinate judiciary which the
\nFounding Fathers have with solemn concern vouchsafed in Arts. 229 and 235.
\nNor did the public agitation which led to the enactment of Article 371-D
\nmake any grievance against the basic scheme of Chapters V and VI in Part VI
\nof the Constitution.\n<\/p>\n
73. The Statement of Objects and Reasons does not indicate that there was
\nany intention, whatever, on the part of the legislature to impair or
\nderogate from the scheme of securing independence of the Judiciary as
\nenshrined in Article 229 and 235. Indeed, the amendment or abridgment of
\nthis basic scheme was never an issue of debate in Parliament when the
\nConstitution (32nd Amendment) Bill was considered.\n<\/p>\n
74. One test which may profitably be applied to ascertain whether the High
\nCourt staff and the Subordinate Judiciary were intended to be included in
\nClause (3) of Article 371-D, is : Will the exclusion of the judiciary from
\nthe sweep of this Clause substantially affect the scope and utility of the
\nArticle as an instrument for achieving the object which the Legislature had
\nin view ? The answer cannot but be in the negative. The High Court staff
\nand members of the Subordinate Judiciary constitute only a fraction of the
\nnumber of persons in public employment in the State. Incidentally it may be
\nmentioned that one of the primary purposes of this Article, viz., to secure
\nequitable share in public employment to people of certain local areas in
\nthe State on the basis of the Mulki Rules requiring 15 years’ residence in
\nthose areas, could be achieved under those Rules which, as subsequently
\nclarified by this Court in State of Andhra Pradesh v. V. V. Reddy,<\/a> 1973
\nAIR(SC) 823, continued to be in force as valid law in the territories of
\nthe former State of Hyderabad State, even after the constitution of the
\nState of Andhra Pradesh.\n<\/p>\n
75. Let us now apply another test which in the circumstances of the case
\nwill be decisive. In that connection, we have to see what consequences will
\nflow if we give this general, undefined and flexible phrase, “Civil
\nservices of the State” in Article 371-D (3), the wider construction so as
\nto include in it the High Court staff and the members of the subordinate
\njudiciary. The inevitable result of such an extensive construction will be
\nthat the control vested in the Chief Justice over the staff of the High
\nCourt, and in the High Court over the Subordinate Judiciary will become
\nshorn of its substance, efficacy and exclusiveness; and after being
\nprocessed through the conduit of the Administrative Tribunal, will pass on
\ninto the hands of the Executive Government, which, under Article 371-D (5),
\nis the supreme authority, having full power to confirm, not to confirm,
\nmodify or annul the orders of the Tribunal. Such a construction will lead
\nto internecine conflict and contradiction, rob Articles 229 and 235 of
\ntheir content, make a mockery of the Directive Principle in Article 50 and
\nthe fundamental concept of the independence of the judiciary, which the
\nFounding Fathers have with such anxious concern built into the basic scheme
\nof the Constitution. Parliament, we are sure, could never have intended
\nsuch a strange result. In our quest for the true intention of Parliament,
\ntherefore, we must eschew this wide literal interpretation which will
\ndefeat or render otiose the scheme of Chapters IV and V, Part VI
\nparticularised in Articles 229 and 235, and instead, choose the alternative
\ninterpretation according to which members of the High Court staff and the
\nsubordinate judiciary will not fall within the purview of the phrase “civil
\nservices of the State”. Such a restricted construction will ensure smooth
\nworking of the Constitution and harmony amongst its various provisions.\n<\/p>\n
76. It is true that this very phrase in the context of the provision in
\nArticle 311 includes the employees of the High Court and members of the
\njudicial services. But it must be remembered that the provisions of Article
\n311 are of a general nature. They give constitutional recognition to a
\nfundamental principle of natural justice, by making its protection
\navailable uniformly to all Government servants. That is, why in the context
\nof that Article this phrase has been spaciously construed. As against this,
\nArticle 371-D is a special provision which marks a departure from the
\ngeneral scheme of the Constitution. The area of the departure cannot be
\nextended beyond what is unmistakably and specifically delineated by the
\nwords employed therein. A phrase used in the context of a general provision
\nmay not carry the same meaning when employed in the context of a special
\nprovision, particularly when that phrase has nowhere been defined in the
\nenactment. “Words used with reference to one set of circumstances”, said
\nLord Blackburn in Edinburgh Street Tramways Co. v. V. Torbain [1877] 3 A.C.
\n58 at p.68,<\/p>\n
“may convey an intention quite different from what the self same set of
\nwords used in reference to another set of circumstances would or might have
\nproduced”\n<\/p>\n
. This holds true even when the same words are used in different contexts
\nin the same enactment. Therefore, in a special provision like Article 371-D
\nas its heading itself proclaims – which derogates from the general scheme
\nof the Constitution for a specific purpose, general undefined phrases are
\nnot to be interpreted in their widest amplitude but strictly attuned to the
\ncontext and purpose of the provisions. Conversely, had it been the
\nintention of Parliament to include ‘Officers and servants of the High
\nCourt’ and members of the ‘judicial service of the State’ and of the cadre
\nof ‘District Judges’, in the phrase ‘civil services of the State’ occurring
\nin Clause (3) of Article 371-D, and thereby depart from the basic scheme of
\nChapters IV and VI, Part VI, the language commonly employed in sub-clauses
\nshould have read like this : –\n<\/p>\n
“Class or classes of posts in the civil services of the State including
\nposts in the “judicial service of the State”, and of “District Judges” in
\nthe State; class or classes of posts of “officers and servants of the High
\nCourt”…..”\n<\/p>\n
77. In our opinion, non use of the phrases “judicial service of the State”
\nand “District Judges”(which have been specifically defined in Article 236),
\nand “officers and servants of the High Court” which has been designedly
\nadopted in Article 235 and 229, respectively, to differentiate them in the
\nscheme of the Constitution from the other civil services of the State,
\ngives a clear indication that posts held by the High Court staff or by the
\nSubordinate Judiciary were advisedly excluded from the purview of Clause
\n(3) of Art. 371-D. The scope of the non obstante provision in sub-article
\n(10) which gives an overriding effect to this Article is conterminous with
\nthe ambit of the preceding clauses.\n<\/p>\n
78. The ‘officers and servants of the High Court’ and the members of the
\nJudicial Service, including District Judges, being outside the purview of
\nClause (3), the non obstante provision in Clause (10) cannot operate to
\ntake away the administrative or judicial jurisdiction of the Chief Justice
\nor of the High Court, as the case may be, under Arts. 229, 235 and 226 of
\nthe Constitution in regard to these public servants in matters or disputes
\nfalling within the scope of the said Articles. Clause (10) will prevail
\nover any provisions of the Constitution, other than those which are outside
\nthe ambit of Article 371-D, such as Article 229 and 235. Provisions not
\notherwise covered by Article 371-D, cannot be brought within its sweep
\nbecause of the non obstante Clause (10). It follows as a necessary
\ncorollary that nothing in the Order of the President constituting the
\nAdministrative Tribunal, confers jurisdiction on the Tribunal to entertain,
\ndeal with or decide the representation by a member of the staff of the High
\nCourt or of the Subordinate Judiciary.\n<\/p>\n
79. For the foregoing reasons, we hold that the impugned Order dated August
\n24, 1977 of the Administrative Tribunal, having been passed without
\njurisdiction, is a nullity. Accordingly, we allow Civil Appeal No. 2826 of
\n1977 leaving the parties to pay and bear their own costs.\n<\/p>\n
80. The reasons given above apply mutatis mutandis to the case of
\nKrishnamurthy in Civil Appeal No. 278 of 1978 and furnish the basis of our
\nshort Order dated August 4, 1978, by which we had accepted that appeal. In
\nthis Appeal (C.A. No. 278\/78) however, the respondent’s costs in this Court
\nwill be borne by the appellant in terms of this Court’s order dated
\n10-2-1978 in SLP (Civil) No. 626 of 1978.\n<\/p>\n
81. In view of the order dated 28th November, 1977 and 22nd March, 1978,
\npassed in stay applications Nos. 4804 of 1977 and 1744 of 1978
\nrespectively, and in terms of those orders we direct that since the appeals
\nhave been allowed, the excess payment, if any, made pursuant to the stay
\norders shall be adjusted towards pension that may be due to the
\nrespondents. The adjustment shall be made in easy, convenient and
\nreasonable instalments.\n<\/p>\n
ORDER<\/p>\n
82. Respondent 1, Shri V.V.S. Krishna Murthy, may if so advised file a writ
\npetition in the High Court of Andhra Pradesh for challenging the order of
\nhis compulsory retirement passed by the Governor of Andhra Pradesh on
\nSeptember 29, 1975. If he files the writ petition within three weeks from
\ntoday, the High Court of Andhra Pradesh and the State of Andhra Pradesh,
\nwhom respondent 1 proposes to implead to his writ petition, shall file
\ntheir counter-affidavit, it so advised, within three weeks after the filing
\nof the writ petition. If respondent 1 desires to file a rejoinder he shall
\ndo so within a week after the filing of the counter-affidavit. The High
\nCourt shall take up the writ petition for hearing within six weeks after
\nthe filing of the counter-affidavit.\n<\/p>\n
83. The learned counsel who appeared before us for the High Court as also
\nthe learned counsel who appeared before us for the State of Andhra Pradesh
\nagree that the High Court and the State Government will not raise any
\nobjection to the maintainability of the writ petition which respondent 1
\ndesires to file for challenging the order of compulsory retirement, either
\non the ground of laches or of delay or on any other technical ground. All
\nthe contesting parties before us are agreed that the writ petition to be
\nfiled by respondent 1, as aforesaid, may be disposed of by the High Court
\non merits.\n<\/p>\n
84. The Government of Andhra Pradesh shall comply with the order passed by
\nthis Court on March 22, 1978 within four weeks from to-day.\n<\/p>\n
85. We quash the order of the Andhra Pradesh Administrative Tribunal dated
\nSeptember 19, 1977 in R. P. No. 319 of 1976. We will give our reasons in
\nsupport of that conclusion later.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Chief Justice Of A.P. & Anr vs L.V.A. Dikshitulu & Ors on 12 September, 1978 Bench: Y.V. Chandrachud (Cj), R. S. Sarkaria, N.L. Untwalia, A.D. Koshal, A.P. Sen 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-137527","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nChief Justice Of A.P. & Anr vs L.V.A. 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