{"id":28155,"date":"1976-04-28T00:00:00","date_gmt":"1976-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-prem-kumar-jain-ors-etc-on-28-april-1976"},"modified":"2016-05-03T21:43:47","modified_gmt":"2016-05-03T16:13:47","slug":"union-of-india-vs-prem-kumar-jain-ors-etc-on-28-april-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-prem-kumar-jain-ors-etc-on-28-april-1976","title":{"rendered":"Union Of India vs Prem Kumar Jain & Ors. Etc on 28 April, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India vs Prem Kumar Jain & Ors. Etc on 28 April, 1976<\/div>\n
Equivalent citations: 1976 AIR 1856, \t\t 1976 SCR 166<\/div>\n
Author: P Shingal<\/div>\n
Bench: Shingal, P.N.<\/div>\n
           PETITIONER:\nUNION OF INDIA\n\n\tVs.\n\nRESPONDENT:\nPREM KUMAR JAIN & ORS. ETC.\n\nDATE OF JUDGMENT28\/04\/1976\n\nBENCH:\nSHINGAL, P.N.\nBENCH:\nSHINGAL, P.N.\nRAY, A.N. (CJ)\nSARKARIA, RANJIT SINGH\nSINGH, JASWANT\n\nCITATION:\n 1976 AIR 1856\t\t  1976 SCR  166\n 1976 SCC  (3) 743\n\n\nACT:\n     Constitution of  India Article  312-All  India  Service\nAct, 1951  -Whether Union  Territories are  `States' for the\npurpose of.\n\n\n\nHEADNOTE:\n     A new  cadre of  the Indian Administrative Services was\nconstituted for\t Delhi and Himachal Pradesh, and recruitment\nto it  was made directly without following the normal method\nprescribed by  Rule 4(1)  of the I.A.S. (Recruitment) Rules,\n1954. These  Rules were amended to provide for a joint cadre\nfor the\t Union\tTerritories  and  the  North  East  Frontier\nAgency, and  the Central  Government formulated a scheme for\nextending the  Delhi-Himachal Pradesh Cadre to all the Union\nTerritories  by\t absorbing  its\t officers  and\t  appointing\nofficers from the Indian Frontier Administrative Service and\nall other  Union Territories  initially. The joint cadre was\nbrought into  existence by  the Central\t Government's orders\nnotified under\tSee. 3(1) of the l.A.S. (Cadre) Rules, 1954,\npublished  in  the  Gazette  of\t India,\t Extraordinary.\t The\ncreation of  the new joint cadre and the appointment of some\nof the\trespondents thereto.  were challenged  in  the\tHigh\nCourt on  the ground  that they were contrary to Art. 312 of\nthe Constitution  and the  All India  Services Act, 1951, as\nthe joint  cadre was  not common to the Union and the States\ninasmuch as  a Union  Territory was  not a  State,  and\t the\nrecruitment of\tthe respondents\t concerned, was illegal. The\nHigh Court  quashed the\t Central Government's orders and the\nscheme for  the formation of a joint cadre of the T.A.S. and\nheld that  the creation\t of the Delhi Himachal Pradesh Cadre\nwas also  ultra vires  the Constitution. The question of law\nwhich  came   up  before   this\t court\t was  whether  Union\nTerritories are\t 'States' for the purpose of art. 312 of the\nConstitution, and the all India Service Rules, 1951 ?\n     Allowing the appeals the Court,\n^\n     HELD :  Section 3(58) of the General Clauses Act. 1897,\nprovides inter\talia, that the expression 'State' shall mean\n\"a state specified in the First Schedule to the Constitution\nand shall  include a  Union Terirtory.\" By virtue of Article\n372-A  of  the\tConstitution.  which  was  inserted  by\t the\nConstitution (Seventh  Amendment) Act  1956 because  of\t the\nfact that  the power  of adaptation under article 372(2) had\ncome to\t an end.  it was  that definition  of the expression\n'State' which had effect from the 1st day of November, 1956,\nand the Constitution expressly provided that it could not be\nquestioned in  any court  of law. It was a special provision\nwhich was  meant to  serve the purpose of making the Seventh\nAmendment Act  workable. Article  372-A thus  gave  a  fresh\npower under  article 372(2).  As from  November 1,  1956 the\nPresident therefore  had the power to adapt the laws for the\npurpose of  bringing the  provisions of\t any law in force in\nIndia in  accord with the provisions of the Constitution. It\nwas  under   that  power   that\t the  President\t issued\t the\nAdaptation of  Laws (No.  1) Order,  1956, which substituted\nthe new clause (58) in section 3 of the General Clauses Act,\n1897, referred to above. The High Court went wrong in taking\na contrary view and in holding that \"Union Territories\" were\nnot \"States\" [168G, 169AG, 171D]\n     Management\t of  Advance  Insurance\t Co.  Ltd.  v.\tShri\nGurudasmal & Ors.,<\/a> [1970] 3 S.C.R. 881, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2289-
\n2299 of 1969.\n<\/p>\n
     (From the judgment and order dated the 25-9-1969 of the
\nDelhi High Court in Writ Petitions Nos. 405 and 478 to 487
\nof 1968)
\n167<\/span>
\n     V. P.  Raman, Addl. Sol. General with P. P. Rao, and S.
\nP. Nayar,  for the appellant.\n<\/p>\n
     R. B. Datar, for the respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SHINGHAL, J.  These appeals by certificate are directed
\nagainst the judgment of the Delhi High Court dated September
\n25, 1969,  allowing Civil  Writ Petition No. 405 of 1968 and
\nconnected petitions  Nos. 478 to 487 of 1968. The High Court
\nhas quashed the orders of the Central Government notified in
\nGSR 42\tto 49, published in Gazette of India, Extraordinary,
\ndated January  13, 1968,  as well  as  the  scheme  for\t the
\nformation of  a joint  cadre of\t the  Indian  Administrative
\nService, hereinafter  referred to  as the  Service, for\t the
\nUnion Territories,  and has  held that\tthe formation of the
\nDelhi-Himachal cadre of the Service was also ultra vires the
\nConstitution. As we shall show, the decision has turned on a
\nshort point  of law, and it will be enough to refer to those
\nfacts which bear on it.\n<\/p>\n
     A new  cadre of  the Service  was constituted  for\t the
\nUnion  Territories   of\t Delhi\t and  Himachal\tPradesh\t and
\nrecruitment  to\t  that\tcadre\twas  made  directly  without
\ncomplying with\tthe recruitment\t of rule  4(1) of the Indian
\nAdministrative\t Service    (Recruitment)    Rules,    1954,
\nhereinafter referred  to as  the  Recruitment  Rules,  which
\nprescribed the\tnormal method of recruitment to the Service.
\nThe Rules  were amended\t on December  21, 1967, by providing
\nfor a  Joint Cadre  in relation to the Union Territories and
\nthe North  East Frontier  Agency, and the Central Government
\nformulated the aforesaid scheme to extend the Delhi-Himachal
\nPradesh Cadre  to all  Union Territories  by  absorbing\t the
\nofficers of  that cadre\t and by appointing to it officers of
\nthe Indian  Frontier Administrative  Service and  all  other
\nUnion Territories  at its  initial constitution.  The  Joint
\nCadre  for  all\t the  Union  Territories  was  brought\tinto
\nexistence from January 1, 1968, by GSR 42 under rule 3(1) of
\nthe  Indian   Administrative  Service  (Cadre  Rules,  1954,
\nhereinafter referred to as the Cadre Rules, published (along
\nwith certain consequential changes in the other rules of the
\nService in  Gazette of\tIndia, Extraordinary,  dated January
\n13, 1968.  The petitioners  in the  h Court  challenged\t the
\ncreation  of   the  new\t  Joint\t Cadre\tfor  all  the  Union
\nTerritories and\t the appointment  of some of the respondents
\nthereto.  It   was  urged   in\tthe   High  Court  that\t the
\nconstitution of\t the new  Joint Cadre  was illegal as it was
\ncontrary  to   the  provisions\t of  article   312  of\t the
\nConstitution and  the All India Services Act, 1951 as it was
\nnot common  to the  Union and  the State inasmuch as a Union
\nTerritory was  not a  State.  and  the\trecruitment  of\t the
\nrespondents concerned to the Joint Cadre was contrary to the
\nprovisions of section 3 of the All India Services Act. 1951.
\nand the Cadre Rules.\n<\/p>\n
     The High  Court examined the question whether the Union
\nTerritories   were States  and reached\tthe conclusion\tthat
\nthis was  not so.  It therefore\t held that  rule 4(5) of the
\nRecruitment Rules  was Ultra  vires the Constitution and the
\nAll India Services Act of the (Cadre in ques
\n168<\/span>
\ntion could  not be  said to  be common\tto the Union and the
\nStates. The  High Court\t also observed\tthat as\t the Central
\nGovernment was itself the State Government for purposes of a
\nUnion Territory,  The Central  Government could\t not consult
\nitself within  the meaning  of section\t3 of  the All  India
\nServices Act  and the  Recruitment and\tthe Cadre  Rules. It
\ntherefore quashed the orders and the scheme mentioned above.\n<\/p>\n
     It appears,  however, that\t it was\t not brought  to the
\nnotice of  the High Court that, in so far as the Service was
\nconcerned, it was not necessary for Parliament to make a law
\nproviding for  its creation as a service common to the Union
\nand the\t States, under\tclause (1)  of article\t312  of\t the
\nConstitution, because  clause (2)  of that article expressly
\nprovided as follows,-\n<\/p>\n
\t  “312. (2)  The services  known at the commencement
\n     of\t this  Constitution  as\t the  Indian  Administrative
\n     Service and  the Indian  Police Service shall be deemed
\n     to be services created by Parliament under This article
\nThe Service  did not  therefore have to be created under the
\nprovisions of Clause (1) of article 312 of the Constitution,
\nor section 2A of the All India Services Act. Section 3(1) of
\nthat Act however made pro vision for the making of rules for
\nthe regulation\tof recruitment\tand conditions of service of
\npersons\t  appointed   to   an\tAll-India   Service   “after
\nconsultation with the Governments of the States concerned.”
\nIt was\tunder that  provision that the Cadre Rules were made
\nby the\tCentral\t  Government, and the question which engaged
\nthe attention  of the  High  Court  was\t whether  the  Union
\nTerritories could  be said to be States for purposes of such
\nconsultation. In that connection the High Court examined the
\nquestion whether  the Union  Territories could be said to be
\nStates merely because rule 2(c) of the Cadre Rules defined a
\n“State’ to  mean a  State specified in the First Schedule to
\nthe Constitution     and including  a Union  Territory,\t and
\nanswered it in the negative.<\/p><\/blockquote>\n
     The expression  “State” has  not been  defined  in\t the
\nConstitution, but  it has been defined as follows in section
\n3(58) of the General Clauses Act (Act X of 1897),-\n<\/p>\n
\t  “State”-\n<\/p><\/blockquote>\n
\t  (a)  as   respects\tany   period\tbefore\t the
\n\t       commencement  of\t the  Constitution  (Seventh
\n\t       Amendment Act,  1956, shall  mean  a  Part  A
\n\t       State. a Part B State or a Part State; and\n<\/p><\/blockquote>\n
\t  (b)  as   respects\tany   period\tafter\tsuch
\n\t       commencement, shall mean a State specified in
\n\t       the First  Schedule to  the Constitution\t and
\n\t       shall include a Union Territory.”\n<\/p><\/blockquote>\n
This was  however not  the original  definition, for  it was
\nsubstituted by\tthe Adaptation\tof Laws (No. 1) order, 1956.
\nBefore that  order, the\t expression “State”  meant “a Part A
\nState, a  Part State  or a Part State.” That definition was,
\nin its\tturn, brought  in by adaptation under article 372 of
\nthe Constitution  by the Adaptation of Laws order, 1950, for
\nthe purpose  of bringing  the provisions of any law in force
\nin
\n169<\/span>
\nthe territory  of India in accord with the provisions of the
\nConstitution.\t   The original\t definition  has  thus\tbeen
\nadapted twice to suit the requirements of the Constitution.\n<\/p>\n
     Clause  (1)   of  article\t 367,\tWhich\tdeals\twith
\n“interpretation” of The Constitution, provides as follows,-\n<\/p>\n
\t  “367(1) Unless the context otherwise requires, the
\n     (General\tClauses Act,  1897, shall,  subject  to\t any
\n     adaptations and  modifications that may be made therein
\n     under article  372 apply for the interpretation of this
\n     Constitution as it applies for the interpretation of an
\n     Act of the Legislature of the Dominion of\tIndia.”\n<\/p><\/blockquote>\n
A cross-reference  to article  372(2) shows  that while\t the
\npurpose of the adaptation was to bring the provisions or any
\nlaw  in\t  force\t in  the  country  “into  accord  with”\t the
\nprovisions of the Constitution, Clause (3) thereof expressly
\nstated inter alia, as follows,-\n<\/p>\n
\t  “(3) Nothing in Clause (2) shall be deemed-\n<\/p><\/blockquote>\n
     (a)  to empower the President to make any adaptation or
\n\t  modification of  any law  after the  expiration of
\n\t  three\t years;\t  from\tthe   commencement  of\tthis
\n\t  Constitution”\n<\/p><\/blockquote>\n
The power  of adaptation or modification was therefore spent
\nafter the  expiry of  three years,  and the  High Court\t has
\ntaken the view that as it were only the adaptations made  in
\nthe General  Clauses Act  under article 372(2) which applied
\nto the interpretation of the Constitution in view of article
\n367(1) the  adaptation made later, by article 372A, were not
\nso applicable.\n<\/p>\n
     A comparison of the provisions of articles 372 and 372A
\nshows, however,\t that while the purpose of both the articles
\nwas to\tbring the  provisions of  any law  in force in India
\n“into accord”  with  the  provisions  of  the  Constitution,
\narticle. 372  was a general provision enabling the making of
\nadaptations and\t modifications in  such laws  by an order of
\nthe President.\twhereas article 372A was a special provision
\nwhich  was   made  specifically\t    for\t  purposes  of\t the
\nConstitution (Seventh  Amendment) Act.\t1956. in  as much as
\nClause (1) thereof provided as follows
\n\t  “372 For  the purposes  of bringing the provisions
\n     of any  law in  force in  India or in any part thereof,
\n     immediately\tbefore\t the   commencement of\t the
\n     Constitution (Seventh Amendment) Act, 1956, into accord
\n     with the pro visions of this Constitution as amended by
\n     that Act,\tthe President\tmay by order made before the
\n     1st day  of November,  1957. make\tsuch adaptations and
\n     modifications of  the law\twhether by  way of repeal or
\n     amendment,\t as  may  be  necessary\t or  expedient,\t and
\n     provide that the law shall, as from such date as may be
\n     specified in the order, have effect subject to
\n170<\/span>
\n     the adaptations and modifications so made, and any such
\n     adaptation or  modification shall\tnot be questioned in
\n     any court of law’ (Emphasis added)
\nIt is  obvious therefore  that as the power of the President
\nto make\t any adaptation\t  or  modification of  any law under
\nClause (2)  of article\t372   was, spent  after three years,
\nParliament felt\t the necessary of giving such a power to the
\nPresident  once\t  again\t for  The  purpose  of\tbringing  me
\nprovisions of  any law\tin forced   immediately\t before\t the
\ncommencement of\t  the  constitution (seventh Amendment) Act,
\n1956, into  accord with\t the provisions or the (constitution
\nas amended by that Act. that was therefore a necessary power
\nas it  was meant to make the amended (constitution workable.
\n1 or  instance, section\t 3 (58) of the (general Clauses act,
\n1897, as  it stood  before the\tcoming\tinto  force  of\t the
\nseventh Amendment Act, defined a ‘`State” to mean `’a Part A
\nState, A  part B  State or  a part  C State  .” As  has been
\nstated, that  definition had  itself been substituted by the
\nAdaptation of  Laws Order, 1950, to make it workable, and it
\nserved the purpose, for the country had those three types of
\nStates at that time. but an important change was made by the
\nconstitution\t    (seventh  Amendment)  Act,\t1956,  which
\nabolished the  distinction of  part A,\tpart B\t  and part C
\nstates and  provided, inter  alia, that the territory of the
\ncountry shall comprise the territories of the States and the
\nUnion\tterritories specified  in the  First  Schedule.\t the
\ndefinition  the\t  expression  “state’  as  it  stood  before
\nNovember 1,  1956, became  unsuitable and  misleading on the
\ncoming into  force of  the Constitution\t (Seventh Amendment)
\nAct, 1956,  from November  1, 1956, and it will, for obvious
\nreasons, be  futile to contend that it should have continued
\nto be  applicable for  all time\t to come  and remained\t‘the
\nfinal definition  of “State”  ” merely because The period of
\nthree years  provided by  Clause (3) (a) of article., 372 of
\nthe  (constitution  expired  and  was  not  extended  by  an
\namendment of  that Clause, or because article 367(1) was not
\namended\t by   the  Seventh   Amendment\tAct   “to  say\tthat
\nadaptations made  in the  General Clauses Act otherwise than
\nthose made  under article  372(2) would be applicable to the
\ninterpretation of  the Constitution.”  The High\t Court\talso
\nerred  in   thinking  that  such  “abstention  seems  to  be
\ndeliberate.” On\t the other  hand, it is quite clear from the
\nfact  that   Parliament\t inserted   article  372A   by\t the
\nConstitution (Seventh  Amendment) Act,\t1956,  that  it\t was
\naware that  the power  of adoption  under article 372(2) had
\ncome to\t an end,  and was alive to the necessity of giving a
\nsimilar power  of  adapting  the  laws\tonce  again  to\t the
\nPresident for the purposes of bringing the provisions of any
\nlaw  in\t  force\t in   the  country  immediately\t before\t the
\ncommencement of\t that Act “into accord” with the  provisions
\nof: the Constitution. It is therefore futile to contend that
\nthe  definition\t  of  the   expression\t“State”\t  which\t was
\napplicable  upto   November,  1956,   remained\t the   final
\ndefinition for all time to come. That view is incorrect, for
\nit overlooks  or ignores  the anxiety  or the  Parliament to
\nremove any  such misapprehensions by inserting article 372A.
\nIt was\ta special  provision, and  it was meant to serve the
\npurpose of making the Seventh Amendment Act workable. As has
\nbeen held  by this Court in Management\tof advance insurance
\nCo. Ltd. v. Shri. Gurudas
\n171<\/span>
\nmal and\t others(1), article  372A gave\ta fresh power to the
\nPresident Which\t was equal  and analogous to the power under
\narticle 372(2).\n<\/p>\n
     It follows\t therefore that,  as and  from\tNovember  1,
\n1956, when  the Constitution  (Seventh Amendment) Act, 1956,
\ncame into  force, the  President had  the power to adapt the
\nlaws for  the purpose  of bringing the provisions of any law
\nin force  in India  into accord\t with the  provisions of the
\nConstitution. It  was under  that power\t that the  President
\nissued the Adaptation of Laws (No. 1) order, 1956, which, as
\nhas been  shown, substituted  a new Clause (58) in section 3
\nof The\tGeneral Clauses\t Act providing, inter alia, that the
\nexpression “State”  shall, as  respects any period after the
\ncommencement of\t the Constitution  (Seventh  Amendment)\t Act
\n1956. mean  “a State  specified in the First Schedule to the
\nConstitution and shall include a Union territory.” It cannot
\nbe said\t with any  justification  that\tthere  was  anything
\nrepugnant in  the subject or context to make that definition
\ninapplicable.  By   virtue  of\t article  372A(1)   of\t the
\nConstitution, it  was  that  definition\t of  the  expression
\n“State” which had effect from the 1st day of November, 1956,
\nand the\t Constitution expressly\t provided that it could “not
\nbe questioned in any court of law.” The High Court therefore
\nwent wrong  in taking  a contrary  view and  in holding that
\n“Union Territories  are not ‘States’ for purposes of Article
\n312(1) of the Constitution and 1′ the preamble to the Act of
\n1951.” That was why the High Court erred in holding that the
\ndefinition of “State” in the Cadre Rules was ultra vires the
\nAll India  Services Act, 1951 and the Constitution, and that
\nthe Union  Territories Cadre  of the Service was “not common
\nto the\tUnion and  the States” within the meaning of article
\n312(1) of the Constitution. and that the Central  Government
\ncould not  make the  Indian Administrative  Service  (Cadre)
\nRules. 1954  in consultation  with the\tState Governments as
\nthere were no such Governments in the Union Territories.\n<\/p>\n
     The High  Court has  held further that section 3 of the
\nAll India  Services Act,  1951 and rule 5 of the Cadre Rules
\nhave  been   contravened  by   the  “direct  appointment  of
\nrespondents 2  to 37  to the  Union Territories Cadre and by
\ntheir being  not recruited  first to  the IAS.”\t But no such
\nground appears\tto have\t been taken  in the  writ  petition.
\nMoreover the validity or rule 4(1) of the Recruitment Rules.
\nwhich\t contained  a non-obstante    Clause  providing\t for
\nrecruitment to\tthe Joint  Cadre of the Union Territories on
\nits initial  constitution by  such  method\tthe  Central
\n(Government may\t after consultation  with the  Union  Public
\nService Commission  prescribe was  not examined\t by the High
\nCourt
\n     For  the  reasons\tmentioned  above.  the\tappeals\t are
\nallowed. the  impugned judgement  of the  High Court   dated
\nSeptember 25, 1969 is set aside and  the writ petition\t are
\ndismissed. There will however be no orders as to the costs.\n<\/p>\n
\t\t\t\t\t   R#Appeals allowed
\n     (1) [1970] 3 S.C.R. 881
\n172<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India vs Prem Kumar Jain & Ors. Etc on 28 April, 1976 Equivalent citations: 1976 AIR 1856, 1976 SCR 166 Author: P Shingal Bench: Shingal, P.N. 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. […]<\/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-28155","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India vs Prem Kumar Jain & Ors. 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