HIGH COURT OF ANDHRA PRADESH AND ORS. versus V.V S. KRISHNAMURTHY AND ORS.

26

A

HIGH COURT OF ANDHRA PRADESH AND ORS. v.

....

V. V. S. KRISHNAMURTHY AND ORS.

August 4, 1978/September 12, 1978

[Y. V. CHANDRACHUD, C.J., R. S. SARKARJA, N. L. UNTWALTA, A. D. KosHAL AND A. P. SEN, JJ.]

Co11stit11tio1: of India 1950-Article 371-D and Andhra Pradesh Ad1ninistra tive Tribunal l~nh'r 1975-Scope and effect of-An officer of the Hir:)i Court and retired-Adn1i11fatratire Tribunal held the a S11hordi11a1e J11d~e compulsoril:v retiren1ent orders invalid-Administrati1'e Tribunal whether has ;urisdiction to entertain, deal with or d.":cide the representation by a member of the staff of the Tligh Court or of subordinate j11diciary-Scope of Articles 229 and 235.

c

A11iclc 371-D (3) inserted by the Constitution (Thirty-Second Amendn1ent) Act 1973, empO¥.'ers the President to constitute an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers a11d .1uthority which immediately before the amendment was exercisable by any Court, tribunal or authority in respect of a'Ppointment, allotment or promotion to posts in the Civil Services of the State, under the State or under the control of any !ocal authority within the state, Clause (10) provides that t:he provisions ot fhe Article and any order made by the President thereunder, .shall have effect not withstanding any other provision of the Constitution or in any other law for the time being in force.

Parr~ 6 of the And.hra }lradesh Administrative Tribunal Order, 1975 issued by the President, -setting up the Andhra Pradesh Administrative Tribunal, pro vides that the Tribunal shall have 'all the jurisdiction, powers and authority exercisable by all Courts \vith respect to appointment, allotment or promotion to any public post, seniority of persons appointed, allotted or promoted to 5uch post a·nd all other conditions of service of such persons'.

The first Respondent in C.A. No. 2826 /77 was a former employee of tile High Court. He originally belonged to the High Court service. After being on deputation with the Central and State Governments for some year" he re joined the High Court service as Assistant Registrar and was later promoted as Deputy Registrar. The Chief Justice of the High Court in exercise ot his powers under Article 229· of the Constitution read with the relevant rules, passed an order, dated January 3, 1969, compulsorily retiring the respondent from ser vice. who by then had attained the age of 50 years.

His writ petition assailing the orders of compulsory retirement, was dismissed by the High Court on the ground that the jurisdiction of the High Court \1.'hich was hitherto being exercised under Article 226 of the Constitution to correct orders of the Chief Justice on the administrative side with rega-rd to conditions of service of officers of the High Court, vested in the Adrµinistrative Tribunal by reason of clause 6(1) of the A.P. Administrative Tribunal Order made by the President under Article 371-D of the Constitution.

The respondent thereafter moved the Andhra Pradesh Administrative Tribu nal, which set aside the impugned order on the ground, that it was ~rbitrary,

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A. P. HIGH COURT V. KRISHNAMURTHY

27

.nnd amounted to a penalty of dism;ssJ\ or removal from service and. as such, A was hit by Article 311(2) of the Constitution.

The resrondent in C.A. No. 278/78 was a member of the Andhra Pradesh St:dc Judicial Service working as a Subordinate Judge. He was prenmturely retired in public interest by an order of the State Government on the recom mendation of the Hig-h Court.

The respondent's contention. that in the case of Subordinate Judges, th~ I--ligh Court being the appointing <('uthority, the Governor had no power or jurisd1ciioi"l to p;iss an order of premature retirement of a1 n1ember of the State Judicial Ser ·v~ce, was accepted by the Tribunal, and the impugned order \Vtl.S. set aside.

B

In the appeals against both the orders of the Administrative Tribunal. it waos contended before this Court by the- appellants that Article 371-D of the Consti scheme unJ~rlytng tution should be construed harmoniously with the basic ·Chapters V and VI in Part VI of the Constitution; and so construed, the g;;ne ral expression, such as "class or classes of posts", "Civil Services of the State" etc. in Clause (3) of this Article will not include posts/members of the High Court staff and the Subordinate Judiciary, with the result impugned orders of the Administrative Tribunal are ¥:ithout jurisdiction nnd nullities.

thci:t the

On the other hand, the respondents contended

that the phra~e ''any C,ivii D

'Service of the State" in cla·use (3) of this Article interpreted in its wide:..t ,;ense, includes the members of the High Court staff and the Subordinate Judu:1ary; that even if such an interpretation is contrary to the Constitutionaf sc7icme ot "Securing independence of the judiciary, such a n::-;ult was intended to be brought ·about by insertion of Article 371-D, the non-obstante provision in C'lnuse ( lO) of \vhich gives it an over riding effect.

Allowing: the appeals.

HELD : 1. The entire scheme of Chapters V and VI in Part VI of the Con stiiution epitomised in Arts. 229 and 235 has been assiduously designed by the Founding Fathers to ensure independence of the High Court and the Subordinate 1ndiciary.

[43F]

E

F

)

(a) In regard to servants and officers of the High Court, Article 229 '-)t tiiC removal, sUsM Constitution n1akes the power of their appointment, dismissal, :;ension, reduction in rank, compulsor_v retiren1ent etc. including the power to prescribe their conditions of seryice, the sole preserve of the Chief Justice and no extraneous cxecutiYe authority ca·n interfere with the exercise of that power by the Chief Justice or his nominee except to a very limited extent mentioned G in the provisos.' In conferring such exclusive nnd supreme po\vers on the CA1iet Justice the object \vhich the Founding Fathers had in vie'v \vas to ensnre the [37F-GJ independence of the High Court.

(b) The control over the Subordinate Judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. troI subject only to the power of the Governor in the matter of appointment: ·dismissal or removal.

It comprehends a wide variety of matters and is a complete cvn~ H

[41B-C]

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B

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28

SUPREME COURT REPORTS

[1979) 1 S.C.R.

( c) Since compulsory retirement, simpliciter, in accordance with the terms. and conditions of service, does not amount to dismissal or removal or reduction in rank under Article 311 or under the service rules, it is for the High Cour• in1 the exercise of its 'control' under Article 235, to decide whether or riot a judge of the SUbordinate Judiciary should be prematurely or compulsorily retired. Though in form such an administrative decision of the High Court is advisory~. in substance and effect, it is well-nigh peremptory.

[42D, 43B]

At. Gurun1oorthy v. Accountant General Assam and Nagaland and Orr. [1971) Suppl. S.C.R. 420, Chandra Mohaa v. State of Uttar Pradesh [1967] l S.C.R. 77; Chandramouleshwar v. Patna High Court [1970] 2 S.C.R. 666; State of Assani v. Ranga Mohammed [1967] 1 SCR 454; State of West Bengal v. Nripendra /\lath Bagchi [1966] 1 SCR, 771; Shamsher Singh v. State of Pun1ab (1975] I S.C.R. 814; Punjab and Haryana High Court v. State of Haryana (Sub aom Narendra Singh Rao) [1975] 3 SCR 365; State of Assam v. S. N. Sett [1971] 2 SCR 889; State of Assam v. Kuseswar Sukla [1970) 2 SCR 923; State of U.P. v. Batuk Dea Pali Tripathi and Anr. [1978) 2 SCC 102; Tara Singh v. State of Raiasthan A.I.R. 1975 SC 1487; State of Haryana v. lnder Prakash Anand A.l.R. 1976 S.C. 1841 referred to.

2. The phrase "any civil _service of the State" commonly employed in ~ub­ clauses (a), (b) and (c) of cl~use (3) of Article 371-D is a general, undetiried and flexible expression and is capable of bearing meaning more thail one. lf it · is construed loosely, in its widest sense so as to include in it the High Court -,talI_ and the members of the Subordinate Judiciary, the result will- be that the control vested in the Chief Justice over the staff of the High Court. and in th~ High Court over the subordinate judiciaory will become shorn of its substance. ellh:acy and exclusiveness; and after being processed through the conduit of the Admli1is trative Tribunal, will pass on into the hands of the Executive Government, which, under clause (5) of Article 371-D is the supreme .authority, having full power to confirm or not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob 1\rticles. 229 and 235 of their content make a mockery of the Directive Principles iB, Artic1e 50 and the fundamental concept of the independence of the judiciary., which the Founding Fathers have with such anxious concern built into the basic scheme of the Constitution. Parliament could never have intended such a strange. result.

[53E-HJ

3. (a) In its strict, narrow sense, the phrase 'Civil service of the State' will [49·

not take in members of the High Court staff and the subordinate judiciary. A.CJ

~

(b) Non-use of the expressions, "judicial service of the State" and "District Judges" (which have been specifically defined in Article 236), and "Officers ai1d Servants of the High Court", which have been designedly adopted in Articles 235 and 229, respectively, to differentiate these in the scheme of the Constitution.-. from the other Civil Services of the State, give·s a clear indication that posts held· by the High Court Staff or by the Subordinaite Judiciary have been advisedly excluded from the purview of Clause (3) of Article 371-D.

[55 B-CJ

H

4. In such a situation, the Court must eschew the wide, literal interoretation which will defeat or render otiose the scheme of Chapters V and VI, Part VI, particularised in Articles 229 and 235, and instead, choose the alternative· inter pretation according to which members of the High Court Staff aud the Subord~.

A. P. HIGH COURT V. KRISHNAMURTHY

29

llate Judiciary v:ill not fall within the purviev.' of Clause (3) of .Article 371-D. A Such a restricted construction v.·ill ensure smooth working of the Constitution .and harmony among its various provisions.

[53H, 54A-BJ

5. The officers and servants of the High Court and the members of the J uct1· ·cial Service, inducting District Judges, being outside the purview of Clause (3), the non-obstante provision in c·Jause (10) of Article 371-D cannot oper&te to ·take away the administrative or judicial jurisdiction of the Chief Justice or of B the High Court, as the case may be, under Articles 229, 235 and 226 .:lt the Constitution in regard to a dispute or matter relating to the conditions of service of a member of the High Court Staff or of the Subordinate Judiciary.

[55D]

6. In view of the above, nothing in the Andhra Pradesh Administrative 'l'rL jurisdiction, power and

bunal Order, 1975, issued by the President, confers authority on the Administrative Tribunal to entertain, deal with or decide the C representation by a member of the High Court Staff or of the Subordinate Judi ciary. The impugned orders, therefore, of the Administrative Tribuna·l in both these appeals, were without jurisdiction, null and void.

[55 F·G]

Clv1L APPELLATE JuR1smcnoN :

Civil Appeal No;. 2826/

77 and 278 nf 1978

Appeals by Special Leave from the Judgment and Order dated 24-8-77 and 19-9-77 of the Andhra Pradesh Administrative Tribunal jn R.P. Nos. 203176 and 319/76 respectively.

L. N. Sinha, G. Narayana Rao and P. P. Singh for the Appellants

in both appeals.

D

E

Ve1>a Purtltasarthy and A. Subba Rao for Respondent No. I in both

the appeals.

P. Ramachandra Reddy, Adv. Genl. A.P., T. V. S. Narasimhachari, G. Narayana Rao (In C.A. 2826/77) and Mrs. Urmi/a Sirur for R. R. 2 and 4 in C.A. No. 2836/77 and R. 2 in C.A. 278/78.

F

The Court delivered the following Order

Respondent 1, Shri V. V. S. Krishna Murthy, may if so advised file a writ petition in the High Court of Andhra Pradesh for challenging the <Jrder of his compulsory retirement passed by the Governor of Andhra G If he files the writ petition within three Pradesh on S~ptember 29. 197 5. weeks from today, the High Court of Andhra Pradesh and the State of Andhra Pradesh, whom respondent 1 proposes to implead to his writ petition, shall file their counter-affidavit, if so advised, within three weeks If respondent I desires to file a after the filing of the writ petition. rejoinder he shall do so within a week after the filing of the counter- H affidavit. The High Court shall take up the writ petition for hearing \\~thin six weeks after the filing of the counter-affidavit.

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SUPREME COURT REPORTS

[1979] 1 S.C.R.

A

B

The learned counsel who appeared before us for the High Court as also the learned counsel who appeared before us for the State of Audhra Pradesh agree that the High Court aind the State Government will not raise any objection to the maintainability of the writ petition which res pondent 1 desires to file for challenging the order of compulsory retire ment., either on the ground of ]aches or of delay or on any other techni cal ground. All the contesting parties before us are agreed that the writ petition to be filed by respondent 1, as aforesaid, may be disposed of by the High Court on merits.

The Government of Andhra Pradesh shall comply with the. order from to

passed by this Court on March 22, 1978 within four weeks day.

c

We quash the order of the Andhra Pradesh Administrative Tribunal dated September 19, 1977 in R.P. No.'319 of 1976. We will give our reasons in support of that conclusion later.

D

The common Judgment in C.A. 2826/77 and C.A. 278/78

(C.A.V.) of the Court was delivered by

SARKARIA, J. This judgment will not only dispose of this Appeal (C.A. 2826 of 1977) but also furnish reasons in support of our short order dated August 4, 1978, by which we allowed Civil Appeal No.

E 278 of 1978.

Both these Appeals raise a common question with regard to the interpretation, scope and impact of Article 3 71-D on Articles 226, 229 and 235 of the Constitution.

F

In Civil Appeal 2826 of 1977, appellant l is the Chief Justice and appellant 2 is the High Court of Andhra Pradesh represented by the Registrar of that Court. Respondent 1, Shri L. V. A. Dikshitulu is a former employee of the High Court whose premature retirement is in questi011. Respondents 2 and 3 are the Government, and the Ac countant General, respectively of Andhra Pradesh.

G

Respondent 1 was a permanent employee of the former Hydera bad High Court prior to November I, 1956. He was confinned in the post of Chief Superintendent on the establishment of that High Court on October 6, 1956. At the time of his confirmation, he was serving the on deputation, with the concurrence of the Chief H Hyderabad High Court, as Junior Law Officer in the Ministry of Law, In March 1965, with the concurrence of the Government of India. Chief Justice of the High Court of Andhra Pradesh-which was the

Justice of

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A. P. HIGH COURT v. KRISHNAMURTHY (Sarkwiu, J.)

31

rnccessor High Court to the Hyderabad High Court-he was appoint ee\ '" a temporary Deputy Secretary in the Law Department of the Government of Andhra Pradesh.

By an order dated February 6, 1968, the State Government replac ed his services at the disposal of the Chief Justice. On his reversion from deputation, he rejoined the establishment of the High Court as Sub-Assistant Registrar on February 8, 1968.

On that very day, the High Court received a complaint-petition from one Smt. Promila Reddy, an Assistant Translator in the Sta•.e Law Department, alleging misconduct on the part of the l st Respon dent relating to the period during which he was working as Deputy Secretary in the State Government.

A preliminary inquiry was conducted by the then Registrar, Shri 1\1. Ramachandra Raju (later Judge of High Court of Andhra Pra desh) , respondent 4 herein. The Registrar submitted his preliminary inquiry report to the then Chief Justice. After considering the report, the ihen Chief Justice suspended the 1st respondent and ordered a departmental inquiry against him by Mr. Justice Chinappa Reddy. Atter ctue inquiry the enquiring Judge found the 1st respondent guilty of misconduct and recommended his suspension from service for three years. The Chief Justice, however, differed with the enquiring Judge regarding th_c punishment, and proposed to impose the punishment of compulsory retirement after issue of a show-cause notice to that effect. After considering the representations made by the !st respondent, the Chief Justice by an order, dated January 3, 1969. compulsorily retired him from service.

retirement

The !st respondent then moved the High Court under Article 226 of the Constitution by a writ petition (No. 1425 of 1969) questioning the order ol the State Government replacing his services with the High Court and assailing the penalty of compulsory inilicted upon him by the Chief Justice. The High Court set aside the order of reversion of the first respondent from deputation to the High Court staff, on the ground that there was a stigma attached thereto. It also set as:de the order of compulsory retirement, not on merits. but on the ground that the recommendation of the enquiring Judge in regard to punishment, viz. stoppage of increments, was not communicatcct to him (!st respondent). The High Court while allowing the writ peti tion observed that it will be open to the State Government to take action against him in accordance with the Andhra Pradesh Civil Ser vices (C.C.A.) Rules pertaining to lent officers.

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SUPREME COURT REPORTS

(1979) 1 S.C.R.

A

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E

After the first respondent's writ petition (No. 1425 of 1969) was allowed, the State Government by an order, dated November 10, 1970, reinstated the 1st respondent as Deputy Secretary with effect from February 8, 1968, and once again replaced his services at the disposal of the Chief Justice with effect from April 25, 1968. The State Government did not take further departmental action on the complaint of Smt. Promila Reddy.

The 1st respondent then filed another writ petition (No. 5442 of 1970) under Article 226 of the Constitution in the High Court, impugning the order, dated November 10, 1970, of the State Govern ment. But, the High Court dismissed the same by a judgment, dated December 30, 1970. The first respondent's appeals (C.A. 476 and C.A. 1536 of 1971) against the orders of the High Court in the afore- said writ petitions are pending in this Court.

After the dismissal of his writ petition (No. 5442/70), the first respondent, on reinsta!ep1ent, joined duty as Sub-Assistant Registrar in the High Court. Thereafter, he was promoted by the then Chief Justice as Assistant Registrar later, be was promoted as Deputy Registrar.

In 1975. A. P. Government Servants Premature Retirement Rules, 1975 came into force. Under the Rules, which amended Andhra Pradesh Liberalised Pension Rules, 1961 and the Hyderabad Civil Service Rules, employees of the State who have completed 25 years of service or completed 50 years age can be prematurely retired after 3 month's notice or grant of 3 month's pay in lieu of noti.ce. Rule 19 of the Andhra Pradesh High Court Service Rules contains :i similar provision.

F

Thereafter on September 19, 1975, a Committee was constituted It consisted of the Acting Chief under an order of the Chief Justice. Justice and two Judges (Madhava Reddy and Ramachandra Raju, JJ.) of the High Court. The Committee reviewed the service record• of the servants and officers of the High Court who had reached the age of 50 years. The 1st respondent, Sri Dikshitulu had attained the age G of 50 years on March 12, 1974. The Committee resolved to retire him prematurely, among others, in public interest. By an order, dated September 26, 1975, of the Acting Chief Justice, purporting to have been passed under Article 229 of the Constitution read with Rule 19 of the Andhra Pradesh High Court Service Rules, Rule 3('.l)(a) of Andhra Pradesh Liberalised 'Pension Rules 1961 /Rule 292 of the H Hyderabad Civil Service Rules and Rule 2(1) of A. P. Government Servants Premature Retirement Rules, 1975, the 1st respondent was pren:aturely retired from service in public interest. On April 8, 1976,

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A. J'. HIGH tbUllt v. KRISHNAMlillTHY (Sarkaria, J.)

33

:he filed '· Review Petition. The then Chief Justice rejected his Review A Petition. The rejection was communicated to him by a letter, dated September 13 1,976.

The first respondent, again, moved the High Court on the Judicial Side by a writ petition (No. 58908 of 1976) under Article 226 of the Constitution, praying for a writ of certiorari to quash the orders of hts B premature retirement. This writ petition came up for preliminary hearing before a Division Bench of the High Court, which by a lengthy speaking mder (after hearing the Government pleader) , on October 29, 1976, dismissed it on tl.1c preliminary ground that it was not main tainable because "the jurisdiction of the High Court which was hitherto being exercised under Article 226 of the Constitution to correct orders C of the Chief Justice on the administrative side with regard to condi tions of service of officers of the High Court now stands vested in tl1e Administrative Tribunal by reason of clause 6(1) of the Administra- tive Tribunal Order (made by President) and Article 371-D of the Constitution.''

The first respondent then on November 16, 1976, moved the Andhra Pradesh Administrative Tribunal, impugning the order of his compulsory retirement. In that petition, the first respondent inter-alia contended that Mr. Justice M. Ramachandra Raju, who sat in the Committee to consider the case of the 1st respondent for premature retirement, was biased against him and that the impugned order, dated September 26, 1975, on his premature retirement was arbitrary and capnc1ous. The Tribunal, however, set aside the impugned order of the 1st respondent's premature retirement made by the Chief Justice -0n the sole ground that it is arbitrary and amounts to a penalty of dismissal or removal from service and is hit by Article 311 ('.!) of the Con~itution.

Against the aforesaid order, dated August 24, 1977, the appellants have now come in appeal before us by special leave under Article 136 of the Constitution.

Now, the relevant facts giving rise to Civi\ Appeal No. 278 of

1978, may be set out.

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G

The ls! respondent, Shri V. V. S. Krishnamurthy, in that appeal was, at the material time, a member of the Andhra Pradesh State Judicial Service. He attained the age of 50 years on November 24, 1974. He was prematurely retired, in public interest, by an order dated September 29, 1975 of the State Government on the recommendation H of the High Court. Before the Government passed this order, a Com mittee of Judges appointed by the High Court, considered the entire

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SUPREME COURT REPORTS

[1979] I S.C.R.

A

service record of the !st respondent and records of other Judicial Offi cers and decided to prematurely retire the first respondent in public interest.

B ment made by the State Government.

The first respondent filed a petitfon before the Andhra Pradesh Administrative Tribunal, challenging the order of his premature retirc- It was contended by him that his service record has throughout been good. Before the Tribunal, the High Court resisted the respondent's petition on the ground that the order of premature retirement be based upon the over-all performance cf the respondent and the order had been passed in public interest and was in accordance with the Rules.

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On behalf of the 1st respondent, a memorandum was filed, in which it was contended that since, according to the Andhra Pradesh. State Judicial Service Rules, the High Court in the case of Subordinate Judges is the appointing authority, the Governor has no power or juris diction to pass an order of premature retirement of a member of the State Judicial Service. The Tribunal accepted this contention and allowed the Respondent's petition without considering the other conten tions raised in the petition, and set aside the order of the respondent's premature retirement.

Against that Order of the Tribunal, the High Court of Andhra Pradesh came in appeal (C.A. 278 of 1978) by special leave to this Court under Article 136 of the Constitution.

The first contention of Shri Lal'Narain Sinha, appearing for the appellants, is that in the context of basic and fundamemal principles underlying the Constitution relating to the judiciary including the High Court, officers and servants of the High Court and members ot the judicial services are outside the scope of Article 371-D of the Constitu It is urged that the general expressions indicating class or classe& tion. C'f posts in Article 371-D(3) must be given a restricted interpretation which is in harmony with this basic scheme of the Constitution.

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H

The thrust of the argument is that in the absence of clear, un- equivocal words in Article 371-D(3) showing a contrary intention, the Article cannot be construed as taking away the jurisdiction of the High Court under Article 226 to review administrative action against a member of the High Court staff or the Subordinate Judiciary. Any other construction. proceeds the argument, will militate against the exclusiveness of the control vested in the Chief Justice under Article 229, and in the High Court under Article 235, over the High Court staff or the Subordinate Judiciary, as the case may be, and will make such control subject and subservient to the wishes of the Executive

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A P. HIGH COURT v. KRISHNAMURTHY (Sarkaria, J.)

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Govc:rnment which, in terms of the Presidential Order constituting the Administrative Tribunal, is the ultimate authority to confirm, vary or annul the orders passed by the Tribunal. In support of his contention that the basic scheme of the Constitution seeks to ensure the ind~pen­ dence of the High Court staff and the judiciary· from executive control, learned counsel has referred to Pradyat Kumar Bose v. The Hun'ble the Chief Justice of Calcutta High Court('); M. Gurumuorthy v. Accoullla/11 General Assam & Naga!and & Oro.,(') ; State of West Bengal v. Nirpendra Nath Bagchi("); Baldev Raj Guliani & Ors. v. The Punjab & Haryana High Court & Ors.('); and State of U.P. v. Batuk Dea Pali Tripathi & Anr.(').

As against the above, Shri Vepa Sarathy, appearing for the respec tive first respondent in C.A. 2826 of 1977 and in C.A. 278 of 1978 submits that when his client filed a writ petition (No. 58903) of 1976 under Article 226 of the Constitution in the High Court for impugning the order of his compulsory retirement passed by the Chief Justice, he had serv1od, in accordance with Rule 5 of the Andhra Pradesh High Court (Original Side) Rules, notice on the Chief Justice and the Govern1nent Pleader, and in consequence, at the preliminary hearing of the writ petition before the Division Bench, the Government Pleader appeared on behalf of all the respondents including the Chief Justice and raised a preliminary objection that the writ petition was not main tainable in view of Section 6 of the Andhra Pradesh Administrative Tribunal Order made by the President under Article 371-D which had taken away that jurisdiction of the High Court and vested the same in the Administrative Tribunal. This objection was accepted by lllc High Court, and as a result, the writ petition was dismissed in limine. In these circumstances-proceeds the argument-the appellant is now precluded on principles of res judicata and 'estoppel from taking up the position. that the Tribunal's order is without jurisdiction. But, wh.n Shri Sar;1thy's attention was invited to the fact that no :1oticc ·x:Li actually served on the Chief Justice and that the Government Pleader who had raised this objection, had not been instructed by the Chic! Justice or the High Court to put in appearance on their behalf. the counse] did not pursuo this contention further. Moreover, this is a pure question of law depending upon the interpretation of Article If the argument holds good, it will make the decision of the 371-0.

(I) (2) (3) (4) (5)

[1955] (2) SC.R. 1331. [1971] Supp. S.C.R. 420. [19661 (IJ S.C.R. 771. [1977] (I) S.C.R. 425. [l978j(2)S.C.C.102- A.l.R.1978S.C. Ill.

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SUPREME COURT REPORTS

[1979] J S.C.R.

A Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case.

In the alternative, Shri Sarathy submitted that the

subject-matter of this case will fall within the purview of sub-clause ( c) of Clause (3 J B of Article 371-D, because (i) compulsory retirement is a condition of service, and (ii) the 1st respondent was a person appointed to a post in a "civil service of the State" within the contemplation of the said a a use. According to Shri Sarathy, even if an order issued by the President under Clause (3) of article 371-D, abridges, curtails or takes away the powers vested in the Chief Justice under Article 229, or in the High Court under Articles 226 and 235, or is contrary to the consti tutional scheme of securing independence of the judiciary, such a result was intended to be brought about by the amendment of the Constitution as is clear from the 11011-obstante provision in Clause (10) of this Article. Shri Sarathy further invited our attention to the definition ot the expression "public post" given in the order of the President issued D under Article 371-D(3). This definition, according to the learned counsel. is wide enough to include all posts held by the staff of the High Court and the Subordinate Judiciary.

C

To appreciate the contentions canvassed before as, it is necessary, at the outset, to have a look at the constitutional scheme delineated in E Chapters V and VI (Part IV), in general, and the content of Article

229 and 235, in particular.

Chapter V is captioned : ''The High Courts in

the States".

It

provides for various matters relating to High Courts, such as, constitu tion of High Courts (Article 216), Appointment and Conditions of the office of a Judge (Art. 217), Salaries of Judges (Art. 221), Transfer of Judges (Art. 222), Jurisdiction of existing High Courts and the powers of the Judges thereof in relation to the administration of justice in the Court, including the power to make rules of Court and to regulat~ the sittings of the Court (Art. 225). Article 226 gives power to High Court to issue certain Writs against any Government for the enforcement of fundamental rights and for the redress of any substantial injury arising by reason of any substantive or procedural illegality. Article 228 confers power on a High Court to withdraw to its own file cases involving a substantial question of law as to the interpretation of the Constitution. Then comes the crucial provision in Article 229, which is the fulcrum of the scheme of this Chapter. Article 229 bears the marginal heading : "Officers and Servants and the expenses of High Courts". Clause ( 1) of the Article provides that "appointments of officers and servants of a High Court shall be made by the Chief

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A. P. HJGH COURT v. KRISHNAMURTHY (Sarkaria, J.)

37

Justice of the Court or such other Judge or Officer of the Court as he may direct". Then there is a proviso to this clause with which we are not concerned in the instant case. Clause (2) empowers the Chief Justice or some other Judge or Officer authorised by him to make rules prescribing the conditions of service of officers and servants of the High Court. This power, of course, is "subject to the provisions of any Jaw made by the Legislature of the State". Then, there is a proviso to this Clause, also, which requires that the "Rules made by the Chief Justice or the Judge or Officer authorised by him under this Clause shall so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. Clause (3) makes the administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, a charge upon the Consolidated Fund of the State.

Now. let us see what is the ambit and scope of the power of "appointment" in Article 229(1). Jn the context of Art. 229, read as a whole, this power is of wide amplitude. The word "appointment" in Article 229(1) is to be construed according to axiom that the greater includes the less. This cardinal canon of interpretation under lies Section J 6 of th" General Clauses Act which has been made appli cable by Article 3 I 7 ( 1 ) of the Constitution. Construed in the light of this juristic principle, the power of "appointment" conferred by Article 229 ( 1 ) includes the power to suspend, dismiss, remove or In short, in regard to the servants compulsorily retire from service. and officers of the High Court, Article 229 makes the power of appoint ment, dismissal, removal, suspensiou, reductio11 in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent indicated In conferring such exclusive and supreme powers on in the Provisos. the Chief Justice the object which the Founding Fathers had in view. was to ensure independence of the High Court.

A

R ,

c

D

E

F

G

The nature and scope of the powers of the Chief Justice under Article 229 has been the subject of several decisions of this Court. In Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta (supra), two questions among others, came up for consideration : (d Whether the Chief Justice of a High Court has the power to dismiss H from service an officer of the High Court. the Chief Justice could pass an order of such dismissal without previous

(ii) If so, whether

38

SUPREME COURT REPORTS

[] 979] 1 S.C.R.

A

consultation with the Public Service Commission, as provided by Article 320 of the Constitution. The Court answered both the questions in the affirmative.

B Government of a State", and that this phrase-used

the Court pointed out

Dealing with the second question,

that members of the High Court staff arc not .. persons serving under the in Article 320( 3) ( c ) -.. seems to have reference to such persons in respect ol whom the administrative control is vested in the respective executive Government functioning in the name of the President or of the Gover- It was held that the servants and officers of the High Court nor". do not fall within the scope of this phrase "because in respect ot them the administrative control is clearly vested in the Chief Justice who under the Constitution, has the power of appointment and removal and of making rules for their conditions of service". It was further observed : "The fact that different phrases have been nsed in the rele- vant sections of the Government of India Act ( 1935) and the Con- stitution relating to the constitutional safeguards in this behalf ~ppears to be meant to emphasise the differentiation of the services of the High Court fron1 other services.,.

" .... Therefore, both on the ground that Article 320(3) (c) would be contrary to the implication of Article 229 and on the ground that· the language thereof is not applicable to the High Court staff, we C1rc of the opinion that for the dismissal of the appellant by the Chief Justice, prior consultation with the Public Service Commission was not necessary."

It was, however, conceded that for the purposes of Article 311. t11e phrase "a person who is a member of a civil service of a State·· used in that Article includes the officers and servants of the High Court.

C

D

E

\

--_.,

\ ;'-

The powers of Chief Justice under Article 229 again came up !or consideration before this Court in M. Gurumoor1hy v. Accountant General Assam & Nagaland & Ors. (supra). The Stenographers' Service in the High Court was reorganised. Under the reorganisation scheme, one of these posts created with the sanction of the State Government, was to be that qf Selection Grade Stenographer. On May 7, 1959, the Chief Justice appoiuted the appellant as Secretary cum-Selection Grade Stenographer after merger of the two posts. The State Government objected that the post of Secretary could not be merged with that of Selection Grade Stenographer. The Accountant General, under the Government's instructions, withheld the appellaut's .. pay-slips. The appellant moved the High Court by a writ petition, which was dismissed. On appeal, this Court held that the Government

.G

H

A. P. lliGH COURT v. KRISHNAMURTHY (Sarkaria, J.)

39

had authority to sanction the post, but it could not interfere with tbe choice of the incumbent, which undoubtedly was to be of the Chiet Justice under Article 229 of the Constitut10n. In that context, Grover J ., speaking for the Court, neatly summed up the position, which being apposite to the point under discussion, may be extracted :

"The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants ot ct High Court, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. This was essentially to secure and maintam the independence of the High Courts. The anxiety of the constitution makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the court at the same level as the salaries and allowances of the judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause ( 1) read with clause ( 2 I of Article 229 confers exclusive pov,rer not only in the malter of appointments but also with regard to prescribing the condi- tions of service of officers and servants of a High Court by' Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointn1cilts even the legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (1). The approval of the Governor, as noticed in the matter of Rules. is confined only to such rules as relate to salaries, allowai:ccs, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of Tndw Act, the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chic! Justice of the Court under Section 242 ( 4) read with Section ·241 of the Government of India Act, 1935."

A

B

c

D

E

F

G

In the result, this Court held that any restrictions imposed by the Government, while communicating the sanction of the post, could not bind the Chief Justice in view of Article 229 of the Constitution.

We now turn to Chapter IV.

It is captioned :

"Subordinate H

It consists of Articles which provide for ll1'1ttcrs relating Courts". inter alia to appointment and control of persons who man posts in the

•

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B

c

D

E

F

G

H

40

SUPREME COURT REPORTS

[1979] ] S.C.R.

subordinate judiciary. According to the scheme of this Chapter suf:I·· ordinate judiciary, has been classified into (i) District Judges; and• members of the ·'Judicial Service'. Article 236 defines the expression "district judge" to include "judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presi dency magistrate, sessions judge, additional sessions judge and assistant sessions judge". The Article defines "judicial service" to mean ''a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge."

Article 233 gives the High Court an effective voice in the appoint ment of District Judges. Clause (1) of the Article peremptorily requires that "appointments of persons to be, and the posting ancl promotion of, district judges" shall be made by the Governor "in consultation with the High Court." Clause (2) of the Article provides for direct appointment of District Judges from advocates or pleaders. of not less than seven years standing, who are not already in the service of the State or of the Union. In the matter of such direct appointments, also, the Governor can act only on the recommendation of the High Court. Consultation with the High Court under Article 233 is not an empty formality. An appointment made in direct or indirect disobedience of this constitutional mandate, would be invalid. (See Chandra Mohan v. State of U.P. (1); Chandraniou!eshwar v. Patna 'Service' which under Clause ( 1) of Article 233 is the High Court('). first source of recruitment of District Judges by promotion, means the 'judicial services' as defined in Article 236.

The word 'posting' as used in Article 233, in the context of 'appointment' and 'promotion', means the first assignment of an appointee or promotee to a position in the cadre of District Judges. It cannot be understood [See Ranga Muhammad's case( 3 )].

in the sense of 'transfer'.

Article 234 enjoins that the rules in accordance with which appoint- ments of persons other than district judges to the judicial service of a State are to be made, shall be framed by the Governor in consultation with the High Court and the Public Service Commission. The expres- sio"n "judicial service" in this Article, carries the same connotation as defined in Article 236.

OJ f1967J l s.c.R. 11. (2) 119101 2 s.c.R. 666. (3) [1967] 1 S.C.R. 454.

\ _;... )-

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A. P. fll(;H COURT '· KRISHNAMURTHY (Sarkaria, J.)

41

Article 235 is the pivot around which the entire scheme of the A

Chapter revolves. Under it, "the control over district courts and court subordinate thereto including the posting and promotions o[, and the grant of leave to persons belonging to the judicial service of fr State" is vested in the High Court.

The interpretation and scope of Article 235 has been the subject of B

several decisions of this Court. 1 he position crystallised by these decisions is that the control over the subordinate judiciary vested In the High Court under Article 235 is exclusive in nature, comprehcnsiw It comprehends a wide variety ol in extent and effective in operation. matters. Among others, it includes :

(a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dis missal, removal, reduction in rank of District Judges. and initial post- ing and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismis;al or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an nppnrtunity of showing cause as required by Article 311 ( 2).

(ii) In, Article 235, the word 'control' is accompanied by the word "vest" which shows that the High Court alone is made the sole custo 'he dian of the control over the judiciary. The control vested in High Court, being exclusive, and not dual, an inquiry into !he conduct of a member of judiciary can be held by the High Court alone (State of West Bengal v. Nripendra Nat/1 and no other authority. Bagchi (supra); Shamsher Singh v. State of Punjab(''); Pun;ab ·and Haryana Hig/1 Court v. State of Harya11a (sub nom Narendra Singh Rao) (2).

(iii) Suspension from service of a member of the judiciary, wit11

a view to hold a disciplinary inquiry.

(b) Transfers, promotions and confirmation of such promotions of persons holding posts in the judicial service, inferior to thal of District J~dge. (State of Assam v. S. N. Sen(::); Stale of Assam v. K11se.1w11r Saikia( 4 )).

)

)

(c) Transfers of District Judges

(State

Muhammad (supra); Chandra Mo11leshwar (supra). ··--·-·····----- (!) [1975J 1 s.c.R. s14. f1975J J s.c.R. 365. 12) 4-520SCI/78

[1971] 2 s.c.c. 889. (3) (4) [t970] 2 S.C.R. 923.

of ,4 s.wun I~o11x:1 v. Patna High Co111t

v.

c

D

E

F

(,

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42

SUPREME COURT REPORTS

(1979] I S.C.R..

A

(d) Award of Selection grade to the members of the

judicial service, including District Judges it being their further promotion after (State of Assam v. Kuseswar their initial appointment to the cadre. Saikia (supra).

(e) Confirmation of District Judges, after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233, on probation or officiating basis. (Punjab & Haryciiia High Court v. State of Haryana (supra).

(f) Premature or compulsory retireJI!ent of Judges of the Di,trict Court and of Subordinate Courl' (State of U.P. v. Batuk Deo Pati Tripathi & A11r. (supra).

Since in both these appeals, orders of the premature retirement ot the Respondents, viz. of Shri Dikshitulu made by the Chief Justice, and of Shri Krishnamoorthy by the Governor in consonance with the decision of the High Court, are in question, it will be appropriate to It is well settled that c0mpulsory retirement, amplify the point a little. simpliciter, in accordance with the terms and conditions of service, does not amount to dismissal or removal or reduction in rank under Article 311 or under the Service Rules because the Government servan_t does not lose the terminal benefits already earned by him (See Tara Singh v. State of Rajasthan(1'); State of !Jaryana v. lnder Prakash Anand( 2 ).

In the last mentioned case the Government servant was officiating in the cadre of District Judges. The High Court recommended that he should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and, as such, allowed to continue in service till the age of 58 years. Contrary to t_he recommendation of the High Court, the State Government passed an order under Rule 5.32(c) of the Punjab Civil Service Rules, compulsorily rcliring him from service at the age of 55 years. Holding that the order of com pulsory retirement was invalid, this Court stressed that the power ot deciding whether a judicial officer should be retained in service airer attaining the age of 55 years upto the age of 58 years: vests in the High Court, and to hold otherwise "will seriously affect the indepen dence of the judiciary and take away the control vested in the High Court". The formal order of retirement, however, is passed by the Governor acting on the recommendation of the High Court. that being "the broad basis of Article 235". It was explained that "in such ~ases it is the contemplation in the Constitution, that the Governor as Tire

B

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(1) A.LR. 1975 S.C. 1487. (2) A.LR. 1976 S.C. 1841.

A. P. HIGH COURT v. KRISHNAMURTHY (Sarkaria, .T.)

43

•

.. 1

head of the State will act in harmony with the recommencfation of the It was concluded that "the vesting of complete control High Court". over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdicti6ii. will In other words, while in form, the High Court's bind the State". decision to compulsorily retire a subordinate judicial officer in the exercise of its administrative or disciplinary jurisdiction under Article 235 is advisory, in substance and effect, it is well-nigh peremptory .

Recently, in State of Uttar Pradesh v. Batuk Deo Pati Tripathi( 1),

this Court succinctly summed up the whole position as follows :

"The ideal which inspired the provision that the control over District Courts and courts subordinate thereto shall vest in the High Courts is that those wings of the judiciary should be independent of the executive ... It is in order to effectuate that high purpose that Art. 235 as construed by the Court in various decisions, requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding imposition of punishments falling within the scope of Article 311 and the first appointments and promotions should be dealt with and decided upon by the High Courts in the exercise of the control vested in them."

the

A

B

c

I>

In sum, the entire scheme of Chapters V and VI in Part Vl, epitomised in Articles 229 and 235 has been assiduously designed by the Founding Fathers to insure independence of the High Court ~nd the snbordinate judiciary.

'

The stage is now set for noticing the provision of Article 371 D and the Andhra Pradesh Administrative Tribunal Order; 1975, made by the President in exercise of the powers conferred by clause (3) and ( 4) of this Article. Article 37 l D was inserted in the Constitu tion with effect from July 1, 1974 by the Constitution (Thirty second Amendment) Act, 1973. This Article as its heading shows, makes "special provisions with respect to the State of Andhra Pradesh." Clause ( 1) of the Article authorises the President to provide by order "for equitable oportunitics and facilities for the people belonging to different pa1ts of the State" in matters of public employment and education. Clause (2) particularises the what an order made by tne {I) [1978] 2 s.c.c. 102.

G

ll

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SUPREME COURT REPORl'S

[J 979J l S.C.R.

President under clause (1), may require to be done. is crucial for the purpose of the instant case; and may in full.

It reads as under : -

Clause \3), be extracted

•

(3) The President may, by order, provide for the con stitution of an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers and authority power and authority which (including any jurisdiction, immediately before the commencement of the Constitution {Thirty second Amendment) Act, 1973, was exercisable by a11y Court (other tilan the Supreme Cow:t} or by any tribunal or other authority) as may be specified in the order with respect to the following matters, namely:-

(a) appointment, allotment or promotion to such class

or classes of posts in any civil service! of the State, or to such . class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order;

(b) Seniority of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts wider the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order.

(c) Such other conditions of service of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State, or to such class or classes of post.1 under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order. (emphasis supplied).

r

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,_

Clause ( 4) o[ the Article further provides that an order made under clause (3) may (a) authorise the Administrative Tribu11al to receive represe11tation for redress of grievances relating to any matter within its jurisdiction, as the President may specify, and to make such orders thereon as the Tribunal may deem fit; (b) contain provisions with respect to the powers and authorities and procedurq of the Admi nistrative Tribunal, (c) provide for the transfer to the Administrative Tribunal proceedings relating to classes of posts within its jurisQlction. pending before any Court (other than the_ Supreme Court) or tribunal or other authority; ( d) contain supplemental, incidental and conse quential provisions including those relating to fees, limitation, evidence etc.

E

F

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A. p, HIGH COURT v. KRISllNAMUR1HY (Sarkaria, J.)

45

•

Under Clause (5), "the order of the Administrative Tribunal tinally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from tile date on which the order is made, whichever is earlier."

Then there is a Proviso to this Clause, a most extraordiJiary pro

vision, whlch says : -

Provided that the State Government may, by special order niade in writing and for reasons to be specified there in, modify or annul any order of the Administrative Tri bunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect. as the case may be.

B

c

This clause shows that unlike a Civil Court, or a High Court exercising jurisdiction under Article 226 (prior to the enactment of D Article 3710, the Administrative Tribunal set up by an order under clause (3) of the Article, is not competent to pass definitive or final orders, in the sense that all its decisions or orders are subject to confirmation, modification or annulment by the State Government. The Tribunal's order has no force proprio vigore unless confirmed by the State Government either expressly within three months of the E that date on which it was made, or impliedly by not interfering with order for the said period of three months. Then there is no provi- sion in the Article, requiring to give an opportunity of hearing to the parties before modifying or annulling the order of the Tribunal.

the State Government

.. -I

that

Clause ( 6) requires every special order of the Government made under Clause (5) to be laid before the State Legislature. Clause (7) the High Court or any other Court (other than clarifies the Supreme Court) or tribunal shall have no jurisdiction, power or authority in respect of any matter subject to jurisdiction, power or authority of, or in relation to, the Administrative Tribunal Clause ( 8) gives power to the President to abolish the Administra tive Tribunal, if he is satisfied that its continued existence is not necessary .

the

F

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Clause (9) is a validating provision. As will be presently seen, H

it was e!lacted to get over the difficulties created by the judicial deci- sions on Mulki Rules.

46

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SUPREME COURT REPORTS

[1979] ] S.C.R.

Clause (I 0) gives an overriding effect to the provisions of Article 371D and to the Presidential orders made thereunder, by enacting :

B

c

D

E

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H

" ( 10) The provisions of this article and of any order made by the President thereunder shall have effect notwith standing anything in any other provision of the Constitution or in any other law for the time being in force."

in

the President

therein. Clause

In the context, we may also have a look at the provisions of the the Andhra Pradesh Administrative Tribunal Order, 1975, dated 19th May, 1975 (published as per G.O.Ms. No. 323, General Admi nistration (SPF-D), 22nd May 1975), made by in exercise of his powers under Clauses (3) and (4) of Article 371-D. Paragraph 2 of this order contains definitions of various expressions (d) of this paragraph defines "person used employed" to mean "an individual, in relation to w horn the Tribunal has jurisdiction in respect of the matters specified in paragraph 6 of this Order." Paragraphs 3 to 5 are not material to the points under consideration. Paragraph 6 is important. It provides in re gard to "Jurisdiction, powers and authority of. lt confers on the Tribunal "all the jurisdiction, powers and authority which, immediately before the commencement of this Order, were exercisable by all Courts (except the Supreme Court) with respect to appointment, allotment or promotion to any public post, seniority of persons appointed, allotted or promoted to such post and all other conditions of service of such persons." Sub-para (2) provides that nothing in sub-paragraph (1) of this paragraph shall apply to, or in relation ,to,-

the Tribunal".

( a) persons appointed on contract for a specified term

or purpose;

(b) member of the All-India Services· ,

( c) persons on deputation with the State Government or ~ny local ~uthority within the State being persons m the sefVlces of the Central or auy other State Government or other authority;

( d) pers9ns employed, on part-time basis; and ( e) village officers.

Su?-para. (3) is not relevant. Sub-para ( 4) makes "the Jitw in force immedmtel~ before the commencement of this Order wiffi res pect. to the practice proce~ure and disposal of petitions for the issue of dJrec!ions, orders or wnts under article 226 of the Constitution by

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A. P. mGH COURT v. KRISHNAMURTHY (Sarkaria, J.)

47

the High Court of Andhra Pradesh" applicable (with modifications, if any, made by the Tribunal) to the disposal of petitions by the Tribunal.

There is a proviso to this sub-paragraph which is not relevant for this Sub-paragraph

<lur purpose. The Explanation appended defines for the purpose of Paragraph 6, "public post" to mean : -

to

(a) all classes of posts in all civil services of the State;

(b) all classes of civil posts under the State; and

( c) all, ~lasses of posts under the control of any

local

authority within the State.

Paragraph 7 empowers the Tribunal to receive

representations from persons aggrieved, relating to matters within the jurisdiction of the Tribunal. Then there is a proviso directing the Tribunal not to admit any such representation (a) unless the person concerned has such availed of the remedies under the relevant rules for making as r;presentation to the State Government or the local authority, the case may be, "or to any other officer or other authority under the State Government or loca~ authority and has failed;" or (b) if a period of more than six months has elapsed after a final order reject ing the representatioo. The next material provision is in sub-para graph ( 3) which provides that where a representatio;i has been J!dmitted by the Tribunal "all proceedings for redress of such griev ance pending before the State Government or local authority" shall abate.

A

B

c

D

E

Paragraph 8 is not relevant. Paragraph 9 mandates the Tribunal that when it passes a final order disp,o~ing of any q1se, it shall for ward the proceedings thereof to the State Government.

F

Paragraph 14 provides for transfer of proceedings from the IIlgh Court and other Courts to the Tribunal, in matters in relation to which jurisdiction has been conferred on the Tribunal by this Ofder.

The rest of the proyisions of the Order are not relevant

to

the G

problem before us.

The ground is now clear for considering the question. Whether the officers and servants of the Andhra Pradesh High Court and per- including sons holding posts in 'the judicial service of 'Distrfct Judges'. are subject to the jurisdiction of the Administrative H Tribunal Order, 1975 made by the President io exercise of his powers under Clauses (3) and (4) of Article 371D?

the State',

48

SUPREME COURT REPORTS

[1979] I S.C.!C

A

We have seen that the substantive provision is in Clause (3). This clause defines the extent and delimits th_e area of the "jurisdic tion, power and authority" with respect to certain matters mentioned therein, which may be conferred, wholly or in part, on the Adminis trative Tribunal by an order made by the President, thereunder.

B

Clause ( 4) only subserves and elucidates the substantiw Clause

(3).

It is undisputed that compulsory retirement is a condition of service. The question, therefore, narrows down into the issue. Do the posts held by officers and servants of the High Court, and mem bers of the subordinate judiciary fall under any of the "class or classes of posts" mentioned in sub-clause (c) of Clause (3) of Article 371D? For reaching a correct finding on this issue, it is not ::eces- sary to dilate on the Administrative Tribunal Order made by the President, or to explore the scope of the expression "public post" defined in Paragraph 6 thereof for, the order has, merely for the sake of convenience, adopted this brief exQression to cover compendiously all the three phrases commonly employed in sub-clauses (a), (b) and (c) of Clause (3) of the Article. Though the content of the the first limb of each of the sub-clauses (a), (b) and ( c) varies, rest of the language employed therein is identical. Each of these three sub-clauses, in terms, relates to class or classes of-

( i) "posts in any civil service of the State", 01·

(ii) "civil posts under the State", or

(iii) "posts under the control of any local authority with

in. the State".

It is manifest that posts on the establishment of the High Court or held by the members of the judiciary are not "posts under the control of any local authority". Neither the Chief Justice, nor the High Court can be called a "local authority" within the meaning of clas~ (iii). As regards (ii), it is conceded even by Shri Vepa Sarathy, that persons holding posts on the staff of the I!_igh Court oc in the subordinate judiciary do not hold their posts under the control of the State Government, and, as such, those class or classes of posts do not fall within the purview of phrase (ii), either.

The compass of the problem thus further gets reduced into whether the pJu:ase "posts in the civil services of the State" commonly occur ring in sub-clauses (a), (b) and (c) of Article 37l-D(3) covers posts held by the High Court staff and persons belonging to the subordinate judiciary ? This phrase is couched in general terms which are· susceptible of more than one interpretation.

c

D

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F

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A. P. HIGH COURT v. KRISHNAMURTHY (Sarkaria, J.)

49

The- phrase "Civil service of the State" remains more or less an the amorphous expression as it has not been defined anywhere in service Constitution. Contrasted with it, the expressions "judicial in of the State" and "District Judge" have been specific~lly defined Article 236, and thus given a distinctive, definite meaning by the Constitution-makers. Construed· loosely, in its widest general sense, this elastic phrase can be stretched to ii1clude the 'officers and servants ol' the High Court' as well as members of the Subordinate Judiciary. Understood in its strict narrow sense, in harmony with the basic cons titutional scheme embodied in Chapters V and VI, P~rt VI, and centralised in Articles 229 and 235, thereof the phrase will not take in High Court staff and the Subordinate Judiciary. Shri Vepa Sarthy canvasses for adoption of the expansible interpretation which will cover the High Court staff and the subordinate judiciary, while Shri Lal Narain Sinha urges for acceptance of the restricted but harmonious construction of the said phrase. A choice between these two rival constructions of the phrase "civil services of the State" is to be made in the light of well settled principles of interpretation of Constitutional and other statutory documents.

The primary principle of interpretation is that a Constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If th_e. language or the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative strict or can reasonably bear meaning more than one, the rule of grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal coo.fines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that mJ.ly flow from the adOiption of one in preference to the other possible interpretation.

Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads io absurdity, confusion, or friction, contradiction

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SUPREME COURT REPORTS

[1979] 1 S.C.R,

A

B

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D

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and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Cons titution with greater force, because the Constitution is a living, integ rated organism, having a soul and consciousness of its own. The pulse beats emanating from the spfoal cord of its basic framework can be felt all over its body, even in the extremeties of limbs. Constitutional exposition is not mere literary garniture; nor a mere exercise in grammar. As one of us (Chandrachud, J. as he then was) put it in Keshvananda Bharati's case, "while interpreting words in a solemn document like the Constitution, one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in 'a single complex instru ment in which one part may throw light on the other' so that the construction must hold a balance between all its parts."

its

The former State of Hyderabad comprised of three

Keeping in mind the principles enunciated above, we will first have a peep into the historical background of the provisions in Article 371D. linguistic areas : Telengana, Marathwada and Karnatak. In 1919, the Nizam issued a Firman promulgating what came to be known as Mulki Rules. The Nizam confirmed these Rules by another Firman issued in 1949. Those Rules provided inter a/ia 15 years' residence in the State as an essential qualification for public employment.

In 1955, the Rajpramukh in exercise of his powers under Article 309, Proviso, of the Constitution framed the Hyderabad General Recruitment Rules, 1955 in supersession of all the previous rules on the subject. One of these Rules laid down that domicile certificate would be necessary for appointment to a State or subordinate service, and the issue of such certificate depended upon residence in the State for a period of not less than 15 years.

On November 1, 1956, as a result of the coming into force of the States Reorganisation Act, the State of Hyderabad was trifurcated. Telengana region became a part of the newly formed State of Andhra Pradesh, while Marathwada and Karnatak regions ultimately became parts of Maharashtra or Mysore States.

With these prefatory remarkB, we may now notice the Statement of Objects and Reasons for the Bill which became· the Constitution ( 32nd Amendment) Act 1972. This Statement may be quoted in extenso:

"When the State of Andhra Pradesh was formed in 1956, certain safeguards were envisaged for the Telengana area in the matter of development and also in the matter of

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employment opportunities· and educational facilities for the residents of that area· The provisions of clause ( 1) of Article 371 of the Constitution were intended to give effect to certain features of these safeguards. The Public Emp loyment (Requirement as to Residence) Act, 1957, was enacted inter alia to provide for employment opportunitie~ for residents of Telengana area. But in 1969 (in the case, A. V. S. N. Rao v. Andhra Pradesh 1970 (l) S.C.R. 115), the Supreme Court held the relevant provision of the Act to be unconstitutional in so far as it related to the safeguards envisaged for the Telei:igana area. Owing to a variety of canses, the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the Telengana area and sometimes in the other areas of the State. Measures were devised from time to time to resolve the problems. Recently several leaders of Andhra Pradesh made a con certed effort to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integra the 21st tioo of the people of Andhra Pradesh. On September 1973, they suggested certain measures (generally known as the Six-Point Formula) indicating a uniforu1 approach for promoting accelerated development of the the balanced backward areas of the State so as to secure development of the State as a whole and for providing equitable opportunities to different areas of the State it1 the matter of education, employment and career prospects in public services. This formula has received wide support in Andhra Pradesh and has been endorsed by the State Government.

2. This Bill has been brought forward to provide the necessary c011Stitutional authority for giving effect to the Six Point Formula in so fa~ as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services. The Bill also seeks to empower Parliament to legislate for establishing a Central University in the State and contains provisiollS of an inci dental and consequential nature including the provision for the validation of certain appointments made in the past.

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As the Six-Point Forinula provides for the discontinuance of the Regional Committee constituted under clause (I) of article 371 of the Constitution, the Bill also provides for the repeal of that clause-''

(Parenthesis and emphasis in Para 1 added) .

It will be seen from the above extract, that the primary purpose of enacting Article 3710 was two-fold : (i) To promote "accelerated development of the backward areas of the State of Andhra so as to secure the balanced development of the State as a whole", and (ii) to provide "equitable opportunities to different areas of the State in the matter of education. employment and career prospects in public service.

To achieve

this primary object, Clause (!) of Article 37 JD empowers the President to provide by order, "for equitable opportu nities and facilities for the peopl~ belonging to different parts of the State in the matter of pnblic emp!l>yment and in the matter of educa tion". Clause (2) of the Article is complep:1entary to Clause (l). It particularises the matters which an order made under Clause (I) may provide. For instance, its sub-clause ( c )(i) enables the President to specify in his Order, "the extent ta which, the manner in which and the conditions subject to which", preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or under any local authority. Sub clause ( c) further makes it clear that residence for a specified period in the local area, can be made a conditiO!l for recruitment to any such local cadre. Thus, Clause ( 4) also, directly is designed to achieve the primary object of the legislation.

From the foregoing conspectus it is evident that the evil which· was sought to be remedied, (viz., inequitable opportunities and facili ties for the people belonging to different parts of the State of Andhra Pradesh in matters of public employment and education) had no causal nexus, whatever, with the independence of the High Court and subordinate judiciary which the Founding Fathers have with solemn concern vouchsafed in Arts. 229 and 235. Nor did the public agita tion which led to the enactment of Article 3710 make any grievance against the basic scheme of Chapters V and VI in Part VI of the Constitution.

Tite Statement of Objects and Reasons does not indicate that there H was any intention, whatever, on the part of the legislature to impair or derogate from the scheme of securing independence of the Judiciary Indeed, the amendment or as enshrined in Articles 229 and 235.

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abridgement of this basic scheme was never an issue of debate in Par- liament whef\ the Constitution (32nd Amendment) Bill was consider- ed.

A

One test which may profitably be applied to ascertain whether the to be

High Court staff and the Subordinate Judiciary were intended included in Clause (3) of Article 3710, is: Will the exclusion of B the judiciary from the sweep of this Clause substantially affect the scope and utility of the Article as an instrument for achieving the object which the Legislature had in view? The answer cannot but be in the negative. The High Court staff and members of the Sub- ordinate Judiciary constitute only a fraftion of the number of persons in public employment in the State. that one of the primary purposes of this Article, viz., to secure equit- able share in public employment to people of certain local areas in the State on the basis of the Mulki Rules requiring 15 years residence in those areas, could be achieved under those Rules which, as subse quently clarified by this Court in State of Andhra Pradesh v. V. V. Reddy(•), continued to be in force as valid law in the territories of the D former State of Hyderabad State, even after the constitution of State of Andhra Pradesh.

I_ncidently, it may be mentioned C

the

Let us now apply another test which in the circumstances of the In that connection, we have to see what conse case will be decisive. quences will flow if 'J{e give this general, undefined and flexible phrase, "Civil services of the State" in Article 371D(3), the wider construc tion so as to include in it the High Court staff and the members of the subordinate judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the Subordinate Judiciary will become shorn of its substance, efficacy and exclusiveness; and aft~t being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371D(5), is the supreme authority, having full power to confirm or not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the independence of the. judiciary, which the Founding Fathers have with such anxious concern bui!~ into the basic scheme of the Constitution. Parliament, we are sure. could never have intend In our quest for the true intention of Par ed such a strange result. interpretation liament, therefore, we must eschew this wide literal

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(I) A.!.R. 1973 S.C. 823

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which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularised in Articles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court staff and the snbordinate judiciary will not fall within !he purView of the phrase "civil services of the State". Such a restricted' construction will ensure smooth working of the Constitution and har mony amongst its various provisions.

in It is true that this very phrase in the context of the provision Article 311 includes the employees of the High Court and members of the judicial services. But it must be remembered that the provi sions of Article 311 are of a general nature. They give constitutional recognition to a fundamental principle of natural justice, by making its protection available uniformly to all Government servants. That is why in the context of that Article this phr~,se has been spaciously construed. As against this, Article 3710 is a special provision which marks a departure from the general scheme of the Constitution. The area of the departnre cannot be extended beyond what is unmistakably and specifically delineated by the words employed therein. A phrase used in the context of a general provision may not carry the same meaning when employed in the context of a special provision, parti cularly when that phrase has no where been defined i11L!!!e enactment "Words used with reference to one set of circumstances", said Lord Blackburn in Edin burn Street Tramways Co. v. V. Torbain(I), "may convey an intention quite different from what the self-same 'set of words used in reference to another set of circumstances wouid or mighf have produced". This holds true even when the same words are used in different contexts in the same enactment. Therefore, in a special provision like Article 3 71 D as its heading itself proclaims which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases a're not to be interpreted the context and in their widest amplitude but strictly attuned to purpose of the provision. Conversely, had it been the intention of Parliament to include 'Officers and servants of the High Court' and the cadre of members of the 'judicial services of the State' and of 'District Judges', in ,the phrase 'civil services of the State' occurring in Clause (3) of Article 3710, and thereby depart from the basic scheme of Chapters V and VI Part VI, the language commonly employed in the sub-clauses should have read like this : -

"Class or classes of posts in the civil services of the State including posts in the "judicial service of the State",

(I) [1877j 3 Appeal Cases 58, 68.

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and of "District Judges" in the State; class or classes of " posts of "officers and servants of the High Courf'

the Jn, our opinion, non-use of thfi phrases "judicial service of State" and "District Judges" (which have been specifically defined in Article 236), and "officers and servants of the High Court", which has been designedly adopted in Articles 235, and 229, respectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate Judiciary were advisedly The excluded from the pnrview of Clause (3) of Article 371D. scope of the non-obstante clause in sub-article ( 10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses.

The 'officers and servants of the High Court' and the members of the Judicial Service, including District Judges, being outside the purview of Clause (3 ), the non-obstante provision in Clause (10) cannot operate to take away the adminstrative or judicial jurisdiction of the Chief Justice or of the High Court, as the. case may be, under Articles 229, 235 and 226 of the Constitution: in regard to those public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Cons titution, other than those which are outside the ambit of Article 371-D, such as Articles 229 and 235. Provisions QOt otherwise covered by Article 371-D, cannot be brought within its sweep because of the non-obstante Clause ( 10). It follows as a necessary corollary that nothing in the Order of the President co_nstituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary.

For the foregoing reasons, we hold that the impugned Order dated August 24, 1977 of the Administrative Tribunal, having been passed without jurisdiction, is a nullity. Accordingly, we allow Civil ,;.ppeal No. 2826 of 1977; leaving the parties to Pi!Y and bear their own costs.

The reasons given above apply mutatis mutandis to the case of Krishnamurthy in Civil Appeal No. 278 of 1978 and furnish the basis of our short Order dated August 4, 1978, by which we had accepted In this Appeal (C.A. No. 278/78) however, the res that appeal. pondent's costs in this Court will be borne by the appellant in terms of this Court's order dated 10-2-78 in s.!,.,P. (Civil) No. 626 of 1978.

In view of the orders dated 28th November, 1977 .arid 22nd March,

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1978, passed in stay applications Nos. 4804 of 1977 and 1744 ct 1978 respectively, and in terms of those orders we direct that since the appeals have been allowed, the excess payment, if any, 111ade pursuant to the stay orders shall be adjusted towards pension tha< may be due to the respondents. The adjustment shall be made in easy, convenient and reasonable instalments.

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Appeals allowed.

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