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TMI Blog1978 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent employee of the former Hyderabad High Court prior to November 1, 1956. He was confirmed in the post of Chief Superintendent on the establishment of that High Court on October 6, 1956. At the time of his confirmation, he was serving on deputation, with the concurrence of the Chief Justice of the Hyderabad High Court, as Junior Law Officer in the Ministry of Law, Government of India. In March 1965, with the concurrence of the Chief Justice of the High Court of Andhra Pradesh - which was the successor High Court to the Hyderabad High Court - he was appointed as a temporary Deputy Secretary in the Law Department of the Government of Andhra Pradesh. 5. By an order dated February 6, 1968, the State Government replaced his services at the disposal of the Chief Justice. On his reversion from deputation he rejoined the establishment of the High Court as Sub-Assistant Registrar on February 8, 1968. 6. On that very day, the High Court received a complaint petition from one Smt. Promila Reddy, an Assistant Translator in the State Law Department, alleging misconduct on the part of the 1st Respondent relating to the period during which he was working as Deputy Secretary in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the High Court impugning the order, dated November 10, 1970, of the State Government. But, the High Court dismissed the same by a judgment, dated December 30, 1970. The first respondent's appeals (C. A. 476 and CA. 1536 of 1971) against the order of the High Court in the aforesaid writ petitions are pending in this Court. 11. After the dismissal of his writ petition (No.5442/70), the first respondent on reinstatement, joined duty as Sub-Assistant Registrar in the High Court. Thereafter, he was promoted by the then Chief Justice as Assistant Registrar. Later, he was promoted as Deputy Registrar. 12. In 1975, A. P. Government Servants' Premature Retirement Rules, 1975 came into force. Under the Rules, which amended Andhra Pradesh Liberalised Pension Rules, 1961 and the Hyderabad Civil Service Rules, employees of the State who have completed 25 years of service or completed 50 years age can be prematurely retired after 3 months' notice or grant of 3 months' pay in lieu of notice. Rule 19 of the Andhra Pradesh High Court Service Rules contains a similar provision. 13. Thereafter on September 19, 1975, a Committee was constituted under an order of the Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of his premature retirement was arbitrary and capricious. The Tribunal, however, set aside the impugned order of the 1st respondent's premature retirement made by the Chief Justice on the sole ground that it is arbitrary and amounts to a penalty of dismissal or removal from service and is hit by Article 311 (2) of the Constitution. 16. Against the aforesaid order, dated August 24, 1977, the appellants have now come in appeal before us by special leave under Article 136 of the Constitution. 17. Now, the relevant facts giving rise to Civil Appeal No. 278 of 1978, may be set out. The 1st respondent, Shri V. V. S. Krishnamurthy, in that appeal was, at the material time, a member of the Andhra Pradesh State Judicial Service. He attained the age of 50 years on November 24, 1974. He was prematurely retired, in public interest, by an order dated September 29, 1975 of the State Government on the recommendation of the High Court. Before the Government passed this order, a Committee of Judges appointed by the High Court, considered the entire service record of the 1st respondent and records of other Judicial Officers and decided to prematurely retire the first respondent in public in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taff or the Subordinate Judiciary, as the case may be, and will make such control subject and subservient to the wishes of the Executive Government which, in terms of the Presidential Order constituting the Administrative Tribunal, is the ultimate authority to confirm, vary or annul the orders passed by the Tribunal. In support of his contention that the basic scheme of the Constitution seeks to ensure the independence of the High Court staff and the judiciary from executive control, learned counsel has referred to Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court : , M. Gurumoorthy v. Accountant General, Assam and Nagaland 1971 (Supp) SCR 420 : ); State of West Bengal v. Nirpendra Nath Bagchi ); Baldev Raj Guliani v. Punjab and Haryana High Court : and State of U. P. v. Batuk Deo Pati Tripathi : (1978 Lab IC 839). 23. As against the above, Shri Vepa Sarathy, appearing for the respective first respondents in C. A. 2826 of 1977 and in C.A. 278 of 1978 submitted that when his client filed a writ petition (No. 58908 of 1976) under Article 226 of the Constitution in the High Court for impugning the order of his compulsory retirement passed by the Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is clear from the non obstante provision in Clause (10) of this Article. Shri Sarathy further invited our attention to the definition of the expression "public post" given in the order of the President issued under Article 371-D (3). This definition according to the learned counsel, is wide enough to include all posts held by the staff of the High Court and the Subordinate Judiciary. 25. To appreciate the contentions canvassed before us, it is necessary, at the outset, to have a look at the constitutional scheme delineated in Chapters V and VI (Part IV), in general, and the content of Articles 229 and 235, in particular. 26. Chapter V is captioned : "The High Court in the States". It provides for various matters relating to High Courts, such as constitution of High Courts (Article 216), Appointment and Conditions of the office of a Judge (Art. 217) Salaries of Judges (Art. 221), Transfer of Judges (Art. 222). Jurisdiction of existing High Courts and the powers of the Judges thereof in relation to the administration of justice in the Court, including the power to make rules of Court and to regulate the sittings of the Court (Art. 225), Art. 226 gives power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc. including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no. extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee except to a very limited extent indicated in the Provisos. In conferring such exclusive and supreme powers on the Chief Justice, the object which the Founding Fathers had in view, was to ensure independence of the High Court. 28. The nature and scope of the powers of the Chief Jusitce under Art. 229 has been the subject of several decisions of this Court. In Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta ) (supra), two questions, among others, came up for consideration : (i) Whether the Chief Justice of a High Court has the power to dismiss from service an officer of the High Court? (ii) If so, whether the Chief Justice could pass an order of such dismissal without previous consultation with the Public Service Commission, as provided by Art. 320 of the Constitution. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under the Government's instructions, withheld the appellant's pay-slips. The appellant moved the High Court by a writ petition, which was dismissed. On appeal, this Court held that the Government had authority to sanction the post, but it could not interfere with the choice of the incumbent, which undoubtedly was to be of the Chief Justice under Article 229 of the Constitution. In that context, Grover J., speaking for the Court, neatly summed up the position, which being apposite to the point under discussion, may be extracted (at pp. 1854-55) : - " The unequivocal purpose and obvious intention of the framers of the Constitution is enacting Article 229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no. interference by the executive except to the limited extent that is provided in the Article. This was essentially to secure and maintain the independence of the High Courts. The anxiety of the constitution-makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court an effective voice in the appointment of District Judges. Clause (1) of the Article peremptorily requires that" appointments of persons to be, and the posting and promotion of district judges"shall be made by the Governor" in consultation with the High Court ". Cl.(2) of the Article provides for direct appointment of District Judges from Advocates or pleaders of not less than seven years standing who are not already in the service of the State or of the Union. In the matter of such direct appointments, also, the Governor can act only on the recommendation of the High Court. Consultation with the High Court under Article 233 is not an empty formality. An appointment made in direct or indirect disobedience of this constitutional mandate, would be invalid. (See Chandra Mohan v. State of U.P. :); Chandramouleshwar v. Patna High Court : ). 'Service' which under Cl.(1) of Article 233 is the first source of recruitment of District Judges by promotion, means the 'judicial services' as defined in Art. 236. 35. The word 'posting' as used in Article 233, in the context of 'appointment' and 'promotion' means the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana (sub- nom Narendra Singh Rao) : . (iii) Suspension from service of a member of the judiciary with a view to hold a disciplinary inquiry. (b) Transfers, promotions and confirmation of such promotions, of persons holding posts in the judicial service inferior to that of District Judge. (State of Assam v. S. N. Sen : State of Assam v. Kuseswar Saikia : (c) Transfers of District Judges (State of Assam v. Ranga Muhammad ) (supra); Chandra Mouleshwar v. Patna High Court (supra). (d) Recall of District Judges posted on ex-cadre posts or on deputation on administrative posts. (State of Orissa v. Sudhansu Sekhar Misra (e) Award of selection grade to the members of the judicial service, including District Judges, being their further promotion after their initial appointment to the cadre. (State of Assam v. Kuseswar Saikia (supra)). (f) Confirmation of District Judges, who have been on probation or are officiating, after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233, (Punjab and Haryana High Court v. State of Haryana) (supra). (g) Premature or compulsory retirement of Judges of the District Courts and of Subordinate Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of its administrative or disciplinary jurisdiction under Article 235 is advisory, in substance and effect, it is wellnigh peremptory. 41. Recently, in State of Uttar Pradesh v. Batuk Deo Pati Tripathi : (1978 Lab IC 839) this Court succinctly summed up the whole position as follows (at p. 846 of Lab IC) : " The ideal which inspired the provision that the control over District Courts and courts subordinate thereto shall vest in the High Courts is that those wings of the judiciary should be independent of the executive......It is in order to effectuate that high purpose that Art. 235 as construed by the Court in various decisions requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promotions, should be dealt with and decided upon by the High Courts in the exercise of the control vested in them ". 42. In sum, the entire scheme of Chapters V and VI in Part VI epitomised in Articles 229 and 235, has been assiduously designed by the Founding Fathers to insure independence of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order. (emphasis supplied). 44. Clause (4) of the Article further provides that an order made under clause (3) may - (a) authorise the Administrative Tribunal to receive representation for redress of grievances relating to any matter within its jurisdiction, as the President may specify, and to make such orders thereon as the Tribunal may deem fit; (b) contain provisions with respect to the powers and authorities and procedure of the Administrative Tribunal; (c) provide for the transfer to the Administrative Tribunal proceedings relating to classes of posts within its jurisdiction, pending before any Court (other than the Supreme Court) or tribunal or other authority; (d) contain supplemental, incidental and consequential provisions including those relating to fees, limitation, evidence etc. 45. Under Clause (5)," the order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier ". 46. Then there is a Proviso to this Clause a most extraordinary provision, which says : - Provided that the State Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as per G.O. Ms. No. 323, General Administration (Spp-B), 22nd May 1975), made by the President in exercise of his powers under Clauses (3) and (4) of Art. 371-D. Paragraph 2 of this order contains definitions of various expressions used therein. Cl. (d) of this paragraph defines" person employed"to mean" an individual, in relation to whom the Tribunal has jurisdiction in respect of the matters specified in paragraph 6 of this order. "Paragraphs 3 to 5 are not material to the points under consideration. Paragraph 6 is important. It provides in regard to "jurisdiction, powers and authority of the Tribunal". It confers on the Tribunal" all the jurisdiction, powers and authority which, immediately before the commencement of this Order, were exercisable by all Courts (except the Supreme Court) with respect to appointment, allotment or promotion to any public post, seniority of persons appointed, allotted or promoted to such post and all other conditions of service of such persons ". Sub-para (2) provides that nothing in sub-paragraph (1) of this paragraph shall apply to, or in relation to, (a) persons appointed on contract for a specified te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een conferred on the Tribunal by this Order. 56. The rest of the provisions of the Order are not relevant to the problem before us. 57. The ground is now clear for considering the question : whether the officers and servants of the Andhra Pradesh High Court and persons holding posts in the judicial service of the State, including 'District Judges' are subject to the jurisdiction of the Administrative Tribunal Order, 1975 made by the President in exercise of his powers under Clauses (3) and (4) of Article 371-D ? 58. We have seen that the substantive provision is in Clause (3). This clause defines the extent and delimits the area of the "jurisdiction, power and authority" with respect to certain matters mentioned therein, which may be conferred, wholly or in part, on the Administrative Tribunal by an order made by the President, thereunder. 59. Clause (4) only subserves and elucidates the substantive Clause (3). 60. It is undisputed that compulsory retirement is a condition of service. The question, therefore, narrows down into the issue : Do the posts held by officers and servants of the High Court, and members of the subordinate judiciary fall under any of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral sense, this elastic phrase can be stretched to include the 'officers and servants of the High Court' as well as members of the Sub-ordinate Judiciary. Understood in its strict narrow sense, in harmony with the basic constitutional scheme embodied in Chapter V and VI, Part VI, and centralised in Article 229 and 235, thereof, the phrase will not take in High Court staff and the Sub-ordinate Judiciary. Shri Vepa Sarathy canvasses for adoption of the expansible interpretation which will cover the High Court staff and the subordinate judiciary, while Shri Lal Narain Sinha urges for acceptance of the restricted but harmonnious construction of the said phrase. A choice between these two rival constructions of the phrase "civil services of the State" is to be made in the light of well settled principles of interpretation of constitutional and other statutory documents. 63. The primary principle of interpretation is that a constitutional or statutory provision should be construed "according to the intent of they that made it"(Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in Article 371-D. 66. The former State of Hyderabad comprised of three linguistic areas : Telangana, Marathwada and Karnataka. In 1919, the Nizam issued a Firman promulgating what came to be known as Mulki Rules. The Nizam confirmed these Rules by another Firman issued in 1949. Those Rules provided inter alia 15 years' residence in the State as an essential qualification for public employment. 67. In 1955, the Rajpramukh in exercise of his powers under Article 309, Proviso, of the Constitution framed the Hyderabad General Recruitment Rules, 1955 in supersession of all the previous rules on the subject. One of these Rules laid down that domicile certificate would be necessary for appointment to a State or subordinate service, and the issue of such certificate depended upon residence in the State for a period of not less than 15 years. 68. On November 1, 1956, as a result of the coming into force of the State Reorganisation Act, the State of Hyderabad was trifurcated. Telengana region became a part of the newly formed State of Andhra Pradesh, while Marathwada and Karnataka regions ultimately became parts of Maharashtra or Mysore States. 69. With these prefatory remarks, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with certain disputes and grievances relating to public services. The Bill also seeks to empower Parliament to legislate for establishing a Central University in the State and contains provisions of an incidental and consequential nature including the provision for the validation of certain appointments made in the past. As the Six-Point Formula provides for the discontinuance of the Regional Committee constituted under clause (1) of Article 371 of the Constitution, the Bill also provides for the repeal of that clause. " (Parenthesis and emphasis in Para 1 added). 70. It will be seen from the above extract, that the primary purpose of enacting Article 371-D was twofold : (i) To promote" accelerated development of the backward areas of the State of Andhra so as to secure the balanced development of the State as a whole", and (ii) to provide" equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service. 71. To achieve this primary object, clause (1) of Article 371-D empowers the President to provide by order, "for equitable opportunities and facilities for the people belonging to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons in public employment in the State. Incidentally it may be mentioned that one of the primary purposes of this Article, viz., to secure equitable share in public employment to people of certain local areas in the State on the basis of the Mulki Rules requiring 15 years' residence in those areas, could be achieved under those Rules which, as subsequently clarified by this Court in State of Andhra Pradesh v. V. V. Reddy, 1973 AIR(SC) 823, continued to be in force as valid law in the territories of the former State of Hyderabad State, even after the constitution of the State of Andhra Pradesh. 75. Let us now apply another test which in the circumstances of the case will be decisive. In that connection, we have to see what consequences will flow if we give this general, undefined and flexible phrase, "Civil services of the State" in Article 371-D (3), the wider construction so as to include in it the High Court staff and the members of the subordinate judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the Subordinate Judiciary will become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. V. Torbain [1877] 3 A.C. 58 at p.68, "may convey an intention quite different from what the self same set of words used in reference to another set of circumstances would or might have produced" . This holds true even when the same words are used in different contexts in the same enactment. Therefore, in a special provision like Article 371-D as its heading itself proclaims - which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly attuned to the context and purpose of the provisions. Conversely, had it been the intention of Parliament to include 'Officers and servants of the High Court' and members of the 'judicial service of the State' and of the cadre of 'District Judges', in the phrase 'civil services of the State' occurring in Clause (3) of Article 371-D, and thereby depart from the basic scheme of Chapters IV and VI, Part VI, the language commonly employed in sub-clauses should have read like this : - "Class or classes of posts in the civil services of the State including posts in the "judicial service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed August 4, 1978, by which we had accepted that appeal. In this Appeal (C.A. No. 278/78) however, the respondent's costs in this Court will be borne by the appellant in terms of this Court's order dated 10-2-1978 in SLP (Civil) No. 626 of 1978. 81. In view of the order dated 28th November, 1977 and 22nd March, 1978, passed in stay applications Nos. 4804 of 1977 and 1744 of 1978 respectively, and in terms of those orders we direct that since the appeals have been allowed, the excess payment, if any, made pursuant to the stay orders shall be adjusted towards pension that may be due to the respondents. The adjustment shall be made in easy, convenient and reasonable instalments. ORDER 82. Respondent 1, Shri V.V.S. Krishna Murthy, may if so advised file a writ petition in the High Court of Andhra Pradesh for challenging the order of his compulsory retirement passed by the Governor of Andhra Pradesh on September 29, 1975. If he files the writ petition within three weeks from today, the High Court of Andhra Pradesh and the State of Andhra Pradesh, whom respondent 1 proposes to implead to his writ petition, shall file their counter-affidavit, it so advised, within three weeks a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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