*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.21555 of 2011 %13.09.2011 #Antaryami Sahoo ..Petitioner. Vs. $ State of Andhra Pradesh and others. ..Respondents. !Counsel for the petitioner : Sri A.Ramalingeswara Rao ^Counsel for the Respondents : Sri K.G.Krishna Murthy <Gist : >Head Note: ?Cases Referred: [1] AIR 1954 SC 752 2 AIR 1990 SC 2072 3 2000 (6) ALD 217 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.21555 of 2011 ORDER: In the recent past, far-reaching changes were brought about in the functioning of the Electricity Boards of different States in general, and the erstwhile A.P. Electricity Board, in particular. The unified agency, which used to undertake the functions of generation and distribution of electricity, was divided into many entities to undertake the functions of generation, transmission and distribution. Companies with these attributes were incorporated. A statutory agency, i.e. the Regulatory Authority, was constituted. Steps, in this regard, were taken in the State of Andhra Pradesh through the Andhra Pradesh Electricity Reform Act 1998, (for short ‘the A.P. Act’). The Act dealt with the constitution of the Electricity Regulatory Commission (for short ‘the Commission’), and defined the powers and functions thereof. It has also received the assent of the President of India. The Parliament enacted the Electricity Act, 2003, (for short ‘the Central Act’), which covered many aspects, such as the supply and regulation of electricity, as well as the constitution of commissions for the States and at the central levels. The Central Act repealed many Legislations, but saved the A.P. Act. The State Government is conferred with the power to constitute the State Regulatory Commission, both under the A.P. Act and the Central Act. The procedure for appointing the Commission under the State Act was prescribed under Part-II thereof. Section 5 of the A.P. Act stipulated the conditions for appointment of Members of Commission. One of the stipulations was that a person shall not be below the age of 55 years to be appointed the Chairman or Member of the Commission. The Central Act is silent on this aspect. The State of A.P. issued notification dated 05.07.2011, inviting applications to fill a vacancy, caused on account of retirement of a Member on 15.06.2011. The notification stipulated that the minimum age limit, for a candidate to be considered as Member, is 55 years, and the maximum age limit is 62 years. The tenure of the appointment was mentioned as 5 years or till the incumbent attains the age of 65 years, whichever is earlier. The petitioner is functioning as Deputy Director (Tariff- Engineering) in the A.P. Electricity Regulatory Commission, the 3rd respondent herein. He intended to apply, in response to the notification. However, his age at present is 52 years and according to the stipulation in the notification, he is not eligible to apply. The petitioner feels aggrieved by the condition stipulated, as to the minimum age limit. He contends that the Central Act is silent on this aspect, and the relevant clause in Section 5 of the State Act deserves to be ignored or set aside, in view of its repugnancy with the Central Act. The respondents filed a counter-affidavit. According to them, the petitioner is not eligible to apply, since he did not cross 55 years of age. It is stated that there is no inconsistency or repugnancy between the provisions of the A.P. Act, on the one hand, and the Central Act, on the other. According to them, sub-section (3) of Section 185 of the Central Act, has made it amply clear that the provisions of the A.P Act, would remain in force to the extent they are not inconsistent with the Central Act. It is also their case that the A.P. Act, being a specific enactment on the subject, will prevail over the Central Act, which is general in nature, on the issue pertaining to the appointment of Members of the Commission. Sri A.Ramalingeswara Rao, learned counsel for the petitioner, had invited the attention of this Court to various provisions of both the enactments and contends that the Central Act, which came into existence at a later point of time, does not contain any stipulation about the minimum age limit, and that the one prescribed under the State Act, stands abrogated by operation of the principle of repugnancy, under Article 254(1) of the Constitution of India. He submits that Section 185 of the Central Act saves only that part of the State Act, which is not consistent with the former. He further submits that Sections 80 to 84, 86 and 89 of the Central Act are almost a complete code for the appointment of Chairman and Members of the Commission and Sections 3 to 6 of the A.P. Act dealing with that very aspect cannot be enforced, since principle of “ implied repeal” gets attracted. He also submits that changes were brought about in the Central Act, in many respects, including the one relating to composition of the Commission, and thereby, the Parliament is deemed to have contemplated a different scheme, as to the constitution of the Commissions. Placing reliance upon several decided cases, learned counsel submits that stipulation under Section 5 of the A.P. Act can no longer be enforced and that the relevant clause in the impugned notification has no legal basis. Sri K.G.Krishna Murthy, learned Additional Advocate General, submits that the A.P. Act deals exclusively with the constitution of Commissions in the State of Andhra Pradesh and accordingly, it is a special enactment. He contends that for two reasons, namely that the A.P. Act has received the assent of the President of India, and that it exclusively deals with the constitution of the Commission, the Parliament saved it by making a mention thereto in Section 186 of the Central Act. He further submits that there is no repugnancy or conflict between two enactments and assuming that there exists one, the special enactment, would prevail over the one, which is general in its purport. Learned Additional Advocate General also submits that it is always the prerogative of appointing authority to stipulate the conditions for appointment and no individual has a fundamental right to insist that he be considered, though he does not fulfil the stipulated conditions. Though the issue involved in the writ petition is about the minimum age limit stipulated for the selection and appointment of a Member of the Commission, certain important constitutional and legal questions arise for consideration. Part XI of the Constitution of India comprising of Articles 245-253 extensively deals with the relations between the unions and the States. Chapter I thereof is devoted to define the legislative relations; and Chapter II, the administrative relations. The subjects, which are to be dealt with by the Government, as a common entity, are vast in number. While some of them are specific for states, some are common for the entire country. There is third category where the Legislatures of the State and Centre are conferred with the power to legislate, subject to certain conditions. The seventh schedule has furnished the details of three separate lists. The subject “Electricity” occurs at item 38 of list 3, i.e. concurrent list. The Central and the State Legislatures are conferred with the power to enact upon that subject. Occasions may arise where the State legislation, on the one hand, and the Parliament, on the other hand, enact laws on a subject in the concurrent list. Here itself, it needs to be noted that a legislation of a State would naturally be sub-servient to the one enacted by the Parliament. However where the state legislation has received the assent of the President of India, it is treated on par with the one made by the Parliament, in its purport. Article 254 of the Constitution of India provides for a mechanism to resolve the controversy, whenever a law made by the State is found to be repugnant to or inconsistent with the provisions of a Central Act. The provision reads as under: “Inconsistency between laws made by Parliament and laws made by the Legislatures of States:- (1) If any provision of a law made by the Legislature of a State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.” The gist of this provision was explained by the Supreme Court and various High Courts in many precedents. A constitution bench of the Supreme Court analysed the principle underlying Article 254 in Zaverbhai Amaides v. State of Bombay[1], and after referring to the provisions of the Government of India Act and the judgments rendered by English Courts in certain cases, Their Lordships observed that the question of implied repeal under Article 254 of the Constitution of India arises, when the subject matter of a later Legislation is identical with that of an earlier one, and that in such cases the former would be deemed to have been repealed by the latter, since both cannot co- exist. If the inconsistency is between a State Act on the one hand and a Central Act on the other, the former must yield, irrespective of the point of time at which, it was enacted. However, the distinction between the State and Central enactments becomes irrelevant, if the assent of the President of India, was accorded to the State Legislation. In such cases, the point of time at which the Legislation was enacted, assumes significance. This aspect concept was discussed at length in Vijay Kumar Sharma v. State of Karnataka[2] and it was observed that a repugnancy between two enactments can be presumed, even from the point of view of operational incompatibility. Reference was made to the observation made by the High Court of Australia, which is to the effect that the enactments can still be held to be inconsistent with each other, though obedience to each of them would be possible without disobeying the other. The principle was ultimately summed up as under: “(a) The doctrine of repugnancy or inconsistency under Art. 254 of the Constitution would arise only when the Act or provision/ provisions in an Act made by the Parliament and by a State Legislature on the same matter must relate to the Concurrent List III of Seventh Schedule to the Constitution; must occupy the same field and must be repugnant to each other; (b) In considering repugnance under Art. 254 the question of legislative competence of a State Legislature does not arise since the Parliament and the Legislature of a State have undoubted power and jurisdiction to make law on a subject, i.e. in respect of that matter. In other words, same matter enumerated in the Concurrent List has occupied the field. (c) If both the pieces of legislation deal with separate and distinct matters though of cognate and allied character repugnancy does not arise. (d) It matters little whether the Act/Provision or Provisions in an Act falls under one or other entry or entries in the Concurrent List. The substance of the "same matter occupying the same field by both the pieces of the legislation is material" and not the form. The words "that matter" connotes identity of "the matter" and not their proximity. The circumstances or motive to make the Act/Provision or Provisions in both the pieces of legislation are irrelevant. (e) The repugnancy to be found is the repugnancy of Act/ provision/Provisions of the two laws and not the predominant object of the subject matter of the two laws. (f) Repugnancy or inconsistency may arise in diverse ways, which are only illustrative and not exhaustive: (i) There may be direct repugnancy between the two provisions; (ii) Parliament may evince its intention to cover the whole same field by laying down an exhaustive code in respect thereof displacing the State Act, provision or provisions in that Act. The Act of the Parliament may be either earlier or subsequent to the State law; (iii) Inconsistency may be demonstrated, not necessarily by a detailed comparison of the provisions of the two pieces of law but by their very existence in the statutes; (iv) Occupying the same field; operational incompatibility; irreconcilability or actual collision in their operation in the same territory by the Act/provision or provisions of the Act made by the Parliament and their counter parts in a State law are some of the true tests; (v) Intention of the Parliament to occupy the same field held by the State Legislature may not be expressly stated but may be implied which may be gathered by examination of the relevant provisions of the two pieces of the legislation occupying the same field; (vi) If one Act/Provision/Provisions in an Act make lawful that which the other declares unlawful the two to that extent are inconsistent or repugnant. The possibility of obeying both the laws by waiving the beneficial part in either set of the provisions is no sure test; (vii) If the Parliament makes law conferring right/obligation/ privilege on a citizen/person and enjoins the authorities to obey the law but if the State law denies the self same rights or privileges negates the obligation or freezes them and injuncts the authorities to invite or entertain an application and to grant the right/privilege conferred by the Union law subject to the condition imposed therein the two provisions run on a collision course and repugnancy between the two pieces of law arises thereby; (viii) Parliament may also repeal the State law either expressly or by necessary implication but Courts would not always favour repeal by implication. Repeal by implication may be found when the State law is repugnant or inconsistent with the Union law in its scheme or operation etc. and conflicting results would ensue when both the laws are applied to a given same set of facts or cannot stand together or one law says do and other law says do not do. In other words, the Central law declares an act or omission lawful while the State law says them unlawful or prescribes irreconcilable penalties/punishments of different kind, degree or variation in procedure etc. The inconsistency must appear on the face of the impugned statutes/provision/provisions therein; (ix) If both the pieces of provisions occupying the same field do not deal with the same matter but distinct, though cognate or allied character, there is no repeal by implication; (x) The Court should endeavour to give effect to both the pieces of legislation as the Parliament and the legislature of a State are empowered by the Constitution to make laws on any subject or subjects enumerated in the Concurrent List III of Seventh Schedule to the Constitution. Only when it finds the incompatibility or irreconcilability of both Acts/provision or provisions, or the two laws cannot stand together, the Court is entitled to declare the State law to be void or repealed by implication; and (xi) The assent of the President of India under Art. 254(2) given to a State law/provision, provisions therein accord only operational validity though repugnant to the Central law but by subsequent law made by the Parliament or amendment/modification, variation or repeal by an act of Parliament renders the State law void. The previous assent given by the President does not blow life into a void law.” The doctrine of pith and substance is mostly pressed into service to know as to whether an enactment deals with on a particular subject in the corresponding list, or has transgressed, into the field covered by the subject, in another list. The Supreme Court, in that very judgment held that it is permissible to take the help of the said principle, to ascertain the predominant purpose vis-à-vis a concurrent list and to decide whether there exists any repugnancy between the two enactments. (see paragraphs 48 and 49) By a Division Bench of this Court in S.Bharat Kumar v. Government of Andhra Pradesh[3], examined the provisions of the A.P. Act, on the touchstone of Article 254(2). By that time, the Central Act, 2003 was not enacted, but the question was examined with reference to the Electricity Act, 1910 and the Electricity Supply Act, 1948. Their Lordships did not notice any repugnancy between the A.P. Act and the said enactments; and the occasion to apply the principle underlying Article 254 did not arise. Reverting to the facts of the case, the A.P. Act, made the following stipulation in Section 5, in the context of making appointment of a Member of Commission: “Conditions for appointment as member of the Commission.-(1) The members of the Commission shall be persons of ability, integrity and standing who have adequate knowledge or experience of, or have shown capacity in dealing with problems relating to engineering, economics, commerce, finance, accountancy, law or administration and that at all times the selection and appointment shall be made in accordance with the qualifications and experience specified below: (i) one member shall be a graduate electrical engineer with adequate experience in generation or transmission or distribution of electricity; (ii) two members shall have graduate qualification with specialisation and adequate experience in any of the disciplines like law, economics, commerce, finance, accountancy or administration: Provided that at any point of time the Commission shall not consist of more than one member from the same discipline: Provided further that persons below the age of fifty five years shall not be eligible for appointment as chairman or member, as the case may be.” (The remaining portion of the section is omitted, since it is not relevant for the purpose of this case.) It did not contain any provision pertaining to the maximum age limit for a candidate to be considered for appointment as member. However, Section 6 of the Act directs that the term of the office of a member shall be 5 years, from the date of his appointment or until the age of 65 years, whichever is earlier. It obviously means that a person, who crosses the age limit of 65 years, cannot be considered for appointment. So far as the Central Act of 2003 is concerned, Sections 83 to 86 thereof, which deal with the constitution of the Commission, do not contain any provision as to age limit. The provisions stipulate the broad features of the composition of the Commission, its powers, and the method of functioning. Had the A.P. Act been repealed by the Central Act, the necessity to fall back upon the former as regards the procedure for appointment of members of the Commission, would not have arisen. Section 185 of the Central Act deals with repeal and saving. It reads as under: “Repeal and Saving.- (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed. (2) Notwithstanding such repeal,- (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made; (c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made. (d) All rules made under sub-section (1) of section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be; (e) All directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government. (3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable. (4) The Central Government may, as and when considered necessary, by notification, amend the Schedule. (5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.” The A.P. Act, 1998 occurs in the list of enactments that are saved. The saving, however, is only to the extent, under sub-section 3 of Section 185, it is not inconsistent with the Central Act. The contention advanced on behalf of the petitioner that there exists a conflict between the two enactments is difficult to be accepted. The repugnancy or inconsistency can be noticed, if only the two enactments stipulate different parameters on the same issue or matter. The task of ascertaining whether there exists any repugnancy or consistency, is by no means simple. Many a time, one has to enter the legislative territory of another to locate the so-called repugnancy. More often than not, the area of overlapping is either invisible or too thin. It is only when the inconsistency presents an operational inconsistency that the mechanism to resolve the repugnancy must be pressed into service. If the process of appointment of a member of the commission is to be treated as the subject, under both the enactments, there exists a common area, though in the Central Act, it is dealt with, along with many other aspects of the generation and supply of electricity and the regulation thereof and the A.P. Act is an exclusive legislation upon it. If the Parliament intended that no other law pertaining to the appointment of Chairman or Members of the Regulatory Commissions, must exist and that what is enacted by it, is the supreme law, it would have simply repealed the A.P. Act 1998. The Parliament however has chosen to permit the A.P. Act 1998 to remain alive by including it in the list of the saved enactments. On this mere account, one need not stop the investigation to know whether any inconsistency exists between two enactments. The verification can straight away be of the specific item, namely stipulation of minimum and maximum of age limits under both of them. While the A.P. Act deals with both, the Central Act is silent as to the minimum age limit. On the maximum age limit, and the term of office both the Acts accord with