Case: Chief Justice of Andhra Pradesh and Ors Vs. L.V.A. Dixitulu and Ors

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 shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371-D (5), is the supreme authority, having full power to confirm, 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 built into the basic scheme of the Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide literal interpretation 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 subordinate judiciary will not fall within the purview of the phrase "civil services of the State". Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its various provisions. 76. It is true that this very phrase in the context of the provision in Article 311 includes the employees of the High Court and members of the judicial services. But it must be remembered that the provisions 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 phrase has been spaciously construed. As against this, Article 371-D is a special provision which marks a departure from the general scheme of the Constitution. The area of the departure 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, particularly when that phrase has nowhere been defined in the enactment. "Words used with reference to one set of circumstances", said Lord Blackburn in Edinburgh Street Tramways Co. v. V. Torbain (1877) 3 AC 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 of the State", and of "District Judges" in the State; class or classes of posts of "officers and servants of the High Court"....." 77. In our opinion, non use of the phrases "judicial service of the 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 Article 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 excluded from the purview of Clause (3) of Art. 371-D. The scope of the non obstante provision in sub-article (10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses. 78. 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 administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Arts. 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371-D, such as Article 229 and 235. Provisions not 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 constituting 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. 79. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In 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 the axiom that the greater includes the less. This cardinal canon of interpretation underlies Sec. 16 of the General Clauses Act which has been made applicable by Article 317 (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 compulsorily retire from service. In short, in regard to 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 Court28. 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 Honble the Chief Justice of Calcutta (AIR 1956 SC 285  ) (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 answered both the questions in the affirmative36. Article 234 enjoins that the rules in accordance with which appointments 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 expression "judicial service" in this Article, carries the same connotation as defined in Article 23637. Article 235 is the pivot around which the entire scheme of the Chapter revolves. Under it, "the control over district courts and courts subordinate thereto including the posting and promotions of, and the grant of leave to persons belonging to the judicial service of a State" is vested in the High Court38. The interpretation and scope of Article 235 has been the subject of several decisions of this Court. The position crystallised by those decisions is that 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. It comprehends a wide variety of 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, dismissal, removal, reduction in rank of District Judges, and initial posting 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 dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity 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 custodian of the control over the judiciary. The control vested in the High Court being exclusive, and not dual, an inquiry into the conduct of a member of the judiciary can be held by the High Court alone and no. other authority. (State of West Bengal v. Nripendra Nath Bagchi (AIR 1966 SC 447  ) (supra), Shamsher Singh v. State of Punjab (1975) 1 SCR 814  ) : (AIR 1974 SC 2192  ); Punjab and Haryana High Court v. State of Haryana (sub-nom Narendra Singh Rao) (1975) 3 SCR 365   : (AIR 1975 SC 613  )(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 (1971) 2 SCC 889   : (AIR 1972 SC 1028  ) State of Assam v. Kuseswar Saikia (1970) 2 SCR 928   : (AIR 1970 SC 1616  ))(c) Transfers of District Judges (State of Assam v. Ranga Muhammad (AIR 1967 SC 903  ) (supra); Chandra Mouleshwar v. Patna High Court (AIR 1970 SC 370  ) (supra)(d) Recall of District Judges posted on ex-cadre posts or on deputation on administrative posts. (State of Orissa v. Sudhansu Sekhar Misra (1968) 2 SCR 154   : (AIR 1968 SC 647  )(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 Courts (State of U.P. v. Batuk Deo Pati Tripathi (1978 Lab IC 839) (SC) (supra))39. Since in both these appeals, order of the premature retirement of 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 amplify the point a little. It is well settled that 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 because, the Government servant does not lose the terminal benefits already earned by him. (See Tara Singh v. State of Rajasthan AIR 1975 SC 1487  ; State of Haryana v. Inder Prakash Anand, AIR 1976 SC 1841  )40. 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 continnue in service till the age of 58 years. Contrary to the recommendation of the High Court, the State Government passed an order under Rule 5.32 (c) of the Punjab Civil Service Rules, compulsorily retiring him from service at the age of 55 years. Holding that the order of compulsory retirement was invalid, this Court stressed that the power of deciding whether a judicial officer should be retained in service after attaining the age of 55 years up to the age of 58 years, vests in the High Court, and to hold otherwise "will seriously affect the independence 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 cases it is contemplation in the Constitution, that the Governor as the head of the State will act in harmony with the recommendation of the High Court". It was concluded that "the vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its juridiction will bind the State". In other words, while in form, the High Courts 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 wellnigh peremptoryIn 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 Court and the subordinate judiciary70. 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 service72. From the foregoing conspectus it is evident that the evil which was sought to be remedied, (viz., inequitable opportunites and facilities 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 agitation which led to the enactment of Article 371-D make any grievance against the basic scheme of Chapters V and VI in Part VI of the Constitution73. The Statement of Objects and Reasons does not indicate that there was any intention, whatever, on the part of the legislature to impair or derogate from the scheme of securing independence of the Judiciary as enshrined in Article 229 and 235. Indeed, the amendment or abridgment of this basic scheme was never an issue of debate in Parliament when the Constitution (32nd Amendment) Bill was considered75. 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 shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371-D (5), is the supreme authority, having full power to confirm, 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 built into the basic scheme of the Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide literal interpretation 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 subordinate judiciary will not fall within the purview of the phrase "civil services of the State". Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its various provisionsTherefore, 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 of the State", and of "District Judges" in the State; class or classes of posts of "officers and servants of the High Court"....."In our opinion, non use of the phrases "judicial service of the 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 Article 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 excluded from the purview of Clause (3) of Art. 371-D. The scope of the non obstante provision in sub-article (10) which gives an overriding effect to this Article is conterminous with the ambit of the preceding clauses78. 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 administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Arts. 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 371-D, such as Article 229 and 235. Provisions not 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 constituting 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 Judiciary79. 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 nullity58. 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, thereunder59. Clause (4) only subserves and elucidates the substantive Clause (3)60. It is undisputed that compulsory retirement is a condition of serviceFor reaching a correct finding on this issue, it is not necessary 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 expression 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 first limb of each of the sub-clauses (a), (b) and (c) varies, the 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", or(ii) "civil posts under the State", or(iii) "posts under the control of any local authority within 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 class (iii). As regards (ii), it is conceded even by Shri Vepa Sarathy, that persons holding posts on the staff of the High Court or 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.