Case: Union Of India Vs. Prem Kumar Jain &amp; Ors. Etc

These appeals by certificate are directed against t he judgment of the Delhi High Court dated September 25, 1969, allowing Civil Writ Petition No. 405 of 1968 and connected petitions Nos. 478 to 487 of 1968. The High Court has quashed the orders of the Central Government notified in GSR 42 to 49, published in Gazette of India, Extraordinary, dated January 13, 1968, as well as the scheme for the formation of a joint cadre of the Indian Administrative Service, hereinafter referred to as the Service, for the Union Territories, and has held that the formation of the Delhi-Himachal cadre of the Service was also ultra vires the Constitution. As we shall show, the decision has turned on a short point of law, and it will be enough to refer to those facts which bear onnew cadre of the Service was constituted for the Union Territories of Delhi and Himachal Pradesh and recruitment to that cadre was made directly without complying with the recruitment of rule 4(1) of the Indian Administrative Service (Recruitment) Rules, 1954, hereinafter referred to as the Recruitment Rules, which prescribed the normal method of recruitment to the Service. The Rules were amended on December 21, 1967, by providing for a Joint Cadre in relation to the Union Territories and the North East Frontier Agency, and the Central Government formulated the aforesaid scheme to extend the Delhi-Himachal Pradesh Cadre to all Union Territories by absorbing the officers of that cadre and by appointing to it officers of the Indian Frontier Administrative Service and all other Union Territories at its initial constitution. The Joint Cadre for all the Union Territories was brought into existence from January 1, 1968, by GSR 42 under rule 3(1) of the Indian Administrative Service (Cadre Rules, 1954, hereinafter referred to as the Cadre Rules, published (along with certain consequential changes in the other rules of the Service in Gazette of India, Extraordinary, dated January 13, 1968. The petitioners in the h Court challenged the creation of the new Joint Cadre for all the Union Territories and the appointment of some of the respondents thereto. It was urged in the High Court that the constitution of the new Joint Cadre was illegal as it was contrary to the provisions of article 312 of the Constitution andthe All India Services Act, 1951 as it was not common to the Union and the State inasmuch as a Union Territory was not a State. and the recruitment of the respondents concerned to the Joint Cadre was contrary to the provisions of section 3 of the All India Services Act. 1951. and the Cadre Rules.The High Court examined the question whether the Union Territories were States and reached the conclusion that this was not so. It therefore held that rule 4(5) of the Recruitment Rules was Ultra vires the Constitution and the All India Services Act of the (Cadre in question could not be said to be common to the Union and the States. The High Court also observed that as the Central Government was itself the State Government for purposes of a Union Territory, The Central Government could not consult itself within the meaning of section 3 of the All India Services A ct and the Recruitment and the Cadre Rules. It therefore quashed the orders and the scheme mentioned above.

Reasoning:
The power of adaptation or modification was therefore spent after the expiry of three years, and the High Court has taken the view that as it were only the adaptations made in the General Clauses Act under article 372(2) which applied to the interpretation of the Constitution in view of articl e 367(1) the adaptation made later, by article 372A, were not sono such ground appears to have been taken in the writ petition. Moreover the validity or rule 4( 1) of the Recruitment Rules. which contained a non-obstante Clause providing for recruitment to the Joint Cadre of the Union Territories on its initial constitution by such method the Central (Government may after consultation with the Union Public Service Commission prescribe was not examined by the Highhas been stated, that definition had itself been substituted by the Adaptation of Laws Order, 1950, to make it workable, and it served the purpose, for the country had those three types of States at that time. but an i mportant change was made by the constitution (seventh Amendment) Act, 1956, which abolished the distinction of part A, part B and part C states and provided, inter alia, that the territory of the country shall comprise the territories of the States and the Union territories specified in the First Schedule. the definition the expression "state as it stood before November 1, 1956, became unsuitable and misleading on the coming into force of the Constitution (Seventh Amendment) Act, 1956, from November 1, 1956, and it will, for obvious reasons, be futile to contend that it should have continued to be applicable for all time to come and remained the final definition of "State" " merely because The period of three years provided by Clause (3) (a) of article., 372 of the (constitution expired and was not extended by an amendment of that Clause, or because article 367(1) was not amended by the Seventh Amendment Act "to say that adaptations made in the General Clauses Act otherwise than those made under article 372(2) would be applicable to the interpretation of the Constitution." The High Court also erred in thinking that such "abstention seems to be deliberate." On the other hand, it is quite clear from the fact that Parliament inserted article 372A by the Constitution (Seventh Amendment) Act, 1956, that it was aware that the power of adoption under article 372(2) had come to an end, and was alive to the necessity of giving a similar power of adapting the laws once again to the President for the purposes of bringing the provisions of any law in force in the country immediately before the commencement of that Act "into accord" with the provisions of: the Constitution. It is therefore futile to contend that the definition of the expression "State" which was applicable upto November, 1956, remained the final definition for all time to come. That view is incorrect, for it overlooks or ignores the anxiety or the Parliament to remove any such misapprehensions by inserting article 372A. It was a special provision, and it was meant to serve the purpose of making the Seventh Amendment Act workable. As has been held by t his Court in Management of advance insurance Co. Ltd. v. Shri. Gurudas mal and others([1970] 3 S.C.R. 881), article 372A gave a fresh power to the President Which was equal and analogous to the power under article 372(2).It follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President issued the Adaptation of Laws (No. 1) order, 1956, which, as has been shown, substituted a new Clause (58) in section 3 of The General Clauses Act providing, inter alia, that the expression "State" shall, as respects any period after the commencement of the Constitution (Seventh Amendment) Act 1956. mean "a State specified in the First Schedule to the Constitution and shall include a Union territory." It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable. By virtue of article 372A(1) of the Constitution, it was that definition of the expression "State" which had effect from the 1st day of November, 1956, and the Constitution expressly provided that it could "not be questioned in any court of law." The High Court therefore went wrong in taking a contrary view and in holding that "Union Territories are not States for purposes of Article 312(1) of the Constitution and 1 the preamble to the Act of 1951." That was why the High Court erred in holding that the definition of "State" in the Cadre Rules was ultra viresthe All India Services Act, 1951 and the Constitution, and that the Union Territories Cadre of the Service was "not common to the Union and the States" within the meaning of article 312(1) of the Constitution. and that the Central Government could not make the Indian Administrative Service (Cadre) Rule s. 1954 in consultation with the State Governments as there were no such Governments in the Union Territories.The High Court has held further that section 3 ofthe All India Services Act, 1951 and rule 5 of the Cadre Rules have been contravened by the "direct appointment of respondents 2 to 37 to the Union Territories Cadre and by their being not recruited first to the IAS." Butno such ground appears to have been taken in the writ petition. Moreover the validity or rule 4( 1) of the Recruitment Rules. which contained aClause providing for recruitment to the Joint Cadre of the Union Territories on its initial constitution by such method the Central (Government may after consultation with the Union Public Service Commission prescribe was not examined by the High