No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.85 OF 2015
TELANGANA JUDGES ASSOCIATION & ANR. ... PETITIONERS
VERSUS
UNION OF INDIA & ORS. ... RESPONDENTS
WITH
CIVIL APPEAL NOS.1017010173 0F 2018
(ARISING OUT OF SLP(C)NOS.1878718790 OF 2016)
STATE OF TELANGANA & ANR. ... APPELLANTS
VERSUS
SARASANI SATYAM & ORS. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2.The bifurcation of lower judiciary by State wise strength
of combined State of Andhra Pradesh, consequent to the Andhra
Pradesh Reorgnisation Act, 2014 is the issue which has arisen
in these two cases which have been heard together and are
being decided by this common judgment.
Facts: Writ Petition (C) No.85 of 2015
3.The writ petition has been filed by the Telangana Judges
Association, a registered forum, formed to protect the
interest of the Judicial Officers of State of Telangana. The
2
petitioner has challenged the recruitment process initiated by
the High court of the Judicature at Hyderabad for the State of
Telangana and the State of Andhra Pradesh (hereinafter
referred to as 'the High Court') for filling up the post of
Civil Judge (Junior Division). The petitioner's case is that
consequent to the Andhra Pradesh Reorganisation Act,
2014(hereinafter referred to as 'Act, 2014') with effect from
02.06.2014 a new State has been formed, namely, State of
Telangana without permitting the option envisaged in Section
77(2) of the Act, 2014 and without bifurcation of subordinate
judiciary the recruitment process has been initiated which is
not in accordance with law. Petitioner's case is that from the
establishment of the High Court of Andhra Pradesh in the year
1956, there has been inadequate representation of Telangana
Judges in the cadres of Junior Civil Judges, Senior Civil
Judges, District Judges and even Judges of the High Court.
The impugned notification
issued by respondent No.2 without constituting Telangana State
Judicial Service and without preparing State wise cadre
strength of respective States would affect the seniority as
well as promotion of the Telangana State Judicial Officers
whose strength is at present 25% only in comparison with
3
Andhra Pradesh State Judicial Officers.
4.An advertisement dated 01.02.2014 for recruitment for 97
vacancies of Civil Judges (Junior Division) was published. The
preliminary written examination was notified for 27.04.2014.
The State of Telangana was created as the 29
th
State of the
Union of India by the Act, 2014 on 01.03.2014. A
representation was submitted to stop the recruitment process
as the Central Government had announced, 02.06.2014, the date
for the formation of Telangana State. The High Court put on
hold the selection process till a clarification is obtained
from this Court. An application was filed by the High Court in
C.A. No.1867 of 2006 (Malik Mazhar Sultan & Ors. vs. Union
Public Service Commission & Ors.) on which this Court on
07.07.2014 passed an order permitting the status quo. However,
this Court in Malik Mazhar Sultan passed an order on
20.01.2015 clarifying that the process already initiated for
recruitment of Judicial Officers in the States of Andhra
Pradesh and Telangana by the High Court be proceeded with. The
Chief Justice of the High Court had constituted a Committee of
Judges, which Committee decided to ask the Judicial Officers
in the State of Andhra Pradesh to exercise option with respect
to the newly formed States. Writ Petition(C)No.403 of
2014(Dumpala Dharma Rao vs. High Court of Andhra Pradesh &
4
Ors.) was also filed in this Court challenging the proposed
action of the High Court calling for the option of Judicial
Officers. An application for impleadment by Telangana Judges
Association has been allowed in Writ Petition No.403 of 2014.
Petitioners have also submitted suggestions for the purpose of
final guidelines for allocation of States services to the
Principal Secretary, Government of Andhra Pradesh. Petitioners
also submitted representation to the Joint Secretary,
Department of Personnel & Training, Government of India dated
02.12.2014 requesting that the guidelines issued by the
Government of India may be made applicable to the Personnel of
Subordinate Judiciary and to take necessary expeditious steps
for allocation of members of Subordinate Judiciary.
5.In the writ petition petitioner has made the following
prayers:
"(i)Issue writ/writs including a writ in the nature
of Mandamus directing the respondents to bifurcate
the Lower Judiciary from the erstwhile Andhra
Pradesh State Judicial Service and to constitute the
Telangana Judicial Service under Articles 233 and
234 of the Constitution of India and fix the cadre
strength of each State;
(ii)Issue writ/writs including a writ in the nature
of certiorari quashing the Notification dated
05.02.2015 and Notification No.54/2015RC dated
09.02.2015 issued by the Hon'ble High Court of
Judicature at Hyderabad for the State of Telangana
and the State of Andhra Pradesh; and
(iii) pass such other order or orders as are deemed
5
fit and necessary in the interest of justice.”
Civil Appeal Nos...............of 2018 (arising out of
SLP(C)Nos.1878718790 of 2018
6.These appeals have been filed by the State of Telangana
against the Division Bench judgment dated 29.04.2016 of the
High Court of Judicature at Hyderabad for the State of
Telangana and the State of Andhra Pradesh (herein after
referred to as 'the High Court') deciding Public Interest
Litigation No.31 of 2015 with three other Writ Petitions. In
the Public Interest Litigation filed before the High Court
following prayer was made:
"I therefore pray that this Hon'ble Court may
be pleased to issue a Writ, order or direction, more
particularly one in the nature of a Writ of Mandamus
declaring the action of respondents in not
bifurcating the Subordinate Judicial Officers and
other Judicial Officers of the erstwhile State of
Andhra Pradesh as per Section77 of Andhra Pradesh
Reorganisation Act, 2014 and not distributing
Subordinate Judicial Officers and other employees to
the State of Telangana and to the State of Andhra
Pradesh and issuance of impugned notification
No.15/2014RC dated 01.02.2014 and consequential
notification No.54/2014RC dated 05.02.2014 of the
second respondent as null and void, arbirary,
illegal and violative of Articles 233 and 234 of
Constitution of India and Part VIII of A.P.
Reorganisation Act, 2014 and consequently direct
respondents to distribute the subordinate judicial
officers and other judicial employees to both the
States and only thereafter make recruitments to the
Subordinate Higher Judicial Service and Judicial
Service and pass such other order or orders as this
6
Hon'ble Court may deem fit and proper.”
7.The High Court after elaborately considering all the
issues dismissed all the writ petitions. The State of
Telangana has by a notification adopted Andhra Pradesh
Judicial Service Rules, 2007 without making any consultation
with the High Court. The recruitment process initiated by the
notification in the year 2014 for 97 posts of Civil Judges and
recruitment process for 34 posts in pursuance of 2015
notification were completed. After completing the entire
process of selection during pendency of the writ petitions,
the High Court noticed in the judgment that the ratio of
Judicial Officers selected are in the ratio of 60 : 40 per
cent. While dismissing the Public Interest Litigation and Writ
Petitions, the High Court in paragraph 18 held:
"18.In the result, the Public Interest Litigation
and the Writ Petitions are dismissed. The respondent
– High Court shall compete the process of
recruitment initiated in pursuance of 2014 and 2015
Notifications. The respondent – State Governments
are directed to take all necessary steps for
appointments of the selected candidates, recommended
by the High Court at the earliest. 2015 Rules shall
not be acted upon and shall not operate since they
were not made in consultation with the High Court as
provided for under Article 234 of the Constitution.
It is open to the State of Telangana to take steps
to adapt 2007 Rules afresh, in exercise of the
powers under Section 101 of the Act, in consultation
with the High Court.”
7
8.When these appeals(SLPs) were filed against the judgment
of the High Court dated 29.04.2016, this Court on 15.07.2016
directed these appeals to be listed along with Writ Petition
(C)No.85 of 2015.
This Court on 18.07.2016 took up both, the writ petitions
and these appeals and after hearing learned counsel for the
parties passed a detailed order on 28.04.2017 where this Court
issued following directions:
“....In the background of the above mentioned
suggestion, we deem it appropriate to direct that
the guidelines issued by the existing High Court be
treated as the draft guidelines for the purpose of
allotment of the judicial officers to the different
cadres in two 4 states. Telangana Judges Association
and the State of Telangana as well as the State of
Andhra Pradesh and any one of the judicial officers
subject to the control of the existing High Court
and not belonging to Telangana Judges Association
either individually or in their representative
capacity may make suggestions within a period of
four weeks from today. Any representation made by
anyone of the above mentioned bodies shall be made
both to the Government of India and the existing
High Court and also the copies of the same shall be
furnished simultaneously to all the parties before
this Court in these two matters.
The Union of India shall thereafter examine the
various suggestions made by anyone of the above
mentioned bodies and prepare the draft guidelines in
consultation with the existing High Court on or
before the 17th of June, 2017 and place the draft
guidelines before this Court on the next date of
hearing for appropriate further orders.”
9.Consequent upon the above order dated 28.04.2017 an
8
affidavit of compliance has been filed by the Union of India.
In pursuance of the order of this Court dated 28.04.2017
respondent No.1 prepared a draft guidelines for allocation of
Subordinate Judicial Officers which was submitted to the High
Court. The High Court after consideration of the draft
guidelines and other inputs decided to submit a revised
guidelines. The revised guidelines as suggested by the High
Court have been brought on record as Encl.E to the affidavit
of the Union of India filed in compliance of order dated
28.04.2017. For the purposes of this case, we need only to
notice the modified guidelines submitted by the High Court in
reference to which submissions have been made by the learned
counsel for the petitioners. The draft sent by the Department
of Personnel & Training and as modified by the High Court and
final decision taken by the respondent has been filed in the
Tabular form. Relevant part of paragraphs 7, 8 and 9 of the
affidavit of Union of India may also be noticed which are as
follows:
“7.It is humbly submitted that the Ld. Registrar
General of the Hon'ble High Court of Judicature at
Hyderabad, vide letter dated 8.7.2017, had forwarded
the modified guidelines and the option form as
approved by the Hon'ble High Court, for further
necessary action. The Draft Guidelines, thus duly
modified by the Hon'ble the High Court, as stated
above, is annexed as ANNEXURED.
8.It is respectfully submitted that while the
9
Hon'ble High Court has accepted most of the
Principles for allocation as incorporated by the
Central Government in the Draft Guidelines, a few
modifications have been made by the Hon'ble High
Court. The significant modification(s) interalia
include as under:
a.... ... ... ...
b.... ... ... ...
c.Modification in descending order of
Priority of the principles to be
adopted for allocation of empoloyee by
the Full Court.
The Hon'ble existing High Court of
Judicature at Hyderabad has modified the
Central Government guidelines and approved the
principles of allocation as under:
(a) those who have opted and are
senior;
(b)those who have opted for the State
in which the district declared by them at
the time of entering service falls;
(c)if allocable posts still remain,
then allocation would
be done in the reverse order
of seniority.
The above modifications have been approved
by the Full Court of the Hon'ble existing High
Court. The DoPT, Govt. of India accepts the
abovementioned modifications which have been
approved by the Hon'ble existing High Court.
9.The draft guidelines as modified by the
Hon'ble High Court and received by the DoPT
[vide letter dated 8/7/2017] alongwith the
Department's proposed modification as mentioned
in para 8(a) above, is submitted for
consideration of this Hon'ble Court, in
compliance with this Hon'ble Court's order
10
dated 28/4/2017. This Affidavit is submitted on
behalf of the DoPT, Govt. of India in
compliance with the order dated 28.04.2017 for
kind consideration by this Hon'ble Court
towards finalization of the Guidelines for
allocation/ distribution of judicial officers
between the two States.”
10.Shri Salman Khurshid and Shri Huzefa Ahmadi, learned
senior counsel have appeared for the writ petitioners. Shri R.
Venkatramani has appeared for the High Court. Shri Maninder
Singh, learned Additional Solicitor General of India has
appeared for Union of India. Shri V.V.S. Rao, learned senior
counsel has appeared for the State of Andhra Pradesh. Shri B.
Adinarayana Rao, learned senior counsel has appeared for the
Andhra Pradesh Judicial Officers Association. We have also
heard learned counsel for the State of Telangana.
11.Learned counsel for the parties have confined their
submissions only to the guidelines for allocation as modified
by the High Court.
12.Shri Salman Khurshid and Shri Huzefa Ahmadi learned
senior counsel appearing for the petitioners contends that
modified guidelines issued by the High Court whereunder option
of those who are senior has to be first accepted, causes
prejudice to officers of Telangana. It is submitted that the
ratio of Judicial Officers from Telangana as compared to those
from State of Andhra Pradesh has always been less. The main
11
object of bifurcation of existing State of Andhra Pradesh and
formation of Telangana State is for betterment of
socioeconomic conditions and to fulfill the political and
other aspirations of the people of Telangana and to do the
justice to the people of Telangana on various fronts. The High
Court by modifying the guidelines for accepting the option had
watered down the enactment of Act, 2014. The guidelines
proposed by DoPT for option were fully acceptable to the
petitioners where initially in accepting the option preference
was to be given to those who had opted to the State in which
District declared at the time of service falls, which has been
subsequently modified by the High Court. He submitted that by
permitting seniors to opt for State of Telangana, there being
large number of senior Judicial Officers from Andhra Pradesh,
the prospects of promotion of Officers who belong to Telangana
region is being marred which will be nothing but perpetuating
the injustice meted out to them.
13.Learned counsel for the petitioners has also come up with
a submission that Judicial Officers belonging to State of
Andhra Pradesh may be accommodated in the State of Telangana
on deputation basis. The Officers who have opted
State/District of Telangana can be sent back in the native
State of Andhra Pradesh. It is submitted that by the said
12
suggestion no prejudice will be caused to either of the
parties. The petitioner has also relied on proviso to Section
77(2) of the Act, 2014 in support of their submission.
14.The petitioners have also relied on Article 371D of the
Constitution which according to the petitioners was inserted
to give recognition to the aspirations of the people of Andhra
Pradesh. Article 371D permits domicile as the basis for
appointment to the services.
15.Shri Maninder Singh, learned Additional Solicitor General
of India submits that Union of India has already filed
compliance affidavit in pursuance of the order dated
28.04.2017 and the Union of India will implement the
guidelines for allocation which may be approved by this Court.
Although, Department of Personnel & Training has accepted the
revised guidelines submitted by the High Court submitted with
the approval of the full Court as has been indicated in the
compliance affidavit.
16.Shri R.Venkatramani, learned senior counsel appearing for
the High Court submits that it is the High Court which has
control over the Subordinate Judiciary as per the
constitutional scheme which has to lay down the guidelines for
allocation of State. The High Court while finalising the
guidelines has taken a fair and equitable decision for all
13
Judicial Officers. It is submitted that domicile has not been
provided as any special factor for allocation and the emphasis
on domicile as exclusive criterion to allocation cannot be
sustained. The declaration given by the Officers at the time
of entering into the service relating to home District in the
context of service requirement cannot be exhorted to the
status of criteria or norm.
17.It is further submitted that submission of the
petitioner that Judicial Officers pertaining to State of
Telangana are much less as compared to State of Andhra
Pradesh, is not fully correct. It is submitted that
recruitment of Judicial Officers is on all India basis,
Officers from other States including Karnataka, Orissa, Bihar,
Tamil Nadu are also in the service and in allocation of State,
thus nativity or home District declared cannot serve any
substantial basis. Shri Venkatramani submits that in effect
there is no difference in allocation of cadre in respect to
those who had declared District in the State of Telangana as
there home District and under both, the guidelines that is
unrevised and revised the result is same. During the course of
submission, Shri Venkatramani was permitted to submit a chart
reflecting the position of allocation of all Judicial Officers
as per their options. The above chart has also been submitted
14
by the learned counsel for the respondent.
18.Shri B. Adinarayana Rao, learned senior counsel appearing
for Andhra Pradesh Judicial Officers Association submits that
the High Court has exclusive power and jurisdiction over
District Courts and Subordinate Courts thereto. In the
Constitutional scheme as delineated by Article 235, it is the
High Court who has control over Judicial Service. In
allocation of the Judicial Officers, it is the High Court
which is competent to finalise guidelines and the revised
guidelines submitted by the High Court are perfectly in
accordance with law. The due weightage to the seniority of the
Judicial Officers have to be given which seniority cannot be
taken away to prejudice the Judicial Officers. Those Officers
who had been senior in the combined seniority list cannot be
made junior by accepting guidelines for accepting options as
contended by the petitioners. He further submitted that there
is no relevance of place of birth in public employment. He
submits that appointment for Judicial Service is made on all
India basis, hence, petitioners cannot claim any special
privilege and right in the service only on the ground that
they are native of District which now falls in newly created
State of Telangana. Shri Rao further submits that scheme of
allotment as envisaged by Part VIII of Act, 2014 has no
15
application for the allotment of Judicial Officers of the
District Courts and Courts Subordinate thereto. He submits
that power under Article 2, 3 and 4 of the Constitution of
India is not absolute. He submits that revised guidelines
approved by the full Court of the High Court are fully in
consonance with Articles 14 and 16 of the Constitution and
protect the rights of Judicial Officers which need no
interference in these writ petitions.
19.The submission on behalf of State of Telangana is that
expression “Affairs of the State” featuring in Section 77 of
the Act, 2014 necessarily have to be construed to mean all the
three organs of the State including judiciary. In order to
render justice to the service personnel allotted to the two
States and to completely eliminate the possibility of
discrimination it may be prudent to entrust the powers
mentioned in Section 77 to the Central Government because the
said power is in nature of a special power contemplated to
meet the exigencies. The criterion of Domicile is in
consonance with the Legislative intent and the Constitutional
spirit embedded in principle of territoriality which is the
heart and soul of any State Reorganisation Act.
20.It has also been brought to our notice that the State of
Telangana has already framed new set of Rules, The Telangana
16
State Judicial Service Rules, 2017. In view of the framing of
the Rules, 2017 and further on completion of recruitment in
pursuance of order of this Court which was challenged in the
writ petition before the High Court, which has been dismissed,
nothing survives in the SLP to decide.
21.We have considered the submissions of the learned counsel
for the parties and perused the records.
22.The issue which needs to be considered in the writ
petition lies in the very narrow compass, i.e., whether the
revised guidelines as submitted by the High Court to
respondent No.1 for allocation deserve to be accepted or not.
It is useful to notice the guidelines proposed by the High
Court that is initially proposed and modified guidelines.
23.The High Court's guidelines which were initially proposed
on 26.02.2016 are as follows:
"1.The allocation shall be done in the order of
seniority as available on June 02, 2014.Preference
shall be given first to those who have applied
for the State in which the District declared by
them at the time of entering service falls.”
24.The guidelines dated 26.02.2016 were sent to the
Department of Personnel & Training. Representation and
objections were also submitted to the draft guidelines dated
26.02.2016 proposed by the High Court. The DoPT after
considering the objections and representation to the proposed
17
guidelines sent proposed guidelines by letter dated 29.06.2017
to the High Court. The High Court deliberated on the proposed
guidelines sent by DoPT and vide its letter dated 08.07.2017
communicated the modified guidelines. The Union of India in
its affidavit filed in compliance with the order dated
28.07.2017 has brought on record the draft guidelines as
proposed by DoPT, modified guidelines by the High Court and
the decision taken by DoPT in a Tabular Chart filed in
AnnexureE to the affidavit.
25.We may first notice the relevant provisions of Andhra
Pradesh Reorganization Act, 2014 assented by the President of
India and gazetted on 01.03.2014. By Section 3 of the Act,
Telangana State was formed comprising of territories of
existing State of Andhra Pradesh of several districts as
enumerated therein. Section 30 provided that on and from
appointed day, High Court of Judicature at Hyderabad shall be
the common High Court for the State of Telangana and the State
of Andhra Pradesh till a separate High Court for the State of
Andhra Pradesh is constituted. Part VIII of the Act dealt with
provisions as to Services. Section 76 dealt with All India
Services. Section 77 dealt with other services and Section 78
contains other provisions related to services. Section 77 and
Section 78 which are relevant are extracted as below:
18
"77. Provisions related to other services: (1)
Every person who immediately before the appointed
day is serving on substantive basis in connection
with the affairs of the existing State of Andhra
Pradesh shall, on and from that day provisionally
continue to serve in connection with the affairs
of the State of Andhra Pradesh unless he is
required, by general or special order of the
Central Government to serve provisionally in
connection with the affairs of the State of
Telangana:
Provided that every direction under this
subsection issued after the expiry of a period
of one year from the appointed day shall be
issued with the consultation of the Governments
of the successor States.
(2) As soon as may be after the appointed day,
the Central Government shall, by general or
special order, determine the successor State to
which every person referred to in subsection (1)
shall be finally allotted for service, after
consideration of option received by seeking
option from the employees, and the date with
effect from which such allotment shall take
effect or be deemed to have taken effect:
Provided that even after the allocation has
been made, the Central Government may, in order
to meet any deficiency in the service, depute
officers of other State services from one
successor State to the other:
Provided further that as far as local,
district, zonal and multizonal cadres are
concerned, the employees shall continue to serve,
on or after the appointed day, in that cadre:
Provided also that the employees of local,
district, zonal and multizonal cadres which fall
entirely in one of the successor States, shall be
deemed to be allotted to that successor State:
Provided also that if a particular zone or
multizone falls in both the successor States,
then the employees of such zonal or multizonal
cadre shall be finally allotted to one or the
other successor States in terms of the provisions
19
of this subsection.
(3) Every person who is finally allotted under
the provisions of subsection (2) to a successor
State shall, if he is not already serving
therein, be made available for serving in the
successor State from such date as may be agreed
upon between the Governments of the successor
States or, in default of such agreement, as may
be determined by the Central Government:
Provided that the Central Government shall
have the power to review any of its orders issued
under this section.
78. Other Provisions relating to services: (1)
Nothing in this section or in section 77 shall be
deemed to affect, on or after the appointed day,
the operation of the provisions of Chapter I of
Part XIV of the Constitution in relation to
determination of the conditions of service of
persons serving in connection with the affairs of
the Union or any State:
Provided that the conditions of service
applicable immediately before the appointed day
in the case of any person deemed to have been
allocated to the State of Andhra Pradesh or to
the State of Telangana under section 77 shall not
be varied to his disadvantage except with the
previous approval of the Central Government.
(2) All services prior to the appointed day
rendered by a person,—
(a) if he is deemed to have been allocated
to any State under section 77, shall be
deemed to have been rendered in connection
with the affairs of that State;
(b) if he is deemed to have been allocated
to the Union in connection with the
administration of the successor State of
Telangana, shall be deemed to have been
rendered in connection with the affairs of the
Union,
for the purposes of the rules regulating his
20
conditions of service.
(3) The provisions of section 77 shall not
apply in relation to members of any AllIndia
Service.”
26.Section 80 contemplated establishment of Advisory
Committees to assist the Government. Section 80 is as follows:
"80. Advisory Committees: (1) The Central
Government may, by order, establish one or more
Advisory Committees, within a period of thirty
days from the date of enactment of the Andhra
Pradesh Reorganisation Act, 2014, for the
purpose of assisting it in regard to––
(a) the discharge of any of its functions
under this Part; and
(b) the ensuring of fair and equitable
treatment to all persons affected by the
provisions of this Part and the proper
consideration of any representations made
by such persons.
(2) The allocation guidelines shall be issued by
the Central Government on or after the date of
enactment of the Andhra Pradesh Reorganisation
Act, 2014 and the actual allocation of individual
employees shall be made by the Central Government
on the recommendations of the Advisory Committee:
Provided that in case of disagreement or
conflict of opinion, the decision of the Central
Government shall be final: Provided further that
necessary guidelines as and when required shall
be framed by the Central Government or as the
case may be, by the State Advisory Committee
which shall be approved by the Central Government
before such guidelines are issued.
27.The Central Government constituted two Advisory
21
Committees, (i) for the allocation of All India Services
officers born on undivided cadre of the State of Andhra
Pradesh under the chairmanship of Shri Pratyusha Sinha, and,
(ii) for other State cadre employees under the chairmanship of
Shri Kamlanathan. Kamlanathan Committee submitted
recommendations for allocation of other State Services.
28.The High Court issued guidelines dated 26.02.2016
providing for procedure of allocation alongwith revised option
form. The relevant provisions for allocation as contained in
the guidelines in paragraph 1 provided, as follows:
"1. The allocation shall be done in the order of
seniority as available on June 02, 2014.
Preference shall be given first to those who have
applied for the State in which the District
declared by them at the time of entering service
falls.”
29.On basis of aforesaid communication, Officers submitted
their option which were compiled and send by the High Court.
As noted above, in the mean time, Writ Petition No.403 of 2014
was filed by Dumpala Dharmarao, where he had challenged the
action of the High Court in calling for option of the Judicial
Officers in the State of Andhra Pradesh. This Court had passed
an Order for status quo on 07.07.2014. Writ Petition was
22
subsequently dismissed as have been becoming infructuous after
retirement of Dumpala Dharmarao. As noted above, in pursuance
of the Order dated 28.04.2017 passed by this Court in
W.P.No.85 of 2015, the guidelines framed by the High Court
were treated as draft guidelines and Union of India was
directed to examine the various suggestions made through
representations and place the draft guidelines before this
Court. As noted above, the Compliance Affidavit has been filed
by the Union of India. The Union of India has in its
compliance affidavit noted the suggestions on guidelines
issued by the High Court, Telangana State Government,
different associations, individuals and proposed guidelines of
Department of Personnel and Training.
30.The High Court vide its letter dated 08.07.2017 again
forwarded modified guidelines for allocation of Judicial
Officer in category of District Judge, Senior Civil Judge and
Junior Civil Judge. High Court gave suggestions regarding
constitution of Advisory Committee which may include Senior
most Judges among the nominated Judges of the High Court being
the Chairman of the Committee. Paragraph 5 of the draft
guidelines contains principles for allocation. Paragraph 5 (i)
& (ii) which are relevant are quoted below:
"5. The allocation shall be done keeping in
23
view the following principles;
(i) The allocation shall be done in the order
of seniority as available on June 01,2014 for
each category of posts.
(ii) Officers will be considered for allocation
in the following order (a) those who have
opted and are senior; (b) those who have
opted for the State in which the district
declared by them at the time of entering service
falls; (c) if allocable posts still remain then
allocation would be done in the reverse order
of seniority.”
31.The Government of India has brought on record draft
guidelines framed by the Department of Personnel and Training
and modified guidelines as sent by the High Court on
08.07.2017 and the decision of Department of Personnel and
Training. The draft guidelines as forwarded by the High Court
in Paragraph 5 (i) & (ii) as extracted above have been
accepted by Department of Personnel & Training, which is clear
from EnclosureE, filed alongwith the compliance affidavit. It
is useful to extract relevant part of AnnexureE containing
principles for allocations. Relevant part of the guidelines
are as follows:
"DRAFT GUIDELINES FOR ALLOCATION OF SUBORDINATE
JUDICIAL OFFICERS
S.No.Draft framed by DOPT As modified by
High Court
Remarks/Observa
tion of DOPT
reference Col.
(3)
24
1.... ... ...
2.... ... ...
3.... ... ...
4.... ... ...
5.The allocation shall
be done keeping in
view the following
principles:
i. The allocation
shall be done in the
order of seniority
as available on June
01, 2014 for each
category of posts.
No Change Accepted
ii. Officers will be
considered for
allocation in the
following order(a)
those who have opted
for the State in
which the district
declared by them at
the time of entering
service falls,
failing which as
determined as per
para 5(vii); (b)
those who have opted
and are senior; (c)
if allocable posts
still remain then
allocation would be
done in the reverse
order of seniority.
Officers will be
considered for
allocation in
the following
order (a) those
who have opted
and are senior;
(b) those who
have opted for
he State in
which the
district
declared by them
at the time of
entering service
falls; (c) if
allocable posts
still remain
then allocation
would be done in
the reverse
order of
seniority.
Since the
modifications
have been
approved by the
full court we
may accept as
approved by the
High Court.
.... .. ..
25
32.Now, we come to the challenges which have been raised by
the petitioners to the guidelines as modified by the High
Court and accepted by the Department of Personnel & Training.
Petitioners’ grievance is that draft framed by the Department
of Personnel & Training protected the interest of Judicial
Officers of Telangana whereas modification of the guidelines
made by the High Court are prejudicial to the Rights of the
Judicial Officers of the State of Telangana. The first ground
of challenge which has been raised by the petitioner is that
it is the Central Government which is competent to issue
guidelines as per Section 77 read with Section 80. The
Petitioner submits that the guidelines which were prepared by
the Advisory Committee i.e. Kamalanathan Committee, ought to
have been applied for the Judicial officers also. The
Parliamentary legislation i.e. Act, 2014, ought to have been
implemented by the High Court by accepting the guidelines of
Kamalanathan Committee. We need to examine the provisions of
Act, 2014, in the above context. In the constitutional scheme,
Subordinate Courts, Judicial Officers working therein are
under control of the High Court by virtue of Article 235 of
the Constitution. The Constitution Bench of this Court in
(1979) 2 SCC 34, Chief Justice of Andhra Pradesh and other
versus L.V.A Dixitulu and others, had occasion to consider
26
nature of control of the High Court on judicial services.
Article 371D as well as Article 229 and Article 235 of the
Constitution of India came for consideration. Dealing with
Article 235, Constitution Bench said that control over the
subordinate judiciary is vested in the High Court under
Article 235 is exclusive in nature, comprehensive in extent
and effective in operation. Paragraph 39 and 40 of the
judgment is as follows:
"39. 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 Court.
40. The interpretation and scope of Article 235
has been the subject of several decisions of this
Court. The position crystalised by these
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 condition of service,
and a right of appeal, if any, granted thereby
and to the giving of an opportunity of showing
27
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 Vs.
Nripendra Nath Bagchi; Shamsher Singh V. State of
Punjab and Punjab and Haryana High Court Vs.
State of Haryana(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 Vs. S.N.Sen and State of
Assam Vs. Kuseswar Saikia).
(c) Transfers of District Judges.(State of
Assam Vs. Ranga Mahammad and Chandramouleshwar
Vs. Patna High Court.)
(d) Recall of District Judges posted on
excadre 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)
(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 Vs. State of
Haryana)
(g) Premature or compulsory retirement of
Judges of the District Courts and of Subordinate
Courts.(State of U.P. Vs. Batuk Deo Pati
Tripathi)”
28
33.The constitutional scheme for vesting the control of the
High Court over the subordinate judiciary was with object and
purpose. The main object was to ensure that judiciary should
be independent of the executive which is constitutional
objective and also a Directive Principle of State Policy as
contained in Article 50. Referring of judgment of State of
U.P. vs. Batuk deo Pati Tripathi, (1978) 2 SCC 102 ,
Constitution Bench quoted with approval the law laid down by
this Court in Batuk Deo Pati Tripathi in paragraph 43 which is
as follows:
"43. Recently, in State of Uttar Pradesh Vs.
Batuk Deo Pati Tripathi(Supra) , this Court
succinctly summed up the whole position as
follows:[(1978) 2 SCC 102, 112(para 14]
The ideal which inspired the provision that
the control over District Courts and courts
subordinate thereto shall best in the High Courts
is that those wings of the judiciary should be
independent of the executive...It is an order to
effectuate that high purpose that Article 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.”
34.The nature of control of the High Courts over the
29
judiciary again was elaborately considered by Constitution
Bench of this Court in State of Bihar and Another Versus Bal
Mukund sah and Others, (2000) 4 SCC 640. The Constitution
Bench again reiterated that the Judicial independence is the
very essence and basic structure of the Constitution. In
paragraph 34 and 35, following has been held:
"34. It has also to be kept in view that
judicial independence is the very essence and
basic structure of the Constitution. We may also
usefully refer to the latest decision of the
Constitution Bench of this Court in
Registrar(Admn.), High Court of Orissa v. Sisir
Kanta Satapathy wherein K.Venkataswami, J.,
speaking for the Constitution Bench, made the
following pertinent observations in the very first
two paras regarding Articles 233 to 235 of the
Constitution of India;
"An independent Judiciary is one of the basic
features of the Constitution of the Republic.
Indian Constitution has zealously guarded
independence of Judiciary is doubtless a basic
structure of the Constitution but the said concept
of independence has to be confined within the four
corners of the Constitution and cannot go beyond
the Constitution.”
The Constitution Bench in the aforesaid decision
also relied upon the observations of this Court in
All India Judges Assn. wherein on the topic of
regulating the service conditions of the Judiciary
as permitted by Article 235 read with Article 309,
it had been observed as under; (SCC p.297, para
10)
"The mere fact that Article 309 gives power to
the Executive and the Legislature to prescribe the
service conditions of the Judiciary, does not mean
that the Judiciary should have no say in the
matter. It would be against the spirit of the
Constitution to deny any role to the Judiciary in
30
that behalf, for theoretically it would not be
impossible for the Executive or the Legislature to
turn and twist the tail of the Judiciary by using
the said power. Such a consequence would be
against one of the seminal mandates of the
Constitution, namely, to maintain the independence
of the Judiciary.”
In view of this settled legal position,
therefore, even while operating in the permissible
field of regulating other conditions of service of
alreadyrecruited judicial officers by exercising
power under Article 309, the authorities concerned
have to keep in view the opinion of the High Court
of the State concerned and the same cannot be
whisked away.
35. In order to fructify this constitutional
intention of preserving the independence of the
Judiciary and for fructifying this basic
requirement, the process of recruitment and
appointment to the District Judiciary with which
we are concerned in the present case, is insulated
from outside legislative interference by the
Constitutionmakers by enacting a complete code
for that purpose, as laid down by Articles 233 and
234, Consultation with the High Court is
therefore, an inevitable essential feature of the
exercise contemplated under these two articles. If
any outside independent interference was envisaged
by them, nothing prevented the Founding Fathers
from making Articles 233 and 234 subject to the
law enacted by the Legislature of States or
Parliament as was done in the case of other
articles as seen earlier.....”
35.The Andhra Pradesh Reorganisation Act, 2014, is a
parliamentary enactment for the reorganisation of existing
State as referred to in Article 2, Article 3 and Article 4 of
the Constitution of India. Article 4 of the Constitution is as
follows:
31
“4. (1) Any law referred to in article 2 or
article 3 shall contain such provisions for the
amendment of the First Schedule and the Fourth
Schedule as may be necessary to give effect to the
provisions of the law and may also contain such
supplemental, incidental and consequential
provisions (including provisions as to
representation in Parliament and in the
Legislature or Legislatures of the State or States
affected by such law) as Parliament may deem
necessary.
(2) No such law as aforesaid shall be deemed to
be an amendment of this Constitution for the
purposes of article 368.”
36.The power under Articles 2 & 3 is subject to other
provisions of the Constitution and is not unfettered. This
position of law has been considered and elucidated by a
Constitution Bench judgment of this Court in the case of
Mangal Singh Vs. Union of India, (1967)2 SCR 109 , at page 112,
in the following words:
"..........On the plain words of Article 4, there
is no warrant for the contention advanced by counsel
for the appellants that the supplemental, incidental
and consequential provisions, which by virtue of
Article 4 the Parliament is competent to make, must
be supplemental, incidental or consequential to the
amendment of the First or the Fourth Schedule. The
argument that if it be assumed that the Parliament
is invested with this wide power it may conceivably
exercise power to abolish the legislative and
judicial organs of the State altogether is also
without substance. We do not think that any such
power is contemplated by Article 4. Power with which
the Parliament is invested by Articles 2 & 3, is
power to admit, establish, or form new States which
conform to the democratic pattern envisaged by the
32
Constitution; and the power which the Parliament may
exercise by law is supplemental, incidental or
consequential to the admission, establishment or
formation of a State as contemplated by the
Constitution, and is not power to override the
Constitutional scheme.........”(Emphasis supplied)
37. Article 4 subclause (1) contemplates that any law
referred to in Article 2 or Article 3 shall contain provisions
which may also contain such supplemental, incidental and
consequential provisions as Parliament may deem necessary. The
supplemental, incidental and consequential provisions are
contemplated to effectuate the reorganisation of existing
State or formation of a new State in accordance with the
Constitutional Scheme as contained in the Constitution.
Subclause (2) of Article 4 clarifies that no such law as
referred to in Article 2 and Article 3 shall be deemed to be
an amendment of this Constitution for the purposes of Article
368. Thus the provision of Andhra Pradesh Reorganisation Act,
2014, has to be interpreted in the manner so that any
provisions of the Act, 2014, does not run contrary to the
existing Constitutional Scheme.
38.It is true that Section 77 contemplates allotment of
State after consideration of option received by an officer but
for interpreting Section 77 and Section 80, the existing
constitutional scheme that control of Judicial Officer is
33
vested in the High Court can neither be ignored nor given a go
by. From the facts on record, it does appear that Department
of Personnel and Training has understood the provisions in
such manner and has communicated to the High Court to submit a
list after taking options from the officers. The reply
affidavit filed by Union of India also clearly indicates that
stand taken by Union of India is that allocation/distribution
of District Judges and Judicial Officers belonging to
subordinate judiciary had been carried out under the aegis
and supervision of the respective High Courts, on earlier
occasions when the reorganisation enactment was passed.
Paragraph 10 of the reply affidavit filed by the Union of
India is extracted as follows:
”10. It is most humbly submitted that in so far
as the allocation of subordinate judicial officers
between the two States in question are concerned,
it is necessary to set out factual position and
background facts. It is submitted that even on
earlier occasions of passing of Reorganisation
enactments, the task of allocation/distribution of
District Judges and judicial officers belonging to
the subordinate judiciary – had been carried out
under the aegis and supervision of the respective
High Courts. For example, in the case of
Reorganization of the State of Madhya Pradesh,
State of Uttar Pradesh as well as State of Bihar,
such process had been followed for the
allocation/distribution of District Judges and
judicial officers belonging to the subordinate
judiciary.”
34
39.We thus are of the view that for preparing guidelines for
allocation of the Judicial officers, the views of the High
Court are not to be ignored and the Union of India, Department
of Personnel & Training, has rightly given due weight to the
views of the High Court for allocation. However, the scheme of
Act, 2014 indicates that final allocation Order is to be
issued as per the statutory provisions, by the Central
Government. The coverage of Section 77 is “ Every person who
immediately before the appointed day is serving on substantive
basis in connection with the affairs of the existing State of
Andhra Pradesh...” The coverage of Section 77 is in very wide
term which includes every person who is serving in connection
with the affairs of the existing State . There can be no denial
that Judicial Officers working in the Subordinate Judiciary
are serving in connection with the affairs of the existing
State. Thus, there cannot be any denial that Section 77 also
clearly covers the subordinate judiciary of the State and
final allocation Order has to be issued by the Central
Government after due consultation with the High Court.
40.We are thus of the view that High Court in preparing
draft guidelines and thereafter issuing modified guidelines
for allocation of cadre of Judicial Officers was well within
its jurisdiction and its views required due weight in giving
35
effect to the provisions of Section 77 of the Act.
41.The guidelines as modified by the High Court are
challenged by the petitioner on several grounds including
violation of their rights under Article 14 and as to whether
the guidelines are fair and equitable to persons affected by
the guidelines.
42.Section 80 expressly indicates that in carrying excise by
the Central Government as contemplated under Section 77, there
has to be fair and equal treatment to all persons affected by
the provisions of Part VIII of the Act. The guidelines for
allocation of cadre should ensure fair and equal treatment to
all persons affected and they should also conform the equality
clause as enshrined in Article 14 of the Indian Constitution.
We have thus to scrutinize the guidelines in this context so
as to enable us to come to a decision that whether guidelines
are to be implemented or not.
43.Now, we come to the core issue raised by the petitioner.
The petitioner submits that Act 6 of 2014 was enacted to
redress a historic discrimination faced by the residents of
State of Telangana of being denied their fair share of
representation in the matter of public services, education and
in the matters of governance and in all other matters such as
36
Legislative and Executive powers which are normally attributes
of any State. The petitioners have also referred to Statement
of Objects of the Act, 2014. Statement of Objects of the Act
notices:
“1. The creation of a separate State of Telangana
for the betterment of the social, economic, political
and other aspirations of the people of that region
has been a long standing demand. Pursuant thereto,
the Government of India on 9th December, 2009
announced that the process for formation of a
separate State of Telangana would be initiated. After
wideranging consultations on 3rd October, 2013, the
Government of India decided to bifurcate the existing
State of Andhra Pradesh.
2. The Andhra Pradesh Reorganisation Bill, 2014
seeks to give effect to the aforesaid decision. It
aims at reconstituting the existing State of Andhra
Pradesh into two separate States, namely the State of
Andhra Pradesh and the State of Telangana. The
proposed reorganisation will meet the democratic
aspirations of the people of Telangana region and
ensure peace, goodwill, progress and prosperity among
all the sections of the people of both successor
States.”
44.One more article of the Constitution, which has been
relied by the petitioners needs to be noted is Article 371D.
Article 371D was inserted in the Constitution by Constitution
(Thirtysecond Amendment) Act, 1973. Article 371D contains a
special provision with respect to State of Andhra Pradesh.
Now, by virtue of Act, 2014 in place of the State of Andhra
Pradesh “the State of Andhra Pradesh or the State of
Telangana” has been substituted. Article 371D subclause(1),
37
subclause(2) and subclause(3) provides:
“371D. Special provisions with respect to the State
of Andhra Pradesh or the State of Telangana. (1)
The President may by order made with respect to the
State of Andhra Pradesh or the State of Telangana,
provide, having regard to the requirement of each
State, for equitable opportunities and facilities for
the people belonging to different parts of such
State, in the matter of public employment and in the
matter of education, and different provisions may be
made for various parts of the States.
(2) An order made under clause (1) may, in
particular,—
(a) require the State Government to organise any
class or classes of posts in a civil service of, or
any class or classes of civil posts under, the
State into different local cadres for different
parts of the State and allot in accordance with
such principles and procedure as may be specified
in the order the persons holding such posts to the
local cadres so organised;
(b) specify any part or parts of the State which
shall be regarded as the local area—
(i) for direct recruitment to posts in any
local cadre (whether organised in pursuance of
an order under this article or constituted
otherwise) under the State Government;
(ii) for direct recruitment to posts in any
cadre under any local authority within the
State; and
(iii) for the purposes of admission to any
University within the State or to any other
educational institution which is subject to the
control of the State Government;
(c) specify the extent to which, the manner in
which and the conditions subject to which,
preference or reservation shall be given or made—
(i) in the matter of direct recruitment to
posts in any such cadre referred to in
subclause (b) as may be specified in this
behalf in the order;
(ii) in the matter of admission to any such
University or other educational institution
referred to in subclause (b) as may be
specified in this behalf in the order,
38
to or in favour of candidates who have resided or
studied for any period specified in the order in
the local area in respect of such cadre, University
or other educational institution, as the case may
be.
(3) The President may, by order, provide for the
constitution of an Administrative Tribunal for the
State of Andhra Pradesh and for the State of
Telangana to exercise such jurisdiction, powers and
authority [including any jurisdiction, power and
authority which immediately before the commencement
of the Constitution (Thirtysecond Amendment) Act,
1973, was exercisable by any court (other than the
Supreme Court) or by any tribunal or other authority]
as may be specified in the order with respect to the
following matters, namely:—
Xxxxxxxxxxxxxxxxxxxxxxxx”
45.Special provisions were introduced by way of Article 371D
of the Constitution of India. This amendment was made in
order to provide for equitable distribution of opportunities
and facilities to the people belonging to the different parts
of the State of Andhra Pradesh in matters of public
employment, education etc. The President is empowered to
issue an order to organise the civil posts, create local
areas, provide for preference or reservation in the matter of
direct recruitment to services and in admission into
educational institutions. In exercise of the power under
Article 371D the President had issued Andhra Pradesh Public
Employment (Organisation of Local Cadres and Regulation of
Direct Recruitment) Order, 1975 (hereinafter referred to as
“Presidential Order” for brevity). The said Presidential
39
Order provided for organising the classes of posts in the
civil services of the State into various local cadres under
para 3 and para 4 provide for allotment of persons to such
cadres. Paras 6 and 7 deal with local cadre and local
candidates and Para 8 provide for reservation to such local
candidates. The said Presidential Order thus is limited in
its application to the civil posts under the State and local
bodies and had no application to the Courts subordinate
thereto.
46.The basis for Article 371D is to provide equal
opportunity to the people of Andhra Pradesh by introducing
domicile as the basis for appointment to services and
admissions in educational institutions, however, Article
371D has no application in respect of the appointment to the
posts of District Judges and Judges Subordinate thereto, in
view of the constitutional scheme of separation of powers and
express provisions having been made by the Constitution. The
issue was authoritatively settled by the Constitution Bench of
this Court in Chief Justice of Andhra Pradesh & Ors. Vs.
L.V.A. Dixitulu & Others, (1979) 2 SCC 34 .
47.In the above case, one of the questions came for
consideration before this Court was as to whether members of
Judicial Services of the State are amenable to the
40
jurisdiction of the Administrative Tribunal, which was
constituted by the President issuing an order under
subclause(3) of Article 371D. The Administrative Tribunal
has passed an order on an application filed by a member of
Judicial services setting aside the order of compulsory
retirement passed by High Court. Matter was taken by the Chief
Justice of Andhra Pradesh in this Court challenging the
jurisdiction of the Tribunal. It was contended that Judicial
Service is not contemplated to be included in the meaning
covered by the expression “any civil service of the State”.
This Court held that Statement of Objects and Reasons of the
Bill for insertion of Article 371D does not indicate that
there was any intention on the part of the Parliament to
impair or derogate from the scheme of securing independence of
the Judiciary as enshrined in Articles 229 and 235 of the
Constitution. Court further held that amendment or abridgement
of this basic scheme was never an issue of debate in
Parliament when the Constitution (32nd Amendment) Bill was
considered. The Constitution Bench of this Court in Chief
Justice of Andhra Pradesh & Ors. Vs. L.V.A. Dixitulu (supra)
laid down following in Paragraph Nos. 76, 77, 78 and 80:
“76. 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 judi
41
ciary as enshrined in Articles 229 and 235. Indeed,
the amendment to abridgment of this basic scheme was
never an issue of debate in Parliament when the Con
stitution (32nd Amendment) Bill was considered.
77. One test which may profitably be applied to as
certain whether the High Court staff and the subordi
nate judiciary were intended to be included in clause
(3) of Article 371D is: Will the exclusion of the
judiciary from the sweep of this clause substantially
affect the scope and utility of the article as an in
strument for achieving the object which the legisla
ture had in view? The answer cannot but be in the
negative. The High Court staff and members of the
Subordinate Judiciary constitute only a fraction of
the number of persons 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 ar
eas, could be achieved under those rules which, as
subsequently clarified by this Court in State of
Andhra Pradesh v. V. Reddy
, 1973 (1) SCC 99,
contin
ued to be in force as valid law in the territories of
the former State of Hyderabad even after the consti
tution of the State of Andhra Pradesh.
78. Let us now apply another test which in the cir
cumstances of the case will be decisive. In that con
nection, we have to see what consequences will flow
if we give this general, undefined and flexible
phrase, “civil services of the State” in Article
371D(3), the wider construction so as to include in
it the High Court staff and the members of the subor
dinate 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 Subordi
nate 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 Govern
ment, which, under Article 371D(5), is the supreme
authority, having full power to confirm, not to con
42
firm, 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 inde
pendence 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 liberal interpre
tation which will defeat or render otiose the scheme
of Chapters IV and V, Part VI particularised in Arti
cles 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.
80. In our opinion, nonuse 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 Articles 235 and 229, re
spectively, 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 Article 371D. The scope of the non obstante
provision in clause (10) which gives an overriding
effect to this article is coterminous with the ambit
of the preceding clauses.”
48.Article 371D having been held by this Court not to be ap
plicable to Judicial Service, arguments based on Article 371D
cannot help the petitioner. In this context, one of the sub
missions raised by the petitioners was that Kamalanathan Com
mittee while framing guidelines for allocation of members of
43
Civil Service has taken into consideration the local area or
local cadre etc. No exception can be taken to the guidelines
finalised by Kamalanathan Committee for allocation of cadre of
members of Civil Services of the State, other than Judicial
Service, taking clue from Article 371D. Petitioners have re
ferred to guideline No. 18(f) of the Kamalanathan Committee
determining principles guiding allocations read with guideline
No. 18(n), which also read with the Andhra Pradesh Public Em
ployment Order, 1975 gives preference in allocation to those
who have opted and who are local candidates to be allocated to
that State in which they are local candidates. The said order
dated 29.10.1975 issued under Article 371D has been relied.
49.For the reasons already indicated above, the guidelines
formulated by Kamalanathan Committee in context of other Civil
Services are not relevant nor any support can be taken on the
basis of said guidelines.
50.It is true that issue of public employment with regard to
Telangana region has a long history. During the period of
Nizams under Mulki Rules, 15 years residential qualification
was required for public employment. For the purposes of this
case, we need not dwell any further with regard to residential
requirement of a public employment since in the present case,
we are concerned with the post of Judicial Service and this
44
court has already held that for appointment to the post of
Munsifs, no residential requirement can be prescribed. Par
ties are not at variance that recruitment to Judicial Service
is on all India basis. This Court has held that prescribing a
particular place of practice as a prerequisite for seeking em
ployment into the State Judicial Services as District Munsifs
is unconstitutional and violative of Article 14 of the Consti
tution. In J.Panduranga Rao Vs. Andhra Pradesh Public Service
Commission, 1963 (1) SCR 707 , this Court laid down following:
“If the basis of the impugned rule is that a per
son who applies for appointment to the post of a Dis
trict Munsif, should have been enrolled as an Advo
cate of a High Court, that basis can be satisfied
even if the person is enrolled as an Advocate not of
the Andhra High Court but of any other High Court.
All the High Courts have the same status; all of them
stand for the same high traditions of the Bar and the
administration of justice, and advocates enrolled in
all of them are presumed to follow the same standards
and to subscribe to the same spirit of serving the
cause of the administration of justice. Therefore, in
our opinion, the impugned rule has introduced classi
fication between one class of Advocates and the rest
and the said classification must be said to be irra
tional inasmuch as there is no nexus between the ba
sis of the said classification and the object in
tended to be achieved by the relevant scheme of
rules. That being so, it must be held that the deci
sion of the Andhra High Court in the case of Nallan
thighal Bhaktavatsalam Iyengar is not correct.”
51.The nativity for public employment runs counter to the
fundamental right guaranteed under Article 16(2) except when
45
it is provided by a Parliamentary Law as per exception carved
out in Article 16(3) of the Constitution of India. No Parlia
mentary Law is relied by the petitioner, which provides resi
dence as an eligibility to the employment in Judicial Service.
In Act, 2014, there is no provision, which expressly provides
for allotment of the State on the basis of place of birth or
residence. Sections 77, 78 and 79 of the Act do not refer to
allotment on the basis of place of birth. When for entering
into Judicial Service, no condition can be put regarding resi
dence of particular area for allocation of a State, consequent
to Act, 2014, nativity cannot be sole basis, as is contended
by the petitioner. It is true that the State of Telangana
stand formed to realise the democratic aspirations of the peo
ple of Telangana. We have noticed the Statement of Objects
and Reasons of Act, 2014, which clearly establish that the
creation of a separate State of Telangana is for the better
ment of the social, economic, political and other aspirations
of the people of that region, which contemplated allocation of
separate State of Telangana. The entire Statement of Objects
and Reasons does not indicate that with respect to public em
ployment, nativity is to play a dominant role. It is true
that Judicial Officers belonging to Telangana territorial area
may have desired or expectation to choose or to opt for their
46
cadre in Telangana area, which is a legitimate aspiration, but
giving predominance to nativity only is not spelled from any
statutory provision or scheme.
52.Section 77 of the Act contemplate a right of giving op
tion as contemplated by Section 77(2). “Option” has been de
fined in Black’s Law Dictionary, Tenth Edition, Page 1268:
“1. The right or power to choose; something that may
be chosen the lawyer was running out of options for
settlement, 2. An offer that is included in a formal
or informal contract; esp., a contractual obligation
to keep an offer open for a specified period, so that
the offeror cannot revoke the offer during that pe
riod the option is valid because it is supported by
consideration.”
53.Advanced Law Lexicon by P. Ramanatha Aiyar defines “op
tion” in following manner:
“Option. For the purposes of these guidelines—
‘OPTION’ means a right but not an obligation granted
to an employee to apply for shares at a predeter
mined price.
The word ‘option’ is a synonym for ‘choice’ or ‘pref
erence’.
OPTION, CHOICE. We speak of option only as regards
one’s freedom from external constraint in the act of
choosing : one speaks of choice only as the simple
act itself. The option or the power of choosing is
given: the choice itself is made : hence we say a
thing is at a person’s option.”
54.When a Judicial Officer has been given a right of option
47
to choose either of the successor State, right of option has
to be given same meaning and content. Right of option can be
defeated only when there is some impediment in accepting the
option. The seniority of a Judicial Officer is a first crite
ria for accepting the option. The seniority in a service is a
valuable right of an employee or officer. In service ju
risprudence, several benefits and perquisites are attached to
the seniority. The petitioners are asking that option be ac
cepted not on the basis of seniority but only on the basis of
nativity, i.e. those who are senior even if they opt the State
option, their option should not be selected and option of
those should be first accepted, who are natives of Telangana.
The petitioner’s apprehension is that in event option of se
nior officers are accepted and they are posted in State of
Telangana, the future prospects of promotion of the petition
ers shall be marred. Whether the officers, who in the senior
ity list, which was prevalent on the date of formation of new
State, i.e. on 02.06.2014 where senior should loose their se
niority or their seniority cannot be said to play any role on
account of formation of two successor States is the question
to be answered. The aspiration of petitioners that no senior
officer, should come to State of Telangana, which may mar
their prospect of promotion is neither in accord with the con
48
stitutional scheme nor as per ethos of culture of this coun
try. The modified guidelines submitted by the High Court and
accepted by the DoPT itself at second place give preference to
nativity. Thus, the High Court while formulating the guide
lines has tried to balance the right of option of each Judi
cial Officer. It is relevant to notice that this Court has
held in The State of Mysore and another Vs. G.N. Purohit and
others, (1967) SLR 753 that although right to be considered
for promotion is a right, but right to have a chance of promo
tion is not protected. In the above case, following has been
laid down in paragraph 10:
“10. It is then urged on behalf of the respon
dents that by changing the system from district
wise to statewise the respondents have been very
hard hit and have become very junior. It appears
from the figures supplied by the respondents that
there were 665 Junior Health Inspectors in the
old State of Mysore on November 1, 1956 while
only 48 Junior Health Inspectors were allotted to
the new State of Mysore after the Act. So long as
the districtwise system continued these 48 per
sons would naturally have better chances of pro
motion in their districts but when the cadre was
made statewise, these 48 were likely to go down
in the seniority as the list of 1963 actually
shows. It is urged that this has affected their
chances of promotion which were protected under
the proviso to S.115(7) of the Act, which lays
down that the conditions of service applicable
immediately before the appointed day to the case
of any person allotted to the new State shall not
be varied to his disadvantage except with the
previous approval of the Central Government. It
is said on behalf of the respondents that as
their chance of promotion have been affected
49
their conditions of service have been changed to
their disadvantage. We see no force in this argu
ment because chances of promotion are not condi
tions of service. It is enough in this connection
to refer to the State of Orissa v. Durga Charan
Dass (A.I.R. 1966 SC 1547).”
55.To the similar effect is judgment of this Court in
Mohammad Shujat Ali and Others Vs. Union of India and Others ,
in which in Para 15, following has been held:
“15. In the first place, it is not correct to say
that there was any variation in the condition of ser
vice in regard to promotion applicable to nongradu
ate Supervisors from the erstwhile State of Hyderabad
immediately prior to November 1, 1956. It is true
that a rule which confers a right of actual promotion
or a right to be considered for promotion is a rule
prescribing a condition of service. This proposition
can no longer be disputed in view of several pro
nouncements of this Court on the point and particu
larly the decision in Mohammad Bhakar v. Y. Krishna
Reddy
1
where this Court, speaking through Mitter, J.,
said: “Any rule which affects the promotion of a per
son relates to his condition of service”. But when we
speak of a right to be considered for promotion, we
must not confuse it with mere chance of promotion —
the latter would certainly not be a condition of ser
vice. This Court pointed out in State of Mysore v.
G.B. Purohit, (1967) 1 SLR 753 that though a right to
be considered for promotion is a condition of ser
vice, mere chances of promotion are not. A rule which
merely affects chances of promotion cannot be re
garded as varying a condition of service. What hap
pened in State of Mysore v. G.B. Purohit was that the
district wise seniority of Sanitary Inspectors was
changed to State wise seniority and as a result of
this change, the respondents went down in seniority
and became very junior. This, it was urged, affected
their chances of promotion which were protected under
the proviso to Section 115 subsection (7). This con
tention was negatived and Wanchoo, J. as he then was,
50
speaking on behalf of this Court observed: “It is
said on behalf of the respondents that as their
chances of promotion have been affected their condi
tions of service have been changed to their disadvan
tage. We see no force in this argument because
chances of promotion are not conditions of service”.
Now, here in the present case, all that happened as a
result of the application of the Andhra Rules and the
enactment of the Andhra Pradesh Rules was that the
number of posts of Assistant Engineers available to
nongraduate Supervisors from the erstwhile Hyderabad
State for promotion, was reduced: originally it was
fifty per cent, then it became thirtythree and one
third per cent, then one in eighteen and ultimately
one in twentyfour. The right to be considered for
promotion was not affected but the chances of promo
tion were severely reduced. This did not constitute
variation in the condition of service applicable im
mediately prior to November 1, 1956 and the proviso
to Section 115 subsection (7) was not attracted.
This view is completely supported by the decision of
a Constitution Bench of this Court in Ramchandra
Shankar Deodhar v. The State of Maharashtra, (1974) 1
SCC 317.”
56.The petitioners submission that High Court has modified
the guidelines for accepting option without there being any
valid reason and further no valid reasons have been indicated
by the High Court for modifying the guidelines. In this
context, it is relevant to notice that the draft guidelines,
which were initially circulated by the High Court on
26.02.2016 has in the first sentence stated “the allocation
shall be done in the order of seniority as available on
02.06.2014.” The second sentence read “Preference shall be
given first to those who have applied for the State in which
51
the District declared by them at the time of entering service
falls”. The above draft guidelines has only been amplified
retaining the initial concept of accepting option on the basis
of seniority. Both the concept as noted above are now
reflected in modified guidelines as guideline No. 5(1) and
5(2) as extracted above. Thus, the argument of the petitioners
that guidelines have been substantially changed by the High
Court without there being any reason cannot be accepted. The
substance of the guidelines are same, which were initially
contained in the draft guidelines and modified guidelines. It
was the DoPT, which has proposed guidelines, where content
clause 5.2 was 5.1 of modified guidelines were proposed as 5.1
was 5.2, which was not accepted by the High Court and Full
Court reiterated their earlier principle, which was initially
encapsuled in draft guidelines.
57.We, during course of the submissions, had asked Shri
Venkatramani, learned senior counsel appearing for the High
Court to give a chart indicating the details of options and
chart showing details of Judicial Officers working in both the
States of Andhra Pradesh and Telangana from 02.06.2014 and the
acceptance position of their option. Detailed chart has been
submitted by the High Court, which indicate that all Judicial
Officers belonging to territorial area of Telangana region
52
have been allocated Telangana State and the option of all the
Judicial Officers, who have opted for Telangana State have
been accepted. A list of all officers belonging to District
Judge Cadre; Civil Judge Senior Division cadre and Civil
Judge, Junior Division cadre has been submitted, which
indicate all officers, who have opted for Telangana State have
been allocated Telangana State.
58.All the Judicial Officers belonging to Telangana State
having opted and allocated the Telangana State, practically,
we do not find any error in the operation of guidelines
finalised by the High Court.
59.In view of foregoing discussions, we are of the view that
modified guidelines as submitted by the High Court vide letter
dated 08.07.2017, which has been accepted by DoPT does not
suffer from any illegality or error. The above guidelines is
to be accepted and approved. In view of the foregoing
discussions, we dispose of the writ petition with direction to
respondents to finalise options of all the Judicial Officers
as per the above guideline and complete the process of
allocation within a period of two months from today.
60.Now, coming to the Civil Appeals arising out of S.L.P.
(C) No. 1878718790 of 2016, the appellants themselves in
their submissions have not pressed the quashing of Recruitment
53
2014 and 2015. Further, Andhra Pradesh Judicial Service
Rules, 2007 as adopted by State of Telangana, which was
quashed by the High Court is now substituted by fresh Rules
namely, Telangana State Judicial Service Rules, 2017. All the
issues raised in the above Civil Appeals arising out of
special leave petitions have become academic and needs no
consideration. The Civil Appeals having become virtually
infructuous are dismissed accordingly. The parties shall bear
their own costs.
..................J.
(A.K. SIKRI)
...................J.
(Ashok Bhushan)
NEW DELHI,
OCTOBER 03, 2018.
Legal Notes
Add a Note....