# HIGH COURT OF ANDHRA PRADESH AND ORS v. V. V. S. KRISHNAMURTHY AND ORS

- **Citation:** [1979] 1 S.C.R. 26
- **Court:** Supreme Court of India
- **Decided:** 1978-08-04
- **Bench:** Y. V. Chandrachud, R. S. Sarkarja, N. L. Untwalta, A. D. KosHAL, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/high-court-of-andhra-pradesh-and-ors-v-v-v-s-krishnamurthy-and-ors-7577
- **Pages:** 31

## Headnote

Co11stit11tio1: of India 1950-Article 371-D and Andhra Pradesh Ad1ninistrative Tribunal l~nh'r 1975-Scope and effect of-An officer of the Hir:)i Court and
a S11hordi11a1e
J11d~e compulsoril:v
retired-Adn1i11fatratire Tribunal
held the
retiren1ent orders invalid-Administrati1'e Tribunal whether has
;urisdiction to
entertain, deal with or d.":cide the representation by a member of the staff of the
Tligh Court or of subordinate j11diciary-Scope of Articles 229 and 235.
A11iclc 371-D (3) inserted by the Constitution (Thirty-Second Amendn1ent)
Act 1973, empO¥.'ers the President to constitute an Administrative Tribunal for
the State of Andhra Pradesh to exercise such jurisdiction, powers a11d .1uthority
which immediately before the amendment was exercisable by any Court, tribunal
or authority in respect of a'Ppointment, allotment or promotion to posts in the
Civil Services of the State, under the State or under the control of any !ocal
authority within the state, Clause (10)
provides that t:he
provisions ot fhe
Article and any order made by the President thereunder, .shall have effect notwithstanding any other provision of the Constitution or in any other law for the
time being in force.
Parr~ 6 of the And.hra }lradesh Administrative Tribunal Order, 1975 issued
by the President, -setting up the Andhra Pradesh Administrative Tribunal, provides that the Tribunal shall have 'all the jurisdiction, powers and authority
exercisable by all Courts \vith respect to appointment, allotment or promotion to
any public post, seniority of persons appointed, allotted or promoted to 5uch
post a·nd all other conditions of service of such persons'.
The first Respondent in C.A. No. 2826 /77 was a former employee of tile
High Court.
He originally belonged to the High Court service.
After being
on deputation with the Central and State Governments for some year" he rejoined the High Court service as Assistant Registrar and was later promoted as
Deputy Registrar.
The Chief Justice of the
High Court in exercise ot his
powers under Article 229· of the Constitution read with the relevant rules, passed
an order, dated January 3, 1969, compulsorily retiring the respondent from service. who by then had attained the age of 50 years.
His writ petition assailing the orders of compulsory retirement, was dismissed
by the High Court on the ground that the jurisdiction of the High Court \1.'hich
was hitherto being exercised under Article 226 of the Constitution to correct
orders of the Chief Justice on the administrative side with rega-rd to conditions
of service of officers of the High Court, vested in the Adrμinistrative Tribunal
by reason of clause 6(1) of the A.P. Administrative Tribunal Order made by
the President under Article 371-D of the Constitution.
The respondent thereafter moved the Andhra Pradesh Administrative Tribunal, which set aside the impugned order on the ground, that it was ~rbitrary,
....
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A. P. HIGH COURT V. KRISHNAMURTHY
27
.nnd amounted to a penalty of dism;ssJ\ or removal from service and. as such,
A
was hit by Article 311(2) of the Constitution.
The resrondent in C.A. No. 278/78 was a member of the Andhra Pradesh
St:dc Judicial Service working as a Subordinate Judge.
He
was
prenmturely
retired in public interest by an order of the State Government on the recommendation of the Hig-h Court.
The respondent's contention. that in the case of Subordinate Judges, th~ I--ligh
Court being the appointing <('uthority, the Governor had no power or jurisd1ciioi"l
to p;iss an order of premature retirement of a
1 n1ember of the State Judicial Ser-
·v~ce, was accepted by the Tribunal, and the impugned order \Vtl.S. set aside.
In the appeals against both the orders of the Administrative Tribunal. it waos
contended before this Court by the- appellants that Article 371-D of the Constitution should be construed harmoniously
with the basic
scheme unJ~rlytng
·Chapters V and VI in Part VI of the Constitution; and so construed, the g;;neral expression, such a

## Text

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HIGH COURT OF ANDHRA PRADESH AND ORS.
v.
V. V. S. KRISHNAMURTHY AND ORS.
August 4, 1978/September 12, 1978
[Y. V. CHANDRACHUD, C.J., R. S. SARKARJA,
N. L. UNTWALTA,
A. D. KosHAL AND A. P. SEN, JJ.]
Co11stit11tio1: of India 1950-Article 371-D and Andhra Pradesh Ad1ninistrative Tribunal l~nh'r 1975-Scope and effect of-An officer of the Hir:)i Court and
a S11hordi11a1e
J11d~e compulsoril:v
retired-Adn1i11fatratire Tribunal
held the
retiren1ent orders invalid-Administrati1'e Tribunal whether has
;urisdiction to
entertain, deal with or d.":cide the representation by a member of the staff of the
Tligh Court or of subordinate j11diciary-Scope of Articles 229 and 235.
A11iclc 371-D (3) inserted by the Constitution (Thirty-Second Amendn1ent)
Act 1973, empO¥.'ers the President to constitute an Administrative Tribunal for
the State of Andhra Pradesh to exercise such jurisdiction, powers a11d .1uthority
which immediately before the amendment was exercisable by any Court, tribunal
or authority in respect of a'Ppointment, allotment or promotion to posts in the
Civil Services of the State, under the State or under the control of any !ocal
authority within the state, Clause (10)
provides that t:he
provisions ot fhe
Article and any order made by the President thereunder, .shall have effect notwithstanding any other provision of the Constitution or in any other law for the
time being in force.
Parr~ 6 of the And.hra }lradesh Administrative Tribunal Order, 1975 issued
by the President, -setting up the Andhra Pradesh Administrative Tribunal, provides that the Tribunal shall have 'all the jurisdiction, powers and authority
exercisable by all Courts \vith respect to appointment, allotment or promotion to
any public post, seniority of persons appointed, allotted or promoted to 5uch
post a·nd all other conditions of service of such persons'.
The first Respondent in C.A. No. 2826 /77 was a former employee of tile
High Court.
He originally belonged to the High Court service.
After being
on deputation with the Central and State Governments for some year" he rejoined the High Court service as Assistant Registrar and was later promoted as
Deputy Registrar.
The Chief Justice of the
High Court in exercise ot his
powers under Article 229· of the Constitution read with the relevant rules, passed
an order, dated January 3, 1969, compulsorily retiring the respondent from service. who by then had attained the age of 50 years.
His writ petition assailing the orders of compulsory retirement, was dismissed
by the High Court on the ground that the jurisdiction of the High Court \1.'hich
was hitherto being exercised under Article 226 of the Constitution to correct
orders of the Chief Justice on the administrative side with rega-rd to conditions
of service of officers of the High Court, vested in the Adrμinistrative Tribunal
by reason of clause 6(1) of the A.P. Administrative Tribunal Order made by
the President under Article 371-D of the Constitution.
The respondent thereafter moved the Andhra Pradesh Administrative Tribunal, which set aside the impugned order on the ground, that it was ~rbitrary,
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A. P. HIGH COURT V. KRISHNAMURTHY
27
.nnd amounted to a penalty of dism;ssJ\ or removal from service and. as such,
A
was hit by Article 311(2) of the Constitution.
The resrondent in C.A. No. 278/78 was a member of the Andhra Pradesh
St:dc Judicial Service working as a Subordinate Judge.
He
was
prenmturely
retired in public interest by an order of the State Government on the recommendation of the Hig-h Court.
The respondent's contention. that in the case of Subordinate Judges, th~ I--ligh
Court being the appointing <('uthority, the Governor had no power or jurisd1ciioi"l
to p;iss an order of premature retirement of a
1 n1ember of the State Judicial Ser-
·v~ce, was accepted by the Tribunal, and the impugned order \Vtl.S. set aside.
In the appeals against both the orders of the Administrative Tribunal. it waos
contended before this Court by the- appellants that Article 371-D of the Constitution should be construed harmoniously
with the basic
scheme unJ~rlytng
·Chapters V and VI in Part VI of the Constitution; and so construed, the g;;neral expression, such as "class or classes of posts", "Civil Services of the State"
etc. in Clause (3) of this Article will not include posts/members of the High
Court staff and the Subordinate Judiciary, with the result
thci:t the
impugned
orders of the Administrative Tribunal are ¥:ithout jurisdiction nnd nullities.
B
On the other hand, the respondents contended
that the
phra~e ''any C,ivii
D
'Service of the State" in cla·use (3) of this Article interpreted in its wide:..t ,;ense,
includes the members of the High Court staff and the Subordinate
Judu:1ary;
that even if such an interpretation is contrary to the Constitutionaf sc7icme ot
"Securing independence of the judiciary, such a n::-;ult was intended to be brought
·about by insertion of Article 371-D, the non-obstante provision in C'lnuse ( lO)
of \vhich gives it an over riding effect.
Allowing: the appeals.
HELD : 1. The entire scheme of Chapters V and VI in Part VI of the Constiiution epitomised in Arts. 229 and 235 has been assiduously designed by the
Founding Fathers to ensure independence of the High Court and the Subordinate
1ndiciary. [43F]
(a) In regard to servants and officers of the High Court, Article 229 '-)t tiiC
Constitution n1akes the power of their appointment,
dismissal,
removal, sUsM
:;ension, reduction in rank, compulsor_v retiren1ent etc.
including the power to
prescribe their conditions of seryice, the sole preserve of the Chief Justice and
no extraneous cxecutiYe authority ca·n interfere with the exercise of that power
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by the Chief Justice or his nominee except to a very limited extent mentioned
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in the provisos.' In conferring such exclusive nnd supreme po\vers on the CA1iet
Justice the object \vhich the Founding Fathers had in vie'v \vas to ensnre the
independence of the High Court.
[37F-GJ
(b) 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 and is a complete cvn~ H
troI subject only to the power of the Governor in the matter of appointment:
·dismissal or removal.
[41B-C]
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SUPREME COURT REPORTS
[1979) 1 S.C.R.
( c) Since 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, it is for the High Cour• in1
the exercise of its 'control' under Article 235, to decide whether or riot a judge
of the SUbordinate Judiciary should be prematurely or compulsorily retired.
Though in form such an administrative decision of the High Court is advisory~.
in substance and effect, it is well-nigh peremptory. [42D, 43B]
At. Gurun1oorthy v. Accountant General Assam and Nagaland and Orr.
[1971) Suppl. S.C.R. 420, Chandra Mohaa v. State of Uttar Pradesh [1967] l
S.C.R. 77; Chandramouleshwar v. Patna High Court
[1970]
2 S.C.R.
666;
State of Assani v. Ranga Mohammed [1967] 1 SCR 454; State of West Bengal v.
Nripendra /\lath Bagchi [1966] 1 SCR, 771; Shamsher Singh v. State of Pun1ab
(1975] I S.C.R. 814; Punjab and Haryana High Court v. State of Haryana (Sub
aom Narendra Singh Rao) [1975] 3 SCR 365; State of Assam v. S. N. Sett
[1971] 2 SCR 889; State of Assam v. Kuseswar Sukla [1970) 2 SCR 923; State
of U.P. v. Batuk Dea Pali Tripathi and Anr. [1978) 2 SCC 102; Tara Singh v.
State of Raiasthan A.I.R. 1975 SC 1487;
State of Haryana v. lnder Prakash
Anand A.l.R. 1976 S.C. 1841 referred to.
2. The phrase "any civil _service of the State" commonly employed in ~ub
clauses (a), (b) and (c) of cl~use (3) of Article 371-D is a general, undetiried
and flexible expression and is capable of bearing meaning more thail one. lf it ·
is construed loosely, in its widest sense so as to include in it the High Court -,talI_
and the members of the Subordinate Judiciary, the result will- be that the control
vested in the Chief Justice over the staff of the High Court. and in th~ High
Court over the subordinate judiciaory will become shorn of its substance. ellh:acy
and exclusiveness; and after being processed through the conduit of the Admli1istrative Tribunal, will pass on into the
hands of the
Executive Government,
which, under clause (5) of Article 371-D is the supreme .authority, having full
power to confirm or not to confirm, modify or annul the orders of the Tribunal.
Such a construction will lead to internecine conflict and contradiction, rob 1\rticles.
229 and 235 of their content make a mockery of the Directive Principles iB,
Artic1e 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 could never have intended such a strange.
result.
[53E-HJ
3. (a) In its strict, narrow sense, the phrase 'Civil service of the State' will
~
not take in members of the High Court staff and the subordinate judiciary. [49·
A.CJ
(b) Non-use of the expressions, "judicial service of the State" and "District
Judges" (which have been specifically defined in Article 236), and "Officers ai1d
Servants of the High Court", which have been designedly adopted in Articles 235
and 229, respectively, to differentiate these in the scheme of the Constitution.-.
from the other Civil Services of the State, give·s a clear indication that posts held·
by the High Court Staff or by the Subordinaite
Judiciary have been advisedly
excluded from the purview of Clause (3) of Article 371-D. [55 B-CJ
4. In such a situation, the Court must eschew the wide, literal interoretation
which will defeat or render otiose the scheme of Chapters V and VI, Part VI,
particularised in Articles 229 and 235, and instead, choose the alternative· interpretation according to which members of the High Court Staff aud the Subord~.
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A. P. HIGH COURT V. KRISHNAMURTHY
29
llate Judiciary v:ill not fall within the purviev.' of Clause (3) of .Article 371-D.
A
Such a restricted construction v.·ill ensure smooth working of the Constitution
.and harmony among its various provisions.
[53H, 54A-BJ
5. The officers and servants of the High Court and the members of the J uct1·
·cial Service, inducting District Judges, being outside the purview of Clause (3),
the non-obstante provision in c·Jause (10) of Article 371-D cannot oper&te to
·take away the administrative or judicial jurisdiction of the Chief Justice or of
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the High Court, as the case may be, under Articles 229, 235 and 226 .:lt the
Constitution in regard to a dispute or matter relating to the conditions of service
of a member of the High Court Staff or of the Subordinate Judiciary. [55D]
6. In view of the above, nothing in the Andhra Pradesh Administrative 'l'rLbunal Order, 1975, issued by the President,
confers jurisdiction,
power and
authority on the Administrative Tribunal to entertain, deal
with or decide the
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representation by a member of the High Court Staff or of the Subordinate Judiciary. The impugned orders, therefore, of the Administrative Tribuna·l in both
these appeals, were without jurisdiction, null and void.
[55 F·G]
Clv1L APPELLATE JuR1smcnoN :
77 and 278 nf 1978
Civil Appeal
No;.
2826/
Appeals by Special Leave from the Judgment and Order dated
24-8-77 and 19-9-77 of the Andhra Pradesh Administrative Tribunal
jn R.P. Nos. 203176 and 319/76 respectively.
L. N. Sinha, G. Narayana Rao and P. P. Singh for the Appellants
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in both appeals.
E
Ve1>a Purtltasarthy and A. Subba Rao for Respondent No. I in both
the appeals.
P. Ramachandra Reddy, Adv. Genl. A.P., T. V. S. Narasimhachari,
G. Narayana Rao (In C.A. 2826/77) and Mrs. Urmi/a Sirur for R. R.
2 and 4 in C.A. No. 2836/77 and R. 2 in C.A. 278/78.
The Court delivered the following Order
Respondent 1, Shri V. V. S. Krishna Murthy, may if so advised file
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a writ petition in the High Court of Andhra Pradesh for challenging the
<Jrder of his compulsory retirement passed by the Governor of Andhra
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Pradesh on S~ptember 29. 197 5. If he files the writ petition within three
weeks from today, the High Court of Andhra Pradesh and the State of
Andhra Pradesh, whom respondent 1 proposes to implead to his writ
petition, shall file their counter-affidavit, if so advised, within three weeks
after the filing of the writ petition. If respondent I desires to file
a
rejoinder he shall do so within a week after the filing of the counterH
affidavit.
The High Court shall take up the writ petition for hearing
\\~thin six weeks after the filing of the counter-affidavit.
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
The learned counsel who appeared before us for the High Court as
also the learned counsel who appeared before us for the State of Audhra
Pradesh agree that the High Court aind the State Government will not
raise any objection to the maintainability of the writ petition which respondent 1 desires to file for challenging the order of compulsory retirement., either on the ground of ]aches or of delay or on any other technical ground.
All the contesting parties before us are agreed that the writ
petition to be filed by respondent 1, as aforesaid, may be disposed of
by the High Court on merits.
The Government of Andhra Pradesh shall comply with the. order
passed by this Court on March 22, 1978 within four weeks from today.
We quash the order of the Andhra Pradesh Administrative Tribunal
dated September 19, 1977 in R.P. No.'319 of 1976. We will give our
reasons in support of that conclusion later.
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The common Judgment in C.A. 2826/77 and C.A. 278/78
(C.A.V.) of the Court was delivered by
SARKARIA, J.
This judgment will not only dispose of this Appeal
(C.A. 2826 of 1977) but also furnish reasons in support of our short
order dated August 4, 1978, by which we allowed Civil Appeal No.
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278 of 1978.
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Both these Appeals raise a common question with regard to the
interpretation, scope and impact of Article 3 71-D on Articles
226,
229 and 235 of the Constitution.
In Civil Appeal 2826 of 1977, appellant l is the Chief Justice
and appellant 2 is the High Court of Andhra Pradesh represented by
the Registrar of that Court. Respondent 1, Shri L. V. A. Dikshitulu is
a former employee of the High Court whose premature retirement is
in questi011.
Respondents 2 and 3 are the Government, and the Accountant General, respectively of Andhra Pradesh.
Respondent 1 was a permanent employee of the former Hyderabad High Court prior to November I, 1956. He was confinned in the
post of Chief Superintendent on the establishment of that High Court
on October 6, 1956. At the time of his confirmation, he was serving
on deputation, with the concurrence of the Chief Justice
of
the
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Hyderabad High Court, as Junior Law Officer in the Ministry of Law,
Government of India.
In March 1965, with the concurrence of the
Chief Justice of the High Court of Andhra Pradesh-which was the
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A. P. HIGH COURT v. KRISHNAMURTHY (Sarkwiu, J.)
31
rnccessor High Court to the Hyderabad High Court-he was appointee\ '" a temporary Deputy Secretary in the Law Department of the
Government of Andhra Pradesh.
By an order dated February 6, 1968, the State Government replaced his services at the disposal of the Chief Justice. On his reversion
from deputation, he rejoined the establishment of the High Court as
Sub-Assistant Registrar on February 8, 1968.
On that very day, the High Court received a complaint-petition
from one Smt. Promila Reddy, an Assistant Translator in the Sta•.e
Law Department, alleging misconduct on the part of the l st Respondent relating to the period during which he was working as Deputy
Secretary in the State Government.
A preliminary inquiry was conducted by the then Registrar, Shri
1\1. Ramachandra Raju (later Judge of High Court of Andhra Pradesh) , respondent 4 herein.
The Registrar submitted his preliminary
inquiry report to the then Chief Justice. After considering the report,
the ihen Chief Justice suspended the 1st respondent and ordered a
departmental inquiry against him by Mr. Justice Chinappa
Reddy.
Atter ctue inquiry the enquiring Judge found the 1st respondent guilty
of misconduct and recommended his suspension from service for three
years. The Chief Justice, however, differed with the enquiring Judge
regarding th_c punishment, and proposed to impose the punishment of
compulsory retirement after issue of a show-cause notice to that effect.
After considering the representations made by the !st respondent, the
Chief Justice by an order, dated January 3, 1969. compulsorily retired
him from service.
The !st respondent then moved the High Court under Article 226
of the Constitution by a writ petition (No. 1425 of 1969) questioning
the order ol the State Government replacing his services with the High
Court and assailing the penalty of compulsory retirement inilicted
upon him by the Chief Justice. The High Court set aside the order of
reversion of the first respondent from deputation to the High Court
staff, on the ground that there was a stigma attached thereto.
It also
set as:de the order of compulsory retirement, not on merits. but on
the ground that the recommendation of the enquiring Judge in regard
to punishment, viz. stoppage of increments, was not communicatcct to
him (!st respondent). The High Court while allowing the writ petition observed that it will be open to the State Government to take
action against him in accordance with the Andhra Pradesh Civil Services (C.C.A.) Rules pertaining to lent officers.
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SUPREME COURT REPORTS
(1979) 1 S.C.R.
After the first respondent's writ petition (No. 1425 of 1969) was
allowed, the State Government by an order, dated November 10, 1970,
reinstated the 1st respondent as Deputy Secretary with effect from
February 8, 1968, and once again replaced his services at the disposal
of the Chief Justice with effect from April 25,
1968. The State
Government did not take further departmental action on the complaint
of Smt. Promila Reddy.
The 1st respondent then filed another writ petition (No. 5442 of
1970) under Article 226 of the Constitution in the
High
Court,
impugning the order, dated November 10, 1970, of the State Government. But, the High Court dismissed the same by a judgment, dated
December 30, 1970.
The first respondent's appeals (C.A. 476 and
C.A. 1536 of 1971) against the orders of the High Court in the aforesaid writ petitions are pending in this Court.
After the dismissal of his writ petition (No. 5442/70), the first
respondent, on reinsta!ep1ent, joined duty as Sub-Assistant Registrar
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in the High Court.
Thereafter, he was promoted by the then Chief
Justice as Assistant Registrar later, be was
promoted as
Deputy
Registrar.
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In 1975. A. P. Government Servants Premature Retirement Rules,
1975 came into force.
Under the Rules, which amended
Andhra
Pradesh Liberalised Pension Rules, 1961 and the Hyderabad
Civil
Service Rules, employees of the State who have completed 25 years
of service or completed 50 years age can be prematurely retired after
3 month's notice or grant of 3 month's pay in lieu of noti.ce. Rule 19
of the Andhra Pradesh High Court Service Rules contains :i similar
provision.
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Thereafter on September 19, 1975, a Committee was constituted
under an order of the Chief Justice. It consisted of the Acting Chief
Justice and two Judges (Madhava Reddy and Ramachandra Raju, JJ.)
of the High Court.
The Committee reviewed the service record• of
the servants and officers of the High Court who had reached the age
of 50 years. The 1st respondent, Sri Dikshitulu had attained the age
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of 50 years on March 12, 1974. The Committee resolved to retire him
prematurely, among others, in public interest.
By an order,
dated
September 26, 1975, of the Acting Chief Justice, purporting to have
been passed under Article 229 of the Constitution read with Rule 19
of the Andhra Pradesh High Court Service Rules, Rule 3('.l)(a) of
Andhra Pradesh
Liberalised 'Pension Rules 1961 /Rule 292 of the
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Hyderabad Civil Service Rules and Rule 2(1) of A. P. Government
Servants Premature Retirement Rules, 1975, the 1st respondent was
pren:aturely retired from service in public interest. On April 8, 1976,
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A. J'. HIGH tbUllt v. KRISHNAMlillTHY (Sarkaria, J.)
33
:he filed '· Review Petition. The then Chief Justice rejected his Review
A
Petition.
The rejection was communicated to him by a letter, dated
September 13 1,976.
The first respondent, again, moved the High Court on the Judicial
Side by a writ petition (No. 58908 of 1976) under Article 226 of the
Constitution, praying for a writ of certiorari to quash the orders of hts
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premature retirement.
This writ petition came up for
preliminary
hearing before a Division Bench of the High Court, which by a lengthy
speaking mder (after hearing the Government pleader) , on October
_..,...
29, 1976, dismissed it on tl.1c preliminary ground that it was not maintainable because "the jurisdiction of the High Court which was hitherto
being exercised under Article 226 of the Constitution to correct orders
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of the Chief Justice on the administrative side with regard to conditions of service of officers of the High Court now stands vested in tl1e
Administrative Tribunal by reason of clause 6(1) of the Administrative Tribunal Order (made by President) and Article 371-D of the
Constitution.''
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The first respondent then on November 16, 1976,
moved
the
Andhra Pradesh Administrative Tribunal, impugning the order of his
compulsory retirement.
In that petition, the first respondent inter-alia
contended that Mr. Justice M. Ramachandra Raju, who sat in the
Committee to consider the case of the 1st respondent for premature
retirement, was biased against him and that the impugned order, dated
El
September 26, 1975, on his premature retirement was arbitrary and
capnc1ous.
The Tribunal, however, set aside the impugned order of
the 1st respondent's premature retirement made by the Chief Justice
-0n the sole ground that it is arbitrary and amounts to a penalty of
,
dismissal or removal from service and is hit by Article 311 ('.!) of the
l
Con~itution.
F
Against the aforesaid order, dated August 24, 1977, the appellants
have now come in appeal before us by special leave under Article 136
of the Constitution.
Now, the relevant facts giving rise to Civi\ Appeal No.
278 of
1978, may be set out.
The ls! respondent, Shri V. V. S. Krishnamurthy, in that appeal
G
was, at the material time, a member of the Andhra Pradesh State
Judicial Service. He attained the age of 50 years on November 24,
1974. He was prematurely retired, in public interest, by an order dated
September 29, 1975 of the State Government on the recommendation
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of the High Court.
Before the Government passed this order, a Committee of Judges appointed by the High Court, considered the entire
34
SUPREME COURT REPORTS
[1979] I S.C.R.
A
service record of the !st respondent and records of other Judicial Officers and decided to prematurely retire the first respondent in public
interest.
The first respondent filed a petitfon before the Andhra Pradesh
Administrative Tribunal, challenging the order of his premature retircB
ment made by the State Government. It was contended by him that
his service record has throughout been good. Before the Tribunal, the
High Court resisted the respondent's petition on the ground that the
order of premature retirement be based upon the over-all performance
cf the respondent and the order had been passed in public interest and
was in accordance with the Rules.
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On behalf of the 1st respondent, a memorandum was filed, in
which it was contended that since, according to the Andhra Pradesh.
State Judicial Service Rules, the High Court in the case of Subordinate
Judges is the appointing authority, the Governor has no power or jurisdiction to pass an order of premature retirement of a member of the
State Judicial Service.
The Tribunal accepted this contention and
allowed the Respondent's petition without considering the other contentions raised in the petition, and set aside the order of the respondent's
premature retirement.
Against that Order of the Tribunal, the High Court of Andhra
Pradesh came in appeal (C.A. 278 of 1978) by special leave to this
Court under Article 136 of the Constitution.
The first contention of Shri Lal'Narain Sinha, appearing for the
appellants, is that in the context of basic and fundamemal principles
underlying the Constitution relating to the judiciary including the High
Court, officers and servants of the High Court and members ot the
judicial services are outside the scope of Article 371-D of the Constitution.
It is urged that the general expressions indicating class or classe&
C'f posts in Article 371-D(3) must be given a restricted interpretation
which is in harmony with this basic scheme of the Constitution.
The thrust of the argument is that in the absence of clear, unG
equivocal words in Article 371-D(3) showing a contrary intention, the
Article cannot be construed as taking away the jurisdiction of the High
Court under Article 226 to review administrative action against a
member of the High Court staff or the Subordinate Judiciary.
Any
other construction. proceeds the argument, will militate against the
exclusiveness of the control vested in the Chief Justice under Article
H
229, and in the High Court under Article 235, over the High Court
staff or the Subordinate Judiciary, as the case may be, and will make
such control subject and subservient to the wishes of the Executive
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A P. HIGH COURT v. KRISHNAMURTHY (Sarkaria, J.)
35
Govc:rnment which, in terms of the Presidential Order constituting the
Administrative Tribunal, is the ultimate authority to confirm, vary or
annul the orders passed by the Tribunal.
In support of his contention
that the basic scheme of the Constitution seeks to ensure the ind~pen
dence of the High Court staff and the judiciary· from executive control,
learned counsel has referred to Pradyat Kumar Bose v. The Hun'ble
the Chief Justice of Calcutta High Court('); M.
Gurumuorthy
v.
Accoullla/11 General Assam & Naga!and & Oro.,(') ;
State of West
Bengal v. Nirpendra Nath Bagchi("); Baldev Raj Guliani & Ors. v.
The Punjab & Haryana High Court & Ors.('); and State of U.P. v.
Batuk Dea Pali Tripathi & Anr.(').
As against the above, Shri Vepa Sarathy, appearing for the respective first respondent in C.A. 2826 of 1977 and in C.A. 278 of 1978
submits that when his client filed a writ petition (No. 58903) of 1976
under Article 226 of the Constitution in the High Court for impugning
the order of his compulsory retirement passed by the Chief Justice, he
had serv1od, in accordance with Rule 5 of the Andhra Pradesh High
Court (Original Side) Rules, notice on the Chief Justice and the
Govern1nent Pleader, and in consequence, at the preliminary hearing
of the writ petition before the Division Bench, the Government Pleader
appeared on behalf of all the respondents including the Chief Justice
and raised a preliminary objection that the writ petition was not maintainable in view of Section 6 of the Andhra Pradesh Administrative
Tribunal Order made by the President under Article 371-D which had
taken away that jurisdiction of the High Court and vested the same
in the Administrative Tribunal.
This objection was accepted by lllc
High Court, and as a result, the writ petition was dismissed in limine.
In these circumstances-proceeds the argument-the appellant is now
precluded on principles of res judicata and 'estoppel from taking up the
position. that the Tribunal's order is without jurisdiction.
But, wh.n
Shri Sar;1thy's attention was invited to the fact that no :1oticc ·x:Li
actually served on the Chief Justice and that the Government Pleader
who had raised this objection, had not been instructed by the Chic!
Justice or the High Court to put in appearance on their behalf. the
counse] did not pursuo this contention further.
Moreover, this is a
pure question of law depending upon the interpretation of Article
371-0.
If the argument holds good, it will make the decision of the
(I) [1955] (2) SC.R. 1331.
(2)
[1971] Supp. S.C.R. 420.
(3)
[19661 (IJ S.C.R. 771.
(4) [1977] (I) S.C.R. 425.
(5) [l978j(2)S.C.C.102- A.l.R.1978S.C. Ill.
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[1979] J S.C.R.
A Tribunal as having been given by an authority suffering from inherent
lack of jurisdiction.
Such a decision cannot be sustained merely by
the doctrine of res judicata or estoppel as urged in this case.
In the alternative, Shri Sarathy submitted that the subject-matter
of this case will fall within the purview of sub-clause ( c) of Clause (3 J
B
of Article 371-D, because (i) compulsory retirement is a condition of
service, and (ii) the 1st respondent was a person appointed to a post
in a "civil service of the State" within the contemplation of the said
'
a a use.
According to Shri Sarathy, even if an order issued by the
President under Clause (3) of article 371-D, abridges, curtails or takes
...._,.
away the powers vested in the Chief Justice under Article 229, or in
C
the High Court under Articles 226 and 235, or is contrary to the constitutional scheme of securing independence of the judiciary, such a result
was intended to be brought about by the amendment of the Constitution
as is clear from the 11011-obstante provision in Clause (10) of this
Article.
Shri Sarathy further invited our attention to the definition ot
the expression "public post" given in the order of the President issued
D
under Article 371-D(3). This definition, according to the learned
counsel. is wide enough to include all posts held by the staff of the
High Court and the Subordinate Judiciary.
To appreciate the contentions canvassed before as, it is necessary,
at the outset, to have a look at the constitutional scheme delineated in
E
Chapters V and VI (Part IV), in general, and the content of Article
229 and 235, in particular.
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Chapter V is captioned : ''The High Courts in
the States". It
provides for various matters relating to High Courts, such as, constitution of High Courts (Article 216), Appointment and Conditions of the
office of a Judge (Art. 217), Salaries of Judges (Art. 221), Transfer
of Judges (Art. 222), Jurisdiction of existing High Courts and the
powers of the Judges thereof in relation to the administration of justice
in the Court, including the power to make rules of Court and to
regulat~ the sittings of the Court (Art. 225).
Article 226 gives power
to High Court to issue certain Writs against any Government for the
enforcement of fundamental rights and for the redress of any substantial
injury arising by reason of any substantive or procedural illegality.
Article 228 confers power on a High Court to withdraw to its own
file cases involving a substantial question of law as to the interpretation
of the Constitution.
Then comes the crucial provision in Article 229,
which is the fulcrum of the scheme of this Chapter.
Article 229 bears
the marginal heading : "Officers and Servants and the expenses of High
Courts".
Clause ( 1) of the Article provides that "appointments of
officers and servants of a High Court shall be made by the Chief
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A. P. HJGH COURT v. KRISHNAMURTHY (Sarkaria, J.)
37
Justice of the Court or such other Judge or Officer of the Court as he
may direct".
Then there is a proviso to this clause with which we
are not concerned in the instant case.
Clause (2) empowers the
Chief Justice or some other Judge or Officer authorised by him to
make rules prescribing the conditions of service of officers and servants
of the High Court. This power, of course, is "subject to the provisions
of any Jaw made by the Legislature of the State".
Then, there is a
proviso to this Clause, also, which requires that the "Rules made by
the Chief Justice or the Judge or Officer authorised by him under this
Clause shall so far as they relate to salaries, allowances, leave or
pensions, require the approval of the Governor of the State.
Clause
(3) makes the administrative expenses of a High Court, including all
salaries, allowances and pensions payable to or in respect of the officers
and servants of the Court, a charge upon the Consolidated Fund of
the State.
Now. let us see what is the ambit and scope of the power of
"appointment" in Article 229(1). Jn 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 axiom that the
greater includes the less.
This cardinal canon of interpretation underlies Section J 6 of th" General Clauses Act which has been made applicable by Article 3 I 7 ( 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, suspensiou, reductio11 in rank, compulsory
retirement etc., including the power to prescribe their conditions of
service, the sole preserve of the Chief Justice, and
no
extraneous
executive authority can interfere with the exercise of that power by the
Chief Justice or his nominee, except to a very limited extent indicated
in the Provisos.
In conferring such exclusive and supreme powers on
the Chief Justice the object which the Founding Fathers had in view.
was to ensure independence of the High Court.
The nature and scope of the powers of the Chief Justice under
Article 229 has been the subject of several decisions of this Court.
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In Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta
(supra), two questions among others, came up for consideration : (d
Whether the Chief Justice of a High Court has the power to dismiss
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from service an officer of the High Court.
(ii) If so,
whether the
Chief Justice could pass an order of such dismissal without previous
38
SUPREME COURT REPORTS
[] 979] 1 S.C.R.
A
consultation with the Public Service Commission, as
provided
by
Article 320 of the Constitution.
The Court answered both the
questions in the affirmative.
Dealing with the second question, the Court pointed out that
members of the High Court staff arc not .. persons serving under the
B
Government
of a State", and that this phrase-used
in
Article
320( 3) ( c )-.. seems to have reference to such persons in respect ol
whom the administrative control is vested in the respective executive
Government functioning in the name of the President or of the Governor". It was held that the servants and officers of the High Court
\
do not fall within the scope of this phrase "because in respect ot
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them the administrative control is clearly vested in the Chief Justice
--_.,
who under the Constitution, has the power of appointment and removal
and of making rules for their conditions of service". It was further
observed : "The fact that different phrases have been nsed in the relevant sections of the Government of India Act ( 1935) and the Constitution relating to the constitutional safeguards in this behalf ~ppears
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to be meant to emphasise the differentiation of the services of the High
Court fron1 other services.,.
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" .... Therefore, both on the ground that Article 320(3) (c) would
be contrary to the implication of Article 229 and on the ground that·
the language thereof is not applicable to the High Court staff, we C1rc
of the opinion that for the dismissal of the appellant by the Chief
Justice, prior consultation with the Public Service Commission was
not necessary."
It was, however, conceded that for the purposes of Article 311.
t11e phrase "a person who is a member of a civil service of a State··
used in that Article includes the officers and servants of the High
Court.
The powers of Chief Justice under Article 229 again came up !or
consideration before this Court in M. Gurumoor1hy v. Accountant
General Assam & Nagaland & Ors. (supra).
The
Stenographers'
Service in the High Court was reorganised.
Under the reorganisation
scheme, one of these posts created with the sanction of the State
Government, was to be that qf Selection Grade Stenographer.
On
May 7, 1959, the Chief Justice appoiuted the appellant as Secretarycum-Selection Grade Stenographer after merger of the two posts.
The
State Government objected that the post of Secretary could not be
merged with that of Selection Grade Stenographer.
The AccountantGeneral, under the Government's instructions, withheld the appellaut's ..
pay-slips.
The appellant moved the High Court by a writ petition,
which was dismissed.
On appeal, this Court held that the Government
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A. P. lliGH COURT v. KRISHNAMURTHY (Sarkaria, J.)
39
had authority to sanction the post, but it could not interfere with tbe
choice of the incumbent, which undoubtedly was to be of the Chiet
Justice under Article 229 of the Constitut10n. In that context, Grover J .,
speaking for the Court, neatly summed up the position, which being
apposite to the point under discussion, may be extracted :
"The unequivocal purpose and obvious intention of the
framers of the Constitution in enacting Article 229 is that in
the matter of appointments of officers and servants ot ct
High Court, it is the Chief Justice or his nominee who is
to be the supreme authority and there can be no interference
by the executive except to the limited extent that is provided
in the Article.
This was essentially to secure and maintam
the independence of the High Courts.
The anxiety of the
constitution makers to achieve that object is fully shown by
putting the administrative expenses of a High Court including
all salaries, allowances and pensions payable to or in respect
of officers and servants of the court at the same level as the
salaries and allowances of the judges of the High Court nor
can the amount of any expenditure so charged be varied
even by the legislature.
Clause ( 1) read with clause ( 2 I
of Article 229 confers exclusive pov,rer not only in the malter
of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by'
Rules on the Chief Justice of the Court.
This is subject to
any legislation by the State Legislature but only in respect
of conditions of service.
In the matter of appointn1cilts even
the legislature cannot abridge or modify the powers conferred
on the Chief Justice under clause (1).
The approval of the
Governor, as noticed in the matter of Rules. is confined only
to such rules as relate to salaries, allowai:ccs, leave or pension.
All other rules in respect of conditions of service do not
require his approval.
Even under the Government of Tndw
Act, the power to make rules relating to the conditions of
service of the staff of the High Court vested in the Chic!
Justice of the Court under Section 242 ( 4) read with Section
·241 of the Government of India Act, 1935."
In the result, this Court held that any restrictions imposed by
the Government, while communicating the sanction of the post, could
not bind the Chief Justice in view of Article 229 of the Constitution.
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We now turn to Chapter IV. It is captioned :
"Subordinate
H
Courts".