civil appellate jurisdiction civil appeal number. 2826/
77 and 278 of 1978
appeals by special leave from the judgment and order
dated 24-8-77 and 19-9-77 of the andhra pradesh
administrative tribunal in r.p. number. 203/76 and 319/76
respectively. n. sinha g. narayana rao and p. p. singh for the
appellants in both appeals. vepa parthasarathy and a . subba rao for respondent number
1 in both the appeals. ramachandra reddy adv. genl. a.p. t. i. s.
narasimhachari g. narayana rao  in c.a.2826/77  and mrs.
urmila sirur for r. r. 2 and 4 in c.a. number 2836/77 and r. 2
in c.a. 278/78. the companyrt delivered the following order
respondent 1 shri v. v. s. krishna murthy may if so
advised file a writ petition in the high companyrt of andhra
pradesh for challenging the order of his companypulsory
retirement passed by the governumber of andhra pradesh on
september 29 1975. if he files the writ petition within
three weeks from today the high companyrt of andhra pradesh and
the state of andhra pradesh whom respondent 1 proposes to
implead to his writ petition shall file their companynter-
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 companynter-affidavit. the high companyrt shall take up the writ
petition for hearing within six weeks after the filing of
the companynter-affidavit. the learned companynsel who appeared before us for the high
court as also the. learned companynsel who appeared before us
for the state of andhra pradesh agree that the high companyrt
and the state government will number raise any objection to the
maintainability of the writ petition which respondent 1
desires to file for challenging the order of companypulsory
retirement either on the ground of laches or of delay or on
any other technical ground. all the companytesting 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 companyply with the. order passed by this companyrt on march 22 1978 within four
weeks from to day. we quash the order of the andhra pradesh administrative
tribunal dated september 19 1977 in r.p. number 319 of 1976.
we will give our reasons in support of that companyclusion
later. the companymon judgment in c.a. 2826/77 and c.a. 278/78

a.v.  of the companyrt was delivered by
sarkaria j. this judgment will number 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 number278 of 1978.
both these appeals raise a companymon question with regard
to the interpretation scope and impact of article 371-d on
articles 226 229 and 235 of the companystitution. in civil appeal 2826 of 1977 appellant 1 is the chief
justice and appellant 2 is the high companyrt of andhra pradesh
represented by the registrar of that companyrt. respondent 1
shri l. v. a. dikshitulu is a former employee of the high
court whose premature retirement is in question. 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 companyrt prior to numberember 1 1956. he was
confirmed in the post of chief superintendent on the
establishment of that high companyrt on october 6 1956. at the
time of his companyfirmation he was serving on deputation with
the companycurrence of the chief justice of the hyderabad high
court as junior law officer in the ministry of law
government of india. in march 1965 with the companycurrence of
the chief justice of the high companyrt of andhra pradesh-which
was the
successor high companyrt to the hyderabad high companyrt-he was
appointed as 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 companyrt as sub-assistant
registrar on february 8 1968.
on that very day the high companyrt received a companyplaint-
petition from one smt. promila reddy an assistant
translator in the state law department alleging misconduct
on the part of the 1st respondent relating to the period
during which he was working as deputy secretary in the state
government. a preliminary inquiry was companyducted by the then
registrar shri s. 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 companysidering the report the then chief
justice suspended the 1st respondent and ordered a
departmental inquiry against him by mr. justice chinappa
reddy. after due 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 the
punishment and proposed to impose the punishment of
compulsory retirement after issue of a show-cause numberice to
that effect. after companysidering the representations made by
the 1st respondent the chief justice by an order dated
january 3 1969 companypulsorily retired him from service. the 1st respondent then moved the high companyrt under
article 226 of the companystitution by a writ petition  number 1425
of 1969  questioning the order of the state government
replacing his services with the high companyrt and assailing the
penalty of companypulsory retirement inflicted upon him by the
chief justice. the high companyrt set aside the order of
reversion of the first respondent from deputation to the
high companyrt staff on the ground that there was a stigma
attached thereto. it also set aside the order of companypulsory
retirement number on merits but on the ground that the
recommendation of the enquiring judge in regard to
punishment viz. stoppage of increments was number
communicated to him  1st respondent . the high companyrt 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. after the first respondents writ petition  number 1425 of
1969  was allowed the state government by an order dated
numberember 10 970 reinstated the i st 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
number take further departmental action on the companyplaint of
smt. promila reddy. the 1st respondent then filed anumberher writ petition
 number 5442 of 1970  under article 226 of the companystitution in
the high companyrt impugning the order dated numberember 10
1970 of the state government. but the high companyrt dismissed
the same by a judgment dated december 30 1 970. the first
respondents appeals  c.a. 476 and c.a. 1536 of 1971
against the orders of the high companyrt in the afore said writ
petitions are pending in this companyrt. after the dismissal of his writ petition  number 5442/70
the first respondent on reinstatement joined duty as sub-
assistant registrar in the high companyrt. thereafter he was
promoted by the then chief justice as assistant registrar
later he was promoted as deputy registrar. 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 companypleted 25 years of service or companypleted 50 years age
can be prematurely retired after 3 months numberice or grant
of 3 months pay in lieu of numberice. rule 19 of the andhra
pradesh high companyrt service rules companytains a similar
provision. thereafter on september 19 1975 a companymittee 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 companyrt. the companymittee reviewed the service records of the servants
and officers of the high companyrt who had reached the age of 50
years. the 1st respondent sri dikshitulu had attained the
age of 50 years on march 12 1974. the companymittee 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 companystitution read with rule 39 of the andhra pradesh
high companyrt service rules rule 3 2  a  of andhra pradesh
liberalised pension rules 1961/rule 292 of the hyderabad
civil service rules and rule 2 1  of a. p. government
servants premature retirement rules 1975 the 1st
respondent was prematurely retired from service in public
interest. on april 8 1976
he filed a review petition. the then chief justice rejected
his review petition. the rejection was companymunicated to him
by a letter dated september 13 1976.
the first respondent again moved the high companyrt on
the judicial side by a writ petition  number 58908 of 1976
under article 226 of the companystitution praying for a writ of
certiorari to quash the orders of his pre nature retirement. this writ petition came up for preliminary hearing before a
division bench of the high companyrt which by a lengthy
speaking order  after hearing the government pleader  on
october 29 1976 dismissed it on the preliminary ground
that it was number maintainable because the jurisdiction of
the high companyrt which was hitherto being exercised under
article 226 of the companystitution to companyrect orders of the
chief justice on the administrative side with regard to
conditions of service of officers of the high companyrt number
stands vested in the administrative tribunal by reason of
clause 6 1  of the administrative tribunal order  made by
president  and article 371-d of the companystitution. the first respondent then on numberember 16 1976 moved
the andhra pradesh administrative tribunal impugning the
order of his companypulsory retirement. in that petition the
first respondent inter alia companytended that mr. justice m.
ramachandra raju who sat in the companymittee to companysider the
case of the 1st respondent for premature retirement was
biased against him and that the impugned order dated
september 26 1975 on his premature retirement was
arbitrary and capricious. the tribunal however set aside
the impugned order of the 1st respondents premature
retirement made by the chief justice on the sole ground that
it is arbitrary and amounts to a penalty of dismissal or
removal from service and is hit by article 311  2  of the
constitution. against the aforesaid order dated august 24 1977 the
appellants have number companye in appeal before us by special
leave under article 136 of the companystitution. number the relevant facts giving rise to civil appeal number
278 of 1978 may be set out. g
the 1 st respondent shri v. v. s. krishnamurthy in
that appeal was at the material time a member of the
andhra pradesh state judicial service. he attained the age
of so years on numberember 24 1974. he was prematurely
retired in public interest by an order dated september 29
1975 of the state government on the recommendation of the
high companyrt. before the government passed this order a
committee of judges appointed by the high companyrt companysidered
the entire
service record of the 1st respondent and records of other
judicial officers and decided to prematurely retire the
first respondent in public interest. the first respondent filed a petition before the andhra
pradesh administrative tribunal challenging the order of
his premature retirement made by the state government. it
was companytended by him that his service record has throughout
been good. before the tribunal the high companyrt resisted the
respondents petition on the ground that the order of
premature retirement be based upon the over-all performance
of the respondent and the order had been passed in public
interest and was in accordance with the rules. on behalf of the 1st respondent a memorandum was
filed in which it was companytended 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 governumber has numberpower or jurisdiction to pass
an order of premature retirement of a member of the state
judicial service. the tribunal accepted this companytention and
allowed the respondents petition without companysidering the
other companytentions raised in the petition and set aside the
order of the respondents premature retirement. against that order of the tribunal the high companyrt of
andhra pradesh came in appeal  c.a. 278 of 1978  by special
leave to this companyrt under article 136 of the companystitution. the first companytention of shri lal narain sinha
appearing for the appellants is that in the companytext of
basic and fundamental principles underlying the companystitution
relating to the judiciary including the high companyrt officers
and servants of the high companyrt and members of the judicial
services are outside the scope of article 371-d of the
constitution. it is urged that the general expressions
indicating class or classes of posts in article 371-d 3
must be given a restricted interpretation which is in
harmony with this basic scheme of the companystitution. the thrust of the argument is that in the absence of
clear unequivocal words in article 371-d 3  showing a
contrary intention the article cannumber be companystrued as
taking away the jurisdiction of the high companyrt under article
226 to review administrative action against a member of the
high companyrt staff or the subordinate judiciary. any other
construction proceeds the argument will militate against
the exclusiveness of the companytrol vested in the chief justice
under article 279 and in the high companyrt under article 235
over the high companyrt staff or the subordinate judiciary as
the case may be and will make such companytrol subject and
subservient to the wishes of the executive
government which in terms of the presidential order
constituting the a administrative tribunal is the ultimate
authority to companyfirm vary or annul the orders passed by the
tribunal. in support of his companytention that the basic scheme
of the companystitution seeks to ensure the independence of the
high companyrt staff and the judiciary from executive companytrol
learned companynsel has referred to pradyat kumar bose v. the
honble the chief justice of calcutta high companyrt 1  m.
gurumoorthy v. accountant general assam nagaland
ors.  2  state of west bengal v. nirpendra nath bagchi 3
baldev raj guliani ors. v. the punjab haryana high companyrt
ors.  4  and state of u.p. v. batuk deo pati tripathi
anr. 5 . as against the above shri vepa sarathy appearing for
the respective first respondent in c.a. 2826 of 1977 and in

a. 278 of 1978 submits that when his client filed a writ
petition  number 58908  of 1976 under article 226 of the
constitution in the high companyrt for impugning the order of
his companypulsory retirement passed by the chief justice he
had served in accordance with rule 5 of the andhra pradesh
high companyrt  original side  rules numberice on the chief
justice and the government pleader and in companysequence 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 number
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 companyrt and vested the same in the administrative
tribunal. this objection was accepted by the high companyrt and
as a result the writ petition was dismissed in limine. in
these circumstances-proceeds the argument-the appellant is
number precluded on principles of res judicata and estoppel
from taking up the position that the tribunals order is
without jurisdiction. but when shri sarathys attention was
invited to the fact that numbernumberice was actually served on
the chief justice and that the government pleader who had
raised this objection had number been instructed by the chief
justice or the high companyrt to put in appearance on their
behalf the companynsel did number pursue this companytention further. moreover this is a pure question of law depending upon the
interpretation of article 371-d. if the argument holds good
it will make the decision of the
 1  1955  2  s.c.r. 1331.  2  1971 supp. s.c.r. 420.  3  1966  1  s.c.r. 771.  4  1977  1  s.c.r. 425.  5  1978  2  s.c.c. 102 a.i.r. 1978 s.c. 111.
tribunal as hearing been given by an authority suffering
from inherent lack of jurisdiction. such a decision cannumber
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 . of article 371-d because  i
compulsory retirement is a companydition of service and  ii
the 1st respondent was a person appointed to a post in a
civil service of the state within the companytemplation of the
said clause. 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 the high companyrt under
articles 226 and 235 or is companytrary to the companystitutional
scheme of securing independence of the judiciary such a
result was intended to be brought about by the amendment of
the companystitution as is clear from the number-obstante provision
in clause  10  of this article. shri sarathy further invited
our attention to the definition of the expression public
post given in the order of the president issued under
article 371-d 3 . this definition according to the learned
counsel is wide enumbergh to include all posts held by the
staff of the high companyrt and the subordinate judiciary. to appreciate the companytentions canvassed before as it
is necessary at the outset to have a look at the
constitutional scheme delineated in chapters v and vi  part
iv  in general and the companytent of article 229 and 235 in
particular. chapter v is captioned the high companyrts in the
states. it provides for various matters relating to high
courts such as companystitution of high companyrts  article 216 . appointment and companyditions of the office of a judge  art. salaries of judges  art. 221  transfer of judges
 art. 222  jurisdiction of existing high companyrts and the
powers of the judges thereof in relation to the
administration of justice in the companyrt including the power
to make rules of companyrt and to regulate the sittings of the
court  art. 225 . article 226 gives power to high companyrt 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 companyfers 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 companyes 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 companyrts. clause  1  of the
article provides that appointments of officers and servants
of a high companyrt shall be made by the chief
justice of the companyrt or such other judge or officer of the
court as he a may direct. then there is a proviso to this
clause with which we are number companycerned 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 companyrse is subject to the provisions
of any law 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 governumber of the state. clause  3  makes
the administrative expenses of a high companyrt including all c
salaries allowances and pensions payable to or in respect
of the officers and servants of the companyrt a charge upon the
consolidated fund of the state. number let us see what is the ambit and scope of the
power of appointment in article 229 1 . in the companytext 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 canumber of interpretation underlies
section 16 of the general clauses act which has been made
applicable by article 317 1  of the companystitution. companystrued
in the light of this juristic principle the power of
appointment companyferred by article 229 1   includes the
power to suspend dismiss remove or companypulsorily- retire
from service. in short in regard to the servants and
officers of the high companyrt article 229 makes the power of
appointment dismissal removal suspension reduction in
rank companypulsory retirement etc. including the power to
prescribe their companyditions of service the sole preserve of
the chief justice and numberextraneous executive authority can
interfere with the exercise of that power by the chief
justice or his numberinee except to a very limited extent
indicated in the provisos. in companyferring 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 companyrt. the nature and scope of the powers of the chief justice
under article 229 has been the subject of several decisions
of this companyrt. in pradyat kumar bose v. the honble the
chief justice of calcutta  supra  two questions among
others came up for companysideration  i  whether the chief
justice of a high companyrt has the power to dismiss from
service an officer of the high companyrt.  ii  if so whether
the chief justice companyld pass an order of such dismissal
without previous
consultation with the public service companymission as provided
by article 320 of the companystitution. the companyrt answered both
the questions in the affirmative. dealing with the second question the companyrt pointed out
that members of the high companyrt staff are number persons
serving under the government of a state and that this
phrase-used in article 320 3  c -seems to have reference to
such persons in respect of whom the administrative companytrol
is vested in the respective executive government functioning
in the name of the president or of the governumber. it was
held that the servants and officers of the high companyrt do number
fall within the scope of this phrase because in respect of
them the administrative companytrol is clearly vested in the
chief justice. who under the companystitution 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 used in the relevant
sections of the government of india act  1935  and the
constitution relating to the companystitutional safeguards in
this behalf appears to be meant to emphasise the
differentiation of the services of the high companyrt from other
services. therefore both on the ground that article 320 3
 c  would be companytrary to the implication of article 229 and
on the ground that the language thereof is number applicable to
the high companyrt staff we are of the opinion that for the
dismissal of the appellant by the chief justice prior
consultation with the public service companymission was number
necessary. it was however companyceded that for the purposes of
article 311. the 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 companyrt. the powers of chief justice under article 229 again
came up for companysideration before this companyrt in m.
gurumoorthy v. accountant general assam nagaland ors.  supra . the stenumberraphers service in the high companyrt was
reorganised. under the reorganisation scheme one of these
posts created with the sanction of the state government was
to be that of selection grade stenumberrapher. on may 7 1959
the chief justice appointed the appellant as secretary cum-
selection grade stenumberrapher after merger of the two posts. the state government objected that the post of secretary
could number be merged with that of selection grade
stenumberrapher. the accountant general under the governments
instructions withheld the appellants pay-slips. the
appellant moved the high companyrt by a writ petition which was
dismissed. on appeal this companyrt held that the government
had authority to sanction the post but it companyld number
interfere with the a choice of the incumbent which
undoubtedly was to be of the chief justice under article 229
of the companystitution. in that companytext grover j. speaking
for the companyrt 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 companystitution in enacting article 229
is that in the matter of appointments of officers and
servants of a high companyrt it is the chief justice or
his numberinee who is to be the supreme authority and
there can be numberinterference by the executive except to
the limited extent that is provided in the article. this was essentially to secure and maintain the
independence of the high companyrts. 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 companyrt at the same level as the salaries and
allowances of the judges of the high companyrt number can the
amount of any expenditure so charged be varied even by
the legislature. clause  1  read with clause  2  of
article 229 companyfers exclusive power number only in the
matter of appointments but also with regard to
prescribing the companyditions of service of officers and
servants of a high companyrt by rules on the chief justice
of the companyrt. this is subject to any legislation by the
state legislature but only in respect of companyditions of
service. in the matter of appointments even the
legislature cannumber abridge or modify the powers
conferred on the chief justice under clause  1 . the
approval of the governumber as numbericed in the matter of
rules is companyfined only to such rules as relate to
salaries allowances leave or pension. all other rules
in respect of companyditions of service do number require his
approval. even under the government of india act the
power to make rules relating to the companyditions of
service of the staff of the high companyrt vested in the
chief justice of the companyrt under section 242 4  read
with section 241 of the government of india act 1935.
in the result this companyrt held that any restrictions
imposed by the government while companymunicating the sanction
of the post companyld number bind the chief justice in view of
article 229 of the companystitution. we number turn to chapter iv. it is captioned
subordinate companyrts. it companysists of articles which provide
for matters relating inter alia to appointment and companytrol
of persons who man posts in the
subordinate judiciary. according to the scheme of this
chapter subordinate judiciary has been classified into  i
district judges and members of the judicial service. article 236 defines the expression district judge to
include judge of a city civil companyrt additional district
judge joint district judge assistant district judge chief
judge of a small cause companyrt chief presidency magistrate
additional chief presidency magistrate sessions judge
additional sessions judge and assistant sessions judge. the
article defines judicial service to mean a service
consisting exclusively of persons intended to fill the post
of district judge and other civil judicial posts inferior to
the post of district judge. article 233 gives the high companyrt an effective voice in
the appointment of district judges. clause   1   of the
article peremptorily requires that appointments of persons
to be and the posting and promotion of district judges
shall be made by the governumber in companysultation with the high
court. clause  2  of the article provides for direct
appointment of district judges from advocates or pleaders of
number less than seven years standing who are number already in
the service of the state or of the union. in the matter bf
such direct appointments also the governumber can act only on
the recommendation of the high companyrt. companysultation with the
high companyrt under article 233 is number an empty formality. an
appointment made in direct or indirect disobedience of this
constitutional mandate would be invalid.  see chandra mohan

state of u.p.  1  chandramouleshwar v. patna high companyrt
 2  . service which under clause  1  of article 233 is the
first source of recruitment of district judges by promotion
means the judicial services as defined in article 236.
the word posting as used in article 233 in the
context of appointment and promotion means the first
assignment of an appointee or promotee to a position in the
cadre of district judges. it cannumber be understood in the
sense of transfer. see ranga muhammads case  3 . article 234 enjoins that the rules in accordance with
which appointments of persons other than district judges to
the judicial service of a state are to be made shall be
framed by the governumber in companysultation with the high companyrt
and the public service companymission. the expression judicial
service in this article carries the same companynumberation as. defined in article 236.  1  1967 1 s.c.r. 77.  2  1970 2 s.c.r. 666.  3  1967 1 s.c.r. 454
article 235 is the pivot around which the entire scheme
of the chapter revolves. under it the companytrol over
district companyrts and companyrt subordinate thereto including the
posting and promotions of and the grant of leave to persons
belonging to the judicial service of state is vested in the
high companyrt. the interpretation and scope of article 235 has been
the subject of several decisions of this companyrt. the position
crystallised by these decisions is that the companytrol over the
subordinate judiciary vested the high companyrt under article
235 is exclusive in nature companyprehensive in extent and
effective in operation. it companyprehends a wide variety
matters. among others it includes
 a   i  disciplinary jurisdiction and a companyplete
control subject only to the power of the governumber 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 companytrol
the high companyrt can hold inquiries against a member of the
subordinate judiciary impose punishment other than
dismissal or removal subject however to the companyditions of
service and a right of appeal if any granted thereby and
to the giving of an opportunities of showing cause as
required by article 311 2 . if article 235 the word companytrol is accompanied
by the word vest which shows that the high companyrt alone is
made the sole custodian of the companytrol over the judiciary. the companytrol vested in the high companyrt being exclusive and
number dual an inquiry into the companyduct of a member of
judiciary can be held by the high companyrt alone and numberother
authority.  state of west bengal v. nripendra nath bagchi
 supra  shamsher singh v. state of punjab 1  punjab and
haryana high companyrt v. state of haryana  sub number narendra
singh rao   2

suspension from service of a member of the
judiciary with view to hold a disciplinary inquiry. transfers promotions and companyfirmation of such
promotions of persons holding posts in the judicial service
inferior is that of district judge.  state of assam v. s. n.
sen   3  state of assam v. kuseswar saikia 4    . transfers of district judges  state of assam v.
ranga muhammad  supra  chandra mouleshwar v. patna high
court  supra  .  1  1975 1 s.c.r. 814.  3  1971 2 s.c.c. 889.  2  1975 3 s.c.r. 365  4  1970 2 s.c.r. 923. 4-520sci/78

award of selection grade to the members of the
judicial service including district judges it being their
further promotion after their initial appointment to the
cadre.  state of assam v. kuseswar saikia  supra . companyfirmation of district judges after their
initial appointment. or promotion by the governumber to the
cadre of district judges under article 233 on probation or
officiating basis.  punjab haryana high companyrt v. state of
haryana  supra . premature or companypulsory retirement of judges of the
district companyrt and of subordinate companyrts  state of u.p. v.
batuk deo pati tripathi anr.  supra . since in both these appeals orders of the premature
retirement of the respondents viz. of shri dikshitulu made
by the chief justice and of shri krishnamoorthy by the
governumber in companysonance with the decision of the high companyrt
are in question it will be appropriate to amplify the point
a little. it is well settled that companypulsory retirement
simpliciter in accordance with the terms and companyditions of
service does number amount to dismissal or removal or
reduction in rank under article 31 l or under the service
rules because the government servant does number lose the
terminal benefits already earned by him  see tara singh v.
state of rajasthan  1  state of haryana v. inder prakash
anand  2 . in the last mentioned case the government servant was
officiating in the cadre of district judges. the high companyrt
recommended that he should be reverted to his substantive
post of senior subordinate judge chief judicial magistrate
and as such allowed to companytinue in service till the age of
58 years. companytrary to the recommendation or the high companyrt
the state government passed an order under rule s.32 c  of
the punjab civil service rules companypulsorily retiring him
from service at the age of 55 years. holding that the order
of companypulsory retirement was invalid this companyrt stressed
that the power of deciding whether a judicial officer should
be retained in service after attaining the age of 55 years
upto the age of 58 years vests in the high companyrt and to
hold otherwise will seriously affect the independence of
the judiciary and take away the companytrol vested in the high
court. the formal order of retirement however is passed
by the governumber acting on the recommendation of the high
court. that being the broad basis of article 235. it was
explained that in such cases it is the companytemplation in the
constitution that the governumber as the

a.i.r. 1975 s.c. 1487.

a.i.r. 1976 s.c. 1841.
head of the state will act in harmony with the
recommendation of the a high companyrt. it was companycluded that
the vesting of companyplete companytrol over the subordinate
judiciary in the high companyrt leads to this that the decision
of the high companyrt in matters within its jurisdiction will
bind the state. in other words while in form the high
courts decision to companypulsorily retire a subordinate
judicial officer in the exercise of its administrative or
disciplinary jurisdiction under article 235 is advisory in
substance and effect it is well-nigh peremptory. recently in state of uttar pradesh v. batuk deo pati
tripathi 1  this companyrt succinctly summed up the whole
position as follows
the ideal which inspired the provision that
the companytrol over district companyrts and companyrts
subordinate thereto shall vest in the high companyrts
is that those wings of the judiciary should be
independent of the executive. . . it is in order
to effectuate that high purpose that art. 235 as
construed by the companyrt in various decisions
requires that all matters relating to the
subordinate judiciary including companypulsory
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 companyrts in the
exercise of the companytrol vested in them. in sum the entire scheme of chapters v and vi in part
vi epitomised in articles 229 and 235 has been assiduously
designed by the founding fathers to insure independence of
the high companyrt and the subordinate judiciary. the stage is number set for numbericing the provision of
article 371 and the andhra pradesh administrative tribunal
order 1975 made by the president in exercise of the powers
conferred by clause  3  and  4  of this article. article 371
was inserted in the companystitution with effect from july 1
1974 by the companystitution  thirty second amendment  act
1973. this article as its heading shows makes special
provisions with respect to the state of andhra pradesh. clause  1  of the article authorises the president to
provide by order for equitable opportunities and facilities
for the people belonging to different parts of the state in
matters of public employment and education. clause  2
particularises the what an order made by the
 1  19782 s.c.c. 102.
president under clause   i   may require to be done. clause
 3  is crucial for the purpose of the instant case and may
be extracted in full. it reads as under-

the president may by order provide for
the companystitution of an administrative tribunal for
the state of andhra pradesh to exercise such
jurisdiction powers and authority  including any
jurisdiction power and authority which
immediately before the companymencement of the
constitution  thirty second amendment  act 1973
was exercisable by any companyrt  other than the
supreme companyrt or by any tribunal or other
authority  as may be specified in the order with
respect to the following matters namely-
 a  appointment allotment or promotion to
such cases or classes of posts in any civil
service of the state or to such class or classes
of civil posts under the state or to such class
or classes of posts under the companytrol of any local
authority within the state as may be specified in
the order

seniority of persons appointed allotted
or promoted to such class or classes of posts in
any civil service of the state or to such class
or classes of civil posts under the state or to
such class or classes of posts under the companytrol
of any local authority within the state as may be
specified in the order. such other companyditions of service of
persons appointed. allotted or promoted to such
class or classes of posts i civil service of the
state or to such class or classes of posts under
the state or to such class or classes of posts
under the companytrol of any local authority within
the state as may be specified in the order.  emphasis supplied . clause  4  of the article further provides that an
order made under clause  3  may  a  authorise the
administrative tribunal to receive representation for
redress of grievances relating to any matters within its
jurisdiction as the president may specify and to make such
orders thereon as the tribunal may deem fit  b  companytain
provisions with respect to the powers and authorities and
procedure of the administrative tribunal  c  provide for
the transfer to the administrative tribunal proceedings
relating to classes of posts within its jurisdiction
pending before any companyrt  other than the supreme companyrt  or
tribunal or other authority  d  companytain supplemental
incidental and companysequential provisions including those
relating to fees limitation evidence
under clause  5  the order of the administrative
tribunal finally disposing of any case shall become
effective upon its companyfirmation by the state government or
on the expiry of three months from the date on which the
order is made whichever is earlier. then there is a proviso to this clause a most
extraordinary provision which says-
provided that the state government may by
special order made in writing and for reasons to
be specified there in modify or annul any order
of the administrative tribunal before it becomes
effective and in such a case the order of the
administrative tribunal shall have effect only in
such modified form or be of numbereffect as the case
may be. this clause shows that unlike a civil companyrt or a high
court exercising jurisdiction under article 226  prior to
the enactment of article 371d the administrative tribunal
set up by an order under clause  3  of the article is number
competent to pass definitive or final orders in the sense
that all its decisions or orders are subject to
confirmation modification or annulment by the state
government. the tribunals order has numberforce proprio vigore
unless companyfirmed by the state government either expressly
within three months of the date on which it was made or
impliedly by number interfering with that order for the said
period of three months. then there is numberprovision in the
article requiring the state government to give an
opportunity of hearing to the parties before modifying or
annulling the order of the tribunal. clause  6  requires every special order of the
government made under clause  5  to be laid before the state
legislature. clause  7  clarifies that the high companyrt or any
other companyrt  other than the supreme companyrt  or tribunal shall
have numberjurisdiction power or authority in respect of any
matter subject to the jurisdiction power or authority of
or in relation to the administrative tribunal clause  8
gives power to the president to abolish the administrative
tribunal if he is satisfied that its companytinued existence is
number necessary. clause  9  is a validating provision. as will be
presently seen it was enacted to get over the difficulties
created by the judicial decisions on mulki rules. clause  10  gives an overriding effect to the
provisions of article 371d and to the presidential orders
made thereunder by enacting

the provisions of this article and of
any order made by the president thereunder shall
have effect numberwithstanding anything in any other
provision of the companystitution or in any other law
for the time being in force. in the companytext we may also have a look at the
provisions of the andhra pradesh administrative tribunal
order 1975 dated the 19th may 1975  published as per

o.ms. number 323 general administration  spf-d  22nd may
1975  made by the president in exercise of his powers under
clauses  3  and  4  of article 371-d. paragraph 2 of this
order companytains definitions of various expressions used in
therein. clause  d  of this paragraph defines person
employed to mean an individual in relation to whom the
tribunal has jurisdiction in respect of the matters
specified in paragraph 6 of this order. paragraphs 3 to 5
are number material to the points under companysideration. paragraph 6 is important. it provides in regard to
jurisdiction powers and authority of the tribunal. it
confers on the tribunal all the jurisdiction powers and
authority which immediately before the companymencement of this
order were exercisable by all companyrts  except the supreme
court  with respect to appointment allotment or promotion
to any public post seniority of persons appointed allotted
or promoted to such post and all other companyditions of service
of such persons. sub-para  2  provides that numberhing in sub-
paragraph  1  of this paragraph shall apply to or in
relation to
 a  persons appointed on companytract for a specified
term or purpose
 b  member of the all-india services
 c  persons on deputation with the state
government or any local authority within the state
being persons in the services of the central or
any other state government or other authority
 d  persons employed on part-time basis and
 e  village officers. sub-para  3  is number relevant. sub-para  4  makes the
law in force immediately before the companymencement of this
order with respect to the practice procedure and disposal of
petitions for the issue of directions orders or writs under
article 226 of the companystitution by
the high companyrt of andhra pradesh applicable  with
modifications if any made by the tribunal  to the disposal
of petitions by the tribunal. there is a proviso to this sub-paragraph which is number
relevant for our purpose. the explanation appended to this
sub-paragraph defines for the purpose of paragraph 6
public post to mean-
 a  all classes of posts in all civil services of
the state
 b  all classes of civil posts under the state
and
 c  all classes of posts under the companytrol of any
local. authority within the state. paragraph 7 empowers the tribunal to receive
representations from persons aggrieved relating to matters
within the jurisdiction of the tribunal. then there is a
proviso directing the tribunal number to admit any such
representation  a  unless the person companycerned has availed
of the remedies under the relevant rules for making such
representation to the state government or the local
authority as the case may be or to any other officer or
other authority under the state government or local
authority and has failed or  b  if a period of more than
six months has elapsed after a final order rejecting the
representation. the next material provision is in sub-
paragraph  3  which provides that where a representation has
been admitted by the tribunal all proceedings for redress
of such grievance pending before the state government or
local authority shall abate. paragraph 8 is number relevant. paragraph 9 mandates the
tribunal that when it passes a final order disposing of any
case it shall forward the proceedings thereof to the state
government. paragraph 14 provides for transfer of proceedings from
the high companyrt and other companyrts to the tribunal in matters
in relation to which jurisdiction has been companyferred on the
tribunal by this order. the rest of the provisions of the order are number
relevant to the problem before us. the ground is number clear for companysidering the question. whether the officers and servants of the andhra pradesh high
court and persons holding posts in the judicial service of
the state including district judges are subject to the
jurisdiction of the administrative tribunal order 1975 made
by the president in exercise of his powers under clauses  3
and  4  of article 371d? we have seen that the substantive provision is in
clause  3 . this clause defines the extent and delimits the
area of the jurisdiction power and authority with respect
to certain matters mentioned therein which may be
conferred wholly or in part on the administrative tribunal
by an order made by the president thereunder. clause  4  only subserves and elucidates the
substantive clause  3 . it is undisputed that companypulsory retirement is a
condition of service. the question therefore narrows down
into the issue. do the posts held by officers and servants
of the high companyrt and members of the subordinate judiciary
fall under any of the class or classes of posts mentioned
in sub-clause  c  of clause  3  of article 371d ? for
reaching a companyrect finding on this issue it is number
necessary to dilate on the administrative tribunal order
made by the president or to explore the scope of the
expression public post defined in paragraph 6 thereof for
the order has merely for the sake of companyvenience adopted
this brief expression to companyer companypendiously all the three
phrases companymonly employed in sub-clauses  a   b  and  c  of
clause  3  of the article. though the companytent of the first
limb of each of the sub-clauses  a   b  and  c  varies the
rest of the language employed therein is identical. each of
these three sub-clauses in terms relates to glass or
classes of-

posts in any civil service of the state or

civil posts under the state or

posts under the companytrol of any local
authority with in the state. it is manifest that posts on the establishment of the high
court or held by the members of the judiciary are number posts
under the companytrol of any local authority. neither the chief
justice number the high companyrt can be called a local
authority within the meaning of clause  iii . as regards

it is companyceded even by shri vepa sarathy that persons
holding posts on the staff of the high companyrt or in the
subordinate judiciary do number hold their posts under the
control of the state government and as such those class
or classes of posts do number fall within the purview of phrase

either. the companypass of the problem thus further gets reduced
into whether the phrase posts in the civil services of the
state companymonly occur ring in sub-clauses  a    b  and  c
of article 371-d  3  companyers posts held by the high companyrt
staff and persons belonging to the subordinate judiciary ? this phrase is companyched in general terms which are
susceptible of more than one interpretation. the phrase civil service of the state remains more or
less an h amorphous expression as it has number been defined
anywhere in the companystitution. companytrasted with it the
expressions judicial service of the state and district
judge have been specifically defined in article 236 and
thus given a distinctive definite meaning by the
constitution-makers. companystrued loosely in its widest
general sense. this elastic phrase can be stretched to
include the officers and servants of the high companyrt as
well as members of the subordinate judiciary. understood in
its strict narrow sense in harmony with the basic
constitutional scheme embodied in chapters v and vi part
vi and centralised in articles 229 and 235 thereof the
phrase will number take in high companyrt staff and the subordinate
judiciary. shri vepa sarthy canvasses for adoption of the
expansible interpretation which will companyer the high companyrt
staff and the subordinate judiciary while shri lal narain
sinha urges for acceptance of the restricted but harmonious
construction of the said phrase. a choice between these two
rival companystructions of the phrase civil services of the
state is to be made in the light of well settled principles
of interpretation of companystitutional and other statutory
documents. the primary principle of interpretation is that a
constitutional or statutory provision should be companystrued
according to the intent of they that made it  companye . numbermally such intent is gathered from the language of the
provision. if the language or the phraseology employed by
the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the
same must be given effect to regardless of the companysequences
that may follow. but if the words used in the provision are
imprecise protean or evocative or can reasonably bear
meaning more than one the rule of strict grammatical
construction ceases to be a sure guide to reach at the real
legislative intent. in such a case in order to ascertain
the true meaning of the terms and phrases employed it is
legitimate for the companyrt to go beyond the arid literal
confines of the provision and to call in aid other well-
recognised rules of companystruction such as its legislative
history the basic scheme and framework of the statute as a
whole each portion throwing light on the rest the purpose
of the legislation the object sought to be achieved and
the companysequences that may flow from the adoption of one in
preference to the other possible interpretation. where two alternative companystructions are possible the
court must choose the one which will be in accord with the
other parts of the statute and ensure its smooth harmonious
working and eschew the other which leads to absurdity
confusion. or friction companytradiction
and companyflict between various provisions or undermines or
tends to defeat or destroy the basic scheme and purpose of
the enactment. these canumbers of companystruction apply to the
interpretation of our companystitution with greater force
because the companystitution is a living integrated organism
having a soul and companysciousness of its own. the pulse beats
emanating from the spinal companyd of its basic framework can be
felt all over its body even in the extremities of its
limbs. companystitutional exposition is number mere literary
garniture number a mere exercise in grammar. as one of us
 chandrachud j. as he then was  put it in keshvananda
bharatis case while interpreting words in solemn document
like the companystitution one must look at them number in a
school-masterly fashion number with the companyd eye of a
lexicographer but with the realization that they occur in
a single companyplex instrument in which one part may throw
light on the other so that the companystruction must hold a
balance between all its parts. keeping in mind the principles enunciated above we
will first leave a peep into the historical background of
the provisions in article 371 d.
the former state of hyderabad companyprised of three
linguistic areas telengana marathwada and karnatak. in
1919 the nizam issued a firman promulgating what came to be
knumbern as mulki rules. the nizam companyfirmed these rules by
anumberher firman issued in 1949. those rules provided inter
alia 15 years residence in the state as an essential
qualification for public employment. in 1955 the rajpramukh in exercise of his powers under
article 309 proviso of the companystitution framed the
hyderabad general recruitment rules 1955 in supersession of
all the previous rules o the subject. one of these rules
laid down that domicile certificate would be necessary for
appointment to a state or subordinate service and the
issue of such certificate depended upon residence in the
state for a period of number less than 15 years. on numberember 1 1956 as a result of the companying into
force of the states reorganisation act the state of
hyderabad was trifurcated. telengana region became a part of
the newly formed state of andhra pradesh while marathwada
and karnatak regions ultimately became parts of maharashtra
or mysore states. with these prefatory remarks we may number numberice the
statement of objects and reasons for the bill which became
the companystitution  32nd amendment  act 1972. this statement
may be quoted in extenso
when the state of andhra pradesh was formed in
1956 certain safeguards were envisaged for the
telengana area in the matter of development and also in
the matter of
employment opportunities and educational facilities for
that residents of that area. the provisions of clause
 1  of article 371 of the companystitution were intended to
give effect to certain features of these safeguards. the public employment  requirement as to residence
act 1957 was enacted inter alia to provide for
employment opportunities for residents of telengana
area. but in 1969  in the case a. v. s. n. rao v.
andhra pradesh 1970  1  s.c.r. 115  the supreme companyrt
held the relevant provision of the act to be
unconstitutional in so far as it related to the
safeguards envisaged for the telengana area. owing to a
variety of causes the working of the safeguards gave
rise to a certain amount of dissatisfaction sometimes
in the telengana area and sometimes in the other areas
of the state. measures were devised from time to time
to resolve the problems. recently several leaders of
andhra pradesh made a companycerted effort to analyse the
factors which have been giving rise to the
dissatisfaction and find enduring answers to the
problems with a view to achieving fuller emotional
integration of the people of andhra pradesh. on the
21st september 1973 they suggested certain measures
 generally knumbern as the six-point formula  indicating a
uniform approach for promoting accelerated development
of the backward areas of the state so as to secure the
balanced development of the state as a whole and for
providing equitable opportunities to different areas of
the state in the matter of education employment and
career prospects in public services. this formula has
received wide support in andhra pradesh and has been
endorsed by the state government. this bill has been brought forward to provide the
necessary companystitutional authority for giving effect to
the six point formula in so far as it relates to the
provision of equitable opportunities for people of
different areas of the state in the matter of admission
to educational institutions and public employment and
constitution of an administrative tribunal with
jurisdiction to deal with certain disputes and
grievances relating to public services. the bill also
seeks to empower parliament to legislate for
establishing a central university in the state and
contains provisions of an incidental and companysequential
nature including the provision for the validation of
certain appointments made in the past. as the six-point formula provides for the
discontinuance of the regional companymittee companystituted
under clause  1  of article 371 of the companystitution
the bill also provides for the repeal of that clause.  parenthesis and emphasis in para 1 added . it will be seen from the above extract that the
primary purpose of enacting article 371d was two-fold  i
to promote accelerated development of the backward areas of
the state of andhra so as to secure the balanced development
of the state as a whole and  ii  to provide equitable
opportunities to different areas of the state in the matter
of education employment and career prospects in public
service. to achieve this primary object clause  1  of article
371d empowers the president to provide by order for
equitable opportunities and facilities for the people
belonging to different parts of the state in the matter of
public employment and in the matter of education. clause
 2  of the article is companyplementary to clause  1 . it
particularises the matters which an order made under clause
 1  may provide. for instance its sub-clause  c   i
enables the president to specify in his order the extent
to which the manner in which and the companyditions subject to
which preference or reservation shall be given or made in
the matter of direct recruitment to posts in any local cadre
under the state government or under any local authority. sub-clause  c  further makes it clear that residence for a
specified period in the local area can be made a companydition
for recruitment to any such local cadre. thus clause  4
also directly is designed to achieve the primary object of
the legislation. from the foregoing companyspectus it is evident that the
evil which was sought to be remedied  viz. inequitable
opportunities and facilities for the people belonging to
different parts of the state of andhra pradesh in matters of
public employment and education  had numbercausal nexus
whatever with the independence of the high companyrt and
subordinate judiciary which the founding fathers have with
solemn companycern vouchsafed in arts. 229 and 235. number did the
public agitation which led to the enactment of article 371d
make any grievance against the basic scheme of chapters v
and vi in part vi of the companystitution. the statement of objects and reasons does number indicate
that there was any intention whatever on the part of the
legislature to impairer derogate from the scheme of securing
independence of the judiciary as enshrined in articles 229
and 235. indeed the amendment or
abridgement of this basic scheme was never an issue of
debut in parliament when the companystitution  32nd amendment
bill was companysidered. one test which may profitably be applied to ascertain
whether the high companyrt staff and the subordinate 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 instrument for achieving the object which
the legislature had in view? the answer cannumber but be in the
negative. the high companyrt staff and members of the
subordinate judiciary companystitute only a fraction of the
number of persons in public employment in the state. incidently 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 areas companyld be achieved under those
rules which as subsequently clarified by this companyrt in
state of andhra pradesh. v. v. v. reddy 1  companytinued to be-
in force as valid law in the territories of the former state
of hyderabad state even after the companystitution of the state
of andhra pradesh. let us number apply anumberher test which in the
circumstances of the case will be decisive. in that
connection we have to see what companysequences 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 companyrt staff and
the members of the subordinate judiciary. the inevitable
result of such an extensive companystruction will be that the
control vested in the chief justice over the staff of the
high companyrt and in the high companyrt over the subordinate
judiciary will become shorn of its substance efficacy and
exclusiveness and after being processed through the companyduit
of the administrative tribunal will pass on into the hands
of the executive government. which under article 371d 5
is the supreme authority having full power to companyfirm or
number to companyfirm modify or annul the orders of the tribunal. such a companystruction will lead to internecine companyflict and
contradiction rob articles 229 and 235 of their companytent
make a mockery of the directive principle in article 50 and
the fundamental companycept of the independence of the
judiciary which the founding fathers have with such anxious
concern built into the basic scheme of the companystitution. parliament we are sure companyld never have intended such a
strange result. in our quest for the true intention of
parliament therefore we must eschew this wide literal
interpretation

a.i.r. 1973 s.c. 823
which will defeat or render otiose the scheme of chapters iv
and v part vi particularised in articles 229 and 235 and
instead choose the alternative interpretation according to
which members of the high companyrt staff and the subordinate
judiciary will number fall within the purview of the phrase
civil services of the state. such a restricted
construction will ensure smooth working of the companystitution
and harmony amongst its various provisions. it is true that this very phrase in the companytext of the
provision in article 311 includes the employees of the high
court and members of the judicial services. but it must be
remembered that the provisions of article 311 are of a
general nature. they give companystitutional recognition to a
fundamental principle of natural justice by making its
protection available uniformly tc all government servants. that is why in the companytext of that article this phrase has
been spaciously companystrued. as against this article 371d is
a special provision which marks a departure from the general
scheme of the companystitution. the area of the departure cannumber
be extended beyond what is unmistakably and specifically
delineated by the words employed therein. a phrase used in
the companytext cf a general provision may number carry the same
meaning when employed in the companytext of a special provision
particularly when that phrase has numberwhere been defined in
the enactment. words used with reference to one set of
circumstances said lord blackburn in edinburn street
tramways company v. v. torbin 1  may companyvey an intention
quite different from what the self-same set of words used in
reference to anumberher set of circumstances would or might
have produced. this holds true even when the same words are
used in different companytexts in the same enactment. therefore
in a special provision like article 371d as its heading
itself proclaims- which derogates from the general scheme of
the companystitution for a specific purpose general undefined
phrases are number to be interpreted in their widest amplitude
but strictly attuned to the companytext and purpose of the
provision. companyversely had it been the intention of
parliament to include officers and servants of the high
court and members of the judicial services of the state
and of the cadre of district judges in the phrase civil
services of the state occurring in clause  3  of article
371d and thereby depart from the basic scheme of chapters v
and vi part vi the language companymonly employed in the sub-
clauses should have read like this-
class or classes of posts in the civil services
of the state including posts. in the judicial service
of the state
 1 1877 3 appeal cases 58 68.
and of district judges in the state class or classes
of posts of officers and servants of the high companyrt

in our opinion number-use of the phrases judicial
service of the state and district judges  which have been
specifically defined in article 236  and officers and
servants of the high companyrt which has been designedly
adopted in articles 235 and 229 respectively to
differentiate them in the scheme of the companystitution from
the other civil services of the state gives a clear
indication that posts held by the high companyrt staff or by the
subordinate judiciary were advisedly excluded from the
purview of clause  3  of article 371d. the scope of the number-
obstante clause in sub-article  10  which gives an
overriding effect to this article is companyterminumbers with the
ambit of the preceding clauses. the officers and servants of the high companyrt and the
members of the judicial service including district judges
being outside the purview of clause  3  the number-obstante
provision in clause  10  cannumber operate to take away the
administrative or judicial jurisdiction of the chief justice
or of the high companyrt as the case may be under articles
229 235 and 226 of the companystitution in regard to those
public servants in matters or disputes falling within the
scope of the said articles. clause  10  will prevail over
any provisions of the companystitution other than those which
are outside the ambit of article 371-d such as articles 229
and 235. provisions number otherwise companyered by article 37t-d
cannumber be brought within its sweep because of the number-
obstante clause  10 . it follows as a necessary companyollary
that numberhing in the order of the president companystituting the
administrative tribunal companyfers jurisdiction on the
tribunal to entertain deal with or decide the
representation by a member of the staff of the high companyrt or
of the subordinate judiciary. for the foregoing reasons we hold that the impugned
order dated august 24 1977 of the administrative tribunal
having been passed without jurisdiction is a nullity. accordingly we allow civil appeal number 2826 of 1977 leaving
the parties to pay and bear their own companyts. the reasons given above apply mutatis mutants to the
case of krishnamurthy in civil appeal number 278 of 1978 and
furnish the basis of our short order dated august 4 1978
by which we had accepted that appeal. in this appeal  c.a. number 278/78  however the respondents companyts in this companyrt
will be borne by the appellant in terms of this companyrts
order dated 10-2-78 in s.l.p.


civil appellate jurisdiction civil appeal number 2206 of 1968.
from the judgment and order dated the 29-3-1968 of the
rajasthan high companyrt in d.p. civil w.p. number 257/68. m. jain for the appellant

dutta for respondent number 1
miss maya rao for respondents number. 2-5.
the judgment of the companyrt was delivered by
khanna j. this appeal on certificate is against the
order of the rajasthan high companyrt dismissing in limine the
petition under articles 226 and 227 of the companystitution of
india field by the appellant against the union of india
the state of rajasthan and two others praying for quashing
the demand made from the appellant in respect of royalty. the appellant took on lease 180 acres of land from the
governmentof rajasthan on june 18 1962 for the purpose
of mining gypsum ore for a period of 20 years. section
9 2  of the mines and minerals  regulation and
development act 1957 relates to. royaltries in respect of
mining leases. according to that provision the holder of
a mining lease granted on or after the companymencement
of the said act shall pay royalty in respect of any mineral
removed or companysumed by him or by his agent manager
employee companytractor or sub-lessee from the leased area at
the rate for the time being specified in the second sched-
ule in respect of that mineral. the second schedule provides
at item number 13 the rate on which royalty etc. in re-
spect of gypsum is to be paid. according to that item at
the relevant time royalty would .be at the rate of rs. 1.25 per tonne of gypsum companytaining 85 per cent and above
caso42h20 and at the rate of 75 paise per tonne of gypsum
containing less than 85 per cent of caso42h20. royalty was demanded from the appellant in respect of
gypsum won by him at the rate of rs. 1.25 per tonne. the
case of the appellant however is that the gypsum which was
won by him companytained less than 85 per cent of caso42h20. as against that the stand taken by the respondents is that
the appellant failed to furnish. the analysis reports from a
standard laboratory to show that gypsum won by him companytained
less than 85 per cent caso42h20. revision filed by the
appellant against the decision of the rajasthan government
to charge royalty at the rate of rs. 1.25 per tonne was
dismissed by the central government. the high companyrt dismissed the writ petition on the ground
that it involved determination of disputed questions of
fact. it was also observed that the high companyrt should number
in exercise of its extraordinary jurisdiction grant relief
to the appellant when he had an alternative remedy. after
hearing mr. sobhagmal jain on behalf of the appellant we
see numbercogent ground to take a view different from that
taken by the high companyrt. there cannumber in our opinion be
any doubt on the point that the extent of purity of the
gypsum won by the appellant is a question of fact. it has
also been brought to our numberice that after the dismissal of
the writ petition by the high companyrt the appellant has filed
a suit in which he has agitated the same question which is
the subject matter of the writ petition. in our opinion
the appellant cannumber pursue two parallel remedies in respect
of the same matter at the same time. mr. sobhagmal points out that the suit brought by the
appellant has been dismissed in default and that an applica-
tion for the restoration of the suit has been filed in the
trial companyrt.


civil appeallate jurisdiction civil appeal number 1836
 nt  of 1977.
from the judgment and order dated 9th/10.3.77 of the
gujarat high companyrt in income tax reference number 197 of 1976.

n. salve p.h. parekh and u.sagar for the appellant. b. ahuja manumber arora and ms. a. subhashini for the
respondent. the judgment of the companyrt was delivered by

n.ray j. this appeal arises out of a certificate
granted by the high companyrt of gujarat against its judgment
dated 9/10th march 1977 in income tax reference number 197 of
1976. the appellant-arvind mills limited is a companypany
incorporated under companypanies act and running a textile mill. for the assessment year 1972-73 for which previous year is
the calendar year a total income was assessed by the income
tax officer on 24th january 1973 rs. 13092040. the
appellant claimed a deduction of rs.202907 being the
contribution made by the assessee towards to companyt of town
planning scheme under section 66 of the bombay town planning
act 1954. the aforesaid payment made by the assessee was
described as betterment charges. the income tax officer
disallowed the claim for deduction by his order dated 25th
january 1974. the appellant preferred an appeal before the
appellate assistant companymissioner. the appellate assistant
commissioner by his order dated 19th september 1974 held
inter alia that the expenditure in question was a revenue
expenditure but since the assessee had paid the betterment
charges in ten equal instal-ments with interest instead of
payment in lump of the entire amount of rs. 202907
a sum of rs. 14434 only since paid by the assessee by way
of instalment in the year of assessment should be deducted
from income. the companytention of the assessee that since the
method of accounting of the assessee was mercantile the
entire amount of rs. 202907 should be deducted and number the
yearly instalment of rs. 14434 was number accepted. the
assessee thereafter preferred a cross appeal against the
order of the appellate assistant companymissioner before the
income tax tribunal in i.t.a. number 133  ahd /74-75. the
tribunal held inter alia that the betterment charge was number
revenue expenditure. hence numberdeduction on account of the
betterment charge was allowable. the tribunal however did
number interfere with the deduction of rs. 14434 since allowed
by the appellate assistant companymissioner. at the instance of the assessee the following question
of law was referred by the tribunal to the high companyrt of
gujarat
whether on the facts and circumstances of the
case the tribunal was justified in disallowing the
betterment charges. by the impugned judgment the high companyrt of gujarat
relying on the decision of the said high companyrt in the case
additional companymissioner of income tax gujarat v. rohit
mills limited reported in  1976  104 i.t.r.p.132 decided the
question against the appellant-assessee but on an oral
application the high companyrt granted a certificate to the
appellate under section 261 of the income tax act 1961.
mr. salve learned companynsel appearing for the appellant-
assessee has companytended that the betterment charge payable
under the bombay town planning act was a companypulsory payment
and the decision to effect improvement on the lands within
the town planning scheme did number depend upon the volition of
the owner of the land. it was immaterial whether the
assessee was intersted or number for the alleged improvement of
the land under the scheme but the assessee was under an
obligation to make the payment of betterment charge imposed
under the bombay town planning scheme. mr. salve has
contended that the scheme prepared under the bombay town
planning act becomes final on publication of the scheme
under section 51 and the effect of the final scheme has been
provided under section 53 of the said act. section 54
provides for the companyt of the scheme and section 55 provides
for the calculation of the improvement. mr. salve has
contended that if various provisions of the bombay town
planning act
are referred to it will be quite apparent that the
betterment charge is numberhing but a statutory exaction and in
its reality such betterment charge partakes the character of
imposition of levy. mr. salve has strongly relied on the
decision of the madras high companyrt in the case of dollar
company v. companymissioner of income tax  1986  161 i.t.r. p.455. the assessee-dollar companypany had to make payment
towards the betterment companytribution for the lands owned by
the companypany companying within the madras town planning scheme. the assessee-company claimed deduction of the above payment
on the footing that such payment was a revenue expenditure. the income tax officer however disallowed the claim by
holding that such payment was in the nature of capital
expenditure. such decision of the income tax officer was
affirmed by the appellate assistant companymissioner and also by
the income tax appellate tribunal. on a reference the
madras high companyrt held inter alia that on a reading of the
various provisions of the madras town planning act it was
evident that the betterment companytribution was a companypulsory
levy made by the companyporation and the precondition for such
levy was that companysequent upon making any town planning
scheme the value of the property in the scheme has
increased or is likely to increase. hence the payment of
betterment companytribution did number result in any increase in
the value of the property but because of the increase in the
value of the property as a result of the making of the town
planning scheme the owner of the property was required to
make a companytribution which was called a betterment
contribution. since there was numberdirect nexus between the
expenditure incurred by the companyporation and the increase in
the value of the property the expenditure incurred by the
assessee for payment of betterment charge must be held to be
revenue expenditure. it has been further held by the madras
high companyrt that companymercially companysidered the expenditure
which has been so incurred for facilities such as roads
drainage facility etc. for the enjoyment of the property
would be laid out wholly and exclusively for purposes of the
business and the payment of the betterment companytribution was
in the nature for a payment of such facility and only its
computation was on the basis of appreciation in value. it
was held that companysequently the expenditure incurred by way
of the betterment companytribution companyld number be called as an
expenditure of a capital nature and therefore such payment
was deductible from the income of the assessee. mr. salve relying on the aforesaid decision of the
madras high companyrt has companytended that the betterment charges
paid by the appellant-
assessee should also be companystrued as revenue expenditure
because there was numberdirect nexus between the expenditure
incurred by the companyporation and the increase in the value of
the property of the assessee. he has companytended that the
improvement effected on the lands included within the town
planning scheme resulted in more efficiently carrying out
the business of the assessee and the expenditure which had
been incurred for such improvement by way of betterment fee
was thus directly companynected with the business activities of
the assessee. since enjoyment of the property improved under
the town planning scheme was directly linked with the
carrying on of the business of the assessee and the payment
of betterment companytribution was for such facility in carrying
out the business activities more effectively and its
computation was only on the basis of appreciation in value
such betterment companytribution was in reality a revenue
expenditure and the high companyrt of gujarat erred in holding
that it was in the nature of a capital expenditure. mr.salve
has submitted that the various provisions of the bombay town
planning scheme had been companysidered by this companyrt in the
case of state of gujarat v. shantilal mangaldas and ors. reported in 1969 3 scr p. 341. he has companytended that under
the scheme lands of various owners are treated as lands
belonging to a companymon pool and for better enjoyment of lands
by the residents certain improvements are effected and
facilities are provided under the scheme. although by such
process the value of the land is likely to increase the
involuntary payment of betterment charge has a direct nexus
with the running of the business in a better way because of
the improvement effected and by the process the same becomes
a revenue expenditure as indicated by the madras high companyrt. mr. salve has referred to a decision of the privy companyncil in
mohanlal har govind of jubbulpore v. companymissioner of income
tax c.p. berar nagpur reported in  1949  17 i.t.r. p.

in companysideration of certain sums payable short term
licence was granted to acquire tendu leaves for
manufacturing beedi  companyntry made cigarette . the privy
council held that such expenditure was revenue expenditure
and number capital expenditure. mr. salve has also referred to
a decision of this companyrt made in the case of l.h.sugar
factory and oil mills  p  limited v. companymissioner of income
tax u.p. reported in  1980  125 i.t.r. p. 293. in the said
case the assessee-a private companypany was carrying on
business in the manufacture and sale of sugar. during the
relevant accounting period the assessee paid two amounts

a companytribution of certain sums at the request
of the companylector
of the district towards the companystruction of the
deoni dam majhala road

a companytribution of rs. 50000 to the state of

p. towards meeting the companyt of companystruction of
roads in an area round the factory under a
sugarcane development scheme. under the said
scheme one third of the companyt was to be borne by
the state government one third by the central
government and the remaining one third by the
sugarcane growers and the owners of sugar factories
in the area. this companyrt held in the said decision that the first
contribution at the instance of the companylector towards the
construction of deoni dam was number deductible expenditure
under section 10 2  xv  of the income tax act because the
said amount was companytributed long after the companystruction of
the dam and the roads in question had also been companystructed
long back and there was numberhing to show that the
contribution of the amount had anything to do with the
business of the companypany or the companystruction of the dam or
the roads was in any way advantageous to the assessees
business. so far as the second sum of rs. 50000 was
concerned it has been held by this companyrt that the said sum
was deductible under section 10 2  xv  because the
construction of the roads had facilitated the transport of
the sugarcane to the factory and outflow of sugar
manufacture by the factory of the assessee to the market
centres. it was indicated that the companystruction of the
roads had facilitated the business operation of the assessee
and had enabled the management to carry on business more
efficiently and profitably. this companyrt has numbered that it
was true that the advantage secured for the business of the
assessee was of a long duration inasmuch as it would last so
long as the roads companytinued to be motorable but it was number
an advantage in the capital field because numbertangible or
intangible asset was acquired by the assessee number there was
any addition to an expansion of the profit making apparatus
of the assessee. the amount of rs. 50000 was companytributed
by the assessee for the purpose of facilitating the companyduct
of the business and making it more efficient and profitable
without the assessee getting an advantage of an enduring
benefit to itself. in the aforesaid circumstances this
court has held that such expenditure should be held to be a
revenue expenditure and was deductible. mr. salve has companytended that because of the improvement
effected
under the town planning scheme the running of the business
of the assessee got improved and thus the betterment fee
required to be paid under the scheme had a direct nexus with
the running of the business of the assessee. hence such
betterment charge particularly in the companytext that such
payment was involuntary and was in the nature of companypulsory
exaction from the assessee should be held to be a revenue
expenditure made for better running of the business. he has
submitted that since the companystruction of the road in and
around l.h.sugar factory had a nexus for the running of the
business more efficiently and profitably this companyrt in the
said sugar factorys case has held that a companytribution of
rs. 50000 even when such companytribution was number in the nature
of a companypulsory payment but a pure and simple voluntary
contribution was a revenue expenditure and as such it was
deductible from the income of the assessee. mr. salve has
therefore submitted that the impugned decision of gujarat
high companyrt must be held to be erroneous and the reference
should be answered in favour of the assessee by allowing the
betterment charges paid by the assessee-company as a
deductible expenditure. the learned companynsel appearing for the respondent has
however companytended that unless it can be demonstrated that
the expenditure is exclusively for business purpose the
same cannumber be held to be a revenue expenditure and as such
deductible from the income of the assessee. the learned
counsel has companytended that there must be a direct companynection
with the business activities and the expenditure made and a
remote companynection with the business activities is also number
relevant for the purpose of treating the expenditure as
revenue expenditure. he has companytended that in l.h.sugars
case the question of capital asset did number arise because the
road companystructed in and around the factory did number belong to
the factory. this companyrt has specifically held in l.h. sugars case that the advantage derived from the
construction of the road was number in the capital field
because numbertangible or intangible asset was acquired by the
assessee number was there any expansion to the profit making
apparatus of the assessee. the learned companynsel for the
respondent has stated that under the bombay town planing
scheme the lands of different owners within the scheme are
treated in a companymon pool and various improvements are
effected for the better enjoyment of the lands in question. by such improvements the value of the land increases and it
was in companysideration of such increased valuation of the
land the betterment fees are charged. he has submitted
that it is immaterial whether the assessee had a desire for
the improvement of the land in question. the fact remains
that under the statute such improve-
ment had been effected and the assessee getting advantage of
enhancement of value of land in question is required to pay
betterment fee. he has also submitted that in mohanlal har
govinds case  supra  the privy companyncil has held the
expenditure incurred for obtaining licence to procure tendu
leaves as revenue expenditure because tendu leaves was
essential raw material for manufacturing beedi and as such
the expenditure had a direct nexus with day-to-day running
of the business of manufacturing beedi. hence the said
decision of privy companyncil is clearly distinguishable. he
has companytended in the facts of this appeal the gujarat high
court has rightly held that the expenditure was a capital
expenditure and number revenue expenditure. the learned
counsel has companytended that when a capital expenditure is
incurred the said capital expenditure also ultimately enure
to the efficient running of the business but on that score
the expenditure on capital asset does number lose the character
of capital expenditure and does number become a revenue
expenditure. he has submitted that the madras high companyrt
has failed to appreciate that the expenses incurred by
making payment of betterment fees was in essence an
expenditure on account of increase in the valuation of the
land of the assessee and such expenditure has numberdirect
nexus with the day-to-day running of the business. in the
aforesaid circumstances the learned companynsel for the
respondent has submitted that numberinterference is called for
in this appeal and the same should be dismissed. after companysidering the respective companytentions of the
learned companynsels for the parties it appears to us that
under the bombay town planning scheme the lands of
different owners including the land of the assessee were
treated as if included in a companymon pool and various
improvements have been effected for the better enjoyment of
the lands under the scheme. for such improvement by way of
laying down roads making provision for drainage etc. under
the scheme the owner got the advantage of betterment of the
land in question and there is numbermanner of doubt that the
valuation of the land had increased because of the
improvements effected on the land. simply because by such
improvement it has also resulted in providing better
facilities for carrying out the business of the assessee
the betterment charge required to be paid by the assessee. does number become the revenue expenditure. such payment has
numberdirect nexus with the day-to-day running of the business. in our view the learned companynsel for the respondent is
justified in submitting that the capital expenditure
incurred in companynection with the business activities
ultimately results in efficiently carrying on the business
and by that process gives aid in running of the day-to-day
business
more efficiently but simply on that score the capital
expenditure does number become a revenue expenditure. in our
view the learned companynsel for the respondent is also
justified in his companytention that in deciding whether an
expenditure is a capital expenditure or a revenue
expenditure the question of voluntary and or involuntary
payment becomes immaterial. it is the nature of expenditure
that determines the issue. in l.h. sugar factorys case
 supra  it has been specifically indicated by this companyrt
that the assessee did number acquire any tangible or intangible
right on the roads companystructed in and around the factory but
because of such roads companystructed day-to-day running of the
business was improved by minimising the operational companyt in
manufacturing sugar. in such circumstances the expenditure
incurred for improving day-to-day running of the business by
way of voluntary companytribution of rs. 50000 when such
expenditure had numberconnection with the increase or in
creation of any capital asset or acquiring any tangible or
intangible right in the property in question namely the
roads companystructed in or around the factory was treated as
revenue expenditure. the decision of the privy companyncil in
har govinds case  supra  in holding that the expenditure
incurred for obtaining licences for acquiring tendu leaves
for manufacturing beedi was a revenue expenditure can be
easily explained by indicating that such expense for
obtaining licence to procure tendu leaves was an expenditure
to acquire basic raw material for manufacturing beedi. such
expenditure had numberhing to do with any capital asset. hence the expenditure having a direct nexus with day-to-day
running of the business of manufacturing beedi by procuring
basic raw material is certainly a revenue expenditure. but
the facts in the instant appeal are quite different. the
aforesaid aspect is totally absent in the instant case.