Union of India v. Prem Kumar Jain & Ors. Etc.

I

SHINGHAL, J. These appeals by certificate are directed against the judgment of the Delhi High Court dated September 25, 1969, allowing Civil Writ Petition No. 405 of 1968 and connected petitions Nos. 478 to 487 of 1968. The High Court has quashed the orders of the Cen-tral Government notified in GSR 42 to 49, published in Gazette of India, Extraordinary, dated January 13, 1968, as well as the scheme for the formation of a joint cadre of the Indian Administrative Service, hereinafter referred to as the Service, for the Union Territories, and has held that the formation of the Delhi-Himachal cadre of the Service was also ultra vires the Constitution. As we shall show, the decision has turned on a short point of law, and it will be enough to refer to those facts which bear on it.

A new cadre of the Service was constituted for the Union Territo-ries of Delhi and Himachal Pradesh, and recruitment to that cadre was made directly without complying with the requirement of rule 4 ( 1) of the Indian Administrative Service (Recruitment) Rules, 1954, here-inafter referred to as the Recruitment Rules, which prescribed the nor-mal method of recruitment to the Service. The Rules were amended (\n December 21, 1967, by providing for a Joint Cadre in relation to the Union Territories and the North East Frontier Agency, and the Central Government formulated the aforesaid scheme to extend the Delhi-Himachal Pradesh Cadre to all Union Territories by absorbing the officers of that cadre and by appointing to it officers of the Indian Frontier Administrative Service and all other Union Territories at its initial constitution. The Joint Cadre for all the Union Territories was hrought into existence from January 1, 1968, by GSR 42 under rule 3 (1) of the Indian Administrative Service (Cadre) Rules, 1954, here-inafter referred to as the Cadre Rules, published (along with certain consequential changes in the other rules of the Service) in Gazette of India, Extraordinary, dated January 13, 1968. The petitioners in the High Court challenged the creation of the new Joint Cadre for all the Union Territories, and the appointment of some of the respondents thereto. It was urged in the High Court that the constitution of the new Joint Cadre was illegal as it was contrary to the provisions of article 312 of the Constitution and the All India Services Act, 1951. as it was not common to the Union and the State inasmuch as a Union Territory was not a State. and the recruitment of the respondents con-cerned to the Joint Cadre was contrary to the provisions of section 3 of the AU India Services Act, 1951, and the Cadre Rules.

The High Court examined the question whether the Union Territo· n ries were States, and reached the conclusion that this was not so. It therefore held that rule 4(5) of the Recruitment Rules was ultra vires the Constitu~ion ~n~ the All Tnc_ti~ Services Act, fo~ the Cadre in ques~

ti?n could not be said to be common to the Union and the States. The --.. High Court also observed that as the Central Government was itself the State Government for purposes of a Union Territory, the Central Governmen~ could. not consult itself within the meaning of section 3 of the All Ind1a SerVlces Act and the Recruitment and the Cadre Rules. It therefore quashed the orders and the scheme mentioned above.

. It appears, ho:vever, that it was not brought to the notice of the H1gh Court that, m so far as the Service was concerned, it was not necessary for Parliament to make a Jaw providing for its creation as a service common t? t~ Union and the States, under clause (1) of article 312 ?f the Constttutmn, because clause (2) of that article expressly provtded as follows,-

"312. (2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article."

The Service did not therefore have to be create-d under the provisions of clause ( 1} of article 312 of the Constitution, or section 2A of the All India Services Act. Section 3 ( 1) of that Act however made prcr vision for the making of rules for the regulation of recruitment and conditions of service of persons appointed to an All-India Service "after consultation with the Governments of the States concerned." It was under that provision that the Cadre Rules were made by the Cen-tral Government, and the question which engaged the attention of the High Court was whether the Union Territories could be said to be States for purposes of such consultation. In that connection the High Court examined the question whether the Union Territories could be said to be States merely because rule 2(c) ~f the Cadre Rules defined a uState" to mean a State specified in the First Schedule to the Consti-tution and including a Union Territory, and answered it in the n~ative.

The expression ''State" has not been defined in the Constitution, but it has been defined as follows in section 3 (58) of the General Clauses Act (Act X of 1897) ,-

ustate"- (a) as respects any period before the commencement of

the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or n Part C State; and (b) as respects any period after such commencement, shall

mean a State specified in the First Schedule to the Constitution and shall include n Union Territory.''

This was however not the original definition, for it wa<> substituted by the Adaptation of Laws (No. 1) Order, 1956. Before that Order, the expression "State" meant ''a Part A State, a Part B ~tate or a Part C State!' That definition was, in its turn, brought in by adaptation under article 372 of the Constitution by the Adaptation of Law!! Order, 1950, for the purpose of bringing the provisions of any law in force in U~IOJ\ , ., P. K. JAIN (5MnilWI, f.) lGO the territory of India in accord with the provisions of the Constitution. The original definition has thus been adapted twice to suit the require~ ments of the Constitution.

Clause ( 1) of anicle 367, which deals with "interpretation'' of the Constitution, provides as follows,-

"367(1) Unless the context otherwise requires, the Gene~ ral Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372 apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of tht Dominion of India."

A cross~reference to article 372(2) shows that while the purpose of the adaptation was to bring the provisions of any law in force in the country "into accord with" the provisions of the Constitution, clause (3) thereof expressly stated, inter alia, as follows,-

"(3) Nothing in clause (2) shall be deemed- ( a) to empower the President to make any adaptation or

modification of any law after the expiration of three years from the commencement of this Constitution;" The power of adaptation or modification was therefore spent after the expiry of three years, and the High Court has taken the view that as it were only the adaptations made in the General Clauses Act under article 372(2) which applied to the interpretation of the Constitution in view of article 367 (1). the adaptations made later, by article 372A, were not so applicable.

A comparison of the provisions of articles 372 and 372A shows, however, that while the purpose of both the articles was to bring the provisions of any law in force in India "into accord" with the provi~ sions of the Constitution, article 3 72 was a general provision enabling the making of adaptations.and modifications in such laws by an order of the President. whereas article 372A was a special provision which was made specifically for purposes of the Constitution (Seventh Amendment) Act. 1956. inasmuch as clause ( 1) thereof provided as follows.-·-·

"37'2/\ (l) For the purposes of bringiog the. provisions of any law in force in India or in nny part thereof, immc~ diately before the commencement of the Constitution (Seventh Amendment) Act, 1956, into accord with the pr~ visions of this Constitution as amended by {hat Act, the Presi-dent may by order made before the 1st day of November, 1957, make such adaptations and modifications of the law, whether by way of repeal or amendment, 'fls may be necessary or expedient, and provide that the law shall, a.s from such <;late as may be specified ~ t~e order, have effect subject to

170 SUl'REM.E COURT ~El'OKIS LEJ76j SUl'PLEMBNTARY

the adaptations and modifications so made, and any such actaptatwn or modification shall not be questioned w any court of law" (Emphasis added) It is obvious therefore that as the power of the President to make any adaptation or moomcauon of any 1aw under clause (2J of article 3N. was spent atter three years, .Parliament telt the necessity ot grving such a power to the Pres1oent once again for the purpose ot bnnging the provisiOns ot any law m force Immedrately before tht;; commencement of the Constituuon (Seventh Amendment) Act, 1956, into accord wrth tl1e provisions ot the ConstitutiOn as amended by that Act. That was theretore a necessary power as it was meant to make the amended Constttutwn workable. .t-or instance, sectron 3 (58) of the General Clauses Act, 1 'l597, as it stood before the coming into force of the Seventh Amendment Act, defined a "State" to mean ·•a Part A State, a P-art B State or a Part C State." As has been stated, that definition had Itself been substituted by the Adaptation of Laws Order, 1950, to make it workable, and it served the purpose, for the country had those three types of States at that time. But an important change was made by the Constitution (Seventh Amendment) Act, 1956, which abolished the distinction of Part A, Part B and Part C states and provided, inter alia, that the territory of the country shall comprise the territories of the States and the Union Territories specified in the First Schedule. The definition of the expression "State" as it stood before November 1, 1956, became unsuitable and misleading on the coming into force of the Constitution (Seventh Ame.ndment) Act, 1956, from November 1, J 956, and it will, for obvious reasons, be futile to contend that it should have continued to be applicable for all time to come and remained "the final definition of "State" " merely because the period of three years provided by clause (3) (a) of article 372 of the _Constitu-tion expired and was not extended by an amendment of that clause, or because article 367 (I) was not amended by the Seventh Amendment Act "to say that adaptations made in the General Clauses Act other-wise than those made under article 372(2) would be applicable to the interpretation of the Constitution." The High Court also erred in thinking that such "abstention seems to be deliberate." On the other hand, it is quite clear from the fact that Parliament inserted article 372A by the Constitution (Seventh Amendment) Act, 1956, that . it was aware that the power of adaption under article 372(2) had come to an end, and was alive to the necessity of giving a similar power of adapting_ the laws once again to the President for the purposes of bringing the provisions of any law in force in the country immediately before the commencement of that Act "into accord" with the provisions of the Constitution, It is therefore futile to contend that the definition of the expression "State" which was applicable upto November 1, 1956, remained the final definition for all time to come. That view is in-correct, for it overlooks or ignores the anxiety of the Parliament to remove any such misapprehension by inserting article 372A. It was a special provision, and it was meant to serve the purpose of making tl1e Seventh Amendment Act workab!e. As has been held by this Court in·Management of Advance Insurance Co. Ltd. v, Shri Gurudas-mal and others(1), article 372A gave a fresh power to the President which was equal and analogous to the power under article 372(2).

It follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into torce, the President had the power to adapt the laws for the purpose of bring-ing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the Pre-sident issued the Adaptation of Laws (No_ lf Order, 1956, which, as has been shown, substituted a new clause (58) in section 3 of the General Clauses Act providing, inter alla, that the expression "State" shall, as respects any period after the commencement of the Constitu-tion (Seventh Amendment) Act, 1956, mean "a State specified in the First Schedule to the Constitution and shall include a Union Territory." It cannot be said with any justification that there was anything repug-nant in the subject or context to make that definition inapplicable. Bv virtue of article 372A(l) of the Constitution, it was that definition of the expression "State" which had effect from the 1st day of Novem-ber, 1956, and the Constitution expressly provided that it could "not be questioned in any court of law." The High Court therefore went wrong in taking a contrary view and in holding that "Union Territories are not 'States' for purposes of Article 312(1)" of the Constitution and J

the preamble to the Act of 1951." That was why the -High Court erred in holdinf!; that the definition of "State" in the Cadre Rules was ;.ultra vires the AU India Services Act, 1951 and the Constitution, and that the Union Territories Cadre of the Service was "not common to the Union and the States" within the meaning of article 312(1) of the Constitution, and that the Central Government could not make the Indian Administrative Service (Cadre) Rules, 1954 in consultation with the State Governments as there were no such governments in the Union Territories.

The High Court has held further that section 3 of the All India Services Act, 1951 and rule 5 of the Cadre Rules have been contraven-ed bv the "direct appointment of respondents 2 to 37 to the Union Territories Cadre and by their being not recruited first to the IAS." But no such ground appears to h,ave been taken in the writ petition. Moreover, the validity or rule 4(5) of the R~cruitriient Rules, which ,..- rontained a TWn-nbstrmte clause providing for recruitment to t11e Joint

Cadre of the Union Territories on its initial constitution by such method ~1.f: the Central Government may, after consultation with the Union Pnblic Service Commission prescribe was not examined by the Hhrh Court. · · ~-· - -- -

For the reasons mentioned above. the appeals are allowed. the impuQ"ned judgment of the Hi~h Court datect September 25, 1969 is Ret aside and the writ petitions are dismissed. There will however be no orders as to tl)e costs.