Supreme Court of India
TELANGANA JUDGES ASSOCIATION & ANR.versusUNION OF INDIA & ORS.
- Citation
- 2018 INSC 926
- Decided
- 3 October 2018
- Disposal
- Leave Granted & Disposed off
- Bench
- A K SIKRI
Holding
The modified allocation guidelines prepared by the High Court, which give precedence to seniority and the exercised option, are lawful and must be approved.
Summary
The Telangana Judges Association challenged the draft and modified guidelines for allocating subordinate judicial officers between Andhra Pradesh and Telangana, arguing that the guidelines favored Andhra officers and violated their rights. The Supreme Court examined the constitutional scheme, the Andhra Pradesh Reorganisation Act, 2014, and the role of the High Court under Article 235 in controlling the subordinate judiciary. It held that the High Court’s guidelines, which prioritize seniority and the option exercised by officers, are within its jurisdiction and must be given due weight. The Court rejected the petitioners' claim that Article 371D’s domicile provisions apply to judicial officers and that nativity can be the sole basis for allocation. Consequently, the modified guidelines were approved and the parties were directed to complete the allocation process, while the related civil appeals were dismissed as academic.
Issues considered
- When the Andhra Pradesh Reorganisation Act, 2014 mandates allocation of subordinate judicial officers, can the High Court’s guidelines be approved by the Central Government?
- Does Article 371D’s domicile provision apply to the appointment and allocation of judicial officers?
- Can nativity be used as the sole criterion for allocating judicial officers under Article 16 and the Act?
- Is seniority the primary factor for accepting an officer’s option to a successor state?
- Whether the Central Government may issue allocation guidelines without giving due weight to the High Court’s views under Section 77/80 of the Act
Legislation cited
- Andhra Pradesh Judicial Service Rules, 2007
- Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975
- Andhra Pradesh Reorganisation Act, 2014s. 77, s. 78, s. 80
- Constitution of Indias. Article 14, s. Article 16(2), s. Article 16(3), s. Article 2, s. Article 229, s. Article 233, s. Article 234, s. Article 235, s. Article 236, s. Article 3, s. Article 371D, s. Article 4, s. Article 50
- Telangana State Judicial Service Rules, 2017
Subjects
subordinate judiciaryallocation of officerssenioritynativityAndhra Pradesh Reorganisation ActArticle 371DArticle 235judicial independenceoption rightrecruitment process
Judgment
176 [2018] REPORTS
SUPREME COURT 13 S.C.R. 176 [2018] 13 S.C.R.
A TELANGANA JUDGES ASSOCIATION & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 85 of 2015)
B OCTOBER 03, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Judiciary: Subordinate judiciary – Recruitment process –
Allocation of subordinate judicial officers to the different cadres in
two States-State of Andhra Pradesh and State of Telangana – Draft
C
guidelines by respondent no. 1 whereby allocation shall be done in
the order of seniority as available on 02.06.2014 and preference
shall be given first to those who have applied for the State in which
the District declared by them at the time of entering service falls –
After consideration, submission of modified guidelines by the High
D Court – Approval of the principles of allocation and officers to be
considered for allocation in the following order, those who have
opted and are senior; those who have opted for the State in which
the district declared by them at the time of entering service falls;
and if allocable posts still remain then allocation to be done in the
reverse order of seniority – Petitioners’ case that draft framed by
E
respondent no. 1 protected the interest of Judicial Officers of
Telangana whereas modified guidelines by the High Court are
prejudicial to the rights of the Judicial Officers of the State of
Telangana – Held: When for entering into Judicial Service, no
condition can be put regarding residence of particular area for
F allocation of a State, consequent to Act, 2014, nativity cannot be
sole basis – Judicial Officers belonging to Telangana territorial
area may have desired or expectation to choose or to opt for their
cadre in Telangana area, which is a legitimate aspiration, but giving
pre-dominance to nativity only is not spelled from any statutory
provision or scheme – Aspiration of petitioners that no senior
G
officer, should come to State of Telangana, which may mar their
prospect of promotion is neither in accord with the constitutional
scheme nor as per ethos of culture of this country – High Court
while formulating the guidelines has tried to balance the right of
option of each Judicial Officer – All the Judicial Officers belonging
H to Telangana State have opted and allocated the Telangana State –
176
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 177
Thus, the Modified guidelines does not suffer from any illegality or A
error – Said guidelines is to be accepted and approved – Authorities
directed to finalise options of all the Judicial Officers as per the
modified guidelines and complete the process of allocation within
the stipulated period – Andhra Pradesh Re-organisation Act, 2014
– ss. 77 and 80 – Constitution of India – Art. 371D.
B
Disposing of the matters, the Court
HELD: 1.1 For preparing guidelines for allocation of the
Judicial officers, the views of the High Court are not to be ignored
and the Union of India, Department of Personnel & Training, has
rightly given due weight to the views of the High Court for
C
allocation. However, the scheme of the Andhra Pradesh Re–
organisation Act, 2014 indicates that final allocation Order is to
be issued as per the statutory provisions, by the Central
Government. The coverage of Section 77 is “Every person who
immediately before the appointed day is serving on substantive
basis in connection with the affairs of the existing State of Andhra D
Pradesh...” The coverage of Section 77 is in very wide term which
includes every person who is serving in connection with the affairs
of the existing State. There can be no denial that Judicial Officers
working in the Sub-ordinate Judiciary are serving in connection
with the affairs of the existing State. Thus, there cannot be any
E
denial that Section 77 also clearly covers the sub-ordinate
judiciary of the State and final allocation Order has to be issued
by the Central Government after due consultation with the High
Court. [Para 39][203-D-F]
1.2 The High Court in preparing draft guidelines and
thereafter issuing modified guidelines for allocation of cadre of F
Judicial Officers was well within its jurisdiction and its views
required due weight in giving effect to the provisions of Section
77 of the Act. Section 80 expressly indicates that in carrying
exercise by the Central Government as contemplated under
Section 77, there has to be fair and equal treatment to all persons G
affected by the provisions of Part VIII of the Act. The guidelines
for allocation of cadre should ensure fair and equal treatment
to all persons affected and they should also conform the
equality clause as enshrined in Article 14 of the Constitution.
[Para 40, 42][203-G; 204-A, B]
H
178 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 1.3 Special provisions were introduced by way of Article
371D of the Constitution. Now, by virtue of Act, 2014 in place of
the State of Andhra Pradesh “the State of Andhra Pradesh or the
State of Telangana” has been substituted. The basis for Article
371D is to provide equal opportunity to the people of Andhra
Pradesh by introducing domicile as the basis for appointment to
B
services and admissions in educational institutions, however,
Article 371D has no application in respect of the appointment to
the posts of District Judges and Judges Subordinate thereto, in
view of the constitutional scheme of separation of powers and
express provisions having been made by the Constitution.
C [Para 44, 46][204-H; 205-A; 206-H; 207-A-B]
Chief Justice of Andhra Pradesh & Ors. v. L.V.A. Dixitulu
& Others (1979) 2 SCC 34 : [1979] 1 SCR 26 –
referred to.
1.4 Petitioners have referred to guideline No. 18(f) of the
D Kamalanathan Committee determining principles guiding
allocations read with guideline No. 18(n), which also read with
the Andhra Pradesh Public Employment Order, 1975 gives
preference in allocation to those who have opted and who are
local candidates to be allocated to that State in which they are
E local candidates. The said order dated 29.10.1975 issued under
Article 371D has been relied. The guidelines formulated by
Kamalanathan Committee in context of other Civil Services are
not relevant nor any support can be taken on the basis of said
guidelines. [Paras 48, 49][209-F-H]
F 1.5 The nativity for public employment runs counter to the
fundamental right guaranteed under Article 16(2) except when it
is provided by a Parliamentary Law as per exception carved out
in Article 16(3) of the Constitution. In Act, 2014, there is no
provision, which expressly provides for allotment of the State on
the basis of place of birth or residence. Sections 77, 78 and 79 of
G the Act do not refer to allotment on the basis of place of birth.
When for entering into Judicial Service, no condition can be put
regarding residence of particular area for allocation of a State,
consequent to Act, 2014, nativity cannot be sole basis, as is
contended by the petitioner. It is true that the State of Telangana
H stand formed to realise the democratic aspirations of the people
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 179
of Telangana. The Statement of Objects and Reasons of Act, 2014, A
which clearly establish that the creation of a separate State of
Telangana is for the betterment of the social, economic, political
and other aspirations of the people of that region, which
contemplated allocation of separate State of Telangana. The entire
Statement of Objects and Reasons does not indicate that with
B
respect to public employment, nativity is to play a dominant role.
It is true that Judicial Officers belonging to Telangana territorial
area may have desired or expectation to choose or to opt for
their cadre in Telangana area, which is a legitimate aspiration,
but giving pre–dominance to nativity only is not spelled from any
statutory provision or scheme. [Para 51][210-G-H; 211-A-D] C
J. Panduranga Rao v. Andhra Pradesh Public Service
Commission [1963] 1 SCR 707 – referred to.
1.6 When a Judicial Officer has been given a right of option
to choose either of the successor State, right of option has to be
given same meaning and content. Right of option can be defeated D
only when there is some impediment in accepting the option.
The seniority of a Judicial Officer is a first criteria for accepting
the option. The seniority in a service is a valuable right of an
employee or officer. In service jurisprudence, several benefits
and perquisites are attached to the seniority. The petitioners are E
asking that option be accepted not on the basis of seniority but
only on the basis of nativity, i.e. those who are senior even if they
opt the State option, their option should not be selected and option
of those should be first accepted, who are natives of Telangana.
The petitioner’s apprehension is that in event option of senior
officers are accepted and they are posted in State of Telangana, F
the future prospects of promotion of the petitioners shall be
marred. Whether the officers, who in the seniority list, which was
prevalent on the date of formation of new State, i.e. on 02.06.2014
where senior should loose their seniority or their seniority cannot
be said to play any role on account of formation of two successor G
States is the question to be answered. The aspiration of petitioners
that no senior officer, should come to State of Telangana, which
may mar their prospect of promotion is neither in accord with the
constitutional scheme nor as per ethos of culture of this country.
The modified guidelines submitted by the High Court and
H
180 SUPREME COURT REPORTS [2018] 13 S.C.R.
A accepted by the DoPT itself at second place give preference to
nativity. Thus, the High Court while formulating the guidelines
has tried to balance the right of option of each Judicial Officer.
[Para 54][212-B-F]
The State of Mysore and another v. G.N. Purohit and
B others (1967) SLR 753; Mohammad Shujat Ali and
Others v. Union of India [1975] SCR (1) 449 – referred
to.
Black’s Law Dictionary Tenth Edn. P 1268; Advanced
Law Lexicon by P. Ramanatha Aiyar – referred to.
C 1.7 The draft guidelines, which were initially circulated by
the High Court on 26.02.2016 has in the first sentence stated
“the allocation shall be done in the order of seniority as available
on 02.06.2014.” The second sentence read “Preference shall be
given first to those who have applied for the State in which the
D District declared by them at the time of entering service falls”.
The above draft guidelines has only been amplified retaining the
initial concept of accepting option on the basis of seniority. Both
the concept are now reflected in modified guidelines as guideline
No. 5(1) and 5(2). Thus, the submission that guidelines have been
substantially changed by the High Court without there being any
E reason cannot be accepted. The substance of the guidelines are
same, which were initially contained in the draft guidelines and
modified guidelines. It was the DoPT, which has proposed
guidelines, where content clause 5.2 was 5.1 of modified
guidelines were proposed as 5.1 was 5.2, which was not
F accepted by the High Court and Full Court reiterated their earlier
principle, which was initially encapsuled in draft guidelines.
[Para 56][214-G-H; 215-A-B]
1.8 Chart indicating the details of options and showing
details of Judicial Officers working in both the States of Andhra
G Pradesh and Telangana from 02.06.2014 and the acceptance
position of their option has been submitted by the High Court,
which indicate that all Judicial Officers belonging to territorial
area of Telangana region have been allocated Telangana State
and the option of all the Judicial Officers, who have opted for
Telangana State have been accepted. [Para 57][215-C-D]
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 181
1.9 All the Judicial Officers belonging to Telangana State A
having opted and allocated the Telangana State, practically, there
is no error in the operation of guidelines finalised by the High
Court. Modified guidelines as submitted by the High Court vide
letter dated 08.07.2017, which has been accepted by DoPT does
not suffer from any illegality or error. The said guidelines is to be
B
accepted and approved. The respondents are directed to finalise
options of all the Judicial Officers as per the above guideline and
complete the process of allocation within the stipulated period.
[Para 58, 59][215-E-G]
1.10 In the Civil Appeals, appellants have not pressed the
quashing of Recruitment 2014 and 2015. Further, Andhra Pradesh C
Judicial Service Rules, 2007 as adopted by State of Telangana,
which was quashed by the High Court is now substituted by fresh
Rules namely, Telangana State Judicial Service Rules, 2017. All
the issues raised in the Civil Appeals have become academic
and needs no consideration. [Para 60][216-A] D
State of U.P. v. Batuk deo Pati Tripathi (1978) 2 SCC
102; State of Bihar and Another v. Bal Mukund sah
and Others (2000) 4 SCC 640 : [ 2000] 2 SCR 299;
Mangal Singh v. Union of India (1967) 2 SCR 109 –
referred to. E
Case Law Reference
[1979] 1 SCR 26 referred to Para 32, 46, 47
(1978) 2 SCC 102 referred to Para 33 F
[2000] 2 SCR 299 referred to Par 34
[1967] 2 SCR 109 referred to Para 36
[1963] 1 SCR 707 referred to Para 50 G
[1967] SLR 753 referred to Para 54
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
85 of 2015
Under Article 32 of the Constitution of India. H
182 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Maninder Singh, Ms. Pinky Anand, ASGs, Salman Khurshid,
Huzefa Ahmadi, Harin P. Raval, R. Venkatramani, V. V. S. Rao,
B. Adinarayana Rao, Sr. Advs., Ms. Bina Madhavan, T. Sudhakar Reddy,
Krishna K. Singh, Rohan Sharma, Ms. Alisha Panda, Ms. Ayesha Jamal,
Mrs. Elizabeth Antony, M. P. Shorawala, S. Udaya Kumar Sagar,
Mrityunjai Singh, Ms. Divya Anand, Aditya P. Arora, Ms. Anitha Shenoy,
B
Ms. Srishti Agnihotri, Yashraj B, Praveen Vignesh, Ms. Remya Raj, R.
Balasubramanian, Ms. Vimla Sinha, A. K. Sharma, Ms. Aarti Sharma,
Prabhas Bajaj, Ms. Kanika S., Mukesh Kumar Maroria, Ms. Prerna
Singh, Prashant Mathur, Guntur Prabhakar, Ms. Saudamini Sharma,
Nishant Katneshwarkar, Y. Raja Gopala Rao, Ms. Y. Vismai Rao, K.
C Sharat Kumar, Ms. M. Yesasvi, C. S. N. Mohan Rao, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. The bifurcation of lower judiciary by State wise strength of
D combined State of Andhra Pradesh, consequent to the Andhra Pradesh
Reorgnisation Act, 2014 is the issue which has arisen in these two cases
which have been heard together and are being decided by this common
judgment.
Facts: Writ Petition (C) No.85 of 2015
E 3. The writ petition has been filed by the Telangana Judges
Association, a registered forum, formed to protect the interest of the
Judicial Officers of State of Telangana. The petitioner has challenged
the recruitment process initiated by the High court of the Judicature at
Hyderabad for the State of Telangana and the State of Andhra Pradesh
F (hereinafter referred to as ‘the High Court’) for filling up the post of
Civil Judge (Junior Division). The petitioner’s case is that consequent to
the Andhra Pradesh Reorganisation Act, 2014(hereinafter referred to
as ‘Act, 2014’) with effect from 02.06.2014 a new State has been formed,
namely, State of Telangana without permitting the option envisaged in
Section 77(2) of the Act, 2014 and without bifurcation of subordinate
G judiciary the recruitment process has been initiated which is not in
accordance with law. Petitioner’s case is that from the establishment of
the High Court of Andhra Pradesh in the year 1956, there has been
inadequate representation of Telangana Judges in the cadres of Junior
Civil Judges, Senior Civil Judges, District Judges and even Judges of
the High Court. The impugned notification issued by respondent No.2
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 183
[ASHOK BHUSHAN, J.]
without constituting Telangana State Judicial Service and without A
preparing State wise cadre strength of respective States would affect
the seniority as well as promotion of the Telangana State Judicial Officers
whose strength is at present 25% only in comparison with Andhra Pradesh
State Judicial Officers.
4. An advertisement dated 01.02.2014 for recruitment for 97 B
vacancies of Civil Judges (Junior Division) was published. The preliminary
written examination was notified for 27.04.2014. The State of Telangana
was created as the 29th State of the Union of India by the Act, 2014 on
01.03.2014. A representation was submitted to stop the recruitment
process as the Central Government had announced, 02.06.2014, the date
for the formation of Telangana State. The High Court put on hold the C
selection process till a clarification is obtained from this Court. An
application was filed by the High Court in C.A. No.1867 of 2006 (Malik
Mazhar Sultan & Ors. vs. Union Public Service Commission & Ors.) on
which this Court on 07.07.2014 passed an order permitting the status
quo. However, this Court in Malik Mazhar Sultan passed an order on D
20.01.2015 clarifying that the process already initiated for recruitment
of Judicial Officers in the States of Andhra Pradesh and Telangana by
the High Court be proceeded with. The Chief Justice of the High Court
had constituted a Committee of Judges, which Committee decided to
ask the Judicial Officers in the State of Andhra Pradesh to exercise
option with respect to the newly formed States. Writ Petition(C)No.403 E
of 2014(Dumpala Dharma Rao vs. High Court of Andhra Pradesh &
Ors.) was also filed in this Court challenging the proposed action of the
High Court calling for the option of Judicial Officers. An application for
impleadment by Telangana Judges Association has been allowed in Writ
Petition No.403 of 2014. Petitioners have also submitted suggestions for F
the purpose of final guidelines for allocation of States services to the
Principal Secretary, Government of Andhra Pradesh. Petitioners also
submitted representation to the Joint Secretary, Department of Personnel
& Training, Government of India dated 02.12.2014 requesting that the
guidelines issued by the Government of India may be made applicable to
the Personnel of Subordinate Judiciary and to take necessary expeditious G
steps for allocation of members of Subordinate Judiciary.
5. In the writ petition petitioner has made the following prayers:
“(i) Issue writ/writs including a writ in the nature of Mandamus
directing the respondents to bifurcate the Lower Judiciary from H
184 SUPREME COURT REPORTS [2018] 13 S.C.R.
A the erstwhile Andhra Pradesh State Judicial Service and to
constitute the Telangana Judicial Service under Articles 233 and
234 of the Constitution of India and fix the cadre strength of each
State;
(ii) Issue writ/writs including a writ in the nature of certiorari
B quashing the Notification dated 05.02.2015 and Notification No.54/
2015-RC dated 09.02.2015 issued by the Hon’ble High Court of
Judicature at Hyderabad for the State of Telangana and the State
of Andhra Pradesh; and
(iii) pass such other order or orders as are deemed fit and
necessary in the interest of justice.”
C
Civil Appeal Nos...............of 2018 (arising out of
SLP(C)Nos.18787-18790 of 2018
6. These appeals have been filed by the State of Telangana against
the Division Bench judgment dated 29.04.2016 of the High Court of
Judicature at Hyderabad for the State of Telangana and the State of
D
Andhra Pradesh (herein after referred to as ‘the High Court’) deciding
Public Interest Litigation No.31 of 2015 with three other Writ Petitions.
In the Public Interest Litigation filed before the High Court following
prayer was made:
“I therefore pray that this Hon’ble Court may be pleased to
E issue a Writ, order or direction, more particularly one in the nature
of a Writ of Mandamus declaring the action of respondents in not
bifurcating the Subordinate Judicial Officers and other Judicial
Officers of the erstwhile State of Andhra Pradesh as per Section77
of Andhra Pradesh Reorganisation Act, 2014 and not distributing
F Subordinate Judicial Officers and other employees to the State of
Telangana and to the State of Andhra Pradesh and issuance of
impugned notification No.15/2014-RC dated 01.02.2014 and
consequential notification No.54/2014-RC dated 05.02.2014 of the
second respondent as null and void, arbirary, illegal and violative
of Articles 233 and 234 of Constitution of India and Part VIII of
G A.P. Reorganisation Act, 2014 and consequently direct respondents
to distribute the subordinate judicial officers and other judicial
employees to both the States and only thereafter make
recruitments to the Subordinate Higher Judicial Service and Judicial
Service and pass such other order or orders as this Hon’ble Court
H may deem fit and proper.”
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 185
[ASHOK BHUSHAN, J.]
7. The High Court after elaborately considering all the issues A
dismissed all the writ petitions. The State of Telangana has by a notification
adopted Andhra Pradesh Judicial Service Rules, 2007 without making
any consultation with the High Court. The recruitment process initiated
by the notification in the year 2014 for 97 posts of Civil Judges and
recruitment process for 34 posts in pursuance of 2015 notification were
B
completed. After completing the entire process of selection during
pendency of the writ petitions, the High Court noticed in the judgment
that the ratio of Judicial Officers selected are in the ratio of 60 : 40 per
cent. While dismissing the Public Interest Litigation and Writ Petitions,
the High Court in paragraph 18 held:
“18. In the result, the Public Interest Litigation and the Writ Petitions C
are dismissed. The respondent – High Court shall compete the
process of recruitment initiated in pursuance of 2014 and 2015
Notifications. The respondent – State Governments are directed
to take all necessary steps for appointments of the selected
candidates, recommended by the High Court at the earliest. 2015 D
Rules shall not be acted upon and shall not operate since they
were not made in consultation with the High Court as provided
for under Article 234 of the Constitution. It is open to the State of
Telangana to take steps to adapt 2007 Rules afresh, in exercise of
the powers under Section 101 of the Act, in consultation with the
High Court.” E
8. When these appeals(SLPs) were filed against the judgment of
the High Court dated 29.04.2016, this Court on 15.07.2016 directed these
appeals to be listed along with Writ Petition (C)No.85 of 2015.
This Court on 18.07.2016 took up both, the writ petitions and these F
appeals and after hearing learned counsel for the parties passed a detailed
order on 28.04.2017 where this Court issued following directions:
“....In the background of the above mentioned suggestion, we
deem it appropriate to direct that the guidelines issued by the
existing High Court be treated as the draft guidelines for the purpose G
of allotment of the judicial officers to the different cadres in two 4
states. Telangana Judges Association and the State of Telangana
as well as the State of Andhra Pradesh and any one of the judicial
officers subject to the control of the existing High Court and not
belonging to Telangana Judges Association either individually or
in their representative capacity may make suggestions within a H
186 SUPREME COURT REPORTS [2018] 13 S.C.R.
A period of four weeks from today. Any representation made by
anyone of the above mentioned bodies shall be made both to the
Government of India and the existing High Court and also the
copies of the same shall be furnished simultaneously to all the
parties before this Court in these two matters.
B The Union of India shall thereafter examine the various
suggestions made by anyone of the above mentioned bodies and
prepare the draft guidelines in consultation with the existing High
Court on or before the 17th of June, 2017 and place the draft
guidelines before this Court on the next date of hearing for
appropriate further orders.”
C
9. Consequent upon the above order dated 28.04.2017 an affidavit
of compliance has been filed by the Union of India. In pursuance of the
order of this Court dated 28.04.2017 respondent No.1 prepared a draft
guidelines for allocation of Subordinate Judicial Officers which was
submitted to the High Court. The High Court after consideration of the
D draft guidelines and other inputs decided to submit a revised guidelines.
The revised guidelines as suggested by the High Court have been brought
on record as Encl.E to the affidavit of the Union of India filed in
compliance of order dated 28.04.2017. For the purposes of this case, we
need only to notice the modified guidelines submitted by the High Court
E in reference to which submissions have been made by the learned counsel
for the petitioners. The draft sent by the Department of Personnel &
Training and as modified by the High Court and final decision taken by
the respondent has been filed in the Tabular form. Relevant part of
paragraphs 7, 8 and 9 of the affidavit of Union of India may also be
noticed which are as follows:
F
“7. It is humbly submitted that the Ld. Registrar General of the
Hon’ble High Court of Judicature at Hyderabad, vide letter dated
8.7.2017, had forwarded the modified guidelines and the option
form as approved by the Hon’ble High Court, for further necessary
action. The Draft Guidelines, thus duly modified by the Hon’ble
G the High Court, as stated above, is annexed as ANNEXURE-D.
8. It is respectfully submitted that while the Hon’ble High Court
has accepted most of the Principles for allocation as incorporated
by the Central Government in the Draft Guidelines, a few
modifications have been made by the Hon’ble High Court. The
H significant modification(s) inter-alia include as under:-
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 187
[ASHOK BHUSHAN, J.]
a. ... ... ... ... A
b. ... ... ... ...
c. Modification in descending order of Priority of the
principles to be adopted for allocation of empoloyee by
the Full Court.
The Hon’ble existing High Court of Judicature at B
Hyderabad has modified the Central Government guidelines
and approved the principles of allocation as under:
(a) those who have opted and are senior;
(b) those who have opted for the State in which the district C
declared by them at the time of entering service falls;
(c) if allocable posts still remain, then allocation would be
done in the reverse order of seniority.
The above modifications have been approved by the Full Court
of the Hon’ble existing High Court. The DoPT, Govt. of India D
accepts the above-mentioned modifications which have been
approved by the Hon’ble existing High Court.
9. The draft guidelines as modified by the Hon’ble High Court
and received by the DoPT [vide letter dated 8/7/2017] alongwith
the Department’s proposed modification as mentioned in para 8(a) E
above, is submitted for consideration of this Hon’ble Court, in
compliance with this Hon’ble Court’s order dated 28/4/2017. This
Affidavit is submitted on behalf of the DoPT, Govt. of India in
compliance with the order dated 28.04.2017 for kind consideration
by this Hon’ble Court towards finalization of the Guidelines for
allocation/ distribution of judicial officers between the two States.” F
10. Shri Salman Khurshid and Shri Huzefa Ahmadi, learned senior
counsel have appeared for the writ petitioners. Shri R. Venkatramani
has appeared for the High Court. Shri Maninder Singh, learned Additional
Solicitor General of India has appeared for Union of India. Shri V.V.S.
Rao, learned senior counsel has appeared for the State of Andhra G
Pradesh. Shri B. Adinarayana Rao, learned senior counsel has appeared
for the Andhra Pradesh Judicial Officers Association. We have also
heard learned counsel for the State of Telangana.
11. Learned counsel for the parties have confined their submissions
only to the guidelines for allocation as modified by the High Court. H
188 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 12. Shri Salman Khurshid and Shri Huzefa Ahmadi learned senior
counsel appearing for the petitioners contends that modified guidelines
issued by the High Court whereunder option of those who are senior has
to be first accepted, causes prejudice to officers of Telangana. It is
submitted that the ratio of Judicial Officers from Telangana as compared
to those from State of Andhra Pradesh has always been less. The main
B
object of bifurcation of existing State of Andhra Pradesh and formation
of Telangana State is for betterment of socio-economic conditions and
to fulfill the political and other aspirations of the people of Telangana
and to do the justice to the people of Telangana on various fronts. The
High Court by modifying the guidelines for accepting the option had
C watered down the enactment of Act, 2014. The guidelines proposed by
DoPT for option were fully acceptable to the petitioners where initially
in accepting the option preference was to be given to those who had
opted to the State in which District declared at the time of service falls,
which has been subsequently modified by the High Court. He submitted
that by permitting seniors to opt for State of Telangana, there being large
D
number of senior Judicial Officers from Andhra Pradesh, the prospects
of promotion of Officers who belong to Telangana region is being marred
which will be nothing but perpetuating the injustice meted out to them.
13. Learned counsel for the petitioners has also come up with a
submission that Judicial Officers belonging to State of Andhra Pradesh
E may be accommodated in the State of Telangana on deputation basis.
The Officers who have opted State/District of Telangana can be sent
back in the native State of Andhra Pradesh. It is submitted that by the
said suggestion no prejudice will be caused to either of the parties. The
petitioner has also relied on proviso to Section 77(2) of the Act, 2014 in
F support of their submission.
14. The petitioners have also relied on Article 371D of the
Constitution which according to the petitioners was inserted to give
recognition to the aspirations of the people of Andhra Pradesh. Article
371D permits domicile as the basis for appointment to the services.
G 15. Shri Maninder Singh, learned Additional Solicitor General of
India submits that Union of India has already filed compliance affidavit
in pursuance of the order dated 28.04.2017 and the Union of India will
implement the guidelines for allocation which may be approved by this
Court. Although, Department of Personnel & Training has accepted the
revised guidelines submitted by the High Court submitted with the approval
H of the full Court as has been indicated in the compliance affidavit.
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 189
[ASHOK BHUSHAN, J.]
16. Shri R.Venkatramani, learned senior counsel appearing for A
the High Court submits that it is the High Court which has control over
the Subordinate Judiciary as per the constitutional scheme which has to
lay down the guidelines for allocation of State. The High Court while
finalising the guidelines has taken a fair and equitable decision for all
Judicial Officers. It is submitted that domicile has not been provided as
B
any special factor for allocation and the emphasis on domicile as exclusive
criterion to allocation cannot be sustained. The declaration given by the
Officers at the time of entering into the service relating to home District
in the context of service requirement cannot be exhorted to the status of
criteria or norm.
17. It is further submitted that submission of the petitioner that C
Judicial Officers pertaining to State of Telangana are much less as
compared to State of Andhra Pradesh, is not fully correct. It is submitted
that recruitment of Judicial Officers is on all India basis, Officers from
other States including Karnataka, Orissa, Bihar, Tamil Nadu are also in
the service and in allocation of State, thus nativity or home District D
declared cannot serve any substantial basis. Shri Venkatramani submits
that in effect there is no difference in allocation of cadre in respect to
those who had declared District in the State of Telangana as there home
District and under both, the guidelines that is unrevised and revised the
result is same. During the course of submission, Shri Venkatramani was
permitted to submit a chart reflecting the position of allocation of all E
Judicial Officers as per their options. The above chart has also been
submitted by the learned counsel for the respondent.
18. Shri B. Adinarayana Rao, learned senior counsel appearing
for Andhra Pradesh Judicial Officers Association submits that the High
Court has exclusive power and jurisdiction over District Courts and F
Subordinate Courts thereto. In the Constitutional scheme as delineated
by Article 235, it is the High Court who has control over Judicial Service.
In allocation of the Judicial Officers, it is the High Court which is
competent to finalise guidelines and the revised guidelines submitted by
the High Court are perfectly in accordance with law. The due weightage G
to the seniority of the Judicial Officers have to be given which seniority
cannot be taken away to prejudice the Judicial Officers. Those Officers
who had been senior in the combined seniority list cannot be made junior
by accepting guidelines for accepting options as contended by the
petitioners. He further submitted that there is no relevance of place of
birth in public employment. He submits that appointment for Judicial H
190 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Service is made on all India basis, hence, petitioners cannot claim any
special privilege and right in the service only on the ground that they are
native of District which now falls in newly created State of Telangana.
Shri Rao further submits that scheme of allotment as envisaged by Part
VIII of Act, 2014 has no application for the allotment of Judicial Officers
of the District Courts and Courts Subordinate thereto. He submits that
B
power under Article 2, 3 and 4 of the Constitution of India is not absolute.
He submits that revised guidelines approved by the full Court of the
High Court are fully in consonance with Articles 14 and 16 of the
Constitution and protect the rights of Judicial Officers which need no
interference in these writ petitions.
C 19. The submission on behalf of State of Telangana is that
expression “Affairs of the State” featuring in Section 77 of the Act,
2014 necessarily have to be construed to mean all the three organs of
the State including judiciary. In order to render justice to the service
personnel allotted to the two States and to completely eliminate the
D possibility of discrimination it may be prudent to entrust the powers
mentioned in Section 77 to the Central Government because the said
power is in nature of a special power contemplated to meet the exigencies.
The criterion of Domicile is in consonance with the Legislative intent
and the Constitutional spirit embedded in principle of territoriality which
is the heart and soul of any State Reorganisation Act.
E
20. It has also been brought to our notice that the State of
Telangana has already framed new set of Rules, The Telangana State
Judicial Service Rules, 2017. In view of the framing of the Rules, 2017
and further on completion of recruitment in pursuance of order of this
Court which was challenged in the writ petition before the High Court,
F which has been dismissed, nothing survives in the SLP to decide.
21. We have considered the submissions of the learned counsel
for the parties and perused the records.
22. The issue which needs to be considered in the writ petition
G lies in the very narrow compass, i.e., whether the revised guidelines as
submitted by the High Court to respondent No.1 for allocation deserve
to be accepted or not. It is useful to notice the guidelines proposed by
the High Court that is initially proposed and modified guidelines.
23. The High Court’s guidelines which were initially proposed on
26.02.2016 are as follows:
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 191
[ASHOK BHUSHAN, J.]
“1. The allocation shall be done in the order of seniority as available A
on June 02, 2014.Preference shall be given first to those who
have applied for the State in which the District declared by them
at the time of entering service falls.”
24. The guidelines dated 26.02.2016 were sent to the Department
of Personnel & Training. Representation and objections were also B
submitted to the draft guidelines dated 26.02.2016 proposed by the High
Court. The DoPT after considering the objections and representation to
the proposed guidelines sent proposed guidelines by letter dated 29.06.2017
to the High Court. The High Court deliberated on the proposed guidelines
sent by DoPT and vide its letter dated 08.07.2017 communicated the
modified guidelines. The Union of India in its affidavit filed in compliance C
with the order dated 28.07.2017 has brought on record the draft guidelines
as proposed by DoPT, modified guidelines by the High Court and the
decision taken by DoPT in a Tabular Chart filed in Annexure-E to the
affidavit.
25. We may first notice the relevant provisions of Andhra Pradesh D
Re-organization Act, 2014 assented by the President of India and gazetted
on 01.03.2014. By Section 3 of the Act, Telangana State was formed
comprising of territories of existing State of Andhra Pradesh of several
districts as enumerated therein. Section 30 provided that on and from
appointed day, High Court of Judicature at Hyderabad shall be the E
common High Court for the State of Telangana and the State of Andhra
Pradesh till a separate High Court for the State of Andhra Pradesh is
constituted. Part VIII of the Act dealt with provisions as to Services.
Section 76 dealt with All India Services. Section 77 dealt with other
services and Section 78 contains other provisions related to services.
Section 77 and Section 78 which are relevant are extracted as below:- F
“77. Provisions related to other services:(1) Every person
who immediately before the appointed day is serving on
substantive basis in connection with the affairs of the existing
State of Andhra Pradesh shall, on and from that day
provisionally continue to serve in connection with the affairs G
of the State of Andhra Pradesh unless he is required, by
general or special order of the Central Government to serve
provisionally in connection with the affairs of the State of
Telangana:
H
192 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Provided that every direction under this sub-section issued
after the expiry of a period of one year from the appointed
day shall be issued with the consultation of the Governments
of the successor States.
(2) As soon as may be after the appointed day, the Central
B Government shall, by general or special order, determine the
successor State to which every person referred to in sub-
section (1) shall be finally allotted for service, after
consideration of option received by seeking option from the
employees, and the date with effect from which such allotment
shall take effect or be deemed to have taken effect:
C
Provided that even after the allocation has been made,
the Central Government may, in order to meet any deficiency
in the service, depute officers of other State services from
one successor State to the other:
D Provided further that as far as local, district, zonal and
multi-zonal cadres are concerned, the employees shall
continue to serve, on or after the appointed day, in that cadre:
Provided also that the employees of local, district, zonal
and multi-zonal cadres which fall entirely in one of the
E successor States, shall be deemed to be allotted to that
successor State:
Provided also that if a particular zone or multi-zone falls
in both the successor States, then the employees of such zonal
or multi-zonal cadre shall be finally allotted to one or the
F other successor States in terms of the provisions of this sub-
section.
(3) Every person who is finally allotted under the
provisions of sub-section (2) to a successor State shall, if he
is not already serving therein, be made available for serving
in the successor State from such date as may be agreed upon
G
between the Governments of the successor States or, in default
of such agreement, as may be determined by the Central
Government:
Provided that the Central Government shall have the
power to review any of its orders issued under this section.
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 193
[ASHOK BHUSHAN, J.]
78. Other Provisions relating to services:-(1) Nothing in A
this section or in section 77 shall be deemed to affect, on or
after the appointed day, the operation of the provisions of
Chapter I of Part XIV of the Constitution in relation to
determination of the conditions of service of persons serving
in connection with the affairs of the Union or any State:
B
Provided that the conditions of service applicable
immediately before the appointed day in the case of any person
deemed to have been allocated to the State of Andhra Pradesh
or to the State of Telangana under section 77 shall not be
varied to his disadvantage except with the previous approval
of the Central Government. C
(2) All services prior to the appointed day rendered by
a person,—
(a) if he is deemed to have been allocated to any
State under section 77, shall be deemed to have been rendered
in connection with the affairs of that State; D
(b) if he is deemed to have been allocated to the Union in
connection with the administration of the successor State of
Telangana, shall be deemed to have been rendered in
connection with the affairs of the Union,
E
for the purposes of the rules regulating his conditions of
service.
(3) The provisions of section 77 shall not apply in relation
to members of any All-India Service.”
26. Section 80 contemplated establishment of Advisory Committees F
to assist the Government. Section 80 is as follows:
“80. Advisory Committees:(1) The Central Government may,
by order, establish one or more Advisory Committees, within
a period of thirty days from the date of enactment of the Andhra
Pradesh Re-organisation Act, 2014, for the purpose of G
assisting it in regard to––
(a) the discharge of any of its functions under this Part;
and
(b) the ensuring of fair and equitable treatment to all
persons affected by the provisions of this Part and the H
194 SUPREME COURT REPORTS [2018] 13 S.C.R.
A proper consideration of any representations made by such
persons.
(2) The allocation guidelines shall be issued by the Central
Government on or after the date of enactment of the Andhra
Pradesh Re-organisation Act, 2014 and the actual allocation
B of individual employees shall be made by the Central
Government on the recommendations of the Advisory
Committee:
Provided that in case of disagreement or conflict of opinion,
the decision of the Central Government shall be final:
C Provided further that necessary guidelines as and when
required shall be framed by the Central Government or as
the case may be, by the State Advisory Committee which shall
be approved by the Central Government before such
guidelines are issued.
D 27. The Central Government constituted two Advisory Committees,
(i) for the allocation of All India Services officers born on undivided
cadre of the State of Andhra Pradesh under the chairmanship of Shri
Pratyusha Sinha, and, (ii) for other State cadre employees under the
chairmanship of Shri Kamlanathan. Kamlanathan Committee submitted
recommendations for allocation of other State Services.
E
28. The High Court issued guidelines dated 26.02.2016 providing
for procedure of allocation alongwith revised option form. The relevant
provisions for allocation as contained in the guidelines in paragraph 1
provided, as follows:
F “1. The allocation shall be done in the order of seniority as
available on June 02, 2014. Preference shall be given first to
those who have applied for the State in which the District
declared by them at the time of entering service falls.”
29. On basis of aforesaid communication, Officers submitted their
option which were compiled and send by the High Court. As noted above,
G
in the mean time, Writ Petition No.403 of 2014 was filed by Dumpala
Dharmarao, where he had challenged the action of the High Court in
calling for option of the Judicial Officers in the State of Andhra Pradesh.
This Court had passed an Order for status quo on 07.07.2014. Writ
Petition was subsequently dismissed as have been becoming infructuous
H after retirement of Dumpala Dharmarao. As noted above, in pursuance
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 195
[ASHOK BHUSHAN, J.]
of the Order dated 28.04.2017 passed by this Court in W.P.No.85 of A
2015, the guidelines framed by the High Court were treated as draft
guidelines and Union of India was directed to examine the various
suggestions made through representations and place the draft guidelines
before this Court. As noted above, the Compliance Affidavit has been
filed by the Union of India. The Union of India has in its compliance
B
affidavit noted the suggestions on guidelines issued by the High Court,
Telangana State Government, different associations, individuals and
proposed guidelines of Department of Personnel and Training.
30. The High Court vide its letter dated 08.07.2017 again
forwarded modified guidelines for allocation of Judicial Officer in category
of District Judge, Senior Civil Judge and Junior Civil Judge. High Court C
gave suggestions regarding constitution of Advisory Committee which
may include Senior most Judges among the nominated Judges of the
High Court being the Chairman of the Committee. Paragraph 5 of the
draft guidelines contains principles for allocation. Paragraph 5 (i) & (ii)
which are relevant are quoted below:- D
“5. The allocation shall be done keeping in view the
following principles;
(i) The allocation shall be done in the order of seniority
as available on June 01,2014 for each category of
posts. E
(ii) Officers will be considered for allocation in the
following order (a) those who have opted and are
senior; (b) those who have opted for the State in which
the district declared by them at the time of entering
service falls; (c) if allocable posts still remain then
allocation would be done in the reverse F
order of seniority.”
31. The Government of India has brought on record draft guidelines
framed by the Department of Personnel and Training and modified
guidelines as sent by the High Court on 08.07.2017 and the decision of
Department of Personnel and Training. The draft guidelines as forwarded G
by the High Court in Paragraph 5 (i) & (ii) as extracted above have
been accepted by Department of Personnel & Training, which is clear
from Enclosure-E, filed alongwith the compliance affidavit. It is useful
to extract relevant part of Annexure-E containing principles for
allocations. Relevant part of the guidelines are as follows: H
196 SUPREME COURT REPORTS [2018] 13 S.C.R.
A “DRAFT GUIDELINES FOR ALLOCATION OF SUB-
ORDINATE JUDICIAL OFFICERS
S .N o. D raft fram ed by D O PT A s m od ified by R em arks/O b serv a
H igh C o urt -tio n of DO P T
ref erenc e C ol.
(3)
B 1. ... ... ...
2. ... ... ...
3. ... ... ...
4. ... ... ...
5. The a llocatio n sha ll be
C done keep ing in v iew
th e f o llow ing
pr inciples:
i. T he allocatio n sh all b e N o Chan ge A ccep ted
do ne in the o rd e r of
seni ority a s av ailable on
Ju ne 01 , 2 01 4 for each
D category o f p osts .
ii. O ff icers w ill b e O ffi cers w ill be Since the
con sider ed f o r a llo cation co ns ider ed for mo dification s have
in th e fo llow in g o rd er(a) allo cation in the been app ro ved b y
tho se w ho hav e opt ed for fo llow in g order the fu ll co ur t w e
E the State in w hich th e (a) th os e w ho may accept as
dis trict d eclared b y them h a ve o pted and app ro ved by the
at th e tim e o f entering are senio r; (b) H igh C ou rt .
ser vice f alls, f ailing t ho se w ho h ave
w hich as d eterm ined as o pt ed fo r he
per para 5( vii) ; (b ) tho se S tate i n w h ich
w ho h ave op ted and ar e t he d istrict
F seni or; (c) if allo cab le d e clared by
po sts st ill remain then t hem at th e ti me
allocatio n w o uld be d on e o f entering
in the rev erse or d er of s erv ice falls ; (c)
seni ority. if allo cable
p os ts s till
remain th en
G allo cation
w o uld b e do ne
i n the reverse
o r der of
s enio rity.
.. .. .. ..
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 197
[ASHOK BHUSHAN, J.]
32. Now, we come to the challenges which have been raised by A
the petitioners to the guidelines as modified by the High Court and
accepted by the Department of Personnel & Training. Petitioners’
grievance is that draft framed by the Department of Personnel & Training
protected the interest of Judicial Officers of Telangana whereas
modification of the guidelines made by the High Court are prejudicial to
B
the Rights of the Judicial Officers of the State of Telangana. The first
ground of challenge which has been raised by the petitioner is that it is
the Central Government which is competent to issue guidelines as per
Section 77 read with Section 80. The Petitioner submits that the guidelines
which were prepared by the Advisory Committee i.e. Kamalanathan
Committee, ought to have been applied for the Judicial officers also. C
The Parliamentary legislation i.e. Act, 2014, ought to have been
implemented by the High Court by accepting the guidelines of
Kamalanathan Committee. We need to examine the provisions of Act,
2014, in the above context. In the constitutional scheme, Sub-ordinate
Courts, Judicial Officers working therein are under control of the High
D
Court by virtue of Article 235 of the Constitution. The Constitution Bench
of this Court in (1979) 2 SCC 34, Chief Justice of Andhra Pradesh
and other versus L.V.A Dixitulu and others, had occasion to consider
nature of control of the High Court on judicial services. Article 371D as
well as Article 229 and Article 235 of the Constitution of India came for
consideration. Dealing with Article 235, Constitution Bench said that E
control over the sub-ordinate judiciary is vested in the High Court under
Article 235 is exclusive in nature, comprehensive in extent and effective
in operation. Paragraph 39 and 40 of the judgment is as follows:
“39. Article 235 is the pivot around which the entire scheme
of the Chapter revolves. Under it, “the control over district F
courts and courts subordinate thereto including the posting
and promotions of, and the grant of leave to persons
belonging to the judicial service of a State” is vested in the
High Court.
40. The interpretation and scope of Article 235 has been the G
subject of several decisions of this Court. The position
crystalised by these decisions is that the control over the
subordinate judiciary vested in the High Court under Article
235 is exclusive in nature, comprehensive in extent and
effective in operation. It comprehends a wide variety of
matters. Among others, it includes: H
198 SUPREME COURT REPORTS [2018] 13 S.C.R.
A (a) (i) Disciplinary jurisdiction and a complete control
subject only to the power of the Governor in the matter of
appointment, dismissal, removal, reduction in rank of District
Judges, and initial posting and promotion to the cadre of
District Judges. In the exercise of this control, the High Court
can hold inquiries against a member of the subordinate
B
judiciary, impose punishment other than dismissal or removal,
subject, however, to the condition of service, and a right of
appeal, if any, granted thereby and to the giving of an
opportunity of showing cause as required by Article 311(2).
(ii) In Article 235, the word ‘control’ is accompanied by
C the word “vest” which shows that the High Court alone is
made the sole custodian of the control over the Judiciary.
The control vested in the High Court being exclusive, and not
dual, an inquiry into the conduct of a member of the judiciary
can be held by the High Court alone and no other authority,
D (State of West Bengal Vs. Nripendra Nath Bagchi; Shamsher
Singh V. State of Punjab and Punjab and Haryana High Court
Vs. State of Haryana(sub nom Narendra Singh Rao).
(iii) Suspension from service of a member of the judiciary
with a view to hold a disciplinary inquiry.
E (b) Transfers, promotions and confirmation of such
promotions, of persons holding posts in the judicial service,
inferior to that of District Judge.(State of Assam Vs. S.N.Sen
and State of Assam Vs. Kuseswar Saikia).
(c) Transfers of District Judges.(State of Assam Vs. Ranga
F Mahammad and Chandramouleshwar Vs. Patna High Court.)
(d) Recall of District Judges posted on ex-cadre posts or
on deputation on administrative posts. (State of Orissa V.
Sudhansu Sekhar Misra)
(e) Award of selection grade to the members of the judicial
G
service, including District Judges, being their further
promotion after their initial appointment to the cadre.(State
of Assam v. Kuseswar Saikia)
(f) Confirmation of District Judges, who have been on
probation or are officiating, after their initial appointment or
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 199
[ASHOK BHUSHAN, J.]
promotion by the Governor to the cadre of District Judges A
under Article 233.(Punjab and Haryana High Court Vs. State
of Haryana)
(g) Premature or compulsory retirement of Judges of the
District Courts and of Subordinate Courts.(State of U.P. Vs.
Batuk Deo Pati Tripathi)” B
33. The constitutional scheme for vesting the control of the High
Court over the sub-ordinate judiciary was with object and purpose. The
main object was to ensure that judiciary should be independent of the
executive which is constitutional objective and also a Directive Principle
of State Policy as contained in Article 50. Referring of judgment of C
State of U.P. vs. Batuk deo Pati Tripathi, (1978) 2 SCC 102,
Constitution Bench quoted with approval the law laid down by this Court
in Batuk Deo Pati Tripathi in paragraph 43 which is as follows:-
“43. Recently, in State of Uttar Pradesh Vs. Batuk Deo Pati
Tripathi(Supra), this Court succinctly summed up the whole D
position as follows:[(1978) 2 SCC 102, 112(para 14]
The ideal which inspired the provision that the control
over District Courts and courts subordinate thereto shall best
in the High Courts is that those wings of the judiciary should
be independent of the executive...It is an order to effectuate E
that high purpose that Article 235 as construed by the Court
in various decisions requires that all matters relating to the
subordinate judiciary including compulsory retirement and
disciplinary proceedings but excluding the imposition of
punishments falling within the scope of Article 311 and the
first appointments and promotions, should be dealt with and F
decided upon by the High Courts in the exercise of the control
vested in them.”
34. The nature of control of the High Courts over the judiciary
again was elaborately considered by Constitution Bench of this Court in
State of Bihar and Another Versus Bal Mukund sah and Others, G
(2000) 4 SCC 640. The Constitution Bench again reiterated that the
Judicial independence is the very essence and basic structure of the
Constitution. In paragraph 34 and 35, following has been held:-
“34. It has also to be kept in view that judicial independence
is the very essence and basic structure of the Constitution. H
200 SUPREME COURT REPORTS [2018] 13 S.C.R.
A We may also usefully refer to the latest decision of the
Constitution Bench of this Court in Registrar(Admn.), High
Court of Orissa v. Sisir Kanta Satapathy wherein
K.Venkataswami, J., speaking for the Constitution Bench,
made the following pertinent observations in the very first
two paras regarding Articles 233 to 235 of the Constitution
B
of India;
“An independent Judiciary is one of the basic features of the
Constitution of the Republic. Indian Constitution has zealously
guarded independence of Judiciary is doubtless a basic structure
of the Constitution but the said concept of independence has to be
C confined within the four corners of the Constitution and cannot go
beyond the Constitution.”
The Constitution Bench in the aforesaid decision also relied
upon the observations of this Court in All India Judges Assn.
wherein on the topic of regulating the service conditions of the
D Judiciary as permitted by Article 235 read with Article 309, it had
been observed as under; (SCC p.297, para 10)
“The mere fact that Article 309 gives power to the Executive
and the Legislature to prescribe the service conditions of the
Judiciary, does not mean that the Judiciary should have no say in
E the matter. It would be against the spirit of the Constitution to
deny any role to the Judiciary in that behalf, for theoretically it
would not be impossible for the Executive or the Legislature to
turn and twist the tail of the Judiciary by using the said power.
Such a consequence would be against one of the seminal mandates
F of the Constitution, namely, to maintain the independence of the
Judiciary.”
In view of this settled legal position, therefore, even while
operating in the permissible field of regulating other conditions of
service of already-recruited judicial officers by exercising power
G under Article 309, the authorities concerned have to keep in view
the opinion of the High Court of the State concerned and the
same cannot be whisked away.
35. In order to fructify this constitutional intention of preserving
the independence of the Judiciary and for fructifying this basic
requirement, the process of recruitment and appointment to the
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 201
[ASHOK BHUSHAN, J.]
District Judiciary with which we are concerned in the present A
case, is insulated from outside legislative interference by the
Constitution-makers by enacting a complete code for that purpose,
as laid down by Articles 233 and 234, Consultation with the High
Court is therefore, an inevitable essential feature of the exercise
contemplated under these two articles. If any outside independent
B
interference was envisaged by them, nothing prevented the
Founding Fathers from making Articles 233 and 234 subject to
the law enacted by the Legislature of States or Parliament as
was done in the case of other articles as seen earlier.....”
35. The Andhra Pradesh Re-organisation Act, 2014, is a
parliamentary enactment for the re-organisation of existing State as C
referred to in Article 2, Article 3 and Article 4 of the Constitution of
India. Article 4 of the Constitution is as follows:-
“4. (1) Any law referred to in article 2 or article 3 shall
contain such provisions for the amendment of the First
Schedule and the Fourth Schedule as may be necessary to D
give effect to the provisions of the law and may also contain
such supplemental, incidental and consequential provisions
(including provisions as to representation in Parliament and
in the Legislature or Legislatures of the State or States affected
by such law) as Parliament may deem necessary. E
(2) No such law as aforesaid shall be deemed to be an
amendment of this Constitution for the purposes of article
368.”
36. The power under Articles 2 & 3 is subject to other provisions
of the Constitution and is not unfettered. This position of law has been F
considered and elucidated by a Constitution Bench judgment of this Court
in the case of Mangal Singh Vs. Union of India, (1967)2 SCR 109,
at page 112, in the following words:
“..........On the plain words of Article 4, there is no warrant
for the contention advanced by counsel for the appellants G
that the supplemental, incidental and consequential
provisions, which by virtue of Article 4 the Parliament is
competent to make, must be supplemental, incidental or
consequential to the amendment of the First or the Fourth
Schedule. The argument that if it be assumed that the
H
202 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Parliament is invested with this wide power it may conceivably
exercise power to abolish the legislative and judicial organs
of the State altogether is also without substance. We do not
think that any such power is contemplated by Article 4. Power
with which the Parliament is invested by Articles 2 & 3, is
power to admit, establish, or form new States which conform
B
to the democratic pattern envisaged by the Constitution; and
the power which the Parliament may exercise by law is
supplemental, incidental or consequential to the admission,
establishment or formation of a State as contemplated by the
Constitution, and is not power to override the Constitutional
C scheme.........”(Emphasis supplied)
37. Article 4 sub-clause (1) contemplates that any law referred
to in Article 2 or Article 3 shall contain provisions which may also contain
such supplemental, incidental and consequential provisions as Parliament
may deem necessary. The supplemental, incidental and consequential
D provisions are contemplated to effectuate the reorganisation of existing
State or formation of a new State in accordance with the Constitutional
Scheme as contained in the Constitution. Sub-clause (2) of Article 4
clarifies that no such law as referred to in Article 2 and Article 3 shall be
deemed to be an amendment of this Constitution for the purposes of
Article 368. Thus the provision of Andhra Pradesh Reorganisation Act,
E 2014, has to be interpreted in the manner so that any provisions of the
Act, 2014, does not run contrary to the existing Constitutional Scheme.
38. It is true that Section 77 contemplates allotment of State after
consideration of option received by an officer but for interpreting Section
77 and Section 80, the existing constitutional scheme that control of Judicial
F Officer is vested in the High Court can neither be ignored nor given a go
by. From the facts on record, it does appear that Department of Personnel
and Training has understood the provisions in such manner and has
communicated to the High Court to submit a list after taking options
from the officers. The reply affidavit filed by Union of India also clearly
G indicates that stand taken by Union of India is that allocation/distribution
of District Judges and Judicial Officers belonging to sub-ordinate judiciary
had been carried out under the aegis and supervision of the respective
High Courts, on earlier occasions when the reorganisation enactment
was passed. Paragraph 10 of the reply affidavit filed by the Union of
India is extracted as follows:-
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 203
[ASHOK BHUSHAN, J.]
“10. It is most humbly submitted that in so far as the allocation A
of subordinate judicial officers between the two States in
question are concerned, it is necessary to set out factual
position and background facts. It is submitted that even on
earlier occasions of passing of Reorganisation enactments,
the task of allocation/distribution of District Judges and
B
judicial officers belonging to the subordinate judiciary – had
been carried out under the aegis and supervision of the
respective High Courts. For example, in the case of
Reorganization of the State of Madhya Pradesh, State of Uttar
Pradesh as well as State of Bihar, such process had been
followed for the allocation/distribution of District Judges and C
judicial officers belonging to the subordinate judiciary.”
39. We thus are of the view that for preparing guidelines for
allocation of the Judicial officers, the views of the High Court are not to
be ignored and the Union of India, Department of Personnel & Training,
has rightly given due weight to the views of the High Court for allocation. D
However, the scheme of Act, 2014 indicates that final allocation Order
is to be issued as per the statutory provisions, by the Central Government.
The coverage of Section 77 is “Every person who immediately before
the appointed day is serving on substantive basis in connection with the
affairs of the existing State of Andhra Pradesh...” The coverage of
Section 77 is in very wide term which includes every person who is E
serving in connection with the affairs of the existing State. There can be
no denial that Judicial Officers working in the Sub-ordinate Judiciary are
serving in connection with the affairs of the existing State. Thus, there
cannot be any denial that Section 77 also clearly covers the sub-ordinate
judiciary of the State and final allocation Order has to be issued by the F
Central Government after due consultation with the High Court.
40. We are thus of the view that High Court in preparing draft
guidelines and thereafter issuing modified guidelines for allocation of
cadre of Judicial Officers was well within its jurisdiction and its views
required due weight in giving effect to the provisions of Section 77 of the G
Act.
41. The guidelines as modified by the High Court are challenged
by the petitioner on several grounds including violation of their rights
under Article 14 and as to whether the guidelines are fair and equitable
to persons affected by the guidelines. H
204 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 42. Section 80 expressly indicates that in carrying excise by the
Central Government as contemplated under Section 77, there has to be
fair and equal treatment to all persons affected by the provisions of Part
VIII of the Act. The guidelines for allocation of cadre should ensure fair
and equal treatment to all persons affected and they should also conform
the equality clause as enshrined in Article 14 of the Indian Constitution.
B
We have thus to scrutinize the guidelines in this context so as to enable
us to come to a decision that whether guidelines are to be implemented
or not.
43. Now, we come to the core issue raised by the petitioner. The
petitioner submits that Act 6 of 2014 was enacted to redress a historic
C discrimination faced by the residents of State of Telangana of being
denied their fair share of representation in the matter of public services,
education and in the matters of governance and in all other matters such
as Legislative and Executive powers which are normally attributes of
any State. The petitioners have also referred to Statement of Objects of
D the Act, 2014. Statement of Objects of the Act notices:-
“1. The creation of a separate State of Telangana for the
betterment of the social, economic, political and other aspirations
of the people of that region has been a long standing demand.
Pursuant thereto, the Government of India on 9th December, 2009
E announced that the process for formation of a separate State of
Telangana would be initiated. After wide-ranging consultations
on 3rd October, 2013, the Government of India decided to bifurcate
the existing State of Andhra Pradesh.
2. The Andhra Pradesh Reorganisation Bill, 2014 seeks to give
F effect to the aforesaid decision. It aims at reconstituting the existing
State of Andhra Pradesh into two separate States, namely the
State of Andhra Pradesh and the State of Telangana. The proposed
reorganisation will meet the democratic aspirations of the people
of Telangana region and ensure peace, goodwill, progress and
prosperity among all the sections of the people of both successor
G States.”
44. One more article of the Constitution, which has been relied by
the petitioners needs to be noted is Article 371D. Article 371D was
inserted in the Constitution by Constitution (Thirty-second Amendment)
Act, 1973. Article 371D contains a special provision with respect to
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 205
[ASHOK BHUSHAN, J.]
State of Andhra Pradesh. Now, by virtue of Act, 2014 in place of the A
State of Andhra Pradesh “the State of Andhra Pradesh or the State of
Telangana” has been substituted. Article 371D sub-clause(1), sub-
clause(2) and sub-clause(3) provides:-
“371D. Special provisions with respect to the State of Andhra
Pradesh or the State of Telangana.— (1) The President may B
by order made with respect to the State of Andhra Pradesh or the
State of Telangana, provide, having regard to the requirement of
each State, for equitable opportunities and facilities for the people
belonging to different parts of such State, in the matter of public
employment and in the matter of education, and different provisions
may be made for various parts of the States. C
(2) An order made under clause (1) may, in particular,—
(a) require the State Government to organise any class or
classes of posts in a civil service of, or any class or classes of
civil posts under, the State into different local cadres for different D
parts of the State and allot in accordance with such principles
and procedure as may be specified in the order the persons
holding such posts to the local cadres so organised;
(b) specify any part or parts of the State which shall be regarded
as the local area— E
(i) for direct recruitment to posts in any local cadre (whether
organised in pursuance of an order under this article or
constituted otherwise) under the State Government;
(ii) for direct recruitment to posts in any cadre under any
local authority within the State; and F
(iii) for the purposes of admission to any University within
the State or to any other educational institution which is
subject to the control of the State Government;
(c) specify the extent to which, the manner in which and the
conditions subject to which, preference or reservation shall be G
given or made—
(i) in the matter of direct recruitment to posts in any such
cadre referred to in sub-clause (b) as may be specified in
this behalf in the order;
H
206 SUPREME COURT REPORTS [2018] 13 S.C.R.
A (ii) in the matter of admission to any such University or
other educational institution referred to in sub-clause (b) as
may be specified in this behalf in the order,
to or in favour of candidates who have resided or studied for
any period specified in the order in the local area in respect of
B such cadre, University or other educational institution, as the
case may be.
(3) The President may, by order, provide for the constitution of an
Administrative Tribunal for the State of Andhra Pradesh and for
the State of Telangana to exercise such jurisdiction, powers and
C authority [including any jurisdiction, power and authority which
immediately before the commencement of the Constitution (Thirty-
second Amendment) Act, 1973, was exercisable by any court
(other than the Supreme Court) or by any tribunal or other authority]
as may be specified in the order with respect to the following
matters, namely:—
D
Xxxxxxxxxxxxxxxxxxxxxxxx”
45. Special provisions were introduced by way of Article 371D of
the Constitution of India. This amendment was made in order to provide
for equitable distribution of opportunities and facilities to the people
E belonging to the different parts of the State of Andhra Pradesh in matters
of public employment, education etc. The President is empowered to
issue an order to organise the civil posts, create local areas, provide for
preference or reservation in the matter of direct recruitment to services
and in admission into educational institutions. In exercise of the power
under Article 371D the President had issued Andhra Pradesh Public
F Employment (Organisation of Local Cadres and Regulation of Direct
Recruitment) Order, 1975 (hereinafter referred to as “Presidential Order”
for brevity). The said Presidential Order provided for organising the
classes of posts in the civil services of the State into various local cadres
under para 3 and para 4 provide for allotment of persons to such cadres.
G Paras 6 and 7 deal with local cadre and local candidates and Para 8
provide for reservation to such local candidates. The said Presidential
Order thus is limited in its application to the civil posts under the State
and local bodies and had no application to the Courts subordinate thereto.
46. The basis for Article 371D is to provide equal opportunity to
the people of Andhra Pradesh by introducing domicile as the basis for
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 207
[ASHOK BHUSHAN, J.]
appointment to services and admissions in educational institutions, A
however, Article 371D has no application in respect of the appointment
to the posts of District Judges and Judges Subordinate thereto, in view
of the constitutional scheme of separation of powers and express
provisions having been made by the Constitution. The issue was
authoritatively settled by the Constitution Bench of this Court in Chief
B
Justice of Andhra Pradesh & Ors. Vs. L.V.A. Dixitulu & Others,
(1979) 2 SCC 34.
47. In the above case, one of the questions came for consideration
before this Court was as to whether members of Judicial Services of the
State are amenable to the jurisdiction of the Administrative Tribunal,
which was constituted by the President issuing an order under sub- C
clause(3) of Article 371D. The Administrative Tribunal has passed an
order on an application filed by a member of Judicial services setting
aside the order of compulsory retirement passed by High Court. Matter
was taken by the Chief Justice of Andhra Pradesh in this Court challenging
the jurisdiction of the Tribunal. It was contended that Judicial Service is D
not contemplated to be included in the meaning covered by the expression
“any civil service of the State”. This Court held that Statement of Objects
and Reasons of the Bill for insertion of Article 371D does not indicate
that there was any intention on the part of the Parliament to impair or
derogate from the scheme of securing independence of the Judiciary as
enshrined in Articles 229 and 235 of the Constitution. Court further held E
that amendment or abridgement of this basic scheme was never an issue
of debate in Parliament when the Constitution (32nd Amendment) Bill
was considered. The Constitution Bench of this Court in Chief Justice
of Andhra Pradesh & Ors. Vs. L.V.A. Dixitulu (supra) laid down
following in Paragraph Nos. 76, 77, 78 and 80:- F
“76. The Statement of Objects and Reasons does not indicate
that there was any intention, whatever, on the part of the legislature
to impair or derogate from the scheme of securing independence
of the judiciary as enshrined in Articles 229 and 235. Indeed, the
amendment to abridgment of this basic scheme was never an G
issue of debate in Parliament when the Constitution (32nd
Amendment) Bill was considered.
77. One test which may profitably be applied to ascertain whether
the High Court staff and the subordinate judiciary were intended
to be included in clause (3) of Article 371-D is: Will the exclusion H
208 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 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 cannot
but be in the negative. The High Court staff and members of the
Subordinate Judiciary constitute only a fraction of the number of
persons in public employment in the State. Incidentally, it may be
B
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, could be achieved under those
rules which, as subsequently clarified by this Court in State of
C Andhra Pradesh v. V. Reddy, 1973 (1) SCC 99, continued to be
in force as valid law in the territories of the former State of
Hyderabad even after the constitution of the State of Andhra
Pradesh.
78. Let us now apply another test which in the circumstances of
D the case will be decisive. In that connection, we have to see what
consequences will flow if we give this general, undefined and
flexible phrase, “civil services of the State” in Article 371-D(3),
the wider construction so as to include in it the High Court staff
and the members of the subordinate judiciary. The inevitable result
of such an extensive construction will be that the control vested in
E the Chief Justice over the staff of the High Court, and in the High
Court over the Subordinate Judiciary will become shorn of its
substance, efficacy and exclusiveness, and after being processed
through the conduit of the Administrative Tribunal, will pass on
into the hands of the Executive Government, which, under Article
F 371-D(5), is the supreme authority, having full power to confirm,
not to confirm, modify or annul the orders of the Tribunal. Such a
construction will lead to internecine conflict and contradiction, rob
Articles 229 and 235 of their content, make a mockery of the
Directive Principle in Article 50 and the fundamental concept of
the independence of the judiciary, which the Founding Fathers
G have with such anxious concern built into the basic scheme of the
Constitution. Parliament, we are sure, could never have intended
such a strange result. In our quest for the true intention of
Parliament, therefore, we must eschew this wide liberal
interpretation which will defeat or render otiose the scheme of
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 209
[ASHOK BHUSHAN, J.]
Chapters IV and V, Part VI particularised in Articles 229 and A
235, and instead, choose the alternative interpretation according
to which members of the High Court staff and the subordinate
judiciary will not fall within the purview of the phrase “civil services
of the State”. Such a restricted construction will ensure smooth
working of the Constitution and harmony amongst its various
B
provisions.
80. In our opinion, non-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 Court”
which has been designedly adopted in Articles 235 and 229,
respectively, to differentiate them in the scheme of the Constitution C
from the other civil services of the State, gives a clear indication
that posts held by the High Court staff or by the Subordinate
Judiciary were advisedly excluded from the purview of clause (3)
of Article 371-D. The scope of the non obstante provision in clause
(10) which gives an overriding effect to this article is coterminous D
with the ambit of the preceding clauses.”
48. Article 371D having been held by this Court not to be applicable
to Judicial Service, arguments based on Article 371D cannot help the
petitioner. In this context, one of the submissions raised by the petitioners
was that Kamalanathan Committee while framing guidelines for allocation E
of members of Civil Service has taken into consideration the local area
or local cadre etc. No exception can be taken to the guidelines finalised
by Kamalanathan Committee for allocation of cadre of members of Civil
Services of the State, other than Judicial Service, taking clue from Article
371D. Petitioners have referred to guideline No. 18(f) of the
Kamalanathan Committee determining principles guiding allocations read F
with guideline No. 18(n), which also read with the Andhra Pradesh Public
Employment Order, 1975 gives preference in allocation to those who
have opted and who are local candidates to be allocated to that State in
which they are local candidates. The said order dated 29.10.1975 issued
under Article 371D has been relied. G
49. For the reasons already indicated above, the guidelines
formulated by Kamalanathan Committee in context of other Civil Services
are not relevant nor any support can be taken on the basis of said
guidelines.
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210 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 50. It is true that issue of public employment with regard to
Telangana region has a long history. During the period of Nizams under
Mulki Rules, 15 years residential qualification was required for public
employment. For the purposes of this case, we need not dwell any
further with regard to residential requirement of a public employment
since in the present case, we are concerned with the post of Judicial
B
Service and this court has already held that for appointment to the post
of Munsifs, no residential requirement can be prescribed. Parties are
not at variance that recruitment to Judicial Service is on all India basis.
This Court has held that prescribing a particular place of practice as a
prerequisite for seeking employment into the State Judicial Services as
C District Munsifs is unconstitutional and violative of Article 14 of the
Constitution. In J.Panduranga Rao Vs. Andhra Pradesh Public
Service Commission, 1963 (1) SCR 707, this Court laid down
following:-
“If the basis of the impugned rule is that a person who applies
D for appointment to the post of a District Munsif, should have been
enrolled as an Advocate of a High Court, that basis can be satisfied
even if the person is enrolled as an Advocate not of the Andhra
High Court but of any other High Court. All the High Courts have
the same status; all of them stand for the same high traditions of
the Bar and the administration of justice, and advocates enrolled
E in all of them are presumed to follow the same standards and to
subscribe to the same spirit of serving the cause of the
administration of justice. Therefore, in our opinion, the impugned
rule has introduced classification between one class of Advocates
and the rest and the said classification must be said to be irrational
F inasmuch as there is no nexus between the basis of the said
classification and the object intended to be achieved by the relevant
scheme of rules. That being so, it must be held that the decision of
the Andhra High Court in the case of Nallanthighal Bhaktavatsalam
Iyengar is not correct.”
G 51. The nativity for public employment runs counter to the
fundamental right guaranteed under Article 16(2) except when it is
provided by a Parliamentary Law as per exception carved out in Article
16(3) of the Constitution of India. No Parliamentary Law is relied by
the petitioner, which provides residence as an eligibility to the employment
in Judicial Service. In Act, 2014, there is no provision, which expressly
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 211
[ASHOK BHUSHAN, J.]
provides for allotment of the State on the basis of place of birth or A
residence. Sections 77, 78 and 79 of the Act do not refer to allotment on
the basis of place of birth. When for entering into Judicial Service, no
condition can be put regarding residence of particular area for allocation
of a State, consequent to Act, 2014, nativity cannot be sole basis, as is
contended by the petitioner. It is true that the State of Telangana stand
B
formed to realise the democratic aspirations of the people of Telangana.
We have noticed the Statement of Objects and Reasons of Act, 2014,
which clearly establish that the creation of a separate State of Telangana
is for the betterment of the social, economic, political and other aspirations
of the people of that region, which contemplated allocation of separate
State of Telangana. The entire Statement of Objects and Reasons does C
not indicate that with respect to public employment, nativity is to play a
dominant role. It is true that Judicial Officers belonging to Telangana
territorial area may have desired or expectation to choose or to opt for
their cadre in Telangana area, which is a legitimate aspiration, but giving
pre-dominance to nativity only is not spelled from any statutory provision
D
or scheme.
52. Section 77 of the Act contemplate a right of giving option as
contemplated by Section 77(2). “Option” has been defined in Black’s
Law Dictionary, Tenth Edition, Page 1268:-
“1. The right or power to choose; something that may be chosen E
the lawyer was running out of options for settlement, 2. An offer
that is included in a formal or informal contract; esp., a contractual
obligation to keep an offer open for a specified period, so that the
offeror cannot revoke the offer during that period the option is
valid because it is supported by consideration.”
F
53. Advanced Law Lexicon by P. Ramanatha Aiyar defines
“option” in following manner:-
“Option. For the purposes of these guidelines—
‘OPTION’ means a right but not an obligation granted to an
employee to apply for shares at a pre-determined price. G
The word ‘option’ is a synonym for ‘choice’ or ‘preference’.
OPTION, CHOICE. We speak of option only as regards one’s
freedom from external constraint in the act of choosing : one
speaks of choice only as the simple act itself. The option or the
H
212 SUPREME COURT REPORTS [2018] 13 S.C.R.
A power of choosing is given: the choice itself is made : hence we
say a thing is at a person’s option.”
54. When a Judicial Officer has been given a right of option to
choose either of the successor State, right of option has to be given
same meaning and content. Right of option can be defeated only when
B there is some impediment in accepting the option. The seniority of a
Judicial Officer is a first criteria for accepting the option. The seniority
in a service is a valuable right of an employee or officer. In service
jurisprudence, several benefits and perquisites are attached to the
seniority. The petitioners are asking that option be accepted not on the
basis of seniority but only on the basis of nativity, i.e. those who are
C senior even if they opt the State option, their option should not be selected
and option of those should be first accepted, who are natives of Telangana.
The petitioner’s apprehension is that in event option of senior officers
are accepted and they are posted in State of Telangana, the future
prospects of promotion of the petitioners shall be marred. Whether the
D officers, who in the seniority list, which was prevalent on the date of
formation of new State, i.e. on 02.06.2014 where senior should loose
their seniority or their seniority cannot be said to play any role on account
of formation of two successor States is the question to be answered.
The aspiration of petitioners that no senior officer, should come to State
of Telangana, which may mar their prospect of promotion is neither in
E accord with the constitutional scheme nor as per ethos of culture of this
country. The modified guidelines submitted by the High Court and
accepted by the DoPT itself at second place give preference to nativity.
Thus, the High Court while formulating the guidelines has tried to balance
the right of option of each Judicial Officer. It is relevant to notice that
F this Court has held in The State of Mysore and another Vs. G.N.
Purohit and others, (1967) SLR 753 that although right to be
considered for promotion is a right, but right to have a chance of promotion
is not protected. In the above case, following has been laid down in
paragraph 10:-
G “10. It is then urged on behalf of the respondents that by
changing the system from district-wise to state-wise the
respondents have been very hard hit and have become very junior.
It appears from the figures supplied by the respondents that there
were 665 Junior Health Inspectors in the old State of Mysore on
November 1, 1956 while only 48 Junior Health Inspectors were
H
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA 213
[ASHOK BHUSHAN, J.]
allotted to the new State of Mysore after the Act. So long as the A
district-wise system continued these 48 persons would naturally
have better chances of promotion in their districts but when the
cadre was made state-wise, these 48 were likely to go down in
the seniority as the list of 1963 actually shows. It is urged that this
has affected their chances of promotion which were protected
B
under the proviso to S.115(7) of the Act, which lays down that the
conditions of service applicable immediately before the appointed
day to the case of any person allotted to the new State shall not
be varied to his disadvantage except with the previous approval
of the Central Government. It is said on behalf of the respondents
that as their chance of promotion have been affected their conditions C
of service have been changed to their disadvantage. We see no
force in this argument because chances of promotion are not
conditions of service. It is enough in this connection to refer to the
State of Orissa v. Durga Charan Dass (A.I.R. 1966 SC 1547).”
55. To the similar effect is judgment of this Court in Mohammad D
Shujat Ali and Others Vs. Union of India and Others, in which in
Para 15, following has been held:-
“15. In the first place, it is not correct to say that there was any
variation in the condition of service in regard to promotion
applicable to non-graduate Supervisors from the erstwhile State E
of Hyderabad immediately prior to November 1, 1956. It is true
that a rule which confers a right of actual promotion or a right to
be considered for promotion is a rule prescribing a condition of
service. This proposition can no longer be disputed in view of
several pronouncements of this Court on the point and particularly
the decision in Mohammad Bhakar v. Y. Krishna Reddy1 where F
this Court, speaking through Mitter, J., said: “Any rule which affects
the promotion of a person relates to his condition of service”. But
when we speak of a right to be considered for promotion, we
must not confuse it with mere chance of promotion — the latter
would certainly not be a condition of service. This Court pointed G
out in State of Mysore v. G.B. Purohit, (1967) 1 SLR 753 that
though a right to be considered for promotion is a condition of
service, mere chances of promotion are not. A rule which merely
affects chances of promotion cannot be regarded as varying a
condition of service. What happened in State of Mysore v. G.B.
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214 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Purohit was that the district wise seniority of Sanitary Inspectors
was changed to State wise seniority and as a result of this change,
the respondents went down in seniority and became very junior.
This, it was urged, affected their chances of promotion which
were protected under the proviso to Section 115 sub-section (7).
This contention was negatived and Wanchoo, J. as he then was,
B
speaking on behalf of this Court observed: “It is said on behalf of
the respondents that as their chances of promotion have been
affected their conditions of service have been changed to their
disadvantage. We see no force in this argument because chances
of promotion are not conditions of service”. Now, here in the
C present case, all that happened as a result of the application of the
Andhra Rules and the enactment of the Andhra Pradesh Rules
was that the number of posts of Assistant Engineers available to
non-graduate Supervisors from the erstwhile Hyderabad State
for promotion, was reduced: originally it was fifty per cent, then it
became thirty-three and one-third per cent, then one in eighteen
D
and ultimately one in twenty-four. The right to be considered for
promotion was not affected but the chances of promotion were
severely reduced. This did not constitute variation in the condition
of service applicable immediately prior to November 1, 1956 and
the proviso to Section 115 sub-section (7) was not attracted. This
E view is completely supported by the decision of a Constitution
Bench of this Court in Ramchandra Shankar Deodhar v. The
State of Maharashtra, (1974) 1 SCC 317.”
56. The petitioners submission that High Court has modified the
guidelines for accepting option without there being any valid reason and
F further no valid reasons have been indicated by the High Court for
modifying the guidelines. In this context, it is relevant to notice that the
draft guidelines, which were initially circulated by the High Court on
26.02.2016 has in the first sentence stated “the allocation shall be done
in the order of seniority as available on 02.06.2014.” The second sentence
read “Preference shall be given first to those who have applied for the
G State in which the District declared by them at the time of entering
service falls”. The above draft guidelines has only been amplified
retaining the initial concept of accepting option on the basis of seniority.
Both the concept as noted above are now reflected in modified guidelines
as guideline No. 5(1) and 5(2) as extracted above. Thus, the argument
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TELANGANA JUDGES ASSOCIATION & ANR. v. UNION OF 215
INDIA & ORS. [ASHOK BHUSHAN, J.]
of the petitioners that guidelines have been substantially changed by the A
High Court without there being any reason cannot be accepted. The
substance of the guidelines are same, which were initially contained in
the draft guidelines and modified guidelines. It was the DoPT, which
has proposed guidelines, where content clause 5.2 was 5.1 of modified
guidelines were proposed as 5.1 was 5.2, which was not accepted by
B
the High Court and Full Court reiterated their earlier principle, which
was initially encapsuled in draft guidelines.
57. We, during course of the submissions, had asked Shri
Venkatramani, learned senior counsel appearing for the High Court to
give a chart indicating the details of options and chart showing details of
Judicial Officers working in both the States of Andhra Pradesh and C
Telangana from 02.06.2014 and the acceptance position of their option.
Detailed chart has been submitted by the High Court, which indicate
that all Judicial Officers belonging to territorial area of Telangana region
have been allocated Telangana State and the option of all the Judicial
Officers, who have opted for Telangana State have been accepted. A D
list of all officers belonging to District Judge Cadre; Civil Judge Senior
Division cadre and Civil Judge, Junior Division cadre has been submitted,
which indicate all officers, who have opted for Telangana State have
been allocated Telangana State.
58. All the Judicial Officers belonging to Telangana State having E
opted and allocated the Telangana State, practically, we do not find any
error in the operation of guidelines finalised by the High Court.
59. In view of foregoing discussions, we are of the view that
modified guidelines as submitted by the High Court vide letter dated
08.07.2017, which has been accepted by DoPT does not suffer from F
any illegality or error. The above guidelines is to be accepted and
approved. In view of the foregoing discussions, we dispose of the writ
petition with direction to respondents to finalise options of all the Judicial
Officers as per the above guideline and complete the process of allocation
within a period of two months from today.
G
60. Now, coming to the Civil Appeals arising out of S.L.P. (C)
No. 18787-18790 of 2016, the appellants themselves in their submissions
have not pressed the quashing of Recruitment 2014 and 2015. Further,
Andhra Pradesh Judicial Service Rules, 2007 as adopted by State of
Telangana, which was quashed by the High Court is now substituted by
H
216 SUPREME COURT REPORTS [2018] 13 S.C.R.
A fresh Rules namely, Telangana State Judicial Service Rules, 2017. All
the issues raised in the above Civil Appeals arising out of special leave
petitions have become academic and needs no consideration. The Civil
Appeals having become virtually infructuous are dismissed accordingly.
The parties shall bear their own costs.
B
Nidhi Jain Matters disposed of.
C
D
E
F
G
H
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