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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (C) NO.85 OF 2015

TELANGANA JUDGES ASSOCIATION & ANR. ... PETITIONERS

VERSUS

UNION OF INDIA & ORS. ... RESPONDENTS WITH

CIVIL APPEAL NOS.10170­10173  0F 2018 (ARISING OUT OF SLP(C)NOS.18787­18790 OF 2016)

STATE OF TELANGANA & ANR. ... APPELLANTS

VERSUS

SARASANI SATYAM & ORS. ... RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. The bifurcation of lower judiciary by State wise strength

of combined State of Andhra Pradesh, consequent to the Andhra

Pradesh Reorgnisation Act, 2014 is the issue which has arisen

in these two cases which have been heard together and are

being decided by this common judgment.

Facts: Writ Petition (C) No.85 of 2015

3. The writ petition has been filed by the Telangana Judges

Association, a registered forum, formed to protect the

interest of the Judicial Officers of State of Telangana. The

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petitioner has challenged the recruitment process initiated by

the High court of the Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh (hereinafter

referred to as 'the High Court') for filling up the post of

Civil Judge (Junior Division). The petitioner's case is that

consequent to the Andhra Pradesh Reorganisation Act,

2014(hereinafter referred to as 'Act, 2014') with effect from

02.06.2014 a new State has been formed, namely, State of

Telangana without permitting the option envisaged in Section

77(2) of the Act, 2014 and without bifurcation of subordinate

judiciary the recruitment process has been initiated which is

not in accordance with law. Petitioner's case is that from the

establishment of the High Court of Andhra Pradesh in the year

1956, there has been inadequate representation of Telangana

Judges in the cadres of Junior Civil Judges, Senior Civil

Judges, District Judges and even Judges  of  the  High  Court.

The impugned notification

issued by respondent No.2 without constituting Telangana State

Judicial Service and without preparing State wise cadre

strength of respective States would affect the seniority as

well as promotion of the Telangana State Judicial Officers

whose strength is at present 25% only in comparison with

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Andhra Pradesh State Judicial Officers.  

4. An advertisement dated 01.02.2014 for recruitment for 97

vacancies of Civil Judges (Junior Division) was published. The

preliminary written examination was notified for 27.04.2014.

The State of Telangana was created as the 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 selection process till a clarification is obtained

from this Court. An application was filed by the High Court in

C.A. No.1867 of 2006 (Malik Mazhar Sultan & Ors. vs. Union

Public Service Commission & Ors.) on which this Court on

07.07.2014 passed an order permitting the status quo. However,

this Court in Malik Mazhar Sultan passed an order on

20.01.2015 clarifying that the process  already initiated for

recruitment of Judicial Officers in the States of Andhra

Pradesh and Telangana by the High Court be proceeded with. The

Chief Justice of the High Court had constituted a Committee of

Judges, which Committee decided to ask the Judicial Officers

in the State of Andhra Pradesh to exercise option with respect

to the newly formed States. Writ Petition(C)No.403 of

2014(Dumpala Dharma Rao vs. High Court of Andhra Pradesh &

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Ors.) was also filed in this Court challenging the proposed

action of the High Court   calling for the option of Judicial

Officers. An application for impleadment by Telangana Judges

Association has  been allowed in Writ Petition No.403 of 2014.

Petitioners have also submitted suggestions for the purpose of

final guidelines for allocation of States services to the

Principal Secretary, Government of Andhra Pradesh. Petitioners

also submitted representation to the Joint Secretary,

Department of Personnel & Training, Government of India dated

02.12.2014 requesting that the guidelines issued by the

Government of India may be made applicable to the Personnel of

Subordinate Judiciary and to take necessary expeditious steps

for allocation of members of Subordinate Judiciary.  

5. In the writ petition petitioner has made the following

prayers:

"(i) Issue writ/writs including a writ in the nature of Mandamus directing the respondents to bifurcate the Lower Judiciary from the erstwhile Andhra Pradesh State Judicial Service and to constitute the Telangana Judicial Service under Articles 233 and 234 of the Constitution of India and fix the cadre strength of each State;

(ii) Issue writ/writs including a writ in the nature of certiorari quashing the Notification dated 05.02.2015 and Notification No.54/2015­RC dated 09.02.2015 issued by the Hon'ble High Court of Judicature at Hyderabad for the State  of Telangana and the State of Andhra Pradesh; and

(iii) pass such other order or orders as are deemed

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fit and necessary in the interest of justice.”

Civil Appeal Nos...............of 2018 (arising out of SLP(C)Nos.18787­18790 of 2018

6. These appeals have been filed by the State of Telangana

against the Division Bench judgment dated 29.04.2016 of the

High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh (herein after

referred to as 'the High Court') deciding Public Interest

Litigation No.31 of 2015 with three other Writ Petitions. In

the Public Interest Litigation filed before the High Court

following prayer was made:

"I therefore pray that this Hon'ble Court may be pleased to issue a Writ, order or direction, more particularly one in the nature of a Writ of Mandamus declaring the action of respondents in not bifurcating the Subordinate Judicial Officers and other Judicial Officers of the erstwhile State of Andhra Pradesh as per Section77 of Andhra Pradesh Reorganisation Act, 2014 and not distributing Subordinate Judicial Officers and other employees to the State of Telangana and to the State of Andhra Pradesh and issuance of impugned notification No.15/2014­RC dated 01.02.2014 and consequential notification No.54/2014­RC dated 05.02.2014 of the second respondent as null and void, arbirary, illegal and violative of Articles 233 and 234 of Constitution of India and Part VIII of A.P. Reorganisation Act, 2014 and consequently direct respondents to distribute the subordinate judicial officers and other judicial employees to both the States and only thereafter make recruitments to the Subordinate Higher Judicial Service and Judicial Service and pass such other order or orders as this

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Hon'ble Court may deem fit and proper.”

7. The High Court after elaborately considering all the

issues dismissed all the writ petitions. The State of

Telangana has by a notification adopted Andhra Pradesh

Judicial Service Rules, 2007 without making any consultation

with the High Court. The recruitment process initiated by the

notification in the year 2014 for 97 posts of Civil Judges and

recruitment process for 34 posts in pursuance of 2015

notification were completed.   After completing the entire

process of selection during pendency of the writ petitions,

the High Court noticed in the judgment that the ratio of

Judicial Officers selected are in the ratio of 60 : 40 per

cent. While dismissing the Public Interest Litigation and Writ

Petitions, the High Court in paragraph 18 held:

"18. In the result, the Public Interest Litigation and the Writ Petitions are dismissed. The respondent – High Court shall compete the process of recruitment initiated in pursuance of 2014 and 2015 Notifications. The respondent – State Governments are directed to take all necessary steps for appointments of the selected candidates, recommended by the High Court at the earliest. 2015 Rules shall not be acted upon and shall not operate since they were not made in consultation with the High Court as provided for under Article 234 of the Constitution. It is open to the State of Telangana to take steps to adapt 2007 Rules afresh, in exercise of the powers under Section 101 of the Act, in consultation with the High Court.”

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8. When these appeals(SLPs) were filed against the judgment

of the High Court dated 29.04.2016, this Court on 15.07.2016

directed these appeals to be listed along with Writ Petition

(C)No.85 of 2015.

This Court on 18.07.2016 took up both, the writ petitions

and these appeals and after hearing learned counsel for the

parties passed a detailed order on 28.04.2017 where this Court

issued following directions:

“....In the background of the above mentioned suggestion, we deem it appropriate to direct that the guidelines issued by the existing High Court be treated as the draft guidelines for the purpose of allotment of the judicial officers to the different cadres in two 4 states. Telangana Judges Association and the State of Telangana as well as the State of Andhra Pradesh and any one of the judicial officers subject to the control of the existing High Court and not belonging to Telangana Judges Association either individually or in their representative capacity may make suggestions within a period of four weeks from today. Any representation made by anyone of the above mentioned bodies shall be made both to the Government of India and the existing High Court and also the copies of the same shall be furnished simultaneously to all the parties before this Court in these two matters.  

The Union of India shall thereafter examine the various suggestions made by anyone of the above mentioned bodies and prepare the draft guidelines in consultation with the existing High Court on or before the 17th of June, 2017 and place the draft guidelines before this Court on the next date of hearing for appropriate further orders.”

9. Consequent upon the above order dated 28.04.2017 an

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affidavit of compliance has been filed by the Union of India.

In pursuance of the order of this Court dated 28.04.2017

respondent No.1 prepared a draft guidelines for allocation of

Subordinate Judicial Officers which was submitted to the High

Court. The High Court after consideration of the draft

guidelines and other inputs decided to submit a revised

guidelines. The revised guidelines as suggested by the High

Court have been brought on record as Encl.E to the affidavit

of the Union of India filed in compliance of order dated

28.04.2017. For the purposes of this case, we need only to

notice the modified guidelines submitted by the High Court in

reference to which submissions have been made by the learned

counsel for the petitioners. The draft sent by the Department

of Personnel & Training and as modified by the High Court and

final decision taken by the respondent has been filed in the

Tabular form. Relevant part of paragraphs 7, 8 and 9 of the

affidavit of Union of India may also be noticed which are as

follows:

“7. It is humbly submitted that the Ld. Registrar General of the Hon'ble High Court of Judicature at Hyderabad, vide letter dated 8.7.2017, had forwarded the modified guidelines and the option form as approved by the Hon'ble High Court, for further necessary action. The Draft Guidelines, thus duly modified by the Hon'ble the High Court, as stated above, is annexed as ANNEXURE­D.

8. It is respectfully submitted that while the

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Hon'ble High Court has accepted most of the Principles for allocation as incorporated by the Central Government in the Draft Guidelines, a few modifications have been made by the Hon'ble High Court. The significant modification(s)  inter­alia include as under:­

a. ... ... ... ... b. ... ... ... ...

c. Modification in descending order of     Priority      of the principles to be        adopted for allocation of empoloyee   by

the Full Court.

The Hon'ble existing High Court of Judicature at Hyderabad has modified the Central Government guidelines and approved the principles of allocation as under:

(a) those who have opted and are   senior;

(b) those who have opted for the  State in which the district  declared by them at the time of  entering service falls;

(c) if allocable posts still  remain, then allocation would

be done in the reverse order  of seniority.

The above modifications have been approved by the Full Court of the Hon'ble existing High Court. The  DoPT,  Govt.  of  India  accepts  the above­mentioned modifications which have been approved by the Hon'ble existing High Court.  

9. The draft guidelines as modified by the Hon'ble  High Court and  received  by  the DoPT [vide letter dated 8/7/2017] alongwith the Department's proposed modification as mentioned in para 8(a) above, is submitted for consideration of this Hon'ble Court, in compliance with this Hon'ble Court's order

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dated 28/4/2017. This Affidavit is submitted on behalf of the DoPT, Govt. of India in compliance with the order dated 28.04.2017 for kind consideration by this Hon'ble Court towards finalization of the Guidelines for allocation/ distribution of judicial officers between the two States.”

10. Shri Salman Khurshid and Shri Huzefa Ahmadi, learned

senior counsel have appeared for the writ petitioners. Shri R.

Venkatramani has appeared for the High Court. Shri Maninder

Singh, learned Additional Solicitor General of India has

appeared for Union of India. Shri V.V.S. Rao, learned senior

counsel has appeared for the State of Andhra Pradesh. Shri B.

Adinarayana Rao, learned senior counsel has appeared for the

Andhra  Pradesh  Judicial Officers  Association.  We  have  also

heard learned counsel for the State of Telangana.  

11. Learned counsel for the parties have confined their

submissions only to the guidelines for allocation as modified

by the High Court.  

12. Shri Salman Khurshid and Shri Huzefa Ahmadi learned

senior  counsel  appearing  for  the  petitioners  contends  that

modified guidelines issued by the High Court whereunder option

of those who are senior has to be first accepted, causes

prejudice to officers of Telangana. It is submitted that the

ratio of Judicial Officers from Telangana as compared to those

from State of Andhra Pradesh has always been less. The main

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object of bifurcation of existing State of Andhra Pradesh and

formation of Telangana State is for betterment of

socio­economic conditions and to fulfill the   political and

other aspirations of the people of Telangana and to do the

justice to the people of Telangana on various fronts. The High

Court by modifying the guidelines for accepting the option had

watered down the enactment of Act, 2014. The guidelines

proposed by DoPT for option were fully acceptable to the

petitioners where initially in accepting the option preference

was to be given to those who had opted to the State in which

District declared at the time of service falls, which has been

subsequently modified by the High Court. He submitted that by

permitting seniors to opt for State of Telangana, there being

large number of senior Judicial Officers from Andhra Pradesh,

the prospects of promotion of Officers who belong to Telangana

region is being marred which will be nothing but perpetuating

the injustice meted out to them.

13. Learned counsel for the petitioners has also come up with

a submission that Judicial Officers belonging to State of

Andhra Pradesh may be accommodated in the State of Telangana

on deputation basis. The Officers who have opted

State/District of Telangana can be sent back in the native

State of Andhra Pradesh. It is submitted that by the said

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suggestion no prejudice will be caused to either of the

parties. The petitioner has also relied on proviso to Section

77(2) of the Act, 2014 in support of their submission.

14. The petitioners have also relied on Article 371D of the

Constitution which according to the petitioners was inserted

to give recognition to the aspirations of the people of Andhra

Pradesh. Article 371D permits domicile as the basis for

appointment to the services.  

15. Shri Maninder Singh, learned Additional Solicitor General

of India submits that Union of India has already filed

compliance affidavit in pursuance of the order dated

28.04.2017 and the Union of India will implement the

guidelines for allocation which may be approved by this Court.

Although, Department of Personnel & Training has accepted the

revised guidelines submitted by the High Court submitted with

the approval of the full Court as has been indicated  in the

compliance affidavit.

16. Shri R.Venkatramani, learned senior counsel appearing for

the High Court submits that it is the High Court which has

control over the Subordinate Judiciary as per the

constitutional scheme which has to lay down the guidelines for

allocation of State. The High Court while finalising the

guidelines has taken a fair and equitable decision for all

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Judicial Officers. It is submitted that domicile has not been

provided as any special factor for allocation and the emphasis

on domicile as exclusive criterion to allocation cannot be

sustained. The declaration given by the Officers at the time

of entering into the service relating to home District in the

context of service requirement cannot be exhorted to the

status of criteria or norm.  

17. It is further submitted that submission of the

petitioner that Judicial Officers pertaining to State of

Telangana are much less as compared to State of Andhra

Pradesh, is not fully correct. It is submitted that

recruitment of Judicial Officers is on all India basis,

Officers from other States including Karnataka, Orissa, Bihar,

Tamil Nadu are also in the service and in allocation of State,

thus nativity or home District declared cannot serve any

substantial basis. Shri Venkatramani submits that in effect

there is no difference in allocation of cadre in respect to

those who had declared District in the State of Telangana as

there home District and under both, the guidelines that is

unrevised and revised the result is same. During the course of

submission, Shri Venkatramani was permitted to submit a chart

reflecting the position of allocation of all Judicial Officers

as per their options. The above chart has also been submitted

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by the learned counsel for the respondent.

18. Shri B. Adinarayana Rao, learned senior counsel appearing

for Andhra Pradesh Judicial Officers Association submits that

the High Court has exclusive power and jurisdiction over

District Courts and Subordinate Courts thereto. In the

Constitutional scheme as delineated by Article 235, it is the

High Court who has control over Judicial Service. In

allocation of the Judicial Officers, it is the High Court

which is competent to finalise guidelines and the revised

guidelines submitted by the High Court are perfectly in

accordance with law. The due weightage to the seniority of the

Judicial Officers have to be given which seniority cannot be

taken away to prejudice the Judicial Officers. Those Officers

who had been senior in the combined seniority list cannot be

made junior by accepting guidelines for accepting options as

contended by the petitioners. He further submitted that there

is no relevance of place of birth in public employment. He

submits that appointment for Judicial Service is made on all

India basis, hence, petitioners cannot claim any special

privilege and right in the service only on the ground that

they are native of District which now falls in newly created

State of Telangana. Shri Rao further submits that scheme of

allotment as envisaged by Part VIII of Act, 2014 has no

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application for the allotment of Judicial Officers of the

District  Courts and Courts  Subordinate  thereto. He  submits

that power under Article 2, 3 and 4 of the Constitution of

India is not absolute.   He submits that revised guidelines

approved by the full Court of the High Court are fully in

consonance with Articles 14 and 16 of the Constitution and

protect the rights of Judicial Officers which need no

interference in these writ petitions.  

19. The submission on behalf of State of Telangana is that

expression “Affairs of the State” featuring in Section 77 of

the Act, 2014 necessarily have to be construed to mean all the

three organs of the State including judiciary.   In order to

render justice to the service personnel allotted to the two

States and to completely eliminate the possibility of

discrimination it may be prudent to entrust the powers

mentioned in Section 77 to the Central Government because the

said power is in nature of a special power contemplated to

meet the exigencies. The criterion of Domicile is in

consonance with the Legislative intent and the Constitutional

spirit embedded in principle of territoriality which is the

heart and soul of any State Reorganisation Act.  

20. It has also been brought to our notice that the State of

Telangana has already framed new set of Rules, The Telangana

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State Judicial Service Rules, 2017. In view of the framing  of

the Rules, 2017 and further on completion of recruitment in

pursuance of order of this Court which was challenged in the

writ petition before the High Court, which has been dismissed,

nothing survives in the SLP to decide.  

21. We have considered the submissions of the learned counsel

for the parties and perused the records.

22. The issue which needs to be considered in the writ

petition lies in the very narrow compass, i.e., whether the

revised guidelines as submitted by the High Court to

respondent No.1 for allocation deserve to be accepted or not.

It is useful to notice the guidelines proposed by the High

Court that is initially proposed and modified guidelines.  

23. The High Court's guidelines which were initially proposed

on 26.02.2016 are as follows:

"1. The allocation shall be done in the order  of seniority as available on June 02,  2014.Preference shall be given first to  those who have applied for the State in  which the District declared by them at  the time of entering service falls.”

24. The guidelines dated 26.02.2016 were sent to the

Department of Personnel & Training. Representation and

objections were also submitted to the draft guidelines dated

26.02.2016 proposed by the High Court. The DoPT after

considering the objections and representation to the proposed

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guidelines sent proposed guidelines by letter dated 29.06.2017

to the High Court. The High Court deliberated on the proposed

guidelines sent by DoPT and vide its letter dated 08.07.2017

communicated the modified guidelines. The Union of India in

its affidavit filed in compliance with the order dated

28.07.2017 has brought on record the draft guidelines as

proposed by DoPT, modified guidelines by the High Court and

the decision taken by DoPT in a Tabular Chart filed in

Annexure­E to the affidavit.

25. We may first notice the relevant provisions of Andhra

Pradesh Re­organization Act, 2014 assented by the President of

India and gazetted on 01.03.2014. By Section 3 of the Act,

Telangana State was formed comprising of territories of

existing State of Andhra Pradesh of several districts as

enumerated therein. Section 30 provided that on and from

appointed day, High Court of Judicature at Hyderabad shall be

the common High Court for the State of Telangana and the State

of Andhra Pradesh till a separate High Court for the State of

Andhra Pradesh is constituted. Part VIII of the Act dealt with

provisions as to Services. Section 76 dealt with All India

Services. Section 77 dealt with other services and Section 78

contains other provisions related to services. Section 77 and

Section 78 which are relevant are extracted as below:­

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"77.  Provisions related to other services:(1) Every person who immediately before the appointed day is serving on substantive basis in connection with the affairs of the existing State of Andhra Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Andhra Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Telangana:  

Provided that every direction under this sub­section issued after the expiry of a period of one year from the appointed day shall be issued with the consultation of the Governments of the successor States.

(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub­section (1) shall be finally allotted for service, after consideration of option received by seeking option from the employees, and the date with effect from which such allotment shall take effect or be deemed to have taken effect:

Provided  that  even after the  allocation  has been made, the Central Government may, in order to meet any deficiency in the service, depute officers of other State services from one successor State to the other:  

Provided further that as far as local, district, zonal and multi­zonal cadres are concerned, the employees shall continue to serve, on or after the appointed day, in that cadre:  

Provided also that the employees of local, district, zonal and multi­zonal cadres which fall entirely in one of the successor States, shall be deemed to be allotted to that successor State:  

Provided also that if a particular zone or multi­zone falls in both the successor States, then the employees of such zonal or multi­zonal cadre shall be finally allotted to one or the other successor States in terms of the provisions

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of this sub­section.  

(3) Every person who is finally allotted under the provisions of sub­section (2) to a successor State shall, if he is not already serving therein, be made available for serving in the successor State from such date as may be agreed upon between the Governments of the successor States or, in default of such agreement, as may be determined by the Central Government:  

Provided that the Central Government shall have the power to review any of its orders issued under this section.  

78. Other Provisions relating to services:­(1) Nothing in this section or in section 77 shall be deemed to affect, on or after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Andhra Pradesh or to the State of Telangana under section 77 shall not be varied to his disadvantage except with the previous approval of the Central Government.  

(2) All services prior to the appointed day rendered by a person,—

(a) if he is deemed to have been  allocated to any State under section 77,  shall be deemed to have been rendered in  connection with the affairs of that  State;  

(b) if he is deemed to have been  allocated to the Union in connection  with the administration of the successor  State of Telangana, shall be deemed to  have been rendered in connection with  the affairs of the Union,  

for the purposes of the rules regulating his

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conditions of service.  

(3) The provisions of section 77 shall not apply in relation to members of any All­India Service.”

26. Section 80 contemplated establishment of Advisory

Committees to assist the Government. Section 80 is as follows:

"80.  Advisory Committees:(1) The Central Government may, by order, establish one or more Advisory Committees, within a period of thirty days from the date of enactment of the Andhra Pradesh Re­organisation Act, 2014, for the purpose of assisting it in regard to––  

(a) the discharge of any of its  functions under this Part; and  

(b) the ensuring of fair and equitable   treatment to all persons affected by  the   provisions of this Part and the  proper   consideration of any  representations  made

by such  persons.  

(2) The allocation guidelines shall be issued by the Central Government on or after the date of enactment of the Andhra Pradesh Re­organisation Act, 2014 and the actual allocation of individual employees shall be made by the Central Government on the recommendations of the Advisory Committee:

Provided that in case of disagreement or conflict of opinion, the decision of the Central Government shall be final: Provided further that necessary guidelines as and when required shall be framed by the Central Government or as the case may be, by the State Advisory Committee which shall be approved by the Central Government before such guidelines are issued.

27. The Central Government constituted two Advisory

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Committees, (i) for the allocation of All India Services

officers born on undivided cadre of the State of Andhra

Pradesh under the chairmanship of Shri Pratyusha Sinha, and,

(ii) for other State cadre employees under the chairmanship of

Shri Kamlanathan. Kamlanathan Committee submitted

recommendations for allocation of other State Services.

28. The High Court issued guidelines dated 26.02.2016

providing for procedure of allocation alongwith revised option

form. The relevant provisions for allocation as contained in

the guidelines in paragraph 1 provided, as follows:

"1. The allocation shall be done in the order of seniority as available on June 02, 2014. Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls.”

29. On basis of aforesaid communication, Officers submitted

their option which were compiled and send by the High Court.

As noted above, in the mean time, Writ Petition No.403 of 2014

was filed by Dumpala Dharmarao, where he had challenged the

action of the High Court in calling for option of the Judicial

Officers in the State of Andhra Pradesh. This Court had passed

an Order for status quo on 07.07.2014. Writ Petition was

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subsequently dismissed as have been becoming infructuous after

retirement of Dumpala Dharmarao. As noted above, in pursuance

of the Order dated 28.04.2017 passed by this Court in

W.P.No.85 of 2015, the guidelines framed by the High Court

were treated as draft guidelines and Union of India was

directed to examine the various suggestions made through

representations and place  the  draft guidelines  before  this

Court. As noted above, the Compliance Affidavit has been filed

by the Union of India. The Union of India has in its

compliance affidavit noted the suggestions on guidelines

issued by the High Court, Telangana State Government,

different associations, individuals and proposed guidelines of

Department of Personnel and Training.

30. The High Court vide its letter dated 08.07.2017 again

forwarded modified guidelines for allocation of Judicial

Officer in category of District Judge, Senior Civil Judge and

Junior Civil Judge. High Court gave suggestions regarding

constitution of Advisory Committee which may include Senior

most Judges among the nominated Judges of the High Court being

the Chairman of the Committee. Paragraph 5 of the draft

guidelines contains principles for allocation. Paragraph 5 (i)

& (ii) which are relevant are quoted below:­

"5. The allocation shall be done keeping in  

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view the following principles;

(i) The allocation shall be done in the  order of seniority as available on June  01,2014 for each category of posts.

(ii) Officers will be considered for  allocation in the following order (a)  those who have opted and are senior; (b)  those who have opted for the State in  which the district declared by them at  the time of entering service falls; (c)  if allocable posts still remain then  

allocation would be done in the reverse  order of seniority.”

31. The Government of India has brought on record draft

guidelines framed by the Department of Personnel and Training

and modified guidelines as sent by the High Court on

08.07.2017 and the decision of Department of Personnel and

Training. The draft guidelines as forwarded by the High Court

in Paragraph 5 (i) & (ii) as extracted above have been

accepted by Department of Personnel & Training, which is clear

from Enclosure­E, filed alongwith the compliance affidavit. It

is useful to extract relevant part of Annexure­E containing

principles for allocations. Relevant part of the guidelines

are as follows:

"DRAFT GUIDELINES FOR ALLOCATION OF SUB­ORDINATE JUDICIAL OFFICERS

S.No. Draft framed by DOPT As modified by High Court

Remarks/Observa ­tion of DOPT reference Col.

(3)

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1. ... ... ...

2. ... ... ...

3. ... ... ...

4. ... ... ...

5. The allocation shall be done keeping in view the following principles:

i. The allocation shall be done in the order of seniority as available on June 01, 2014 for each category of posts.

No Change Accepted

ii. Officers will be considered for allocation in the following order(a) those who have opted for the State in which the district declared by them at the time of entering service falls, failing which as determined as per para 5(vii); (b) those who have opted and are senior; (c) if allocable posts still remain then allocation would be done in the reverse order of seniority.

Officers will be considered   for allocation in the following order (a) those who have opted and are senior; (b) those who have opted for he State in which the district declared by them at the time of entering service falls; (c) if allocable posts still remain then allocation would be done in the reverse order of seniority.

Since the modifications have been approved by the full court we may accept as approved by the High Court.  

.. .. .. ..

25

32. Now, we come to the challenges which have been raised by

the petitioners to the guidelines as modified by the High

Court and accepted by the Department of Personnel & Training.

Petitioners’ grievance is that draft framed by the Department

of Personnel & Training protected the interest of Judicial

Officers of Telangana whereas modification of the guidelines

made by the High Court are prejudicial to the Rights of the

Judicial Officers of the State of Telangana. The first ground

of challenge which has been raised by the petitioner is that

it is the Central Government which is competent to issue

guidelines as per Section 77 read with Section 80. The

Petitioner submits that the guidelines which were prepared by

the Advisory Committee i.e. Kamalanathan Committee, ought to

have been applied for the Judicial officers also. The

Parliamentary legislation i.e. Act, 2014, ought to have been

implemented by the High Court by accepting the guidelines of

Kamalanathan Committee. We need to examine the provisions of

Act, 2014, in the above context. In the constitutional scheme,

Sub­ordinate Courts, Judicial Officers working therein are

under control of the High Court by virtue of Article 235 of

the Constitution. The Constitution Bench of this Court in

(1979) 2 SCC 34, Chief Justice of Andhra Pradesh and other

versus L.V.A Dixitulu and others,  had occasion to consider

26

nature of control of the High Court on judicial services.

Article 371D as well as Article 229 and Article 235 of the

Constitution  of India  came  for  consideration.  Dealing  with

Article 235, Constitution Bench said that control over the

sub­ordinate judiciary is vested in the High Court under

Article 235 is exclusive in nature, comprehensive in extent

and effective in operation. Paragraph 39 and 40 of the

judgment is as follows:

"39. Article 235 is the pivot around which the entire scheme of the Chapter revolves. Under it, “the control over district courts and courts subordinate thereto including the posting and promotions of, and the grant of leave to persons belonging to the judicial service of a State” is vested in the High Court.

40. The interpretation and scope of Article 235 has been the subject of several decisions of this Court. The position crystalised by these decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes:

(a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal, subject, however, to the condition of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing

27

cause as required by Article 311(2).

(ii) In Article 235, the word 'control' is accompanied by the word “vest” which shows that the High Court alone is made the sole custodian of the control over the Judiciary. The control vested in the High Court being exclusive, and not dual, an inquiry into the conduct of a member of the judiciary can be held by the High Court alone and no other authority, (State of West Bengal Vs. Nripendra Nath Bagchi; Shamsher Singh V. State of Punjab and Punjab and Haryana High Court Vs. State of Haryana(sub nom Narendra Singh Rao).

(iii) Suspension from service of a member of the judiciary with a view to hold a disciplinary inquiry.

(b) Transfers, promotions and confirmation of such promotions, of persons holding posts in the judicial service, inferior to that of District Judge.(State of Assam Vs. S.N.Sen and State of Assam Vs. Kuseswar Saikia).

(c) Transfers of District Judges.(State of Assam Vs. Ranga Mahammad and Chandramouleshwar Vs. Patna High Court.)

(d) Recall of District Judges posted on ex­cadre posts or on deputation on administrative posts. (State of Orissa V. Sudhansu Sekhar Misra)

(e) Award of selection grade to the members of the judicial service, including District Judges, being their further promotion after their initial appointment to the cadre.(State of Assam v. Kuseswar Saikia)

(f) Confirmation of District Judges, who have been on probation or are officiating, after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233.(Punjab and Haryana High Court Vs. State of Haryana)

(g) Premature or compulsory retirement of Judges of the District Courts and of Subordinate Courts.(State of U.P. Vs. Batuk Deo Pati Tripathi)”

28

33. The constitutional scheme for vesting the control of the

High Court over the sub­ordinate judiciary was with object and

purpose. The main object was to ensure that judiciary should

be independent of the executive which is constitutional

objective and also a Directive Principle of State Policy as

contained in Article 50. Referring of judgment of  State of

U.P. vs. Batuk deo Pati Tripathi, (1978) 2 SCC 102,

Constitution Bench quoted with approval the law laid down by

this Court in Batuk Deo Pati Tripathi in paragraph 43 which is

as follows:­

"43. Recently, in  State of Uttar Pradesh Vs. Batuk Deo Pati Tripathi(Supra), this Court succinctly summed up the whole position as follows:[(1978) 2 SCC 102, 112(para 14]  

The  ideal  which  inspired the  provision  that the control over District Courts and courts subordinate thereto shall best in the High Courts is that those wings of the judiciary should be independent of the executive...It is an order to effectuate that high purpose that Article 235 as construed by the Court in various decisions requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promotions, should be dealt with and decided upon by the High Courts in the exercise of the control vested in them.”

34. The nature of control of the High Courts over the

29

judiciary again was elaborately considered by Constitution

Bench of this Court in State of Bihar and Another Versus Bal

Mukund sah and Others, (2000) 4 SCC 640. The Constitution

Bench again reiterated that the Judicial independence is the

very essence and basic structure of the Constitution. In

paragraph 34 and 35, following has been held:­

"34. It has also to be kept in view that judicial independence is the very essence and basic structure of the Constitution. We may also usefully refer to the latest decision of the Constitution Bench of this Court in Registrar(Admn.), High Court of Orissa v. Sisir Kanta Satapathy wherein K.Venkataswami, J., speaking for the Constitution Bench, made the following pertinent observations in the very first two paras regarding Articles 233 to 235 of the Constitution of India;

"An independent Judiciary is one of the basic features of the Constitution of the Republic. Indian Constitution has zealously guarded independence of Judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution.”

The Constitution Bench in the aforesaid decision also relied upon the observations of this Court in All India Judges Assn. wherein on the topic of regulating the service conditions of the Judiciary as permitted by Article 235 read with Article 309, it had been observed as under; (SCC p.297, para 10)

"The mere fact that Article 309 gives power to the Executive and the Legislature to prescribe the service conditions of the Judiciary, does not mean that the Judiciary should have no say in the matter. It would be against the spirit of the Constitution to deny any role to the Judiciary in

30

that behalf, for theoretically it would not be impossible for the Executive or the Legislature to turn and twist the tail of the Judiciary by using the said power. Such a consequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the Judiciary.”

In view of this settled legal position, therefore, even while operating in the permissible field of regulating other conditions of service of already­recruited judicial officers by exercising power under Article 309, the authorities concerned have to keep in view the opinion of the High Court of the State concerned and the same cannot be whisked away.

35. In order to fructify this constitutional intention of preserving  the  independence of  the Judiciary and for fructifying this basic requirement, the process of recruitment and appointment to the District Judiciary with which we are concerned in the present case, is insulated from outside legislative interference by the Constitution­makers by enacting a complete code for that purpose, as laid down by Articles 233 and 234, Consultation with the High Court is therefore, an inevitable essential feature of the exercise contemplated under these two articles. If any outside independent interference was envisaged by them, nothing prevented the Founding  Fathers from making Articles 233 and 234 subject to the law enacted by the Legislature of States or Parliament as was done in the case of other articles as seen earlier.....”

35. The Andhra Pradesh Re­organisation Act, 2014, is a

parliamentary enactment for the re­organisation of existing

State as referred to in Article 2, Article 3 and Article 4 of

the Constitution of India. Article 4 of the Constitution is as

follows:­

31

“4.  (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.  

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.”

36. The power under Articles 2 & 3 is subject to other

provisions of the Constitution and is not unfettered. This

position of law has been considered and elucidated by a

Constitution Bench judgment of this Court in the case of

Mangal Singh Vs. Union of India, (1967)2 SCR 109, at page 112,

in the following words:

"..........On the plain words of Article 4, there is no warrant for the contention advanced by counsel for the appellants that the supplemental, incidental and consequential provisions, which by virtue of Article 4 the Parliament is competent to make, must be supplemental, incidental or consequential to the amendment of the First or the Fourth Schedule. The argument that if it be assumed that the Parliament is invested with this wide power it may conceivably exercise power to abolish the legislative and judicial organs of the State altogether is also without  substance.  We  do not  think  that  any  such power is contemplated by Article 4. Power with which the Parliament is invested by Articles 2 & 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the

32

Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the Constitutional scheme.........”(Emphasis supplied)

37. Article 4 sub­clause (1) contemplates that any law

referred to in Article 2 or Article 3 shall contain provisions

which may also contain  such supplemental, incidental and

consequential provisions as Parliament may deem necessary. The

supplemental, incidental and consequential provisions are

contemplated to effectuate the reorganisation of existing

State or formation of a new State in accordance with the

Constitutional Scheme as contained in the Constitution.

Sub­clause (2) of Article 4 clarifies that no such law as

referred to in Article 2 and Article 3 shall be deemed to be

an amendment of this Constitution for the purposes of Article

368. Thus the provision of Andhra Pradesh Reorganisation Act,

2014, has to be interpreted in the manner so that any

provisions of the Act, 2014, does not run contrary to the

existing Constitutional Scheme.  

38. It is true that Section 77 contemplates allotment of

State after consideration of option received by an officer but

for interpreting Section 77 and Section 80, the existing

constitutional scheme that control of Judicial Officer is

33

vested in the High Court can neither be ignored nor given a go

by. From the facts on record, it does appear that Department

of Personnel and Training has understood the provisions in

such manner and has communicated to the High Court to submit a

list after taking options from the officers. The reply

affidavit filed by Union of India also clearly indicates that

stand taken by Union of India is that allocation/distribution

of District Judges and Judicial Officers belonging to

sub­ordinate judiciary had been carried out under the aegis

and supervision of the respective High Courts, on earlier

occasions when the reorganisation enactment was passed.

Paragraph 10 of the reply affidavit filed by the Union of

India is extracted as follows:­

”10. It is most humbly submitted that in so far as the allocation of subordinate judicial officers between the two States in question are concerned, it is necessary to set out factual position and background facts. It is submitted that even on earlier occasions of passing of Reorganisation enactments, the task of allocation/distribution of District Judges and judicial officers belonging to the subordinate judiciary – had been carried out under the aegis and supervision of the respective High Courts. For example, in the case of Reorganization of the State of Madhya Pradesh, State of Uttar Pradesh as well as State of Bihar, such process had been followed for the allocation/distribution of District Judges and judicial officers belonging to the subordinate judiciary.”

34

39. We thus are of the view that for preparing guidelines for

allocation of the Judicial officers, the views of the High

Court are not to be ignored and the Union of India, Department

of Personnel & Training, has rightly given due weight to the

views of the High Court for allocation. However, the scheme of

Act, 2014 indicates that final allocation Order is to be

issued as per the statutory provisions, by the Central

Government. The coverage of Section 77 is “Every person who

immediately before the appointed day is serving on substantive

basis in connection with the affairs of the existing State of

Andhra Pradesh...” The coverage of Section 77 is in very wide

term which includes every person who is serving in connection

with the affairs of the existing State. There can be no denial

that Judicial Officers working in the Sub­ordinate Judiciary

are serving in connection with the affairs of the existing

State. Thus, there cannot be any denial that Section 77 also

clearly covers the sub­ordinate judiciary of the State and

final allocation Order has to be issued by the Central

Government after due consultation with the High Court.  

40. We are thus of the view that High Court in preparing

draft guidelines and thereafter issuing modified guidelines

for allocation of cadre of Judicial Officers was well within

its jurisdiction and its views required due weight in giving

35

effect to the provisions of Section 77 of the Act.  

41. The guidelines as modified by the High Court are

challenged by the petitioner on several grounds including

violation of their rights under Article 14 and as to whether

the guidelines are fair and equitable to persons affected by

the guidelines.  

42. Section 80 expressly indicates that in carrying excise by

the Central Government as contemplated under Section 77, there

has to be fair and equal treatment to all persons affected by

the provisions of Part VIII of the Act. The guidelines for

allocation of cadre should ensure fair and equal treatment to

all persons affected and they should also conform the equality

clause as enshrined in Article 14 of the Indian Constitution.

We have thus to scrutinize the guidelines in this context so

as to enable us to come to a decision that whether guidelines

are to be implemented or not.

43. Now, we come to the core issue raised by the petitioner.

The petitioner submits that Act 6 of 2014 was enacted to

redress a historic discrimination faced by the residents of

State of Telangana of being denied their fair share of

representation in the matter of public services, education and

in the matters of governance and in all other matters such as

36

Legislative and Executive powers which are normally attributes

of any State.  The petitioners have also referred to Statement

of Objects of the Act, 2014.  Statement of Objects of the Act

notices:­

“1.   The creation of a separate State of Telangana for the betterment of the social, economic, political and other aspirations of the people of that region has been a long standing demand. Pursuant thereto, the Government of India on 9th December, 2009 announced that the process for formation of a separate State of Telangana would be initiated. After wide­ranging consultations on 3rd October, 2013, the Government of India decided to bifurcate the existing State of Andhra Pradesh.  

2.   The Andhra Pradesh Reorganisation Bill, 2014 seeks to give effect to the aforesaid decision. It aims at reconstituting the existing State of Andhra Pradesh into two separate States, namely the State of Andhra Pradesh and the State of Telangana. The proposed reorganisation will meet the democratic aspirations of the people of Telangana region and ensure peace, goodwill, progress and prosperity among all the sections of the people of both successor States.”

44. One more article of the Constitution, which has been

relied by the petitioners needs to be noted is Article 371D.

Article 371D was inserted in the Constitution by Constitution

(Thirty­second Amendment) Act, 1973.  Article 371D contains a

special provision with respect to State of Andhra Pradesh.

Now, by virtue of Act, 2014 in place of the State of Andhra

Pradesh “the State of Andhra Pradesh or the State of

Telangana” has been substituted.  Article 371D sub­clause(1),

37

sub­clause(2) and sub­clause(3) provides:­

“371D.  Special provisions with respect to the State of Andhra Pradesh or the State of Telangana.­­  (1) The President may by order made with respect to the State of Andhra Pradesh or the State of Telangana, provide, having regard to the requirement of each State, for equitable opportunities and facilities for the people belonging to different parts of such State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the States.  (2) An order made under clause (1) may, in particular,—  (a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised;  (b) specify any part or parts of the State which shall be regarded as the local area—  

(i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government;  (ii) for direct recruitment to posts in any cadre under any local authority within the State; and  (iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government;  

(c) specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made—  

(i) in the matter of direct recruitment to posts in any such cadre referred to in sub­clause (b) as may be specified in this behalf in the order; (ii) in the matter of admission to any such University or other educational institution referred to in sub­clause (b) as may be specified in this behalf in the order,

38

to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be.  

(3) The President may, by order, provide for the constitution of an Administrative Tribunal for the State of Andhra Pradesh and for the State of Telangana to exercise such jurisdiction, powers and authority [including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty­second Amendment) Act, 1973, was exercisable by any court (other than the Supreme Court) or by any tribunal or other authority] as may be specified in the order with respect to the following matters, namely:—  

Xxxxxxxxxxxxxxxxxxxxxxxx”

45. Special provisions were introduced by way of Article 371D

of the Constitution of India.   This amendment was made in

order to provide for equitable distribution of opportunities

and facilities to the people belonging to the different parts

of the State of Andhra Pradesh in matters of public

employment, education etc.   The President is empowered to

issue an order to organise the civil posts, create local

areas, provide for preference or reservation in the matter of

direct recruitment to services and in admission into

educational institutions.   In exercise of the power under

Article 371D the President had issued Andhra Pradesh Public

Employment  (Organisation  of Local  Cadres  and  Regulation of

Direct Recruitment) Order, 1975 (hereinafter referred to as

“Presidential Order” for brevity).   The said Presidential

39

Order provided for organising the classes of posts in the

civil services of the State into various local cadres under

para 3 and para 4 provide for allotment of persons to such

cadres.   Paras 6 and 7 deal with local cadre and local

candidates and Para 8 provide for reservation to such local

candidates.   The said Presidential Order thus is limited in

its application to the civil posts under the State and local

bodies and had no application to the Courts subordinate

thereto.   

46. The basis for Article 371D is to provide equal

opportunity to the people of Andhra Pradesh by introducing

domicile as the basis for appointment to services and

admissions  in  educational  institutions,   however,  Article

371D has no application in respect of the appointment to the

posts of District Judges and Judges Subordinate thereto, in

view of the constitutional scheme of separation of powers and

express provisions having been made by the Constitution.  The

issue was authoritatively settled by the Constitution Bench of

this Court in  Chief Justice of Andhra Pradesh & Ors. Vs.

L.V.A. Dixitulu & Others, (1979) 2 SCC 34.   

47. In the above case, one of the questions came for

consideration before this Court was as to whether members of

Judicial Services of the State are amenable to the

40

jurisdiction of the Administrative Tribunal, which was

constituted by the President issuing an order under

sub­clause(3) of Article 371D.   The Administrative Tribunal

has passed an order on an application filed by a member of

Judicial services setting aside the order of compulsory

retirement passed by High Court. Matter was taken by the Chief

Justice of Andhra Pradesh in this Court challenging the

jurisdiction of the Tribunal.  It was contended that Judicial

Service is not contemplated to be included in the  meaning

covered by the expression “any civil service of the State”.

This Court held that Statement of Objects and Reasons of the

Bill for insertion of Article 371D does not indicate that

there was any intention on the part of the Parliament to

impair or derogate from the scheme of securing independence of

the Judiciary as enshrined in Articles 229 and 235 of the

Constitution. Court further held that amendment or abridgement

of this basic scheme was never an issue of debate in

Parliament  when the Constitution  (32nd  Amendment)  Bill  was

considered.   The Constitution Bench of this Court in  Chief

Justice of Andhra Pradesh & Ors. Vs. L.V.A. Dixitulu (supra)

laid down following in Paragraph Nos. 76, 77, 78 and 80:­

“76.  The Statement of Objects and Reasons does not indicate that there was any intention, whatever, on the part of the legislature to impair or derogate from the scheme of securing independence of the judi­

41

ciary as enshrined in Articles 229 and 235. Indeed, the amendment to abridgment of this basic scheme was never an issue of debate in Parliament when the Con­ stitution (32nd Amendment) Bill was considered.

77. One test which may profitably be applied to as­ certain whether the High Court staff and the subordi­ nate judiciary were intended to be included in clause (3) of Article 371­D is: Will the exclusion of the judiciary from the sweep of this clause substantially affect the scope and utility of the article as an in­ strument for achieving the object which the legisla­ ture had in view? The answer cannot but be in the negative. The High Court staff and members of the Subordinate Judiciary constitute only a fraction of the number of persons in public employment in the State. Incidentally, it may be mentioned that one of the primary purposes of this article viz. to secure equitable share in public employment to people of certain local areas in the State on the basis of the Mulki Rules requiring 15 years residence in those ar­ eas, could be achieved under those rules which, as subsequently clarified by this Court in  State of

Andhra Pradesh v. V. Reddy, 1973 (1) SCC 99, contin­ ued to be in force as valid law in the territories of the former State of Hyderabad even after the consti­ tution of the State of Andhra Pradesh.

78. Let us now apply another test which in the cir­ cumstances of the case will be decisive. In that con­ nection, we have to see what consequences will flow if we give this general, undefined and flexible phrase, “civil services of the State” in Article 371­D(3), the wider construction so as to include in it the High Court staff and the members of the subor­ dinate judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court, and in the High Court over the Subordi­ nate Judiciary will become shorn of its substance, efficacy and exclusiveness, and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Govern­ ment, which, under Article 371­D(5), is the supreme authority, having full power to confirm, not to con­

42

firm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229 and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the inde­ pendence of the judiciary, which the Founding Fathers have with such anxious concern built into the basic scheme of the Constitution. Parliament, we are sure, could never have intended such a strange result. In our quest for the true intention of Parliament, therefore, we must eschew this wide liberal interpre­ tation which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularised in Arti­ cles 229 and 235, and instead, choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase “civil services of the State”. Such a restricted construction will ensure smooth working of the Constitution and harmony amongst its various provisions.

80. In our opinion, non­use of the phrases “judicial service of the State” and “District Judges” (which have been specifically defined in Article 236), and “officers and servants of the High Court” which has been designedly adopted in Articles 235 and 229, re­ spectively, to differentiate them in the scheme of the Constitution from the other civil services of the State, gives a clear indication that posts held by the High Court staff or by the Subordinate Judiciary were advisedly excluded from the purview of clause (3) of Article 371­D. The scope of the non obstante provision in clause (10) which gives an overriding effect to this article is coterminous with the ambit of the preceding clauses.”

48. Article 371D having been held by this Court not to be ap­

plicable to Judicial Service, arguments based on Article 371D

cannot help the petitioner. In this context, one of the sub­

missions raised by the petitioners was that Kamalanathan Com­

mittee while framing guidelines for allocation of members of

43

Civil Service has taken into consideration the local area or

local cadre etc.  No exception can be taken to the guidelines

finalised by Kamalanathan Committee for allocation of cadre of

members of Civil Services of the State, other than Judicial

Service, taking clue from Article 371D.  Petitioners have re­

ferred to guideline No. 18(f) of the Kamalanathan Committee

determining principles guiding allocations read with guideline

No. 18(n), which also read with the Andhra Pradesh Public Em­

ployment Order, 1975 gives preference in allocation to those

who have opted and who are local candidates to be allocated to

that State in which they are local candidates.  The said order

dated 29.10.1975 issued under Article 371D has been relied.   

49. For the reasons already indicated above, the guidelines

formulated by Kamalanathan Committee in context of other Civil

Services are not relevant nor any support can be taken on the

basis of said guidelines.  

50. It is true that issue of public employment with regard to

Telangana region has a long history.   During the period of

Nizams under Mulki Rules, 15 years residential qualification

was required for public employment.  For the purposes of this

case, we need not dwell any further with regard to residential

requirement of a public employment since in the present case,

we are concerned with the post of Judicial Service and this

44

court has already held that for appointment to the post of

Munsifs, no residential requirement can be prescribed.  Par­

ties are not at variance that recruitment to Judicial Service

is on all India basis.  This Court has held that prescribing a

particular place of practice as a prerequisite for seeking em­

ployment into the State Judicial Services as District Munsifs

is unconstitutional and violative of Article 14 of the Consti­

tution.  In J.Panduranga Rao Vs. Andhra Pradesh Public Service

Commission, 1963 (1) SCR 707, this Court laid down following:­

“If the basis of the impugned rule is that a per­ son who applies for appointment to the post of a Dis­ trict Munsif, should have been enrolled as an Advo­ cate of a High Court, that basis can be satisfied even if the person is enrolled as an Advocate not of the Andhra High Court but of any other High Court. All the High Courts have the same status; all of them stand for the same high traditions of the Bar and the administration of justice, and advocates enrolled in all of them are presumed to follow the same standards and to subscribe to the same spirit of serving the cause of the administration of justice. Therefore, in our opinion, the impugned rule has introduced classi­ fication between one class of Advocates and the rest and the said classification must be said to be irra­ tional inasmuch as there is no nexus between the ba­ sis of the said classification and the object in­ tended to be achieved by the relevant scheme of rules. That being so, it must be held that the deci­ sion of the Andhra High Court in the case of Nallan­ thighal Bhaktavatsalam Iyengar is not correct.”

51. The nativity for public employment runs counter to the

fundamental right guaranteed under Article 16(2) except when

45

it is provided by a Parliamentary Law as per exception carved

out in Article 16(3) of the Constitution of India.  No Parlia­

mentary Law is relied by the petitioner, which provides resi­

dence as an eligibility to the employment in Judicial Service.

In Act, 2014, there is no provision, which expressly provides

for allotment of the State on the basis of place of birth or

residence.  Sections 77, 78 and 79 of the Act do not refer to

allotment on the basis of place of birth.  When for entering

into Judicial Service, no condition can be put regarding resi­

dence of particular area for allocation of a State, consequent

to Act, 2014, nativity cannot be sole basis, as is contended

by the petitioner.   It is true that the State of Telangana

stand formed to realise the democratic aspirations of the peo­

ple of Telangana.   We have noticed the Statement of Objects

and Reasons of Act, 2014, which clearly establish that the

creation of a separate State of Telangana is for the better­

ment of the social, economic, political and other aspirations

of the people of that region, which contemplated allocation of

separate State of Telangana.  The entire Statement of Objects

and Reasons does not indicate that with respect to public em­

ployment, nativity is to play a dominant role.   It is true

that Judicial Officers belonging to Telangana territorial area

may have desired or expectation to choose or to opt for their

46

cadre in Telangana area, which is a legitimate aspiration, but

giving pre­dominance to nativity only is not spelled from any

statutory provision or scheme.   

52. Section 77 of the Act contemplate a right of giving op­

tion as contemplated by Section 77(2). “Option” has been de­

fined in Black’s Law Dictionary, Tenth Edition, Page 1268:­

“1. The right or power to choose; something that may be chosen the lawyer was running out of options for settlement,  2. An offer that is included in a formal or informal contract; esp., a contractual obligation to keep an offer open for a specified period, so that the offeror cannot revoke the offer during that pe­ riod the option is valid because it is supported by consideration.”  

53. Advanced Law Lexicon by P. Ramanatha Aiyar defines “op­

tion” in following manner:­

“Option.  For the purposes of these guidelines—

‘OPTION’ means a right but not an obligation granted to an employee to apply for shares at a pre­deter­ mined price.   

The word ‘option’ is a synonym for ‘choice’ or ‘pref­ erence’.

OPTION, CHOICE. We speak of option only as regards one’s freedom from external constraint in the act of choosing : one speaks of choice only as the simple act itself.  The option or the power of choosing is given: the choice itself is made : hence we say a thing is at a person’s option.”   

54. When a Judicial Officer has been given a right of option

47

to choose either of the successor State, right of option has

to be given same meaning and content.  Right of option can be

defeated only when there is some impediment in accepting the

option.  The seniority of a Judicial Officer is a first crite­

ria for accepting the option.  The seniority in a service is a

valuable right of an employee or officer.   In service ju­

risprudence, several benefits and perquisites are attached to

the seniority. The petitioners are asking that option be ac­

cepted not on the basis of seniority but only on the basis of

nativity, i.e. those who are senior even if they opt the State

option, their option should not be selected and option of

those should be first accepted, who are natives of Telangana.

The petitioner’s apprehension is that in event option of se­

nior officers are accepted and they are posted in State of

Telangana, the future prospects of promotion of the petition­

ers shall be marred. Whether the officers, who in the senior­

ity list, which was prevalent on the date of formation of new

State, i.e. on 02.06.2014 where senior should loose their se­

niority or their seniority cannot be said to play any role on

account of formation of two successor States is the question

to be answered. The aspiration of petitioners that no senior

officer, should come to State of Telangana, which may mar

their prospect of promotion is neither in accord with the con­

48

stitutional scheme nor as per ethos of culture of this coun­

try.  The modified guidelines submitted by the High Court and

accepted by the DoPT itself at second place give preference to

nativity.  Thus, the High Court while formulating the guide­

lines has tried to balance the right of option of each Judi­

cial Officer.  It is relevant to notice that this Court has

held in The State of Mysore and another Vs. G.N. Purohit and

others, (1967) SLR 753  that although right to be considered

for promotion is a right, but right to have a chance of promo­

tion is not protected.  In the above case, following has been

laid down in paragraph 10:­

“10. It is then urged on behalf of the respon­ dents that by changing the system from district­ wise to state­wise the respondents have been very hard hit and have become very junior. It appears from the figures supplied by the respondents that there were 665 Junior Health Inspectors in the old State  of  Mysore on  November 1,  1956 while only 48 Junior Health Inspectors were allotted to the new State of Mysore after the Act. So long as the district­wise system continued these 48 per­ sons would naturally have better chances of pro­ motion in their districts but when the cadre was made state­wise, these 48 were likely to go down in  the  seniority  as the list  of 1963  actually shows. It is urged that this has affected their chances of promotion which were protected under the proviso to S.115(7) of the Act, which lays down that the conditions of service applicable immediately before the appointed day to the case of any person allotted to the new State shall not be varied to his disadvantage except with the previous approval of the Central Government. It is said on behalf of the respondents that as their chance of promotion have been affected

49

their conditions of service have been changed to their disadvantage. We see no force in this argu­ ment because chances of promotion are not condi­ tions of service. It is enough in this connection to refer to the State of Orissa v. Durga Charan Dass (A.I.R. 1966 SC 1547).”

55. To the similar effect is judgment of this Court in

Mohammad Shujat Ali and Others Vs. Union of India and Others,

in which in Para 15, following has been held:­

“15.  In the first place, it is not correct to say that there was any variation in the condition of ser­ vice in regard to promotion applicable to non­gradu­ ate Supervisors from the erstwhile State of Hyderabad immediately prior to November 1, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pro­ nouncements of this Court on the point and particu­ larly the decision in Mohammad Bhakar v. Y. Krishna

Reddy1 where this Court, speaking through Mitter, J., said: “Any rule which affects the promotion of a per­ son relates to his condition of service”. But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion — the latter would certainly not be a condition of ser­ vice. This Court pointed out in  State of Mysore  v. G.B. Purohit, (1967) 1 SLR 753 that though a right to be considered for promotion is a condition of ser­ vice, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be re­ garded as varying a condition of service. What hap­ pened in State of Mysore v. G.B. Purohit was that the district wise seniority of Sanitary Inspectors was changed to State wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115 sub­section (7). This con­ tention was negatived and Wanchoo, J. as he then was,

50

speaking on behalf of this Court observed: “It is said on behalf of the respondents that as their chances of promotion have been affected their condi­ tions of service have been changed to their disadvan­ tage. We see no force in this argument because chances of promotion are not conditions of service”. Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non­graduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced: originally it was fifty per cent, then it became thirty­three and one­ third per cent, then one in eighteen and ultimately one in twenty­four. The right to be considered for promotion was not affected but the chances of promo­ tion were severely reduced. This did not constitute variation in the condition of service applicable im­ mediately prior to November 1, 1956 and the proviso to Section 115 sub­section (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in  Ramchandra Shankar Deodhar v. The State of Maharashtra, (1974) 1 SCC 317.”

56. The petitioners submission that High Court has modified

the guidelines for accepting option without there being any

valid reason and further no valid reasons have been indicated

by the High Court for modifying the guidelines.   In this

context, it is relevant to notice that the draft guidelines,

which were initially circulated by the High Court on

26.02.2016 has in the first sentence stated “the allocation

shall be done in the order of seniority as available on

02.06.2014.”   The second sentence read “Preference shall be

given first to those who have applied for the State in which

51

the District declared by them at the time of entering service

falls”.   The above draft guidelines has only been amplified

retaining the initial concept of accepting option on the basis

of seniority.   Both the concept as noted above are now

reflected in modified guidelines as guideline No. 5(1) and

5(2) as extracted above. Thus, the argument of the petitioners

that guidelines have been substantially changed by the High

Court without there being any reason cannot be accepted.  The

substance of the guidelines are same, which were initially

contained in the draft guidelines and modified guidelines.  It

was the DoPT, which has proposed guidelines, where content

clause 5.2 was 5.1 of modified guidelines were proposed as 5.1

was 5.2, which was not accepted by the High Court and Full

Court reiterated their earlier principle, which was initially

encapsuled in draft guidelines.  

57. We, during course of the submissions, had asked Shri

Venkatramani, learned senior counsel appearing for the High

Court to give a chart indicating the details of options and

chart showing details of Judicial Officers working in both the

States of Andhra Pradesh and Telangana from 02.06.2014 and the

acceptance position of their option.  Detailed chart has been

submitted by the High Court, which indicate that all Judicial

Officers  belonging  to  territorial  area  of  Telangana region

52

have been allocated Telangana State and the option of all the

Judicial Officers, who have opted for Telangana State have

been accepted.  A list of all officers belonging to District

Judge Cadre; Civil Judge Senior Division cadre and Civil

Judge, Junior Division cadre has been submitted, which

indicate all officers, who have opted for Telangana State have

been allocated Telangana State.  

58. All the Judicial Officers belonging to Telangana State

having opted and allocated the Telangana State, practically,

we do not find any error in the operation of guidelines

finalised by the High Court.  

59. In view of foregoing discussions, we are of the view that

modified guidelines as submitted by the High Court vide letter

dated 08.07.2017, which has been accepted by DoPT does not

suffer from any illegality or error.  The above guidelines is

to be accepted and approved.   In view of the foregoing

discussions, we dispose of the writ petition with direction to

respondents to finalise options of all the Judicial Officers

as per the above guideline and complete the process of

allocation within a period of two months from today.

60. Now, coming to the Civil Appeals arising out of S.L.P.

(C) No. 18787­18790 of 2016, the appellants themselves in

their submissions have not pressed the quashing of Recruitment

53

2014 and 2015.   Further, Andhra Pradesh Judicial Service

Rules, 2007 as adopted by State of Telangana, which was

quashed by the High Court is now substituted by fresh Rules

namely, Telangana State Judicial Service Rules, 2017.  All the

issues raised in the above Civil Appeals arising out of

special leave petitions have become academic and needs no

consideration. The  Civil Appeals having become  virtually

infructuous are dismissed accordingly. The parties shall bear

their own costs.

..................J. (A.K. SIKRI)

...................J. (Ashok Bhushan)

NEW DELHI, OCTOBER 03, 2018.