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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: PREM KUMAR JAIN & ORS. ETC.

DATE OF JUDGMENT28/04/1976

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. RAY, A.N. (CJ) SARKARIA, RANJIT SINGH SINGH, JASWANT

CITATION:  1976 AIR 1856            1976 SCR  166  1976 SCC  (3) 743

ACT:      Constitution of  India Article  312-All  India  Service Act, 1951  -Whether Union  Territories are  ‘States’ for the purpose of.

HEADNOTE:      A new  cadre of  the Indian Administrative Services was constituted for  Delhi and Himachal Pradesh, and recruitment to it  was made directly without following the normal method prescribed by  Rule 4(1)  of the I.A.S. (Recruitment) Rules, 1954. These  Rules were amended to provide for a joint cadre for the  Union  Territories  and  the  North  East  Frontier Agency, and  the Central  Government formulated a scheme for extending the  Delhi-Himachal Pradesh Cadre to all the Union Territories  by  absorbing  its  officers  and    appointing officers from the Indian Frontier Administrative Service and all other  Union Territories  initially. The joint cadre was brought into  existence by  the Central  Government’s orders notified under  See. 3(1) of the l.A.S. (Cadre) Rules, 1954, published  in  the  Gazette  of  India,  Extraordinary.  The creation of  the new joint cadre and the appointment of some of the  respondents thereto.  were challenged  in  the  High Court on  the ground  that they were contrary to Art. 312 of the Constitution  and the  All India  Services Act, 1951, as the joint  cadre was  not common to the Union and the States inasmuch as  a Union  Territory was  not a  State,  and  the recruitment of  the respondents  concerned, was illegal. The High Court  quashed the  Central Government’s orders and the scheme for  the formation of a joint cadre of the T.A.S. and held that  the creation  of the Delhi Himachal Pradesh Cadre was also  ultra vires  the Constitution. The question of law which  came   up  before   this  court   was  whether  Union Territories are  ’States’ for the purpose of art. 312 of the Constitution, and the all India Service Rules, 1951 ?      Allowing the appeals the Court, ^      HELD :  Section 3(58) of the General Clauses Act. 1897, provides inter  alia, that the expression ’State’ shall mean "a state specified in the First Schedule to the Constitution and shall  include a  Union Terirtory." By virtue of Article

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372-A  of  the  Constitution.  which  was  inserted  by  the Constitution (Seventh  Amendment) Act  1956 because  of  the fact that  the power  of adaptation under article 372(2) had come to  an end.  it was  that definition  of the expression ’State’ which had effect from the 1st day of November, 1956, and the Constitution expressly provided that it could not be questioned in  any court  of law. It was a special provision which was  meant to  serve the purpose of making the Seventh Amendment Act  workable. Article  372-A thus  gave  a  fresh power under  article 372(2).  As from  November 1,  1956 the President therefore  had the power to adapt the laws for the purpose of  bringing the  provisions of  any law in force in India in  accord with the provisions of the Constitution. It was  under   that  power   that  the  President  issued  the Adaptation of  Laws (No.  1) Order,  1956, which substituted the new clause (58) in section 3 of the General Clauses Act, 1897, referred to above. The High Court went wrong in taking a contrary view and in holding that "Union Territories" were not "States" [168G, 169AG, 171D]      Management  of  Advance  Insurance  Co.  Ltd.  v.  Shri Gurudasmal & Ors., [1970] 3 S.C.R. 881, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2289- 2299 of 1969.      (From the judgment and order dated the 25-9-1969 of the Delhi High Court in Writ Petitions Nos. 405 and 478 to 487 of 1968) 167      V. P.  Raman, Addl. Sol. General with P. P. Rao, and S. P. Nayar,  for the appellant.      R. B. Datar, for the respondents.      The Judgment of the Court was delivered by      SHINGHAL, J.  These appeals by certificate are directed against the judgment of the Delhi High Court dated September 25, 1969,  allowing Civil  Writ Petition No. 405 of 1968 and connected petitions  Nos. 478 to 487 of 1968. The High Court has quashed the orders of the Central Government notified in GSR 42  to 49, published in Gazette of India, Extraordinary, dated January  13, 1968,  as well  as  the  scheme  for  the formation of  a joint  cadre of  the  Indian  Administrative Service, hereinafter  referred to  as the  Service, for  the Union Territories,  and has  held that  the formation of the Delhi-Himachal cadre of the Service was also ultra vires the Constitution. As we shall show, the decision has turned on a short point  of law, and it will be enough to refer to those facts which bear on it.      A new  cadre of  the Service  was constituted  for  the Union  Territories   of  Delhi   and  Himachal  Pradesh  and recruitment  to   that  cadre   was  made  directly  without complying with  the recruitment  of rule  4(1) of the Indian Administrative   Service    (Recruitment)    Rules,    1954, hereinafter referred  to as  the  Recruitment  Rules,  which prescribed the  normal method of recruitment to the Service. The Rules  were amended  on December  21, 1967, by providing for a  Joint Cadre  in relation to the Union Territories and the North  East Frontier  Agency, and the Central Government formulated the aforesaid scheme to extend the Delhi-Himachal Pradesh Cadre  to all  Union Territories  by  absorbing  the officers of  that cadre  and by appointing to it officers of the Indian  Frontier Administrative  Service and  all  other Union Territories  at its  initial constitution.  The  Joint Cadre  for  all  the  Union  Territories  was  brought  into

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existence from January 1, 1968, by GSR 42 under rule 3(1) of the  Indian   Administrative  Service  (Cadre  Rules,  1954, hereinafter referred to as the Cadre Rules, published (along with certain consequential changes in the other rules of the Service in  Gazette of  India, Extraordinary,  dated January 13, 1968.  The petitioners  in the  h Court  challenged  the creation  of   the  new   Joint  Cadre  for  all  the  Union Territories and  the appointment  of some of the respondents thereto.  It   was  urged   in  the   High  Court  that  the constitution of  the new  Joint Cadre  was illegal as it was contrary  to   the  provisions   of  article   312  of   the Constitution and  the All India Services Act, 1951 as it was not common  to the  Union and  the State inasmuch as a Union Territory was  not a  State.  and  the  recruitment  of  the respondents concerned to the Joint Cadre was contrary to the provisions of section 3 of the All India Services Act. 1951. and the Cadre Rules.      The High  Court examined the question whether the Union Territories   were States  and reached  the conclusion  that this was  not so.  It therefore  held that  rule 4(5) of the Recruitment Rules  was Ultra  vires the Constitution and the All India Services Act of the (Cadre in ques 168 tion could  not be  said to  be common  to the Union and the States. The  High Court  also observed  that as  the Central Government was itself the State Government for purposes of a Union Territory,  The Central  Government could  not consult itself within  the meaning  of section  3 of  the All  India Services Act  and the  Recruitment and  the Cadre  Rules. It therefore quashed the orders and the scheme mentioned above.      It appears,  however, that  it was  not brought  to the notice of  the High Court that, in so far as the Service was concerned, it was not necessary for Parliament to make a law providing for  its creation as a service common to the Union and the  States, under  clause (1)  of article  312  of  the Constitution, because  clause (2)  of that article expressly provided as follows,-           "312. (2)  The services  known at the commencement      of  this  Constitution  as  the  Indian  Administrative      Service and  the Indian  Police Service shall be deemed      to be services created by Parliament under This article The Service  did not  therefore have to be created under the provisions of Clause (1) of article 312 of the Constitution, or section 2A of the All India Services Act. Section 3(1) of that Act however made pro vision for the making of rules for the regulation  of recruitment  and conditions of service of persons   appointed   to   an   All-India   Service   "after consultation with the Governments of the States concerned.’’ It was  under that  provision that the Cadre Rules were made by the  Central   Government, and the question which engaged the attention  of the  High  Court  was  whether  the  Union Territories could  be said to be States for purposes of such consultation. In that connection the High Court examined the question whether  the Union  Territories could be said to be States merely because rule 2(c) of the Cadre Rules defined a "State’ to  mean a  State specified in the First Schedule to the Constitution     and including  a Union  Territory,  and answered it in the negative.      The expression  "State" has  not been  defined  in  the Constitution, but  it has been defined as follows in section 3(58) of the General Clauses Act (Act X of 1897),-           "State"-           (a)  as   respects    any   period    before   the                commencement  of  the  Constitution  (Seventh                Amendment Act,  1956, shall  mean  a  Part  A

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              State. a Part B State or a Part State; and           (b)  as   respects    any   period    after   such                commencement, shall mean a State specified in                the First  Schedule to  the Constitution  and                shall include a Union Territory." This was  however not  the original  definition, for  it was substituted by  the Adaptation  of Laws (No. 1) order, 1956. Before that  order, the  expression "State"  meant "a Part A State, a  Part State  or a Part State." That definition was, in its  turn, brought  in by adaptation under article 372 of the Constitution  by the Adaptation of Laws order, 1950, for the purpose  of bringing  the provisions of any law in force in 169 the territory  of India in accord with the provisions of the Constitution.      The original  definition  has  thus  been adapted twice to suit the requirements of the Constitution.      Clause  (1)   of  article   367,   Which   deals   with "interpretation" of The Constitution, provides as follows,-           "367(1) Unless the context otherwise requires, the      (General   Clauses Act,  1897, shall,  subject  to  any      adaptations and  modifications that may be made therein      under article  372 apply for the interpretation of this      Constitution as it applies for the interpretation of an      Act of the Legislature of the Dominion of  India." A cross-reference  to article  372(2) shows  that while  the purpose of the adaptation was to bring the provisions or any law  in   force  in  the  country  "into  accord  with"  the provisions of the Constitution, Clause (3) thereof expressly stated inter alia, as follows,-           "(3) Nothing in Clause (2) shall be deemed-      (a)  to empower the President to make any adaptation or           modification of  any law  after the  expiration of           three  years;   from  the   commencement  of  this           Constitution" The power  of adaptation or modification was therefore spent after the  expiry of  three years,  and the  High Court  has taken the view that as it were only the adaptations made  in the General  Clauses Act  under article 372(2) which applied to the interpretation of the Constitution in view of article 367(1) the  adaptation made later, by article 372A, were not so applicable.      A comparison of the provisions of articles 372 and 372A shows, however,  that while the purpose of both the articles was to  bring the  provisions of  any law  in force in India "into accord"  with  the  provisions  of  the  Constitution, article. 372  was a general provision enabling the making of adaptations and  modifications in  such laws  by an order of the President.  whereas article 372A was a special provision which  was   made  specifically     for   purposes  of   the Constitution (Seventh  Amendment) Act.  1956. in  as much as Clause (1) thereof provided as follows           "372 For  the purposes  of bringing the provisions      of any  law in  force in  India or in any part thereof,      immediately        before   the   commencement of   the      Constitution (Seventh Amendment) Act, 1956, into accord      with the pro visions of this Constitution as amended by      that Act,  the President   may by order made before the      1st day  of November,  1957. make  such adaptations and      modifications of  the law  whether by  way of repeal or      amendment,  as  may  be  necessary  or  expedient,  and      provide that the law shall, as from such date as may be      specified in the order, have effect subject to 170      the adaptations and modifications so made, and any such

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    adaptation or  modification shall  not be questioned in      any court of law’ (Emphasis added) It is  obvious therefore  that as the power of the President to make  any adaptation   or  modification of  any law under Clause (2)  of article  372   was, spent  after three years, Parliament felt  the necessary of giving such a power to the President  once   again  for  The  purpose  of  bringing  me provisions of  any law  in forced   immediately  before  the commencement of   the  constitution (seventh Amendment) Act, 1956, into  accord with  the provisions or the (constitution as amended by that Act. that was therefore a necessary power as it  was meant to make the amended (constitution workable. 1 or  instance, section  3 (58) of the (general Clauses act, 1897, as  it stood  before the  coming  into  force  of  the seventh Amendment Act, defined a ’‘State" to mean ‘’a Part A State, A  part B  State or  a part  C State  ." As  has been stated, that  definition had  itself been substituted by the Adaptation of  Laws Order, 1950, to make it workable, and it served the purpose, for the country had those three types of States at that time. but an important change was made by the constitution        (seventh  Amendment)  Act,  1956,  which abolished the  distinction of  part A,  part B    and part C states and  provided, inter  alia, that the territory of the country shall comprise the territories of the States and the Union   territories specified  in the  First  Schedule.  the definition  the   expression  "state’  as  it  stood  before November 1,  1956, became  unsuitable and  misleading on the coming into  force of  the Constitution  (Seventh Amendment) Act, 1956,  from November  1, 1956, and it will, for obvious reasons, be  futile to contend that it should have continued to be  applicable for  all time  to come  and remained  ’the final definition  of "State"  " merely because The period of three years  provided by  Clause (3) (a) of article., 372 of the  (constitution  expired  and  was  not  extended  by  an amendment of  that Clause, or because article 367(1) was not amended  by   the  Seventh   Amendment  Act   "to  say  that adaptations made  in the  General Clauses Act otherwise than those made  under article  372(2) would be applicable to the interpretation of  the Constitution."  The High  Court  also erred  in   thinking  that  such  "abstention  seems  to  be deliberate." On  the other  hand, it is quite clear from the fact  that   Parliament  inserted   article  372A   by   the Constitution (Seventh  Amendment) Act,  1956,  that  it  was aware that  the power  of adoption  under article 372(2) had come to  an end,  and was alive to the necessity of giving a similar power  of  adapting  the  laws  once  again  to  the President for the purposes of bringing the provisions of any law  in   force  in   the  country  immediately  before  the commencement of  that Act "into accord" with the  provisions of: the Constitution. It is therefore futile to contend that the  definition   of  the   expression  "State"   which  was applicable  upto   November,  1956,   remained   the   final definition for all time to come. That view is incorrect, for it overlooks  or ignores  the anxiety  or the  Parliament to remove any  such misapprehensions by inserting article 372A. It was  a special  provision, and  it was meant to serve the purpose of making the Seventh Amendment Act workable. As has been held  by this Court in Management  of advance insurance Co. Ltd. v. Shri. Gurudas 171 mal and  others(1), article  372A gave  a fresh power to the President Which  was equal  and analogous to the power under article 372(2).      It follows  therefore that,  as and  from  November  1, 1956, when  the Constitution  (Seventh Amendment) Act, 1956,

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came into  force, the  President had  the power to adapt the laws for  the purpose  of bringing the provisions of any law in force  in India  into accord  with the  provisions of the Constitution. It  was under  that power  that the  President issued the Adaptation of Laws (No. 1) order, 1956, which, as has been  shown, substituted  a new Clause (58) in section 3 of The  General Clauses  Act providing, inter alia, that the expression "State"  shall, as  respects any period after the commencement of  the Constitution  (Seventh  Amendment)  Act 1956. mean  "a State  specified in the First Schedule to the Constitution and shall include a Union territory." It cannot be said  with any  justification  that  there  was  anything repugnant in  the subject or context to make that definition inapplicable.  By   virtue  of   article  372A(1)   of   the Constitution, it  was  that  definition  of  the  expression "State" which had effect from the 1st day of November, 1956, and the  Constitution expressly  provided that it could "not be questioned in any court of law." The High Court therefore went wrong  in taking  a contrary  view and  in holding that "Union Territories  are not ’States’ for purposes of Article 312(1) of the Constitution and 1’ the preamble to the Act of 1951." That was why the High Court erred in holding that the definition of "State" in the Cadre Rules was ultra vires the All India  Services Act, 1951 and the Constitution, and that the Union  Territories Cadre  of the Service was "not common to the  Union and  the States" within the meaning of article 312(1) of the Constitution. and that the Central  Government could not  make the  Indian Administrative  Service  (Cadre) Rules. 1954  in consultation  with the  State Governments as there were no such Governments in the Union Territories.      The High  Court has  held further that section 3 of the All India  Services Act,  1951 and rule 5 of the Cadre Rules have  been   contravened  by   the  "direct  appointment  of respondents 2  to 37  to the  Union Territories Cadre and by their being  not recruited  first to  the IAS."  But no such ground appears  to have  been taken  in the  writ  petition. Moreover the validity or rule 4(1) of the Recruitment Rules. which    contained  a non-obstante    Clause  providing  for recruitment to  the Joint  Cadre of the Union Territories on its initial  constitution by  such  method      the  Central (Government may  after consultation  with the  Union  Public Service Commission  prescribe was  not examined  by the High Court      For  the  reasons  mentioned  above.  the  appeals  are allowed. the  impugned judgement  of the  High Court   dated September 25, 1969 is set aside and  the writ petition   are dismissed. There will however be no orders as to the costs.                                            R#Appeals allowed      (1) [1970] 3 S.C.R. 881 172