K NAGESWARA RAO Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, an advocate practising in this Court and the A.P. Administrative Tribunal, seeks the issuance of a writ of mandamus declaring the A.P. Adinistrative Tribunal Order, 1975, issued by the President under clause (3) of Article 371-D of the Constitution, as unconstitutional.

(2.) Article 371-D was introduced into the Constitution by the Constitution (Thirty Second Amendment) Act, 1973, which came into force on 1-7-1974. The State of Andhra Pradesh was formed on 1st November, 1956 by adding the Telangana Area of the former State of Hyderabad to the Andhra State. In Telangana area, a set of Rules, known as 'Mulki Rules', were in force, providing for requirement of residence in the said area for becoming eligible for appointment to State service. Soon after the formation of the State, the Parliament enacted Public Employment (Requirement as to Residence) Act, 1957. Both the Mulki Rules and the said Act gave rise to a good amount of litigation in Courts. Also there were two wide-spread agitations one in Telangana area and the other in Andhra area seriously affecting the administration of the State. Tn such a situation, political leaders met and evolved, what is called the 'Six-Point Formula' to bring about emotional integration of the people of the State, and providing for development of backward areas. The implementation of this formula, inter alia, required amendment of the Constitution. It is for this reason that the said Article was introduced into the Constitution as a special provision applicable only to the State of Andhra Pradesh. Clause (1) of the Article empowered the President to make appropriate Orders to ensure equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and education. Clause (2) enumerated the matters which can be provided in such an Order. Clause (3) empowered the President to provide for the constitution of an Administrative Tribunal for the State "to exercise such jurisdiction, powers and authority including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty-second Amendment) Act, 1973, was exercisable by any Court (other than the Supereme Court) or by any tribunal or other authority as may be specified in the Order with respect to the following matters.. ....". Sub-Clauses (a), (b) and (c) provided the matters which can be specified in such Order. Clause (4) provided for certain incidental matters arising from the Constitution of the Tribunal. Clause (5) provided that "the order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier........". The proviso to this clause, which has recently been struck down by the Supreme Court in P. Sambamurthy vs. State of A.P. empowered the State Government to modify or annul any order of the Tribunal before it becomes effective. Clause (6) provided that every order of annulment made under the proviso to clause (5) shall be laid before both the Houses of the State Legislature, as soon as may be. Clause (7) excluded the jurisdiction of the High Court, any other Tribunal for that matter, with respect to matters placed within the jurisdiction of the Administrative Tribunal. Clause (8) empowered the President to abolish the Tribunal if and when he is satisfied that the continued existence of the Tribunal is not necessary. After sach abolition he is empowered to make such Order as he thinks fit with respect to the transfer and disposal of pending cases. It is unnecessary to notice clause (9). Clause (10) gives an overriding effect to the provisions of the Article.

(3.) As contemplated by clause (3) of Article 371 -D, the President of India, issued the Andhra Pradesh Administrative Tribunal Order, 1975. which came into force sometime in 1976. Paragragh 3 of this Order provides for the constitution of the Tribunal. The Tribunal is to consist of a Chairman and not less than two members to be appointed by the President. 'Member' is defined to include the Chairman. Sub-Paragraph (2) says: "the Chairman shall be a person who at the time of his appointment to the Tribunal is a Judge of a High Court, and the other members shall be persons having knowledge of public administration or law". Sub-paragraph (3) provides for the term of the member/Chairman; it is three years from the date of assumption of office. However, a member/Chairman is entitled to continue in office even after the expiry of his term till his successor enters upon his office. Sub-Paragraph (5) provides that a member (which expression includes Chairman) may resign his office. Sub-Paragraph (6) says, the Chairman and members shall receive such remuneration and allowances, and shall be governed by such conditions of service, as may be determined by the Central Governmeht, provided however, that they shall not be varied to the disadvantage of Chairman or members after their appointment. Paragraph 4 provides for a situation arising from a vacancy in the office of the Chairman. Paragraph 6 specifies the matters which are placed within the jurisdiction, power and authority of the Tribunal, within the meaning of clause (3) of Article 371-D. In short, all matters relating to service conditions of employees of the State Government are placed within the jurisdiction of the Tribunal, except matters relating to dismissal, made under provisos (a), (b) and (c) to Article 311 (2). Sub-Paragraph (5) of paragraph 6 says "notwithstanding anything contained in any law for the time being in force, no interim order (whether by way of injunction or stay, or in any other manner) shall be made oh, or in any proceedings relating to, a representation, unless (a) copies of such representation and of documents in support of the plea for such interim order, are' furnished to the party against whom such representation is made or proposed to be made; and (b) opportunity is given to such party to be heard in the matter". The proviso to this sub-paragraph, however, empowers the Tribunal, provided it is satisfied that an interim order is required as an exceptional measure, to prevent any loss being caused to the representationist which cannot be adequately compensated in money for reasons to be recorded in writing, to pass such interim order. Howerve'r, the interim order so made shall cease to have effect on the expiry of fourteen days, unless the requirements mentioned in the main sub paragraph are complied with, and the interim order is continued.