Andhra HC (Pre-Telangana)
D.V.R.S.G. Dattatreyulu vs Ex-Officio Principal Secretary, ... on 3 October, 2001
Equivalent citations: 2001(6)ALD816, 2002(1)ALT23, [2002(93)FLR19]
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The question as regards interpretation of Section 11 (e) of the Administrative Tribunals Act, 1985 arises for consideration in this writ application.
2. The petitioner is aggrieved by an order dated 10-4-2001 issued by the Registrar, Andhra Pradesh State Consumer Disputes Redressal Commission whereby he has been communicated with the order of the Government of Andhra Pradesh, which is in the following terms:
"After examining the recommendation of the said Committee, Government have observed that under Section 11 (e) of the Administrative Tribunals Act, 1985 a Member (other than the Chairman or Vice-Chairman of any Tribunal) on ceasing to hold office shall not be eligible for any other employment either under Government of India or under the State Government. As such, Sri D.V.R.S.G. Dattatreyulu, who was a member of CAT is not eligible to become a Member of the State Commission."
3. The basic fact of the matter is not in dispute. The petitioner practised as an Advocate from 1962 to 1973. He was appointed as District and Sessions Judge in the year 1985. He had also worked as Presiding Office of Labour Courts and the Chairman of State Transport Appellant Tribunal. He upon his superannuation worked as Judicial Member of the Central Administrative Tribunal and retired as such on 25-1-2001.
4. Pursuant to a notification dated 1-12-2000 issued for the post of Male Member in the A.P. State Consumer Disputes Redressal Commission, Hyderabad he sent a requisition letter on 10-4-2001. Despite the recommendations made in his favour by the Selection Committee, the impugned order has been passed.
5. Mr. Chaudhary, learned senior Counsel appearing on behalf of the petitioner, would submit that having regard to the phraseology used in Section 11(e) of the Administrative Tribunals Act, 1985 (hereinafter referred to as "the Act" for the sake of brevity), the holder of a post of Male Member in the A.P. State Consumer Disputes Redressal Commission being not a servant of the State of Andhra Pradesh, the impugned order could not have been issued. Reliance in this connection, has been placed on Hargovind v. Raghukul, . The learned Counsel also placed reliance upon the decision of the Supreme Court in All India Judges' Association v. Union of India, , wherein it was held that for all intent and purported Judges are not employees of the State.
6. Mr. Chaudhary would also contend that the functions of the State Commission are judicial in nature and in support of the said contention strong reliance has been placed on Fair Air Engineers Private Limited v. N.K. Modi, . Our attention has further been drawn to two unreported decisions of this Court in WP No. 7841 of 1999 and WP No. 4182 of 1996.
7. Learned Government Pleader appearing on behalf of the respondents, on the other hand, would submit that a writ of or order in the nature of mandamus cannot be issued by this Court in this case as the petitioner does not have any right to be appointed. The learned Counsel would contend that having regard to the provisions of Section 16 of the Consumer Protection Act, the State Government being the final appointing authority, it had a right to take a final decision in the matter.
Section 11 (e) of the Act reads thus:
"On ceasing to hold office, --
(a) xx xx xx
(b) xx xx xx
(c) xx xx xx
(d) xx xx xx
(e) a Member (other than the Chairman or Vice-Chairman) of any Tribunal, shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman, Vice-Chairman or other Member of any other Tribunal, but not for any other employment either under the Government of India or under the Government of a State;
(f) xx xx xx."
8. The said provision was enacted with a view to maintain judicial independence. In almost all the proceedings before the State Administrative Tribunals, the State and other local authorities would necessarily be a party. The embargo of future employment was created so as to uphold faith and confidence of the litigants reposed in the judiciary. It has an avowed object.
9. The Parliament thought it fit, while enacting the aforementioned provision, that the Chairman, Vice-Chairman and Members of the Administrative Tribunal may not be considered for appointment for any other employment except those specified therein. The eligibility clause for appointment of a Chairman, Vice-Chairman or a Member ceasing to hold office has been confined only to those posts which are specifically mentioned therein. So far as a Member of the Tribunal is concerned, he on ceasing to hold office is eligible for appointment as the Chairman or Vice-Chairman of such Tribunal or as the Chairman or Vice-Chairman or other Member of any other Tribunal. The Tribunal has been defined to mean the Central Administrative Tribunal or State Administrative Tribunal or a joint Administrative Tribunal.
10. The intention of the Parliament therefore, is that he may not be in any employment whatsoever where the same is referable to Government of India or Government of a State.
11. It may be true that the function of the State Commission is a judicial function, but the State Government having regard to the provisions of Section 16 of the Consumer Protection Act has a role to play in the matter of appointment of a Member. Section 16 of the said Act reads thus:
"(1) Each State Commission shall consist of,--
(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President:
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;
(b) two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman:
Provided that every appointment made under this clause shall be made by the State Government on the recommendation of a Selection Committee consisting of the following, namely:-
(i) President of the State Commission Chairman
(ii) Secretary of the Law Department of the State Member
(iii) Secretary, incharge of Department dealing with consumer affairs in the State Member.
(2) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the State Commission shall be such as may be prescribed by the State Government. (3) Every member of the State Commission shall hold office-for a term of five years or up to the age of sixty-seven years, whichever is earlier and shall not be eligible for re-appointment. (4) Notwithstanding anything contained in Sub-section (3), a person appointed as a President or a member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or member, as the case may be, till the completion of his terms."
12. Although the Selection Committee consists of two Secretaries of the State Government, only the Chairman of the Commission is an independent member. The possibility of some influence being exercised by the State on its Secretaries cannot be ruled out. Stricto sensu, although a Member of the State Commission may not be holding an office of profit under the State, having regard to the text and context of the statute, the same in our opinion must be given a wider meaning.
13. In interpreting a provision of this nature, what is necessary is to consider the purpose for which the statute has been enacted (See in Re, Special Courts, Bill, 1978, . The purpose, as indicated hereinbefore, is to uphold the dignity of the office held by a person in the Administrative Tribunal.
14. Prior to the rendition of the decision by the Apex Court in L. Chandra Kumar v. Union of India, , the Tribunal was considered to be a substitute for the High Court. It exercises the power of judicial review. The sanctity of the office was, therefore, required to be maintained having regard to the object and purport of the Act.
15. The post to which a Member on ceasing to hold the office shall be eligible to be appointed has been specifically stated therein. Ordinarily, he should not be entitled to hold any other office - be it under the Central Government or under the State Government. In a situation of this nature, the rule of purposive construction must be applied with.
16. In Ananta Kumar Bej v. State of W.B., 1999 (4) SLR 661 (Cal), it has been noticed:
"It is a well settled principle of law that despite absence of a rule, the Selection Committee is entitled to short list the candidates. Rule 9(c)(ii) of the rules only gives a statutory recognition to the aforementioned service jurisprudence. In a case of this nature, therefore, the doctrine of purposive interpretation should be invoked, and in such a situation the word 'written test' must be held to be incorporated within the word 'interview'. The answer to the question posed in this appeal, thus in the opinion of this Court, should be rendered in affirmative as otherwise the word 'written examination' would become totally otiose. Such a construction is permissible by taking recourse to the doctrine of strained construction, as has been elaborately dealt in by Francis Bennion in his Statutory Interpretation. At Section 304, of the treatise purposive construction, has been described in the following manner:-
"A purposive construction of an enactment is one which gives effect to the legislative purpose by -
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or
(b) A pplying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).
In DPP v. Schidkamp (1971) AC 1, it was held that the rule that severance may be effected even where the 'blue pencil' technique is impracticable.
In Jones v. Wrotham Park Settled Estates (1980) AC 74 at page 105, the law is stated in the following term:-
".........I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Company Limited v. Zenith Investments (Torquay) Limited (1971 AC 850) provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a Court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed."
Furthermore, the word 'written test' cannot be said to be cassus omissus.
17. In Uday Mohanlal Acharya v. State of Maharashtra, , the Apex Court held that the provision of a statute have to be interpreted preferably in consonance with the purpose and object of the Legislation. Yet again, in Moreshwar Balakrishna Pandare v. Vithal Vyanku Chavan, (2001) 5 SCC 546, the Apex Court applying the rule of purposive construction observed that the reasoning adopted by the High Court in support of its finding that the suit was barred by limitation is fallacious inasmuch it defeats the object and the purpose of the statute enacted by the Legislature specially to give relief to debtors in the State.
18. The said rule of construction, in our opinion, thus, must be applied for interpreting the aforementioned provision so as to mean that no person shall be entitled to be appointed where the Central Government or State Government has any say and is the appointing authority under any Act for the time being in force, although such an office in stricto sensu may not be an office of profit under the State or Central Government.
19. Let us now consider the decision relied upon by the Mr. Choudhary.
20. In Hargovind (supra) the Apex Court was considering the provisions of Clause (d) of Article 319 of the Constitution of India for the purpose of determining the question as to whether the Governor holds the post under the Central or State Government. The answer to the question was rendered in the negative.
21. In All India Judges Asson.' case (supra), the Apex Court has clearly held that Judges, although hold office under State, must be held to be not at par with the employees of the State Government. That was said so as to uphold the independence of judiciary. The decision of the Supreme Court is a clear pointer to the fact that a person who has held the judicial office should not crave for any further appointment. The petitioner, who had held the office of District and Sessions Judge, as also the Member of Central Administrative Tribunal, would have been well advised not to file this writ petition praying for a writ of mandamus directing the State Government to appoint him.
22. Furthermore, it appears from the notification dated 1-12-2000 that the application was to be submitted pursuant thereto by 15-12-2000. The petitioner herein admittedly held the office of Member of Central Administrative Tribunal till 25-1-2001 and as such he was also not entitled to file an application pursuant to the aforementioned notification. In the unreported decisions relied on by Mr. Chaudhary, this aspect of the matter had not been taken into consideration.
23. For the reasons aforementioned, we are of the opinion that this is not a fit case where this Court should exercise its discretionary jurisdiction in issuing a writ or order in the nature of mandamus as has been prayed for. The writ petition is dismissed for the aforementioned reasons. No order as to costs.