Federalism in its essence is the combination of provincial/State Governments and the Central/Union Government and the corresponding power relations between the two. The Constitution of India has created a quasi-federal system wherein there are substantive areas of legislation reserved for the State Government, but the residuary and overriding power is entrusted with the Parliament of India. Therefore the power of the Parliament being of considerable scope and extent, the exercise of the power must be with due deliberation and consultation with all stakeholders, i.e. the people of India. However, if the exercise of this power is not judicious or lackadaisical, it has the potential to create confusion and chaos affecting the organs and agencies of the State. The casualty of such careless attitude of the Union Government are the officers of the Telangana subordinate judiciary, for whom the reality is harsh and uncertain much to their chagrin and disappointment.
A new state is formed
It was 2nd June 2014 when the leaders and people of Telangana had experienced a sense of euphoria and joy as the decades long struggle for the creation of a separate State of Telangana had finally borne fruit. The erstwhile State of Andhra Pradesh had been bifurcated by the provisions of the Andhra Pradesh Reorganization Act 2014 (Act of 2014). The new State of Telangana soon had its first Chief Minister in the form of a stalwart of the Telangana Political scene, Mr. K. Chandrashekhar Rao.
The rule of Seniority in danger
Fast forward to the present time, 3 years after the appointed day, the State of Telangana is experiencing a massive upheaval and unrest in the subordinate judicial services. The primary reason for the discontentment is the fact that even after 3 years of formation of a separate State, the judicial cadres of the State of Telangana and the new State of Andhra Pradesh are yet to be divided as the current cadres of the judicial services in the States of Telangana and Andhra Pradesh are still governed by Judicial Service Rules of 2007.
In this scenario, the High Court at Hyderabad of the States of Andhra Pradesh and Telangana (“High Court at Hyderabad”) to resolve the larger issue recognized by the Supreme Court as the filling up of vacancies in judicial posts, conducted a massive recruitment drive in 2014-15 for filling up vacancies in both the States. The High Court at Hyderabad issued advertisements, conducted examinations, viva-voce and finally after consultation of the Full Court, selected candidates for recruitment in the subordinate Courts of States of Telangana and Andhra Pradesh.
“The events which had been put into motion by the High Court, served as a spanner in the works for the subordinate judiciary in the two States. The problem of the already serving judicial officers in Telangana was compounded by the fact that in the absence of separate cadres of the States of Telangana and Andhra Pradesh, a fresh recruit part of the recruitment drive of the High Court would have a chance of becoming a superior of the already serving judicial officers. It is well known that one of the biggest incentives in public service is the rule of seniority as it is directly impacting the promotions of officers in service.”
The State of Telangana however, in due course, recognized the grievances of the officers and therefore in order to create a separate cadre of Telangana, the State of Telangana enacted the Telangana Judicial Services Rules 2015 which was based almost entirely on the structure of the earlier enacted Andhra Pradesh Judicial Service Rules 2007. The contents of both the Rules were substantially the same, with the main difference being – that references to “State of Andhra Pradesh” in the 2007 Rules being amended to “State of Telangana” in the 2015 Rules.
PILs filed in High Court and subsequent petitions before Supreme Court
In light of the issuance of notifications of vacancies and recruitment drive by the High Court for positions in the subordinate judiciary during 2014-15, several concerned lawyers including senior lawyers and Court staff filed PILs in the High Court at Hyderabad praying for the withdrawal of the notifications of 2014-15 and a stay on the recruitment process. The batch of petitions were heard at length by the High Court on the judicial side; however on the administrative side, the High Court was still actively engaged in recruitment of judicial officers to fill vacancies in the subordinate Courts of both the States.
Ultimately in its reasoned judgment, the High Court on the basis of the facts and the position of law perceived by it, ruled that the High Court alone had the primacy and control on the issue of recruitment, selection and conditions of service of judicial officers by the operation of Article 233, Article 234 and Article 235 of the Constitution of India. In that regard, the High Court also held that the Telangana Judicial Service Rules 2015 enacted by the Telangana Government were beyond the legislative power of the Government since the pre-requisite for such an exercise is the mandatory consultation with the High Court under Article 235 of the Constitution, which was admittedly not consulted before the framing of the 2015 Rules. The aggrieved State of Telangana has come up in appeal before the Hon’ble Supreme Court seeking to set aside the judgment of the High Court.
The Telangana Judges Association, a duly registered body of Judicial Officers under the Societies Registration Act, also came before the Supreme Court, seeking remedy under Article 32 of the Constitution, praying for a bifurcation of the judicial cadres of the States of Telangana and Andhra Pradesh and fixing the cadre strength in each State. Subsequently, the appeal from the High Court judgment by the State of Telangana and the Writ under Article 32 by the Telangana Judges Association were tagged to be heard together before an appropriate Bench.
State Bifurcation Acts – the precedents
In the past, the Parliament has passed various State Bifurcation Acts under Article 3 and 4 of the Constitution of India including the State of Punjab & Haryana and the States of Maharashtra & Gujarat. The most recent exercise of such a nature was when the States of Uttar Pradesh & Uttaranchal, Madhya Pradesh & Chhattisgarh and Bihar & Jharkhand came to be bifurcated by the enactment of 3 separate legislations in the year of 2000. The Andhra Pradesh Reorganization Act 2014 follows the basic scheme of these predecessor statutes but has certain significant differences with regard to constitution of High Courts and the provisions relating to services of the States.
On a closer look and comparison with other State Reorganization Acts, what emerges as most striking is the transitory nature of the provisions of the A.P. Reorganization Act 2014, distinguishing it from the other State Reorganization Acts. The A.P. Reorganization Act 2014 is unique due to the import of the language used in the provisions of the Act. Even though the scheme or structure of the other enactments namely – Bihar Reorganization Act 2000, Uttar Pradesh Reorganization Act 2000, Madhya Pradesh Reorganization Act 2000 etc. is similar, i.e. both constitute State services, Secretariat etc. but the language of the A.P. Reorganization Act is framed as such omitting a time frame specifying when the transitory provisions relating to State services will be actually superseded by permanent provisions. There is also some confusion among the various stakeholders in the issue – the State Governments, the High Court as well as the Union Government, regarding the responsibility and power to enact the law regulating the service conditions and fixing of cadre strength of judiciary of respective State Governments.
“This lacuna in the language of the Act coupled with the unwillingness of any party to take up the responsibility of enacting regulations for service conditions of judicial officers, has resulted in a state of confusion and chaos in the judicial services in the State.”
The situation in the State of Telangana and State of Andhra Pradesh is therefore of an unprecedented nature that requires a better understanding of the powers of the Union Government, the State Government and the High Court of the State.
The Constitution of India is the ultimate touchstone to locate and understand the powers of all the respective stakeholders in this issue, namely, the Union, the State and the Judiciary of the State under the control of the High Court.
The power for bifurcation of States into new territories and alteration of boundaries of existing States in India is the sole repository of the Parliament through the provisions of Part I of the Constitution.
Constitutionally, the control and supervision of the Subordinate Judiciary of the State is governed by Part VI entitled “The States” of the Constitution and under Chapter VI “Subordinate Judiciary”. Article 233 of the Constitution pertains to the appointments, selection and conditions of service regulating District Judges by the Governor in consultation with the High Court of the respective State judiciary. In a similar vein, recruitment of other officers of the subordinate judiciary (aside from the District Judge) is governed by Article 234 wherein the Governor in consultation with the High Court and State Public Service Commission will exercise the power of appointment and recruitment. It is worthwhile to notice that in the case of District Judges, there are 2 Constitutional functionaries who must be involved in the consultative process i.e. the Governor and the High Court. However as far as the case of subordinate Judiciary is concerned (which includes all other judges aside from District Judge) there are 3 Constitutional functionaries, i.e. Governor, the High Court and State Public Service Commission.
The independence of the judiciary is however one part of the basic structure of the Indian Constitution and this Constitutional ethos is reflected in Article 235 which categorically provides that in the matters of promotion, posting and grant of leave to judicial officers, the High Court of the concerned State has the power and control of that subject matter. This power is however bridled by the proviso contained in the Article itself, wherein – neither the High Court can take away the right to appeal of judicial officers may have under law regulating conditions of service of judicial officers, and nor can the High Court deal with a judicial officer otherwise than in accordance with the conditions of service and the tenure of the officers prescribed under law and Articles 310 and 311 of the Constitution respectively.
The Federal question
The words “prescribed under law” are of significant import as under Article 309, it is the power of the appropriate Legislature to frame rules regulating recruitment and conditions of service of persons appointed to or in connection with services of the Union or State which includes the judicial services of the State.
Incidentally, it is noteworthy that the Governor is a constituent of the Legislature of the State through Article 168 and also has legislative powers (e.g. ordinance making powers under Article 213). Most importantly, one of the fundamental provisions of the Constitution is that the Governor shall act on the aid and advice of the Chief Minister and council of Ministers in the exercise of his powers by the operation of Article 163. This does not however include the discretionary powers of the Governor under various Articles of the Constitution, i.e. grant of clemency to death row convicts under Article 161 etc. for which the Governor need not act on the aid and advice of the Council of Ministers.
The Federal power structure is a fundamental concept recognized by various Articles of our Constitution and there is a clear demarcation between the powers of the Union and the States. Not only is the Federal power structure is brought out by the aforesaid scheme, but also fulfills the Constitutional mandate under Article 50 providing for independence of the judiciary by entrusting the State with the separation of Executive interference in judicial domain.
In the context of the statutory provisions in the A.P. Reorganization Act of 2014, the role of the Central Government is critical and tasks the Centre with the responsibility regarding formation of a State Advisory Committee to constructively engage with persons employed in the services of the State under Section 80. The active participation of the Advisory Committee appointed by the Central Government will not only bring forth permanent solutions to the State Services by discharging its functions but also to ensure fair and equitable treatment to all persons and give proper consideration to representations made by officers in the State services. In addition, it is the power of the “competent authority” to pass orders affecting the continuance of judicial officers serving in respective States as provided under Section 79. Even though there is no guidance on the meaning of the term “competent authority”, it may be safe to assume that the Central Government has the power to carry out the exercise under the provisions of the Part VIII (“Provisions as to Services”) of the A.P. Reorganization Act 2014. Therefore the essence of federalism pervades the scheme of the Act of 2014 relating to States services in the States of Telangana and Andhra Pradesh and it is within the power and purview of the Central Government to take part in the process of creation of bifurcated cadres for both States and guidelines for allocation of judicial officers to the respective cadres.
“There is no doubt that the concept of federalism must be a necessary part of the discussion in the present case of the bifurcation of the Telangana and Andhra Pradesh judicial cadres, where the delicate balance between the State Judiciary and the State Legislature which is part of the Constitutional Scheme of Part VI Chapter VI (“Subordinate Judiciary”) is placed under the shadow of the brooding presence and the power of the Union Government under Part I of the Constitution relating to bifurcation of States. However in spite of the Union’s powers under Part I of the Constitution, there has been a distinct display of inaction on the part of the Union Government in the resolution of the issues. This is precisely the context in which the Supreme Court is seized of in the matter of the Telangana Judges Association.”
While the litigation has presently built up a head of steam, the ground situation from 2014 reflected the sentiments of the judicial officers. On 06.06.2016 there was a strike across the bar, the bench as well as the staff of the Courts joining together in protest. The Telangana Judges Association also intensified their protests which resulted in the suspension of 2 judges. The crisis soon reached the doorstep of the Hon’ble Chief Justice of India (at the time Justice T.S. Thakur) who promised to address the concerns of the aggrieved parties. It was only after the intervention and reassurance of the then Hon’ble Chief Justice of India T.S. Thakur and State Governor E.S.L. Narasimhan, that the crisis was defused.
The matter came up for hearing before a Division Bench of the Supreme Court consisting of Justice Jasti Chelameswar and Justice S. Abdul Nazeer. The Division Bench has heard the arguments of the Petitioner – the Telangana Judges Association and the preliminary submission of the Respondent High Court at Hyderabad. The Apex Court has after hearing the preliminary submissions of the parties issued orders directing the States of Andhra Pradesh and Telangana to draw up the cadre strength for each State judicial services with reference to the appointed day (i.e. 2nd June 2014) in consultation with the High Court and thereafter frame rules for fixing strength of judicial cadres in respective States. The Supreme Court has made the above a condition precedent before the allotment of judicial officers to the respective cadres. In the recruitment drive for subordinate judicial officers conducted by the High Court at Hyderabad for the States of Telangana and Andhra Pradesh in 2014-15, the High Court did not wait for the creation of the separate cadres for both States and overlooked the Constitutional Scheme surrounding Article 235 of the Constitution. This is the main error committed by the High Court during recruitment, being driven by the expedient public interest in filling up judicial vacancies.
It is only after the fulfillment of the above exercise a consultative process between all the stakeholders in the issue – the judicial officers, the respective State Governments, the High Court at Hyderabad for the two States and the Union Government must take place for deciding the guidelines for allotment of judicial officers in respective cadres.
“The matter of the Telangana Judges Association has raised substantive questions of law which include the interpretation of Part VI of the Constitution of India dealing with the constitution and conditions of service of “Subordinate Judiciary”, the concept of the independence of judiciary which is part of the basic structure of the Constitution and the Federal power structure under the Constitution.”
The Apex Court must also carefully analyze the precedents of bifurcation of other States in India and the legal developments that happened there in order to arrive at a well-reasoned decision. The responsibility of providing justice is in the hands of the Supreme Court to the beleaguered judicial officers of Telangana and the Apex Court will chart its way through uncharted terrains guided by the luminosity of our Constitutional values and ethos.
Advocate Rohit Ghosh is assisting Sr. Advocate Indira Jaising in Telangana Judges Association v. Union of India representing the Telangana Judges Association.