ORDER
Rama Jois, J.
1. In these petitions presented by the members of the staff of the Subordinate Courts of this State, the following question of law arises for consideration :
'Whether the exclusion of the service rendered by the petitioners, after their regular recruitment, in the District in which they were recruited before their transfer, at their request, to the districts in which they are now working, in computing the regular service rendered by them for purposes of according selection time scale applicable to them under the provisions of The Karnataka Civil Services (Time Bound Advancement) Rules, 1983 ('the Rules' for short) is authorised by the Rules ?
2. Before going into the merits of these cases it is necessary to decide the following preliminary question regarding the jurisdiction of this Court to hear and decide these petitions :
Whether the jurisdiction of this Court to entertain Writ Petitions preferred by the Officers and servants of the Subordinate Courts or members of the judicial service has been divested and vested in the State Administrative Tribunal constituted under Section 4 of the Administrative Tribunals Act, 1985 ?
Though the Learned Counsel for the petitioners as also the Learned Counsel for the State submitted that the question should be answered in the negative, in view of its constitutional importance I consider it appropriate to record my reasons for doing so.
3. The Administrative Tribunals Act, 1985 (in short 'the Act') has been enacted by the Parliament pursuant to the authority given to it under Article 423-A of the Constitution of India. The Act provides for the constitution of an Administrative Tribunal for each State for adjudicating disputes and complaints of civil servants of the State. Accordingly, as provided under Section 4(2) of the Act, an Administrative Tribunal has been constituted for the State of Karnataka with effect from 6th October, 1986.
Section 15 of the Act provides that the State Administrative Tribunals so constituted, on and from the appointed date shall exercise all the jurisdiction, powers, and authority exercisable immediately before that day by all Courts except the Supreme Court in relation to matters of recruitment and also service matters concerning a person appointed to any civil service or Civil post under the State concerned.
Section 28 of the Act excludes the jurisdiction of all Courts except that of the Supreme Court and the Industrial Tribunals, in respect of matters which fall within the jurisdiction of the Administrative Tribunal. Section 29 of the Act provide for transfer of all matters which fall within the jurisdiction of the Tribunal, pending before any Court including this Court before the date of establishment of the Administrative Tribunal.
4. These three Writ Petitions are by persons who are officers and servants on the establishment of the subordinate Courts, who are also civil servants of the State and they were pending before this Court on 6-10-86 on which date the State Administrative Tribunal came to be established.
Under Article 235 of the Constitution the control over subordinate Courts is vested exclusively in the High Court. The control over subordinate Courts vested in the High Court covers officers and servants of the subordinate Courts (See- R.M. Gujjar v. State of Gujarath, AIR 1979 Gujarath 102 F.B.; Amar Singh v. Chief Justice, Punjab & Haryana High Court, ; and R.B. Sangam v. State of Karnataka, ILR (Karnataka) 1978(2) 368) Article 50 of the Constitution provides for separation of judiciary from the executive.
5. Therefore, the question which arises for consideration is whether the members of the judicial service of a State as also officers and servants of subordinate Courts, who are placed under the control of the High Court under Article 235 would also fall within the purview of the jurisdiction of the Administrative Tribunal. This question is not res integra.
6. The matter, similar to this, came up before the Supreme Court in Chief justice of Andhra Pradesh and Anr. v.T.V.A Dikshitulu and Ors., : [1979]1SCR26 . Article 471-D (3) of the Constitution provided for the constitution of an Administrative Tribunal for the State of Andhra Pradesh for deciding disputes in the matter of appointments, allotment, promotion seniority, and other conditions of service of civil servants of Andhra Pradesh.
7. In the aforesaid case, the Supreme Court considered the question whether the expression 'civil services of the State' and 'civil servants of the State' used in Article 471-D includes 'officers and servants of the High Court' as well as members of the Subordinate Judiciary and officers and servants of the subordinate Courts.
The Supreme Court observed that though the expression 'civil services,' was of widest import and therefore included 'officers and servants of the High Court and members of the Judicial Services and Officers and servants of the Subordinate Courts', having regard to the scheme of the Constitution, namely, (i) Article 229 which conferred control over officers and servants of the High Court on the Chief Justice (ii) Article 235 which conferred exclusive control over District Courts and Courts subordinate thereto which includes the members of the Judicial services and officers and servants of the subordinate Courts; and (iii) having regard to the Directive Principle contained in Article 50, namely, separation of judiciary from the executive, the words 'Civil servants' and 'Civil services' referred to in Article 471-D of the Constitution must be understood as having a restrictive meaning, in that, they did not include officers and servants of the High Court and subordinate Courts and, also the members of the subordinate judiciary and consequently they would not fall within the purview of the jurisdiction of the Administrative Tribunal. The relevant part of the Judgment in Dikshitulu's case, : [1979]1SCR26 reads :
'The phrase 'civil service of the State' remains more or less an amorphous expression as it has not been defined anywhere in the Constitution. Contrasted with it, the expressions 'judicial service of the State' and 'District Judge' have been specifically defined in Article 236, and thus given a distinctive, definite meaning by the Constitution makers. Construed loosely, in its widest general sense, this elastic phrase can. be stretched to include the 'officers and servants of the High Court as well as members of the Subordinate judiciary'. Understood in its strict narrow sense, in harmony with the basic constitutional scheme embodied in Chapters V and VI, Part VI and centralised in Articles 229 and 235 thereof the phrase will not take in High Court staff and the Subordinate Judiciary.
Article 471-D as its heading itself proclaims - which derogates from the general scheme of the Constitution for a specific purpose, general undefined phrases are not to be interpreted in their widest amplitude but strictly at tuned to the context and purpose of the provisions. Conversely, had it been the intention of Parliament to include 'Officers and servants of the High Court' and members of the 'judicial service of the State' and of the cadre of 'District Judges' in the phrase 'Civil services of the State' occurring in Clause (3) of Article 471-D, and thereby depart from the basic scheme of Chapters IV and VI, Part VI, the language commonly employed in sub-clauses should have read like this :
'Class or classes of posts in the civil services of the State including posts in the 'judicial service of the State', and of 'District Judges' in the State ; class or classes of posts of 'officers and servants of the High Court.'
In our opinion, non-use 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, respectively, to differentiate them in the scheme of the Constitution from the other Civil services of the State, gives a clear indication that post held by the High Court staff or of the Subordinate judiciary were advisedly excluded from the purview of Clause (3) of Article 471-D. The scope of the non-obstinate provision in Sub-article (10) which gives a over-finding effect to this Article is coterminous with the ambit of the preceding clauses.
78. The 'officers and servants of the High Court' and members of the Judicial service, including District Judges, being outside the purview of Clause(3), the non-obstinate provision in Clause (10) cannot operate to take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court, as the case maybe, under Articles 229, 235 and 226 of the Constitution in regard to these public servants in matters of disputes falling within the scope of the said Articles. Clause (10) will prevail over any provisions of the Constitution, other than those which are outside the ambit of Article 471-D, such as Articles 229 and 235. Provisions not otherwise covered by Article 471-D, cannot be brought within its sweep because of the non-obstinate Clause (10). It follows as a necessary corrollary that nothing in the order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with, or decide the representation by a member of the staff of the High Court or of the Subordinate Judiciary,'
7A. The ratio of the aforesaid decision applies on all fours to the interpretation of Article 423-A. Therefore, officers and servants of the High Court and of Subordinate Courts and members of the Judicial Services do not fall within the meaning of the expression 'civil service' used in Article 423-A and consequently fall outside the purview of Article 423-A of the Constitution. From this it follows that they also fall outside the scope of the Act. Section 2(c) of the Act expressly excludes the jurisdiction of the Administrative Tribunal in respect of officers and servants of the Supreme Court and of any High Court. But, there is no express exclusion as far as 'members of the judicial service' and 'officers and servants of the Subordinate Courts'. Since these categories of civil servants fall outside the purview of Article 423-A itself, the circumstance that there is no express exclusion of the jurisdiction of the Administrative Tribunal in respect of them does not make any difference. Obviously, having regard to this clear position in law the learned Attorney General of India has made a written submission on behalf of Union of India before the Supreme Court in the case of S. P. Sampath Kumar v. Union of India, ATR 1987(1) SC 34 at 36 to the effect that an amendment would be effected to the provisions of the Act, in order to clarify the position and place the matter beyond any controversy. The relevant portion of the Judgment, in which the submission made by the Attorney General is recorded, reads:
'After oral arguments were over, learned Attorney General, after obtaining instruction from the Central Government filed a memorandum to the effect that Section 2(c) of the Act would be suitably amended so as to exclude officers and servants in the employment of the Supreme Court and members and staff of the subordinate judiciary from the purview of the Act.'
Therefore, it is clear that the officers and servants of the subordinate Courts do not fall within the jurisdiction of the Administrative Tribunal. For these reasons, I answer the preliminary question as follows :
'The jurisdiction of this Court to entertain Writ petitions preferred by the officers and servants of the subordinate courts and members of the judicial service has not been divested and is not vested in the State Administrative Tribunal constituted under Section 4 of the Administrative Tribunals Act, 1985'
8. Now coming to the merits of the case, the facts of the case, in brief, are as follow : The Government of Karnataka has framed Rules called 'The Karnataka Civil Services (Time Bound Advancement) Rules, 1983 ('the Rules' for short). Rule 3 as amended by the Government Order dated 23-8-1984 reads :
'3. GRANT OF TIME BOUND ADVANCEMENT AND CONDITIONS OF ELIGIBILITY :
The appointing authority shall grant to a Government servant, who is holding a post carrying pay scale specified in column(2) of the schedule, the Selection Time Scale of pay specified in the corresponding column (3) thereof if :
(a) he has put in a service of not less then ten years in the post held by him excluding his services as a local candidate, Work-charged employees or any other service which does not count for the purpose of determining seniority for promotion.'
Service particulars of each of the petitioners areas follow :
(1) Petitioner in Writ Petition No. 11230 of 1985 was appointed as a First Division Clerk on regular basis on 1-5-1973 in the Judicial Department in Dakshina Kannada District. In the year 1980, after he had put in more than seven years of service, he requested for transfer to Mysore District on health grounds. His request was granted but he was asked to give an undertaking that he would forego past services for seniority and take bottom seniority in the Cadre in the Mysore District. He gave such undertaking and secured the transfer. He is now working in the Mysore District. After he completed 10 years of service, he was granted Selection Time Scale under Rule 3 of the Rules extracted above, by an order dated 16-10-1984 by respondent-1 with effect from 1-4-1984 (vide Annexure-C.) But, subsequently, by order dated 22-6-1985, the Selection time Scale so granted was cancelled on the ground that in view of Rule 3, the service rendered by the petitioner on and after 2-12-1980 (the date on which he was transferred) in Mysore District alone would count for according Selection time Scale and on that basis he had not put in ten years of service.
(2) Petitioner in Writ Petition No. 10968 of 1985 was appointed as a Process Server in the Judicial Department in Mysore District on 6-10-1971 on regular basis. On personal grounds he sought for transfer to Mandya District, some time in the year 1979. His request was granted only on his giving an undertaking to become junior to Juniormost official in Mandya District and he was transferred to Mandya District on 25-3-1980. Selection time scale was granted to him, after completion of 10 years of satisfactory service, by respondent-1 by his order dated 28-8-1984 with effect from 1-1-1984 (vide Annexure-B), but the same was cancelled by respondent-1 by his order dated 28-6-1985(vide Annexure-C) on the ground that the petitioner had not completed 10 years of service after he was transferred to Mandya District.
(3) The petitioner in Writ Petition No. 13929 of 1985 was originally appointed as a local candidate on 18-10-1956 as Copyist in the Judicial Department in Mysore District. His services were regularised by order dated 1-12-1960 in accordance with the Government Order providing for regularisation. He was promoted as Copyist-Examiner, which post is equal to First Division Clerk, on 10-11-1972. After he had put in seven years of service as Copyist Examiner in Mandya District, he made a request for transfer to Mysore District on personal grounds. He was asked to give an undertaking to give up his services rendered by him up to the date of his transfer and to take bottom seniority in Mysore District. Accordingly, he gave the undertaking. Thereafter he was transferred to Mysore District on 3-11-1980. When he sought for grant of Selection Time Scale the same was refused on the ground that he had not put in ten years of service after he was transferred to Mysore District. In the order made in this case the reasons, which are applicable to other two Writ Petitions also, have been set up. The said order reads :
'Initially the official was appointed as Copyist. He was promoted as Copyist-Examiner and he reported to duty on 10-11-1972. He was serving in Mandya District. From 10-11-1972 the official has put in ten years of service as Copyist-Examiner Grade-I. He has satisfactory records of service and is otherwise eligible for promotion. Now, he has applied for grant of Selection Time scales of pay tinder the Time Bound Advancement Rules, 1983. However, the official sought for transfer from Mandya District to this District and at his request he was so transferred. While seeking such transfer he gave a declaration and consent that he will forego his seniority in Mandya District and will become junior to the junior-most official in that cadre working in Mysore District. He is now equated with First Division Clerk He was relieved from Mandya District and he reported in this Unit on 3-11-1980. Now, he is the junior-most F.D.C., in this Unit. His service, in Mandya District therefore, does not count for the purposes of determining his seniority for the purposes of promotion in this Unit. As per Rule 3(a) of the Karnataka Civil Services (Time Bound Advancement) Rules, 1983 and the amendment made thereto from time to time a Government servant who is put in service of not Jess than 10 years in the post held by him, excluding his service as a local candidate, work-charged employee, or any other service which does not count for the purposes of determining seniority for promotion, is entitled to the benefit of the Rules. While computing the period of 10 years to find out whether he is eligible to the benefits or not, his service as a local candidate or work-charged employee or any other service which does not count for the purpose of determining seniority for promotion has to be excluded. The service put in by the official as Copyist Grade-I since his promotion on 10-11-1972 till his transfer to this Unit, therefore, cannot be counted for granting him the benefits under the Rules as that service does not count for the purposes of determining seniority for promotion. If that service is excluded then the official has not put in 10 years of service and hence he is not eligible to the benefit under the Rules. Hence, the representation of the official is rejected Official concerned is directed to be informed accordingly.'
9. The view that this petitioner and other petitioners were not eligible for Selection Time Scale was taken on the interpretation of Rule 3 to the effect that the services rendered by them, in the original district in which they were appointed, which would not count for seniority in the district to which they were transferred, cannot be taken into account for granting Selection Time Scale.
10. There is no dispute that, if the interpretation placed by respondent-1 on Rule 3 is correct, none of the petitioners would be entitled to the Selection Time Scale as, admittedly, they had not put in 10 years of service after their transfer to the district in which they are now working. But, the question for consideration is whether Rule 3 is intended to deprive the Civil servants, who had been appointed on regular basis, any part of their regular service for computing the service rendered by them for conferring eligibility to claim Selection Time Scale.
11. The words used in Rule 3(a) are 'services as a local candidate, work-charged employees, or any other service which does not count for the purpose of determining seniority' should be excluded in computing the service for purpose of according selection time scale. Though the interpretation of the Rule by respondent-1 appears to be attractive at first sight, a careful analysis of the provision would show that the construction is not only untenable but also renders the Rule irrational and arbitrary, and, consequently, violative of Articles 14 and 16 of the Constitution of India. Rule 3 provides that services rendered as a local candidate or services rendered on Work-charged establishments, or any other service which does not count for the purpose of determining seniority should be excluded. Read ejusdem generis, the words 'any other service with does not count for seniority' mean the nature of the service must be similar to the service rendered as a local candidate or on work-charged establishment. Such services are, service on a contract tenure, against a temporary post, service as a stipendiary and any other irregular service which does not count for seniority, and not regular service even if the benefit of part of such regular service for seniority is given up by a civil servant while seeking transfer to another district. There is no dispute that the service rendered by the petitioner in Writ Petition No. 11230 of 1985 as First Division Clerk from 1-5-1973, the service rendered by the petitioner in Writ Petition No. 10968/85, who was appointed from 6-10-1971 as Process Server, and the service rendered by the petitioner in Writ Petition No. 13929/1985 as Copyist from 1-12-1960 and as Copyist Examiner from 10-11-1972, were all regular services which counted for seniority and would have been continued to be counted for seniority had they continued in their respective districts. Merely because the petitioners got themselves transferred to another district after giving an undertaking to forego the previous service and to take bottom seniority in the cadre in the district to which they were transferred, does not render the regular service rendered by them in their respective original districts an irregular service and would not become equal to service rendered by them as a local candidate, a work-charged employee or any other irregular service. It was not and could not have been the intention of the rule making authority to deprive the civil servants the benefit of regular service rendered by them for grant of Selection Time Scale just because they had secured transfer to another unit and had been given an undertaking to forego the regular service for seniority. The undertaking cannot be used to deprive such civil servants the benefit of part of their regular service for the according of time bound advancement, as the basis for the grant of the benefit is the period or time of regular service. The insistence on giving up of the benefit of regular service for seniority at the time of transfer at request is only intended to ensure that such transfer does not affect the chances of promotion of other civil servants in the district or unit to which such transfer is sought for. Therefore, such giving up cannot be extended beyond that and doing so would be irrational. Such an interpretation would render the rule irrational and therefore violative of Articles 14 and 16(1) of the Constitution. It is well accepted principle that if two interpretations of a statutory provision are plausible, the one which renders the provision unconstitutional should be eschewed and the one which does not make it inconsistent with the provisions of the Constitution should be accepted. For these reasons, I answer the question set out in. the first paragraph as follows :
'The exclusion of the service rendered by the petitioners, after their regular recruitment in the District in which they were recruited before their transfer at their request, to the districts in which they are now working in computing the regular service rendered by them for purposes of according selection time scale applicable to them under the provisions of the Karnataka Civil Services (Time Bound Advancement) Rules, 1983, is not authorised by the Rules.'
12. In the result, I make the following order :
(i) W.P. No. 11230 of 1985 is allowed. The impugned order dated 22-6-1985 (Annexure-D) is set aside. The petitioner is entitled to the repayment of the amount, if any, already recovered and he is also entitled to the benefit which is already extended to him by order dated 16-10-1984 (Annexure-C). Respondents are directed to take action : accordingly.
(ii) Writ Petition No. 10968 of 1985 is allowed. The impugned order dated 28-6-1985 (Annexure-C) is set aside. The petitioner is entitled to the benefit which is already extended to him by order dated 28-8-1984 (Annexure-B) and he is also entitled to the refund of the amount, if any, already recovered. Respondents are directed to take action accordingly.
(iii) Writ Petition No. 13929 of 1985 is allowed. The impugned order dated 11-3-1985 (Annexure-D) is set aside. A writ of mandamus shall issue to Respondent-1 to accord Time Bound Scale to the petitioner with effect from the date on which he had completed 10 years of regular service from 10-11-1972. He is also entitled to all the benefits including the difference in the salary from the said date.