ORDER
1. The letter which was addressed by the Registrar, Special Court under the A.P. Land Grabbing (Prohibition) Act, 1982 (for short 'the Special Court') to the Registrar General of High Court of Andhra Pradesh was placed before me (Chief Justice) and the same was treated as a taken up writ petition and numbered as writ petition No.3267 of 2002.
2. In the instant case, the appointment of an attender in the Special Court made by the Hon'ble Chairman, who is a retired High Court Judge, was not approved by the Finance Department stating that the Special Court cannot fill up vacancies arising out of retirement or any other manner except by way of redeployment of surplus staff. A representation was made to this Court for declaring the said action of the Finance Department as illegal and for approving the appointment of the attender made by the Hon'ble Chairman.
3. For appreciation of the case the relevant facts are stated as under:
The Special Court was constituted under the A.P. Land Grabbing (Prohibition) Act, 1982 (for short 'the Act') in the year 1988. Section 10-A of the Act provides for the powers of the Chairman in respect of the appointment of the members of the staff in the Special Court. Section 10-A of the Act is reproduced hereunder:
(1) The Chairman of the especial Court may appoint officers and other employees required to assist the Special Court in the discharge of its functions under this Act.
(2) The categories of officers and employees who may be appointed under sub-section (1), their salaries, allowances and other conditions of service and the administrative powers of the Chairman of the Special Court shall be such as may be prescribed after consultation with the Chairman.
4. According to sub-rule (4) of Rule 4 of the A.P. Land Grabbing (Prohibition) Special Court (Officers and Employees) Service Rules, the Chairman of the Special Court is the appointing authority. The said sub-rule reads thus:
The appointing authority for all categories (both gazetted and non-gazetted) shall be the Chairman of the Special Court or any subordinate to the Chairman duly authorized in this behalf by the Chairman.
In this case the Chairman appointed an attender by name Y.Satish having regard to the requirements of the Court in view of Section 10-A of the Act read with sub-rule (4) of Rule 4 of the A.P. Land Grabbing (Prohibition) Special Courts (Officers and Employees) Service Rules (for short 'the Rules'), G.O.Ms.No.275 Finance and Planning (Finance Wing - Surplus Man Power Cell) Department, dated 14-12-1995 and G.O.Ms.No.22 Finance and Planning (Finance Wing - Surplus Man Power Cell) Department, dated 7-2-1997.
5. When the bill for payment of salary for the said attender was submitted the Pay & Accounts Officer, Hyderabad raised an objection for passing the said bill referring to paragraphs 3 and 4 of G.O.Rt.No.1902 Revenue 9A&R;) Department, dated 20-12-2000 which states that no vacancy arising out of retirement or by any other manner shall be filled up except by way of redeployment of surplus staff under the State Government.
6. The Registrar of the Special Court submitted a representation to the State that paragraphs 3 and 4 of G.O.Rt.No.1902, dated 20-12-2000 are not applicable to the Special Court having regard to G.O.Ms.No.275, dated 14-12-1995 read with G.O.Ms.No.22, dated 7-12-1997. G.O.Ms.No.275, dated 14-12-1995, reads thus:
The Secretary, Andhra Pradesh Public Service Commission, Chairman, Police Service Recruitment Board, District Selection Committees, A.P. College Service Commission and all other Recruiting Bodies/Committees of all Departments of the Government are requested not to accept any requisitions for any vacancies unless it is received from the Government in the Finance and Planning (Finance Wing) Department. All District Employment Officers also should not entertain requisitions from any office other than those received from the Government in the Finance and Planning (Finance Wing) Department.
These orders do not apply to High Court, Subordinate Courts and Andhra Pradesh Administrative Tribunal.
However, by virtue of G.O.Ms.No.22, dated 7-2-1997, an amendment has been made to G.O.Ms.No.275 to the following effect:
These orders do not apply to High Court, Subordinate Courts, Andhra Pradesh Administrative Tribunal and Special Court under the A.P. Land Grabbing (Prohibition) Act, 1982.
7. It appears that the representation made by the Registrar of the Special Court was not approved by the Assistant Secretary in the Finance Department stating that the Special Court violated G.O.Rt.No.1902, dated 20-12-2000 and further requested the Special Court to remove the person who was appointed in the post of attender. It is submitted that it was further reliably learnt that the concerned departments were requested to fix the responsibility on the concerned and take action for violating the orders in G.O.Rt.No.1902.
8. Category 11 mentioned in sub-rule (1) of Rule 4 of the Rules which has a statutory force provides direct recruitment to the post of attender and the same is reproduced hereunder:
a) Attenders i) By direct recruitment; orb) Process servers ii) By transfer or by deputation of anc) Watchmen equivalent category from any ortherd) Sweeper-cum-Scavenger service on tenure basis for a fixedterm or terms.
9. In our opinion the Finance Department cannot force or take away by an executive order, the statutory power of the Chairman to resort to direct recruitment. The action of the Secretary concerned of the Finance Department is wholly illegal and unwarranted. These orders and actions of the Secretaries of the Finance Department are wholly inconsistent with the independence and dignity of the Special Court and its Chairman. It appears that the Finance Department is treating the Special Court as another department of the State which is not in keeping with the dignity of the judicial institution. The Finance Department of the Government appears to have observed that action should be taken against the concerned viz., the Chairman of the Special Court for appointing the attender. This is derogatory to the independence and dignity of the Special Court and its Chairman. We have already noticed Section 10-A of the Act read with sub-rule (4) of Rule 4 of the Rules which empower the Chairman to appoint officers and employees of the Special Court. Further, Section 15 of the Act provides overriding effect to the provisions of the Act. It reads as follows:
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or custom, usage or agreement or decree or order of a court or any other tribunal or authority.
Thus the power to make appointment is statutorily vested in the Chairman. By an executive order the Finance Department is trying to abridge or curtail such statutory power. In our opinion, the executive cannot abridge or curtail the statutory power. As the provisions of the Act are given overriding powers over other laws even if there is any law which is inconsistent with Section 10-A of the Act, Section 10-A would prevail.
10. In the present case no law, which is inconsistent with the provisions of the Act and the Rules made there under is brought to our notice. Paragraphs 3 and 4 of G.O.Rt.No.1902 are only observations made while reducing the posts of attenders in the Special Court from 13 to 8. Therefore, they are inconsistent with the statutory provisions referred to above. G.O.Ms.No.275 read with G.O.Ms.No.22 exempted the Special Court along with the High Court of Andhra Pradesh, its Subordinate Courts and the A.P. Administrative Tribunal from taking staff by way of redeployment of the surplus staff with the Government.
11. The Special Court is a judicial institution. It should be an independent one and the staff of the said Court should be isolated from the staff of the State. This is the very reason why exemption was granted to the judicial institutions viz., High Court of Andhra Pradesh, its subordinate courts, A.P. Administrative Tribunal and the Special Court. To our knowledge there is no provision providing for transfer of staff from the executive to the judicial institutions or from the judicial institutions to the executive. The rationale for not providing such transfers between the executive and the judicial institutions is that the judicial institutions are treated as independent of the executive and therefore the independence of the judicial institutions is a basic structure of the Constitution.
12. G.O.Ms.No.68 Finance (SMPC) Department dated 28-1-2002 is received by the Special Court on 5-2-2002. G.O.Ms.No.68 is issued withdrawing, the orders issued in G.O.Ms.No.22, dated 7-2-1997 which exempted the Special Court from the applicability of the orders issued in G.O.Ms.No.275, dated 14-12-1995, with immediate effect, which would mean with effect from 28-1-2002. However, the appointment of an attender by the Chairman of the Special Court was made on 19-11-2001 and, therefore, such an appointment is valid. Paragraph 4 of G.O.Ms.No.68, dated 28-1-2002, restricting the Special Court not to fill up any vacancies arising out of retirement or in any other manner except by way redeployment is also illegal and therefore the said G.O.Ms.No.68, dated 28-1-2002 is quashed.
13. We hold that there is no question of seeking from the Finance Department any clearance or approval of the appointments made by the Chairman of the Special Court. We declare that the appointment of an attender by name Y.Satish made by the Chairman of the Special Court on 19-11-2001 is valid and direct the 4th respondent to forthwith pass the pay bill in respect of the said attender as and when it is submitted by the Special Court, from the date of his joining and also to continue to pass the pay bill regularly every month.