Musaddi Lal Agarwal v. State of U. P — 1980 DIGILAW 81 (ALL)

JUDGMENT M.N. Shukla, J. - The petitioner was a member of the Higher Judicial Service, Uttar Pradesh and was confirmed as a District Judge with effect from 4-11-1969 by an order dated 19-3-1975. He was selected to hold the post of Judicial Member of the Uttar Pradesh Public Services Tribunal (hereinafter referred to as the Tribunal) and he took over on 2-8-1976. His appointment was notified on 30-9-1976. The petitioners date of birth is 13-6-1919 and he completed 58 years of age on 13-6-1977. He continued to hold the charge of his post as a member of the Tribunal till 1-7-1977 when he was asked by the Chairman of the Tribunal that he should not hold court as the Government had issued directions to that effect. In other words, the petitioner was directed not to function in his post as a member of the Tribunal since he had attained the age of 58 years, consequently from 1-7-1977 the petitioner ceased to hold court, though according to the averments in the writ petition he continued to attend the Tribunal regularly till 11-7-1977. Of course, no written order was communicated to him nor has any such order been filed by the respondent, nevertheless the allegations are not controverted. Aggrieved by this order of the Government the petitioner has filed this writ petition and prayed, inter alia, that a writ in the nature of mandamus be issued to command the respondent, State of Uttar Pradesh, to let the petitioner continue on the post of member, Uttar Pradesh Public Services Tribunal till he attains the age of 61 years, as required under the provisions of sub-sec (5) of Section 3, Uttar Pradesh Public Services (Tribunals) Act, 1976, (hereinafter referred to as the Act). 2. The question, therefore, which arises for consideration is,the interpretation of sub-section (5) of Section 3 of the Act. The Uttar Pradesh Public Services (Tribunals) Act, 1976 (Act No. 17 of 1976) was enacted in order to provide for the constitution of Tribunals to adjudicate the disputes of public servants or the employees of the State. The terms and conditions of employment of the Chairman and the members of the Tribunal were to be governed by Section 3 of the Act which reads :- "Constitution of the Tribunal. - (1) The State Government may by notification constitute two or more Tribunals, each to be called a State Public Services Tribunal. The terms and conditions of employment of the Chairman and the members of the Tribunal were to be governed by Section 3 of the Act which reads :- "Constitution of the Tribunal. - (1) The State Government may by notification constitute two or more Tribunals, each to be called a State Public Services Tribunal. (2) Each Tribunal shall consist of a Judicial Member and an Administrative Member. (3) The Judicial Member shall be a person who is or has been or is qualified to be a Judge of a High Court, and an Administrative Member shall be a person who holds or has held the post of, or any post equivalent to Commissioner of a Division. "(4) One of the members shall be designated by the State Government to be the Chairman of the Tribunal; Provided that where the Judicial Member is a person who is or has been a Judge of a High Court, he shall be the Chairman. (5) No person shall be appointed or continue to hold office as a member of a Tribunal if in the case of a retired High Court Judge he has attained the age of sixty-five years and in any other case he has attained the age of sixty-one years. (6) The State Government may transfer any case from one Tribunal to another, and if in any case the two members of a Tribunal are unable to agree, the State Government shall transfer that case to another Tribunal. (7) The State Government may, by general or special order, from time to time, define the jurisdiction of each Tribunal either with reference to territories or with reference to classes of cases, but any such order shall be without prejudice to the power of the State Government under sub-section (6)". 3. The petitioners contention, in short, was that by virtue of sub-section (5), of Section 3 of the Act a person who had been appointed a member of the Tribunal had a right to continue to hold the office as such member until he attained the age of 61 years. Accordingly he claimed his right to continue to hold the office as a member of the Tribunal till he attained the age of 61 years. The petitioner strongly relied on the terms of the order of appointment issued to him. It is manifest that the appointment was unconditional. Accordingly he claimed his right to continue to hold the office as a member of the Tribunal till he attained the age of 61 years. The petitioner strongly relied on the terms of the order of appointment issued to him. It is manifest that the appointment was unconditional. This position, namely, the unqualified appointment of the petitioner was not denied but the contention of the respondent was that even after being appointed a Judicial Member of the Tribunal the petitioner did not cease to be a member of the Higher Judicial Service and so he continued to be governed by the age of superannuation laid down in Fundamental Rule 56 (a) of the Financial Hand book, Volume II, Parts II to IV framed by the State Government. According to that Rule the age of superannuation is 58 years. The Rule runs thus : "56 (a) Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances." It was submitted that the retirement of the petitioner upon attaining the age of superannuation was automatic and no order retiring him from service was required to be passed. It was also pointed out that the above provisions 'of Rule 56 (a) had not been amended or modified in any manner by the Uttar Pradesh Public Services (Tribunals) Act. 1976. According to the respondent sub-section (5) of Section 3 of the Act did not provide either expressly or even by implication that a person appointed as a member of the Tribunal when he was below 58 years, must continue to hold the post until he attained the age of 61 years. It was vehemently urged that on the very terms of the Fundamental Rule 56 (a) the discretion vested in the Government to extend or not to extend the period of service of an incumbent of the post beyond the age of 58 years but it could not be claimed as a matter of right. It was vehemently urged that on the very terms of the Fundamental Rule 56 (a) the discretion vested in the Government to extend or not to extend the period of service of an incumbent of the post beyond the age of 58 years but it could not be claimed as a matter of right. On a plain construction of the language of sub-section (5) of Section 3 of the Act we are unable to accept this construction. The significant words used in the section are "No person shall be appointed or continue to hold office if he has attained the age of sixty-one years." It was emphasised that the section was negatively worded and, therefore, it should be interpreted as conferring a discretion on the competent authority to either allow or disallow a member to hold the office until the age of 61 years. It was suggested that if there had been an affirmative provision, it could be regarded as 'specifically prescribing the age of superannuation and then it could be legitimately construed as conferring a right on the incumbent of that office to hold the post until the prescribed age was attained. The Legislature in its wisdom had not adopted a peremptory or categorical terminology so as to confer on a person holding such post the right to hold it until he reached the precise landmark with regard to age which would mark the cessation of his tenure. The argument, though attractive, is fallacious. The Legislature adopts different the Act is by no means an innovation or one with which we are not acquainted. Identical language has been used in other statutes which have been judicially interpreted. Thus in Atlas Cycle Industries Ltd. Sonepat v. Their Workmen AIR 1962 SC 1100 the Supreme Court had occasion to interpret Section 7 C of the Industrial Disputes Act, 1947. Identical language has been used in other statutes which have been judicially interpreted. Thus in Atlas Cycle Industries Ltd. Sonepat v. Their Workmen AIR 1962 SC 1100 the Supreme Court had occasion to interpret Section 7 C of the Industrial Disputes Act, 1947. Its provisions were in the following terms : "No person shall be appointed to, or continue in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal, if- a) he is not an independent person; or b) he has attained the age of sixty-five years." It was held that the insertion of the age qualification in Section 7 C was more consistent with an intention on the part of the Legislature to add, in the light of the working of the repealed Section 7, a new provision prescribing the age of retirement for members. The contention that the said provision imported any qualification based on the age of the person to be appointed was rejected. Learned counsel appearing for the respondent in the present case attempted to argue that in sub-section (5) of Section 3 of the Act the provision relating to age merely prescribed a qualification with regard to the eligibility and not the age of superannuation. The suggested construction is not sound and must be rejected. In Atlas Cycle Industries Ltds case (supra) Article 217 of the Constitution of India relating to the tenure of High Court Judges was also interpreted. That Article as it then stood provided : "217 (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty years." 4. Venkatarama Aiyar, J. speaking for the Court observed : "We think that on a true construction of the article the prescription as to age is a condition attached to the duration of the office and not a qualification for appointment to it." 5. Venkatarama Aiyar, J. speaking for the Court observed : "We think that on a true construction of the article the prescription as to age is a condition attached to the duration of the office and not a qualification for appointment to it." 5. Thus, whenever the Legislature uses the words "a person shall hold office" or "continue in office" till he has attained a certain age, they have been consistently construed as conferring a right on the incumbent to hold the post till the prescribed age of superannuation is reached. 6. As we have already observed, on behalf of the respondent strong reliance was placed on the provisions of Fundamental Rule 56 (a) but the words of that Rule are materially different from the language of sub-section (5) of Section 3. The key words occurring in the said Rule are "retained in service" (emphasis added). The concluding sentence of the said Rule extracted in the foregoing part of the judgment says; "he may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing, but must not be retained after the age of 60 years except in very special circumstances", (emphasis ours). The implication of the word "retain" may perhaps in certain context be to leave it to the discretion of the appointing authority either to let a person continue in his post till the age prescribed or not allow him to continue till that age and rather oblige him to quit the post even prior. This argument may be spelt out on the basis of the connotation of the term "retained" used in Fundamental Rule 56 (a). But in sub-section (5) of Section 3 of the Act, which we are interpreting, the word "retained" has been eschewed and instead such phraseology as occurs in other statutes and which has been judicially interpreted as conferring a legal right on a person to continue to hold the post until the prescribed age of superannuation is attained, has been advisedly used by the Legislature. Thus, even though a plausible argument might be built on the basis of interpretation of the word "retained", such argument must be ruled out on the language employed in sub-section (5) of Section 3 of the Act. Thus, even though a plausible argument might be built on the basis of interpretation of the word "retained", such argument must be ruled out on the language employed in sub-section (5) of Section 3 of the Act. Here it would not be inappropriate to refer to a decision of the Supreme Court in which even the word "retained" has been construed as not conferring discretion on the Government or the appointing authority to either allow a person to function till the age of superannuation or disallow him. It has been held that notwithstanding the use of that term a legal right accrues to an incumbent to continue in his post till the age of superannuation. See The Railway Board v. A. Pitchumani AIR 1972 SC 508 : (1972 Lab IC 305). In that case the provision which came in for interpretation was Rule 2046 of the Railway Establishment Code which provided : "2046 (2) (a) A ministerial servant who is not governed by sub-clause (b) may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient up to the age of 60 years." This was interpreted as entitling the Railway servant to continue in service till he attained, the age of 55 years and did not leave a discretion in the authority concerned to discontinue his services prior to that age. It was observed in para 21 of the Reports :- "By virtue of Clause (b), he was entitled to be retained in service till he attains the age of 60 years. It is to be noted that there is no option left with the employer, but to retain such a ministerial railway servant up to 60 years. In other words, if the ministerial railway servant satisfies the requirements of Clause (b), he is, as of right, entitled to be in service till he attains the age of 60 years." 7-8. Thus, so far as the language of sub-section (5) of Section 3 of the Act is concerned it is not open to the respondent to advance the argument that the matter of retirement of a member of the Tribunal is left to the discretion of the Government. Such contention must be repelled in view of the clear pronouncement of the Supreme Court referred to above. Such contention must be repelled in view of the clear pronouncement of the Supreme Court referred to above. The conditions of service of a person must be governed by the provisions relating to that particular service or assignment. The term "conditions of service" is one of wide amplitude and includes all such matters in relation to the employment such as the initial appointment, salary, periodical increments, promotion, seniority, pension, age of superannuation, etc. In fact, several provisions of the Constitution of India can serve as illustrations of this point. Take for instance, Article 76 of the Constitution. This provides the mode of appointment and conditions of service of the Attorney General of India. It says that the President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney General of India. The Attorney General shall hold office during the pleasure of the President and shall receive such remuneration as the President may determine. Likewise Article 316 (2) of the Constitution incorporates the conditions of service of a Member of the Public Service Commission and prescribes the duration of his office and the age of superannuation. The expression "conditions of service" is used in Article 309 of the Constitution which says that "subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to pub' services" etc. The mode of appointment of a person i.e. the provision specifying the authority which would be competent to make appointment, the duration of office, tenure, etc. are obviously comprehended within Article 309. Prior to the Constitution there were corresponding provisions in the Government of India Act, 1935. Sections 240 to 243 of the Government of India Act contained more or less similar provisions and section 241 specifically dealt with recruitment and conditions of service. Those provisions were examined in Province of Bombay v. Madhukar Ganpat Narlekar, AIR 1952 Bom 37 . Prior to the Constitution there were corresponding provisions in the Government of India Act, 1935. Sections 240 to 243 of the Government of India Act contained more or less similar provisions and section 241 specifically dealt with recruitment and conditions of service. Those provisions were examined in Province of Bombay v. Madhukar Ganpat Narlekar, AIR 1952 Bom 37 . Following the dictum of the Privy Council in North-West Frontier Province v. Suraj Narain Anand, AIR 1949 P.C. 112 , it was held that for the construction of Section 243 there was no distinction between tenure and conditions of service as tenure was included in conditions of service and that the question of retention in, or dismissal from, service was one in respect of conditions of service and was therefore governed by the provisions of Section 243 and not by Section 240 (2) and (3). In our opinion any provision relating to the tenure or the age of retirement is an important item of the conditions of service applicable to a servant. Therefore, when sub-section (5) of Section 3 of the Act prescribes the age of superannuation of member of the Tribunal it must be regarded as a condition of service and this alone would determine the age up to which such member is entitled to continue in office. We have already referred to the decision of the Supreme Court in which such provision was regarded as one prescribing the age of retirement. Consequently, there is no escape from the conclusion that the age mentioned in sub-section (5) of Section 3 of the Act is the age of retirement of a member of the Tribunal and is a condition of service. 9. Yet another argument raised on behalf of the respondent was that while the age of retirement of the members of the Tribunal other than those who were retired High Court Judges would be 61 years, within that category there must be read another classification consisting of, (a) those who were drawn from administrative or judicial services, and (b) those who were not so drawn. In other words, the submission was that apart from the broad classifications envisaged in sub-section (5) of Section 3 of the Act, namely, members who were retired High Court Judges and those who were drawn from other sources, within the latter category was implicit a further sub-classification viz. In other words, the submission was that apart from the broad classifications envisaged in sub-section (5) of Section 3 of the Act, namely, members who were retired High Court Judges and those who were drawn from other sources, within the latter category was implicit a further sub-classification viz. those who were drawn from Judicial or Administrative services on the one hand, and on the other hand, those who did not stem from these sources. It was submitted that those members who were drawn from Administrative or Judicial services must conform to the age of superannuation prescribed by the respective rules applicable to those services. In our opinion it is not possible to add any other classification to the one contemplated by the Legislature nor is it possible to read any proviso to that effect in sub-section (5) of Section 3. A reasonable classification of two broad categories has been created by the Legislature and that is embodied in sub-section (5) of Section 3. The Rule relating to the members falling within these two major groups is of uniform application. We cannot add a further category to these classes. The inevitable result of such further classification applying two different periods of tenure for persons falling within the same class comprised of members other than those who were or had been High Court Judges would be discrimination. While some members would continue to hold office till the age of 61 years, others would be asked to quit at the age of 58 years. This would offend Article 14 of the Constitution and hence such classification as suggested by the learned counsel for the respondent cannot be accepted. 10. It is not necessary for us for the purposes of this case to enter into the question as to whether a member of the Higher Judicial Service or Administrative services, if appointed a member of the Public Services Tribunal, completely severs his connection with the service from which he is drawn or ceases to be a member thereof or can be at any stage recalled to his parent service. That would depend upon the exercise of an altogether different power. That would depend upon the exercise of an altogether different power. Here it is sufficient for us to hold that so long as a person is a member of the Public Services Tribunal he would be entitled to hold the post till he attains the age of 65 years or 61 years depending upon the source from which he is drawn to hold the post. Therefore, so long as a member who was drawn from Higher Judicial Service is a member of the Tribunal he would be entitled to hold the post until he attains the age of 61 years. This period cannot be abridged so long as he remains in the Tribunal. More or less similar point arose for decision in Sadasiva Panicker v. State of Kerala, 1976 Serv. L.J. 398 (Ker). In that case a Joint Secretary to the Government was appointed a member of the Appellate Tribunal and by virtue of the Rule applicable to the Tribunal he was entitled to retain his office longer but having attained the age of superannuation i.e. 55 years, according to the Government Service Rules he was made to retire. It was held that notwithstanding the fact that the petitioner ceased to be a Government Officer on attaining the age of superannuation, once he was nominated a member of the Appellate Tribunal, the term of his office became three years and it was not open to the Government to shorten his tenure by applying to him the rule of superannuation applicable to Government Servants. We are unable to comprehend as to how in the case of a member of the Uttar Pradesh Public Services Tribunal it is possible to avoid the mandatory' provision which entitles an incumbent of that office to continue till the age of 61 years or 65 years. Judicial decisions invariably point to the conclusion that irrespective of source from which a person is drawn, once he gets assimilated into another assignment he becomes subject to the rules governing that assignment and cannot be relegated to the rules which governed his previous employment. Judicial decisions invariably point to the conclusion that irrespective of source from which a person is drawn, once he gets assimilated into another assignment he becomes subject to the rules governing that assignment and cannot be relegated to the rules which governed his previous employment. Unless there are specific restrictions imposed by appropriate legislation, he must be strictly governed by the rules applicable to the new employment, when a person makes an exodus from his former service and enters a fresh employment, he must be deemed to lose his birth-marks as it were and make himself completely amenable to the provisions prescribing the conditions of service applicable to the new employment. We are also not oblivious of such safeguards as may be resorted to in order to prevent such results as we think are bound to follow if a person is appointed to a new post of which the tenure does not end before the prescribed age. Thus, for instance, it may be possible to make an appointment of a member of the Tribunal on deputation or conditional i.e. for a fixed period, etc. Similar other devices may be adopted to cut short the normal tenure which attaches to the new post. Where, however, the appointment is unqualified and without any reservation, then, subject to the possibility of a person being recalled to his parent service in the exercise of a power existing in that regard and not affected by Act No. 17 of 1976 or any other law, he cannot be asked to discontinue from his office prior to his attaining the age of 61 years or 65 years as prescribed in the provision. A close scrutiny of Section 3 of the Act reveals that the fact that a member of the Tribunal has attained the age of superannuation prescribed in the service which was the source from which he was drawn is irrelevant for the purposes of determining the tenure of, his membership of the Tribunal. Sub-section (3) of Section 3 of the Act makes it clear that a retired Judge of the High Court may be appointed a member of the Tribunal or, for that matter, a person who has retired from Higher Judicial Services may be appointed a member of the Tribunal. Sub-section (3) of Section 3 of the Act makes it clear that a retired Judge of the High Court may be appointed a member of the Tribunal or, for that matter, a person who has retired from Higher Judicial Services may be appointed a member of the Tribunal. If the age of retirement prescribed in the Higher Judicial Service itself had been a bar, no such appointment would have been provided for under Section 3. Similarly a High Court Judge who retires at the age of 62 years can be subsequently appointed under sub-section (5) of Section 3 to be a member of the Tribunal and he would continue to hold that office until he attains the age of 65 years. If the age of retirement of the service which was the source from which the member was drawn were material, such appointment would have been excluded under sub-section (5) of Section 3. Therefore, the age of retirement relating to the service which was the source from which a member of the Tribunal was drawn has no bearing on his continuance in the Tribunal so long as he is not withdrawn from that post by virtue of some other power. 11. We have already observed that the age of retirement prescribed by sub-section (5) of Section 3 must be construed as a condition of service of the members of the Tribunal. If this were not so, their security of tenure will be destroyed. It is manifest that members of the Tribunal are entrusted with important functions which were formerly being performed by District Judges or other Judicial officers of high rank. In order that such members may be able to discharge those functions without fear or favour and their independence in meeting out even handed justice may not be impaired, it was desirable that they must enjoy security of tenure. It is inconceivable that in discharging those functions they should be made merely the playthings of executive vagaries. If a member gave adequate relief to an aggrieved petitioner and the decision happened to cause inconvenience to the Government or was incompatible to it, there would be no difficulty in getting rid of such member by pressing into service the age of superannuation prescribed for his original service from which he was drawn. If a member gave adequate relief to an aggrieved petitioner and the decision happened to cause inconvenience to the Government or was incompatible to it, there would be no difficulty in getting rid of such member by pressing into service the age of superannuation prescribed for his original service from which he was drawn. In that, event the very object of creating such Tribunal and ensuring impartial justice to such persons seeking redress would be completely defeated. Hence that construction of this provision which would achieve this object must be preferred. The conclusion, therefore, becomes irresistible that sub-section (5) of Section 3 of the Act does not confer a discretion on the Government to retire a member of the Tribunal on his attaining the age of superannuation fixed in his erstwhile service but prescribes its own age of retirement which must be given effect to and which ensures his tenure up to that age. Thus, the petitioner entitled to continue to hold his office as a member of the Uttar Pradesh Public Services Tribunal till he attained the age of 61 years. 12. We, therefore, allow this writ petition with costs and declare that the petitioner must be deemed to continue in his post as a member of the Uttar Pradesh Public Service Tribunal till he attains the age of 61 years. 13. Immediately after we had dictated the judgment in Civil Misc. Writ Petition No. 1361 of 1977 a prayer was made on behalf of the State of Uttar Pradesh for grant of a certificate of fitness for appeal to the Supreme Court under Article 133 (1) of the Constitution. The main point involved in the case was whether under the provisions of sub-section (5) of Section 3, Uttar Pradesh Public Services (Tribunal) Act, 1976, a person who had been appointed a member of the Uttar Pradesh Public Services Tribunal had a right to continue to hold the office as such member until he attained the age of 61 years. The answer depended entirely upon the interpretation of the provisions of that Act and did not raise any substantial question of law of general importance which needed to be decided by the Supreme Court. We are not satisfied that this is a fit case for grant of a certificate. 14. There is no force in this petition and it is accordingly dismissed.