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2021 DIGILAW 357 (KER)

B. Mohammed Jamal v. State Of Kerala

2021-03-26

ALEXANDER THOMAS, K.BABU

body2021
JUDGMENT : ALEXANDER THOMAS, J. The unsuccessful petitioner in the writ petition, WP(C) No.25822/2020 has instituted this intra court appeal under Section 5(i) of the Kerala High Court Act, so as to impugn the judgment dated 04.02.2021 rendered by the learned Single Judge of this Court in the said WP(C). 2. Heard Sri.K.Jaju Babu, learned Senior Counsel instructed by Sri.Brijesh Mohan, learned counsel appearing for the appellant/petitioner in the WP(C), Sri.Antony Mukkath, learned Senior Government Pleader appearing for respondent No.1-State of Kerala, Sri.S.Ramesh Babu, learned Senior Counsel instructed by Sri.Imam Grigorios Karat, learned Standing Counsel for the Kerala Wakf Board appearing for respondents 2 and 3 and Sri.C.P.Mohammed Niyas, learned counsel appearing for contesting respondent No.4/R4 in the WP(C). 3. The appellant herein had filed the instant writ proceedings in the amended WP(C) No.25822/2020 with the following prayers [see page No.6o and 61 of the paper book of the writ appeal] : “i.(a) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts-21 to P23 and quash the same. i(b) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to give sanction for reputation, enabling the petitioner to apply and accept the post of Secretary in Central Wakf Council pursuant to Ext-P29 and Ext-P30 without any financial commitment to respondents 1 and 2; ii. Declare that the entire action in Exts-P13 to P17 is arbitrary, illegal and vitiated by malafides; iii. Direct the 1st respondent to refrain from proceeding with the actions evidenced by Exts-P14 to P17 based on Ext -P13; iv. Declare that by virtue of Exts-P8 to P11 and the provisions contained in Kerala Wakf Board Employees Regulations 2016, the petitioner is entitled to continue in service till the age of 58 years; v. Direct the 1st respondent to take up for consideration Exts-P4, P6, P7 and P12 in the light of Exts-P8 to P11 as well the provisions contained in Kerala Wakf Board Employees Regulations 2016 and take appropriate decision in the matter of retirement from service and pensionary benefits of the CEO cum Secretary. vi. Issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case; and vii. award costs to the petitioner.” 4. vi. Issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case; and vii. award costs to the petitioner.” 4. The learned Single Judge after hearing both sides, rendered the impugned judgment in the above WP(C) on 04.02.2021, thereby the above WP(C) has been dismissed and it has been held therein that the new statutory Rule published in the Gazette as S.R.O No.875/2020 dated 16.12.2020 (marked in this appeal as Annexure-I), which prescribes the retirement age of Chief Executive Officer/Secretary of Wakf Board as 56 years, shall be applicable on and with effect from 16.12.2020 and hence, the retirement age in this case would be 56 years on and with effect from the commencement of the said Annexure-I notification dated 16.12.2020. 5. We have heard all the parties in extenso and also perused the documents on record. It is stated by the appellant that he was appointed as Secretary/Chief Executive Officer of the respondent-Kerala State Wakf Board in the year 2001 in pursuance of Ext.P1 G.O (Rt.)No.1378/2001/RD dated 13.06.2001 and Ext.P2 Gazette Notification vide G.O(Rt.) No.1411/2001/RD dated 20.06.2001, after coming into force of the new Wakf Act, 1995. At that time, rules were not framed under the new Act to regulate the aspect regarding retirement and condition of services of Secretary/Chief Executive Officer of the Wakf Board. But that, Ext.P-24 notification would form the rules framed under the old Act wherein Rule 12(4) stipulated that the retirement age of Secretary of the Wakf Board would be till the age of 58 years. That, the said provisions contained in Ext.P-24 continued to govern the field in view of the provisions contained in Sec.24 of the General Clauses Act, read with Sec.112(2) of the new Wakf Act which deals with the savings clause. Further that, the only substantive change made recently after the amendment of the Wakf Act in the year 2013 was regarding the method of appointment to the post of Secretary/Chief Executive Officer of the Wakf Board which stipulated that, appointment shall be made only by deputation of a suitable officer of the Government not below the rank of Deputy Secretary, and that Sub Section 2 of Section 23 also provides for framing of rules. Further that, now, the Chairman of the Wakf Board has taken the position as per Ext.P-17 dated 1.11.2020 that the retirement age of incumbent in the post of Secretary of the Board should be 56. That, thereafter the competent authority of the Government has issued Gazette notification S.R.O. No. 875/2020 dated 16.12.2020 {See page 222 of the paper book of this writ appeal} amending the rules framed under the new Wakf Act by stipulating that retirement age of Secretary/Chief Executive Officer of the Board appointed by the Government shall be 56 years. It is contended by the appellant that, the said provision contained in the amended rules made effective from 16.12.2020 will affect only incumbents appointed on the basis of amended provisions contained in Section 23(1) of the Act which has been made effective from 1.11.2013 and the said retirement age clause will not affect the incumbents like the writ appellant who were appointed previously and whose retirement age will be governed by the old rules at Ext.P-24. Further that, the said amended rule notified on 16.12.2020 is only a clarification and would only apply in the case of new appointments made to the post of Secretary/Chief Executive Officer on the basis of deputation of a Deputy Secretary to Government, and cannot detrimentally affect the incumbent like the writ appellant who was appointed as early as in the year 2001 on the basis of the then existing provision, at which point of time direct recruitment was also a permissible method, etc. 6. 6. One of the contentions raised by the learned Senior Counsel appearing for the appellant is to the effect that even before coming into force of Annexure-I notification dated 16.12.2020, the Chairman of the respondent-Wakf Board had sent Ext.P-17 letter dated 01.11.2020 [see page No.89 of this paper book], addressed to the Government stating that as the regular method of appointment to the post of Secretary of the Wakf Board is by deputation of Government servant not below the rank of Deputy Secretary to the Government, as mandated in Rule 6 subsequently framed under Sec.23(2) of the amended provisions of the Wakf Act, the age of retirement in the post of Chief Executive Officer/Secretary of the Wakf Board shall be 56, as applicable in the case of a Government servant and that therefore, since the petitioner is to complete the age of 56 years on 21.11.2020, steps should be taken to effect his retirement from service with effect from 30.11.2020, etc. Further that, in pursuance thereof, the competent authority of the respondent in the Revenue Department has issued Ext.P21 letter dated 20.11.2020 and Ext.P22 letter dated 30.11.2020 [see page Nos.101 to 103 of this paper book] stating that the duration of appointment to the post of Secretary of the Wakf Board is only for a period of three years and therefore, fresh selection is necessary to select a new incumbent in lieu of the appellant. That thereafter, the competent authority of the State Government has issued Ext.P-23 G.O (Rt.) No.3760/2020/RD dated 04.12.2020 [see page Nos.104 to 105 of this paper book] ordering that since the writ petitioner has by then completed the age of 56 years, he will have to retire from service accordingly. On the basis of these documents, the learned senior counsel for the appellant would point out that even before the promulgation of the new Rule, as per Annexure-I dated 16.12.2020, the Chairman of the respondent-Wakf Board and the competent authority of the respondent-State Government in the Revenue Department, have taken the stand that the age of retirement in the case of the appellant is 56 years and that the said stand has been taken only out of extraneous and ulterior considerations. That these aspects would make it clear that the respondent-authorities were trying to oust the petitioner unlawfully, even before the issuance of Annexure-I notification dated 16.12.2020. That these aspects would make it clear that the respondent-authorities were trying to oust the petitioner unlawfully, even before the issuance of Annexure-I notification dated 16.12.2020. Further it is contended by the learned senior counsel appearing for the appellant that Annexure-I notification dated 16.12.2020 would only regulate the retirement age of new officers appointed on the basis of the new method of appointment of deputation, not below the rank of Deputy Secretary to Government as mandated in the Rule framed under Sec.23(2) of the amended provisions of the Wakf Act and cannot affect the retirement age of the writ petitioner, who has been appointed long prior thereto. That in the case of the petitioner, his retirement age will be governed by the old Rules at Ext.P24, which would continue to have statutory force in lieu of the mandate contained in Sec.24 of the General Clauses Act read with Sec.112(2) of the new Wakf Act, which deals with the savings clause. Hence, it is urged that the writ petitioner cannot be retired from service on the basis of Annexure-I notification dated 16.12.2020, as the same does not apply in the case of the writ petitioner. 7. Further it is argued by Sri.K.Jaju Babu, learned senior counsel appearing for the appellant that even if it is assumed for argument sake that Annexure-I notification dated 16.12.2020 would also be applicable in the instant case, then the same, cannot detrimentally affect the retirement of the writ petitioner, inasmuch as the said provision should then be construed as a one-man legislation, which is directed to drive out the writ petitioner from the post he was lawfully holding and hence, it is vitiated by hostile discrimination to the extent the said notification at Annexure-I applies to the writ petitioner. In that regard, the learned senior counsel appearing for the appellant would place serious reliance on the decisions of the Apex Court in the cases as in Dr.P.Venugopal v. Union of India [ (2008) 5 SCC 1 ], Dr.L.P.Agarwal v. Union of India [ (1992) 3 SCC 526 ], Dr.D.S.Reddi, Vice-Chancellor, Osmania University v. Chancellor [AIR (1967) SC 1305], etc. In that regard, the learned senior counsel appearing for the appellant would place serious reliance on the decisions of the Apex Court in the cases as in Dr.P.Venugopal v. Union of India [ (2008) 5 SCC 1 ], Dr.L.P.Agarwal v. Union of India [ (1992) 3 SCC 526 ], Dr.D.S.Reddi, Vice-Chancellor, Osmania University v. Chancellor [AIR (1967) SC 1305], etc. Hence, the main issues to be decided in this appeal is as to whether Annexure-I notification dated 16.12.2020 would apply, so as to regulate the retirement age of the appellant, who is the then incumbent official holding the post of Secretary/Chief Executive Officer of the Kerala State Wakf Board and if so, whether the same is vitiated by hostile discrimination, to the extent it affects the appellant as one being a one-man legislation, as understood in the aforecited decisions of the Apex Court. 8. Sri.Antony Mukkath, learned Senior Government Pleader appearing for the 1st respondent-State would place serious reliance on the decision of the Apex Court in Vice-Chancellor, Jammu University & anr. v. Dushinant Kumar Rampal [ AIR 1977 SC 1146 para No.10], wherein it has been held that an incumbent who is governed by the earlier terms and conditions in the service, will be bound by any alterations and changes in the service conditions made subsequently. 9. In this regard, it will be pertinent to refer to the provisions contained in Sec.23, which has been introduced as an amendment to the Wakf Act, made effective from 01.11.2013 and the said provisions contained in Sec.23 thereof reads as follows : “23. Appointment of Chief Executive Officer and his term office and other conditions of service. (1) There shall be a full-time Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the official gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government, and in case of non-availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation. (2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed. (2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed. (3) The Chief Executive Officer shall be Ex-officio Secretary of the Board and shall be under the administrative control of the Board.” Sec.23(2) of the said Act stipulates that the term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed. It is common ground that later Rules have been framed by the State Government, in terms of Sec.23(2) of the Act, which stipulate among other things that regular appointment to the post of Secretary/Chief Executive Officer of the Wakf Board, shall be on the basis of deputation of a Government Servant, not below the rank of Deputy Secretary to the Government. The said Rule has been introduced with effect from 07.01.2019. It is also common ground even still at that time, no specific provision has been made in the said Rule for regulating the retirement age of the Chief Executive Officer/Secretary of the Wakf Board. Obviously, the said regular method of appointment of deputation of a Government servant not below the rank of Deputy Secretary to Government, can apply only for appointments made effective on or after the coming into force of the said Sec.23, viz., 01.11.2013. The petitioner was already appointed in service, as per Ext.P1 G.O (Rt.) dated 13.06.2001. Since even at that time, as no Rule has been framed under Sec.23(2) of the Act, so as to regulate the retirement age of the writ petitioner, who was then incumbent in the post of Secretary/Chief Executive Officer of the Wakf Board, retirement of the petitioner will be continued to be regulated by Ext.24 Rules, in view of the provisions contained in Sec.24 of the General Clauses Act read with Sec.112(2) of the new Wakf Act, which deals with the savings and repeals clause and if it is to be held as otherwise, then it will lead to the situation that there is no prescription for the retirement age, for the sitting incumbent in the post of Secretary/Chief Executive Officer, inasmuch as admittedly no Rule has been framed, in terms of Sec.23(2), so as to prescribe the retirement age to the said post. It goes without saying that such a vacuum is abhorred by law and will lead to arbitrary consequences that there is no retirement age for the post in question and so the only reasonable conclusion is that as far as the appellant is concerned he was the then sitting incumbent to the post of Secretary/Chief Executive Officer of the Wakf Board, the retirement age will be 58 years, as stipulated in Ext.P24, which would have statutory force in view of Sec.24 of General Clauses Act read with Sec.112(2) of the new Wakf Act. But that does not in any manner fetter the power of the rule making authority in exercise of the subordinate legislative authority to frame a Rule under Sec.23(2) of the Act, so as to regulate the retirement age of Secretary/Chief Executive Officer of the Wakf Board. Indisputably, the powers in that regard to prescribe Rules has been conferred on the State Government, as can be seen from a reading of Sec.109 of the Wakf Act. The said power to frame Rule has been indeed exercised by the State Government, in exercise of its subordinate legislative power conferred as per the Wakf Act by framing the new Rule in terms of Annexure-I notification dated 16.12.2020 as SRO No.875/2020. The said Rule as given on page Nos.222 & 223 of this paper book at Annexure-I, reads as follows : “ In exercise of the powers conferred by sub-section (2) of section 23 and section 109 of the Waqf Act, 1995 (Central Act 43 of 1995), the Government of Kerala hereby make the following rules to amend the Kerala State Waqf Rules, 2019, issued as notification under G.O.(Ms.) No.8/2019/RD dated 7th January, 2019, issued as notification under G.O.(Ms.) No.8/2019/RD dated 7th January, 2019 and published as S.R.O No.18/2019 in the Kerala Gazette Extraordinary No.66 dated 10th January, 2019, namely:- RULES 1. Short title and commencement.-(1) These rules may be called the Kerala State Waqf (Amendment) Rules, 2020. (2) They shall come into force at once. 2. Short title and commencement.-(1) These rules may be called the Kerala State Waqf (Amendment) Rules, 2020. (2) They shall come into force at once. 2. Amendment of the Rules.-In sub rule (1) of rule 63, after the existing sentence, the following sentence shall be inserted, namely:- “The retirement age of the Chief Executive Officer of the Board appointed by the Government shall be 56 years”.” The said Rule makes it clear unambiguously and unequivocally that on and with effect from the commencement of the said Rule on 16.12.2020, the retirement age of the Chief Executive Officer of the Wakf Board appointed by the Government, shall be 56 years. 10. It is also trite that matters relating to prescription of age of retirement are solely within the policy prerogative of the employer/competent authority concerned [see K.Nagaraj & Ors. v. State of Andhra Pradesh & anr. {AIR (1985) SC 551}]. It is by now well established that the Rule making authority/competent authority can introduce changes in the retirement age based on their considered decision, in exercise of right to frame policy prerogative. Therefore, the said Annexure-I Rules has prospective effect from 16.12.2020, but the crucial aspect of the matter would be that on and with effect from 16.12.2020, which is the date of statutory promulgation of Annexure-I notification, the retirement age of the Chief Executive Officer/Secretary of the Wakf Board, shall be 56 years. In the instant case, it appears that the date of birth of the writ petitioner is 21.11.1964. The writ petitioner has completed the age of 56 years 21.11.2020. The new rules at Annexure-I has come into force on and with effect from 16.12.2020. The writ petitioner will also have to retire at the age of 56 years, as and w.e.f 16.12.2020. That is the simple impact of the inexorable flow of the statutory force of Annexure-I Rules though it has only prospective effect from 16.12.2020. Merely because in view of the vacuum, the writ petitioner’s retirement age was earlier regulated by Ext.P24 old Rules in view of the force of Sec.24 of the General Clauses Act read with Sec.112(2) of the New Wakf Act, does not imply that the rule making power under Sec.23(2) will be diluted. The said provision as per Ext.P-24 is only a transitory and transient provision, which cannot continue in perpetuity. The said provision as per Ext.P-24 is only a transitory and transient provision, which cannot continue in perpetuity. The power of subordinate legislation can be appropriately invoked by the Legislative bodies or subordinate Legislative body, in exercise of its considered policy prerogatives. That has happened on the publication of Annexure-I notification dated 16.12.2020. Hence, there cannot be any doubt that though the retirement age of the sitting incumbent like the writ petitioner in the post of Secretary/Chief Executive Officer was 58 years prior to the issuance of Annexure-I notification dated 16.12.2020, the crucial aspect of the matter is that on and with effect from 16.12.2020, the retirement age of the writ petitioner would also be 56 years in the post of Secretary/Chief Executive Officer. In that regard, it is only to be held that the learned Single Judge is fully right in so holding. True that the stand of the Chairman of the respondent-Wakf Board and that of the competent authority of the State Government in the Revenue Department, as reflected in Exts.P17, P21, P22, P23, etc. was not in the correct legal perspective and it has been only on account of a misunderstanding of the legal provision that governed the field. But that by itself will not make the said stand of the respondents, as reflected in Exts.P17, P21, P22 & P23, as an act of malice in fact. Even if it is assumed only for the sake of argument that the said stand of the respondents as reflected in the abovesaid documents, may amount to a malicious attitude, the same cannot be a valid ground in public law, so as to impugn the subordinate legislative measure at Annexure-I. It is trite that even if there is malice, the same cannot be transmitted, so as to vitiate a piece of legislation or subordinate legislation. Once the legislative process or subordinate legislative process is finalized in the manner known law and the same is done by the competent legislative/subordinate legislative authority, malice if any cannot thereafter vitiate the finalized piece of legislation/subordinate legislation, as the case may be. Hence, the abovesaid contentions of the writ petitioner, cannot be countenanced, so as to impugn the new Rule at Annexure-I dated 16.12.2020. 11. Hence, the abovesaid contentions of the writ petitioner, cannot be countenanced, so as to impugn the new Rule at Annexure-I dated 16.12.2020. 11. The only other issue to be considered by us is as to whether Annexure-I would amount to a one-man legislation, so as to vitiate the same, as understood by the Apex Court in the aforecited decisions. On a plain reading of Annexure-I, it cannot be said that Annexure-I would apply only in the case of the petitioner. As a matter of fact, the inexorable consequence of Annexure-I is that on and with effect from its promulgation on 16.12.2020, the same would regulate the aspect of retirement age of any incumbent holding the post of Chief Executive Officer/Secretary of Wakf Board, so long as Annexure-I is in force. However, we would also consider the issue, as to whether the dictum laid down by the Apex Court in the aforecited decisions as in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ] and the other cited case laws would apply in this case. 12. A reading of the decision of the Apex Court in the celebrated case in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ] would make it clear, especially from a reading of para Nos.3 and 14 thereof that the appellant therein/Dr.P.Venugopal was appointed as the Director of the prestigious All India Institute Medical Sciences (AIIMS) and going by the concluded verdict rendered by the Delhi High Court, he was entitled to continue in his five year turn in the office of the Director of AIIMS upto 02.07.2008. Later, the provisions of the All India Medical Sciences Act was amended, as per the AIIMS amended Act, 2007. It will be pertinent to refer to Sec.11(1A) of the said amendment Act, as noted in para No.5 of Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ] and the same reads as follows : “5. The Act provides for Constitution of a Governing Body by the Institute from amongst its members in such manner as may be prescribed by the Regulations to exercise such power and discharge such functions as the Institute may, by Regulations, made in this behalf confer or impose upon it. The Act provides for Constitution of a Governing Body by the Institute from amongst its members in such manner as may be prescribed by the Regulations to exercise such power and discharge such functions as the Institute may, by Regulations, made in this behalf confer or impose upon it. Under Regulation (sic Section) 25, the Institute is required to carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration under the Act. Section 26 deals with the dispute between the Institute and the Central Government in the matter of exercise of its power and discharge of its functions under the Act and makes the decision of the Central Government final. Thus the Act designed the Institute to be an autonomous statutory body of national importance subject to limited control in respect of specified matters. Sub-section (1A) with its proviso added to Section 11 of the AIIMS (Amendment) Act, 2007 reads as follows:- “11.(1-A) The Director shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of sixty-five years, whichever is earlier: Provided that any person holding office as a Director immediately before the commencement of the All India Institute of Medical Sciences and the Post-Graduate Institute of Medical Education and Research (Amendment) Act, 2007, shall in so far as his appointment is inconsistent with the provisions of this sub-section, cease to hold office on such commencement as such Director and shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of his office or of any contract of service......” 13. A reading of Sec.11 (1A) of the said amendment Act would stipulate that Director can hold the office for a term of five years from the date on which he enters upon his office or until he attains the age of 65 years, whichever is earlier. A reading of Sec.11 (1A) of the said amendment Act would stipulate that Director can hold the office for a term of five years from the date on which he enters upon his office or until he attains the age of 65 years, whichever is earlier. The Proviso thereto would stipulate that any person holding the office as Director immediately before the commencement of the All India Institute of Medical Sciences and the Post Graduate Institute of Medical Education Research (Amendment) Act, 2007, shall in so far as the appointment is inconsistent with the provisions of that sub-section cease to hold the office on such commencement as such Director and shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of his office or of any contract of service, etc. The Apex Court after exhaustive consideration of the various contentions, has categorically held in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ] that the said impugned amended provision, more particularly, the Proviso to Sec.11 (1A) would be vitiated as the one-man legislation as it was directed solely against the then incumbent, who was already in office and who had the right to continue the said office upto 02.07.2008 on account of the concluded directions of the verdict of the Delhi High Court. Further, in view of the said amended provision, the said incumbent stood unseated w.e.f. 30.11.2007 prior to the said day on account of the coming into force of the said amended provision. 14. The Apex Court in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ] has placed reliance on the previous decisions as in Dr.L.P.Agarwal v. Union of India [ (1992) 3 SCC 526 ] and Dr.B.S.Reddy, Vice Chancellor, Usmaniya University v. Chancellor [ AIR 1967 SC 1305 ] and has held that the impugned provisions contained in the Proviso to Sec.11 (1A) of the amended provisions of the AIMS Act would be vitiated as being one-man legislation directed against the said incumbent. It may be pertinent to refer to para Nos.31 to 40 of the decision of the Apex Court in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ], which read as follows : “31. It may be pertinent to refer to para Nos.31 to 40 of the decision of the Apex Court in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ], which read as follows : “31. It may not be out of place to mention that the SLP of the respondent indicates that the term of office of five years of the writ petitioner as Director was not really in dispute. In the Statement of Objects and Reasons of the Act introducing the impugned proviso, it is stated that the same is being introduced with a view to comply with the direction of the High Court in the judgment and order dated 29th of March, 2007. It, however, appears that the Division Bench of the Delhi High Court has determined the question of tenure of the writ petitioner to be five years and there are writs in the nature of Mandamus and Prohibition issued by the Delhi High Court directing the right of the writ petitioner indicated in the respective orders. As in Madan Mohan Pathak's case (para 8), as quoted herein above, in the instant case also the Parliament does not seem to have been apprised about the pendency of the proceedings before the Delhi High Court and this Court and declaration made and directions issued by the Delhi High Court at different stages. In the impugned amendment, there is no non-obstante clause. The impugned amendment introducing the proviso, therefore, cannot be treated to be a validating Act. This Court in L.P.Agarwal (Dr.) v. Union of India observed as follows: "16. We have given our thoughtful consideration to the reasoning and the conclusions reached by the High Court. We are not inclined to agree with the same. Under the Recruitment Rules the post of Director of the AIIMS is a tenure post. The said rules further provide the method of direct recruitment for filling the post. These service-conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise. The age of 62 years provided under Proviso to Regulation 30(2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute-Services. The age of 62 years provided under Proviso to Regulation 30(2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute-Services. We do not agree that simply because the appointment order of the appellant mentions that "he is appointed for a period of five years or till he attains the age of 62 years", the appointment ceases to be to a tenure-post. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. Can such person be retired prematurely curtailing his tenure of five years? Obviously not. The appointment of the appellant was on a Five Years Tenure but it could be curtailed in the event of his attaining the age of 62 years before completing the said tenure. The High Court failed to appreciate the simple alphabet of the service jurisprudence. The High Court's reasoning is against the clear and unambiguous language of the Recruitment Rules. The said rules provide "Tenure for five years inclusive of one year probation" and the post is to be filled "by direct recruitment". Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading "the concept of superannuation" in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever. Under what circumstances can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case because the order impugned before the High Court concerned itself only with premature retirement and the High Court also dealt with that aspect of the matter only. Under what circumstances can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case because the order impugned before the High Court concerned itself only with premature retirement and the High Court also dealt with that aspect of the matter only. This court's judgment in Bool Chand(Dr.) v. Chancellor, Kurukshetra University relied upon by the High Court is not on the point involved in this case. In that case the tenure of Dr.Bool Chand was curtailed as he was found unfit to continue as Vice-Chancellor having regard to his antecedents which were not disclosed by him at the time of his appointment as Vice-Chancellor. Similarly the judgment in D.C. Saxena (Dr.) v. State of Haryana has no relevance to the facts of this case". 32. From the above quotation, as made in para 16 of the said decision of this Court, it is evident that this Court has laid down that the term of 5 years for a Director of AIIMS is a permanent term. Service Conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise at all. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. The appointment is for a tenure to which principle of superannuation does not apply. "Tenure" means a term during which the office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. 33. It was in 1958 that AIIMS had framed its Regulations under Section 29 of the Act. Regulation 30-A was brought into AIIMS Regulation by an amendment dated 25-7-1981 notified in the gazette on 10-10-1981 coming into force w.e.f. 1-8-1981. The provision of Regulation 30-A was very much in existence when this court had decided in L.P.Agarwal (Dr.) on 21-7-1992. 33. It was in 1958 that AIIMS had framed its Regulations under Section 29 of the Act. Regulation 30-A was brought into AIIMS Regulation by an amendment dated 25-7-1981 notified in the gazette on 10-10-1981 coming into force w.e.f. 1-8-1981. The provision of Regulation 30-A was very much in existence when this court had decided in L.P.Agarwal (Dr.) on 21-7-1992. It is the same provision of Regulation 30-A which was brought into force w.e.f. 1-8-1981 in the AIIMS Regulations and had been renumbered as Regulation 31, when the AIIMS Regulations, 1958 had been substituted by AIIMS Regulations, 1999. Therefore, it is incorrect on the part of the respondent to contend that Regulation 31 was introduced in the AIIMS Regulations only after the judgment of this Court in L.P.Agarwal (Dr.) case. 34. This question was specifically deliberated upon by Justice Kuldip Singh, as His Lordship then was, in L.P.Agarwal (Dr.) case and a question was formulated on this aspect at page 530 of the said decision. After formulating the aforesaid question, a submission on behalf of the respondent was also considered by this Court in the aforesaid decision at para 13, p. 532 of the said decision which is as follows:- "The respondent argued before the High Court that the appellant was retired by the AIIMS under Regulation 30(3) of the Regulations in public interest after he attained the age of 55 years. It was further contended that fundamental Rule 56(j) was also applicable to the AIIMS employees by virtue of Regulation 35 of the Regulations. It was argued that even if Regulation 30(3) was not attracted the Institute had the power to prematurely retire the appellant, in public interest, under fundamental Rule 56(j) applicable to the Central Government employees. It was contended that despite the fact that the appellant was on a tenure post there was no bar to prematurely retire him by invoking either Regulation 30(3) or Fundamental Rule 56(j).” 35. After formulating the question and after considering the submission made on behalf of the parties, this Court in that decision at SCC pp.533-34, in the manner cited above (para 31). 36. After formulating the question and after considering the submission made on behalf of the parties, this Court in that decision at SCC pp.533-34, in the manner cited above (para 31). 36. From the aforesaid discussion, the principle of law stipulated by this Court that curtailment of the term of five years can only be made for justifiable reasons and compliance with principles of natural justice for premature termination of the term of a Director of AIIMS -squarely applied also to the case of the writ petitioner as well and will also apply to any future Director of AIIMS. Thus there was never any permissibility for any artificial and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature termination of the term of office of the Director. Such an impermissible over classification through a one-man legislation clearly falls foul of Article 14 of the Constitution being an apparent case of "naked discrimination" in our democratic civilized society governed by Rule of Law and renders the impugned proviso as void, ab initio and unconstitutional. 37. Such being our discussion and conclusion, on the constitutionality of the proviso to Section 11(1-A), we must, therefore, come to this conclusion without any hesitation in mind, that the instant case is squarely covered by the principles of law laid down by this Court in the various pronouncements as noted hereinabove including in D.S.Reddi, vice-Chancellor, Osmania University v. Chancellor. 38. In D.S.Reddy, the facts of that case are somewhat similar to that of the writ petitioner. In that decision, D.S.Reddy was already a Vice-Chancellor for the past seven years and had not challenged the fixation of term from five years to three years. He was aggrieved by the second amendment in the University Act whereby Section 13-A was introduced to make the provision of Section 12(2) providing for inquiry by an Hon. Judge of High Court/Supreme Court and hearing before premature termination of the term of the Vice-Chancellor inapplicable to the incumbent to the office of the Vice-Chancellor on the commencement of the 2nd Amendment. The core contention of D.S.Reddy was that this amendment was only for his removal and therefore was a case of "naked discrimination" as it also deprived the protection of Section 12(2) to him when Section 12(2) was applicable to all other Vice-Chancellors and there being no distinction in this regard between the Vice-Chancellor in office and the Vice-Chancellors to be appointed. In that situation, the plea of the respondent-Government was that the provision similar to Section 13-A was also incorporated in two other enactments relating to Andhra University and Shri Venkateswara and was, therefore, not a one-man legislation. It was further contended by the State that it was always open and permissible to the State Legislature to treat the Vice-Chancellor in office as a class in itself and make provisions in that regard. All the contentions on behalf of the State Government were rejected by the Constitution Bench judgment of this Court in the case of D.S.Reddy and it was held that it was a clear case of "naked discrimination" for removal of one man and by depriving him of the protection under Section 12(2) of the Act without there being any rationality of creating a classification between the Vice-Chancellor in office and the Vice-Chancellor to be appointed in future. 39. It was further held in the case of D.S.Reddy that such a classification was not founded on an intelligible differentia and was held to be violative of Article 14 of the Constitution of India. Accordingly, the provision of Section 13-A was held to be ultra vires and unconstitutional and hit by Article 14 of the Constitution. Similarly in the present case, the impugned proviso to Section 11(1A) itself states that it is carrying out premature termination of the tenure of the writ petitioner. It is also admitted that such a premature termination is without following the safeguards of justifiable reasons and notice. It is thus a case similar to the case of D.S.Reddy and other decisions cited above that the impugned legislation is hit by Article 14 as it creates an unreasonable classification between the writ petitioner and the future Directors and deprives the writ petitioner of the principles of natural justice without there being any intelligible differentia. 40. It is thus a case similar to the case of D.S.Reddy and other decisions cited above that the impugned legislation is hit by Article 14 as it creates an unreasonable classification between the writ petitioner and the future Directors and deprives the writ petitioner of the principles of natural justice without there being any intelligible differentia. 40. In view of our discussion made hereinabove and for the reasons aforesaid, we are of the view that this writ petition is covered by the decisions of this Court in the case of D.S.Reddy and L.P.Agarwal and the impugned proviso to Section 11(1-A) of the AIIMS Act is, therefore, hit by Article 14 of the Constitution. Accordingly, we hold that the proviso is ultra vires and unconstitutional and accordingly it is struck down. The writ petition under Article 32 of the Constitution is allowed. In view of our order passed in the writ petition, the writ petitioner shall serve the nation for some more period, i.e., upto 2-7-2008. We direct the AIIMS Authorities to restore the writ petitioner in his office as Director of AIIMS till his period comes to an end on 2-7-2008. The writ petitioner is also entitled to his pay and other emoluments as he was getting before premature termination of his office from the date of his order of termination. Considering the facts and circumstances of the present case, there will be no order as to costs.” A reading of the other judgments as in Dr.L.P.Agarwal’s case supra and Dr.B.S.Reddy’s case supra would also indicate that those cases were also relating to such one-man legislation directed against single individual. 15. From the aforequoted decision of the Apex Court in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ], it can be seen that the petitioner had already secured the benefit of a concluded judgment of the Delhi High Court and he was appointed to the post of Director, which was a tenure term, having a five year term and he had the right to hold the said tenure post till expiry of the said five year period on 02.07.2008. Later due to the impugned amendment Act, he had to suffer premature termination and consequent removal from the office of the Director of AIIMS on 30.11.2017. Later due to the impugned amendment Act, he had to suffer premature termination and consequent removal from the office of the Director of AIIMS on 30.11.2017. A bare reading of the Proviso to Sec.11(1A) (as introduced by the impugned Amendment Act), would make it clear that the said provision was directed only as against the incumbent, who was holding the post of Director, immediately before the commencement of the Amendment Act, which in the instant case was the appellant. Thus the said legislative provision as per the Proviso was a one-man legislation, as it was directed as against the appellant. It was also be on dispute that by virtue of the judgment rendered by the Division Bench of the Delhi High Court on 29.03.2007, an effective and binding judicial determination of the right of the petitioner to continue as Director for five years upto 02.07.2008 was already rendered. The Apex Court also relied on the previous judgment in the case in Dr.L.P.Agarwal v. Union of India [ (1992) 3 SCC 526 ] para.16 which also dealt with the case dealing with the post of Director of the AIIMS. Therein also it was found that the post of Director of AIIMS is a tenure post and the Apex Court held that the appointment order gave a clear tenure to the appellant therein. It was also held therein that tenure means a term during which an office is held and it is a condition of holding the office and once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on completion of the tenure, unless curtailed on justifiable grounds and that such a person does not superannuate, he only goes out of the office on completion of his tenure and the question of prematurely retiring him does not arise. Hence, the Apex Court held therein that the said case related to an appointment order, which gave a clear tenure to the appellant therein and that the High Court had fell into error in reading 'the concept of superannuation' in the said appointment order, as the concept of superannuation, which is well understood in service jurisprudence is alien to tenure appointments which have a fixed life span. Hence, it was held that the appellant therein could not been prematurely retired and that too without being put on any notice whatsoever. 16. In the case in Dr.B.S.Reddy, Vice Chancellor, Usmaniya University v. Chancellor [ AIR 1967 SC 1305 ], the appellant therein was already a Vice-Chancellor for the past seven years and he was aggrieved by the second amendment in the University Act whereby Sec.13A was introduced to make the provision of Sec.12(2) providing for inquiry by a Judge of the High Court or the Supreme Court and hearing before premature termination of the term of the Vice-Chancellor inapplicable to the incumbent to the office of the Vice-Chancellor on the commencement of the second amendment. It was contended that the said amendment was only for the removal of the appellant therein and therefore was a case of “naked discrimination”, whereby the protection of Sec.12(2) afforded to him was made inapplicable to him, when the said section was applicable to all other Vice-Chancellors, there being no distinction between the Vice-Chancellor in office and the Vice-Chancellors to be appointed. In the light of these aspects, the Apex Court categorically held in Dr.B.S.Reddy's case supra [ AIR 1967 SC 1305 ] that the said impugned provision which made inapplicable the protective provision only to the incumbent Vice-Chancellor was a clear case of “naked discrimination” for removal of one man and thus depriving him of the protection under Sec.12(2) of the Act without there being any rationality of creating a classification between the Vice-Chancellor in office and the Vice-Chancellor to be appointed in future. Thus it can be seen from the decisions rendered by the Apex Court in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ], Dr.L.P.Agarwal v. Union of India [ (1992) 3 SCC 526 ], Dr.B.S.Reddy, Vice Chancellor, Usmaniya University v. Chancellor [ AIR 1967 SC 1305 ] would make it clear that those decisions clearly dealt with cases involving legislation which was directed as against a single person (one-man legislation) and it amounted to “naked hostile discrimination”, inasmuch as there was no rationale for creating a classification, etc. In the light of the factual aspects in this case, we are of the firm view that the aforecited decisions will not apply to the facts of this case and the argument of the appellant based on one-man legislation, cannot be pressed into service in this case. 17. In the light of the factual aspects in this case, we are of the firm view that the aforecited decisions will not apply to the facts of this case and the argument of the appellant based on one-man legislation, cannot be pressed into service in this case. 17. After hearing both sides, we are of the view that the dictum laid down by the Apex Court in the abovesaid decisions as in Dr.P.Venugopal’s case supra [ (2008) 5 SCC 1 ] and the other aforecited decisions, will not apply to the facts and circumstances of this case. Merely because the post of Chief Executive Officer/Secretary of the Wakf Board is a singular post and merely because at a given time, there will be only a single incumbent holding the post of Chief Executive Officer/Secretary of the Wakf Board, will not amount to the new Rule at Annexure-I dated 16.12.2020 as one amounting to a one-man legislation, which is directed against only an incumbent. If that be so, any amended Rules prescribing change of conditions to the extent it affects a post which is having only sanctioned strength of one, can be attributed as being vitiated by one-man legislation. That cannot be the approach to hold as to whether the impugned legislation is one-man legislation, as understood in the aforecited decisions. The impact of a rule as in the present case at Annexure-I is that even if, the strength of the post concerned is only a single post, as and when the new Rule is promulgated, so as to alter the retirement age in the said post and so long as the said Rule is framed by the competent authority concerned in exercise of its policy prerogative, the said Rule will apply to whoever is the incumbent, who is then holding the post in a case like this. Therefore, we are not in a position to countenance the abovesaid plea put up by the appellant that Annexure-I should be construed as a one-man legislation and Annexure-I notification to the extent it is directed as against the writ petitioner, should be construed as a one-man legislation and to hold that the said new Rule will not therefore apply, as otherwise will amount to hostile discrimination, etc. After hearing both sides, we are of the view that the learned Senior Government Pleader is right in contending that the dictum laid down by the Apex Court in Vice-Chancellor, Jammu University & anr. v. Dushinant Kumar Rampal [ AIR 1977 SC 1146 ] to the effect that an incumbent who is regulated by the earlier terms and conditions in the service, will be bound by any alterations and changes in the service conditions and the said dictum would apply to the facts and circumstances of this case on all force. It will be profitable to refer to the decision of the Apex Court in Jammu University's case supra [ AIR 1977 SC 1146 ] para 10, which reads as follows: “10. We may also refer to one other contention urgent on behalf of the respondent and that was that by reason of Section 52, sub-section (I) the respondent was entitled to continue in service of the University on the same terms and conditions as regulated his service before the commencement of he Act of 1969 and in view of the proviso to subsection (2) of Section 52 the conditions of service of the respondent could not be varied to his disadvantage and, therefore, neither Statute 24(ii) nor section 13, sub-section (4) could operate to confer on the Vice-Chancellor power to make the order of suspension which he did not possess under the old terms and conditions. This contention, plausible though it may seem, is, in our opinion, not well founded. Section 52, subsection (1) undoubtedly continued the service of a teacher on the same terms and conditions as regulated his service before the commencement of the Act of 1969 and that was subject to the provisions of sub-section (2) of section 52, but this subjection to the provisions of sub-section (2) did not import the requirement set out in the second proviso that the conditions of service of a teacher shall not be varied to his disadvantage. The words "subject to the provisions of sub-section (2)" employed in subsection (1) of section 52 were intended merely' to clarify that a teacher shall continue in service on the same terms and conditions but subject to any allocation which may be made by the Vice-Chancellor under sub-section (2) of section 52. The words "subject to the provisions of sub-section (2)" employed in subsection (1) of section 52 were intended merely' to clarify that a teacher shall continue in service on the same terms and conditions but subject to any allocation which may be made by the Vice-Chancellor under sub-section (2) of section 52. Nothing in sub-section (1) should be construed as in any way derogating from the power of the Vice-Chancellor to make an allocation of the teacher under section 52, subsection (2). The proviso to sub-section (2)imposed a limitation on the power of the Chancellor to make an allocation by providing that in making such allocation the conditions of service of the employee shall not be varied to his disadvantage and it could not be construed. as a substantive provision adding a requirement in sub-section (1) that even though the terms and conditions of service may permit alteration to the disadvantage of an employee, such alteration shall be inhibited. We must, therefore, consider the impact of sub-section (1) of section 52 unaffected by the provision to sub-section (2). Now, it is obvious that even if the respondent was entitled to continue in service on the same terms and conditions as before by reason of sub-section (1) of section 52, these very terms and conditions provided that he would be bound by any changes which might be made in the Statutes from time to time Vide Statute 2 read with clause (6) of the Form of the Agreement annexed to the Statutes made under the Act of 1965. If, therefore, any changes were made in the terms and conditions of service of the respondent by Statutes validly made under, the Act of 1969, the respondent could not complain of any infraction of the provision of sub-section (1) of section 52. Statute 24(ii) was, as already pointed out above, a Statute validly made under section 48, sub-section (2) and hence the Vice-Chancellor was entitled to make the order of suspension against the respondent in exercise of the power conferred by that Statute. Statute 24(ii) was, as already pointed out above, a Statute validly made under section 48, sub-section (2) and hence the Vice-Chancellor was entitled to make the order of suspension against the respondent in exercise of the power conferred by that Statute. Section 13, sub-section (4) of the Act of 1969 could also be availed of by the Vice-Chancellor for sustaining the order of suspension, since it conferred the same power on the Vice-Chancellor as section 13, sub-section (4) of the Act of 1965 and exercise of the power conferred by it as against the respondent did not involve any violation of sub-section (1) of section 52.” In view of the abovesaid aspects, we are of the firm view that the writ petitioner is not entitled to succeed on the basis of the abovesaid contentions as well. 18. The upshot of the above discussion is that on and with effect from the statutory promulgation of the new Rule at Annexure-I on 16.12.2020, the same would apply to whoever is the incumbent then holding the post of Chief Executive Officer/Secretary of the Wakf Board and since the writ petitioner was then holding the post, his retirement age will be regulated as one at 56 years on and with effect from 16.12.2020. Hence, the impugned action of the official respondents in that regard cannot be interdicted in the present judicial review proceedings. The net result is that the said conclusion arrived at by the learned Single Judge in the impugned judgment, does not deserve any alteration or interference. 19. We asked the learned Senior Government Pleader, as to whether the State Government will be now in a position to immediately fill up the post of Secretary/Chief Executive Officer of the State Wakf Board, by way of regular method of appointment of officer of the rank of Deputy Secretary, etc. We are now apprised by the learned Senior Government Pleader that all what he can submit now is that the regular method of appointment of deputation of officers not below the rank of Deputy Secretary to Government may have to be initiated by issuance of a selection process, invitation of applications, consideration of the applications, etc., for which some time may be required. In view of the abovesaid aspects, it may not really feasible to immediately make regular appointment to the said post, as many formalities and procedures to be observed, will take some time. 20. Hence, we are inclined to order that until fresh regular appointment is made to fill up the post of Chief Executive Officer/Secretary of the Wakf Board, the writ petitioner may be temporarily or provisionally allowed to continue in the said post. However, this will not confer any rights on the writ petitioner and as and when the regular incumbent is selected and appointed by the Government, in the manner known to law, the writ petitioner will have to be relieved and shall be substituted by such regular appointee. It is also made clear that the writ petitioner shall not take any policy decision in the matter and shall engage only in routine administrative affairs, etc. Since we are now passing this direction as an interim arrangement, we would also order that the writ petitioner in that capacity would also be under the full administrative control and supervision of the Chairman of the Wakf Board and the competent authority of the State Government in the revenue department will also be at liberty to issue any directives as it deems fit and proper, if the occasions thereof arises in respect of the discharge of duties and functions by the writ petitioner in the above interim arrangement. 21. Accordingly, it is ordered that the impugned judgment, will also stand confirmed and the same does not require any appellate interdiction. However, the writ petitioner may continue in a temporary capacity, as aforesaid till regular appointee takes charge in the said post. Further, it is also made clear that since it is only an interim arrangement, the writ petitioner can have no role in the decision making process for selecting the regular appointee to the post of Secretary/Chief Executive Officer of the Wakf Board. 22. Further, it is also made clear that since it is only an interim arrangement, the writ petitioner can have no role in the decision making process for selecting the regular appointee to the post of Secretary/Chief Executive Officer of the Wakf Board. 22. It is also made clear that the writ petitioner will not be entitled for regular pay and allowance in the post of Secretary/Chief Executive Officer, on and with effect from the period from 16.12.2020 onwards and the competent authority of the State Government may consider granting him pay in the minimum of the pay scale of the post of Secretary/Chief Executive Officer on and with effect from 16.12.2020 onwards upto the date of his relief by the regular appointee and his continuance shall be purely temporary or provisional, as aforesaid and subject to the abovesaid restrictions, as above. 23. The orders and directions of the learned Single Judge in the impugned judgment, will stand modified, to the limited extent as above. With these observations and directions, the above Writ Appeal will stand dismissed.