JUDGMENT : 1. The petitioners herein are working as Presiding Officers in various Industrial Tribunals in the State of Kerala. They have approached this Court seeking the following reliefs: “(i) to declare that Sub Rule (ab) Rule 60 of Part I KSR that “a person appointed as Industrial Tribunal shall retire on superannuation at the age of 60 years” is invalid. (ii) To declare that the retirement age of the Presiding Officers of the Industrial Tribunal as prescribed Section 7C(b) of the Industrial Disputes Act, 1947 i.e. 65 years. (iii) To command the 1st respondent not to force the petitioners to retire before attaining the age of 65 years.” 2. The contentions raised by the petitioners can be summarized as follows: (a) By Exts.P1 to P7 orders, the petitioners herein have been appointed as Presiding Officers of Industrial Tribunals in various Tribunals in the State of Kerala. Neither in the notification of the vacancy nor in the order of appointment, the appointing authority has prescribed the age of retirement of the appointees. (b) Section 7C of the Industrial Disputes Act speaks about disqualification for the presiding officers of Labour Courts, Tribunals, and National Tribunals. It says that no person shall be appointed or continue in office after attaining 65 years of age. However, sub-section (3) (a) of Section 7, as applicable to the State of Kerala, stipulates that a person shall not be qualified for appointment as the Presiding Officer of a Labour Court unless he is, or has been, a judicial officer not below the rank of a District Judge or is qualified for appointment as a Judge of the High Court. In other words, a retired District Judge is entitled to be appointed as Industrial Tribunal. If that be the case there is no justification in prescribing the date of retirement of a Tribunal as 60 years. (c) The Apex Court in Atlas Cycle Industries Ltd. Sonepat vs. Their Workmen, AIR 1962 SC 1100 has held that the insertion of the age qualification in Section 7C is consistent with an intention on the part of the Legislature to add in the light of the working of the repealed Section 7, a new provision prescribing the age of retirement for members.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 above declaration made by the Hon’ble Supreme Court is categoric, and it is to be held that the retirement age of the Presiding Officers of the Tribunal constituted under Section 7A is 65 years. (d) Until the introduction of Section 2 (c) of Section 38 of the Industrial Disputes Act, which came into effect on and from 15/9/2010, there was no provision conferring any power upon the appropriate Government to prescribe the conditions of appointments/terms and conditions of service of the Industrial Tribunals. Section 38 (2)(c) is only prospective in operation. (e) Much prior to the introduction of Section 2(c) of the ID Act, Section 60 (ab) Part-I Kerala Service Rules was brought in by the State Government as per S.R.O No. 546/2005, and the same was published in the Gazette on 27/5/2005. The Rule states that a person appointed as Industrial Tribunal shall retire on superannuation at the age of 60 years. It is contended that the above Rule is ultra vires and without legislative competence as no power has been conferred with the State Government to fix up any age criteria for retirement for Industrial Tribunals. (f) Exhibit P9 representation was submitted by the petitioners before the Government seeking permission for the petitioners to continue up to the age of 65 years. However, the request was rejected by Ext. P 10 letter by stating untenable reasons. (g) The retirement age of Presiding Officers is 65 years, as is revealed from Ext. P11 notification issued by the Ministry of Labour and Employment and there is no reason why a different stand is taken by the State of Kerala. 3. A counter affidavit has been filed by respondents 1 and 2. The following contentions have been raised in the counter affidavit: (a) Section 7A of the Industrial Disputes Act empowers the Government to appoint Industrial Tribunals in the State. The said provision does not lay down any particular procedure in the matter of selection and appointment of the Industrial Tribunal and hence the question of fixing the modus operandi for selection, service matters of the selected officers, including their remuneration, age of retirement, etc. have been left to the policy decision of the Government. (b) Section 7C of the Industrial Disputes Act only deals with the disqualification of the Presiding Officer of an Industrial Tribunal. have been left to the policy decision of the Government. (b) Section 7C of the Industrial Disputes Act only deals with the disqualification of the Presiding Officer of an Industrial Tribunal. All that it says is that no person shall be appointed to, or continue in the office of the Presiding Officer of the Tribunal if he has attained the age of 65 years. The Government, therefore, is entitled to make a policy decision to fix the retirement age of the Presiding Officer within the age of 65 years, and it also does not provide any legal right to any person to continue as Presiding Officer till the age of 65 years. (c) It is contended that Section 7A of the Industrial Disputes Act empowers the Government to appoint Industrial Tribunals in the State. The said provision does not lay down any particular procedure in the matter of selection and appointment of the Industrial Tribunal and hence the question of fixing the modus operandi for selection, service matters of the selected officers, including their remuneration, age of retirement, etc. have been left to the policy decision of the Government. (d) A Division Bench of this Court in O.P. (KAT) No. 394 of 2014 has upheld the order passed by the Kerala Administrative Tribunal refusing to accede to the request of an officer similarly placed as the petitioners for enhancement of retirement age to 62 years. 4. An additional counter affidavit has been filed by the respondents, wherein the following contention has been raised: (a) As per G.O.(P) No. 108/2022/LBR dated 15.11.2022 (produced as Ext.R1 (a), published in the gazette on 16.11.2022, the Government has made Special Rules in the exercise of powers under Section 38 read with Section 7A and Section 2(1) of the Kerala Public Services Act,1968. As per the proviso to Rule 4(c) of Ext.R1(a) Special Rules, no person shall be appointed to or continue in the office of the Presiding Officer of an Industrial Tribunal if he has attained the age of 60 years. It is further stated that a petition was filed by an officer seeking enhancement of the age of retirement, which was rejected by the Administrative Tribunal. The said order has been confirmed by a Division Bench of this Court by Exhibit R1 (b) judgment. 5. Sri. It is further stated that a petition was filed by an officer seeking enhancement of the age of retirement, which was rejected by the Administrative Tribunal. The said order has been confirmed by a Division Bench of this Court by Exhibit R1 (b) judgment. 5. Sri. M. Sasindran, the learned counsel appearing for the petitioners, would refer to the law laid down by the Apex Court in Atlas Cycle Industries Ltd. Sonepat vs. Their Workmen, AIR 1962 SC 1100 and it was urged that the Apex Court has affirmatively declared that the insertion of age qualification in Section 7C of the Act is clearly a prescription as to the age of retirement of the members. It is submitted that in view of the categorical declaration, the reliance placed by the Government on a later two-judge bench decision of the Apex Court B.S. Sharma vs. State of Haryana and Another, (2001) 1 SCC 434 is uncalled for. The learned counsel would then refer to the law laid down by the Apex Court in National Insurance Company Ltd. vs. Pranay Sethi and Others, 2017 (5) KHC 350 and Suganthi vs. Jagadeeshan, 2002 (2) SCC 420 and it is argued that it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. According to the learned counsel, the observations to the contrary contained in BS Sharma have to be regarded as per incurium, and the principles of law laid down in Atlas (supra) have to be followed by this Court. The learned counsel would then point out that Section 38 of the Act was amended in the year 2010 and in the light of the declaration made by the Apex Court, it can only be concluded that Section 38(2c) is prospective in nature. Insofar as the amendment brought to the special rules is concerned, the learned counsel for the petitioners would refer to Article 254 of the Constitution of India, and it was argued that if any provision of law made by the State Legislature is repugnant to any provision of law made by the Parliament, to the extent of its repugnancy, it is void. 6. In response, Sri. T.B. Hood, the learned Senior Govt. 6. In response, Sri. T.B. Hood, the learned Senior Govt. Pleader points out that one of the Presiding Officers of the Industrial Tribunal had approached the Kerala Administrative Tribunal and had preferred O.A. No. 2056/2014 seeking issuance of directions to the State Government to enhance the age of retirement of Industrial Tribunals in the State of Kerala on par with the Vigilance Tribunals. The Kerala Administrative Tribunal dismissed the said original application. The said order was challenged before this Court in O.P. (KAT) No. 394 of 2014. A Division Bench of this Court in judgment dated 28.11.2014 in the above case, had upheld the order passed by the Kerala Administrative Tribunal. It is contended that, in that view of the matter, there is no point in contending now that the fixation of retirement age as 60 years goes against the provisions of law. The learned counsel would then point out that the Constitution Bench judgment, which is relied on by the petitioners, has no application to the facts of the instant case. According to the learned Government Pleader, in view of the law laid down by the Apex Court in B.S. Sharma (supra), the petitioners are not entitled to any of the reliefs prayed for. 7. I have carefully considered the submissions advanced by both sides. 8. Section 7C of the Industrial Disputes Act of 1947, reads as under: “Section 7C. Disqualifications for the presiding officers of Labour Courts, Tribunals, and National Tribunals - 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. (b) he has attained the age of sixty-five years.” Section 7C outlines disqualifications for Presiding Officers of Labour Courts, Tribunals, and National Tribunals. It states that a person cannot be appointed or remain in these positions if they are not independent or if they have reached the age of sixty-five years. The provision is couched negatively to emphasize the conditions under which a person is not eligible for the role. The said provision does not say that the retirement age of the Presiding Officer shall be sixty-five years. It only prescribes a condition for appointment or continuance. 9. The provision is couched negatively to emphasize the conditions under which a person is not eligible for the role. The said provision does not say that the retirement age of the Presiding Officer shall be sixty-five years. It only prescribes a condition for appointment or continuance. 9. The contention of the petitioners that the Supreme Court in Atlas (supra) has settled the law with regard to the entitlement of the petitioners to continue till they attain the age of 65 years, as mentioned in Section 7C of the Act, is on a mistaken premise. In Atlas (supra), on 14-2-1955, the Government of Punjab referred under Section 10(1)(c) of the Industrial Disputes Act, 1947, certain disputes between Atlas Industries and the respondents therein to the Industrial Tribunal, Punjab, Jalandhar, for adjudication. The Tribunal had been constituted on 29-8-1953 by a notification issued by the Government of Punjab appointing a certain Shri Avtar Narain Gujral, Advocate, as Industrial Tribunal for Punjab. The contention raised before the Apex Court was that Shri A.N Gujral was not qualified under Section 7(3)(c) of the Act under which the notification was issued to be appointed as Tribunal on 29-8-1953, as he was over sixty years of age on that date. It was contended that no Tribunal was validly constituted, and the reference to the Tribunal on 14-2-1955 was therefore unsustainable. It is apposite to note that while the Reference was pending before the Tribunal, the provisions of the Industrial Disputes Act, 1947, were amended with effect from 10-3-1957, and the life of the Tribunal constituted under the repealed Section 7, for the period specified therein, was extended and along with the same, the term of Shri. A.N Gujral, as well. It was contended that Section 30 of Act 36 of 1956 does not authorize the appointment of a member to the Tribunal constituted under Section 7 and that the notification insofar as it continued Shri A.N. Gujral, as Member of the Tribunal after his term of office had expired on 10-3-1957, was unauthorized and void. The Tribunal overruled these objections and posted the matter for hearing on the merits. This was taken up before the High Court and later before the Apex Court. The Tribunal overruled these objections and posted the matter for hearing on the merits. This was taken up before the High Court and later before the Apex Court. The Apex Court noted that while Article 217(2) prescribes the qualifications for appointment as a Judge, Article 217(1) lays down that the Judge shall hold office until he attains the age of sixty years. The validity of the appointment was challenged by contending that Sri. Gujral was disqualified by reason of his age. It was in the above context that the following observations were made in Paragraphs 11 to 13 of the judgment: “11. Though the true meaning of Article 217 has figured largely in the argument before us, it is to be noted that we are primarily concerned in this appeal with the interpretation of Section 7(3)(c) of the Act, and that must ultimately turn on its own context. Section 7(3)(a) provides for the appointment of a High Court Judge, sitting or retired, as a Member of the Tribunal. Age is clearly not a qualification under this sub-clause, as the age for retirement for a Judge of the High Court is sixty. Likewise, clause (b) provides for the appointment of a District Judge, sitting or retired, as a Member. A retired District Judge who is aged over sixty will be eligible for appointment under this sub-clause. Thus the age of a person does not enter into his qualifications under sub-clauses (a) and (b). It would therefore be legitimate to construe sub-clause (c) as not importing any qualification on the ground of age. But it is said that sub-clauses (a) and (b) form a distinct group having reference to judicial officers, whereas clause (c) is confined to advocates, who form a distinct category by themselves, and that in view of this difference, considerations as to age applicable to clauses (a) and (b) need not be applicable to clause (c). There is undoubtedly a distinction between clauses (a) and (b) on the one hand and clause (c) on the other. But the question is whether this has any reasonable relation to the difference which is sought to be made between the two classes with reference to the age of appointment. If a retired Judge of the age of sixty can fittingly fill the office of a Member of the Tribunal under Section 7, an advocate of that age can likewise do so. If a retired Judge of the age of sixty can fittingly fill the office of a Member of the Tribunal under Section 7, an advocate of that age can likewise do so. In our view, there is no ground for importing in Section 7(3)(c) an implied qualification as to age, which is not applicable to clauses 7(3)(a) and (b). 12. This question was considered by a Bench of the Punjab High Court in Prabhudayal vs. State of Punjab, AIR 1959 Punjab 460. There the validity of the appointment of Shri A.N. Gujral under the notification dated 29-8-1953, which is the very point now under debate, was challenged on the ground that as he was over sixty on that date, he was not qualified to be appointed under Section 7(3)(c). The Court held, approving of the decision in G.D. Karkare Case [ILR (1952) Nag. 409] that the prescription as to age in Article 217(1) was not a qualification to the office of a Judge under Article 217(2) and that a person who was more than sixty was qualified for appointment under Section 7(3)(c). 13. Reliance is placed for the appellant on the terms of Section 7-C which was substituted by the Amendment Act 36 of 1956 in the place of Section 7 as supporting the contention that age is a qualification for appointment under Section 7(3)(c). Section 7-C is as follows: “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. (b) he has attained the age of sixty-five years.” The marginal note to that section which was also relied on is as follows: “Disqualifications for the presiding officers of Labour Courts, Tribunals and National Tribunals.” The argument of the appellant is that, in prescribing the age as a qualification under Section 7-C, the legislature only made explicit what was implicit in Section 7(3)(c), and that therefore the qualification on the basis of age should also be imported in Section 7(3)(c). This inference does not, in our opinion, follow. The insertion of age qualification in Section 7-C is 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. This inference does not, in our opinion, follow. The insertion of age qualification in Section 7-C is 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. We agree with the decision of the Punjab High Court in Prabhudayal Case [AIR 1959 Punjab 460] and hold that Section 7(3)(c) does not import any qualification based on the age of the person to be appointed, and that the appointment of Shri A.N. Gujral on 29-8-1953, was valid under Section 7(3)(c). 10. In Atlas Industries, the Apex Court clarified that a person's age is not a factor in determining their qualifications under Section 7(3)(a) and (b) of the ID Act. The appellant contended that by specifying an age qualification in Section 7C, the legislature was simply making explicit what was already implied in Section 7(3)(c). However, this interpretation was not accepted by the Supreme Court. The Supreme Court court held that the inclusion of an age qualification in Section 7C seemed to be a legislative intent to introduce a new provision in response to the repealed Section 7, setting a retirement age for Members. The observations made in the peculiar facts of the said case cannot be construed as a declaration by the Hon’ble Supreme Court that the retirement age of Presiding Officers of the Tribunal has been fixed as 65 years by the legislature, and the State Government cannot interfere with the same. 11. In this context, it would be relevant to take note of the issues raised in B.S. Sharma (supra), wherein the contention raised by the petitioner was that in view of Section 7C of the ID Act, even if the petitioner attains the age of 60, which is the age of superannuation in the judicial service, he can still continue in service till he attain the age of 67 years. The question was answered by the Supreme Court by holding as under: 3. The petitioner now contends that even if he reaches the age of superannuation in the judicial service (i.e. 60 years), he can still continue as Presiding Officer till he completes 67 years. He relies on Section 7-C of the Industrial Disputes Act, 1947. 4. The question was answered by the Supreme Court by holding as under: 3. The petitioner now contends that even if he reaches the age of superannuation in the judicial service (i.e. 60 years), he can still continue as Presiding Officer till he completes 67 years. He relies on Section 7-C of the Industrial Disputes Act, 1947. 4. The provisions of Section 7-C of the Act read as follows: “7-C. Disqualifications for the Presiding Officers of Labour Courts, Tribunals and National Tribunals - 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. (b) he has attained the age of sixty-five years.” Later, the words “65 years” were substituted as “67 years.” 5. The writ petition filed by the petitioner was dismissed by the High Court by a well-reasoned order. The High Court adverted to Rule 19 of the Punjab Superior Judicial Service Rules, 1963 as adopted in the State of Haryana initially, and as amended on 24-3-1998 and as finally amended on 11-11-1999 and held that having regard to the control of the High Court under Article 235 of the Constitution of India, Rule 19 as it originally stood and as amended on 24-3-1998 was not in conformity with Article 235 of the Constitution of India. Hence, the Rule as it stood before 11-11-1999 could not be relied upon. The Rule as it stands after amendment on 11-11-1999 is in conformity with Article 235 of the Constitution. The amended Rule keeps the control of the officers entirely with the High Court. xxx xxx xxx xxx xxx 8. Finally, we may state that Section 7-C merely states that no person shall be appointed or continued as Presiding Officer if he has crossed 67 years. The said Rule does not prescribe any age of superannuation. It only prescribes a condition for appointment or continuance. If the person is governed by separate service rules regarding superannuation which permit continuance only up to 60 years, Section 7-C cannot help him to continue beyond 60 years or up to 67 years. 12. It was held that Section 7C merely states that no person shall be appointed or continued as Presiding Officer if he has crossed 67 years, and the said Rule does not prescribe any age of superannuation. 12. It was held that Section 7C merely states that no person shall be appointed or continued as Presiding Officer if he has crossed 67 years, and the said Rule does not prescribe any age of superannuation. It only prescribes a condition for appointment or continuance. If the person is governed by separate service rules regarding superannuation, which permit continuance only up to 60 years, Section 7C cannot help him to continue beyond 60 years or up to 67 years. 13. There is yet another matter. Section 38 of the ID Act confers powers on the appropriate Government to make Rules for the purpose of giving effect to the provisions of the Act. Section 38(c) says that the appropriate Government may make Rules detailing the salaries and allowances and the terms and conditions for appointment of the Presiding Officers of the Labour Court, Tribunal, and the National Tribunal, including the allowances admissible to members of Courts, Boards and to assessors and witnesses. In terms of the powers conferred under the Rules, the Government has come out with Ext.R1(a) notification on 15.11.2022, which reads as follows: “In exercise of the powers conferred by sub-sections (1) and (2) of section 38 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) read with section 7A thereof and sub-section (1) of section 2 of the Kerala Public Services Act, 1968 (19 of 1968), the Government of Kerala, after considering the Objections and Suggestions received on the draft rules published as Notification No. 21785/G3/2012/LBR dated 9th October, 2013 in the Kerala Gazette Extraordinary No. 3095 dated 29th October, 2013 as required under sub-section (1) of Section 38 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) hereby make the following Special Rules for the Presiding Officers of the Industrial Tribunal of the State, namely: xxx xxx 4. Qualification - (1) A person shall not be qualified for appointment as Presiding Officer of the Tribunal unless: (a) (i) he is, or has been, a judicial officer not below the rank of a District Judge or an Additional District Judge for a period of not less than three years. (ii) is qualified for appointment as a judge of High Court. (ii) is qualified for appointment as a judge of High Court. (b) he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Labour Commissioner of the State Labour Department, having a degree in law with at least seven years experience in the Labour Department after having acquired degree in law including three years of experience as Conciliation Officer: Provided that no such Deputy Chief Labour Commissioner (Central) or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be, before being appointed as the Presiding Officer. (c) he is an Officer Service in Indian Legal Service in Grade III with three years experience in the grade: Provided that no person shall be appointed to, or continue in the office of the Presiding Officer of an Industrial Tribunal if he is not an independent person as defined in clause (i) of section 2 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) or if he has attained the age of sixty years. 14. As per the special rules, which had come into effect on 16.11.2022, no person shall be appointed or continue in the office of Presiding Officer of the Industrial Tribunal, if he has attained the age of 60 years. As held by the Apex Court in Sharma (supra), if the officer is governed by separate service rules regarding superannuation, which permits continuance only up to 60 years, Section 7C cannot help him to continue beyond 60 years or up to 67 years. The contention of the petitioner that the Rules framed by the State Government would be repugnant to the Central Act cannot be accepted as Section 38 empowers the State Government to frame Special Rules governing the service. 15. In that view of the matter, the petitioners are not entitled to any of the reliefs sought in this petition. 16. This writ petition is dismissed. There will be no order as to costs.