- (1.) 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 petitioner's 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 tirected 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-s. (5) of S. 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- s. (5) of S. 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 S. 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-s. (6)".
(3.) The petitioner's contention, in short, was that by virtue of sub-s. (5), of S. 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. 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- s. (5) of S. 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. On a plain construction of the language of sub-s. (5) of S. 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 emphasized 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 types of phraseology to express its intention and the one employed in sub-s. (5) of S. 3 of 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, 1962 AIR(SC) 1100 the Supreme Court had occasion to interpret S. 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 S. 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 S. 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-s. (5) of S. 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 Ltd's case Art. 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 Art. 224, and in any other case, until he attains the age of sixty years.";