AGRAWAL, J. - (1.) THESE special appeals have been filed against the order of the learned Single Judge dated May 24, 1984 in Civil Writ Petitions No. 1963 of 1983 and 2087 of 1983. Civil Writ petition No. 1963 of 1983was filed by Shri Prage-shwar Tiwari and Civil Writ petition No. 2087 of 1983 was filed by Shri Ash Karan Agarwal. In both the writ petitions, the said petitioners (hereinafter referred to as 'the petitioners') had challenged the appointment of Shri Ganpat Rai as a member of the Rajasthan Civil Services Appellate Tribunal (hereinafter referred to as 'the Tribunal' ). The learned Single Judge, by his order aforesaid has allowed the writ petitions and has quashed the appointment of Shri Ganpat Rai as a member of the Tribunal and has declared that Shri Ganpat Rai could not have been appointed as the third member of the Tribunal and has declared his post as vacant. Feeling aggrieved by the aforesaid order of the learned Single Judge, the State has filed Special Appeals Nos. 174 of 1984 and 176 of 1984 and Shri Ganpat Rai has filed Special Appeals Nos. 175 of 1984 and 177 of 1984.
(2.) THE State Legislature of Rajasthan enacted the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 (hereinafter referred to as 'the Act') to provide for the constitution of appellate Tribunals in service matters and matters incidental thereto. Section 3 of the Act provides for constitution and composition of the Tribunals. Under sub-section (1) of section 3, the State Government has been empowered to constitute, from time to time, one or more Tribunals as it may consider necessary and each of such Tribunals is to be called the Rajasthan Civil Services Appellate Tribunal. Sub-section (2) of section 3 provides that each of the Tribunals shall consist of a Chairman who shall be an officer of super time scale of Indian Administrative Service (I. A. S.) and atleast two other members, one of whom shall be a member of the Rajasthan Higher Judicial Service (RHJS ). Sub-sec. (3) of section 3 lays down that the term of the Chairman and the members of the Tribunal shall ordinarily be three years, but the Government may, for special reasons, recall the Chairman or any member of the Tribunal before the expiry of the period of three years. Section 12 empowers the State Government to make Rules for the purpose of giving effect to the provisions of the Act. In exercise of the said power, the State Government has made the Rajasthan Civil Services (Service Matters Appellate Tribunal) Rules, 1976 {hereinafter referred to as 'the Rules' ). In Rule 5 provision has been made that the third member of the Tribunal shall be an officer serving under the State Government or a retired Government servant and his terms and conditions of employment shall be as may as decided by the Government. In exercise of the powers conferred on it under sub-section (!) of section 3 of the Act, the State Government by its notification dated 24th June, 1976 constituted the Tribunal consisting of the Chairman and two other members. THE Chairman and members of the Tribunal have been changing from time to time. Shri S. N. Tandon, the third member of the Tribunal i. e. the member other than the Chairman and the member belonging to the RHJS, retired on 31st July, 1983. By order dated 19th September, 1983 Shri Ganpat Rai who is a retired Government servant having retired from IAS on 31st August, 1983, was appointed as the third member of the Tribunal, for a period of two years. THE said appointment of Shri Ganpat Rai was made against the vacancy which occurred on account of retirement of Shri S. N. Tandon. THE petitioners have challenged the aforesaid appointment of Shri Ganpat Rai as a third member of the Tribunal. Before the learned Single Judge, the following grounds were urged on behalf of the petitioners : (i) Sub - section (2) of section 3 of the Act is unconstitutional and void inasmuch as it suffers from the vice of excessive delegation of legislation power with regard to the appointment of the third member of the Tribunal and the legislature has not provided any guidelines with regard to qualifications of the third member. (ii) Rule 5 of the Rules which provides for appointment of a retired Government servant as a third member of the Tribunal is ultra vires the rule making power conferred on the State Government inasmuch as it is inconsistent with the provisions of section 3 of the Act which does not postulate that a retired Government servant should be appointed as a third member of the Tribunal and which requires that only a serving Government servant can be appointed as third member of the Tribunal; (iii) Even if rule 5 is held to be valid, the appointment of Shri Ganpat Rai was bad because Shri Ganpat Rai was not a Government servant at the time of his retirement and he could not be treated as a retired Government servant. The learned Single Judge rejected the first contention of the petitioners with regard to the invalidity of sub-section (2) of section 3 of the Act on the ground of excessive delegation. The learned Single Judge, however, accepted the second contention urged by the petitioner with regard to the invalidity of rule 5 of the Rules and held that Rule 5 is ultra vires the rule making power conferred on the State Government, being contrary to section 3 of the Act, when it provides that a retired Government servant cannot be appointed as a third member of the Tribunal. The learned Single Judge was of the view that subsection (3) of section 3 which provides for recall of the Chairman and the members of the Tribunal by the Government postulates that only an officer in government service can be appointed as third member of the Tribunal and a retired government servant cannot be appointed as a third member of the Tribunal because a retired government servant cannot be recalled by the Governor. In view of his having held that Rule 5 of the Rules was bad in so far as it provides for appointment of a retired government servant as a third member of the Tribunal, the learned Single Judge held that the appointment of Shri Ganpat Rai as a third member of the Tribunal was invalid. The learned Single Judge did not consider it necessary to deal with the third contention urged by the petitioners. The learned Advocate General appearing for the State and Shri B. P. Agrawal, the learned counsel for Shri Ganpat Rai, have assailed the finding recorded by the learned Single Judge on the second contention relating to the validity of Rule 5 of the Rules. Shri N. D. Mantri, the learned counsel for the petitioners, has, however, supported the said finding of the learned Single Judge and has assailed the finding recorded by him on the first contention relating to the validity of sub-section (2) of section 3. Shri Mantri has also reiterated the third contention raised before the learned Single Judge on which no finding was recorded by him. Before we deal with the contentions urged by the learned counsel, we may mention that Shri Mantri had raised a preliminary objection with regard to the maintainability of these Special Appeals under section 18 of the Rajasthan High Court Ordinance, 1949 on the ground that the provision with regard to the special appeals as contained in section 18 of the Rajasthan High Court Ordinance, 1949, is no longer applicable after enactment of the States Reorganisation Act, 195 (5. After the arguments on both the sides had been heard on the said preliminary objection, Shri Mantri stated that he does not wish to press the said preliminary objection. In view of the said statement of Shri Mantri, we do not consider it necessary to deal with the said objection raised by Shri Mantri.
(3.) WE may now come to the merits - In order to appreciate the contentions urged by the learned counsel for the parties, it will be necessary to take notes of the provisions of section 3 of the Act and Rule 5 of the Rules which read as under: "3. Constitution and Composition of Tribunals.- (1) The Government may, by notification in the official Gazette, constitute from time to time one or more tribunals as it may consider necessary. Each of such tribunals shall be called the Rajasthan Civil Services Appellate Tribunal. (2) Each of the Tribunals shall consist of a Chairman who shall be an officer of Super Time Scale of Indian Administrative Service and at least two other members, one of whom shall be a member of the Rajasthan Higher Judicial Service. (3) The term of the Chairman and members of the Tribunal shall ordinarily be three years. The Government may, however, for special reason, recall the Chairman or any member of the Tribunal before the expiry of the period of three years. " "rule 5. Nomination of the members other than the Chairman and the member belonging to the Rajasthan Higher Judicial Service and regulation of his Terms and Conditions of employment.- The third member shall be an officer serving under the State Government or a retired Government servant and his terms and conditions of employment shall be may be decided by the Government. " We may first deal with the question as to the validity of sub-section (2) of section 3 of the Act. The validity of the aforesaid provision has been challenged on the ground that it suffers from the vice of excessive delegation inasmuch as no guidelines have been laid down by the Legislature with regard to the appointment of third member of the Tribunal. The learned Single Judge has rejected the said contention of the petitioners and while doing so the learned Single Judge has taken note of the decisions of the Supreme Court in the State of Assam Vs. Sristikar Dowerah (1) and D. S. Garewal Vs. The State of Punjab (2 ). In the State of Assam Vs. Sristikar (supra), the validity of sub -section (3) of section 3 of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, which empowered the Provincial Government to appoint the Appellate Authority, was challenged on the ground that it suffered from the vice of excessive delegation of essential legislative functions, inasmuch as the Legislature had not laid down any policy or principle as to the number, qualification, remuneration or period of service of persons to be appointed to perform the duties of the Tribunal. The Supreme Court rejected the aforesaid contention and have observed that:- "section 296 (2) of the Government of India Act, 1935, itself, which authorised the Governor to constitute a Tribunal did not indicate any qualification for the eligibility of the persons to be appointed as members of the Tribunal. It is clear that the Tribunal was to sit in appeal over the decision of the Excise Commissioner and that by itself gives some indication that the person or persons to appointed to the Tribunal should have the requisite capacity and competency to deal with appeals from such high officials. We do not consider that there has been an excessive delegation of legislative power. " The aforesaid decision is fully applicable to the present case. Here also it can be said that the Tribunal is to sit in appeal over the orders of the Government in service matters and that by itself gives an indication that the other member to be appointed to the Tribunal should have the requisite capacity and competency to deal with the appeals from such orders. In this context we may also refer to a decision of the Division Bench of this Court in Maula Bux Vs. The Appellate Tribunal of State Transport Authority, Jaipur (3 ). In that case the validity of sections 64 and 68 of the Motor Vehicles Act relating to the appointment of the Chairman of the Appellate Authority was challenged on the ground that neither in the Motor Vehicles Act nor the Rules framed thereunder, qualifications for the Chairman of the Appellate Authority were prescribed and that the said matter was left comp-etely on the discretion of the State Government. This Court rejected the said contention with the following observations:- "the Legislation left it to the Government of the State to constitute the Appellate Authority for purposes of Sec. 64. The purpose has been clearly stated in the various sections and power has been given to the State Government under Sec 68 to make rules for purposes of carrying into effect the provisions of Chapter IV. A reference to the various provisions of Chapter IV of the Motor Vehicles Act shows that the Legislature has laid down its policy precisely. The point regarding the constitution of the Appellate Authority was a matter of detail in the opinion of the Legislature. The purpose and the policy of the Act was to control the transport vehicles. Which authority would discharge the function of the Appellate Authority is, in our opinion, a matter of detail and cannot be regarded to be an essential feature, of the policy of control of transport vehicles. " ;