Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 19326 of 2000
PETITIONER:
B.S. SHARMA
RESPONDENT:
STATE OF HARYANA AND ANR.
DATE OF JUDGMENT: 17/11/2000
BENCH:
M. JAGANKADHA RAO & K.G. BALAKRISHNAN
JUDGMENT:
JUDGMENT
2000 Supp(4) SCR 722
The following Order of the Court was delivered : Delay condoned.
The petitioner was appointed in the Judicial Service of the State of
Haryana as a Sub Judge-cum-Judicial Magistrate in September, 1975 and was
appointed as an Addl. District Judge in May, 1988. Pursuant to a request of
the Government, the Registrar of the High Court issued proceedings dated
26.7.97 relating to ’transfers and postings’ of officers, as per the
decision of the Full Court. The petitioner was shown as transferred and
posted as’ Presiding Officer, Industrial Tribunal-cum-Labour Court, in the
place of another officer "who was recalled to the present cadre". A
notification was thereafter issued by the Government on 16.9.97 under
Section 8 of the Industrial Disputes Act, 1947 appointing petitioner as
Presiding Officer, as stated above.
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.
The provisions of Section 7-C of the Act read as follows:
"Section 7-C: Disqualifications for the Presiding Officer 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; or
(b) He has attained the age of sixty five years." Later, the words ’65
years’ were substituted as ’ 67 years’.
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 11.11.99 could
not be relied upon.
The rule as it stands after amendment on 11.11.99 is in conformity with
Article 235 of the Constitution. The amended rule keeps the control of the
officers entirely with the High Court.
The High Court held that the petitioner continued to belong to the parent
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department in the Judicial Service and his age of superannuation would be
60 years as per the said rules and his name continued to be shown in the
seniority lists of the Judiciary even after his posting as Presiding
Officer. The petitioner could not state how he ceased to be in the Judicial
Service. The High Court held:
"The narration of the factual position in respect of the petitioner
extracted above reveals that it was the High Court itself which initiated
the case of the petitioner’s transfer as Presiding Officer, Industrial
Tribunal-cum-Labour Court, Panipat, while examining annual transfers and
postings for the year 1997-98. Only after the petitioner’s transfer was
determined by the High Court, the same was recommended to the State
Government which also had the right/authority to pass orders in that behalf
under Section 8 of the Industrial Disputes Act, 1947. The recommendation
was accepted and only after the High Court issues orders of the
petitioner’s transfer, the Government issued a formal notification giving
effect to the decision of the High Court. The procedure was thus in
consonance with the Constitutional mandate.
The petitioner has not placed on record any order showing how and when he
severed his relationship from the Haryana Superior Judicial Service and his
service records does not show that the High Court or the Haryana Government
ever terminated his lien from the cadre of the Haryana Superior Judicial
Service. He never tendered his resignation from the Haryana Superior
Judicial Service. In fact, even after he had commenced to discharge his
duties as Presiding Officer, Industrial Tribunal-cum-Labour Court, his name
continued to be reflected in the gradation list of members of the Haryana
Superior Judicial Service. One such list corrected upto 1.7.1999 has been
appended by the petitioner himself as Annexure P- 3. In the writ petition,
it was never the case of the petitioner that he ever terminated his lien
with the Haryana Superior Judicial Service and ceased to be a member
thereof."
We are in entire agreement with the above conclusion of the High Court. We
may add that the petitioner did not severe his relationship in the Judicial
Service and that he remained under the control of the High Court under
Article 235 of the Constitution and was never absorbed in any service which
had a superannuation age of 67 years.
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 upto 60 years, Section 7-C cannot help him to continue
beyond 60 years or upto 67 years.
We, therefore, dismiss the special leave petition.