2000 JTR(SC) 1850
2001 AIR(SC) 360 ; 2000 AIR(SCW) 4197 ; 2001 42 AllLR 674 ; 2001 88 FJR 433 ; 2001 98 FJR 1 ; 2001 88 FLR 433 ; 2000 Supp3 JT 186 ; 2001 1 LLJ 1 ; 2001 1 LLN 858 ; 2000 7 Scale 573 ; 2001 1 SCC 434 ; 2001 SCC(L&S) 243 ; 2001 1 SCJ 45 ; 2000 SCR 722 ; 2001 1 SCT 424 ; 2000 5 SLR 790 ; 2001 1 SLR 439 ; 2000 8 SLT 338 ; 2001 1 UJ 333 ; 2001 1 UPLBEC 540 ; 2001 KHC 1360 ; 2000 7 Supreme 581
2000(7) Supreme 581
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
M. Jagannadha Rao and K.G. Balakrishnan, JJ.
B.S. Sharma -Petitioner
versus
State of Haryana and Anr. -Respondents
Special Leave Petition (C) No. 19326 of 2000
(CC No. 7297 of 2000)
Decided on 17-11-2000
Counsel for the Parties :
For the Petitioner : Jitendra Sharma, Sr. Advocate and P.N. Puri, Advocate.
IMPORTANT POINT
A District Judge who is appointed as Presiding Officer of Industrial Tribunal/Labour Court would continue to be in Judicial Service under the Control of the High Court and would not be entitled to continue in office beyond 60 years prescribed for judicial service.
Act
Referred
:CONSTITUTION OF INDIA : Art.235
INDUSTRIAL DISPUTES ACT : S.7(c)
PUNJAB JUDICIAL SERVICE RULES : R.19
PUNJAB SUPERIOR JUDICIAL SERVICE RULES : .
SERVICE LAW : .
(A) The case involves the interplay between the Industrial Disputes Act, 1947 (Sections 7(c) and 8), the Constitution of India (Article 235), and the Punjab Judicial Service Rules. Section 7-C of the Industrial Disputes Act, as amended, bars appointment or continuance as Presiding Officer of a Labour Court if the person has attained the age of sixty-five years (originally sixty-five, later substituted with sixty-seven). Article 235 confers control over subordinate judiciary matters, including service and postings, on the High Court. Rule 19 of the Punjab Superior Judicial Service Rules governs transfers and postings, and its validity under Article 235 was scrutinized, with the amended version held to be in conformity with the Constitution, while the earlier version was not. Section 8 of the Industrial Disputes Act empowers the appropriate government to make orders on transfers and postings of officers after consultation with the High Court.
(B) Key principles include: the age limit under Section 7-C is mandatory and does not prescribe a superannuation age; service rules prescribing superannuation at 60 years continue to govern if they predate or exist independently of Section 7-C; a person remains under the parent service and control of the High Court until formally separated; and transfer under Section 8 must follow a lawful procedure involving High Court consultation.
Facts of the case:
The petitioner was appointed as a Sub Judge-cum-Judicial Magistrate in 1975 and as an Additional District Judge in 1988. In 1997, on the Governments request, the High Court initiated and directed his transfer and posting as Presiding Officer of an Industrial Tribunal-cum-Labour Court under Section 8 of the Industrial Disputes Act, 1947, with a corresponding government notification. The petitioner argued that despite reaching the age of superannuation (60 years) in the judicial service, he could continue until 67 years under Section 7-C. The High Court dismissed the petition, holding that he remained under the judicial service, his superannuation age was 60, and Section 7-C could not extend his tenure beyond that limit.
Findings of Court:
The High Court found that the transfer procedure was in consonance with the Constitutional mandate, the petitioner never severed his lien with the judicial service, and his name remained in the judicial seniority lists even after assuming duties as Presiding Officer. The Court concluded that Section 7-C only bars continuance beyond 67 years but does not prescribe a superannuation age, and where separate service rules fix a lower superannuation age, that age governs.
Issues:
Whether the petitioner, having attained the age of superannuation (60 years) in the judicial service, could continue as Presiding Officer until 67 years under Section 7-C of the Industrial Disputes Act; whether the transfer and posting were legally valid under Article 235 and Section 8 of the Industrial Disputes Act; and whether the petitioner had ceased to be a member of the judicial service.
Ratio Decidendi:
The Court held that Section 7-C operates as a disability clause limiting appointment or continuance as Presiding Officer beyond 67 years, but does not prescribe a superannuation age; where service rules fix a lower superannuation age and govern the officers tenure, Section 7-C cannot override them; the petitioner remained under the High Courts control and the transfer procedure was valid; no severance from the judicial service occurred.
Result:
The special leave petition is dismissed.
(A) The case involves the interplay between the Industrial Disputes Act, 1947 (Sections 7(c) and 8), the Constitution of India (Article 235), and the Punjab Judicial Service Rules. Section 7-C of the Industrial Disputes Act, as amended, bars appointment or continuance as Presiding Officer of a Labour Court if the person has attained the age of sixty-five years (originally sixty-five, later substituted with sixty-seven). Article 235 confers control over subordinate judiciary matters, including service and postings, on the High Court. Rule 19 of the Punjab Superior Judicial Service Rules governs transfers and postings, and its validity under Article 235 was scrutinized, with the amended version held to be in conformity with the Constitution, while the earlier version was not. Section 8 of the Industrial Disputes Act empowers the appropriate government to make orders on transfers and postings of officers after consultation with the High Court.
(B) Key principles include: the age limit under Section 7-C is mandatory and does not prescribe a superannuation age; service rules prescribing superannuation at 60 years continue to govern if they predate or exist independently of Section 7-C; a person remains under the parent service and control of the High Court until formally separated; and transfer under Section 8 must follow a lawful procedure involving High Court consultation.
Facts of the case:
The petitioner was appointed as a Sub Judge-cum-Judicial Magistrate in 1975 and as an Additional District Judge in 1988. In 1997, on the Governments request, the High Court initiated and directed his transfer and posting as Presiding Officer of an Industrial Tribunal-cum-Labour Court under Section 8 of the Industrial Disputes Act, 1947, with a corresponding government notification. The petitioner argued that despite reaching the age of superannuation (60 years) in the judicial service, he could continue until 67 years under Section 7-C. The High Court dismissed the petition, holding that he remained under the judicial service, his superannuation age was 60, and Section 7-C could not extend his tenure beyond that limit.
Findings of Court:
The High Court found that the transfer procedure was in consonance with the Constitutional mandate, the petitioner never severed his lien with the judicial service, and his name remained in the judicial seniority lists even after assuming duties as Presiding Officer. The Court concluded that Section 7-C only bars continuance beyond 67 years but does not prescribe a superannuation age, and where separate service rules fix a lower superannuation age, that age governs.
Issues:
Whether the petitioner, having attained the age of superannuation (60 years) in the judicial service, could continue as Presiding Officer until 67 years under Section 7-C of the Industrial Disputes Act; whether the transfer and posting were legally valid under Article 235 and Section 8 of the Industrial Disputes Act; and whether the petitioner had ceased to be a member of the judicial service.
Ratio Decidendi:
The Court held that Section 7-C operates as a disability clause limiting appointment or continuance as Presiding Officer beyond 67 years, but does not prescribe a superannuation age; where service rules fix a lower superannuation age and govern the officers tenure, Section 7-C cannot override them; the petitioner remained under the High Courts control and the transfer procedure was valid; no severance from the judicial service occurred.
Result:
The special leave petition is dismissed.
ORDER
Delay condoned.
2. 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 parent 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.
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:
"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 .
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 11.11.99 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.
6. The High Court held that the petitioner continued to belong to the parent 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 record 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."
7. 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.
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 upto 60 years, Section 7-C cannot help him to continue beyond 60 years or upto 67 years.
9. We, therefore, dismiss the special leave petition.
(C.R.) SLP dismissed.
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Parallel Citations of other Journals :
B.S. Sharma v. State of Haryana and Anr., 2000(7) Supreme 581
00037
00038