Civil Appeal No 4733 of 1992
From the Judgment and Order dated 2821992 of the Madhya Pradesh State Administrative Tribunal Gwalior in Original Application No 2932 of 1991
Sakesh Kumar and SK Agnihotri for the Appellant
Vivek Gambhir and SK Gambhir for the Respondent
The Judgment of the Court was delivered by SHARMA J
1
By the impugned order the Madhya Pradesh State Administrative Tribunal has allowed the claim of the respondent to continue in service up to the age of 60 years and has held that he cannot be retired at 58 only
We have heard the learned counsel for the parties
Special leave is granted
The respondent was holding the post of Deputy Director when he was promoted as Joint Director Social Welfare Department in 1989
He completed the age of 58 years in January 1991 when according to the decision of the appellant he had to retire
According to the Rules the age of retirement in the department is 58 years excepting for teachers who are to continue in service till 60
It is not disputed that the posts of Deputy Director and Joint Director are not teaching posts and the respondent cannot take advantage of the higher age of retirement on that account
However the respondent relies upon the Explanation to the Rule which is in the following terms  Explanation For purpose of this sub Rule Teacher means a Government Servant by whatever designation called appointed for the purpose of teaching in an educational institution run by the Government including technical or medical educational institution in accordance with the recruitment rules applicable in such appointment and shall also include the teacher who is appointed to an administrative post by promotion or otherwise and who has been engaged in teaching for not less than 20 years provided he holds a lien CollegiateTechnicalMedical Educational Service
His case is that since initially he was appointed for the purpose of teaching in an educational institution run by the Government he is entitled to continue in service upto the age of 60 although later he was holding a non teaching post
At this stage it will be relevant to mention that the condition that a person claiming the benefit of the Explanation had to be engaged in a teaching post for not less than 20 years has been struck down as ultra vires and this part of the Explanation therefore does not come in the way of the respondent
On behalf of the appellant it has been contended that post of the Superintendent in a Deaf Mute and Blind School in which the respondent was initially appointed in 1965 was not a teaching post and he therefore cannot claim any benefit of this Explanation
The result of the case is thus dependent upon the issue as to whether the post of Superintendent in Deaf Mute and Blind School is a teaching post or not
The relevant document which has been referred to and relied upon by both sides is the advertisement No 91965 issued by the Public Service Commission Madhya Pradesh inviting applications for appointment to the posts of Superintendent Deaf Mute and Blind School
The duties are mentioned in paragraph 3 of the advertisement to the following effect  Duties i To undertake planning and organisation of the institution for education vocational training rehabilitation and recreation of children ii To undertake case wise in respect of every child of the institution with a view to ascertaining the personality make up aptitudes and interest socio economic background and intelligence iii To apply educational tests prepare syllabus organise specialised methods of education and vocational training of children and to organise examination iv To take steps for the after care and rehabilitation of children v To supervise the general maintenance of the children including the general health recreation discipline etc
and to meet the special needs of the children vi To supervise and control staff and undertake other administrative duties and vii Any other work that may be assigned to him by Government or his superior officers
We have examined the provisions closely and are of the view that the duties were supervisory in nature and not teaching
Accordingly we hold that the Explanation referred to above does not come to the aid of the respondent and he was therefore rightly retired on 3111992
In the result the appeal is allowed the impugned judgment is set aside and the Original Application filed by the respondent before the State Administrative Tribunal is dismissed
The parties will bear their own costs
We however make it clear that in case the respondent was paid for performing any duty after the dated of his retirement in pursuance of the impugned order he shall not be asked to refund the same
Appeal allowed


Summary:
 Section 21 Power to add to amend or vary or rescind any notification Whether could be invoked to reconstitute the Commission of Inquiry by replacement of substitution of the existing members though not provided in the scheme of the Act
Pursuant to the direction given by the State High Court the appellant State by a Notification dated 2421989 constituted a Commission of Inquiry under the Commission of Inquiry Act 1952 to investigate into the affairs of the children s Welfare Society of which Respondent No1 was an office bearer and appointed a sitting Judge of the High Court of another State as the sole member of the Commission
The inquiry was to be completed within a period of six months but the period was extended from time to time
Meanwhile the sole member became due to retire as a Judge of the High Court on attaining the age of superannuation and therefore he wrote a letter dated 19 31991 to the Chief Secretary of the appellant State drawing attention to this fact and requesting that the necessary modalities be worked out well in time for his continuance as Commission of Inquiry in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his retirement in such a situation
The Judge also mentioned some of the facilities he expected to which be would not be entitled from the State Government on his retirement
The Chief Secretary sent a reply dated 941991 to the Judge promising to give an early reply and requesting him to continue with the inquiry so that the same could be completed early
However without further reference to the Judge the State Government issued a notification dated 1071991 replacing him by a retired Chief Justice of another High Court
This appointment was challenged before the High Court which by an interim order dated 3071991 stayed the operation of the notification
During the pendency of the writ petition the new member tendered his resignation
Consequently the High Court dismissed the writ petition as infructuous on 591991
Thereafter the Chief Secretary to the Government sent a letter dated 1291991 to the original appointee expressing the State Government s inability to accept the terms and conditions of the Judge and informing him of the appointment of retired Chief Justice of another High Court who had since resigned
Thereafter the State Government issued another notification dated 911992 appointing a retired Judge of another High Court as a single member of the Commission
This was challenged before the High Court on the ground that during the continuance as the single member of the Commission of Inquiry of the original appointee there was no power in the State Government to replace him and there being no vacancy in the office the power under Section 33 of the  which was available only to fill any vacancy could not be invoked and there was no other source of power available to the State for the purpose and therefore the appointment first of the retired Chief Justice and then on his refusal of another retired Judge being without any authority was invalid
The High Court allowed the writ petitions and quashed the notification dated 911992
It held that there was no vacancy in the office of the single member of the Commission to empower the State Government to fill the vacancy under Section 33 of the 
It also held there was neither any valid reason or ground nor any power available in the State Government to replace the original member by another person as was purported to be done by first appointing one member and then another member both of whom were also retired Judges 
In the appeals by special leave on behalf of the State Government it was contended that aid of Section 21 of the was available to the State Government for exercising its powers under the to add to amend or vary  the notification issued initially appointing the sitting Judge as the sole member of the Commission which enabled the State Government to reconstitute the Commission by replacing that Judge with any other person in the circumstances of the case though the power to rescind any notification was not available since this was provided in Section 7 of the 
Reference was also made to Section 8 A of the to support the Contention that Government s power to reconstitute the Commission even during the availability of the person so appointed even though it was submitted that Section 8 A was not the source of power for reconstitution of the Commission
It was also contended that the Government s power to extend the time specified in the initial notification for Completing the work of the Commission was not to be found in any express provision in the 
but was exercised by amendment of the initial notification only under Section 21 of the 
and that though there was no express provision in the empowering the Government to replace or substitute the sole member of a Commission with another person during the continuance of the Commission
this was implicit in the power to appoint a Commission and designate its personnel under Sub sections 1 and 2 of Section 3 of the read the power to amend or Vary any notification available under Section 21 of the 
It Was submitted on behalf of the petitioner in the Public Interest Petition that Sections 14 and 16 of the were also available to support the notifications under challenge issued by the State Government
On behalf of respondent No1 it was submitted that the scheme of the did not permit invoking Section 21 of the except for enlargement of the period for completion of the inquiry by amendment of the notification only to that extent since the only situations in which reconstitution of the Commissions could be made were provided in the itself that Section 8 A of the was enacted for an entirely different purpose namely to ensure continuity of the Commission s work and had nothing to do with its reconstitutions that the scheme of the enactment showed that the appropriate Government could not interfere provide expressly in the statute for the Government s power to fill any vacancy after the initial constitution After its insertion the scheme of the enactment excludes the power of reconstitution of the Commission in a manner not expressly provided therein
In view of sub section 3 it is not permissible to construe sub sections 1 and 2 of Section 3 in any other manner
If the scheme of the enactment gave such wide power to reconstitute a Commission after its initial constitution and permitted replacement or substitution of the existing member of a Commission with another person sans sub section 3 of Section 3 the power to fill any vacancy was not required to be provided separately and expressly
It is also significant that in the amendment so made the power is limited only to filling any vacancy without conferring any power to reconstitute the Commission by replacement or substitution of the existing member which indicates that no such power of replacement or substitution of the existing member was contemplated in the scheme of the Act or intended to be conferred on the Government even after the amendment
298 H 299 A C 300 A 2 7
Section 8 A was simultaneously inserted by amendment to provide that the procedure does not require interruption of the inquiry by reason of change in the constitution of the Commission due to filling any vacancy or decrease in the number of members
The expression or by any other reason  in sub section 2 of Section 8 A cannot be widened to include the reason of reconstitution of the Commission by replacement or substitution of the existing member since that power is not available to the Government in the scheme of the Act and therefore
this expression in Section 8 A2 cannot be read as conferring any additional power or giving any such indication
The expression or by any other reason following vacancy having been filled  in Section 8 A2 must therefore
mean any other reason such as decrease in the number of members when the initial number is more than one and the vacancy remains unfilled
It cannot mean substitution of the existing member with another person since no such power exists
Section 8 A2 is not the source of an additional power but merely an indication of the power to reconstitute the Commission
The indication is of the power of reconstitution being available only in the manner indicated
The only situation in which the Government can rescind the notification issued under Section 3 constituting the Commission is laid down in Section 7 the Act which provides that the Commission would cease to exist when the appropriate Government by notification with the working of the Commission after its constitution except in the manner expressly provided in the Act and Section 7 was a clear indication that interference with the functioning of the Commission was not permissible in any other manner and therefore Section 21 of the was not available to support the Government s action in the instant case
Dismissing the appeal this court HELD 1
The power under Section 33 of the Commissions of the Inquiry Act 1952 was not available to the State Government in the facts of the instant case to appoint any other person replacing the original member as the sole member of the Commission of Inquiry
The power under sub sections 1 of 2 of Section 3 read with Section 21 of the or even Section 14 or Section 16 thereof was also not available for the purpose
Accordingly the notifications dated 1071991 and 911992 issued by the State Government appointing the retired Chief justice and another retired Judge were both invalid
The high Court was therefore right in quashing the notifications dated 1071991 and 911992
The appellant state should in view of the retirement of the original member as a judge of the High Court in the meanwhile take necessary action to finalise his terms and conditions in accordance with the guidelines issued by the Government of India in this behalf
Such action should be taken promptly to avoid any undue delay in completion of the commission s task
304 C F 21
The power of the Government to appoint a Commission of Inquiry and name the person or persons constituting it is in sub section 1 of Section 3
It is not as if sub section 1 deals with the mere appointment of the Commission of Inquiry without clothing it with its personnel and the power to appoint the membermembers thereof is to be found only in sub section 20 That apart there is nothing in any of these provisions to suggest that the Government has the power to reconstitute the commission after its appointment by replacing the existing sole member with another person
Sub Section 3 of Section 3 inserted by the Amendment Act of 1971 deals expressly with the Government s power to fill any vacancy which may have arisen since the constitution of the Commission
The question of replacement of a member appointed initially is beyond its scope
The insertion of sub section 3 became necessary to declares that the continued existence of  the Commission is unnecessary 
The scheme of the enactment is that the appropriate Government should have no control over the Commission after its constitution under Section 3 of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a notification under section 7 of the Act if the continued existence of the Commission is considered unnecessary
The vacancy in the office of a member of the Commission may arise for several reasons including resignation by the member when the Government power to fill the vacancy under Section 33 of the Act can be exercised
300 A E  G 24
The context as well as the scheme of the clearly indicate that Section 21 of the General clauses Act 1897 cannot be invoked to enlarge the Government section power to reconstitute the Commission constituted under Section 3 of the Act in a manner other that that expressly provided in the 
There being no express power given by the Commissions of inquiry Act to the appropriate Government to reconstitute the Commission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication no such power can be exercised by the appropriate Government
302 C F 25
Section 21 of the can be invoked only if and to the extent
if any the context and the scheme of the so permits
The general power in Section 21 of the is to add to amend vary or rescind any notifications  etc
In the context of reconstitution of the Commission the power to fill any vacancy in the office of a manner of the Commission is expressly provided in sub section 3 of Section 3 of the Similarly the power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a notification in accordance with Section 7 of the Act which results in rescinding the notification issued under Section 3 constituting the Commission
Thus the power to rescind any notification conferred generally in Section 21 of the is Clearly inapplicable in the scheme of the Commissions of inquiry Act which expressly provides for the exercise of his power in relation to Commission constituted under Section 3 of the Act
The only other material general powers in Section 21 of the are the power to amend  or vary any notification
The extent to which the constitution of the Commission can be amended or varied by filling any vacancy in the office of a member as provided in the is also obviously excluded from the purview of Section 21 of the which cannot be invoked for this purpose
In a case like the instant one where the scheme of the does provide for amendment and variation of the notification issued under Section 3 for the purpose of reconstitution of the Commission in the manner indicated even that power to amend or vary any notification by virtue of Section 21 of the must be taken as excluded by clear implication in the sphere of reconstitution of the Commission
Moreover the power to amend or vary cannot include the power to replace or substitute the existing Composition of the Commission with an entirely new composition
The aid of Section 21 of the for enlargement of time does not conflict with the context or scheme of the Commissions of Inquiry Act301 A E 26
The rule of Construction embodied in Section 21 of the cannot apply to the provisions of the relating to reconstitution of a Commission constituted there under since the Subject matter
context and effect of such provisions are inconsistent with such application
Moreover
this construction best harmonises with the subject of the enactment and the object of the legislation
Restoring public Confidence by constituting a Commission of Inquiry to investigate into a definite matter of public importance  is the purpose of such an exercise
It is therefore the prime need that the Commission functions as an independent agency free from any govern mental control after its constitution
It follows that after appointment the tenure of members of the commission should not be dependent on the will of the Government to secure their independence
A body not so independent is not likely to enjoy the requisite public confidence and may not attract men of quality and self respect
In such a situation the object of the enactment would be frustrated
302 H 303 A C Minerva Mills Ltd v There Workers  distinguished
The State of Bihar vs D N Ganguly   relied on