Letters Patent Appeal No.495 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.495 of 2009 Date of Decision:3.8.2009 Ranjit Singh Bajwa ---Appellant Versus State of Punjab & Anr. ---Respondents CORAM:- HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE S.D.ANAND Present:- Mr.G.S.Bal, Advocate for the appellant. Ms.Rita Kohli, Addl.Advocate General, Punjab for respondent No.1. Mr.Puneet Gupta, Advocate for respondent No.2. J.S.KHEHAR, J.(ORAL) The employment of the appellant commenced with the Punjab School Education Board vide Notification dated 29.12.2006. The relevant extract of the afore-stated Notification is reproduced hereunder:- “In exercise of the powers conferred by Section 4 (2) of the Punjab School Education Board Act, 1969 as amended by the Punjab School Education Board (Amendment Act, 1987 and Amendment Act, 2005) the Governor of Punjab is pleased to appoint Sh.Ranjit Singh, Senior Professor and Dean Languages at Guru Nanak Dev University, Amritsar as Vice-Chairman of the Punjab School Education Board till 30.5.2009. Letters Patent Appeal No.495 of 2009 2 2. The terms and conditions of appointment of Sh.Ranjit Singh shall be issued in due course. T.R.Sarangal Secretary to Government of Punjab Department of School Education” Reference in the afore-stated Notification has been made to Section 4 (2) of the Punjab School Education Board Act, 1969 (hereinafter referred to as “the Education Board Act”). Section 4 (2) is accordingly being extracted hereunder:- “4 (2) The Chairman and the Vice-Chairman shall be appointed by the State Government upon such terms and conditions as it may think fit.” During the course of hearing, learned counsel for the appellant also invited our attention to Section 5 of the Education Board Act as it existed at the time when the Notification dated 29.12.2006 was issued. The same is also being extracted hereunder:- “5. Term of office of Chairman, Vice-Chairman and members:- (1)The term of office of the Chairman and Vice -Chairman shall be three years from date of publication of the notification under sub-section (4) of section 4, which may further be extended for a period of two years; Provided that no person appointed as Chairman or Vice-Chairman shall continue as such, beyond the age of sixty two years.” A perusal of the Notification whereby the appellant was appointed as Vice-Chairman of the Punjab School Education Board reveals Letters Patent Appeal No.495 of 2009 3 that the same was in conformity with the mandate of Section 5 of the Education Board Act at the time of his appointment, inasmuch as, his date of birth being 1.6.1947, he would attain the age of 62 years on 30.5.2009. During the subsistence of his employment as Vice-Chairman of the Punjab School Education Board, Section 5 of the Education Board Act came to be amended vide Notification dated 5.5.2008. The amended Section 5 of the Education Board Act, which is basis of the claim of the appellant before us, is being extracted hereunder:- “5. Term of office of Chairman, Vice-Chairman and members:- (1)The term of office of the Chairman and Vice-Chairman shall be three years from the date of notification, issued under sub-section (4) of section 4, which in special circumstances, may further be extended for a period, not exceeding three years; Provided that the extension granted under this sub section, shall not exceed one year at time; Provided further that no person appointed as Chairman or Vice Chairman, as the case may be, shall continue as such, beyond the age of sixty-five years.” Based on the afore-stated amendment, the appellant approached this Court by filing Civil Writ Petition No.8145 of 2009, wherein his prayer was for issuance of a writ in the nature of mandamus, so as to direct the respondents to permit him to continue to hold the office of Vice -Chairman of the Punjab School Education Board, in terms of the amended provisions of Section 5 (1) extracted here-in-above, i.e., till Letters Patent Appeal No.495 of 2009 4 2.1.2010. During the course of hearing, learned counsel for the appellant states that in terms of the amended provisions of Section 5 (1) of the Education Board Act, the appellant was entitled to continue till 28.12.2009 on account of the fact that he would complete three years' tenure as Vice- Chairman of the Punjab School Education Board on the afore-stated date. The respondents have raised a contention based on Section 4 (2) of the Education Board Act, so as to contend that it was within the exclusive domain of the jurisdiction of the State Government to determine the terms and conditions of the appellant, and in exercise of its afore-stated determination, while issuing Notification dated 29.12.2006, the appellant was appointed as Vice-Chairman of the Punjab School Education Board for a tenure extending upto 30.5.2009. A perusal of Section 4 (2) of the Education Board Act undoubtedly vests the issue of determination of conditions of the employment of the Vice-Chairman in domain of the State Government, yet it is essential to examine whether in the afore-stated determination, the State Government had also the power and authority to fix or limit the tenure of appointment. In so far as the issue of tenure of the office of Vice-Chairman is concerned, at the time of induction of the appellant in the employment of the Punjab School Education Board, the mandate of Section 5 was not directory, inasmuch as, it stipulated for terms of the office of Vice -Chairman “.... shall be three years.....” The afore- stated tenure of three years was to be determined with reference to the date of publication of the Notification under Section 4 of the Education Board Act. The afore-stated tenure of three years was also subject to an overriding condition, namely, that the tenure would not extend beyond the age of 62 years. Since a separate and distinct statutory provision stands incorporated Letters Patent Appeal No.495 of 2009 5 in the Education Board Act specifically laying down the tenure of the office of Vice-Chairman of the Punjab School Education Board, it is not possible for us to accept that the tenure of the Vice-Chairman could have been determined by the State Government in exercise of the powers vested in it under Section 4 (2) of the Education Board Act. The second contention of the learned counsel for the respondents so as to assert that the tenure of appointment of the appellant would subsist till 30.5.2009 (in terms of the original Notification dated 29.12.2006) was, that the afore-stated tenure of the employment was regulated by the existing format of Section 5 of the Education Board Act, and that, any subsequent amendment of the Education Board Act would not be applicable for determining the tenure of the office of the appellant. It is not possible for us to accept the afore-stated contention advanced at the behest of the learned counsel for the respondents for the simple reason, that the amendment to Section 5 of the Education Board Act was notified on 5.5.2008, i.e., whilst the appellant was still the Vice- Chairman of the Punjab School Education Board. It is not as if the amendment dated 5.5.2008 increased or decreased the tenure of the office of Vice-Chairman of the Punjab School Education Board, before or after the afore-stated amendment, of the tenure of the office of Vice-Chairman of the Punjab School Education Board, the tenure remained to be three years, from the date of issuance of Notification under section 4 of the Education Board Act. The only effect of the amendment is, that the overriding condition contained in the un-amended provision stipulating, that the Vice -Chairman would not hold his office beyond the age of 62 years, was amended to extend that age limit upto 65 years. The action of the respondents in not Letters Patent Appeal No.495 of 2009 6 allowing the appellant to continue for a period within the frame work of overriding condition, (namely upto the age of 65 years) would in fact negate the legislative intent contained in the afore-stated amendment. We are satisfied that the amended provision of Section 5 of the Education Board Act would also be applicable to the appellant. Consequent upon the afore-stated amendment, it was imperative for the Punjab School Education Board to re-notify the condition of appointment of the appellant, so as to extend his tenure of office till 28.12.2009, i.e., the date when he would complete the mandatory tenure of three years of the office of Vice- Chairman of the Punjab School Education Board. In doing so, the respondents would be giving effect to the legislative intent contained in the amended provision. For this conclusion of ours, we find support from a Division Bench judgment rendered by this Court in Jagjit Singh Sangwan and others Versus State of Haryana and others (C.W.P.No.16098 of 1997, decided on 17.7.1998), wherein the amendment in the statutory provisions during the subsistence of tenure of the directors of the Haryana State Cooperative Supply and Marketing Federation Ltd., was held to be applicable to such of the directors, who were in the employment of the said Organization, when the amendment in the statutory provisions was carried out, namely, on 2.2.1995. Besides the statutory provisions relied upon by the learned counsel for the respondents, to defeat the claim of the appellant, learned counsel for the respondents also placed reliance on the judgment rendered by the Apex Court in Dr.L.P.Agarwal Versus Union of India and others (1992) 3 Supreme Court Cases 526, wherein emphetic reliance was placed on the observations relied by the Apex Court in para 16. Para 16 of the Letters Patent Appeal No.495 of 2009 7 aforesaid judgment is being extracted hereunder:- “We have given our thoughtful consideration to the reasoning and the conclusions reached by the High Court. We are not inclined to agree with the same. Under the Recruitment Rules the post of Director of the AIIMS is a tenure post. The said rules further provide the method of direct recruitment for filling the post. These service conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise. The age of 62 years provided under proviso to Regulation 30(2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute services. We do not agree that simply because the appointment order of the appellant mentions that “he is appointed for a period of five years or till he attains the age of 62 years”, the appointment ceases to be to a tenure-post. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. Can such person be retired prematurely curtailing his tenure of five years? Obviously not. The appointment of the appellant was on a five years tenure but it could be curtailed in the event of his attaining the age of 62 years before completing the said tenure. The High Court failed to appreciate the simple alphabet of the service jurisprudence. The High Court’s reasoning is against the clear and unambiguous language of the Recruitment Rules. The said rules provide “Tenure for five years inclusive of one year probation” and the post is to be filled “by direct recruitment”. Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The Letters Patent Appeal No.495 of 2009 8 question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading “the concept of superannuation” in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever. Under what circumstances can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case because the order impugned before the High Court concerned itself only with premature retirement and the High Court also dealt with that aspect of the matter only. This Court’s judgment in Dr Bool Chand v. Chancellor, Kurukshetra University1 relied upon by the High Court is not on the point involved in this case. In that case the tenure of Dr Bool Chand was curtailed as he was found unfit to continue as Vice- Chancellor having regard to his antecedents which were not disclosed by him at the time of his appointment as Vice- Chancellor. Similarly the judgment in Dr D.C. Saxena v. State of Haryana2 has no relevance to the facts of this case.” It is not possible for us to accept the contention of the learned counsel for the respondents on the basis of the decision rendered by the Apex Court in Dr.L.P.Agarwal's case (supra), on account of the fact that the Court concluded in the afore-stated judgment, that the regulation relating superannuation or pre-mature retirement would not be applicable to an employee appointed for a specified tenure. This is not the controversy in the present appeal, and as such, we are satisfied that the judgment rendered by the Supreme Court in L.P.Agarwal's case (supra) cannot be invoked to defeat the claim of the appellant before this Court. Another judgment relied upon by the learned counsel for the Letters Patent Appeal No.495 of 2009 9 respondents was that of Dr.L.M.Nath Versus Dr.S.K.Kacker and others (1996) 1 Supreme Court Cases 229. In so far as the instant judgment is concerned, reliance has been placed on para 6 thereof, which is extracted hereunder:- “We heard elaborate arguments on merits addressed by the learned counsel for the appellant as well as the contesting first respondent, only to satisfy our conscience, whether Division Bench of the High Court was justified at that stage, to interfere with the order. Giving our anxious consideration to the contentions, we think that the High Court was not at all justified in its interference. It is seen that the order of appointment of Dr Kacker as the Director, came to an end in the afternoon of 14- 10-1995 since admittedly it is a tenure post. Unless there is an order expressly extending his tenure, he has no right to continue thereafter. The Court cannot exercise the power of the authorities under Rule 7(4) except when it deems legal to consider them to be so exercised for the reasons given in the order. After 14-10-1995 the first respondent cannot continue as Director unless he is appointed under Rule 7(4) which empowers the President or Institute Body to make an interim arrangement till a regular Director is appointed or for six months.” The deliberations recorded by us while dealing with the second contention advanced by the learned counsel for the respondents here-in- above clearly demonstrate the inapplicability of the conclusions recorded in para 6 of the judgment rendered in Dr.L.M.Nath's case (supra). We, therefore, conclude that even the judgment rendered by the Supreme Court in Dr.L.P.Agarwal's case (supra) is inapplicable to the present controversy. In view of the conclusions drawn by us on the second issue canvassed on behalf of the respondents, we are satisfied that it was Letters Patent Appeal No.495 of 2009 10 imperative for the respondents to give effect to the amendment to Section 5 of the Education Board Act made through Notification dated 5.5.2008, so as to allow the appellant to continue in the service of the Punjab School Education Board as Vice-Chairman till 28.12.2009. Ordered accordingly. The appeal stands allowed in the aforesaid terms. (J.S.Khehar) Judge (S.D.Anand) 3.8.2009 Judge AS