S.C. Agrawal, J.
1. These specials appeal have been filed against the order of the learned Single Judge dated May 24, 1984 in Civil Writ Petitions Nos. 1963 of 1983 and 2087 of 1983. Civil Writ Petition No. 1963 of 1983 was filed by Shri. Prageshwar 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, on 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 tribunal shall consist of a Chairman who shall be an officer of super time scale of Indian Administrative Service (IAS) and atleast two other members, one of whom shall be a member of the Rajasthan Higher Judicial Service (RHJS). Sub-section (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. Sections 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 Tribunals) 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 be decided by the Government. In exercise of the powers conferred on it under Sub-section (1) 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.
3. 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 in as much as it suffers from the vice of excessive delegation of legislative 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 in as much 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.
4. 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 petitioners 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 can be appointed as a third member of the Tribunal. The learned Single Judge was of the view that Sub-section (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 Rule 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.
5. 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) Section 3. Shri Mantari has also reiterated the third contention raised before the learned Single Judge of which no finding was recorded by him.
6. 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 Re-organisation Act, 1956. 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.
7. We may now come to the merits.
8. In order to appreciate the contentions urged by the learned Counsel for the parties, it will be necessary to take note 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 Term and Conditions of employment.-The 3rd member 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 be decided by the Government.
9. 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 in as much as no guidelines have been laid down by the legislature with regard to the appointment of the 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 v. Sristikar Dowerah and Ors. : [1957]1SCR295 and D.S. Gerewal v. The State of Punjab and other's : AIR1959SC512 . In the State of Assam v. Sristikar Dowerah and Ors. (supra), the validly 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, in as much 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:
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 appeal 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.
10. In this context we may, also refer to a decision of the division bench of this Court in Maula Bux and Ors. v. The Appellate Tribunal of State Transport Authority, Jaipur and Ors. . 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 Riles framed thereunder, qualifications for the Chairman of the Appellate Authority were prescribed and that the said matter was left completely on the discretion of the State Government. This Court rejected the contention with the following observation:
The Legislature left it to the Government of the State to constitute the Appellate Authority for purpose of Section 64. The purpose has been clearly stated in the various sections and power has been given to the State Government under Section 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.
11. If a reference is made to the provisions of the Act, it can be said that in the aforesaid provisions the legislature has laid down its policy precisely and the purpose and the policy of the Act, as laid down in the aforesaid provisions, namely, expeditious disposal of appeals against the orders of Government in service matters, provides sufficient guidelines for the exercise of the power conferred under Sub-section (2) of Section 3 of the Act and in the circumstances it cannot be said that Sub-section (2) of Section 3 suffers from the vice of excessive delegation. We, therefore, affirm the finding recorded by the learned Single Judge on the aforesaid question.
12. As regards the invalidity of Rule 5 of the Rules in so far as it provides for appointment of a retired government servant as a third member of the Tribunal, it may be stated that the main reason why the learned Single Judge has held, the said rule to be ultra vires the rule making power of the State Government is that it is inconsistent with the provisions of Section 3 of the Act, more particularly Sub-section (3) of Section 3 which makes provision for recall of the Chairman and the members by the Governor before the expiry of the period of three years. The learned Single Judge has held that the power of recall that has been conferred under Sub-section (3) of Section 3 implies the power to call back, to its original post and unless the third member is also in service, he cannot be recalled. The learned Single Judge has also observed that under Sub-section (2) of Section 3 it has been laid down that the Chairman shall be an officer in the super-time scale of IAS and the other member should be a member of the RHJS which means that both these members should be in service at the time of appointment. According to the learned Single Judge if it was the intention of the legislature that a retired officer of the Government may be appointed as a member of the Tribunal, it could have stated so. The learned Single Judge has also taken note that the Government has not made any rules or any provision prescribing the terms and conditions of the employment of the members of the Tribunal. Taking into consideration the aforesaid provisions of Sub-sections (2) and (3) of Section 3 of the Act, the learned Single Judge held that the intention of the legislature was that the persons who can be appointed as members of the Tribunal, should be persons in government service who are governed by the terms and conditions of employment for the post in the service from which they have been appointed as members of the Tribunal.
13. Having carefully considered the aforesaid reasons given by the learned Single Judge for holding that under Section 3 of the Act only a government servant in active service can be appointed as the third member of the Tribunal, we find ourselves unable to agree with the same.
14. Provision with regard to the persons who are eligible for appointment as Chairman and members of the Tribunal, is contained in Sub-section (2) of Section 3 of the Act. The said sub-section lays down that the Tribunal shall consist of the Chairman and at least two other members and that Chairman shall be an officer of super-time scale of IAS and amongst the members one member shall be a member of the RHJS. The said subjection is silent with regard to the other members of the Tribunal and does not prescribe that other members should also be persons in active government service. It has been argued that the words 'at least two other members, one of whom shall be a member of the Rajasthan Higher Judicial Service' in Sub-section (2) indicate that the members other than the Chairman shall be Government servants and that out of them one member shall be a member of RHJS. In our opinion the aforesaid words cannot be construed to mean as suggested. What has been prescribed by these words is that apart from the Chairman there shall be at least two other members in the Tribunal and out of these members one should be a member of the RHJS. In other words, all that is required by the aforesaid provision is that amongst the members, other than the Chairman, one member should be a member of the RHJS. From these words, it is not possible to draw an inference that the intention of the legislature was that all the members of the Tribunal should be in government service. If that had been the intention of the legislature it could have very well used the words 'in government service' after the words, 'at least two other members'. The Legislature has, however, not used these words and we are unable to read these words in subSection (2) of Section 3 so as to confine the scope of choice for appointment of the other members of the Tribunal to persons in government service only.
15. We are also unable to subscribe to the view that although there is no express prohibition in Sub-section (2) of Section 3 to the appointment of a person who is not in active government service, as a member of the Tribunal such a prohibition has to be inferred, by way of necessary implication, from the use of the word 'recall' in Sub-section (3) of Section 3.
16. The word 'recall' has various meanings. According to the Shorter Oxford English Dictionary, Vol. II, 3rd edition page 1759, it means 'to call back, to summon (a person or fig. a thing), to return to or from a place'. But it also means, 'to revoke, undo, annul (a deed, sentence, decree etc)'. Similarly in Webster's 'Third New International Dictionary', the term 'recall' has been defined to mean 'to call back, summon or cause to return'. It also means 'to annul by taking back'. This shows that the word 'recall' is used in the sense of calling back, a person to return to a place. The said word is also used to imply annulment or revocation of an earlier action. In the context of Sub-section (2) of Section 3 of the Act, the word 'recall' of Sub-section (3) can be said to have been used in both the senses i.e. calling back the persons who were in active service and revocation or annulment of the order of appointment of the member who is not active service. The use of the words 'recall' in Sub-section (3) of Section 3 cannot, therefore, lead to the inference that scope and ambit of Sub-section (2) of Section 3 should be cut down so as to accord a protection against appointment of a person not in active government service as a member of the Tribunal.
17. Shri Mantri has submitted that while construing the word 'recall' in Sub-section (3) of Section 3, it should be given the same meaning as the said word normally means in service jurisprudence and that in service jurisprudence the term 'recall' has been; used in the context of the person who is on deputation or on leave being asked to come back, and join his post. In support of his aforesaid submission, Shri Mantri has invited our attention to Rule 66 of the Rajasthan Service Rules 1951 relating to recall from leave. It is true that in the context of service jurisprudence, the word 'recall' is used for calling back a government servant on deputation to his parent post or call back a government servant on leave to join the post. But while interpreting Sub-section (3) of Section 3 of the Act, we cannot construe the word 'recall' in this sense. It may be that in so far as the Chairman of the Tribunal who is a member of the IAS and the other member who is member of the RHJS, the term recall may have been used to mean call back, but it cannot be said that in Sub-section (3), it has been used only in this sense. In our opinion, the term 'recall' should be given its normal meaning which also implies the power to annul or revoke the earlier order and if it is so construed in relation to a member who is not in active service, the power of recall can be exercised by revoking and annulling the order of appointment before the expiry of the period of three years.
18. In support of his submission that the intention of the Legislature was that persons in active service of the Government only should be appointed as members of the Tribunal under Section 3 of the Act, Shri Mantri has referred to the speech made by the Law Minister on the floor of the Legislative Assembly on 20th January, 1976 during the course of the debate on the Bill where in the Law Minister had stated that the other members would be government officers. In our opinion on the basis of the aforesaid speech of the Law Minister made during the course of the debate on the Bill it is not possible to hold that only government officers in active service were intended by Legislature to be appointed as members of the Tribunal. With regard to speeches, in the Legislative the Supreme Court has laid down that a speech made in the course of debate on a Bill could, at best, be indicative of the subjective intent of the speaker but it could not reflect the inarticulate mental process, lying behind the majority vote which carried the Bill nor it is reasonable to assume that the minds of all those legislators were in accord. (See: State of Travancore Cochine and Ors. v. Bombay Company Ltd., Allepey AIR 1952 SC 366 and Aswini Kumar Ghose and Anr. v. Arbind Base and Anr. : [1953]4SCR1 . In State of West Bengal v. Union of India : [1964]1SCR371 , it has been laid down that a statute is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the Statute. In our opinion, therefore, only on the basis of the statement by the Law Minister in the legislature as to what he thought to be the meaning of Section 3 of the Bill, it is not possible to cut down the generality of the words used in the statute and to hold that under section. 3 of the Act, it is not permissible to appoint a retired government servant as a member of the Tribunal.
19. We are also of the opinion that the mere fact that no provision has been made in the Act with regard to the terms and conditions of employment of the Chairman and the members of the Tribunal, it cannot be assumed that the intention of the Legislature was that all the members of the Tribunal should be government servant governed by the terms and conditions of employment for the post in the service from which they have been appointed as members of the Tribunal. In so far as the Chairman of the Tribunal and the member belonging to the RHJS is concerned, it was not necessary to lay down any terms and conditions because they are already in government service. As regards the other members the Legislature has not prescribed the terms and conditions of employment and has left the same to be prescribed by the appointing authority while making the appointment or the same could have been prescribed in the Rules framed under the Act. Merely because no provision has been made in Section 3 with regard to the terms and conditions of the Chairman and members of the Tribunal, it cannot be assumed that the intention of the Legislature was that the Chairman and all the members of the Tribunal should be government servants in active service.
20. Having considered the reasons given by the learned Single Judge and the further submissions of Shri Mantri in this regard, we are of the opinion that the provisions of Section 3 of the Act cannot be construed as laying down that only persons in active government service can be appointed as members of the Tribunal and a retired government servant cannot be appointed as member of the Tribunal. In that view of the matter the rule making authority, in making Rule 5 providing for appointment of a retired government servant as a member of the Tribunal, cannot be said to have acted in excess of the rule making power conferred on it under Section 12 of the Act and Rule 5 of the Rules cannot be held to be bad on that ground.
21. We may now come to the third ground urged by the petitioners to challenge the appointment of Shri Ganpat Rai, viz, that even if it be assumed that Rule 5 is valid, Shri Ganpat Rai was not eligible for appointment as the third member of the Tribunal because he was not a retired government servant on the date of his appointment as a member of the Tribunal. For proper appreciation of the aforesaid contention, it is necessary to take note of the definition of the terms 'government' and 'government servant' contained in Clauses (b) and (c) of Section 2 of the Act which read as under:
2(b) 'Government' means the State Government;
(c) Government servant' means a person who is or has been a member of Civil Service or who holds or has held a Civil Post under the Government of Rajasthan and includes any such person on foreign service or whose services are temporarily placed at the disposal of a local or other authority and also any person in service of a local or other authority whose services have been temporarily placed at the disposal of the State Government or a person in service on a contract or a person who has retired from the Government service elsewhere and is re-employed under the Government of Rajasthan, but does not include a person in the Civil Service of the Indian Union or a State Government servicing on deputation in Rajasthan who will continue to be governed by the rules applicable to such person.
The submission of Shri Mantri was that a retired Government servant as contemplated in Rule 5 of the Rules should have been a Government servant as defined in Section 2(c) and Shri Ganpat Rai could not be regarded as a government servant because at the time of retirement from the service, he was member of the IAS and he was not an employee of the Government of Rajasthan and was, therefore, not a government servant under Section 2(c) of the Act. We are unable to accept the aforesaid contention. There is no dispute that prior to his appointment as a member of IAS, Shri Ganpat Rai was a member of the RAS. Under Section 2(c) of the Act, a person who is or has been a member of civil service or who holds or has held a civil post under the Government of Rajasthan is to be regarded as a government servant. It is not necessary that a person in order to be a government servant under Section 2(c) of the Act, should have been a member of civil service or must be holding a civil post under the Government of Rajasthan at the time of his retirement. The words 'has been' and 'has held' in Section 2(c) of the Act mean that the person must have been at any time a member of the civil service or must have held at any time a civil post under the Government of Rajasthan, though he may not be a member of the civil service or holding the said post at the time of his retirement. In this connection reference may be made to the decisions of the Allahabad High Court in Mubarak Mazdoor v. K.K. Banerji : AIR1958All323 and Chandra Mohan v. State of U.P. and Ors. : AIR1969All230 . In Mubarak Mazdoor v. K.K. Banerji (supra), the words 'has held' in the proviso to Sub-section (3) of Section 86 of the Representation of the People Act, 1951, as it stood at that time, was construed to mean a person who had at any time held a judicial office, even though it does not hold a judicial office at the time of appointment. In Chandra Mohan v. State of U.P. and Ors. (supra) the words 'has been' in Article. 233 of the Constitution have been construed to mean the State of being has existed and may be, but not necessarily continuing. For the purpose of Section 2(c) of the Act, therefore, a person who was in the past a member of State civil service or had held a civil post under the Government of Rajasthan is to be treated as a government servant even though he may not have been a member of the civil service or may not have been holding a civil post under the Government of Rajasthan at the time when he retired from government service. In the present case there is no dispute that Shri Ganpat Rai, before his promotion to the IAS, higher office, from 26th December, 1973, was a a member of the RAS and as the member of the RAS he had held civil posts in the Government of Rajasthan. In out opinion, therefore, Shri Ganpat Rai is a retired government servant and he could have been appointed as the third member of the Tribunal under Rule 5 of the Rules.
22. This exhausts the three grounds which were agitated by the petitioners before the learned Single Judge. Before us an additional ground to challenge the constitution of the Tribunal and the appointment of Shri Ganpat Rai as the third member of the Tribunal, was raised by Shri Mantri, Shri Mantri has submitted that Sub-section (2) of Section 3, by laying down that there shall be a Chairman and atleast two other members, postulates that at all times the Tribunal should consist of the Chairman and atleast two other members and if at any time a vacancy occurs either on the post of Chairman or on the posts of one of the two members of the Tribunal, the Tribunal ceases to be validly constituted and it is necessary that the State Government should pass a fresh order-reconstituting the Tribunal under Section 3(1) of the Act. Shri Mantri has urged that irrespective of the fact that on the earlier occasions the Tribunal had ceased to be validly constituted when the Chairman of the Tribunal or the other members of the Tribunal were recalled or ceased to hold the office as member of the Tribunal. In the present case. The Tribunal ceased to be validly constituted on 1st August, 1983 on the retirement of Shri S.N. Tandon, one of the members of the Tribunal on 31st July, 1983, and that after the retirement of Shri S.N. Tandon, it was incumbent upon the State Government to have passed a fresh order re-constituting the Tribunal under Sub-section (1) of Section 3 of the Act and the mere appointment of Shri Ganpat Rai as a third member of the Tribunal is of no consequence. In our view there is no merit in the aforesaid contention. A distinction has to be made between the constitution of a Tribunal under Sub-section (1) and filling a vacancy arising on account of recall or retirement of the Chairman or a member of the Tribunal. Once the Tribunal has been validly constituted in accordance with the provisions of Sub-sections (1) and (2) of Section 3 of the Act, the Tribunal does not cease to be validly constituted merely because a vacancy has occurred on the post of Chairman or on the post of a member of the Tribunal. The said vacancy can be filled by a separate order without the need to reconstitute the whole Tribunal. In taking the aforesaid view we find ourselves fortified by the decisions of the Allahabad High Court in Lal Singh and Ors. v. Ghansham Singh ILR 9 All 625, Collector of Etah v. Rani Gulab Kunwar AIR 1935 All 322 and Bishal Chand Jain v. Chatur Sen and Ors. : (1968)IILLJ708All and the decision of the Patna High Court in Emperor v. Soharai Koeri and Anr. AIR 1948 Patna 550.
23. In Lalsingh and Ors. v. Ghan Sham Singh (supra), an argument was raised that the Allahabad High Court was not properly constituted because according to the Letters Patent the said High Court was to consist of the Chief Justice and five Puisne Judges and the number of Pusine Judges who were working at that time was less than five. The aforesaid contention was rejected by the Full Bench of the Allahabad High Court on the ground that the fact that one of the vacancies on the post of Puisne Judge of High Court had not been filled, does not alter the constitution of the court or make it illegal.
24. In Collector of Etah v. Rani Gulab Kunwar (supra), a similar argument was raised on the ground that under Clause (4) of Section 101 of the Government of India Act, 1915 it was provided that atleast one-third of the Judges of the High Court shall be Barristers and since the number of Barrister Judges in the High Court was less than one-third of the total number of Judges the High Court had ceased to be properly constituted. The said contention was rejected and it was held that the said clause does not mean that if on account of certain reasons a vacancy occurs, the other Judges of the High Court shall be deemed to be incompetent to carry on work of the High Court till the vacancy had been filled up.
25. In Bishal Chand Jain v. Chattur Sen and Ors. (supra), a similar argument was raised on the ground that the office of the Chief Justice of the High Court had fallen vacant as a result of the elevation of Mr. Justice V. Bhargava as a Judge of the Supreme Court. It was held that Article 216 of the Constitution, which makes provision for the constitution of the High Court does not deal with the subject of vacancy for the office of Chief Justice or Judge of the High Court and merely because the office of the C.J. had fallen vacant, it cannot be said that the High Court does not consist of a Chief Justice and other Judges & that the High Court continues to consist of a Chief Justice and other Judges inspite of the fact that for the time being the office of the Chief Justice is vacant.
26. Similarly in Emperor v. Soharai Koeri and Anr. (supra), an argument was raised that on account of the death of Sir Courtney Terrel, C.J. of the Patna HC, the HC had ceased to be properly constituted as there was no Chief Justice. The said contention was rejected by the Patna HC and it was held that a vacancy must be distinguished from abolition of the office and so long the office is not abolished, the constitution remains unbroken and unchanged and the only effect of the vacancy in the office of Chief Justice, so long as it continues, is that there will be no body to perform his duties unless the Governor General appoints some one or the other judges to do the same.
27. It can, therefore, be said that the fact that a vacancy had arisen in the office of the Chairman or a member of the Tribunal, does not mean that the said office has been abolished and merely because of the said vacancy, it cannot be said that the Tribunal had ceased to be*properly constituted and it should be reconstituted afesh. The order of appointment of Shri Ganpat Rai as a member of the Tribunal on the vacancy arising on account of the retirement of Shri S.N. Tandon, cannot, therefore, be held to be bad on that count.
28. The aforesaid discussion leads to the conclusion that there is no infirmity in the appointment of Shri Ganpat Rai as the third member of the Tribunal and the judgment of the learned Single Judge declaring that Shri Ganpat Rai could not have been appointed as third member of the Tribunal and declaring his post as vacant, cannot be upheld and must be set aside.
29. In the result, the special appeals are allowed. The order of the learned Single Judge is set aside arid the writ petition filed by the petitioners are dismissed. In the facts and circumstances of the case, the parties are left to bear their own costs.