J.S. Yadav Vs. State of U.P. and anr. - Court Judgment

Amitava Lala and A.P. Sahi, JJ.

1. The petition raises an interesting question as to whether the petitioner has been lawfully discontinued as Member of the Uttar Pradesh Human Rights Commission as per the provisions of the Protection of Human Rights Act, 1993 as amended by Act No. 43 of 2006.

2. A State Human Rights Commission was set up in the State of Uttar Pradesh under a Notification dated 4.4.1996 of the provisions of the aforesaid Act ; a copy of the said Notification constituting the State Human Rights Commission is Annexure-4 to the writ petition.

3. The petitioner, who was undisputedly a District Judge under the Judicial Services of the State of Uttar Pradesh, was nominated and appointed as a Member of the Uttar Pradesh State Human Rights Commission under the provisions of Section 21 read with Section 22 of the Act as it stood then. The Notification to that effect was issued on 29.6.2006 ; a copy whereof is Annexure-1 to the writ petition. The terms of appointment of the petitioner was clearly spelled out in the said Notification and which recites that the petitioner shall continue to function, as such, from the date of taking over charge for a period of 5 years or till he attains the age of 70 years, whichever is earlier. Accordingly, the petitioner, in terms of the said provisions, was entitled to continue till 2011. The petitioner took charge on 1.7.2006 and, therefore, his tenure of 5 years would have come to an end on 30.6.2011.

4. The petitioner continued to function, as such, when a fresh Notification impugned in the present writ petition came to be issued on 28.5.2008. According to this notification, a copy whereof is Annexure-6, the State Human Rights Commission was reconstituted keeping in view the amendment brought about in Section 21(2) of the Human Rights Commission Act enforced w.e.f. 23.11.2006. To appreciate the controversy which is sought to be raised in the present writ petition, it would be appropriate to quote the relevant provisions as existed before the amendment and as they stand after the amendment brought about through the amending Act No. 43 of 2006:

Section 21Act No. 1 of 1994 Amending Act No. 43 of 2006(as it stood on the date of (w.e.f. 23.11.2006)appointmentof the petitioner)21. Constitution of State Human Rights 21. Constitution of State Human RightsCommissions.-(1) A State Government Commissions.-(1) A State overnment maymay constitute a body to State) Human constitute a body to State) HumanRights Commission to exercise the Rights Commission to exercise thepowers conferred upon, and to perform powers conferred upon, and to performthe functions assigned to, a State the functions assigned to, a StateCommission under this Chapter. Commission under this Chapter,(2) The State Commission shall consistof- (2) (The State Commission shall, witheffect from such date as the StateGovernment may by notification specify,consist of-(a) a Chairperson who has been a (a) a Chairperson who has been a ChiefChief Justice of a High Court; Justice of a High Court;(b) one Member who is, or has been, a (b) one Member who is, or has been, aJudge of a High Court; Judge of a High Court or District(c) one Member who is, or has been, a Judge in the State with a minimumDistrict Judge in that State; of seven years experience as(d) two Members to be appointed from District Judge ;amongst persons having knowledge (c) one Member to be appointed fromof, or practical experience in, amongst persons having knowledge of,matters relating to human rights. or practical experience in, mattersrelating to human rights.](3) There shall be a Secretary who (3) There shall be a Secretary whoshall be the Chief Executive Officer shall be the Chief Executive Officerof the State Commission and shall of the State Commission and shallexercise such powers and discharge exercise such powers and dischargesuch functions of the State Commission such functions of the State Commissionas it. may delegate to him. as it may delegate to him.(4) The headquarters of the State (4) The headquarters of the StateCommission shall be at such place as Commission shall be at such place asthe State Government may, by the State Government may, bynotification, specify. notification, specify.(5) A State Commission may inquire (5) A State Commission may inquireinto violation of human rights only in into violation of human rights only inrespect of matters relatable to any of respect of matters relatable to any ofthe entries enumerated in List II and the entries enumerated in List II andList III in the Seventh Schedule to the List III in the Seventh Schedule toConstitution: the Constitution:Provided that if any such matter is Provided that if any such matter isalready being inquired into by the already being inquired into by theCommission or any other Commission Commission or any other Commissionduly constituted under any law for the duly constituted under any law for thetime being in force, the State time being in force, the StateCommission shall not inquire into the Commission shall not inquire into thesaid matter: said matter:Provided further that in relation to Provided further that in relation tothe Jammu and Kashmir Human Rights the Jammu and Kashmir Human RightsCommission, this sub-section shall Commission, this sub-section shallhave effect as if for the words and have effect as if for the words andfigures 'List II and List III in the figures 'List II and List III in theSeventh Schedule to the Constitution', Seventh Schedule to the Constitution',the words and figures 'List III in the the words and figures 'List HI in theSeventh Schedule to the Constitution Seventh Schedule to the Constitutionas applicable to the State of Jammu as applicable to the State of Jammuand Kashmir and in respect of matters and Kashmir and in respect of mattersin relation to which the Legislature in relation to which the Legislatureof that State has power to make laws' of that State has power to make laws'had been substituted. had been substituted.(6) [Two or more State Governments- may, with the consent of a Chairpersonor Member of a State Commission,appoint such Chairperson or, as thecase may be, such Member of anotherState Commission simultaneously ifsuch Chairperson or Member consents tosuch appointment:Provided that every appointment madeunder this sub-section shall be madeafter obtaining the recommendations ofthe Committee referred to in sub-section (1) of Section 22 in respectof the State for which a commonChairperson or Member, or both, as thecase may be, is to be appointed.]Section 23Act No. 10 of 1994 Amending Act No. 43 of 200623. Removal of a Member of the State 23. [Resignation and Removal ofCommission.-(1) Subject to the Chairperson or a Member of the Stateprovisions of sub-section (2), the Commission]:Chairperson or, any other Member ofthe State Commission shall only be [(1) The Chairperson or a Member of aremoved from his office by order of State Commission may, by notice inthe President on the ground of proved writing under his hand addressed tomisbehaviour or incapacity after the the Governor, resign his office.Supreme Court, on a reference beingmade to it by the President, has, on (1A) Subject to the provisions of subinquiry held in accordance with the section (2), the Chairperson or, anyprocedure prescribed in that behalf by other Member of the State Commissionthe Supreme Court, reported that the shall only be removed from his officeChairperson or such other Member, as by order of the President on thethe case may be ought on any such ground of proved misbehaviour orground to be removed. incapacity after the Supreme Court, ona reference being made to it by thePresident, has, on inquiry held inaccordance with the procedureprescribed in that behalf by theSupreme Court, reported that theChairperson or such Member, as thecase may be, ought on any such groundto be removed.)(2) Notwithstanding anything in sub (2) Notwithstanding anything in subsection (1), the President may by section (1A), the President may byorder remove from office the order remove from office theChairperson or any other Member if the Chairperson or any (Member) if theChairperson or such other Member, as Chairperson or such (Member), as thethe case may be,- case may be,-(a) is adjudged an insolvent; or(a) is adjudged an insolvent; or(b) engages during his term of office(b) engages during his term of office in any paid employment outside thein any paid employment outside the duties of his office; orduties of his office; or(c) is unfit to continue in office by(c) is unfit to continue in office by reason of infirmity of mind orreason of infirmity of mind or body ; orbody; or(d) is of unsound mind and stands so(d) is of unsound mind and stands so declared by a competent court ; ordeclared by a competent court ; or is convicted and sentenced tois convicted and sentenced to imprisonment for an offence whichimprisonment for an offence which in the opinion of the Presidentin the opinion of the President involves moral turpitude.involves moral turpitude.Section 24Act No. 10 of 1994 Amending Act 43 of 200624. Term of office Members of the 24. Term of office of [ChairpersonState Commission.- (1) A person and] Members of the State Commission.-appointed as Chairperson shall hold (1) A person appointed as Chairpersonoffice for a term of five years from shall hold office for a term of fivethe date on which he enters upon his years from the date on which he entersoffice or until he attains the age of upon his office or until he attainsseventy years, whichever is earlier ; the age of seventy years, whichever isearlier;(2) A person appointed as a Member (2) A person appointed as a Membershall hold office for a term of five shall hold office for z term of fiveyears from the date on which he enters years from the date on which he entersupon his office and shall be eligible upon his office and shall be eligiblefor re- appointment, for another term for re- appointment for another termof five years: of five years:Provided that no Member shall hold Provided that no Member shall holdoffice after he has attained the age office after he has attained the ageof seventy years. of seventy years.(3) On ceasing to hold office, a (3) On ceasing to hold office, aChairperson or a Member shall be Chairperson or a Member shall beineligible for further employment ineligible for further employmentunder the Government of a State or under the Government of a State orunder the Government of India. under the Government of India.Section 26Act No. 10 of 1994 Amending Act No. 43 of 200626.Terms and conditions of service of 26. [Terms and conditions of serviceMembers of the State Commission.- The of Chairperson and Members of thesalaries and allowances payable to, State Commissions.--The salaries andand other terms and conditions of allowances payable to, and other termsservice of, the Members shall be such and conditions of service of, theas may be prescribed by the State Chairperson and Members shall be suchGovernment: as may be prescribed by the StateGovernment:Provided that neither the salary andallowances nor the other terms and Provided that neither the salary andconditions of service of a Member allowances nor the other terms andshall be varied to his disadvantage conditions of service of theafter his appointment. Chairperson or a Member shall bevaried to his disadvantage after hisappointment].

5. According to the amendment brought about the qualification of a Member of a State Human Rights Commission to be appointed from amongst a District Judge was altered. The earlier provision was that a Member has to be a District Judge of that State whereas the amended provision recites that the person has to be a District Judge in the State with a minimum of 7 years experience as a District Judge. The re-constitution under the Notification dated 28.5.2008 impugned in the present petition was brought about under the amended provision as a result whereof only a District Judge having an experience of 7 years as a District Judge, could have occupied office as a Member of the Commission.

6. The aforesaid new qualification introduced through the amendment was made the basis for discontinuing the petitioner, as such, the petitioner has preferred this petition questioning the correctness of the Notifications dated 28.5.2008 (Annexures-5 and 6 to the writ petition).

7. Sri S.M.A. Kazmi, learned senior advocate, assisted by Sri Sharique Ahmed, contended that the petition was filed on 2.6.2008 and was taken up on 4.6.2008 which was adjourned on the request of the petitioner for 6.6.2008. It is urged that till that time, no new incumbent had taken charge and by the time the petition came to be heard on 6.6.2008 in the post lunch session, the learned Counsel for the State came up with an information that vide Notification dated 6.6.2008 itself Justice H.K. Seema, a retired Judge of the Supreme Court, had been appointed and assumed charge as the Chairperson of the State Commission, Hon'ble Mr. Justice Vishnu Sahai similarly came to take charge as Member of the Commission alongwith one Smt. Asha Tiwari. The said Notifications are on record as Annexures-2, 3 and 4 to the counter-affidavit filed on behalf of the State through Sri A.K. Dhoundyal, Joint Secretary, Department of Home Affairs, Government of U.P., Lucknow.

8. Sri Kazmi contends that the aforesaid action of the State Government is absolutely illegal inasmuch as according to the provisions of Section 24 read with Section 26 of the Act, the tenure of the petitioner could not have been curtailed and the petitioner could not have been discontinued through the Notification dated 28.5.2008 ; copy whereof is Annexure-5 to the writ petition. It is urged that the declaration in the Notification that the petitioner shall cease to hold office is in teeth of the provisions of Section 24 read with Section 26 of the Act and further the qualifications, newly prescribed under the amending Act, could not have been given effect to, retrospeptively, to dislodge the petitioner. It is to be noted that the amendment brought about in Section 21 in the Central Act has been enforced w.e.f. 23.11.2006 as is admitted to the respondents in para 13 of the counter-affidavit. On the strength of the aforesaid facts, it is urged that the petitioner's appointment was under the unamended provision and, therefore, the terms and conditions as contained in the letter of appointment of the petitioner could not have been altered by the State Government under the garb of an amendment. It is urged that the rights which had accrued to the petitioner to continue as Member for 5 years could not be curtailed and no retrospectivity could have been given to the Notification which was enforced according to the respondents themselves on 23.11.2006. Reliance has been placed by Sri Kazmi on 2 decisions of the Supreme Court in State of Madhya Pradesh and Ors. v. Rameshwar Rathod, : AIR 1990 SC 1849 (para 5) and Bombay Dyeing and . v. Bombay Environmental Action Group and Ors. : AIR 2006 SC 1489 (para 87). It is further contended that no steps were taken for the dissolution of the Commission and, therefore, the impugned action of the respondent amounts to removal of the petitioner which could not have been done except otherwise than in accordance with Section 23 of the Act. The tenure of the petitioner had not come to an end and, therefore, the Notification declaring that the petitioner has ceased to hold office is invalid.

9. Learned Advocate General Sri Jyotindra Mishra, assisted by Sri M.C. Chaturvedi, learned chief standing counsel, and Sri Suresh Singh, learned standing counsel, has urged that the petitioner has no right to claim continuance inasmuch as the petitioner has not been removed by invoking the provisions of Section 23. On the contrary, the petitioner became disqualified by operation of law on account of the amendment brought about in Section 21 as per amending Act No. 43 of 2006. The disqualification, according to the learned Advocate General, is that the petitioner has not worked as a District Judge for 7 years nor did he have any such experience as required under the amended provision and in such a situation on account of this disqualification having been engrafted by the Legislature in the said provision, the petitioner ceased to hold office. He relied on the decision of Division Bench of this Court in Aparmita Prasad Singh v. State of U.P. 2008 (26) LCD 340. It was also submitted by the learned Advocate General that the petition could not have been maintained before the principal seat of the High Court at Allahabad inasmuch as the authority against whom the writ has to be implemented as well as the initiation of the order impugned are both within the jurisdiction of the Lucknow Bench of this Court and, therefore, the principal seat at Allahabad of the High Court cannot entertain the present writ petition. He further submits that even otherwise the petitioner has not impleaded the new Members of the Commission and, therefore, no effective relief can be granted to the petitioner which has to be dismissed for non-joinder of necessary parties.

10. In rejoinder Sri Kazmi urged that since the Member of the State Human Rights Commission is appointed to function for the entire State and since his functioning for the entire State is under question, therefore, the principal seat of the High Court at Allahabad will have full jurisdiction to entertain this petition. He, however, submitted that the petitioner in all fairness and keeping in view the status of the Chairperson and the Members of the Commission has volunteered not to implead either the Chairperson or the Hon'ble Member by name. He has urged that the petitioner has instructed him to state that as a matter of fact, the petitioner does not want any relief so as to dislodge the newly appointed Members of the Commission. The only relief prayed by Sri Kazmi is that if the petitioner is found to have been unlawfully discontinued then in that event the law should be declared, as such, so as to avoid any future misuse or abuse of the powers so vested in the State Government. He contends that the office of the Member of the State Human Rights Commission has a certain grace and a Member should not be asked to leave office in any humiliating manner when the tenure of office is protected under the Statute itself. In essence, the contention is that the terms and conditions of a Member appointed are unalterable till the end of his tenure and, therefore, the impugned Notifications are liable to be set aside.

11. Having heard learned Counsel for the parties, we proceed to answer the preliminary objection raised by the learned Advocate General with regard to territorial jurisdiction of this Court to entertain and hear this matter.

12. The undisputed facts are that the petitioner was appointed by a notification issued by the State Government which emanated from Lucknow as a Member of the State Human Rights Commission at Lucknow. However, the petitioner was appointed as a Member of the Human Rights Commission which was to function for the entire State. His appointment to function as Member was not confined to a particular area in the State and the petitioner was to function as a Member of the State Commission. In such a situation, the concept of territorial jurisdiction as is understood under the amalgamation order of 1948 would in no way diminish the jurisdiction of this Court to entertain the writ petition. Reliance has been placed on the decision of the Full Bench of this Court in the case of Rajendra Kumar Mishra v. Union of India and Ors. (2005) 1 UPLBEC 108 : 2005 (5) AWC 4542 (FB). The said decision was rendered in a matter where the petitioner was serving in the Indian Army and while on duty at Calcutta in West Bengal, he was charge-sheeted and subjected to a summary Court Marshal. The petitioner was resident of district Ballia in the State of U.P. and he, therefore, contended that he could have filed the writ petition before Allahabad High Court relying on the decision of Dinesh Chandra Gahtori v. Chief of Army Staff, (2001) 2 UPLBEC 1275 (SC). In Dinesh Chandra Gahtori's case, the Supreme Court observed that the Chief of Army Staff may be sued in any High Court in the country. This observation was explained by the Full Bench decision stating that it was not an absolute proposition and that the entire cause of action in Rajendra Kumar Mishra's case arose in Calcutta and, therefore, the Allahabad High Court had no jurisdiction.

13. In paras 19, 20 and 21 of the said decision, the Full Bench laid down the following proposition :

19. Therefore, in determining the objection of lack of territorial Jurisdiction, the Court must take all the facts pleaded in support of the cause of action into consideration although without embargo upon an inquiry as to the correctness or otherwise of the said facts.

20. In Union of India and Ors. v. Adani Exports Ltd. and Anr. : AIR 2002 SC 126, the Supreme Court held that the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the Court to decide a dispute which has, at least in part, arisen within its Jurisdiction. Each and every fact pleaded by the party in its application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the Us that is involved in the case. Facts, which have no bearing with the Its or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.

21. Similarly in Raj as than High Court Advocates Association v. Union of India and Ors. AIR 2001 SC 416, the Supreme Court held that Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court and one of the test may be as to whether the cause of action partly or fully has arisen within its territorial jurisdiction. While deciding the said case reliance was placed upon the Court's earlier judgment in U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P. : (1995) 4 SCC 738, wherein it had been held that the expression 'cause of action' has acquired a judicially-settled meaning. In the restricted sense, cause of action means the circumstances forming, the infraction of the right of the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, a,s distinguished from every piece of evidence which is necessary to prove each fact, comprises the 'cause of action'. It has to be left to be determined in each individual case as to where the cause of action arises.

14. From a perusal of the aforesaid ratio of the decision referred to hereinabove, it is clear that each individual case has to be judged in order to ascertain the place where the cause of action arose. In the instant case, as rightly pointed out by Mr. Kazmi, the petitioner had been appointed as a Member of the State Human Rights Commission and his functioning is sought to be disrupted as a Member of the Commission which is for the entire State and is not confined within the territorial jurisdiction of the Lucknow Bench of this Court. We, therefore, find it unacceptable to limit the jurisdiction of this Court on this ground and the objection raised is, therefore, unsustainable. The Full Bench decision quoted above was a case which involved the jurisdiction of a different High Court to hear the matter. In the instant case, the jurisdiction is of the Allahabad High Court and in view of the reasons given above, we find no patent lack of jurisdiction for the principal seat at Allahabad to hear the matter.

15. The next objection raised on behalf of the respondents is with regard to the non-joinder of a necessary party namely the Hon'ble Member, who has now been appointed as a consequence of the impugned notification. We propose to answer this question right at the end of our judgment.

16. The issue raised in this writ petition is as to whether the petitioner has had a raw deal at the hands of the State Government having been unceremoniously removed from office under the garb of a substantial amendment in the conditions of eligibility and qualifications prescribed for being appointed as a Member under the Protection of Human Rights Act, 1993. Chapter V of the Protection of Human Rights Act, 1993, makes a provision for the constitution of the State Human Rights Commission. The provisions have already been quoted herein above and, as such, need not be repeated. The provision, which existed at the time of appointment of the petitioner, simply prescribes that an incumbent should be either a Judge of a High Court or a District Judge in the judicial services of the State. Subsection (2) of Section 21, as it then existed, did not require anything further. The appointment is regulated under Section 22, wherein the third proviso to sub-section (1) of Section 22 clearly states that the appointment has to be made upon consultation with the Chief Justice of the High Court of the State concerned. The terms for continuance of a Member is provided under Section 24 and the consequences of ceasing to hold office are contained in sub-section (3) of Section 24 which provides that a Chairperson or a Member shall become ineligible for further appointment after ceasing to hold office. Section 26 of the Act specifically contains the terms and conditions of service of Members. The terms and conditions have to be prescribed and such terms and conditions cannot be altered to the disadvantage of a member after an appointment is made. The State Government is empowered to frame rules for conditions of service under Section 41 of the Act. No such rules have been brought to our notice.

17. In the instant case, the amendment with regard to change in qualification and eligibility providing for that a District Judge, who is to be appointed, should also possess an experience that of a District Judge of 7 years, has been introduced by way of Act No. 43 of 2006 enacted by the Parliament which received the assent of the President on 13.9.2006. The prefaratory note to the said amending Act indicates that the amendments were brought about on a recommendation of an advisory Committee set up under the Chairmanship of the former Chief Justice of India Hon'ble Justice A. H. Ahmadi as accepted by the National Human Rights Commission. Accordingly, by virtue of Section 12 of the Amending Act, Section 21 of the Principal Act was amended introducing the qualification of a minimum of 7 years experience as a District Judge. It is in pursuance of this amendment brought into the Principal Act that the State Government has issued the impugned notification dated 28.5.2008 for the re-constitution of the Uttar Pradesh Human Rights Commission. Thus, it can be seen that under the provisions of the amended Act. the State Government has proceeded to reconstitute the Commission and has simultaneously issued a Notification reciting that the petitioner has ceased to hold office on account of the amended provisions as introduced by the Parliament. The question, therefore, is as to whether the State Government on its own could simply drop the petitioner from office by an executive order on the basis of the amendment.

18. Section 21 of the Act speaks about composition of the Chief Justice of a High Court, a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge. Hence, it clearly indicates that a District Judge having experience of seven years is only comparable with a High Court Judge in this respect. The nomenclature is specifically fixed for a minimum period of seven years experience as District Judge. As per Article 236(a) of the Constitution of India, the expression 'District Judge' is as follows:

(a) the expression 'District Judge' includes Judge of a city civil court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Session Judge, Additional Sessions Judge and Assistant Sessi'ons Judge;

Again as per Section 3(17) of the General Clauses Act, 1897, a 'District Judge' means:

(17) 'District Judge' shall mean the Judge of a principal civil court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction;

19. As per Rule 4 of the U.P. Higher Judicial Service Rules, 1975, the service shall consist of a single cadre comprising the posts of District and Sessions Judges and Additional District and Sessions Judges, etc.

20. Against this background, an argument is put forth by the writ petitioner before us that since the petitioner being Additional District Judge acted as District Judge', therefore, the petitioner's experience for such period will be counted to come under the definition of 'District Judge'.

21. According to us, ordinary and natural meaning is not to be controlled by supposed intention. A Court cannot stretch the language of a statutory provision to bring it in accord with a supposed legislative intention underlying it, unless the words are susceptible of carrying out that intention. A question may arise that words 'minimum of seven years experience as District Judge' are susceptible of carrying out the intention or not. The meaning '...... as District Judge.....' under no stretch of imagination can be construed 'acted as District Judge', therefore, not susceptible of carrying out other intention at all.

22. From the plain reading of the amending Act intention of the Legislature is crystal clear that the post should be filled by a High Court Judge unless, of course, one is matured enough as District Judge to compare with a High Court Judge in this respect. If the legislative intent is to exclude one on account of experience, we cannot examine such intent but to honour. There is a reason for doing so. Human Rights approach is equitable in nature and flown from the principle of natural justice for which High Court Judges are more comfortable in discharging the duties. We are definite that concept of 'better form' passed through the mind of the Legislature otherwise there was no occasion to amend the Act. The Legislature does not waste its words. Ordinary, grammatical and full meaning is to be assigned to the words used while interpreting a provision to honour the rule. The Court cannot stretch the language of a statutory provision. It is a settled law of interpretation that the words are to be interpreted as they appear in the provision, simple and grammatical meaning is to be given to them, and nothing can be added or subtracted. Words are not to be added by implication into the language of a statute unless it is necessary to do so to give sense and meaning in its context. Whatever may have been the wisdom that guided the Legislature in enacting a provision, it is not for the Court to make surmises about it. A statute is not to be construed according to some notion of what the Legislature might have been expected to have said, or what this Court might think it was the duty of the Legislature to have said or done. The duty of the Court is to examine the language used, and to give effect to it, whether it approves or disapproves of what the Legislature has provided or whether it thinks or not that the Legislature might more properly have done or said something else. No Court can, therefore, proceed upon the assumption that the Legislature has made a mistake. There is nothing more dangerous and fallacious in interpreting a statute than first of all to assume that the Legislature had a particular intention, and then having made up one's mind what than-intention was, to conclude that the intention must necessarily be expressed in the statute, and then proceed to find it. A statute may be construed in accordance with public policy. If the precise words used are plain and unambiguous, the Court is bound to construe them in their ordinary sense, and not to limit plain words in an Act of Parliament by consideration of policy as to which minds may differ and as to which decisions may vary. Clear language cannot be allowed to be controlled by consideration of legislative policy. It is presumed that the Legislature intends its enactments to accord with the settled principles of public policy but not to violate them. Even while a statute susceptible of two or more interpretations, normally that interpretation should be accepted as reflecting the will of the Legislature which operates most equitably, justly and reasonably as judged by the normal conceptions. In the instant case, amendment of the Act is crystal clear with the words 'District Judge of a State with minimum of seven years experience as District Judge'. No word or meaning has been imported therein to reflect by the words 'acted as District Judge'. There is a difference between the words 'acted as District Judge' and 'as District Judge'. Had it been the words 'acted as District Judge', it would have been susceptible for interpretation. Even otherwise clubbing of various posts under one Article or Section as aforesaid cannot override hierarchy amongst the class of people, so designated.

23. The other issue is that the petitioner has simply challenged the notification dated 28th May, 2008 only by filing the present writ petition on 2nd June, 2008. But the Act was amended with effect from 23rd November, 2006, which is not under challenge. Therefore, as a matter of course, the petitioner cannot be entitled to speak about the effectivity of the amended Act only by

24. The petitioner has further said about his working from 1st July, 2006 till 30th June, 2011 as he was appointed prior to amendment brought into effect on 23rd November, 2006. We are of the view that the petitioner has no vested right in getting the appointment. It is only existing statutory right. Therefore, if the statute ceases to take effect, the appointment, if any, under the erstwhile Act cannot prevail. The Union Parliament and the State Legislature have plenary powers of legislation within the fields assigned to them and subject to certain constitutional and judicially recognised restrictions they can legislate prospectively as well as retrospectively. In certain cases, a distinction is drawn between the existing right and vested right and it is said that the rule against retrospective construction is applied only to save vested rights and not existing rights. Meaning of 'ceases to take effect' means amendment will take effect from the day when it has been introduced, thereby either it is immediate or retroactive in nature, which cannot be stretched to the prospectivity to suit the purpose of the petitioner.

25. We may refer to a couple of judgments in order to understand the argument of retrospective application of a Statute. The Supreme Court in the case of Union of India and Ors. v. Tushar Ranjan Mohanti and Ors., : (1994) 5 SCC 450 (Para 14). ruled as follows:

(14) The Legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the Legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation.

26. The aforesaid conclusion was drawn after going through the entire case law which has been discussed in paragraph Nos. 10 to 13 of the said decision. The same was with regard to framing of Rules under Section 309 of the Constitution of India pertaining to service law. In the instant case, the rights of the petitioner have to be adjudicated on the basis of the nature of the tenure appointment which is strictly not a service matter. The case, which may go on to further shed some light on this aspect of the matter, is the decision of Apex Court in the ease of P. Venugopal v. Union of India : (2008) 5 SCC 1. In the said decision, the Supreme Court came to the conclusion that the appellant therein was sought to be discriminated by artificially over classifying the legislation which was termed in para 36 of the decision as a one man legislation. The Supreme Court concluded that it was an act of naked discrimination and the tenure appointment of the appellant therein could not have been curtailed by the amendment which was under challenge therein and was declared to be ultra vires and unconstitutional. The Apex Court relied on the case in D. S. Reddi v. Chancellor, Osmania University and Ors. AIR 1967 SC 1305 and Dr. L.P. Agarwal v. Union of India and Ors. : (1992) 3 SCC 526, respectively.

27. At the same time, the Apex Court in the decision of P. Venugopal (supra) held in para 32 as under:

32. ...The appointment is for a tenure to which principle of superannuation does not apply. 'Tenure' means a term during which the 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 post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure.

28. The question, therefore, is as to whether the discontinuance of the petitioner on the basis of the amendment in the present case can be justified or not.

29. Firstly, the distinction in the present case is that there is no challenge to the vires of the amended Statute which has been made the basis of curtailment of the tenure of the applicant by the State Government. Secondly, Shri Kazmi, learned Counsel for the petitioner, has clearly stated that there was no occasion to do so nor is there any requirement in law inasmuch as it is the impact of the amendment which has been wrongly construed by the State Government and, therefore, it is the action of the State Government which is arbitrary and violative of Article 14 of the Constitution of India.

30. We have already indicated above, that in the absence of any challenge to the vires of the enactment, it would be difficult to question the action of the State Government inasmuch as the amendment in the Section has not been brought about to single out the petitioner and make out a classification only for the purpose of ousting the petitioner as against the case of P. Venugopal (supra). The amendment, which has been brought about in the Act is not a mala fide act of State Government and newly prescribed qualification applies prospectively from the date it has been enforced. The law on the prospective application of Statutes has been discussed in detail in the case of K. S. Paripoornan v. State of Kerala and Ors. : (1994) 5 SCC 593 (Paras 64, 88, 91 to 94). Thus, we find that the amendment which has brought about the discontinuance of the petitioner is valid and prospective in operation and it does not in any way curtail any vested right of the petitioner. It does not also impinge the constitutional guarantee enshrined under Article 14 of the Constitution of India. The petitioner, after the amendment, did not covet and vested right in the terms as understood under service jurisprudence. Even substantive rights for justifiable reasons can be curtailed through legislation which will operate prospectively. The discontinuance of the petitioner does not amount to any curtailment of his tenure in the sense, that it is a disqualification to continue in office, when the Parliament in its wisdom has altered the qualification for the office of a Member. It is a new law which would regulate the future and, therefore, the argument of retrospectivity is not attracted. The petitioner, in our opinion, did not have a vested right for which we have given additional reasons herein above holding that the petitioner did not have his tenure of 7 years as District Judge at the time when he was appointed. The State Government was fully justified in concluding that the petitioners tenure ceased to continue on account of the amendment in the Act and in absence of any challenge to the vires of the same, the petitioner cannot be granted any relief.

31. Further in view of the statement given by Sri Kazmi that the petitioner did not intend to dislodge any existing Member of Commission, this would be an additional reason in support of the said conclusion. The issue of non-joinder of parties, therefore, becomes absolutely irrelevant in view of the aforesaid findings recorded by us:

The writ petition is, accordingly dismissed with no order as to costs.