Judgment

BACHAWAT, J. : This appeal by special leave raises the question whether respondent No. 2, Shri B. C. Dutta was qualified for appointment as the Presiding Officer of an Industrial Tribunal under S. 7-A (3) of the Industrial Disputes Act, 1947.Section 7-A inserted in the Industrial Disputes Act, 1947 by Act No. 36 of 1956 with effect from March 10, 1957 read as follows :

"7-A 1. The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule.

2. A Tribunal shall consist of one person only to be appointed by the appropriate Government.

3. A person shall not be qualified for appointment as the presiding officer of a Tribunal unless -

(a) he is, or has been a Judge of a High Court; or

"(b) he has held the office of chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950, or of any Tribunal, for a period of not less than two years."

Assam Act No. 8 of 1962 which received the assent of the President on April 25, 1962 inserted in S. 7 - A (3) after Cl. (a), the following clause:

"(aa) he has worked as a District Judge or as an Additional District Judge or as both for a total period of not less than three years or is qualified for appointment as a Judge of a High Court:

Provided that the appointment to a Tribunal of any person qualified under this clause shall not be made without consultation with the Assam High Court; or".

2. In 1964, the Parliament passed the Industrial Disputes (Amendment) Act (No. 36 of 1964). This amending Act inserted in S. 7-A (3) after Cl. (a) the following clause :

"(aa) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or".

3. By an order of the State Government dated December 7, 1965, Shri Dutta was appointed the Presiding Officer of the Industrial Tribunal, Assam, Gauhati. Respondent No. 1 flied a writ petition in the Assam High Court challenging this appointment. The High Court quashed the appointment on the ground that Shri Dutta lacked the qualification required by S. 7-A (3). Counsel for the State of Assam submitted that Shri Dutta had been an Additional District Judge for over three years and was, therefore, qualified for appointment. This submission involves consideration of the question whether Shri Dutta, while working as Registrar of the Assam High Court, held the office of an Additional District Judge.

4. The Assam Judicial Service (Senior) Rules, 1952 show that the strength of the Assam Judicial Service (Senior) and of each kind of post therein is as follows: -

"Senior Grade I

Registrar 1

District Judges 3

Senior Grade II.

Additional District Judges 3."

The Governor has power to increase the cadre by the creation of additional permanent or temporary posts. The post of Registrar is filled up by the Chief Justice preferably from Grade I or Grade II of the Service. Other posts in the cadre are filled up by the Government in consultation with the High Court.

5. On August 16, 1954, Shri Dutta, then Officiating Subordinate and Assistant Sessions Judge, was appointed a temporary Additional District and Sessions Judge. While he was officiating as an Additional District Judge, his services were lent by the State Government to the High Court, he was temporary promoted to Senior Grade I and on March 8, 1957 was appointed by the Chief Justice as the Registrar of the Assam High Court. It is not disputed that between August 16, 1954 and March 8, 1957 Shri Dutta held the office of an Additional District Judge. The records show that until April 24,1958 the Government continued to retain Shri Dutta in his office of Additional District Judge. On this footing, the Government passed an order on March 26, 1958, whereby Shri Dutta, then Officiating Registrar of the High Court, was confirmed in Senior Grade II with