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(a) The candidate concerned has served on the committee in question (whether before or after or partly before and partly after the 10th of September, 1969) for a continuous period of not less than six years.

(b) A period of three years has not expired since he last so served.

According to the language of the section whenever a persons seeks election to a committee on or after the 10th of September, 1969, he would be ineligible if he fulfils the above conditions neither of which lays down that he must be serving on the committee on that date before the conditions would come into play. For the proposition to the contrary propounded by learned counsel for the contesting respondents reliance was placed on the expression "has served" occurring in all sub-section. His contention was that the expression meant "has served and is still serving". This contention is based on the erroneous assumption that the expression is a present perfect continuous tense of the verb "to serve". The correct position is that the expression is the present perfect and not the present perfect continuous tense of the verb "to serve" and means that the act of serving has already been completed or it was done and may be (but not necessarily is) continuing. The present perfect continuous tense of the verb "to serve" would be "has been serving" and that is not the expression which the legislature, has used (although even if such an expression had been employed by the legislature, it is difficult to see how it would make the section mean that the conditions of ineligibility must exist on the date of commencement of the amending Act.).

In so holding they observed:

"The petitioner's contention is that the proviso to Section 86(3) must be interpreted strictly according to the rules of grammar and that, when so interpreted, the words 'has been' (in the phrase 'has been a Judge') signify that the person eligible for appointment must not only have held, but be then holding, office as a Judge; and that accordingly a retired Judge is not eligible for appointment. This argument is based on the assumption that 'has been' is a present perfect continuous tense. This assumption in our opinion is not correct. 'Has been' when not followed by a participle is the present perfect tense of 'to be' and accordingly indicates that the state of being has existed and may be (but not necessarily is) continuing. For example, the statement 'A has been to Ceylon' indicates that A has visited Ceylon but is not there now; whereas the sentence 'The baby has been ill and day' implies not only that the baby has been ill but is still ill.