IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10092 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE P.B.MAJMUDAR HONOURABLE MR.JUSTICE MOHINDER PAL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= L.J. SAIYED - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MRS KETTY A MEHTA for Petitioner(s) : 1, MS REETA CHANDARANA, LD. ASST. GOVERNMENT PLEADER for Respondent(s):1 LAW OFFICER BRANCH for Respondent(s) : 2 - 3. MR SHALIN N MEHTA for Respondent(s) : 2 - 3.
========================================================= CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 30/07/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR)
1. Non-extension of service beyond the age of 58 years is challenged by the Judicial Officer in the present Special Civil Application. Whether on the basis of proper assessment of service record of the petitioner his services were required to be extended by extending the age of superannuation from 58 years to 60 years is the question, which is required to be considered in this petition. On the basis of assessment of the service record of the petitioner the High Court on its administrative side took decision not to give benefit of enhanced age of superannuation upto 60 years from 58 years. The petitioner was appointed as a Labour Judge with effect from 06th June, 1983. The petitioner thereafter promoted as Chief Judge, Labour Court with effect from 25th November, 1994. The petitioner was thereafter appointed as the Member of the Industrial Court with effect from 29th December, 2000. By way of this petition the petitioner has challenged the decision of the High Court on its administrative side by which the petitioner has not been given benefit of enhancement of superannuation age upto 60 years from 58 years. The petitioner was communicated the decision by communication dated 17th October, 2001, which is at Annexure-B in the compilation. The petitioner was informed by the President of the Industrial Court that as per the direction of the High Court, it is found that the petitioner was not fit for the benefit of enhancement of superannuation age upto 60 years and in that view of the matter, he would stand retire on 31st October, 2001 after office hours.
2. The aforesaid decision is challenged mainly on the following grounds:
2.1. The petitioner was appointed by the State Government and therefore, such decision of retiring the petitioner could not have been communicated by the High Court but it was required to be communicated by the State Government only. Whether to give benefit of extension of service to the petitioner from 58 years to 60 years is the decision, which is required to be taken by the Government and not by the High Court, as the Government is the Appointing Authority of the petitioner.
2.2. That the Gujarat Industrial Courts Judges Association along with others had filed a writ petition in past being Special Civil Application No.12665 of 2000 challenging the decision of the State Government appointing Shri N.A. Acharya as the President of the Industrial Court on the recommendation of the High Court. The Full Bench of this Court allowed the said writ petition and set aside the appointment of Shri Acharya on the post of President of the Industrial Court. The petitioner was the President of the Gujarat Industrial Courts Judges Association and in the said capacity, he had filed an affidavit before the Supreme Court in Special Leave Petition (Civil) No.1796 of 2001. In the said affidavit, the petitioner had challenged the recommendation of the Gujarat High Court on its administrative side recommending Shri N.A. Acharya's name for the appointment on the post of President of the Industrial Court. In view of the same, by way of vindictive action, decision was taken by the High Court not to extend the superannuation age of the petitioner from 58 years to 60 years. She, therefore, argued that the decision in question is malafide and arbitrary.
2.3. That the then President of the Industrial Court Shri Acharya has not pointed out relevant materials before the High Court and pointed out only selective materials and in view of the same, High Court has taken the impugned decision, and therefore, it can be said that the said decision is vitiated as relevant material was not placed before it for consideration by Shri Acharya, the then President of the Industrial Court.
2.4. The order in question by which the benefit of extension of superannuation upto 60 years is not granted to the petitioner is based on irrelevant consideration and is not objective decision. Considering the fact that the petitioner was not communicated any adverse C.R. and even subsequently in the year 2008 he was given deemed date promotion and promoted as the Member of the Industrial Court, it can be said that the decision impugned in the present petition is bad in law.
2.5. Only on the basis of one or two judgments, which according to the High Court were not correct judgments or may not be found to be correct decision in accordance with law, cannot be made basis for not giving benefit of extension of service upto the age of 60 years.
2.6. Without there being any adverse entry communicated to the petitioner, the decision of prematurely retiring the petitioner is bad in law.
2.7. The petitioner was exonerated in the Departmental Inquiry earlier initiated against him and therefore, the said fact could not have been taken into consideration while taking the impugned decision.
2.8. The High Court on its administrative side considered non-existence material and there was no objective assessment.
2.9. The Committee appointed to assess the service record of the petitioner was appointed by the Chief Justice of the High Court and not by the Full Court.
2.10. In a give case if a judgment of the petitioner is contrary to law or there is error in the judgment, on the basis of one or two judgments, entire service record of the petitioner should not have been allowed to be wiped out.
2.11. There are no guidelines framed by the High Court for consideration of extension of superannuation age from 58 years to 60 years and therefore, in absence of any guidelines framed by the High Court, the impugned decision taken by the High Court on its administrative side is bad in law.
3. Learned counsel Mr.Shalin Mehta on the other hand submits that the age of retirement of the petitioner is as such 58 years, which can be now extended upto 60 years in case the High Court recommends for extension of superannuation age upto 60 years. On recommendation of the High Court, the Government has to issue Notification extending the superannuation age of the concerned Judicial Officer upto 60 years. In absence of such Notification, Judicial Officer stands retired on completion of 58 years of age. It is submitted by Mr.Shalin Mehta that as per the provisions of the Bombay Civil Services Rules, on completion of 58 years, a person stands retired on reaching age of superannuation unless it is extended by Notification. It is further submitted by Mr.Mehta that no such Notification is issued by the State Government in this behalf pointing out that services of the petitioner is extended. It is further submitted by Mr.Mehta that it is not a case of premature retirement by way of penalty, but on completion of 58 years of age, on reviewing the service record of the petitioner, High Court on its administrative side decided not to give benefit of enhancement of superannuation age from 58 years to 60 years. It is submitted by Mr.Mehta that it is always open for the High Court administration to consider as to whether the services of the petitioner is required to be extended or not and while considering the same, there is nothing wrong if decision is taken to give such benefit to the best available person. The employer has always a choice to continue the service of such best available person. It is submitted that in a judicial service if the High Court on its administrative side decided not to give extension for two years on the basis of evaluation of total service record, it cannot be said that the said decision is bad in law in any manner. It is submitted by Mr.Mehta that allegation of the petitioner that Mr.N.A. Acharya, the then President of the Industrial Court, has not placed relevant material, has no relevance in any manner in the present case as the decision is taken by the High Court on its administrative side by considering overall service record of the petitioner. It is submitted by Mr.Mehta that in order to find out the suitability of the petitioner for further retention of service, the Chief Justice appointed a Committee. The Committee thereafter recommended to the Unit Judge, who is in charge of Judges of Labour Courts and Industrial Courts, to give his report. The Unit Judge after considering the service record and after going through the judgments of the petitioner, gave his report in which he has not recommended extension beyond 58 years and the said report was accepted by the Standing Committee. The same was thereafter placed before the Full House of the High Court. The Full House of the High Court has approved such decision. It is submitted that there is no allegation either against the Unit Judge or against the Members of the Standing Committee or against the Full House of the High Court and under such circumstances, simply in the past the petitioner had filed affidavit in the matter of appointment of Shri N.A. Acharya, taking contrary stand from the one, which was taken by the High Court on its administrative side in that case, cannot be said to be a ground which has no relevance so far as the impugned decision is concerned. It is submitted by Mr.Mehta that this Court has very limited jurisdiction of judicial review in such cases. It is further submitted by Mr.Mehta that it is true that there is no adverse entry, but the fact remains that there is not a single entry showing that the petitioner is an “excellent officer” and all throughout the entry showed that he is “good officer”. It is also argued by Mr.Mehta that at the relevant point of time, i.e. at the time when the case of the petitioner was taken for consideration for extension of superannuation age from 58 years to 60 years, a vigilance complaint was pending against the petitioner and on the basis of assessment of his judgment and on the basis of his performance, the Unit Judge thought it fit not to recommend enhancement of superannuation age in case of the petitioner from 58 years to 60 years. Considering the judgments of the petitioner the Unit Judge found that he was “an average officer”. The said decision was accepted by the Full Court of the High Court. This Court in its limited jurisdiction cannot review such decision by way of merit review. It is further submitted that this is not a case in which there is an error in the process of taking the decision or that the decision is malafide or arbitrary, which can be corrected by the High Court by way of judicial review in writ petition. It is further submitted that in case the extension in the superannuation age is given from 58 years to 60 years, Notification of the Government is required, but not otherwise. In absence of such Notification, the petitioner stands retired by way of superannuation on completion of 58 years of age.
It is further submitted by Mr.Mehta that mere absence of guidelines for extension from 58 years to 60 years cannot be said to be a ground for challenging the order, specially when on the basis of objective scrutiny the decision was taken not to give extension to the petitioner. There is no procedural illegality in any manner in not giving extension to the petitioner. It is submitted that it can never be said that the High Court on its administrative side has not considered the relevant materials for coming to the conclusion or that no reasonable person can come to such a conclusion, which is arrived at by the High Court on its administrative side. Subsequently, the representation of the petitioner, which is pending, regarding giving him deemed date, was accepted long after the impugned decision. The said aspect has no relevance in deciding the controversy. It is submitted that even if in a given case promotion is given, it has no relevance so far as assessing the service record of a Judicial Officer for giving benefit of extended superannuation age from 58 years to 60 years. In a given case, one can be entitled to get promotion, but he may not be suitable for further extension, which aspect is required to be considered on the basis of his entire service record, which will include even pendency of any complaint and whether such Officer will be useful by utilizing his services beyond the age of 58 years. The High Court can certainly consider as to whether if extension is given, services of such Officer can be effectively utilized during that extended period or not.
4. On behalf of the petitioner, learned counsel Mrs.Mehta has relied upon various case laws to substantiate her case.
(i) Reliance has been placed by Mrs.Mehta on behalf of the petitioner on the decision of the Apex Court in the case of All India Judges' Association and others v Union of India and others reported in AIR 1993 Supreme Court 2493. In the said judgment, it has been held by the Apex Court that judiciary is above administrative executive. There cannot be link between the service conditions of the judges and those of the members of the other services. The Apex Court has considered the issue about increase of retirement age upto 60 years. It has been observed in paragraph 7 of the said judgment that the benefit of increase of retirement age upto 60 years shall not be given automatically to any Judicial Officer irrespective of their past records of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful services. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees Judges of the respective High Courts constituted and headed by the Chief Justices of the respective High Courts and the evaluation shall be made on the basis of Judicial Officers' past record of service, character rolls, quality of judgments and other relevant materials. The High Court should undertake and complete the exercise in case of Officers who are about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the Judicial Officer. Those, who will not be found fit for extension should not be given benefit of higher retirement age and should be retired at the age of 58 years, i.e. the normal age of superannuation, by following the procedure of compulsory retirement. Enhancement of superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 58 years does not introduce and change any service condition of the existing person. There may be Judicial Officers, who are not desirous of availing benefit of enhancement of superannuation age with the condition of compulsory retirement and may like to opt for retirement at the age of 58 years. In such cases, the concerned Judicial Officer should intimate in writing that they are desirous to retire at the age of 58 years well in advance and before they attain the age of 57 years. Those who do not do so, will be deemed to have exercised their option to continue in service till they attain the age of 60 years of age, subject to the condition of being retired compulsorily at the age of 58 years according to the procedure of compulsory retirement laid down in the Service Rules. Relying on the observation of the Apex Court, it is argued by Mrs.Mehta for the petitioner that if the petitioner is not allowed to continue in service upto the age of 60 years, it may be amount to compulsory retirement, for which service record including C.R. of the petitioner is required to be taken into account. According to her, there was no objective assessment in this behalf. The order in question is, therefore, bad.
(ii) Mrs.Mehta has also relied upon the judgment rendered in the case of Bishwanath Prasad Singh v State of Bihar and others reported in (2001) 2 Supreme Court Cases 305. Mr.Shalin Mehta for the other side has also upon the said judgment.
In the aforesaid judgment the Supreme Court has considered the decision rendered by the Supreme Court in the case of All India Judges' Association (supra). In the aforesaid case, on the basis of service record, Judicial Officer was not granted benefit of extended age of superannuation. On inspection of files and from information received during the inspection, the inspecting Judge of High Court find that the Judicial Officer concerned did not deserve the benefit of extended age of superannuation. The Supreme Court came to the conclusion that the decision of the High Court was not arbitrary as it was based on relevant material on record. In paragraph 7 of the said judgment the Supreme Court has held that until the service rules are amended by the State Government, the extended age of superannuation upto 60 years shall be a benefit available to judicial officers subject to their satisfying the test of suitability at the evaluation or assessment to be made by the High Court in accordance with the judgment of the Supreme Court. Such evaluation is independent of and other than an assessment undertaken for compulsory retirement in public interest which could be resorted to earlier or later also. It has also been reiterated by the Supreme Court in paragraph 8 that benefit of increase age of retirement shall not be made available automatically to judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit was available to those who in the opinion of the respective High Courts, have the potential for continued useful service.
In paragraph 12 and 13 the Court has observed as under:
“12. Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt being recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a government servant must also withstand the scrutiny of Article 311 of the Constitution. Then there are service rules, such as Rule 56(j) of Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a government servant on his attaining a particular age or on his having completed a certain number of years of service on formation of an opinion that in public interest it is necessary to compulsorily retire a government servant. In that case, it is neither a punishment nor a penalty with loss of retiral benefits.(See Shyamlal Vs. State of U.P., Brij Mohan Singh Chopra Vs. State of Punjab, Ramchandra Raju Vs. State of Orissa, Baikunth Nath Das Vs. Chief District Medical Officer). More appropriately it is like premature retirement. It does not cast any stigma. The government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bonafide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being malafide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is not to punish or penalise the government servant but to weed out the worthless who have lost their utility for the administration by their insensitive, unintelligent or dubious conduct impeding the flow of administration or promoting stagnation. The country needs speed, sensitivity, probity, non- irritative public relation and enthusiastic creativity which can be achieved by eliminating the dead wood, the paper-logged and callous (see S. Ram Chandra Raju Vs. State of Orissa. We may with advantage quote the following passage from this decision:
“Though the order of compulsory retirement is not a punishment and the Government servant on being compulsorily retired is entitled to draw all retiral benefits, including pension, the Government must exercise its power in the public interest to effectuate the efficiency of service. The dead wood needs to be removed to augment efficiency. Integrity of public service needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but act as a check and reasonable measure to ensure efficiency in service, and free from corruption and incompetence. The officer would go by reputation built around him. In appropriate case, there may not be sufficient evidence to take punitive act of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest.”
13. We would like to state, even at the risk of repetition, that 1993 case is not intended to operate as a piece of legislation and certainly it could not have been so. It is only on account of inaction of the executive to carry out the direction of this Court made in 1992 case that persuaded this Court into issuing suitable directions, ad hoc in nature, to remain I operation for the period for which the field was not occupied by statutory rules by amendment made to bring the rules in conformity with the directions in 1993 case. The direction in 1993 case enhancing the age of retirement from 58 years to 60 years is a benefit and not a right. The availability of benefit is conditional upon the exercise of evaluation undertaken by the High Court and the individual judicial officer having satisfied the test of continued utility to the judicial system in the opinion of the High Court. Extension of service is neither automatic nor a windfall.”
(iii) Reliance has also been placed by Mrs.Mehta on the judgment of Supreme Court in the case of High Court of Judicature at Allahabad through Registrar v Sarnam Singh and another reported in 2000 LAB. I.C. 2098. In this judgment the Supreme Court has considered the aspect about compulsory retirement as Judicial Officer. The State Government by framing Rules can enhance the superannuation age from 58 years to 60 years. In view of the fact that Rules were already enacted under Article 309 of the Constitution of India by the State, it was held that it was no longer incumbent upon by the High Court to resort to the procedure of the service record of all Judicial Officers before allowing them the benefit of extension of superannuation age. Considering the new Rule framed by the State, it was held that under the new Rules, Judicial Officer was entitled to continue in service upto the age of 60 years and on that ground, order of compulsory retirement was set aside. It is also held that if there is no adverse entry in the service record, prior opportunity of hearing to employee is not necessary. It has also been held in paragraph 32 of the said judgment that as held in the case of Registrar High Court of Madras v. R. Rajiah reported in (1998) 2 JT (SC) 567, there could be ill conceived or motivated complaints. Rumour mongering is to be avoided at all costs as it seriously jeopardizes the efficient working of the subordinate Courts. This observation also indicate the attitude, which the Inspecting Judge should have to consider at the time of inspection. The Judicial Officers are some time working under stress and plying circumstances.
(iv) Learned counsel Mrs.Mehta has also relied upon the decision of the Supreme Court in the case of Nand Kumar Verma v. State of Jharkhand and others reported in 2012 (133) FLR 13. In the aforesaid case, the appellant before the Supreme Court was appointed as Munsif in Bihar Subordinate Judicial Service. Thereafter he was confirmed as Munsif and promoted to the rank of Sub-Judge (Civil Judge, Senior Division) and confirmed on the same rank. Subsequently he was made Chief Judicial Magistrate. While working as Chief Judicial Magistrate, he was subjected to inquiry on the ground of omissions and commissions in granting bail in certain cases. Strictures were made by the Inspecting Judge. The concerned Judge was thereafter reverted as Munsif and subsequently, order of compulsory retirement was passed. It has been held by the Supreme Court that the object of compulsory retirement is to weed out the dead wood in order to maintain high standard of efficiency and honesty. In paragraph Nos.29 and 30, it has been observed as under:
“29. In Madan Mohan Choudhary v. State of Bihar, this Court was considering the order of compulsory retirement of the appellant, who was a Member of the Superior Judicial Service in the State of Bihar. On a writ petition filed by the appellant in the High Court, challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The appellant came in appeal before this Court. This Court found that while on various earlier occasions remarks were given by the High Court but there were no entries in the character roll of the appellant for the years 1991-92, 1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously and the the appellant was categorized as 'C' Grade officer. The date on which these entries were made was not indicated either in the original record or in the counter-
affidavit filed by the respondent. These were communicated to the appellant on 29-11-1996 and were considered by the Full Court on 30- 11-1996. It was clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6-11- 1996 to put up a note for compulsory retirement of the appellant. This Court held that it was a case where there was no material on the basis of which an opinion could have been reasonably framed that it would be in the public interest to retire the appellant from service prematurely. This Court was of the opinion that the entires recorded “at one go” for three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration. The Court then referred to its earlier decision in Registrar, High Court of Madras v. R.Rajiah where this Court said that the High Court in its administrative jurisdiction has the power to recommend compulsory retirement of the Member of the Judicial service in accordance with the rules framed in that regard but it cannot act arbitrarily and there has to be material to come to a decision to compulsorily retire the officer. In that case it was also pointed out that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the officers may discharge their duties honestly and independently; unconcerned by the ill-conceived or motivated complaints made by unscrupulous lawyers and litigants.
30. We are conscious of the fact that there is very limited scope of judicial review of an order of premature retirement from service. As observed by this Court in Rajiah's case (Supra) that when the High Court takes the view that an order of compulsory retirement should be made against a member of the Judicial Service, the adequacy of sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant to the purpose of compulsory retirement. We also add that when an order of compulsory retirement is challenged in a Court of law, the Court has the right to examine whether some ground or material germane to the issue exists or not. Although, the Court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests.”
(v) A reference is also made by Mrs.Mehta to the decision rendered by the Full Bench of this Court in the case of Gujarat Majdoor Sabha, Behrampura and others v. State of Gujarat and another reported in 1998 LAB.I.C. 2472. It has been held in that judgment and Labour Court and Industrial Court are covered by expression “District Judge” and “Judicial Service” within meaning of Articles 235 and 236 of the Constitution of India and are under the administrative control of the High Court.
5. Mr.Shalin Mehta, on the other hand, has relied upon following judgments to substantiate his case.
(i) Mr.Mehta has relied upon the judgment of the Supreme Court in the case of Bishwanath Prasad Singh v State of Bihar and others (supra). We have already referred the aforesaid judgment at the time of incorporating the arguments of learned counsel for the petitioner Mrs.Mehta. As discussed earlier, it has been held by the Supreme Court that compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt recorded in the disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. On the other hand, a compulsory retirement on attaining a particular age or on his completing a certain number of years of service on formation of an opinion that in public interest it is necessary to compulsorily retire him. In that case, it is neither a punishment nor a penalty with loss of retiral benefits. Compulsory retirement in public interest under service rules is like premature retirement. It does not cast any stigma. The government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is found bona fide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is to weed out the worthless who have lost their utility for the administration.
(ii) Mr.Mehta has also relied upon the judgment of the Supreme Court in the case of S.D. Singh v Jharkhand High Court through R.G. reported in (2005) 13 Supreme Court Cases 737. In the said judgment, a Judicial Officer was not continued beyond the age of 58 years and was not given benefit of enhanced age of superannuation upto 60 years. In the said case, it was found that the Jharkhand High Court had not framed any rules regarding enhance age of superannuation upto 60 years from 58 years. The High Court in the aforesaid case, after taking consent of the Judicial Officer as to whether he would willing to continue upto the age of 60 years or not and on that basis, the High Court evaluated his service record. The Evaluation Committee was set up by the High Court. The Committee opined that the said Judicial Officer should not be continued beyond the age of 58 years, which the Full Court has accepted. The High Court dismissed the petition. The Supreme Court has observed in paragraph 11, 12 and 13 in the said judgment as under:
“11) It appears that an Evaluation Committee was set up by the High Court. The Evaluation Committee considered the service records of the petitioner and recommended that the petitioner and two others should not be continued in service beyond the age of 58 years. The matter was placed before the Full Court which approved the recommendations of the Evaluation Committee. The impugned letter dated 14.5.03 was written to the petitioner in the aforesaid circumstances.
12) The petitioner’s contention is that he was a very good officer as his records would show. Reliance has been placed particularly on an order dated 27.9.1999 by which the petitioner along with others superseded several senior officers to be posted as an Additional District Judge. Reference has also been made to various remarks in the petitioner’s Annual Confidential Reports (ACRs) that the petitioner was a good officer.
13) It may be noted, at the outset, that the petitioner has not urged any grounds of malafides. In the counter affidavit it has been stated that the Evaluation Committee had taken into consideration the petitioner’s ACRs from 1976 to 1977, many of which showed that the petitioner was an average immediately preceding the petitioner’s achieving the age of 58 years. Additionally, it was noted that a vigilance proceeding had been initiated against the petitioner on the basis of several allegations made against him including a report made by the inspecting judge who had made an inspection and had reported that the petitioner did not have a good reputation. However, it was also noted that as far as the allegation of the inspecting judge was concerned the matter was placed in the Standing Committee meeting and was ultimately dropped. Although the petitioner has denied the allegations on merits, he has not denied in response to the counter affidavit that such a vigilance case was in fact pending. In the circumstances, it cannot be said that there was no material on the basis on which the Evaluation Committee and subsequently the Full Court of the High Court formed the opinion that the petitioner was not suitable for continuing in service beyond the age of 58 years. The petitioner’s reliance upon an order of promotion supersending others is misplaced since it merely shows that the petitioner was better than those who were superseded but does not establish that the petitioner was fit to continue in service. It has been held by this Court in Syed T.A. Nagshbandhi v. State of J and K, reported in [2003] 9 SCC 592;
“Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful consideration of the entire material brought to our notice by learned counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinion is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claim sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to
view or someone has some grievance about the exercise undertaken by the Committee/Full Court.”
Considering the same, it is argued by Mr.Mehta that as per the C.R. of the petitioner, he was found “good officer” and was never found to be “very good” or “excellent” officer at any point of time. It is submitted that on the basis of the evaluation of service record and his judgments as well considering the fact that come complaints were filed in the past, including the pendency of vigilance complaint at the relevant point of time, the decision was taken by the High Court on its administrative side not to give benefit of enhance age of superannuation from 58 years to 60 years and such decision cannot be said to be in any way arbitrary or illegal.
(iii) Mr.Mehta has also relied upon the decision of the Supreme Court in the case of Rajendra Singh Verma (Dead) through LRS. and others v. Lieutenant Governor (NCT of Delhi) and others reported in (2011) 10 Supreme Court Cases 1. The aforesaid case was also in connection with the extension of service beyond the age of 58 years. It has been held by the Supreme Court in paragraph 217 and 218 as under:
“217. Having regard to the entire service record of the three officers, this Court is of the opinion that the competent authority was justified in passing the order retiring them compulsorily from service. Mere glance at the ACRs of the deceased officer and two other appellants makes it so glaring that on the basis thereof the decision to compulsorily retire them would clearly be without blemish and will have to be treated as well founded. This Court finds that before passing the orders in question, whole service record of each of the officer was taken into consideration. Keeping in view the comprehensive assessment of service record, the Screening Committee rightly recommended that the three officers should be prematurely retired in public interest forthwith. The Full Court after considering the report of the Screening Committee and also after taking into consideration the record of work and conduct, general reputation and service record of the three officers correctly resolved that it be recommended to the Lt. Governor or NCT of Delhi to retire the judicial officers forthwith in public interest. The orders do not entail any punishment in the sense that all the officers have been paid retiral benefits till they were compulsorily retired from service.
218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational,so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factory play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things, it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court to judicial review except in an extraordinary case when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.”
(iv) Mr.Mehta has also relied upon the decision of the Supreme Court in the case of High Court of Judicature, Patna v. Shiveshwar Narayan and another reported in 2011 (11) Scale 369 wherein in paragraph 11, it has been held as under:
“11. The primary consideration for the High Court in extending benefit of increase in the retirement age of the Judicial Officer is his continued usefulness in the service based on entire service record, quality of judgments, his conduct, integrity and all other relevant factory. A Judicial Officer may have a service record not tainted by many adverse remarks; he may have got promotion from time to time but still he may be found to be lacking in potential for continued useful service. In assessing potential for continued useful service, obviously entire record of service, character rolls, quality of judgments are of considerable importance. At the same time, over-all reputation of a Judge in the entire period of service, his judicial conduct, objective and impartial performance throughout his career are the relevant factors which also have to be kept in mind. A Judicial Officer is not an ordinary government servant; he exercises sovereign judicial power. Like Caesar's wife; he must be above suspicion. The personality of an honest judicial officer is ultimate guarantee to justice. The judicial officers hold office of great trust and responsibility and their judicial conduct must not be beyond the pale. A slightest dishonesty (monetary, intellectual or institutional) by a judicial officer may have disastrous effect. The repeated complaints of judicial impropriety and questionable integrity against a judicial officer – although not proved to the hilt – may be sufficient basis to disentitle such judicial officer the benefit of extension of retirement age to 60 years."
6. We have heard both the learned counsel at length. We have considered various case law cited at the bar by both the sides. We have also gone through the voluminous record forming part of this petition. We have also gone through the report of the Unit Judge as well as one of the judgments of the petitioner, which is placed on record by the High Court administration, copy of which was made available to Mrs.Ketty Mehta. At the outset it is required to be noted that Mrs.Mehta for the petitioner has stated that there is no allegation by the petitioner against the High Court on its administrative side or against any Judges or against the Unit Judge or against the Committee formed by the Chief Justice for the purpose of assessment of service record of the petitioner. It is submitted that the allegation of malafide is only against Shri N.A. Acharya, the then President of the Industrial Court. The said submission of Mrs.Mehta is, therefore, noted by us in this judgment.
7. So far as the first point raised by Mrs.Mehta regarding non-communication of the order by the Governor is concerned, it is required to be noted that as per the appointment letter of the petitioner, the petitioner was to retire on attaining the age of 58 years, i.e. 31st October, 2001, in the present case. At this stage reference is required to be made to Section 161 of the Bombay Civil Services Rules, which reads as under:
“161 (1)(a)Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV servant, is the date on which he attains the age of 58 years. Provided-
(iii) He may be retained in service after the date of compulsory retirement only with the previous sanction of Government on public grounds which must be recorded in writing.”
It is required to be noted that in case the age of enhanced superannuation is given to any particular Judicial Officer from 58 years to 60 years, such extension should be preceded by the Notification by the Government in this behalf. In absence of such Notification, services of that employee can be said to be superannuated on completion of 58 years of age, which is a normal age of superannuation. It is not possible for us therefore to accept the submission of Mrs.Mehta that it is only the Government who is required to inform the petitioner that his superannuation age is not extended, as in our view, it is not necessary to send any communication or to issue any Notification by the Government pointing out that superannuation age of the petitioner is not extended beyond 58 years. It is not a case where within the superannuation age of 58 years the petitioner has compulsorily retired by way of penalty preceded by any disciplinary action. In a service jurisprudence, a person can be compulsorily retired by way of punishment as such punishment is provided in some of the service rules. If a person has compulsorily retired on the basis of his overall performance, such compulsory retirement cannot be treated as a punishment or penalty at all.
In the case of The Registrar (Administration), High Court of Orissa, Cuttack v Sisir Kanta Satapathy (dead) by LRS. and another reported in 1999 (5) SCALE 543, the Apex Court has held that High Court retains power of disciplinary control over subordinate judiciary, including the power as to initiate disciplinary proceedings. However, the formal order to give effect to such a decision has to be passed only by the State Government on the recommendation of the High Court. Here is not a case wherein by way of disciplinary proceedings, penalty of compulsory retirement is imposed. Considering the same, the said ratio has no application to the facts of the present case. It is impossible for us to accept the submission of Mrs.Mehta for the petitioner that for extension beyond 58 years, the State Government is the only competent Authority.
In the case of Bishwanath Prasad Singh v State of Bihar and others reported in (2001) 2 Supreme Court Cases 305 it is held by the Apex Court that Judicial Officer found not entitled by High Court to the benefit of enhancement of superannuation in terms of the decision of the Apex Court in case of All India Judges' Association, would stand retired at the normal age of superannuation even in the absence of any order to that effect. In view of the same, it is clear in our view that a Judicial Officer would stand retired at the normal age of superannuation in absence of any order to that effect regarding extension. Considering the same, it is clear that the petitioner would stand retired at the age of 58 years, which is the normal age of retirement and for retiring an employee at the age of 58 years, no Notification is required to be issued by the State Government as it is automatic retirement on reaching the age of superannuation, i.e. 58 years. We accordingly negatived the submission made by Mrs.Mehta on this point and the contention in this behalf is,therefore, rejected.
So far as malafide is concerned, it is true that in the matter of appointment of Shri N.A. Acharya as President of Industrial Court, the petitioner had filed affidavit taking contrary stand than the one taken by the High Court on its administrative side. The claim of the
allegation by the petitioner either against the Unit Judge or against the Members of the Standing Committee appointed by the Chief Justice of the High Court. In fact, the said point is conceded by Mrs.Mehta for the petitioner. If this argument of Mrs.Mehta is accepted, then there is no option available for the High Court on its administrative side but to give benefit of extension of two years irrespective of his service record. It is required to be noted that Shri Acharya has no say in the matter except to handover necessary judgments of the petitioner to the Unit Judge as per the demand of the Unit Judge. The service record of the petitioner was available with the Unit Judge. The Unit Judge after considering the details and considering the service records, gave his opinion that services of the petitioner is not required to be extended. Therefore, it can never be said that Shri Acharya has played any role in this behalf. In fact he had no role to play at all nor he has given any recommendation in this behalf except providing judgments of the petitioner as demanded by the Unit Judge. We fail to understand as to how it can ever be said that simply because the petitioner had filed affidavit in a judicial matter taking contrary stand to the stand taken by the High Court on its administrative side, which has no relevance so far as decision of extension of service from 58 years to 60 years is concerned. It is not in dispute that the judgments of the petitioner were scrutinised by the Unit Judge, whose report was accepted by the Standing Committee as well as by Full House of the High Court. The Unit Judge in his report has clearly stated that he has considered service record, which reveals that vigilance inquiry was pending against the petitioner, which was dropped in view of his superannuation, as also scrutinized some of the judgments of the petitioner. Considering the same, it is not possible for us to accept the submission of Mrs.Mehta that order in question is malafide, especially when there is no allegation of malafide against the High Court or that Shri Acharya was keeping bias against the petitioner since he has not submitted relevant material to the High Court administration. The High Court on its administrative side has to consider service record, C.R.s of past years and judgments of the petitioner to find out as to whether the petitioner is suitable to the post by giving extension from 58 years to 60 years or not. We accordingly do not find any substance in allegation of malafide or that Shri Acharya is biased, especially when no allegation of malafide is made against High Court.
The crucial question, which requires consideration, is as to whether the decision taken by the High Court on its administrative side is based on irrelevant materials or it is arbitrary decision.
In this behalf, it is required to be noted that at the relevant point of time when the Unit Judge gave his report, there was a vigilance inquiry pending against the petitioner in view of complaint filed by the Trade Union. The said case was in connection with a judicial order passed by the petitioner herein. In one of the cases, an Industrial Dispute came to be decided by the Court wherein an order of reinstatement with backwages was awarded in a Reference. The challenge in the said dispute was with regard to termination of service of an employee. The Labour Court vide its order dated 27th February, 1991 had directed the Company to reinstate the workman with full backwages and continuity of service. The Company thereafter filed Miscellaneous Application No.150 of 1991 to set aside the order and restore the said Reference on record, as according to the Company it was an ex-parte award. The said Application was dismissed by the Labour Court vide its order dated 09th September, 1993. After the dismissal of the said Application, the employer Company filed another Application being Review Application No.04 of 1994 in Reference (LCA) No.359 of 1986. The said Review Application was decided by the petitioner and he dismissed the said Review Application. Thereafter the employer Company filed another Restoration application being Miscellaneous Application No.150 of 1991 for restoring the original Reference, i.e. Reference (LCA) No.359 of 1986. The petitioner, who was discharging his duty as a Labour Judge, by his order dated 07th January, 1999, allowed the said Application and restored the Reference on its file. There was a complaint on behalf of the Trade Union to the Vigilance Cell of the High Court regarding the said conduct of the petitioner. The union had also challenged the said decision by way of a writ petition being Special Civil Application No.620 of 1999. Since the matter was pending on judicial side, the vigilance inquiry was kept in abeyance. However, the service record of the petitioner was considered by the Unit Judge including his judgments and on the basis of the same, it was recommended not to extend his superannuation age from 58 years to 60 years. In view of the said aspect, vigilance inquiry against the petitioner was dropped. Considering the same, in our view, dropping of the vigilance inquiry cannot be said to be a favourable factor in his favour for extending his superannuation age to 60 years. Even the factum of pendency of earlier inquiry coupled with the judgments delivered by the petitioner were also taken into consideration for taking the decision. In our view, there is nothing wrong in considering the factum of pendency of any inquiry at the time of taking such decision. The High Court is entitled to consider as to whether the service of a Judicial Officer is required for a longer time and whether he is having potentiality and utility to serve in an efficient manner. While considering the said aspect, various aspects are required to be taken into consideration. An ideal Judicial Officer is one, who is having quality of honesty, integrity, efficiency, wisdom, sobriety, patience and knowledge of law. Honesty, integrity and efficiency are the basic qualities, which a Judicial Officer is required to be possessed and if one of such quality is lacking, administration of justice is bound to suffer. If a Judicial Officer is not efficient one or his judgments are not upto the mark, it reflects poor understanding and knowledge of law on the part of a Judicial Officer and ultimate sufferers would be the litigants, who are approaching the Court. In view of the said aspect, judicial services cannot be equated with other government services considering the nature of work, which the Judicial Officer is required to perform. Even if a Judicial Officer is having integrity and efficiency, but if quality of the judgments is not upto the mark on assessment, it may not be useful to continue such person further and an inefficient Judicial Officer, who is unable to take appropriate decision or to give proper judgment, can be equated with non-performing asset. Efficient and honest Judicial Officer is need of the day. For further retention of Judicial Officer in service after completing particular years of service is required to be reviewed accordingly by considering various aspects. Even if there is nothing wrong against the character of a Judicial Officer or he is found to be honest, that, ipso facto, is not a ground for further retention as his efficiency is also required to be taken into account. At this stage we may point out that one of the judgments delivered by the petitioner in the matter, which we have referred above, allowing the Restoration Application, copy of which is made available to Mrs.Mehta, on earlier occasion the petitioner had rejected the Review Application on the ground of delay and subsequently, in a most casual manner, he decided the second Restoration Application in the very same matter taking absolutely contrary view even about delay, which he had taken while deciding the Review Application. In order also there is no reference about rejection of Review Application. At the time of assessing his service record, the said judgment was considered by the Unit Judge. As pointed out earlier, at the said time since the order delivered by the petitioner was under judicial scrutiny in a writ petition, vigilance inquiry was kept pending. Subsequently the learned Single Judge decided the said writ petition being Special Civil Application No.620 of 1999 and by an order dated 02nd July, 2005, while allowing the writ petition, this Court has observed in paragraph 4.1 and 4.2 as under:
“4.1 It is really shocking that when the Labour Court had earlier rejected the Restoration Application on 16.12.1996 on the ground of delay, subsequently, it can not entertain another Application for restoration of the Reference on 07.01.1999. The said action of the Labour Court speaks of volume about the conduct of the concerned Presiding Officer.
4.2 It is well settled that once a review application is already rejected, second review application cannot be entertained. Moreover, in the case on hand, the Labour Court has committed serious error of law in entertaining the third application when the earlier two Applications were already rejected. By entertaining the third Application, the Labour Court has completely traveled beyond its jurisdiction. Thus, in above view of the matter, the impugned order of the Labour Court is illegal, perverse, without any jurisdiction and deserves to be quashed and set aside.”
It is required to be noted that the petitioner himself disposed of the Review Application No.04 of 1994 earlier and while entertaining the second Restoration Application, passed contrary order to his own observations in Review Application. In our view, if such judgment is considered by the Unit Judge for assessing caliber of the petitioner, no fault can be found in this behalf. However, argument of Mrs.Mehta is that even if in a given case, if a wrong judgment is given, past services of the petitioner should not be allowed to be wiped out. Here is not a case of wiping out of past services of the petitioner, but on the basis of the quality of judgments of the petitioner, High Court administration is entitled to consider the aspect about his further retention in service. In our view, it can never be said that any irrelevant material has been considered by the High Court in taking the impugned decision. This is not a case in which any malafide is attributed against the Unit Judge or against the High Court on its administrative side nor Shri Acharya has played any roll except making available service record of the petitioner and his judgments as demanded by the Unit Judge. Even the service record of the petitioner showed “good officer” and at no point of time, in his service record, he was shown as “extremely good” or “excellent” officer. Subsequently on his representation, deemed date is give qua his junior itself is not a ground for continuing him further in service. If the High Court on its administrative side had any grudge against the petitioner, then such benefit would not have been given to him. The High Court had considered the service record of the petitioner and reviewed his case and applied the same principle, which is required to be applied at the time when case of the Judicial Officer is required to be reviewed for further retention on completing particular years of service before normal age of superannuation, i.e. 58 years.
8. In view of what is stated above, this is not a case in which under Article 226 of the Constitution of India the decision of the High Court on its administrative side is required to be set aside as it can never be said that no relevant material was considered by the High Court or that there is any error in decision taking process. Subjective satisfaction arrived at by the High Court on its administrative side on the basis of service record cannot be substituted by us by exercising powers under Article 226 of the Constitution of India. It can never be said that the decision is taken on extraneous consideration or that relevant material has not been taken into consideration before taking such decision. The service record of the petitioner was objectively considered by the concerned Unit Judge. It is well settled preposition of law that compulsory retirement on the basis of assessment of the service record on attaining particular age can never be said to be a stigmatic or a penal order.
9. Considering the above, we do not find any substance in the present petition. Accordingly, the present petition is dismissed with no order as to costs. Rule is discharged.
(P.B. Majmudar, J) (Mohinder Pal, J) Anup