Ar. Lakshmanan, J. 1. Heard M/s. P.K. Suresh Kumar and M. R. Sreelatha for the petitioner and Government Pleader for the respondents.
2. The appellant, aggrieved against the judgment in O.P. No. 7958 of 1998 dated April 28, 1998, preferred the above appeal. The appellant was a member of the Kerala Judicial Service and was working as a Subordinate Judge at Kattappana. A Committee constituted and headed by the Chief Justice of the High Court of Kerala, on the basis of records of service and performance during the last five years, assessed and evaluated the potential for the continued utility of the service of the appellant and, on such evaluation, the Committee came to the opinion that the appellant does not have the potential for continued useful service. The opinion of the Committee of the Hon'ble Judges was considered by the High Court and the High Court also was not satisfied about the continued utility of the service of the appellant. Accordingly, the High Court decided to compulsorily retire the appellant on the afternoon of April 30, 1998, as the appellant was found not fit and eligible to continue in service beyond the age of 58 years. The said decision was communicated to the petitioner by Ext.P-1 proceedings dated April 15, 1998. The Original Petition was filed against Ext.P-1 order. J.B. Koshy, J., by judgment dated April 28, 1998, dismissed the Original Petition holding that Ext.P-1 was issued in accordance with Rule 13-A of the Kerala Judicial Service Rules read with Rule 60(aa) of Part I of the Kerala Services Rules. Since the order was passed in accordance with the directions of the Supreme Court and the rules, the learned Judge was of the view that there was no defect in the order passed by the High Court. This appeal is against the said judgment of the learned single Judge.
3. The appellant joined the service as a Judicial Magistrate of the II Class on November 30, 1974. He was promoted as a Judicial Magistrate of the I Class on April 10, 1980 and after the integration of Civil and Criminal Wings of the Judicial Service, the appellant was given promotion as Subordinate Judge with effect from March 7, 1994. The appellant's date of birth is April 20,1940 and, in the normal course, he could have continued in service upto April 30, 2000. But on April 21, 1998 the appellant was served with Ext.P-1 order referred to above, compulsorily retiring him from service on April 30, 1998.
4. Learned counsel for the appellant challenges Ext. P-1 order on the following grounds :
(A) Ext.P-1 order, which cast a stigma on the appellant, is punitive in nature and, therefore, unsustainable.
(B) Ext.P-1 order is passed in violation of the principles of natural justice. Citing the decisions of the Supreme Court of India, the appellant submitted that the scope and ambit of exercise of the power to compulsorily retire an officer is always subject to constitutional limitations and that the rules do not confer any unfettered power to order compulsory retirement even without complying with the principles of natural justice. This aspect was not considered by the learned single Judge. Therefore, Ext.P-1 order passed without any notice to the appellant, it is contended, is bad and unconstitutional.
(C) No Court has held that in the matter of compulsory retirement, principles of natural justice need not be complied with. In the process of assessment of the performance of the officer, which preceded the order of compulsory retirement, the officer is bound to be heard when there are materials adverse to him. Unless there are materials adverse to him, no authority can come to the conclusion that an officer is unfit to continue in service. Therefore, the officer is entitled to be heard prior to the formation of an opinion based on materials adverse to him.
(D) The impugned order does not reveal as to what are the materials upon which the order of compulsory retirement is made.
The materials that were prejudicial to the appellant ought to have been disclosed to him and the appellant should have been given an opportunity to represent against such material as has been held by the Supreme Court.
(E) Ext.P-1 order, in so far as it proclaims that the petitioner does not have potential for continued useful service and that he is not eligible to continue in service, is punitive in nature, and casts a stigma on the petitioner. A stigmatic order can be passed only after complying with the provisions contained in Article 311 of the Constitution of India, and therefore, Ext.P-1 order issued without complying with the provisions contained in Article 311(2) of the Constitution is unconstitutional and void.
(F) When an order of compulsory retirement contaias a statement casting aspersion on the officer's conduct, character, work etc. it becomes punitive in nature and attracts Article 311 of the Constitution. The remarks in Ext.P-1 are prejudicial to the petitioner/appellant herein and they cast a stigma on him. So the compulsory retirement ordered as per Ext.P-1 order is not an innocuous one, but is punitive in nature and amounts to removal from service as contemplated by Article 311 of the Constitution of India.
(G) The absence of an enquiry as contemplated by Article 311 prior to the passing of Ext.P-1 order makes the said order void.
(H) According to the appellant, a reading of the judgment of the Supreme Court rendered in All India Judges' Association case would show that a detailed enquiry is contemplated prior to the passing of an order of compulsory retirement. Such an enquiry has not been conducted in the instant case.
(I) The Supreme Court of India, in the decision in All India Judges Association v. Union of India (1993-II-LLJ-776) has specifically held that the procedure for compulsory retirement as provided under the local laws shall be followed. The local law applicable in the instant case is Kerala Civil Services (C.C.& A.) Rules which prescribes a procedure for compulsory retirement. As the procedure prescribed by those rules are not complied with, Ext.P-1 order is illegal.
(J) As per the judgment of the Supreme Court the assessment of an officer's utility shall be completed before he attains the age of 58 years. The appellant, it is submitted, attained the age of 58 years in the eye of law on April 20, 1997 and completed 58 years on April 20, 1998 and, therefore, the assessment ought to have been completed prior to April 20, 1997. As this mandatory direction of the Supreme Court is not complied with, Ext. P-1 cannot be sustained.
The above are the legal contentions raised in a nut shell, and argued at the time of hearing.
5. Before adverting to the arguments of counsel, it is but proper that we recapitulate the circumstances leading to the judgment of the Supreme Court relating to the increased age of superannuation and the scope of the order of the screening committee. We would like to straight away point out that the impugned order is not based on any rule or regulation, but is solely based on the judgment of the Supreme Court.
6. The All India Judges' Association moved the Apex Court for directions regarding the setting up of an All India Judicial Service and for bringing about uniform conditions of service for the members of the subordinate judiciary throughout the country. At the time of hearing of the case, several demands were pressed and reliefs under the following heads were claimed:
1. Uniformity in the judicial cadres in the different States and Union Territories;
2. An appropriate enhanced uniform age of retirement for the Judicial Officers throughout the country;
3. Uniform pay scales as far as possible to be fixed;
4. Residential accommodation to be provided to every Judicial Officer;
5. Transport facility to be made available and conveyance allowance provided;
6. Adequate perks by way of Library Allowance, Residential Office Allowance and Sumptuary Allowance to be provided.
7. Provision for in-service training to be made.
7. One of the issues debated at the time of hearing related to the age of retirement. Though the Constitution has fixed the age of retirement of Judges in the High Courts and the Supreme Court at 62 and 65 years respectively, there is no constitutional prescription of the age of retirement of the members of the subordinate Judiciary and in India that is controlled by the relevant rules obtaining in the different States and Union Territories and it is 58 years at present excepting in the State of Kerala, where the age of superannuation is 55 years for all State Government employees including the members of the State Judicial Service. The claim of the petitioners before the Supreme Court was that the age of retirement of the officers of the subordinate Judiciary should be fixed at 60 years inasmuch as the basic qualification for recruitment to the service requires every officer to have in the minimum a Bachelor's degree in law which is acquirable after becoming a graduate. Mr. Poti for the State of Kerala, raised serious objections to the raising of the age of retirement of Judicial Officers to a common level of 58 years by contending that this would lead to unrest in the other services of the State and everyone would press for the age of retirement being enhanced to 58. The main ground raised by Mr. Poti to resist the proposal for enhancement of the age of retirement was that in the State of Kerala the level of literacy is high and unemployment is acute. If the age of retirement is enhanced, the scope of the unemployed to get employment would be adversely affected. The Supreme Court stated that they were not impressed by the submission of Mr. Poti on that score. Considering the enhancement of the longevity of human life and taking all other relevant considerations into account, all the States and all the Union Territories have enhanced the age of retirement to 58 years except in the case of the State of Kerala. The Supreme Court was of the view that on the logic adopted by the Law Commission and for the reasons which they had indicated the age of retirement of Judicial Officers should be 60 years. They accordingly directed that appropriate alternations should be made in the Rules obtaining in the States and Union Territories in respect of judicial service so as to fix the age of retirement at 60 years with effect from December 31, 1992.
8. The Union of India and various State Governments raised general objections to the judgment of the Apex Court dated November 13, 1991 (reported in 1992 (1) SCC 119. The judgment in the review applications was rendered by the Supreme Court on August 24, 1993 which is reported in All India Judges Association v. Union of India (supra).
The Judgment in the review petitions was rendered by the Supreme Court on August 24, 1993 reported in All India Judges' Assocn.. v. Union of India (supra). Insofar as it relates to the age of superannuation, the general objection raised which is common in all the petitions is that the question of uniformity in service conditions is a question of policy pertaining to the respective State Governments which alone are competent to decide on the said issue and such decisions on the issue have various implications and ramifications which have to be determined by the respective State Governments by taking into account its financial limitations. The directions given by the Supreme Court involved a very heavy financial outlay and the State Governments with varying degrees of resources cannot implement the directions without considering and taking into account their own financial resources. Hence, it was not possible to bring about uniformity in service conditions as envisaged in the directions given by the Supreme Court. It is further submitted that in terms of Article 309 of the Constitution, matters concerning appointment, promotion, terms of conditions of service of the subordinate Judiciary are to be decided by the State Government/Union Territory Administration subject to such laws as may be passed by the Legislature/Parliament. The implementation of the directions given by the Supreme Court is likely to result in an impingement on the constitutional functions and powers of the executive and the legislature.
9. To the directions for increasing the retirement age upto 60 years, the objection is that the late entry in the service is not peculiar to judicial service. There are a number of services like Medical, Engineering, Teaching where entry into Government service is made at a late stage and hence any deviation on the ground of late entry may have implications for other services also. It is contended that in the services where entry is at a late stage, the interest of the Government servants is protected by allowing a specified number of years to be added to the qualifying service for the purpose of determining the pension. It is also contended that the Judiciary alone is not doing the sedentary work and there are other services like Central Secretariat Service which also perform the sedentary work and, therefore, the sedentary nature of work may not be a valid consideration for laying down a longer retirement age. The operative portion of the judgment in the review applications, insofar as it relates to the age of superannuation, is as follows:
"The benefit of the increase of the retirement age to 60 years, shall not be available automatically to all Judicial Officers irrespective of their past record 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 service. 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 of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the Judicial Officer's past record of service, character rolls, quality of judgments and other relevant matters."
10. A direction was given to the High Courts to undertake and complete the exercise in gases of officers 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 Officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 years by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years and that the assessment is for the purpose of finding out the suitability of the concerned officer for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to he undertaken for compulsory retirement and the compulsory retirement at the earlier stage under the respective service rules.
11. We have quoted the operative portion in extenso because that would indicate the scope of the recommendation of the screening committee as approved by the Full Court in this case. The case of any officer, in our opinion, should be coasidered only under the above limited scope and direction contained in the two judgments of the Supreme Court quoted above. It may not be proper to import notions of compulsory retirement because the Apex Court has pointed out in the second case that there had been a failure on the part of the State Government to realise the distinction between the judicial service and the other services. The Supreme Court has observed that the Judges are not employees and it has placed the Judiciary on a higher pedestal. To quote, the Apex Court observes in the second judgment:
"The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally."
Again, speaking of the necessity to improve the service conditions of the Judges, the Apex Court observed:
"Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the Judiciary, and no price is too heavy to secure it. To keep the Judges in want of the essential requirements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself."
Having thus stressed the importance of the Judiciary and to infuse public confidence in the Judiciary, the Supreme Court found it necessary to impose conditions before granting the benefit of enhancement of superannuation age. The various observations of the Supreme Court in the second judgment lead us to the conclusion that a Judge at whatever level he functions, is discharging a divine duty or a duty dictated by his own conscience. If he does not realise this position, in our opinion, he is unfit to hold the post. It is with the above considerations in mind that the Apex Court has, in the second judgment, prescribed the parameters within which a subordinate Judicial Officer will be entitled to the increased age of superannuation from 58 to 60 years. The relevant passage has already been extracted above. A further observation made by the Supreme Court is that those who are not found fit and eligible by the above standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 years by following the said procedure for compulsory retirement. The above sentence clearly suggests that the benefit of higher retirement age should be given only if the standards prescribed by the Supreme Court are satisfied. The question of compulsorily retiring the incumbent at the age of 58 years should be resorted by following the procedure for compulsory retirement. In other words, till rules are framed by the respective State Governments, this exercise is not one of compulsory retirement, but giving the benefit of enhanced retirement age as per the scheme of the Supreme Court, This is made very clear by the Apex Court itself in the following sentence:
"It is an addition to the assessment to be undertaken for compulsory retirement and the compulsory retirement at the earlier stage(s) under the respective Service Rules."
Thus, the exercise undertaken by the High Court for giving the benefit of enhanced retirement age is a peculiar action taken under the direction of the Supreme Court and not under any statutory rule. This will be so till the respective State Governments framed rules adopting the enhanced retirement age and providing for compulsory retirement at the earlier stages.
12. From the directions of the Supreme Court it may be seen that for assessing and evaluating the potential for continued utility of an officer, his past record of service, his character roll, his quality of judgment and other relevant matters, if any, are to be considered by a Committee of Judges headed by the Chief Justice. On such evaluation and assessment, if it is found that an officer is indolent, infirm or of doubtful integrity, reputation and utility, he is liable to be compulsorily retired at the age of 58 years, following the procedures for compulsory retirement. There was no provision in the Kerala State Higher Judicial Service Rules or in the Kerala Judicial Service Rules governing the procedure to be followed in the matter of compulsory retirement. After the above decision of the Supreme Court, the High Court of Kerala had, as approved by the Full Court, forwarded a draft amendment to the Government proposing to amend Rule 60, Part I of the Kerala Service Rules, The Government, by notification G.O.(P) No. 457/95/Fin. dt. July 28, 1995, has incorporated the amendment by inserting Clause (aa) to Rule 60, Part I of the Kerala Service Rules as follows:
"Rule 60 (aa)-An Officer in the Kerala Judicial Service or the Kerala State Higher Judicial Service shall ordinarily retire when he attains the age of 60 years; but he shall have the option to retire when he attains the age of 58 years. His continuance in service beyond the age of 58 years shall however be subject to review by the High Court as per the provisions of the Kerala Judicial Service Rules and the Keraia State Higher Judicial Service Rules."
For effective implementation of the screening envisaged in the judgment of the Supreme Court, amendment of the Kerala Judicial Service Rules was also suggested by the High Court. Rule 13A was inserted in the Kerala Judicial Service Rules, which runs as follows:
"13A. Special provision regarding retirement : Without prejudice to the generality of the provisions contained in the Kerala Service Rules, if the High Court on an assessment and evaluation of the records of an officer borne in this service, is not satisfied about the continued utility of the services of that officer and is of the view that such officer is not fit and eligible to continue in service beyond the age of 58 years, such officer may be compulsorily retired on the afternoon of the month in which he attains the age of 58 years, or the last day of any later month when such opinion is formed, in accordance with the procedure for compulsory retirement as provided in Rule 60(aa) of Part I Kerala Service Rules."
The explanatory note is also reproduced for the sake of convenience.
"Explanatory Note :
(This does not form part of the notification, but is intended to indicate its general purport.) In its judgment dated August 24, 1993 in Review Petition No. 249/1992 in Writ Petition No. 1022/1989 the Hon'ble Supreme Court issued directions to the various State Governments in the Country for the betterment of service conditions of Subordinate Judicial Officers. One of the directions relates to the enhancement of retirement age of Subordinate Judicial Officers to 60, subject of a screening based on their suitability for continued service beyond the age of 58 years.
This screening is to be made by the concerned High Courts before the Officers attain the age of 58 years. Accordingly, the High Court of Kerala has formulated guidelines for assessing the suitability of the Officers and recommended the Government to effect necessary amendments in the Kerala State Higher Judicial Service Rules, 1991.
Government have accepted the recommendations of the High Court and hence the notification."
13. It is the contention of the learned counsel for the appellant that Ext. P-1 order passed without notice to the appellant is bad and unconstitutional and that principles of natural justice have been violated in the case of the appellant. He would further submit that the officer is entitled to be heard prior to the formation of the opinion based on materials adverse to him, since Ext.P-1 order is punitive in nature as it proclaims that the appellant does not have the potential for continued useful service and that he is not fit and eligible to continue in service. According to the appellant, since order casts a stigma on the appellant, the same can be passed only after complying with the provisions contained in Article 311 of the Constitution of India. Ext.P-1 order passed without complying with Article 311(2) of the Constitution, it is submitted , is unconstitutional and void. It is also the contention of the learned counsel for the appellant that the decision of the Madras High Court referred to by the learned single Judge, according to the appellant does not deal with the point raised by the appellant and hence, has no relevance in the present context. He would further submit, citing the decision of the Supreme Court in All India Judges' Association v. Union of India (supra) that the observation made by the Supreme Court in that case that the procedure for compulsory retirement as provided in the local laws shall be followed and since the Kerala Civil Services (Classification, Control and Appeal) Rules, which prescribes the procedure for compulsory retirement, not having been complied with, the order Ext.P-1 is illegal.
14. The decision reported in Mohandas's case 1996 writ L.R. 299 is based only on the judgment of the Supreme Court in All India Judges' Association case reported in (1993-I-LLJ-723). It cannot have application in a State where statutory rules have been framed as suggested by the Supreme Court in the All India Judges' Association case. Even if the statutory rules apply to a Judicial Officer, it is doubtful whether the High Court can interfere in the instant case because of a long line of cases holding that an order of compulsory retirement will not attract Article 311 of the Constitution of India. In fact in Mohandas's case, (supra) reference has been made to the judgment of the Supreme Court in Ramachandra Raju v. State of Orissa (1995-I-LLJ-1083). In the said Judgment certain principles and guidelines have been set out in paragraph 9 of the judgment which reads as follows:
"9. It is thus settled law that though the order of the compulsory retirement is not a punishment and the government employee is entitled to draw all retiral benefits including pension, the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action 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. The entire service record or character rolls or confidential reports maintained would furnish the back drop material for consideration by the Government or the Review Committee of the appropriate authority. On consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the government officer needs to be compulsorily retired from service. Therefore, the entire service record more particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government Officer. When an officer reaching the age of compulsory retirement, as was pointed out by this Court, he could neither seek alternative appointment nor meet the family burdens with the pension or other benefits he gets and thereby he would be subjected to great hardship and family would be greatly affected. Therefore before exercising the power, the competent appropriate authority must weigh pros and cons and balance the public interest as against the individual interest. On total evolution of the entire record of service if the government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the Court may not interfere with the exercise of such bona fide exercise of power but the Court has power and duty to exercise the power of judicial review not as a Court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service."
The principles set out has recognised that an order of compulsory retirement is based on the subjective satisfaction of the appointing authority and that the principles of natural justice can come into play only to a limited extent.
15. The Supreme Court, in the decision reported in Dalip Singh v. State of Punjab AIR 1960 SC 1305 (five Judges Bench) has laid down two Tests to be applied for ascertaining whether termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Article 311 of the Constitution. The first test is whether the action is by way of punishment and to find that out, it is necessary that the charge or imputation against the officer is made the condition of the exercise of the power. The second test is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal. In the above case the appellant Dalip Singh was made to retire from service as Inspector General of Police for administrative reasons with effect from a particular date by His Highness the Raj Pramukh. He requested the Government to let him know the grounds which had impeded the Government to take this decision about his removal. Ultimately the Government mentioned the charges against him on the basis of which the Government had decided to retire him on administrative grounds. The appellant brought a suit in the Court of the District Judge, Patiala against the State of Pepsu seeking a declaration that the removal from the post of Inspector General of Police is illegal, void, ultra vires, etc. The main plea on which the suit was based was that the order amounted to his removal from service within the meaning of Article 311(2) of the Constitution of India and the provisions of that Article not having been complied with, the termination of his service was void and inoperative in law. The respondent State contended that the appellant had been retired from service and had not been removed from service and so Article 311 of the Constitution had no application. On this question the trial Court came to the conclusion that the order of compulsory retirement amounted to removal from service within the meaning of Article 311 of the Constitution and therefore held that the termination of service effected by that order was void in law. The Court accordingly decreed the suit in favour of the appellant. On appeal by the State, the High Court, disagreeing with the trial Court, held that the order of compulsory retirement did not amount to removal from service within the meaning of Article 311 of the Constitution of India and accordingly allowed the appeal and dismissed the suit. The main contention of the appellant before the Supreme Court was that the order of retirement did amount to removal from service within the meaning of Article 311 of the Constitution. It was also contended that Rule 278 of the Patiala State Regulations under which the Government apparently made the order of compulsory retirement was no longer operative. The Supreme Court rejected the contention of the learned counsel that Rule 278 of the above rules was not applicable to the case of the appellant as totally without any foundation. As regards the main contention in the case, viz. that compulsory retirement of the appellant under Rule 278 of the Patiala State Regulations was removal from service within the meaning of Article 311 of the Constitution, the Supreme Court, after referring to the decision in Shyamlal v. State of U.P. (1954-II-LLJ-139) and State of Bombay v. Saubhagchand M. Doshi (S) AIR 1957 SC 892 came to the conclusion that in the case before them the order of the Raj Pramukh does not purport to be passed on any charge of misconduct or inefficiency. All that the order stated was that the compulsory retirement was for administrative reasons. Therefore, there was no basis for saying that the order contained any imputation or charge against the officer. Applying the other test, namely whether the officer had lost any benefit he had earned, the Supreme Court found that the officer has been allowed full pension and therefore there was no question of his having lost any benefit earned. The Supreme Court was, therefore, of the opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract Article 311 of the Constitution and that the suit was rightly dismissed.
16. In Posts & Telegraph Board v. C.S.N. Murthy (1993-II-LLJ- 866)(SC) (three Judges Bench) an Assistant Engineer in the Telecommunication Training Centre at Hyderabad was normally due to retire from service in 1980. However, the provisions of Rule 56(j) of the Fundamental Rules were invoked in his case. The High Power Committee reviewed the service records and recommended on an overall assessment of the confidential records that there was no justification for continuing him in service. Accepting the recommendation of the Committee the Posts and Telegraphs Board issued a notice on October 19, 1973 giving him notice of compulsory retirement under Fundamental Rule 56(j) with effect from the expiry of three months from the date of service of the notice on him. Consequent thereon, his service came to an end by way of compulsory retirement in February, 1974. The respondent before the Supreme Court filed a writ petition in the Andhra Pradesh High Court challenging the validity of the order of compulsory retirement, but was unsuccessful. The appeal preferred by him to a Division Bench was allowed. The Bench came to the conclusion that the impugned order of retirement was not founded on any relevant material and was arbitrary and capricious. The impugned order was, therefore, quashed and the respondent was directed to he reinstated forthwith with all the benefits that could have accrued to him had the order not been implemented against him. The Union of India preferred the appeal to the Supreme Court. The Supreme Court, after referring to all the earlier judgments and particularly the decision reported in Baikuntha Nath Das v. Chief District Medical Officer, Baripada (1992-I-LLJ-784) wherein the Supreme Court had set out certain principles, extracted those principles, which is reproduced here for convenient reference.
"32. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implied no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) Mala fide or (b) that it is based on no evidence, or (c) that it is arbitrary, in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during later years. The record to be so considered would naturally include the entries in the confidential records/ character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on showing that, while passing it uncommunciated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
The Supreme Court, on a consideration of the entire matter, observed in paragraph 5 as follows:
"An order of compulsory retirement is not an order of punishment. Fundamental Rule 56 (j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The Courts wi!l not interfere with the exercise of that power, if arrived at bona fide and on the basis of material available on the record. Where there was material which showed that the efficiency of the employee was slackening in the last two years of the period under review, the conclusion of the department that compulsory retirement was warranted cannot be faulted as being mala fide, perverse, arbitrary or unreasonable. In this connection, it could not be said that since the adverse remarks mentioned in the letter relating to earlier year were not repeated in the letter relating to the subsequent year it should he taken that they had been given upon subsequently or that the employee had improved in the subsequent year. That was not legitimate inference when the report for the subsequent year only showed that the employee's propensity to delay matters persisted despite the warning of the previous year. Moreover, even if it was assumed that the contrary view was warranted, the adverse remarks made against the employee in relation to the subsequent year standing by themselves, could constitute sufficient material for the department to come to the conclusion in the matter."
17. In our opinion, the legal principles laid down in Baikuntha Nath Das's case (supra), followed by the Supreme Court in Posts and Telegraph Board's case squarely apply to the facts and circumstances of the case on hand. In the instant case the compulsory retirement was ordered by the High Court Committee after assessing and evaluating the past record of the Judicial Officer concerned for his continued utility. The Committee found that the appellant is not fit and eligible to continue in service. Therefore, he was compulsorily retired on his attaining the age of 58 years. The Court also found that the appellant is not entitled to the benefit of higher retirement age since he has not satisfied the standard prescribed by the Apex Court and, therefore, his services were not extended beyond the age of 58 years. The screening Committee has also found that the reputation of the officer is also not good. In the present case, looking to the findings arrived by the reviewing committee after a detailed examination of the service records of the appellant, the order of compulsory retirement cannot be faulted on any ground. The High Court cannot examine for itself the service records of any employee and substitute its own judgment for the judgment of the reviewing committee. The Committee has properly exercised the power on relevant consideration in public interest. The order, in our opinion, cannot be termed as either arbitrary or mala fide. The screening Committee was only acting in accordance with the guidelines framed by the Apex Court. The order, in our opinion, is perfectly within the frame work of the rule relating to compulsory retirement and the principles enunciated by the Supreme Court of India. In our opinion the High Court rightly considered all the aspects of the case with reference to the judgments of the Supreme Court and have candidly disclosed the same in the order. Counsel for the appellant attacked the order as amounting to punishment, and claimed the protection of Article 311(2) of the Constitution. In our opinion, that was not the intention of the Supreme Court when they laid down the principles and it is only under the mandate of the Supreme Court that the High Court is called upon to decide whether the officer is of doubtful integrity or of good reputation. Because the High Court has rendered a finding on the issue, it will not amount to stigma, and therefore, the argument that the procedure prescribed for imposing punishment should be followed is, in our opinion, totally fallacious and would render the scheme of the Supreme Court unworkable. As pointed out by the Supreme Court in the decision in Baikuntha Nath Das case (supra) the order has been passed by the High Court on forming the opinion that it is in public interest to retire the Government servant compulsorily. The order is based on the subjective satisfaction of the High Court. Therefore, as pointed out by the Supreme Court, in the abovejudgment, the principles of natural justice have no place in the context of an order of compulsory retirement. It is not the case of the appellant that the order is malafide, or it is based on no evidence. As pointed out by the Supreme Court, Courts can examine the matter and interfere if they are satisfied that the order is passed mala fide and it is based on no evidence and is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material. We will refer to the material relied on by the Committee in the latter part of this judgment. In the instant case, the High Court Committee has considered the entire record of service before taking a decision in the matter.
The High Court has considered the entries in the confidential record, character rolls, etc. both favourable and adverse. As pointed out by the Supreme Court, an order of compulsory retirement is not liable to be quashed merely on showing that while passing it uncommunicated adverse remarks were also taken into consideration and such a circumstance by itself cannot be the basis for interference. In the instant case adverse remarks have been communicated to the appellant then and there.
18. The principles laid down by the Supreme Court in the decision in Dalip Singh 's case (supra) is also squarely applicable to the facts of this case. The order of compulsory retirement did not amount to removal from service within the meaning of Article 311 of the Constitution. Such a contention was rejected by the Supreme Court in the above two cases. In the instant case the order of compulsory retirement was not based on any charge of misconduct or inefficiency. The order of compulsory retirement was made only on the basis of the guidelines evolved by the Supreme Court in All India Judges' Association case. This apart, the officer concerned has not lost any benefit he has earned. He would be entitled to all the retiral benefits which he has already earned and would also be entitled to pension and other allowances. Therefore, there is no question of his having lost any benefit earned. The retirement is only on payment of pension in accordance with the rules. Therefore, we hold that the order of compulsory retirement is clearly not by way of punishment.
19. A Full Bench of the Patna High Court in Syed lqbalAli v. State of Bihar 1994 LAB.I.C. 2202 (FB) has observed as follows:
"A perusal of the review judgment of the Supreme Court leaves no room for doubt that a Judicial Officer can continue beyond 58 years upon his being found fit by the High Court. Once the High Court decides after assessment and evaluation of his record of service etc. that he is not to be continued beyond the age of 58 years, the decision becomes effective from the date he attains the said age, no matter whether the actual formal order is issued later in point of time. To this extent and in this sense the compulsory retirement of a Judicial Officer, as envisaged in the review judgment, is different from the concept of compulsory retirement simpliciter under the Service Rules. Thus, while compulsory retirement simpliciter of a Judicial Officer 'will take effect after the order is passed by the Governor,' the decision to compulsorily retire a Judicial Officer in terms of the review judgment will be effective from the date he attains the age of 58 years, which is the normal age of superannuation, under the Rules. Any other interpretation will make the judgment, as regards superannuation age meaningless and superfluous. Therefore, even if some time may elapse before a formal order is issued by the Governor and in the meantime the officer crosses the age of 58 years it would not mean that he will continue in service beyond the said age merely because formal order was not issued by the Governor. Opinion or recommendation of the High Court in respect of discipline and control over judicial officers is binding on the Governor."
The above observation of the Full Bench is in consonance with our view regarding the scope of the scheme framed by the Supreme Court.
20. G. Nageswara Rao v. State of A.P. 1994 II LLN 1148 is the next judgment to be considered by us arising under the scheme of the Supreme Court. In that case, a District Munsiff who was compulsorily retired on completion of 58 years of age on various allegations, has sought to quash the proceedings of the High Court of Andhra Pradesh. The second respondent before the Court filed a counter affidavit and has stated that the High Court, at the time of review, considered the past record of the petitioner for the entire 17 years as Judicial Officer and other relevant factors and as the petitioner was found to be wanting in requisite potential for continued useful service beyond 58 years of age, he was directed to retire on completion of 58 years of age. The High Court held as follows:
"What is to be considered in such matters is the examination of the overall entries of the officer concerned and not an entry here and there. It may well be in some cases that in spite of satisfactory performance, still the authority may decide to compulsorily retire him in public interest, as in the opinion of the said authority, the post has to be manned by more efficient and dynamic person. There is no denying of fact that in all organisations there is great deal of dead wood, and more so, in Government departments, which has to be replaced in public interest. Therefore, it is purely a matter of subjective satisfaction of the Government or the reviewing committee, as the case may be. As long as the order of compulsory retirement is passed without casting any aspersion or attaching stigma to the officer concerned, there cannot be any justification for interference by the Court. Every termination of service of a public servant would not amount to dismissal or removal, but only such termination arrived at or imposed by way of punishment is in contravention of the protection afforded under Article 311 of the Constitution."
21. The Supreme Court has in Baikuntha Nath Das v. Chief District Medical Officer, Baripada (supra) examined the nature of effect of an order of compulsory retirement. Jeevan Reddy, J., speaking for the Bench, laid down that the order of compulsory retirement is not a punishment, it implies no stigma, nor any suggestion for misbehaviour and that the order is passed on subjective satisfaction of the Government. The learned Judge also stated that principles of natural justice have no place in the context of an order of compulsory retirement and the High Court or the Supreme Court would examine the matter and interfere if they are satisfied that the order is passed:
(a) malafide; or
(b) that it is based on no evidence; or
(c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, in short if it is found to be a perverse order.
It is also further held that an order of compulsory retirement is not liable to he quashed merely because uncommunicated adverse remarks were also taken into consideration.
22. The above judgment throws ample light and guidance in dealing with matters of this nature as the judgment was rendered on an overall review of previous judgments of the Supreme Court in this regard.
23. Considering the earlier case law on the subject, the Supreme Court, in State of Uttar Pradesh v. Shyam Lal AIR 1971 SC 2i51 has observed as follows:
"Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one of dismissal or removal in the nature of penalty or punishment. In the present case, the order of compulsory retirement does not suffer from any such vice."
24. State of Haryana v. Inder Prakash AIR 1976 SC 1841 is another important decision to be beneficially looked into in regard to the compulsory retirement. In that case the respondent joined the Punjab Civil Service in November 1954 and was selected for the judicial branch in 1965 and in 1968 he was promoted as Officiating Additional District and Sessions Judge. He was due to attain the age of 55 years on February 24, 1971. His case was referred to the High Court for their recommendation whether the respondent should retire at the age of 55 years or he should be retained in service till the age of 58 years, which is the prescribed age of superannuation under the Punjab Civil Services Rules. The High Court was of the opinion that the work of the respondent as Additional District and Sessions Judge was not satisfactory and, therefore, was not inclined to recommend the respondent's continuance in superior judicial service upto the age of 58 years. The High Court recommended that the respondent should be reverted to the substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and that he might be allowed to continue in service till the age of 58 years. The State Government did not agree with the recommendation for reverting the respondent from the post of Additional District and Sessions Judge to Senior Subordinate Judge. With regard to the retention of the respondent in service upto the age of 58 years, the State again asked the High Court to consider whether in view of the respondent's work as Additional District and Sessions Judge having been found to be unsatisfactory, the respondent should be retained at all in service beyond the age of 55 years. The State Government suggested that it was in public interest to retire the respondent at the age of 55 years. The High Court did not agree with the suggestion. The High Court reiterated that the respondent may continue in service upto the age of 58 years. The State Government did not agree with the recommendation of the High Court and decided to retire the respondent under Rule 5.32 (c) of the Punjab Civil Services Rules. A notice was issued to the respondent on August 20, 1971 giving him notice of three months on the expiry of which he would retire from service. Respondent filed a writ petition in the High Court which was heard by a Bench of Three Judges. The order retiring the respondent from service was quashed by the majority opinion. The question before the Supreme Court was whether the State Government could compulsorily retire a Senior Subordinate Judge under Rule 5.32(c) of the Punjab Civil Services Rules against the recommendation of the High Court. The Supreme Court, after referring to the decisions in Shyam Lal v. State of Uttar Pradesh (supra), Dalip Singh v. State of Punjab (supra) and Tara Singh v. State of Rajaxthan AIR 1975 SC 1487, held that compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 of the Constitution or under the Service Rules. It is, in fact compulsory retirement in accordance with the terms and conditions of service. The Supreme Court has further observed in paragraph 18 as follows:
"The control vested in the High Court is that if the High Court is of opinion that a particular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases, it is the contemplation in the Constitution that the Governor as the head of the State will set in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. The Government will act on the recommendation of the High Court. That is the broad basis of Article 235."
The Supreme Court affirmed the order of the High Court and dismissed the appeal filed by the State.
25. E.V. Naidu v. Union of India AIR 1973 SC 698: In that case, the appellant attained the age of 55 on the corresponding date in 1965. He hoped to continue in the service of the respondent-Union of India until attaining the age of 58. But, in July 1965, while he was holding the post of Assistant Inspecting Commissioner of Income Tax, he received a notice compulsorily retiring him from service with effect from October 21, 1965. He filed a Writ Petition challenging that order, but failed. The appellant based his challenge to the order of compulsory retirement on two grounds in the High Court. One of them being that the Office Memorandum and the Sixth Amendment to Fundamental Rules were void as being violative of the guarantee contained in Article 311(2) of the Constitution. The High Court rejected the said contention. Before the Supreme Court, the appellant urged that the notice retiring the appellant compulsorily is invalid as the Office Memorandum on the strength of which it was issued did not have the force of a rule made under Article 309 of the Constitution. It is then contended that as the appellant was lawfully in service when the amended Fundamental Rules came into force, he would be governed by these rules and so he could not be asked to retire by a notice founded on the provisions of the Office Memorandum. In support of his argument, he relied on State of Punjab v. Amar Singh Harika (1966-II-LLJ-188)(SC) in which it was held that mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. The Supreme Court held that the above decision has no bearing because there the question was not one of initial validity of the order but of the time from which it would take effect. It was also contended that the order of compulsory retirement is bad because it does not purport to have been issued in public interest. The Supreme Court held that the appellant's service having been validly determined by a notice which was issued prior to the date when the amended rules came into force it was not necessary for the authority to satisfy itself that it was in public interest to retire the appellant compulsorily. Finally, the appellant contended that he should have been heard before the order of compulsory retirement was passed. The Supreme Court rejected the said contention in view of the decision in Union of India v. Col, J.N. Sinha (1970-II-LLJ- 284)(SC) wherein it was held that compulsory retirement does not involve civil consequences and, therefore, it is not necessary to afford to a government servant an opportunity to show cause against his compulsory retirement.
26. In Union of India v. J.N. Sinha (supra), the Supreme Court held that a show cause notice against compulsory retirement is not required. The Court held thus at pp. 287-288:
"Where an appropriate authority bonafide forms opinion that a government servant be retired in public interest, he can pass order of compulsory retirement. That opinion cannot be challenged before Courts. Nor F.R.56 (j) requires that the opportunity to show cause against compulsory retirement must be given. Order of compulsory retirement can be challenged only on ground that either the requisite opinion was not formed or that the order was passed arbitrarily or on collateral grounds. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Compulsory retirement involves no civil consequences. F.R.56 (j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution."
27. In Chief G.M., State Bank of India v. Suresh Chandra Behera (1995-II-LLJ-852), the Supreme Court held as follows at p 853 :
"In the present case, looking to the findings arrived at the Reviewing Committee after a detailed examination of the service record of the respondent, the order of compulsory retirement cannot be faulted on any ground. The High Court cannot examine for itself the service record of any employee and substitute its own judgment for the judgment of the Reviewing Committee. The power under the third proviso of para 19 (1) has been properly exercised in this case on relevant considerations in public interest. The order cannot be termed as either arbitrary or mala fide."
28. In Allahabad Bank Officers' Assn. v. Allahabad Bank (1996-II- LLJ-519), the Supreme Court has again reiterated the earlier principles laid down in other rulings and held thus atpp 521-522 :
"The power to compulsorily retire a government servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the services and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration. Generally speaking. Service Rules provide for compulsory retirement of a government servant on his completing certain number of years of service or attaining the prescribed age. His service record is reviewed at that stage and a decision is taken whether he should be compulsorily retired or continued further in service. There is no levelling of a charge or imputation requiring an explanation from the government servant. While misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held- and there is" no duty to hold an enquiry-is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal they form the very basis on which the order is made. A government servant who is compulsorily retired does not lose any part of the benefit that he has earned during service. Thus, compulsory retirement differs both from dismissal and removal as it involves no penal consequences. Therefore, compulsory retirement is not considered prima facie and per se a punishment and does not attract the provisions of Article 311."
29. Therefore, the preponderance of judicial pronouncements clearly point out that unless there is right to the post, the action cannot be challenged. We have no hesitation in holding that the appellant does not have the right to hold the post beyond the age of 58 years and his right to continue upto 60 years is hedged in certain conditions. Unless those conditions are satisfied, he is not entitled to seek the benefit. In pursuance of the directions of the Supreme Court, the Committee has assessed and evaluated the potential of the officer for his continued utility. It is not open to this Court to interfere with the said decision and in the circumstances it cannot be said that the right of the appellant to continue till 60 years is scuttled. In view of the discussion of the above case law and the judicial dicta, what emerges is that the finding of the review committee that the appellant does not possess the requisite potential for continued useful service beyond 58 years of age is a finding recorded for purposes of giving the benefit of extended superannuation or not and it does not ipso facto amount to punishment. It is a case of giving the benefit of extended period of service under the terms of the Supreme Court judgment alone and, therefore, no question of stigma arises if under those grounds, no benefit is given. Even on merits, it cannot be said that the decision of the Committee of the High Court is based on no materials to come to the said conclusion. The Committee has looked into the entire service records and other relevant documents. We have also perused the entire service records of the appellant.
30. A perusal of his service records will show that there are several adverse entries in the confidential report of the appellant as follows:-
Period pertaining to adverse entry Remarks made by Adverse remarks 1 2 3 30.11.1974 to 31.12.1975 J.M.S.C., Alathur District Judge, Palakkad His judgments require a lot of improvement in language, contents and quality 01.01.1975 to 30.06.1975 J.M.S.C., Alathur Chief Judicial Magistrate, Palakkad Remarks as to quality of judicial work disposed of and to the promptitude of disposal: He has to improve.
01.07.1975 to 31.12.1975 J.M.S.C., Alathur District Judge, Palakkad Quality of work needs considerable improvement. He should be more careful in conducting himself as a Judicial Officer.
01.01.1976 to 21.06. 1976 District Judge, Palakkad Quality of judicial work is not satisfactory.
01.01.1977 to 31.12.1977 J.M.S.C., Alathur Chief Judicial Magistrate, Palakkad Remarks as to quality of judicial work disposed of and as to promptitude of disposal: Satisfactory. At times he is careless and erratic.
10.04.1980 to 31.12.1980 J.F.C.M. Nedumkandam Chief Judicial Magistrate, Thodupuzha Remarks as to Character or reputation: There is allegation that he is honest. Hence I am not making any remarks.
High Court Judge Reputation requires improvement.
01.01.1981 to 29.05.1981 Chief Judicial Magistrate, Thodupuzha Remarks as to quality of work disposed of : Pendency increased.
J.F.C.M. Nedumkandam Remarks as to character or reputation: I have stated my opinion in my previous report.
01.01.1982 to 31.12.1982 High Court Judge He has a bad reputation.
J.F.C.M. (Mobile) Alappuzha 01.01.1983 to 31.12.1983 J.F.C.M. (Mobile) Alappuzha High Court Judge He has to take his job more seriously and keep up the dignity attached to his office. He needs friendly guidance in this respect.
01.01.1987 to 18.05.1987 Chief JudicialMagistrate, Kozhikode Remarks as to character or reputation:Not very satisfactory.
J.F.C.M. Nadapuram Remarks about reputation of integrity and impartiality: Not very satisfactory 14.05.1990 to 31.12.1990J.F.C.M., Chalakkudy Chief Judicial Magistrate, Thrissur The Officer concerned has a tendencyto alter sections of law to make it triable by Court of sessions though in fact none of such cases deserved to be tried by Court of sessions .
Considering what I could gather during my inspection of the Court, the officer concerned has to do a lot of home work to inspire confidence in the subordinate Administrative work is not upto the expectations.
Justice K. Sreedharan An officer of average ability. Has to improve a lot.
01.01.1991 to 30.06.1991 J.F.C.M., Chalakkudy Chief Judicial Magistrate, Thrissur.
Incapable.Reputation not upto the expectation.
Justice K. Sreedharan His reputation has to improve a lot.
01.07.1991 to 31.12.1991 Chief Judicial Magistrate, Thrissur.
He requires a little more training to motivate and extract work from the staff and to inspire their confidence.
J.F.C.M., Chalakkudy Reputation not upto expectation .
01.01.1992 to 11.05.1992 Chief Judicial Magistrate, Thrissur.
Poor integrity: Not so good.
J.F.C.M., Chalakkudy He has to work hard to regain lost ground.
Justice B.M. Thulasidas Reputation is not good. He resorts to short cuts for disposal of cases.
01.01.1995 to 31.12.1995 Justice K. G. Balakrishnan Not keeping good reputation.
Addl. Chief Magistrate Ernakulam 01.01.1996 to 31.12.1996 District Judge, Ernakulam There were complaints of bias insome transfer petitions. No established case.
Addl. Chief Judicial Magistrate, Ernakulam.
The late Justice Kamat Vilas Vinayak Needs to be watched as not spoken of well.
31. The Honourable Mr. Justice K. Sreedharan while disposing of Crl.M.C. No: 736/1989 made the following remarks against the Judicial First Class Magistrate, Kanjirappally which was held by Shri. S. Paradesi Thyagarajan :
"..... .This practice adopted by the learned agistrate is an abuse of process of Court. He was acting without jurisdiction.
.......... Practice of extending interim bail is not warranted by the Code and it to be condemned.......The practice of directing accused to appear before Court before Charge Sheet is filed, is only to harass the accused....The practice adopted by the learned Magistrate is unwarranted and it is against law. It was aimed only to harass the accused. In the report it is stated by learned Magistrate that in some grave crime cases postings are given and crime case is adjourned from time to time. This practice is highly objectionable and is to be deprecated. Learned Magistrate is warned against such a course of action. He should not exercise his jurisdiction in such a manner as to harass the accused......... A copy of this order will be sent to the Magistrate and another copy will be kept in his Confidential Records."
No review petition was tiled by the officer concerned to reconsider the above mentioned remarks.
Disciplinary Proceedings initiated against Shri. S. Paradesi Thyagarajan
1. Order No : II-5642/82/D.Dis.
The increment was withheld for a period of one year without cumulative effect as per proceedings dated March 14, 1983.
2. Order No. B4-19302/81 Probation in the category of Judicial Magistrate of the First Class was extended till April 15, 1984 as per proceedings dated December 9, 1983.
3. D.O. No. :B2-22883/90 The High Court having found him to be unsuitable for promotion to the post of Chief Judicial Magistrate, communicated the same to the concerned officer as per D.O. No: B2-22883/90 dated August 8,1990.
Decision of the Evaluation Committee Meeting and Full Court Meeting held to assess the potential for continued utility beyond the age of 58 years.
The Evaluation Committee Meeting held on April 3, 1998 for assessing the potential for continued utility beyond the age of 58 years held that on an overall consideration of the past record of service of Shri. S. Paradesi Thyagarajan and on assessing and evaluating his potential for continued utility, it was resolved that the officer is not fit for continuance beyond the age of 58 years.
The Full Court meeting held on April 7, 1998 resolved that the recommendation of the Evaluation Committee that Shri S. Paradesi Thyagarajan is not fit to be continued in service beyond the age of 58 years be approved.
32. The above entries in the confidential report by the various Chief Judicial Magistrates, District Judges, High Court Judges will clearly prove that the past record of service of the appellant are not good and that the appellant is not entitled for extension of service beyond 58 years. We are therefore of the opinion that the appellant is not fit for continuance in service beyond the age of 58 years.
33. Rule 60 Sub-clause (a) which deals with compulsory retirement reads thus:-
"(Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years). He may be retained after this date only with the sanction of the Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances."
We have already reproduced the amended Rule 60 (aa) of K.S.R. The retirement on superannuation of government servants is contemplated in Rule 60 K.S.R. The Officers are generally to retire at the age of 55 years. However in the case of an officer of the Kerala Judicial Service or Kerala State Higher Judicial Service, the retirement age as per Rule 60(aa) is attainment of age of 60 years. The sub rule stipulates that the officer has the option to retire on attainment of the age of 58 years, availing all terminal benefits due to him on retirement on superannuation. The sub- rule also stipulates that Officers who opt to continue beyond the age of 58 years can continue only if the High Court finds him suitable to continue beyond the age of 58 years. The retirement of a Judicial Officer at the age of 58 years is therefore retirement on superannuation. It is not a compulsory retirement imposed as a punishment, as contemplated by the provisions of Kerala Civil Services (Classification, Control and Appeal) Rules and hence no notice is contemplated. We therefore have no hesitation in rejecting the contentions of the learned counsel for the appellant and dismiss the Writ Appeal. As already noticed from the various judgments of the Supreme Court, Ext.P-1 is not punitive in nature and that there is no question of violation of principles of natural justice as contended by the learned counsel for the appellant. The various decisions referred to by us in the earlier part of our judgment could-clearly show that no notice is contemplated in the instant case since the retirement of the Judicial Officer at the age of 58 years is a retirement on superannuation and not a compulsory retirement imposed as a punishment. Therefore there is no question of violation of principles of natural justice. The order under Ext.P-1 is perfectly in order and therefore does not call for any interference. Even according to the appellant as could be seen in ground (H) that if there are adverse materials against the appellant the authority can come to the conclusion that the officer is unfit to continue in service. There is abundant material in the instant case to say that the officer is unfit to continue in service beyond 58 years and also as held by the Supreme Court the order need not reveal as to the material on which the order of compulsory retirement is based. Therefore we reject the contention of the learned counsel for the appellant. There are no merits in the appeal. The writ Appeal therefore fails and is dismissed. No costs.