Full Judgment Text
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PETITIONER:
RAMESH CHANDRA ACHARYA
Vs.
RESPONDENT:
REGISTRAR, HIGH COURT OF ORISSA & ANR.
DATE OF JUDGMENT: 26/06/2000
BENCH:
M.B.Shah, K.T.Thomas
JUDGMENT:
Shah, J.
Question involved in this petition is Can, for any
reason, it be held that Service Rule which provides that an
officer who has no potential for continued useful service
beyond a particular age, is invalid? Nowill be the
obvious answer for various reasons. Further, there can be
no right of an employee to continue in service de hors
statutory or administrative rule prescribing superannuation
age and continuation in service could be only subject to the
conditions provided. The question which requires
consideration by the authorities is Have we not reached a
stage where services of government or semi-government
employees should be regulated in such a way that only such
persons who can render useful service be continued and not
the indolent, infirm and those of doubtful integrity,
reputation or utility? Periodical exercise of reviewing or
evaluating the utility is required for better administration
and for removal of dead wood or persons having doubtful
integrity and reputation.
Petitioners case is that he was appointed on 14th
January, 1981 by the High Court of Orissa as a temporary
Munsif and he was confirmed in the said post on 21st
December, 1985; he was promoted as a Civil Judge (Senior
Division) in 1993 and was in service since then. It is his
further case that in 1998 High Court of Orissa conducted
review in respect of the petitioner as per Rule 71(a) of the
Orissa Service Code and allowed him to remain in service up
to the date of completion of the age of 58 years. On 28th
January, 2000, he received a copy of the confidential letter
from the Registrar (Administration), High Court of Orissa
addressed to the Secretary, Law Department, Government of
Orissa conveying the decision of the High Court of Orissa
that as per Rule 71(a-1) of the Orissa Service Code,
petitioner should be retired from Government service on
attaining the age of 58 years i.e. on 30th June, 2000. It
is his say that on receipt of the said confidential letter,
he submitted a representation by letter dated 3.4.2000 to
the High Court seeking reconsideration of his case by
pointing out that this Court has enhanced the age of
superannuation of judicial officers to 60 years and pointed
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out the decision of this Court in Rajat Baran Roy and others
v. State of W.B and others, [(1999) 4 SCC 235]. But there
was no response. It is his contention that he has a clean
record qua integrity and efficiency and there is no adverse
entry or remark ever made in his confidential record.
Thereafter, the petitioner received a notification dated
11.5.2000 from the Law Department of Government of Orissa
notifying the State Governments decision to retire him from
the Government service on attaining the age of 58 years.
Hence, he has approached this Court by filing writ petition
under Article 32 of the Constitution.
At the time of hearing this petition, Mr. A.S.
Nambiar, learned senior counsel submitted that the Rule
71(a-1) is against the decision rendered by this Court in
All India Judges Association v. Union of India and others,
[(1992) 1 SCC 119] and a subsequent clarification given by
this Court in review application in All India Judges
Association and others v. Union of India and others,
[(1993) 4 SCC 288].
For appreciating the contention raised by the learned
senior counsel, we would first refer to relevant part of
Rule 71(a) of the Orissa Service Code. 71.(a) Except as
otherwise provided in the other clauses of this rule the
date of compulsory retirement of a Government servant,
except a ministerial servant who was in Government service
on the 31st March, 1939 and Class IV Government servant, is
the date on which he or she attains the age of 58 years
subject to the condition that a review shall be conducted in
respect of the Government servant in the 55th year of age in
order to determine whether he/she should be allowed to
remain in service up to the date of completion of the age of
58 years or retired on completing the age of 55 years in
public interest:
Provided. (a-1). Notwithstanding anything contained
in sub-rule (a) of rule 71, Judicial Officer belonging to
State Judicial Services, who, in the opinion of the High
Court of Orissa, have a potential for continued useful
service, shall be retained in service up to the age of 60
years.
[NoteThe potential for continued utility shall be
assessed and evaluated by appropriate Committee of Judges of
the High Court, constituted and headed by the Chief Justice
and the valuation shall be made on the basis of the
Officers past record of service, Character Roll, quality of
judgments and other relevant matters. The High Court should
undertake and complete the exercise in case of an officer
about to attain the age of 58 years well within time by
following the procedure for compulsory retirement under the
service rules applicable to him and give him the benefit of
the extended superannuation age from 58 to 60 years only, if
he is found fit and eligible to continue in service. In
case he is not found fit and eligible, he shall be
compulsorily retired on his attaining the age of 58 years.
This exercise should be undertaken well in advance before an
officer attains the age of 58 years.]
(b). .
(c). . .
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In our view, the aforesaid rule is not only in
conformity with the decision rendered by this Court in the
aforesaid case but also in conformity with the requirement
of service jurisprudence. The purpose of increasing the
superannuation age for the judicial officers was with an
intention to raise the tone and morale of the judicial
services as a whole but not to continue the officers who
have lost their utility in rendering service to the society.
It needs no emphasis as it is accepted that the judicial
officer is required to discharge much more greater
responsibility to the Society. As observed in All India
Judges Association case (Review) [Para 7], the judicial
service is not service in the sense of employment. The
Judges are not employees. As members of the judiciary, they
exercise the sovereign judicial power of the State. Hence,
judicial officers must be fit in all respects for discharge
of such onerous duties. In All India Judges Association
case, the Court quoted the following observation of
Professor Pannick from his book entitled Judges: Judges
do not have an easy job. They repeatedly do what the rest
of us seek to avoid; make decisions. After detailed
discussions, the Court finally observed [in Para 61] thus:-
The conduct of every judicial officer should be above
reproach. He should be conscientious, studious, thorough,
courteous, patient, punctual, just, impartial, fearless of
public clamour, regardless of public praise, and indifferent
to private, political or partisan influences; he should
administer justice according to law, and deal with his
appointment as a public trust; he should not allow other
affairs or his private interests to interfere with the
prompt and proper performance of his judicial duties, nor
should he administer the office for the purpose of advancing
his personal ambitions or increasing his popularity.
Hence, for decidingwhether the judicial officer has
potential for continued useful service, the authority (the
High Court) has to take into consideration all the aforesaid
aspects and has to make overall evaluation.
This Court in the aforesaid case emphasised that 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
and, therefore, directed thus:- 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 officers past record
of service, character rolls, quality of judgments and other
relevant matters.
The Court thereafter clarified that the assessment at
the age of 58 years is for the purpose of finding out
suitability of the concerned officers for the entitlement of
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the benefit of the increased age of superannuation from 58
years to 60 years; it is in addition to the assessment to
be undertaken for compulsory retirement and the compulsory
retirement at the earlier stage/s under the respective
Service Rules.
It is apparent that aforesaid directions of this Court
are faithfully incorporated in the aforequoted rule.
Therefore, the High Court was fully justified in following
the aforesaid rules in evaluating the record of the
petitioner for his continued utility in the judicial
service.
Further, the aforequoted rule does not straightway
extend the age of superannuation at the age of 58 years but
it only enables the High Court to retain in service a
judicial officer belonging to the State Judicial Services up
to the age of 60 years, if it is in the opinion that such
judicial officer has potential to continue in useful
service. For finding out whether he has potential for
continue in useful service, assessment is to be made on the
basis of past record of service, character rolls, quality of
the judgments and other relevant matters, which may include
over all assessment with regard to integrity, reputation and
utility.
However, the learned counsel for the petitioner
referred to the decision rendered by this Court in Rajat
Baran Roy and others v. State of W.B. and others, [(1999)
4 SCC 235] and submitted that once the superannuation age is
extended to 60 years, there is no question of reviewing it
at the age of 58 years. In our view, this submission is
without any substance because it is open to the competent
authority to frame appropriate rules permitting it to assess
the overall performance of the officer periodically to find
out whether such officer has potential for continued utility
in service. The aforesaid judgment only deals with the rule
where there was no such specific provision of review at the
age of 58 years and the Court referred to a Memo of
Government of W.B. dated 15.5.1998 extending the
superannuation age to 60 years and held that officers have
right to continue till the age of 60 years. Further, the
Court found that power vested under rule 75(aa) of the West
Bengal Service Rules (Part I) were not exercised and in any
case from the record it appeared that there was non-
application of mind to the material particulars which were
mandatory for invoking the said rule. The Court, therefore,
held that there was no question of referring to the decision
in case of All India Judges Association (Supra). In our
view, the said decision in Rajat Baran Roy has no bearing in
the present case because of specific Rule 71(a).
In this view of the matter, there is no substance in
the contention that Rule 71(a-1) is ultra-virus, invalid or
against the judgment rendered by this Court in All India
Judges Association case. We reiterate that in the absence
of specific rule made by the State no judicial officer has a
right as such to continue beyond the age of 58. It is only
when the High Court, after reviewing all aspects of service
including the past record of the officer concerned,
specifically orders that in the interest of judicial service
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of the State it is necessary to retain the particular
officer beyond that age limit and allow him to superannuate
at the age of 60. In other words, continuation beyond 58
years is permissible only when the High Court makes a
positive recommendation in favour of that officer for such
continuation. Otherwise the judicial officer has to retire
at the age of 58. This can be departed from only when the
State makes specific rule otherwise.
The learned counsel for the petitioner further
referred to the decision in M.S. Bindra v. Union of India
and others [(1998) 7 SCC 310] and Madan Mohan Choudhary v.
State of Bihar and others [(1999) 3 SCC 396]. These two
cases pertain to compulsory retirement of the officers on a
pre-mature stage and considering facts and circumstances of
the case, this Court observed that judicial scrutiny of any
order imposing pre-mature compulsory retirement is
permissible if the order is either arbitrary or mala fide or
it is based on no evidence. However, in this writ petition
under Article 32 it is not necessary for us to examine
whether the recommendations made by the High Court on the
basis of Rule 71(a-1) of the Orissa Service Code is in any
way arbitrary or mala fide as it is open to the petitioner
to approach the High Court for his grievances.
Hence, this petition under Article 32 is not required
to be entertained and is dismissed.