Full Judgment Text
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PETITIONER:
SHRI RAJAT BARAN ROY
Vs.
RESPONDENT:
STATE OF WEST BENGAL & ORS.
DATE OF JUDGMENT: 13/04/1999
BENCH:
N.S.Hegde, R.C.Lahoti, S.P.Bharucha,
JUDGMENT:
SANTOSH HEGDE, J.
The above writ petitions are admitted for final
hearing. Notice having been served on the respondents, they
have put in their appearance and filed their response.
Since the questions involved in these writ petitions are
common, they are being disposed of by a common judgment.
In W.P. No.578/98, the petitioner was holding the
post in the rank of a District Judge, who was compulsorily
retired by an order of the Governor of West Bengal dated
23.10.1998 w.e.f. the date on which he attained the age of
58 years, i.e. 31.10.1998.
In W.P. No.601/98, the petitioner was also holding a
post equivalent to that of a District Judge and was
similarly retired by an order of the Governor of the State
of West Bengal dated 26.10.1998 on his attaining the age of
58 years which also happened to be 31.10.1998.
In W.P. No.638/98, the petitioner was posted as a
District Judge and was also compulsorily retired on his
attaining the age of 58 years w.e.f. 30.11.1998 by an order
of the Governor of West Bengal dated 2.11.1998. Admittedly,
the retirements of the petitioners are not on disciplinary
ground but on the ground that the High Court of Calcutta had
recommended the retirement of these judicial officers on
their having attained the age of 58 years. The grievance of
the petitioners in these petitions is that as per the
service rules applicable to them, their retirement from
service can take place only on their attaining the age of 60
years; whereas the respondents by the impugned orders have
prematurely retired them at the age of 58 years purportedly
on the basis of a review of the petitioners’ service record,
performance, efficiency, integrity, utility etc. by a
Review Committee of the High Court which, according to the
petitioners, is not permissible in law. The respondents in
their pleadings urged that it is open to the High Court to
make a pre-retirement assessment of a member of the Higher
Judicial Service in the State of West Bengal on or about the
time such member attains the age of 58 years, and if the
High Court is not satisfied with the performance of the
officer concerned, it could recommend to the Governor of the
State to compulsorily retire the concerned officer at the
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age of 58 years. For this proposition, the respondents
relied upon the directions given by this Court in All India
Judges’ Association & Ors. vs. Union of India & Ors.
(1993 4 SCC 288). The respondents further contend that even
otherwise in view of the power vested in them under Clause
2(a)(a) of Rule 75 of the West Bengal Service Rules, Part-I,
which applies in respect of officers of the West Bengal
Civil Service (Judicial) and the West Bengal Higher Judicial
Service, they have the authority to retire the petitioners
prematurely. We have heard learned counsel for the parties.
It is an admitted fact by both sides that the retirement age
of the judicial officers, at present, is 60 years. The
petitioners contend that by virtue of the Notification of
the Government of West Bengal No.14136-J dated 20.6.1992,
the members of the West Bengal Higher Judicial Service are
treated at par with the members of the Indian Administrative
Service in all matters. Therefore, when the Government of
India on 31.1.1998 fixed the retirement age of the members
of the Indian Administrative Service at 60 years,
automatically the retirement age of members of the West
Bengal Higher Judicial Service also got enhanced to 60
years. Hence, it is contended by the petitioners that their
retirement age is enhanced by the provisions of the
statutory rules. Per contra, the respondents contended that
the petitioners’ retirement age is extended to 60 years by
virtue of the directions issued by this Court on 20.8.1993
in the case of All India Judges’ Association case (supra)
and not by any statutory rules. This difference in the
source of retirement age has a direct bearing on the
validity of the impugned orders. To decide this
controversy, it is necessary to briefly refer to the
directions issued in the two cases of All India Judges’
Association. In the first case of All India Judges’
Association reported in (1992) 1 SCC 119 (hereinafter
referred to as ‘the 1992 case’), this Court issued the
following direction :- "(iii) Retirement age of judicial
officers be raised to 60 years and appropriate steps are to
be taken by December 31, 1992."
As per the above direction, it became the duty of all
the States and the Union of India to make suitable
provisions in the concerned Rules to enhance the retirement
age of the judicial officers to 60 years by 31.12.1992.
Instead of complying with the directions of this Court in
the 1992 case, the Union of India and some of the States
filed review petitions before this Court on various grounds.
The stand taken by the review petitioners was rejected by
this Court by an order which is reported in All India
Judges’ Association & Ors. V. Union of India & Ors. (1993
4 SCC 288) (hereinafter referred to as ‘the 1993 case’). By
this order, this Court while directing that the retirement
age of the members of subordinate judiciary in India should
be 60 years, added a rider to the increase in the retirement
age by holding that this benefit of increase in retirement
age 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, according to this Court, was available to those
who, in the opinion of the respective High Courts, have a
potential for continued useful service. The Court further
said that 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 was directed
to be assessed and evaluated by appropriate Committees of
Judges of the respective High Courts constituted and headed
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by the Chief Justices of the High Courts. This direction in
regard to the retirement age and other directions given in
regard to the members of the Higher Judicial Service in
India in the 1993 case, came to be issued because of the
failure on the part of the Governments concerned to perform
their obligatory duties. If as per the 1992 directions, the
Governments concerned had acted diligently then there would
not have been any cause for issuing the 1993 directions and,
consequently, the rider that was included in the 1993
directions, would not have been there at all. That apart,
in the 1993 directions, this Court in unequivocal terms said
: "The directions issued are mere aids and incidental to
and supplemental of the main direction and intended as a
transitional measure till a comprehensive national policy is
evolved." (emphasis supplied). In view of this observation,
it is clear that the direction issued as above, would cease
to exist when appropriate rule enhancing the retirement age
of the judicial officers to 60 years is made. Consequently,
the rider to the direction issued by the Court also ceases
to operate, being co-terminus with the direction. After the
directions in the 1993 case, in the case of such States
which had framed rules consequent upon which the members of
the subordinate judiciary in those States became entitled to
continue in service till the age of 60 years, it will have
to be held that the enhancement has come into force by
virtue of such rules framed. In other words, the
enhancement of retirement age in those States will be de
hors the directions of this Court and will be subject only
to the terms of the rules applicable. In such cases, in our
opinion, the pre-retirement assessment will not be
applicable unless the same is specifically provided under
the Rules. In the State of West Bengal, it is to be noted
that by virtue of the Government Order dated 20.6.1992, the
members of the West Bengal Higher Judicial Service were
treated at par with the members of the Indian Administrative
Service in all matters. From this order, it flows that any
change that is brought about in the service conditions of
the members of the Indian Administrative Service would ipso
facto becomes applicable to the members of the West Bengal
Higher Judicial Service also. Consequent upon the
recommendations made by the 5th Central Pay Commission, it
is seen from records that the Ministry of Personnel, Public
Grievances & Pension (Department of Personnel & Training),
Government of India, by an Office Memorandum dated
13.5.1998, informed the State of West Bengal that "the
President is pleased to direct that: (a) Except as
otherwise provided specifically, every Government servant
whose age of retirement is currently 58 years shall now
retire from service on the afternoon of the last day of the
month in which he/she attains the age of sixty years.
However, Government servants whose date of birth is the
first of a month shall retire from service on the afternoon
of the last day of the preceding month on attaining the age
of sixty years;". The Government of West Bengal by a
separate order dated 15.5.1998 implemented the aforesaid
Office Memorandum of the Government of India in the
following terms :
"The terms of reference of the 4th Pay Commission
include inter alia, the issues relating to retirement
benefits. The Pay Commission has submitted a report for
enhancement of age of retirement from fifty eight years to
sixty years.
After careful consideration of the recommendation, the
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Governor is pleased to order in partial modification of Rule
75(a) of W.B.S.R. Pt. I, that the Government employees of
Group-A, Group-B and Group-C service shall retire from
service compulsorily with effect from the afternoon of the
last day of the month in which they attain the age of sixty
years.
This will take immediate effect."
By virtue of the Government Order of the State of West
Bengal dated 20.6.1992 when the State Government applied the
change in service conditions as per the Office Memorandum
dated 15.5.1998 to the members of its services automatically
the said change in the age of retirement became applicable
to the members of the West Bengal Higher Judicial Service
also. In other words, when the retirement age of the
officers of the Indian Administrative Service stood extended
from 58 years to 60 years, the retirement age of the members
of the West Bengal Judicial Service also automatically got
extended from 58 years to 60 years. Therefore on and from
the above date, the age of superannuation of a member of the
West Bengal Higher Judicial Service came to be governed by
the above rules. Consequently, the directions including the
raider there on issued by this court in the 1993 case ceases
to operate. Therefore, in our opinion, the contention of
the respondents that the rights of the petitioners to
continue in service till the age of 60 years is derived from
the directions issued by this Court in the 1993 case, cannot
be accepted, and we hold that so far as the members of the
West Bengal Higher Judicial Service are concerned, their age
of superannuation is 60 years, as contemplated in the
Official Memorandum of the Government of West Bengal dated
15.5.1998 as made applicable to the Higher Judicial Service
of West Bengal in its order dated 20.6.1992 and the said
Office Memorandum and the Government Order having not fixed
any pre-retirement assessment at the age of 58, it was not
open to the High Court to have recommended the compulsory
retirement of the petitioners, following directions of this
court which had ceased to exist. Alternatively, it is
contended on behalf of the respondents that the impugned
orders can also be justified by virtue of the power vested
in them under Rule 75(a)(a) of the West Bengal Service
Rules, Part I. It is contended that in view of the said
Rule, it is open to the respondents to retire a Government
Servant in public interest. Before we go into the validity
of this argument, it is necessary to examine whether, in
fact, the respondents invoked this Rule for the purpose of
issuing the impugned orders or not. A perusal of the
affidavit filed on behalf of the High Court clearly shows
that the respondents in exercise of the power vested in them
by virtue of the directions given in the 1993 case,
proceeded to pass the impugned orders. This is crystal
clear from the following paragraphs extracted from the
affidavit filed on behalf of the Registrar of the High Court
of Calcutta :
"3.4 In terms of the aforementioned memorandum dated
13.9.1994, and this Hon’ble Court’s judgment in the All
India Judges case, Respondent No.1, the Judicial Department,
Govt. of West Bengal passed an order, Order No.9509-J dated
23.10.1998 inter alia stating that the writ petitioner was
to retire compulsorily from service on his attaining 58
years i.e. on 31.10.1998. The said order was passed on the
recommendation of the High Court. The High Court reviewed
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the petitioner’s service records, performance, efficiency,
integrity, utility etc. and only after full assessment
thereof the said decision by the Review Committee of the
High Court to compulsorily retire the writ petitioner was
taken and consequential orders passed."
x x x
"3.8 Primarily it appears from the contents of the
various grounds taken by the writ petitioner that the
petitioner is praying for continuance in judicial service
till age of 60 without the required review procedure to be
followed in terms of this Hon’ble Court’s orders in All
India Judges case basing his claim on the recommendation of
the 4th Pay Commission of the State Government enhancing the
age of superannuation of officers etc. of the West Bengal
Civil Service which is in effect a consequential order
issued after the 5th Pay Commission of the Central
Government recommended the age of retirement at 60 years. "
In view of the above pleadings, it is not possible for
us to accept the alternate argument of the respondents that
the impugned orders are de hors the directions issued by
this Court in the 1993 case. We will now examine the
contention of the respondents that the impugned orders can
be independently justified in view of the power vested in
them by virtue of Rule 75(a)(a) of the West Bengal Service
Rules, Part- I. The said Rule reads thus :
"Notwithstanding anything contained in this Rule the
appointing authority shall, if it is of opinion that it is
in the public interest so to do, have the absolute right to
retire a government employee by giving him notice of not
less than three months in writing or three months’ pay and
allowances in lieu of such notice -
i) If he is in Group-A or Group-B (erstwhile gazetted)
service of post and had entered government service before
attaining the age of 35 years, if he has attained the age of
50 years and ii) In all other cases after he has attained
the age of 55 years."
A perusal of this Rule shows that this Rule can be
invoked for the purpose of retiring a Government servant in
"public interest" on satisfying the conditions mentioned in
sub-clauses (1) and (2) of that Rule. A careful perusal of
the impugned orders nowhere shows that the said orders are
being issued in "public interest" which is a condition
precedent for invoking this Rule. Nor does it advert
anywhere in the impugned orders in regard to the conditions
specified in sub-paras (1)( and (2) of the said Rule. If we
have to examine the impugned orders in the light of this
Rule then the same has to be held to be bad in law for
non-application of mind and want of material particulars
which are mandatory for invoking the said Rule. Therefore,
the argument of the respondents seeking to justify the
impugned orders based on Rule 75(a)(a) of the said Rules
also has to be rejected. In the said view of the matter, we
do not find any force in the arguments advanced on behalf of
the respondents to sustain the impugned orders. For the
reasons stated above, these writ petitions are allowed. The
impugned orders No.9509-J dated 23.10.1998, No.9518-J dated
26.10.1998 and No.9628-J dated 2.11.1998 issued in the name
of the Governor of West Bengal by the Government of West
Bengal are hereby quashed. No order as to costs.
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