Lakshman Prasad Mishra vs High Court of Judicature and Another

G.P. Mathur, J.—The Petitioner who was a District Judge has filed this petition for quashing the communication sent to him by the Registrar of the High Court on September 27, 1995. Subsequently, an application has been moved wherein a prayer has been made that the order passed by the Governor on October 12, 1995 compulsorily retiring him from service w.e.f. October 31, 1995 be quashed.

After the decision in All India Judges'' Association Vs. Union of India and others, , the Governor of Uttar Pradesh exercising powers conferred by proviso to Article 309 of the Constitution of India made the U.P. Judicial Officers (Retirement on Superannuation) Rules, 1992 (hereinafter referred to as the Rules) on October 20, 1992. Rule 4 of these Rules lays down that a Judicial Officer shall retire from service on superannuation in the afternoon of last day of the month in which he attains the age of sixty years. Subsequently, the direction given for enhancement of age in Judges'' Association case was reviewed and it was held that the benefit of increase in retirement age to sixty years shall not follow automatically to all judicial Officers and their cases should be considered by the appropriate committee of the Judges of the High Court. The case of the Petitioner was evaluated by a committee constituted for this purpose and it gave a report on September 22, 1995 that he should not be allowed to continue'' in service till the age of sixty years and that he should be retired at the age of fifty eight years. It was this decision which was communicated by the Registrar on September 22, 1995 (Annexure-1) to the writ petition. This was followed by an order of October 12, 1995 passed by the Governor in public interest in exercise of powers conferred by Rule 56 (c) of Financial Hand Book Vol. II. Part II to IV directing that the Petitioner shall retire from service in the forenoon of October 31, 1995 and in lieu of notice, he would be entitled to salary and other allowances for a period of three months. The communication sent by the Registrar and the order passed by the Governor are impugned in the present writ petition.

Learned counsel has submitted that the Petitioner was awarded an adverse entry for the year 1993-94 which was nothing else but a complete reproduction of remarks made against him by a learned Judge of this court while deciding a Bail cancellation application, but the said remarks were subsequently expunged by the same learned Judge on a petition filed by the Petitioner and, therefore, the very basis on which the adverse entry had been awarded to him had disappeared. It has been further submitted that another adverse entry had been communicated to the Petitioner on February 25, 1994 but the complaint, which formed the basis of awarding the entry, was withdrawn by the person making it and, therefore, the said entry also lost its effect. The Petitioner had also filed a writ petition challenging the adverse entry and the decision not to grant Super Time Scale to him in which notices had been issued and the petition was still pending. It is thus urged that there was absolutely no material on record which could justify the order for compulsory retirement passed against the Petitioner and at any rate, such a decision ought not to have been taken before the decision of the writ petition and. therefore, the same was liable to be quashed.

It may be recalled that All India Judges'' Association filed a petition under Article 32 of the Constitution for setting up an All India Judicial Service and for bringing upon uniform service conditions for the members of subordinate judiciary throughout the country. The Association sought relief for uniformity in Judicial Cadre in different States and Union Territories, appropriate enhanced uniform age of retirement for judicial Officer, uniform pay scales, residential accommodation, transport facility and other perks like library and Samptuary allowance, etc. After hearing Union of India and most of the states, the Supreme Court taking into consideration the nature of work being done by them, gave several directions in order to improve the working conditions of members of Judicial Service. Regarding enhancement of age of retirement, the following direction was given by the Court:

We are of the view that on the logic which was adopted by the Law Commission and for the reason which we have indicated the age of retirement of judicial officers should be 60 years. We accordingly direct that appropriate alterations shall 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. We have given a long period so that appropriate amendments may be made in the meantime.

It was thereafter that the U.P. Judicial Officers (Retirement on Superannuation) Rules, 1992 were framed which were published on October 20, 1992. Rule 2 lays down that the provisions of these Rules shall have effect notwithstanding anything to the contrary contained in Rule 56 of U.P. Fundamental Rules contained in the Financial Hand Book Vol. II, Parts II to IV, or any other Rules made by the Governor under Proviso to Article 309 of the Constitution or orders for the time being in force. Rule 4, as already noticed, enhances the age of superannuation to sixty years. The Union of India and several States filed Review petitions seeking review of the judgment given in the Judge''s Association Case and these were decided on August 24, 1993. That part of the judgment wherein direction had been issued for enhancing the age of superannuation to sixty years was specifically reviewed and it was observed as follows:

There is, however, one aspect we should emphasise here. To that extent the direction contained in the main judgment under review shall stand modified. 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 officers'' past record of service, character rolls, quality of judgments and other relevant matters.

The High Court shall undertake and complete the exercise in case 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. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to assessment to be undertaken for compulsory retirement and the compulsory retirement at the earlier stage/s under the respective Service Rules.

(See All India Judges'' Association and Others Vs. Union of India and Others, .

There appears to be some conflict between the Rules and the review judgment. According to the Rules, the normal age of retirement is sixty years which means every Judicial Officer has a right to continue in service till he attains aforesaid age but the review judgment lays down that the benefit of continuity in service beyond the age of fifty eight years should not be given automatically to every one but should be given only to those who have potential for continued useful service. There cannot be even the slightest doubt that the U.P. Judicial Officers (Retirement on Superannuation) Rules, 1992 were made in compliance of the direction issued in the main judgment and owe their existence to the same. However, that part of the judgment where the aforesaid directions were Issued has since been reviewed and in their place new directions have been given by the Apex Court. No doubt the Rules have not been amended thereafter but the same having been framed in pursuance of the directions issued in the main judgment in the Judges'' Association case and the said judgment having been reviewed, they have to be read and interpreted in the light of the review judgment. The Rules cannot be read in isolation completely ignoring the review judgment. Even otherwise the review judgment being a subsequent decision on the same point by the highest court it is binding upon every one under Article 141 of the Constitution. The Rules have, therefore, to be interpreted harmoniously alongwith the observations made in the review judgment and any such interpretation which brings in a conflict has to be avoided.

Rule 56 (a) of U.P. Fundamental Rules lays down that except as otherwise provided in other clauses of the Rule, every government servant shall retire from service in the afternoon of the last date of the month in which he attains the age of fifty eight years. Clause (c) of the same rule lays down that notwithstanding anything contained in Clause (a) or (b), the appointing Authority may, at any time by notice to any government servant, without assigning any reason require him to retire after he attains the age of fifty years or such government servant may, by notice to the appointing authority voluntary retire at any time after attaining the age of 45 years or after he has completed qualifying service for twenty years and Sub-clause (d) lays down that the period of such notice shall be three months. Thus, under Clause (a) of Rule 56 of U.P. Fundamental Rules, the normal age of retirement of a government servant is fifty eight years but Clause (c) thereof gives power to the government to compulsory retire a government servant after he attains the age of fifty years. The explanation to the Rule provides that the decision of the appointing authority under Clause (c) namely to retire a government servant after he attains the age of fifty years shall be taken if it is in public interest. It is well settled that there is no element of charge or imputation in the case of compulsory retirement nor it is an order of punishment. It does not amount to dismissal or removal and, therefore, does not attract the provision of Article 311 of the Constitution. An officer who is compulsory retired does not lose any part of benefit that he has earned. The purpose and object of premature or compulsory retirement of a Govt. employee is to weed out the inefficient, corrupt, dishonest or deadwood in order to maintain a high standard of efficiency and initiative in the State Services. It is not necessary that a good officer may continue to be efficient for all times to come. It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement. In such a case compulsory retirement of an officer who fulfills the conditions of Fundamental Rule 56 (c) is undoubtedly in public interest and is not passed by way of punishment. Similarly there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest since they have almost reached the fag and of their career and their retirement would not cast any asperssion nor does it entail any civil consequences. The expression ''Public interest'' in the context of premature retirement has a well settled meaning. It refers to cases where the interests of public administration require the retirement of a Govt. servant who with the passage of time has prematurely ceased to possess the standard of efficiency, competence and utility required in the Govt. service to which he belongs. (See Union of India (UOI) Vs. Col. J.N. Sinha and Another, ; Union of India (UOI) Vs. M.E. Reddy and Another, and Gian Singh Mann Vs. High Court of Punjab and Haryana and Another, .

What is the nature of an order of compulsory retirement and the grounds on which it can be challenged has been examined in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, and after considering several earlier decisions on the point, following principles were enunciated in para 32 of the reports:

(i) An order of compulsory retirement is not a punishment. It implies 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 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 the 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 based upon merit (Selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

The U.P. Fundamental Rules were made by the Governor in exercise of powers conferred by Section 241(2)(b) of the Government of India Act, 1935 but interestingly enough they have been amended by an Act of Legislature viz., the U.P. Fundamental Rule 56 (Amendment) Act, 1976 (U.P. Act No. 33 of 1976) and relevant part of Section 2 thereof reads as follows:

In Rule 56 of the Uttar Pradesh Fundamental Rules, published in the Financial Hand Book, Volume II, Parts II to IV, as amended from time to time (hereinafter to be referred to as the said Rule 56):

(i) ....

(ii) ....

(iii) for explanation (2), the following explanations shall be substituted and be deemed to always have been substituted namely:

(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration:

(a) any entries relating to any period before such Government servant was allowed to crosss any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or

(b) any entry against which a representation is pending, provided that the representation is also taken into consideration alongwith the entry; or

(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.

(2A) Every such decision shall be deemed to have been taken in the public interest.

In view of the aforesaid statutory provision, the law enunciated by the Supreme Court in Sub-paras (iv) and (v) quoted above may not strictly apply. However, we are not expressing any concluded opinion on these questions as they do not arise for consideration in the present case.

As stated earlier, Rule 4 of the Rules has to be interpreted harmoniously and in conformity with the observations made by the Supreme Court in review judgment. Though it says that the age of superannuation is sixty years but it does not mean that every judicial officer has a right to continue in service upto that age. A person may not be a deadwood or may not be a corrupt officer and there may be nothing against his integrity yet he may not be of continued utility to the service. This benefit is not to be given to just an average officer having average performance even though his integrity may be above board, but only to those who not only have a clean record of service but also by their good and efficient work prove useful and are asset to the judicial service.

The High Court office has placed before us the relevant records (Copy given to learned counsel for the Petitioner) which show that a Committee was constitute a consisting of Hon. the Chief Justice and two senior most Judges of this court which after examining the past record of service, character roll and other material assessed and evaluated the utility of the Petitioner with reference to his potential for continued useful service for the purpose of giving him continuity in service beyond fifty eight years. The Committee was of the opinion that the Petitioner should not be allowed this benefit.

The criteria for allowing a person to continue in service beyond the age of fifty eight years is different and is more stringent than the criteria on which action is taken to compulsorily retire a person under Fundamental Rule 56 (c) after he has attained the age of fifty years. In terms of the Supreme Court judgment in the case of Baikunth Nath Das (supra) an order of compulsory retirement passed under Rule 56 (c) of Fundamental Rules can be challenged on very limited grounds, namely, if the order passed is (a) mala fide or (b) is based on no evidence or (c) is arbitrary in the sense that no reasonable person could form requisite opinion on the given material and that the High Court would not examine the matter as an Appellate Court. It follows as a corollary that the grounds to challenge the decision not to allow a judicial officer to continue beyond fifty eight years should be even more limited. The decision would be taken only after potential for continued utility has been assessed and evaluated by a Committee consisting of Hon. the Chief Justice and two other Judges of the High Court. Being senior and experienced Judges, it can be safely presumed that they will examine every material and will act fairly and impartially while taking such a decision. This decision, though on the administrative side, is bound to be more sound than the one taken with regard to other Government Servants. We are, therefore, of the opinion that the decision of the Committee not to allow a judicial officer to continue in service beyond the age of fifty eight years can be challenged only on the ground of mala fide or bias or if it is based on no evidence.

Coming now to the case of the Petitioner, even after the strictures passed against him on the judicial side in bail cancellation application, which was the basis for awarding adverse entry, had been expunged, the representation made against the same was rejected. Thus the adverse entry still stands. Similarly, the fact that the notices have been issued to the Respondents in the writ petition which has been filed by the Petitioner assailing the adverse entry is also of no significance as the adverse entry is still intact. The Petitioner has not pleaded mala fide or bias. It is not his case that the order is based on no evidence at all. In this view of the matter, there is no ground for interference with the impugned orders.

Learned counsel has next submitted that the manner of allocation of the executive and administrative work between the Chief Justice, Administrative Committee and Full Court has been laid down in Chapter II Rule IV(D) of the Allahabad High Court Rules, 1952 which have statutory force as the same have been made by the High Court of Judicature at Allahabad in exercise of powers conferred by Article 225 of the Constitution of India and all other powers enabling it in that behalf and in terms of Sub-rule (2) thereof, the matter of premature retirement of Officers of Subordinate Judiciary has to be considered by the Full Court. It is urged that as the decision regarding premature retirement of the Petitioner has been taken by a Committee of three Judges and not by the Full Court, the same was illegal. In support of his submission, learned counsel has placed reliance on a Full Bench decision of Patna High Court in Syed Iqbal Ali Imam Raza Vs. State of Bihar and Another wherein, under similar circumstances, recommendations made by an Evaluation Committee consisting of five Judges was held to be inoperative unless the same was ratified by the Full Court. In our opinion, the contention raised by the learned counsel is not correct. The real effect of the decision of the Evaluation Committee is not to prematurely retire the Petitioner but to deny him the benefit of continuity in service upto sixty years. It was this decision which was communicated to him. In absence of any specific provision for this type of contingency in the Service Rule governing the Petitioner, recourse has to be taken to Fundamental Rule 56 (c). The authority cited by learned counsel has also no application here on account of Patna High Court Rules which have different provisions. The record placed by the office shows that in the Full Court meeting held in April 16, 1995 the following resolution was passed:

It is further resolved to delegate the powers to consider and decide the continued utility of any judicial officer in service in the light of the judgment of the Supreme Court in All India Judge''s Association and Ors. v. Union of India and Ors. JT 1993 (4) 618, to the Committee headed by and consisting of the Hon''ble Chief Justice and two other Judges nominated by him.

The resolution shows that the Full Court had delegated the power to consider the matter relating to the continuity of a Judicial officer in service beyond the age of fifty eight years to a Committee headed by Hon. the Chief Justice and two other Judges to be nominated by him. In terms of the said resolution, a committee was constituted consisting of Hon. the Chief Justice and two other seniormost Judges and the said committee examined and evaluated the case of the Petitioner. This very precise controversy, namely, whether decision regarding the premature retirement of a judicial officer has necessarily to be taken by the Full Court or could be taken by a smaller committee has been considered by the Supreme Court in State of Uttar Pradesh Vs. Batuk Deo Pati Tripathi and Another, and an order of compulsory retirement passed on the basis of the opinion of the Administrative Committee constituted under Rules of the court was held to be valid. It was held that although the control over subordinate judiciary under Article 235 is vested institutionally in the High Court, it is open to the High Court to prescribe the manner in which that control may in practice be exercised. Thus, on account of the fact that the Full Court had itself delegated the power to the Committee which examined the case of the Petitioner, the contention raised by learned counsel cannot be accepted.

No other point was pressed.

The writ petition thus fails and is hereby dismissed summarily at the admission stage.