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Judgment
What is the age of superannuation for the members of the Andhra Pradesh State Higher Judicial Service? That is the question raised herein All these year''s it was assumed by all concerned that it is 55. But now that assumption is called in question. The members of the State Higher Judicial Service are members of a ''State Service" The age of superannuation for members of the State Service is provided by F.R. 56 of the Fundamental Rules and the Subsidiary Rules Andhra Pradesh Government. The Fundamental Rules were made by the Secretary of State in Council in 1922 u/s 96-B of the Government of India Act, 1919 to regulate the conditions of Service Rules, the State Government is empowered to make Rules modifying or replacing any of the Fundamental Rules in relation to services under its administrative control. The Andhra Pradesh Government has also made several subsidiary Rules, altering or modifying the Fundamental Rules. F.R 56, as it is applicable in Andhra Pradesh, provides that a member of the State Service shall retire effect from the last day of the month in which he attains the age of 55 years.
Besides certain general Rules, the Governor of Andhra Pradesh has also issued special Rules governing each department. One such set of Rules are contained in G.O. Ms. No. 1556, General Administration (Special A), dated 17-10-1958, called ''The Andhra Pradesh State Higher Judicial Service Rules". These Rules provide for construction of the State Higher Judicial Service, qualifications for appointment to the service, appointments, postings and transfers, as well as leave, leave salary, travelling allowances, and pension. Rule 7-A is relevant for our Purposes, and it is the interpretation of the said Rule which decides the fate of this batch of writ petitions. It would, therefore, be appropriate to set out the Rule in so far as it is relevant for the present purpose;
"7-A: Pension: A member of the service shall be eligible for the same death-cum-retirement benefits as are admissible to a member of the Indian Administrative Service governed by the all India Services (Death-cum-Retirement Benefits) Rules, 1958, for the time being in force and drawing the same pay and scale of pay:
Provided that any such member who on being required by the State Government to exercise his option elects to be governed by any other pension rules, he shall continue to be governed by such other rules".
u/s 3 (1) of the All India Services Act, 1951, the Central Government has, after consultation with the Governments of the States concerned, made the Rules called "The All India Services (Death cum-Retirement Benefits) Rules, 1958". The expression "retirement benefits " is defined by clause (j) in Rule 2. It reads:
"Retirement benefits includes pension or gratuity and death-cum retirement gratuity where admissible".
The expression "pension" is defined by clause (h) as meaning "the amount payable monthly under rule 18 to a person who has retired from the service, in recognition of the services rendered by him to Government".
"Gratuity" is defined by clause (c) as meaning the lumpsum specified in Schedule ''A'' which may be granted to a person retiring from the Service before completion of 10 years of qualifying service.
''''Death-cum-retirement gratuity" means the lumpsum granted to a member of the Service or his family in accordance with Rule 19. Rule 16 provides for the age of superannuation, and the superannuation gratuity, or pension. It is necessary to set out the Rule in its entirety:-
"16 Superannuation gratuity or pension:-
(1) A member of the Service shall be required compulsoly to retire from the service with effect from the afternoon of the last day of the month in which he attains the age of 58 years:
Provided that he may be retained in service after the last day of the month in which he attains the age of 58 years on public grounds which shall be recorded in writing-
(a) for an aggregate period not exceeding six months by the State Government; and
(b) for any period beyond six months, with the sanction of the Central Government:
Provided further that a member of the service shall not be retained in service beyond the age of 60 years except in very special circumstances.
Provided also that an Indian Civil Service member of the Indian Administrative Service, who attained the age of 58 years before the 1st April, 1973 shall retire compulsorily on the date on which he shall retire compulsorily in accordance with the rules applicable to him Immediately before the 1st October, 1972, or on the 1st April, 1973, whichever is earlier unless his services has been extended the rules then applicable or in accordance with these rules.
(2) A member of the Service may, after giving at least three month''s previous notice in writing, the State Government concerned, retire from service on the date which such member completers thirty years of qualifying service or attains fifty five years of age or on any date thereafter to be specified in the notice:
Provided that no member of the Service under suspension shall retire from service except with the specific approval of the State Government concerned
(3) The Central Government may, in consultation with the State Government concerned and after giving a member of the Service at least three months previous notice in writing, require that member to retire in public interest, from service on the date on which such member complies thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
(4) A superannuation gratuity os pension shall be granted to a member of the Service who is required to retire under sub-rule (1) of this rule".
The age of superannuation prior to 25-5-1963 was 55 years when it was raised to 58.
Rule 17 says that a retiring pension and death-cum-retirement gratuity shall be granted to a member of the service who retires, or is required to retire under Rule 16. Rule 18 provides for the amount of gratuity or pension payable. It is not necessary for our purpose to refer to other Rules.
According to the Fundamental Rules as they are applicable to the Central Services the, age of retirement is prescribed as 58 years, by F. R. 56; in as much as Rule 16 of the All India Services (Death-cum-Retirement Rules") expressly provides for the age of retirement of the members of the I.A.S., it is thas Rule which will govern them, and not F.R.56.
Now, the contention of the learned Counsel for the petitioners is that, Rule7 -A of the Andhra Pradesh State Higher Judicial Service Rules entitles the members of that Service to the same death-cum-retirement benefits to the members on I.A.S. are those provided by the Retirement Rules. The higher age of superannuation is also one of the benefits conferred by the Retirement Rules. In any event, the raising of age from 55 to 58 years in 1963 was certainly a case of conferring a benefit, The age of superannuation is an indivisible part of the entire scheme comprised in the Retirement Rules. The age of superannuation is an important condition of service. It is one of the matters to be provided for, by Rules made by the Governor under the proviso to Art. 309 of the Constitution of India, in consultation with the High Court, The control vested in the High Court over the members of the Subordinate Judiciary by Art, 236 extends to and takes in the age of superannuation as well. With a view to ensure the independence of the judiciary, the Andhra Pradesh State Higher Judicial Service Rules -which Rules are made by the Governor in consultation with the High Court-extend to the members of the Service the same death-cum-retirement benefits as are admissible to the members of the I.A.S., drawing the same pay and seale of pay. In view of Rule 7-A aforesaid, F.R. 56 is applicable to she employees of the State Government, does not apply to the members of the State Higher Judicial Service, but it is Rule 16 of the Retirement Rules which applies ty them. It is pointed out that, recently the High Court had recommended to the State Government to raise the age of superannuation of the members of this Service to 58 but that, the Government has rejected the proposal. It is contended that the rejection by the Government is in com potent It is a matter which ought to have been placed before, and considered by the Governor of Andhra Pradesh.
The High Court, which if impleaded as one of the respondents in the writ petition, is represented by Sri K. Srinivasa Murtby, The High Court has taken a stand supporting the petitioners'' contentions. It is argued by Sri Srinivasa Murtby that, according to sub-rule (4) of Rule 16 of the Retirement Rules, superannuation gratuity or pension shall be granted to a member of the Service who is required to retire under sub-rule (1) of the said Rule. Sub-Rule (1) of Rule 16 provides that a member of the Service shall be required compulsorily to retire from the service with effect from the afternoon of the last day of the month in which he attains the age of 58 years. It is argued that the payment of superannuation gratuity and pension is inextricably bound up with the retirement under and in accordance with sub-rule (1), which can be only on attainment of the age 58 years. It is pointed out by the learned Counsel that the higher age of superannuation was recommended for the members of this Service, in as much as the normal age of entry into the State Higher Judicial Service, or into the State Judicial Service, is ordinarily higher than the age of entry into any other Government Service. It is pointed out that for becoming a Munsiff, from which category too, persons rise to the higher Judicial service a mere degree in Law is not sufficient and that, ordinarily, an advocate has to put in a minimum of three years'' standing at the Bar before he can be selected as a District Munsif. If a person is appointed as a Judicial Second Class Magistrate, even than he has to put in a considerable number of years of service in that categyry, before he can be promoted to the category of District Munsifs. As against this, it is pointed out, a person can get into a State Service soon after he acquires requisite academic qualifications.
Learned Advocate-General, appearing for the State Government, opposed the stand taken by the petitioners, as well as the High Court. He submitted that Rule 7-A of the State special Rules refer to and import the Retirement Rules only in so far as they deal with, or provide for the death-cum-retirement benefits, and not in their entirety. None of the special Rules framed by the Governor of Andhra Pradesh for the age of superannuation, the age of superannuation is generally provided, for all the members of the State Service by F.R. 56. The purpose of the special Rules is to provide for the conditions of service peculiar to each department. There are general Rules governing all; for example, Fundamental Rules, Conduct Rules, etc. In addition to these, special Rules are framed for each Department having regard to the special circumstancei and requirements of that Department. It could not have been in the contemplation of the Rule-making authority, to import the special rule relating to the age of superannuation, contained in Rule 16 (1) of the Retirement Rules, to the members of this Service. The intention only was to extend the same benefits to the members of this Service, on their death or retirement, as the case may be, as are admissible to the members of the Indian Administrative Service, and nothing more. There are no reasons to give an enlarged meaning to the clear words employed in Rule 7-A. The fixation of the age of superannuation is the exclusive prerogative of the State Government. In that matter it is not required to consult the High Court. The independence of the judiciary, or the necessity to ensure the same, had no relevance on the question of interpretation of Rule 7-A, nor is there any justification or basis for discriminating the member of the State Higher Judicial Service from the State Services, in the matter of the age of retirement. It is further submitted that, with a view to maintain a uniform age of superannuation for all the members of the State Services, the State Government felt obliged to reject the recommendation of the High Court with respect to the raising of the age of retirement for the members for this service. After the 42nd amendment to the Constitution, the State Government itself is the competent authority in the matter, and the matter need not have been placed for the personal consideration of the Governor.
I have given my earnest consideration to the matter and I am of the opinion that the construction placed by the learned Advocate-General upon Rule 7-A is the correct one. Rule 7-A does not seek to extent or apply the Retirement Rules in their entirety to the members of the State Higher Judicial Service. Whas is extended is the ''death-cum-retirement benefits'' as are admissible to the members of the Indian Administrative Service governed by the Retirement Rules in fact the Retirement Rules in their entirety could not have conceivable been extended to the members of this Service. Gne must, therefore, look to the Retirement Rules only for the purpose of finding out the deate-cum-retirement bnefits which are admissible the reunder to a member of the I.AS, drawing the same pay and scale of pay. Can it be paid that the age of retirement is a death-cum-retirement benefit In my opinion it does not. The expression obviously mensa the benefits flowing upon retirement or death, as the case may be. Even the fixation of a higher age of retirement, is not a ''retirement benifit''. It may be a benefit alright; but certainly not a ''retirement benfits''.
There was some discussion at the Bar with respect to the meaning to be attached to the word ''benefits'' in Rules 7A. It has not State Rules. The expression ''retirement benefits has, however been defined by clause (j) in Rule 2 of the Retirement Rules, which have referred to herein before. The definition is, no doubt, inclusive and, according to it, inclutedes pension of gratuity, and death-cum-retirement gratuity, where admissible but it does not, and it cannot take in the age of retirement, or a particular age of retirement, within its purview. Even if it can be said that the definition of the expression ''retirement benefits'' in Retirement Rules is not conclusive for the present purpose, even then I am unable to say that the word ''benefits'' occurring in Rule 7-A of the State Rules can include within its purview the higher age of retirement provided by Rule 16 (1) of the Retirement Rules. The meaning attached to the said word under several enactments as set out in corpus juris secundum. Vol. X at 338 and in Strond, Vol. I of 276, has been brought to my notice, but while looking to them, it is well to remember that a word used in a statute but not defined by it, takes its colour from the context. It would be erroneous to mechanically import the meaning attached to the said expression under some other enactment, into these Rules, without regard to the context.
As observed by Holmes, J. In Towne vs. Eisner (62, Layers Edition 372 (at page 376): "a ward is not crystal, transparent and unchanged. It is the skin of living thought and may very greatly in colour and content, according to the circumstances and the time in which it is used.....". Now, if we look at the scheme of the time State Rules, it would be evident that while Rule 7 extends the same leave salary and travelling allowance as are admissible to a member of the I.A.S., governed by the All India Services (Leave) Rules, Rule 7-A extends the same death-cum-retirement benefits as are admissible to the members of the I.AS, governed by the Retirement Rules. The idea obviously is that in these matters, viz., in the matter of leave salary, travelling allowance, and death-cum-retirement benefits, the members of the State Service shall enjoy the same benefits as are admissible to the members of the Indian Administrative Service. This is a case of what is called ''legislation by reference''. Instead of re-enacting and repeating the Central Rules relating to the aforesaid matters in the State Rules, a provision is made to the effect that in those matters the members of the State Service should be entitled to the same condition as are admissible to the members of the I.A.S. If the intention of the rule-making authority was to extend the benefits of higher age of retirement as well, it would have said so clearly. This in my opinion, is the plain meaning to be attached to Rule 7-A.
Now let me examine whether the necessity of ensuring the independence of the Judiciary, and the control vested in the High Court over the subordinate judiciary by Art. 235 of the Constitution of India, should make any difference to the above interpretation ?
Art. 233 is in two parts. Clause (1) deals with appointment of persons as District Judges by promotion. It says that such appointment, posting and promotion shall be made by the Governor of the State "in consultation with the High Court", Clause (2) deals with direct recruitment to the category of District Judges. According to this clause, only a person "recommended by the High Court for appointment" can be appointed as such by the Governor. It would be evident that this Article has no relevance for the present purpose, for, the expression ''posting� used in the said Article cannot by any strech of imagination, take in the power of determining the age of superannuation.
Art.234 deals with appointment of persons other than District Judges. Accordingly, this Article too has no relevance. It is Art.235 which vests in High Court the control over District Courts and Courts subordinate thereto. Art.235 reads as follows:-
"235. Control over subordinate courts:-
The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with conditions of his service prescribed under such law".
Now, this Article again makes a distinction between District Judges, and the holders of other posts in the State Judicial Service. In so far as the Judicial officers other than District Judges are concerned, the control is specifically made to include the posting, promotion, and grant of leave to such officers. Now, the expression ''control'' used in this Article has been the subject-matter of many a decision by the Supreme Court and the various High Courts in India. It has been held that the word ''control'' in Art. 235 has been used in a very comprehensive sense with a view to ensure the independence of judiciary from the executive. Since the independence of the judiciary from the executive has been a ''fighting faith'' with the founding fathers, the subordinate judiciary has been removed from the influence and control of the executive. It has been held that the control contemplated by Art.235, includes general superintendence of the working of the subordinate Courts, disciplinary control over the presiding judges, imposition of punishment other than dismissal, removal and reduction in rank, and the making of recommendation to impose the punishment of dismissal, removal and reduction in rank; (see Baradakanta Mishra Vs. High Court of Orissa and Another, exclusive power to make enquiries into the conduct of The State of West Bengal Vs. Nripendra Nath Bagchi, confirmation of persons appointed to be, or promoted to be District Judge Samsher Singh Vs. State of Punjab and Another, any further promotion (e. g., to a selection grade) after a person is appointed a State of Assam and Another Vs. Kuseswar Saikia and Others, grant of leave to The High Court of Punjab and Haryana and Others Vs. The State of Haryana and Others, and order of compulsory retirement of a judicial officer which does not amount to dismissal, removal, or reduction in rank State of Haryana Vs. Inder Prakash Anand H.C.S. and Others, . But, no case has been brought to my notice which has held that the ''control'' in Art. 235 comprehends and takes in within its sweep the fixation of the age of superannuation as well. On the other hand, there is an observation to the contrary in the decision of the Supreme Court in State of Haryana Vs. Inder Prakash Anand H.C.S. and Others, . which is strongly relied upon by the learned Advocate-General, to the following effect:
"It is true that the fixation of the age of superannuation is the right of the State Government. (But) the curtailment of that period under rule governing the conditions of service is a matter pertaining to the disciplinary control, as well as administrative control".
Rule 326 (a) of the Punjab Civil Service Rules prescribes the age of superannuation as 58 years. Rule 532 (c), however, provides that "a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of SS years by giving him not less than three months'' notice''''; (I) have extracted the rule as it is stated in the decision of the Supreme Court. It is not a true rendering of the rule- In that case, the High Court did not agree to the State Government''s proposal to retire a particular officer on attaining the age of 55; but recommended that he should be continued in service upto the age of 58 years. The State Government, however, persisted with its opinion and ordered the retirement of the judicial officer, under Rule 532 (c). That order was challenged in the High Court of Punjabi Haryana, which allowed the writ petition and quashed the order. In appeal, the Super me Court affirmed the view of the High Court and held that the action to retire a judicial officer in terms of Rule 5.32 (c) is in the nature of a disciplinary control and, therefore, it vests exclusively in the High Court, by virtue of Art, 235. It was observed :-
"This Court in Samsher Singh Vs. State of Punjab and Another, ) held that when a case is not so removal are dismissal or reduction in rank, any order in respect of exercise of control over the Judicial officers is by the High Court and no other authority. There cannot be dual control. If State Government is to have the power of deciding whether a Judicial Officer should be retained in service after attaining the age of 55 years upto the age of 58 years that will seriously affect the independence of the judiciary and take away the control vested in the High Court. Compulsory retirement is neither suspension nor dismissal nor removal nor reduction in rank. It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily u/s 14 of the Punjab General Clauses Act. The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of Compulsory retirement is to destory the control of the High Court. It is in this context that the Supreme Court made the observation extracted earlier, to the effect that while the fixation of the age of superannuation is the right of the State Government, the curtailment of that period under and in accordance with the Rules being a matter pertaining to disciplinary as well as administrative control, vests exclusively in the High Court. It is true that before the Supreme Court the question, viz., whether the fixation of the age of superannuation is also a matter falling within the expression ''control'' in Art. 235 was not specifically raised; but, still in the absence of any decision to the contrary, and in the light of the language employed in.Art.235.1 am of the said opinion that observation must be taken as reflecting the correct understanding of the Article.
In view of the above, it is unnecessary for me to examine the several decisions cited at the Bar in any detail. I have set out the purport of those decisions briefly at the inception of this discussion.
Learned Counsel for the petitioners expressed an apprehension that, if the fixation of the age of superannuation is held to be the exclusive prerogative of the State Government, it may seriously erodes the independence of the judiciary. It is argued that tomorrow it will be open to the State Government to suddenly reduce the age of superannuation to, say 50 years, and the result would be that all judicial officers in service above the age of 50 years, will have to retire immediately. This device may be adopted if the State Government wishes to get rid of any of the judicial officers above the age of 50, or even with a view to ''teach a lesson. Vesting of such a power in the State Government, it is a argued is likely to shake the independence of the judiciary. I am. however, of the opinion that the picture is over-drawn. Ordinarly it is expected that the executive shall also act consistent with the scheme and spirit of the Constitution, meaning thereby, respecting the independence and integrity of the judiciary. But. If in a given case the executive acts in such an arbitrary or capricious manner, the remedy is not for to seek. It would not be resonable to visualize such an extreme eventuality and make it a basis for giving the plain words employed in Rule 7-A, an elongated and extensive meaning. I am, therefore, of the opinion that the consideration of ensuring the independence of judiciary, transcendent and highly valuable as it is, does not warrant the placing of an expansive interpretation on the language of Rule 7-A as contended for the learned counsel for the petitioners.
Nor am I impressed with the contention of Sri K. Srinivasa Murthy that, by reading sub-rule (4) together with sub-rule (I) of Rule 16 of the Retirement Rules it must be held that the age of superannuation fixed in sub-rule (1) also gets extended to the members of the State Higher Judicial Service. Sub-Rule (1) of Rule 10 provides for more then one matter. It says, a member of the Indian Administrative Service shall be required compoelsrily to retire from service with effect from the afternoon of the last day of the month in which the attains the age of 58 years. It further empowers the State Government to continue as an officer beyond the age of 58 years, on public grounds recorded in writing, but for a period not exceeding six months in agreegate. The continuance in service beyond the period of six months, however, requires the sanction of the Central Government. Further, an officer may be continued, in very special circumstances, even beyond the age of sixty years, Sub-rule (4) merely says that a member of the Service required to retire under sub-rule (1) shall be granted the superannuation gratuity or pension, as the case may be, in accordance with the Retirement Rules. I am unable to say that sub-rule (4) is incapable of being impliemented unless a person retiures at the age of 58, or a higher age. As I have said earlier, we have to look to the Retirement Rules only for the purpose of seeing what are the death-cum-retirement benefits provided by those Rules, to the members of the Indian Administrative Service, and to extend the same to the members of the State Higher Judicial Service.
So far as the rejection by the State Government of the High Court''s recommendation to raise the age of superannuation to 58 years is concerned, it is not necessary for me to express any opinion, for the reason that question does not squarely arise in these writ petitions. The prayer in the writ petitions is not for a direction to the State Government to make a rule in terms of the High Court''s recommendation. Suffice it to indicate that the High Court cannot by itself raise the age of superannuation and that, a rule must be made to that effect by the Governor under the proviso to Art. 309. and no such rule has so far been made. In any event, once it is held that the fixation of the age of superannuation is the right of the State Government, nothing further need be said on this aspect, Learned Counsel for the petitioners have commented critically upon the stand taken by the State Government despite a unanimous recommendation of the High Court. According to them, the State Government, in all fainess and decorum, ought to have accepted the High Court''s recommendation. It is unnecessary for me to express any opinion on this aspect for the reasons indicated above, viz., that question does not squarely arise in these writ petitions. For the above reasons, the writ petitions fail and are, accordingly, dismissed but, in the circumstances, without costs.