T. SAIKUNGA vs THE STATE OF MIZORAM AND 2 ORS

1.Heard Mr. R. Dubey, learned counsel representing the petitioner. On the two earlier hearing dates, we heard Mr. K.N. Choudhury, learned senior

counsel, extensively. Also heard Mr. U.K. Nair, learned senior counsel representing the Gauhati High Court, assisted by Mr. A. Chetri, Advocate and

Mr. A.K. Sarma, learned Addl. Advocate General, State of Mizoram.

The petitioner while posted as the District & Sessions Judge, Aizawl was served with the order/notice dated 11.07.2013 of the Law and Judicial

Department, Government of Mizoram, informing that he having already attained the age of 50 (fifty) years on 20.01.2004 shall retire on the forenoon

of the day following the date of expiry of 3 (three) months, computed from the date following the date of service of the notice. This was done in

exercise of power by the Governor conferred by clause (j) (i) of Rule 56 of the Fundamental Rules. By consequent order dated 17.07.2013 of the

Registrar (Vigilance), Gauhati High Court, the petitioner was refrained from performing judicial works effective from the date of the said order.

According to the petitioner, he received the notice of compulsory retirement on the same date of issue, making him to retire on and from

12.10.2013, whereas, as per service rules he was to retire in January, 2014 on attaining the age of superannuation at 60 years. The grounds of

challenge are varied, in that, he was not afforded opportunity to make representation against the decision taken to compulsorily retire him. Also, if the

remarks recorded in his Annual Confidential Report (ACR) for the year 2012 be the basis, the same could not have been done as his representation

made against the adverse remarks on 18.04.2013 had been rejected on 20.6.2013 without a reasoned and speaking order. It is his contention that

the remarks so recorded in his ACR for the year 2012 does not give out any  finding that he is not fit for continuing in service. Further contention is

that an employee should not ordinarily be retired on ground of ineffectiveness when retirement on superannuation was round the corner. The main

thrust, however, is that the impugned decision was founded on complaint received against the petitioner, which impacted his performance appraisal in

his ACR for the year 2012. According to him, the complaint was never put to any enquiry for ascertaining its veracity. Contention advanced is that the

complaint being the edifice, the impugned decision was illegal, being hit by Article 311(2) of the Constitution of India.

The pleaded stand of the Respondent No. 1, represented by the Secretary to the Government of Mizoram, Law and Judicial Department, Aizawl, is

that the order dated 11.07.2013 was issued pursuant to the orders received from the Gauhati High Court dated 15.05.2013 and 31.05.2013 under the

signature of the Registrar, Gauhati High Court, Aizawl Bench (Respondent No. 3). By the letter dated 15.05.2013 the Department was informed that

in the Full Court Meeting of the Gauhati High Court the recommendation made by the Committee on 07.05.2013, so constituted to examine the

continued utility of all Judicial Officers in the State of Mizoram under the jurisdiction of the Gauhati High Court, was considered and approved. In so

far as the petitioner is concerned, the Full Court considered and approved the Committee’s recommendation that in public interest the petitioner be

not allowed to continue in service. By the subsequent letter dated 31.05.2013, the department was asked to furnish the status of the matter with

reference to the earlier letter dated 15.05.2013.

The counter affidavit filed by Respondent no. 2 i.e. the Registrar General, Gauhati High Court, makes mention that the decision of the High Court

not to extend the service of the petitioner beyond 58 years till 60 years of age was in public interest and not on the basis of complaint received against

the petitioner. It is stated that as per extant Rules the continuation of service of any Judicial Officer can be reviewed at any time and in the present

case the discontinuation of service of the petitioner was not on the sole ground of the complaint that had been received against him. Rather, his overall

performance as a Judicial Officer was considered. The entries in the ACR did not entitle the petitioner to claim continuation in service. As regards the

complaint, it is stated that on the very admission of the petitioner the same was serious in nature where grave allegations was made against him. An

enquiry was conducted by the High Court and it showed that the people of Mizoram, in general, had lost faith on the petitioner in his capacity as a

Judicial Officer. The basis of the decision to compulsorily retire the petitioner, delineated in paragraph 11 of the counter-affidavit, runs as follows:

“11. That with regard to the statement made in the paragraphs 33 and 34 of the Writ Petition, under reply, your deponent states that the deponent

does not admit any facts which are not borne out of records. Â ACR remark cannot, itself entitle an officer to claim continuation of service till 60

years. The service career of a Judicial Officer can be reviewed before completion of 50, 55 and 58 years and continuation in service beyond 50, 55

and 58 years is as per the discretion of the Hon’ble High Court. Rule 26 of the Mizoram Judicial Service Rules provides that nothing in (subrule 2)

shall be considered as preventing consideration for compulsory retirement of a member of the service at any time other than those mentioned in these

Rules (sub-rule 2). It is worth mentioning in this context that after its recent separation from the Executive, the Mizoram Judiciary is passing through a

transitional stage, its functioning is under constant public scrutiny. The preliminary enquiry conducted by the High Court reveals that the conduct of the

writ petitioner fails to inspire public confidence and therefore, they lost faith upon him. The entire service career, which includes remarks in the ACRs,

the performance of the officer on Judicial and Administrative side, his reputation as Judge and his overall performance as a  Judicial Officer are

considered for the purpose of deciding as to whether an officer is to be allowed to continue in service beyond the age of 50, 55 and/or 58 years. In the

present case the High Court upon considering all the above factors took the decision in the administrative side to not allow the petitioner to continue in

service after 58 years of age. The decision being taken in public interest by following the procedure prescribed, the same is required to be maintained.

The decision as such, is a lawful one and not based on any extraneous consideration.â€​

In reply, the petitioner has contended that the impugned decision is not sustainable in law, inasmuch as, the purported review was not done before

he completed 58 years but after completion of 59 years of age, when only few months remained for his retirement. Petitioner also makes reference to

the alleged contradictory stand of the respondents, in that, while on one hand it is projected that the complaint was not the basis of the impugned

decision, yet in the same breath it is projected that the complaint was serious in nature with grave allegations made against him. According to him, the

impugned decision taken on the administrative side is a punitive action, initiated without any show-cause notice and/or formal enquiry. Petitioner also

denied of having admitted to the allegations made in the complaint at any point of time.

Mr. K.N. Choudhury does not dispute the power and jurisdiction of the High Court, in its administrative side, to compulsorily retire a Judicial Officer

as per Rules. The pin-pointed attack questioning the legality of the impugned decision is that the same could not have been founded on the complaint

received against the petitioner, that too, by ignoring the principles of natural justice. This being the nub of attack, it is now to ascertain from the records

whether the complaint was the foundation of the impugned decision.

To begin with, Rule 26 of the Mizoram Judicial Service Rules, 2006 prescribes as under:

 “13. Retirement in Public Interest:

(1) There shall be a committee consisting of three Senior Judges, headed by Chief Justice of the High Court to review the career progress and other

attributes of all Judicial Officers.

(2) This review will be undertaken when the concerned officer(s) attained the age of 50 or has completed 25 years’ service whichever is earlier.

If the committee considers that in public interest the officer should be retired from service, he shall be retired as per the provision of FR 56(J) of

Fundamental Rules. Provided that nothing in sub-rule (2) shall be considered as preventing consideration for compulsory  retirement of a member of

the service at any time other than those mentioned therein.â€​

From the records, it is seen that on 07.05.2013 the quorum constituting the Committee, headed by the Chief Justice of Gauhati High Court, had

examined the issue on the continued utility of the service of the petitioner, among others, beyond the age of 58 years till 60 years. Resolution No. 1

adopted under Item No. 2 was that the petitioner as District & Sessions Judge, Aizawl Judicial District, may not be allowed to continue in service.

 The Full Court Meeting, held by circulation in the month of May 2013, considered the resolution adopted by the Committee and recorded its

approval. Records reveal that in  the matter of continuation of service beyond the age of 58 years till 60 years, the case of the petitioner along with

another Judicial Officer was put up for consideration before the Committee along with the ACRs and Vigilance Reports. The Vigilance Report in

respect of the petitioner records receipt of a complaint from an NGO with allegation of granting bail. An enquiry was made by the Joint Registrar

(Vigilance) and on the preliminary report so submitted, a meeting of the Administrative Committee was held on 20.03.2013 in which it was resolved to

defer the matter and to direct the Joint Registrar (Vigilance) to record the version of the petitioner. On the statement so recorded, the Chief Justice of

Gauhati High Court had directed the Registrar (Vigilance) to furnish his opinion on the version made by the petitioner. The opinion rendered by the

Registrar (Vigilance) was considered by the Chief Justice and a direction was made to the Registry to place the matter before the Administrative

Committee for consideration. Records reveal that the matter was pending before the Administrative Committee.

There is no reflection from the records that the complaint against the petitioner formed the basis of the order/notice of compulsory retirement.

In fact, the complaint had no role toplay as at the time when the impugned decision was taken, the Vigilance Report together with the opinion of the

Registrar (Vigilance) was pending consideration before the Administrative Committee. In the absence of any evidence  of the complaint being the

edifice, it would wholly be surmising to hold otherwise. The stand of the petitioner is factually erroneous. Another aspect that needs to be noticed is

that in respect of the order rejecting his representation dated 18.04.2013, whereby he sought for expunction of the adverse remarks in the ACR for

the year 2012, the same attained finality without any challenge being made thereof in a court of law.

On the question as to the legality and reasonableness of the impugned decision so taken after the petitioner crossed 58 years and was few months

away from normal retirement, it would be suffice to say that Rule 26(2) of the Mizoram Judicial Service Rules, 2006 prescribes an independent

procedure. The proviso thereto speaks of consideration for compulsory retirement of Judicial Officer at any stage. It does not relate specifically to

preretirement review at 58 years of age. The case in hand to compulsorily retire the petitioner was done by strictly adhering to the power and

procedure laid down in Rule 26 of the said Rules. No infirmity can be attributed to the decision taken.

For all the reasons above, we find no merit in the writ petition. The same stands dismissed, however, without any order as to costs.