SUPREME COURT OF INDIA
S.D. Singh
Vs
Jharkhand High Court, through R.G.
Writ Petition (C) No. 393 of 2003
((Mrs.) Ruma Pal and Dr. A.R.Lakshmanan)
07/12/2005
ORDER
1. The question is whether the petitioner could have been asked to retire at the age of 58 years and his service not extended to the age of 60 years. The petitioner was an Additional District Judge. In 2003 he was served with an order dated 14th May, 2003 stating that the Court having assessed and evaluated the petitioner's services had taken a decision not to allow the petitioner the benefit of enhancement of the retirement age from 58 to 60 years. Consequently, the petitioner would have to retire on completion of the age of 58 years on superannuation on 31st December, 2003.
2. The order has been impugned under Article 32 of the Constitution of India on
the ground that the decision relied upon in the impugned order, namely, All
India Judges' Association Vs. Union of India reported in 2 did not apply to the petitioner's case. It is also
submitted that the grounds for not extending the petitioner's services as
disclosed in the counter affidavits filed by the respondents in answer to the
writ petition, were unsustainable in fact and in law.
3. In All India Judges Association Vs. Union of India 1992 (1) SCC 127
this Court had, on an application by the Judges Association under Article 32 of
the Constitution inter alia directed that appropriate rules should be framed or
the extant rules must be amended in all the States and the Union Territories in
respect of judicial services so as to fix the age of retirement at 60 years
with effect from December 31, 1992. This and other directions were reconsidered
by this Court in 1993 on an application for review filed by the Union of India
and various States in All India Judges Association vs. Union of India 2 (referred to as the second All India Judges Association
Case). While disposing of the review application, it was stated 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. The benefit will be available to those who, in the opinion of the
respective High Courts, have 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 officer's past record
of service, character rolls, quality of judgment and other relevant matters.
The High Court should 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 as
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 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 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". *
4. Before giving the aforesaid directions the Court made it clear that "the
directions issued mere aids and incidental to and supplemental of the main
direction and intended as a transitional measure till a comprehensive national
policy is evolved. These directions, to the extent they go, are both reasonable
and necessary." *
5. There is no national policy evolved nor have any rules been framed by the
High Court at Jharkhand for changing the date of retirement as prescribed by
this Court in its decision on the review application.
6. The State of Uttar Pradesh, however, framed rules enhancing the retirement
age to 60 years. The question whether these rules would prevail over the
directions issued in the second All India Judges Association case was
considered again in the case of High Court of Judicature at Allahabad vs.
Sarnam Singh 7 wherein it has been held that
once rules have been framed, the directions given by the Court would not apply.
Therefore, where necessary service rules had been framed extending the age of
retirement, the procedure prescribed in the second All India Judges Association
case would be inapplicable and the concerned officers would continue in service
in accordance with the service rules. However, it was made clear that if there
were no rules framed, then the Judicial Officers were to continue in service
till the age of 60 years in accordance with the directions of this Court in the
earlier case, provided the Officers, on a scrutiny of their service records in
accordance with the directions issued in the second All India Judges
Association case were found suitable for the benefit of extended service.
7. It was made clear that the directions given in second All India Judges
Association case yielded the new rules and therefore it was no longer incumbent
upon the High Court to resort to the procedure on scrutiny of the service
records of all judicial officers before allowing them the benefit of extension
in the age of retirement. The Court in giving this decision followed the larger
bench decision of this Court to the same effect in Rajat Burman Rai vs. State
of West Bengal 6.
8. The issue pertaining to the working conditions of the members of the
subordinate judiciary was again raised in All India Judges Association vs.
Union of India 2000 (2) SCC 247 (referred to as the third All India
Judges Association case). The writ petition which was disposed of by that
judgment was filed having regard to the final report of the Justice Shetty
Commission that there shall be an increase in retirement age of the subordinate
judiciary from 60 to 62 years. The recommendation was negatived (vide paragraph
26 of the judgment) since it was felt that it was inappropriate to provide for
the identical age of retirement for the subordinate judiciary service as well
as for the High Court. This Court, however, recommended that the State
Governments should formulate the appropriate rules for re-employment of the
judicial officers till the age of 62 years if there were vacancies in the cadre
of the District Judge. Other directions which are not relevant for the purpose
of this appeal were also given. The Court then required the States as well as
the Union of India to submit their compliance report by 30.9.2002.
9. It is unclear whether this time frame was for extending the age from 58 to
60 years or for providing for re-employment once the extension up to the age of
60 years had already been provided for statutorily . Be that as it may, as we
have stated earlier the High Court of Jharkhand did not frame any rules in
terms of the directions given by this Court in the second All India Judges
Association case. The decision in the third All India Judges Association case
did not interfere with or modify the directions given in 1993. It would follow,
in our opinion, that the directions as formulated in 1993 in the second All
India Judges Association case would continue to prevail as far as the Jharkhand
High Court was concerned.
10. The High Court, therefore, was required to consider the writ petitioner's
case and after asking for his consent when he neared the age of 52 years to
continue in service, take a decision whether to continue him in such service on
the basis of the service record of the petitioner.
11. It appears that an Evaluation Committee was set up by the High Court.
The Evaluation Committee considered the service records of the petitioner and
recommended that the petitioner and two others should not be continued in
service beyond the age of 58 years. The matter was placed before the Full Court
which approved the recommendations of the Evaluation Committee. The impugned
letter dated 14.5.03 was written to the petitioner in the aforesaid
circumstances. #
12. The petitioner's contention is that he was a very good officer as his
records would show. Reliance has been placed particularly on an order dated
27.9.1999 by which the petitioner along with others superseded several senior
officers to be posted as an Additional District Judge. Reference has also been
made to various remarks in the petitioner's Annual Confidential Reports (ACRs)
that the petitioner was a good officer.
13. It may be noted, at the outset, that the petitioner has not urged any grounds
of malafides. In the counter affidavit it has been stated that the Evaluation
Committee had taken into consideration the petitioner's ACRs from 1976 to 1977,
many of which showed that the petitioner was an average officer particularly in
respect of the years immediately preceding the petitioner's achieving the age
of 58 years. Additionally, it was noted that a vigilance proceeding had been
initiated against the petitioner on the basis of several allegations made
against him including a report made by the inspecting judge who had made an
inspection and had reported that the petitioner did not have a good reputation.
However, it was also noted that as far as the allegation of the inspecting
judge was concerned the matter was placed in the Standing Committee meeting and
was ultimately dropped. Although the petitioner has denied the allegations on
merits, he has not denied in response to the counter affidavit that such a
vigilance case was in fact pending. In the circumstances, it cannot be said
that there was no material on the basis on which the Evaluation Committee and
subsequently the Full Court of the High Court formed the opinion that the
petitioner was not suitable for continuing in service beyond the age of 58
years. The petitioner's reliance upon an order of promotion superseding others
is misplaced since it merely shows that the petitioner was better than those
who were superseded but does not establish that the petitioner was fit to
continue in service. It has been held by this Court in Syed T.A. Naqshbandhi
vs. State of J & K reported in;
"Neither the High court nor this Court, in exercise of its powers of
judicial review, could or would at any rate substitute themselves in the place
of the Committee/Full Court of the High Court concerned, to make an independent
reassessment of the same, as if sitting on an appeal. On a careful
consideration of the entire material brought to our notice by learned counsel
on either side, we are satisfied that the evaluation made by the Committee/Full
Court forming their unanimous opinion is neither so arbitrary or capricious nor
can be said to be so irrational as to shock the conscience of the Court to
warrant or justify any interference. In cases of such assessment, evaluation
and formulation of opinions, a vast range of multiple factors play a vital and
important role and no one factor should be allowed to be overblown out of
proportion either to decry or deify an issue to be resolved or claim sought to
be considered or asserted. In the very nature of things it would be difficult,
nearing almost an impossibility to subject such exercise undertaken by the Full
Court, to judicial review except in an extraordinary case when the Court is
convinced that some monstrous thing which ought not to have taken place has
really happened and not merely because there could be another possible view or
someone has some grievance about the exercise undertaken by the Committee/Full
Court." *
14. We respectfully adopt the view. The writ petition is, therefore dismissed
but without any order as to costs.