Shri Rajat
Baran Roy Vs. State of West Bengal & Ors [1999] INSC 141 (13 April 1999)
N. S. Hegde,
R. C. Lahoti, S. P .Bharucha, 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
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 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 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 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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