Ramesh
Chandra Acharya Vs. Registrar, High Court of Orissa & Anr [2000] INSC 351 (26 June 2000)
M.B.Shah,
K.T.Thomas
Shah,
J.
Question
involved in this petition is Can, for any reason, it be held that Service Rule
which provides that an officer who has no potential for continued useful
service beyond a particular age, is invalid? Nowill be the obvious answer for
various reasons. Further, there can be no right of an employee to continue in
service de hors statutory or administrative rule prescribing superannuation age
and continuation in service could be only subject to the conditions provided.
The question which requires consideration by the authorities is Have we not
reached a stage where services of government or semi-government employees
should be regulated in such a way that only such persons who can render useful
service be continued and not the indolent, infirm and those of doubtful
integrity, reputation or utility? Periodical exercise of reviewing or
evaluating the utility is required for better administration and for removal of
dead wood or persons having doubtful integrity and reputation.
Petitioners
case is that he was appointed on 14th January, 1981 by the High Court of Orissa as a temporary Munsif and he
was confirmed in the said post on 21st December, 1985; he was promoted as a Civil Judge
(Senior Division) in 1993 and was in service since then. It is his further case
that in 1998 High Court of Orissa conducted review in respect of the petitioner
as per Rule 71(a) of the Orissa Service Code and allowed him to remain in
service up to the date of completion of the age of 58 years. On 28th January,
2000, he received a copy of the confidential letter from the Registrar
(Administration), High Court of Orissa addressed to the Secretary, Law
Department, Government of Orissa conveying the decision of the High Court of Orissa
that as per Rule 71(a-1) of the Orissa Service Code, petitioner should be
retired from Government service on attaining the age of 58 years i.e. on 30th
June, 2000. It is his say that on receipt of the said confidential letter, he
submitted a representation by letter dated 3.4.2000 to the High Court seeking
reconsideration of his case by pointing out that this Court has enhanced the
age of superannuation of judicial officers to 60 years and pointed out the
decision of this Court in Rajat Baran Roy and others v. State of W.B and
others, [(1999) 4 SCC 235]. But there was no response. It is his contention
that he has a clean record qua integrity and efficiency and there is no adverse
entry or remark ever made in his confidential record.
Thereafter,
the petitioner received a notification dated 11.5.2000 from the Law Department
of Government of Orissa notifying the State Governments decision to retire him
from the Government service on attaining the age of 58 years.
Hence,
he has approached this Court by filing writ petition under Article 32 of the
Constitution.
At the
time of hearing this petition, Mr. A.S.Nambiar,
learned senior counsel submitted that the Rule 71(a-1) is against the decision rendered
by this Court in All India Judges Association v. Union of India and others,
[(1992) 1 SCC 119] and a subsequent clarification given by this Court in review
application in All India Judges Association and others v. Union of India and
others, [(1993) 4 SCC 288].
For
appreciating the contention raised by the learned senior counsel, we would
first refer to relevant part of Rule 71(a) of the Orissa Service Code. 71.(a)
Except as otherwise provided in the other clauses of this rule the date of
compulsory retirement of a Government servant, except a ministerial servant who
was in Government service on the 31st March, 1939 and Class IV Government
servant, is the date on which he or she attains the age of 58 years subject to
the condition that a review shall be conducted in respect of the Government
servant in the 55th year of age in order to determine whether he/she should be
allowed to remain in service up to the date of completion of the age of 58
years or retired on completing the age of 55 years in public interest:
Provided.
(a-1). Notwithstanding anything contained in sub-rule (a) of rule 71, Judicial
Officer belonging to State Judicial Services, who, in the opinion of the High
Court of Orissa, have a potential for continued useful service, shall be retained
in service up to the age of 60 years.
[NoteThe
potential for continued utility shall be assessed and evaluated by appropriate
Committee of Judges of the High Court, constituted and headed by the Chief
Justice and the valuation shall be made on the basis of the Officers past
record of service, Character Roll, quality of judgments and other relevant
matters. The High Court should undertake and complete the exercise in case of
an officer about to attain the age of 58 years well within time by following the
procedure for compulsory retirement under the service rules applicable to him
and give him the benefit of the extended superannuation age from 58 to 60 years
only, if he is found fit and eligible to continue in service. In case he is not
found fit and eligible, he shall be compulsorily retired on his attaining the
age of 58 years.
This
exercise should be undertaken well in advance before an officer attains the age
of 58 years.] (b). .(c). .
.
In our
view, the aforesaid rule is not only in conformity with the decision rendered
by this Court in the aforesaid case but also in conformity with the requirement
of service jurisprudence. The purpose of increasing the superannuation age for
the judicial officers was with an intention to raise the tone and morale of the
judicial services as a whole but not to continue the officers who have lost
their utility in rendering service to the society.
It
needs no emphasis as it is accepted that the judicial officer is required to
discharge much more greater responsibility to the Society. As observed in All
India Judges Association case (Review) [Para
7], the judicial service is not service in the sense of employment. The Judges
are not employees. As members of the judiciary, they exercise the sovereign
judicial power of the State. Hence, judicial officers must be fit in all
respects for discharge of such onerous duties. In All India Judges Association
case, the Court quoted the following observation of Professor Pannick from his
book entitled Judges: Judges do not have an easy job. They repeatedly do what
the rest of us seek to avoid; make decisions. After detailed discussions, the
Court finally observed [in Para 61] thus:-
The conduct of every judicial officer should be above reproach. He should be
conscientious, studious, thorough, courteous, patient, punctual, just,
impartial, fearless of public clamour, regardless of public praise, and
indifferent to private, political or partisan influences; he should administer
justice according to law, and deal with his appointment as a public trust; he
should not allow other affairs or his private interests to interfere with the
prompt and proper performance of his judicial duties, nor should he administer
the office for the purpose of advancing his personal ambitions or increasing his
popularity.
Hence,
for decidingwhether the judicial officer has potential for continued useful
service, the authority (the High Court) has to take into consideration all the
aforesaid aspects and has to make overall evaluation.
This
Court in the aforesaid case emphasised 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 and, therefore, directed thus:-
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
Court thereafter clarified that the assessment at the age of 58 years is for
the purpose of finding out 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 the assessment to be undertaken for
compulsory retirement and the compulsory retirement at the earlier stage/s under
the respective Service Rules.
It is
apparent that aforesaid directions of this Court are faithfully incorporated in
the aforequoted rule.
Therefore,
the High Court was fully justified in following the aforesaid rules in
evaluating the record of the petitioner for his continued utility in the
judicial service.
Further,
the aforequoted rule does not straightway extend the age of superannuation at
the age of 58 years but it only enables the High Court to retain in service a
judicial officer belonging to the State Judicial Services up to the age of 60
years, if it is in the opinion that such judicial officer has potential to
continue in useful service. For finding out whether he has potential for
continue in useful service, assessment is to be made on the basis of past
record of service, character rolls, quality of the judgments and other relevant
matters, which may include over all assessment with regard to integrity,
reputation and utility.
However,
the learned counsel for the petitioner referred to the decision rendered by
this Court in Rajat Baran Roy and others v. State of W.B. and others, [(1999) 4
SCC 235] and submitted that once the superannuation age is extended to 60
years, there is no question of reviewing it at the age of 58 years. In our
view, this submission is without any substance because it is open to the
competent authority to frame appropriate rules permitting it to assess the
overall performance of the officer periodically to find out whether such
officer has potential for continued utility in service. The aforesaid judgment
only deals with the rule where there was no such specific provision of review
at the age of 58 years and the Court referred to a Memo of Government of W.B.
dated 15.5.1998 extending the superannuation age to 60 years and held that
officers have right to continue till the age of 60 years. Further, the Court
found that power vested under rule 75(aa) of the West Bengal Service Rules
(Part I) were not exercised and in any case from the record it appeared that
there was non- application of mind to the material particulars which were
mandatory for invoking the said rule. The Court, therefore, held that there was
no question of referring to the decision in case of All India Judges
Association (Supra). In our view, the said decision in Rajat Baran Roy has no
bearing in the present case because of specific Rule 71(a).
In
this view of the matter, there is no substance in the contention that Rule
71(a-1) is ultra-virus, invalid or against the judgment rendered by this Court
in All India Judges Association case. We reiterate that in the absence of
specific rule made by the State no judicial officer has a right as such to
continue beyond the age of 58. It is only when the High Court, after reviewing
all aspects of service including the past record of the officer concerned,
specifically orders that in the interest of judicial service of the State it is
necessary to retain the particular officer beyond that age limit and allow him
to superannuate at the age of 60. In other words, continuation beyond 58 years
is permissible only when the High Court makes a positive recommendation in favour
of that officer for such continuation. Otherwise the judicial officer has to
retire at the age of 58. This can be departed from only when the State makes specific
rule otherwise.
The
learned counsel for the petitioner further referred to the decision in M.S. Bindra
v. Union of India and others [(1998) 7 SCC 310] and Madan Mohan Choudhary v. State
of Bihar and others [(1999) 3 SCC 396].
These two cases pertain to compulsory retirement of the officers on a
pre-mature stage and considering facts and circumstances of the case, this
Court observed that judicial scrutiny of any order imposing pre-mature
compulsory retirement is permissible if the order is either arbitrary or mala
fide or it is based on no evidence. However, in this writ petition under
Article 32 it is not necessary for us to examine whether the recommendations
made by the High Court on the basis of Rule 71(a-1) of the Orissa Service Code
is in any way arbitrary or mala fide as it is open to the petitioner to
approach the High Court for his grievances.
Hence,
this petition under Article 32 is not required to be entertained and is
dismissed.
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