Patna Vs. Shiveshwar
Narayan and ANR.
Shiveshwar Narayan Vs.
High Court of Judicature, Patna & ANR.
J U D G M E N T
R.M. LODHA, J.
1.
These
two appeals, by special leave, are from the judgment dated May 20, 2005 of the
High Court of judicature at Patna (for short "the High Court")
whereby the Division Bench of that court allowed the Writ Petition filed by
Shri Shiveshwar Narayan (for short "Judicial Officer") and quashed the
communication dated July 30, 2003 and directed the High Court on its administrative
side to re evaluate the case of the Judicial Officer (petitioner therein) for
extension of service upto the age of 60 years.
2.
One
appeal has been filed by the High Court through its Registrar General and the other
by the Judicial Officer.
3.
In
appeal filed by the High Court, challenge is to the judgment dated May 20,2005
whereby its communication on the administrative side dated July 30, 2003 refusing
extension of service to the Judicial Officer beyond the age of 58 years has
been quashed. In the other appeal, the grievance of the Judicial Officer is
that on allowing the Writ Petition, the Division Bench was not justified in directing
the High Court on its administrative side to re- evaluate the case of Judicial Officer
for extension of service for two years. 4. In All India Judges' Association and
others vs. Union of India and others1, this Court directed the enhancement of the
superannuation age of the judicial officers to 60 years. While directing so,
this Court made it clear that the benefit of increased age to 60 years shall not
be available automatically to all the judicial officers and the benefit will be
available to those who, in the opinion of the respective High Courts, have a
potential for continued useful service.
4.
In
light of the decision in All India Judges' Association1, the Chief Justice of the
High Court constituted the Evaluation Committee for assessment and evaluation of
service record concerning sixteen judicial officers, the present Judicial
Officer being one of them, to find out whether they have potential for continued
useful service upto 60 years. The case of the present Judicial Officer was required
to be considered for extension of service as he was attaining the age of 58 years
on July 15, 2003 and by virtue of the State Government's decision dated September
29, 1973 he was entitled to work till the last date of July, 2003 only. The Evaluation
Committee on consideration of the present Judicial Officer's entire service record
and also having considered the quality of judgments, character rolls and other relevant
material including general reputation, efficiency, integrity and honesty,
finally resolved on July 10, 2003 that he was not fit for further continuance in
service in public interest as he does not have the potential for continued
useful service.
5.
The
report of the Evaluation Committee came up for consideration before the Full Court
of the High Court on July 26, 2003 and the Full Court unanimously, on that day,
accepted and approved the decision of the Evaluation Committee denying the
benefit of increase of retirement age to the present Judicial Officer.
6.
On
July 30, 2003, Judicial Officer received a communication from the Registrar
General of the High Court informing him that he was not being given the benefit
of enhancement of retirement age from 58 to 60 years.
7.
The
Judicial Officer challenged the Communication dated July 30, 2003 in a Writ Petition
before the High Court and the Division Bench of that Court, as indicated above,
by its judgment dated May 20, 2005, quashed the communication dated July 30,
2003 and further directed the High Court on its administrative side to re-evaluate
his case for extension from 58 to 60 years.
8.
In
para 30 of the All India Judges' Association1, this Court stated as follows: ".......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 officer's past record of
service, character rolls, quality of judgments and other relevant matters."
9.
The
direction for increase of retirement age to 60 years by this Court on consideration
of the factors as indicated therein was basically of transitory nature until the
statutory rules were put in place by respective State governments. However, no
statutory rules were framed nor the rules governing superannuation were amended
in the State of Bihar until 2003 and, therefore, the case of the present
Judicial Officer for increase of retirement age to 60 years had to be considered
in accordance with the judgment of this Court in All India Judges' Association.
10.
The
primary consideration for the High Court in extending benefit of increase in
the retirement age of the Judicial Officer is his continued usefulness in the
service based on entire service record, quality of judgments, his conduct, integrity
and all other relevant factors. A Judicial Officer may have a service record
not tainted by many adverse remarks; he may have got promotion from time to time
but still he may be found to be lacking in potential for continued useful service.
In assessing potential for continued useful service, obviously entire record of
service, character rolls, quality of judgments are of considerable importance. At
the same time, over-all reputation of a Judge in the entire period of service, his
judicial conduct, objective and impartial performance throughout his career are
the relevant factors which also have to be kept in mind. A Judicial Officer is not
an ordinary government servant; he exercises sovereign judicial power. Like Caesar's
wife; he must be above suspicion. The personality of an honest judicial officer
is ultimate guarantee to justice. The judicial officers hold office of great trust
and responsibility and their judicial conduct must not be beyond the pale. A slightest
dishonesty (monetary, intellectual or institutional) by a judicial officer may have
disastrous effect. The repeated complaints of judicial impropriety and questionable
integrity against a judicial officer - although not proved to the hilt - may be
sufficient basis to disentitle such judicial officer the benefit of extension
of retirement age to 60 years.
11.
The
Evaluation Committee comprising of eight Judges including the Chief Justice on examination
of the past service record, character rolls, quality of judgments and matters
like general reputation, efficiency, integrity and honesty did not consider the
present Judicial Officer fit for continued useful service after attaining the
age of 58 years. The Full Court unanimously accepted and approved the decision
of the Evaluation Committee. The question to be considered by us, is whether the
Division Bench was justified in its power of judicial review under Article 226 of
the Constitution of India to interfere with the unanimous administrative
decision of the Full Court?
12.
Lord
Hailsham in Chief Constable of the North Wales Police vs. Evans2 made the
following statement: "......The purpose of judicial review is to ensure that
the individual receives fair treatment, and not to ensure that the authority, after
according fair treatment, reaches on a matter which it is authorised or
enjoined by law to decide for itself a conclusion which is correct in the eyes
of the court."
13.
In
State of U.P. and others vs. Maharaja Dharamander Prasad Singh and others3, it
was held by this Court that judicial review is directed, not against the
decision, but is confined to the examination of the decision-making process.
14.
Recently,
in the case of Centre for PIL and another vs Union of India and another4, a
three Judge Bench of this Court stated that a difference between judicial
review and merit review has to be kept in mind.
15.
The
present Judicial Officer joined the judicial service on April 8, 1974 as a
Munsif and over the years got promotion. He was promoted to the post of Additional
District & Sessions Judge on July 2, 1987 and confirmed as such on March 1,
1991. He was further promoted to the post of District & Sessions Judge on May
1, 1998. From the material on record, it is apparent that in the course of his
service, ten complaints were received against him from time to time. In the complaints,
there were allegations that he decided cases on considerations other than judicial;
he indulged in mis-behaviour and use of unparliamentary language while conducting
court proceedings; he granted bail in a triple murder case where the High Court
had rejected the bail thrice; he committed irregularities in the judicial proceedings
etc.
In relation to some of
the complaints, inquiries were instituted. In one of the inquiries relating to
grant of bail orders, it was found that the bail orders, passed by the Judicial
Officer, were not sound but the inquiry was dropped as there was delay in
making a complaint. In yet another complaint relating to grant of bail orders, although
it was found that the bail orders were not sound but no action was taken on the
administrative side as it was opined that the merits of these orders would be
seen on judicial side. In respect of his mis-behaviour with a member of the Bar,
in inquiry, the District & Sessions Judge, Sasaram did find that unpleasant
words were used by the Judicial Officer but the advocate was also found to have
used unpleasant words and, therefore, no action was taken. He was also found
lazy in the confidential roll of the year 1982-1983. In a service span of almost
30 years, most of the time, the Judicial Officer has been adjudged as an "average
officer". It is true that entry "below average officer" was
expunged but the fact of the matter is that he has never been adjudged an "outstanding"
or "very good officer".
16.
In
the backdrop of the above material, if the Evaluation Committee formed an opinion
that Judicial Officer did not have potential for continued service and that decision
has been accepted and approved by the Full Court unanimously, can it be said
that the decision of the Full Court in not extending benefit of increase of retirement
age to 60 years is based on irrelevant considerations or no material? In our
view, the answer has to be no. The use of the expression by the Evaluation Committee
in its resolution viz; 'further continuance in service will not be in public
interest' has to be read in the context of the subsequent expression immediately
following i.e. 'as he does not have the potential for continued useful service'.
The Evaluation Committee
evaluated and assessed the case of the Judicial Officer with a primary object to
find out as to whether Judicial Officer has potential for continued useful service
and having regard to the entire service record, character rolls, quality of judgments
and other relevant factors, concluded that he does not have potential for continued
useful service. The Full Court unanimously accepted and approved the view of the
Evaluation Committee. The decision making process is, thus, not at all flawed. Unfortunately,
the Division Bench considered the matter as if it was sitting in appeal over
the decision of the High Court on administrative side which, in our view, was not
permissible. The consideration of the matter by the Division Bench shows that
it has gone into the correctness of the decision itself taken by the High Court
on the administrative side and not the correctness of the decision making
process.
17.
On
a careful reading of the judgment of the High Court, we are of the view that
the Division Bench failed to keep in mind the distinction between judicial
review and merit review and, thereby committed a serious error in examining the
merits of the decision of the Full Court.
18.
To
find out the potentiality of a Judicial Officer for continuation in service beyond
the age of 58 years following the decision of this Court in All India Judges' Association1,
obviously, the entire record of service, character rolls, quality of judgments
and other relevant circumstances like general reputation, integrity, efficiency,
performance, conduct etc. do form the basis but at the same time, it is not
'proved dishonesty' or 'proved mis-conduct' that is determinative but doubtful
integrity or suspicious judicial conduct may be sufficient to deny a judicial
officer benefit of enhancement of superannuation age to 60 years. It is in
totality of the circumstances available from the entire service record and all other
relevant circumstances that an opinion has to be formed whether or not the
Judicial Officer deserves to be given benefit of increase of superannuation age
to 60 years.
19.
The
present case is a case where the Division Bench embarked upon exercise of examining
each complaint and material against the Judicial Officer to find out the correctness
of the decision of the Full Court which was legally not permissible. The weight
of the material is not capable of re-assessment while sitting in judicial review
over such decision. Even if, some other view is possible on the material that was
considered by the Evaluation Committee and the Full Court to evaluate Judicial
Officer's case for extension of superannuation age to 60 years, in our opinion,
that did not justify interference in the decision of the Full Court which was founded
on material and relevant considerations.21. We may observe that there is not even
an iota of allegation of bias or mala fides- nor it could have been- against
the decision making authority.
20.
22.
The Division Bench of the High Court was, thus, clearly in error in interfering
with the decision of the High Court on administrative side in not extending the
benefit of enhancement of retirement age of the Judicial Officer from 58 to 60
years.
21.
23.
Consequently, Civil Appeal No. 6103 of 2005, High Court of Judicature, Patna vs.
Shiveshwar Narayan and another is allowed and Civil Appeal No. 7372 of 2005, Shiveshwar
Narayan vs. High Court of Judicature at Patna and another is dismissed. Parties
shall bear their own costs.
.......................J.
[R.M. LODHA]
.......................J.
[JAGDISH SINGH KHEHAR ]
NEW
DELHI
SEPTEMBER
22, 2011.
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