High Court Of Judicature At Patna v. R. C. Jain — 1996 DIGILAW 484 (PAT)

Judgment S. N. Jha, J. 1. This letters patent appeal is directed against the judgment and order of a learned Single Judge of this Court on a writ-petition filed by respondent No.1, Sri R. C. Jain, challenging the administrative decision of the High Court refusing to allow him the benefit of the enhanced superannuation age, from 58 years to 60 years. The learned Single Judge has held that the case of the respondent for his continuance beyond 58 years deserves reconsideration and, accordingly, permitted him to make representation before the Hon ble the Chief Justice to place his case before the Full Court for reconsideration. 2. The Supreme Court by its judgment in the All India Judges Association v. Union of India (AIR 1992 Supreme court 165) directed that the superannuation age of judicial officers be raised to 60 years. While maintaining the said direction in the review judgment reported in AIR 1993 Supreme Court 2493, the Supreme Court observed (at page 2509 of the report):- "there is, however, one aspect we should emphasise here. To what extent the direction contained in the main judgment under review shall stand modified. The benefit of the increased 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 judicial system. 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 Justice of the High Courts and 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 High Court should undertake and complete the exercise in cases of officers due 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. "the High Court should undertake and complete the exercise in cases of officers due 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 and legible by this standard should not be given the benefit of higher retirement age and should be compulsory retired at the age of 58 years by following the procedure for compulsory retirement. . . 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 benefit of the increased age of superannuation from 58 years to 60 years. It is addition to assessment to be undertaken for compulsory retirement at the earlier stage/s under the respective Service Rules. " 3. An Evaluation Committee was accordingly constituted by Hon ble the chief Justice of this High Court to consider the case of respondent No.1 and six others, who were about to attain the age of 58 years within next six months. While three of them were found to have potential for continued useful service and were granted the benefit of the increased retirement age, the rest four including respondent No.1 were denied the benefit. The resolution of the evaluation Committee dated 29.6.95, as regard respondent No.1 runs as follows:- "shri Rishav Chandra Jain had not been confirmed in the rank of subordinate judge when it became due as his work had been found to be not upto the mark in the year 1983. He had been found superseded when the case of promotion to the selection grade post of Bihar Superior judicial Service was considered and on sympathetic consideration he was given that late on 12.7.1994. In March, 1995 itself he was not found fit for promotion to the Super Time Scale and as such he was not granted the Super Time Scale. The Inspecting Judge in the year 1989 had found gross financial irregularity committed by him in the matter of purchase of liveries. His general reputation was not at all satisfactory and as such the Committee resolved not to continue him beyond 58 years. The Inspecting Judge in the year 1989 had found gross financial irregularity committed by him in the matter of purchase of liveries. His general reputation was not at all satisfactory and as such the Committee resolved not to continue him beyond 58 years. " Latter, the opinion of the Evaluation committee was endorsed by the Full court on 22.7.95 and the same was communicated to the respondent by the High Court on 25.7.95. 4 The facts as regards the service history of the respondent so far as relevant, which are not in dispute, may shortly be stated as follows. The respondent was appointed to the Bihar Judicial service as Munsif on probation on 1.11.65. He was confirmed in that post with effect from 1.11.65. He was promoted to the post of subordinate judge on 18.8.74. He was due for confirmation on that post with effect from 1.12.78. On 23/24.3.82, when his case came up for consideration the Standing committee did not find him fit for the same and he was kept under watch. On 16.2.85 again he was not found fit. Finally, on 13.3.87 he was confirmed but with effect from 1.12.83. In the meantime many of his juniors had been confirmed. He was thereafter promoted io the Bihar Superior Judicial Service. He was confirmed in the Superior Service with effect from 1.12.86! He was appointed District and Sessions Judge on 22.9.88. He was initially not found fit for promotion to the Selection Grade in the superior Judicial Service on 17/18.7.91. Later, on 12.7.94, he was promoted to that Grade with effect from 1.12.90. However, he was again not found fit for the Super Time Scale in March 1995. 5. According to the stand of the high Court although the respondent was promoted to the post of Subordinate Judge and then to the Bihar Superior Judicial Service, his belated confirmation on the post of Subordinate judge, five years after the due date, delay in promotion to the Selection grade and denial of further promotion to the Super Time Scale in the Superior judicial Service were due to adverse a. C. Rs, Thus, according to the High court, his past record of service was not such as to justify giving him the benefit of the increased retirement age. Besides adverse service record, his general reputation was also not satisfactory. Besides adverse service record, his general reputation was also not satisfactory. The inspecting Judge of the concerned judgeship had also recorded adverse remarks relating to gross financial irregularities said to have been committed by him in the matter of purchase of liveries in 1989. 6. In paragraph 9 of the judgment the learned Single Judge took notice of the facts, which, according to him, had weighed with the Evaluation Committee. The learned Judge, however, preferred to go into the merit of the decision. He held, as regards non- confirmation of the respondent on the post of subordinate Judge from the due date, that the same was because of an adverse entry of the year 1983 which was Subsequently expunged. As regards belated promotion to the Selection Grade in the bihar superior Judicial Service, the learned Single Judge held that the respondent was initially superseded in the matter of promotion but he was later promoted from the due date and there was nothing in the resolution of the Standing Committee to suggest that the promotion was given on sympathetic consideration. Earlier in paragraph 8 of the judgment, while dealing with the case of the respondent that the allegation involving grant of bail to one Kiran kumari had also weighed with the evaluation Committee in denying him the benefit of the enhanced superannuation age although, as a matter of fact, the bail had been granted by his predecessor-in-office Sri S. M. I. I. F. Alam, the learned Single Judge found that the respondent had been asked to submit his comment on the complaint but he sat over the matter for more than one year and no report was received by the Registry and, therefore, the mistake, if any, committed by the Registry in not putting up the correct note was bona fide and not deliberate. The learned judge also observed that although the resolution of the Evaluation Committee does not indicate that the committee specifically took into consideration the allegation of Kiran Kumari in forming opinion that general reputation of the respondent was not at all satisfactory but as there was no adverse entry in the a. C. Rs. of the respondent touching upon his integrity, it was "difficult to rule out" the possibility of the said allegation weighing with the Evaluation committee and the Full Court. of the respondent touching upon his integrity, it was "difficult to rule out" the possibility of the said allegation weighing with the Evaluation committee and the Full Court. As regards the allegation of financial irregularities, the learned Single Judge observed that the adverse report of the inspecting Judge which was submitted in May 1989, which did not stand in the way of his subsequent promotion to the selection Grade in the Bihar Superior judicial Service on 1.12.90 from the due date, implying that the same was of no consequence. 7. On these findings the learned single Judge held that the petitioners case for his continuance in service beyond 58 years deserves reconsideration and permitted him to make representation before the Hon ble the Chief justice in that regard. 8. With due respect to the learned single Judge, he exercised the jurisdiction as if he was sitting as a Court of appeal. Firstly, while making judicial review under Article 226 of the Constitution the high Court is not supposed to sit as a Court of appeal and examine the correctness of the decision; it can only examine the correctness of the decision-making process. Secondly, the benefit of the increased age of Superannuation is not to be given to the Judicial officers automatically. It depends on evaluation and assessment of is future potential for continued useful service. It should be kept in mind that the right of Judicial officers to continue upto the age of 60 years does not flow from any rule or statute, it flows from the judgment of the Supreme court in the All India Judges Association case (supra ). So far as the superannuation age as provided in the statutory rules, known as Bihar Service Code in the State of Bihar, is concerned, the same remains to be 58 years. 9. I have already quoted above the relevant portion of the judgment in the all India Judges Association case (AIR 1993 Supreme Court 2493 ). It is clear therefrom that the benefit of the increased retirement age can be made available to only those officers "who have potential for continued useful service". The potential is to be assessed "on the basis of Judicial officers" past record of service, character rolls, quality of judgments and other relevant matters. " there must, therefore, be something positive in the past record of service, character roll, etc. The potential is to be assessed "on the basis of Judicial officers" past record of service, character rolls, quality of judgments and other relevant matters. " there must, therefore, be something positive in the past record of service, character roll, etc. to justify continuance beyond the age of 58 years. In the instant case, instead of pointing out any positive thing, the attempt of the respondent has been to show that by reason of the subsequent events, the effect of the non-confirmation in the post of Subordinate Judge from due date or non-grant of the Selection Grade in the bihar Superior Judicial Service, at the first instance, or adverse report of the inspecting Judge, had been wiped out. 10. There is distinction between compulsory retirement simpliciter in the service Rules and compulsory retirement (as it is called in Rule 73 of the bihar Service Code) on reaching the statutory superannuation age of 58 years (that is, not giving the benefit of the increased superannuation age ). The expunction of adverse remarks and/or subsequent confirmation/grant of promotion to Selection Grade might be said to be irrelevant consideration, if it had been a case of compulsory retirement simpliciter. Although in the instant case, as noticed above, even the subsequent events did not completely wipe out the adverse effects of non-confirmation in the post of Subordinate Judge, which was given five years after the due date. Many of his juniors had been confirmed in the meantime and they stole march over him throughout their inter se service career. That certainly caused a permanent scar mark in the service career of the respondent. Besides, he was not found fit for promotion to the super Time Scale as recently as in march 1995. I do not, therefore, having regard to the past service record and the character roll etc. think that the respondent could main ain his case for continuance in service beyond the age of 58 years. 11. In the above premises, I am of the view that the judgment of the learned Single Judge is not in accordance with the judgment of the Supreme court in the All India Judges Association case (AIR 1993 Supreme Court, 2493) and the same deserves to be set aside. 12. Mr. 11. In the above premises, I am of the view that the judgment of the learned Single Judge is not in accordance with the judgment of the Supreme court in the All India Judges Association case (AIR 1993 Supreme Court, 2493) and the same deserves to be set aside. 12. Mr. Shashi Anugrah Narain, additional Advocate-General No. II, appearing on behalf of the appellants, submitted that the case is covered by the majority judgment of the Special Bench in the case of Anirudh Prasdd Chaudhary v. State of Bihar decided by Special bench of this Court 1996 (1) PLJR 633 : 1996 (1) BLJ 572 . He placed reliance on the following observations at pages 656-57 of the Report:- "but in the instant case it is resolution and decision of the Full Court against which the present writ petitions have been filed, and as it has been emphasised by the Apex Court, the High Court cannot examine for itself the service records and substitute its own judgment after the judgment of the Review Committee. The decision of the Full Court is quite correct and the scope of judicial review is not directed against the decision arrived at by the Full Court but only against the decision-making process. This Court, therefore, in my opinion, would neither be justified to examine for itself the service records of these petitioners, including petitioners in first and second writ petitions, as an appellate Court, nor this Court can substitute its decision for that of the expert body like the Full Court on administrative side. The scope of judicial review, in my opinion is very narrow. It is not to be equated to the power of an appellate Court. This Court in the exercise of its discretionary power under Articles 226/227 of the Constitution cannot substitute its own decision for that of the Full court. The judicial review is not against the decision but the decision-making process only. It is not to be equated to the power of an appellate Court. This Court in the exercise of its discretionary power under Articles 226/227 of the Constitution cannot substitute its own decision for that of the Full court. The judicial review is not against the decision but the decision-making process only. In view of the dictum laid down in the aforesaid catena of the decision rendered by their Lordships of the Apex court and other Courts, and having regard to the facts and circumstances of the present case, as the Full Court, on administrative side was concerned to decide the question as to whether the petitioners can be granted enhanced age of superannuation, keeping in view the guidelines in all India Judges Association case (supra)the Full Court decided that the petitioners did not deserve the enhanced age of superannuation. The Judicial review is not of the decision arrived at by the Full Court but only in respect of the decision-making process. I, therefore, do not find any mistake or error in the decision-making process. Consequently the decision or the resolution of the Full Court is not amenable to a judicial review, as the entire relevant facts including the guidelines have already been taken into account. " 13 In the instant case, no error in the decision-making process has been pointed out. It is not possible to sit in appeal over the resolutions of the evaluation Committee and the Full court, as the learned Single Judge in his seemingly innocuous judgment (because he apparently merely permitted the respondent to make representation to the Chief Justice) tried to do. In view of the majority judgment of the special bench also, the judgment under appeal cannot be sustained. 14. In the result, the impugned judgment of the learned Single Judge is set aside and the writ-petition of respondent No.1 is dismissed. This appeal is, thus, allowed but without any order as to cost. 15. Before we part with this judgment, we may mention that we did not get the benefit of assistance from the respondents counsel. In the circumstances mentioned in the order dated 31.7.96 the respondents Counsel did not participate in the hearing as a result of which the appeal was heard ex parte. Appeal Allowed.