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2000 DIGILAW 404 (PAT)

Nawal Kishore Prasad v. State Of Bihar

2000-03-10

N.N.SINGH, R.N.SAHAY

body2000
Judgment R.N.Sahay, J. 1. By this application under Article 226 of the Constitution of India, the petitioner, who at the relevant time was Secretary, Bihar Legislative Council, has impugned the validity of the communication contained in the letter of the Registrar, Patna High Court dated 10.12.1996 (Annexure-4), whereby it was communicated to the petitioner by the High Court that having assessed and evaluated the services of the petitioner in the light of the decision of the Supreme Court dated 24.8.1993 in All India Judges Association case AIR 1993 SC 2493 , the Court has been pleased to decide not to allow him benefit of enhancement of retirement age from 58 years to 60 years, thereby the petitioner has ceased to be a member of the Judicial Service on completion of age of 58 years. The petitioner has prayed for quashing of the said communication and has further prayed for a writ of mandamus or any other appropriate writ commanding the High Court to grant enhancement of service to the petitioner up to 6w years age with all benefits. 2. The petitioner seeks reliefs prayed for on the ground that denial of benefit of enhancement of service to the petitioner was grossly unreasonable and wholly unwarranted inasmuch as the petitioner was denied an objective and adequate consideration of his case and ostensibly this Court on its administrative side took into consideration the existence of certain extraneous facts which are wholly imaginary and non-existent. The decision was in the teeth of assertion of the Hon ble Supreme Court in All India Judges Association case and consequently the petitioners fundamental rights have been violated. 3. The petitioner entered Bihar Administrative Service (Judicial Branch) on 4.2.1963 as a Munsif. His services were confirmed in due time He served in the rank of Munsif from 4.2.1963 to 25.2.1975 at various places to the satisfaction of the High Court. There was never any complaint against him by any section of Bar, Court or the public and he was never communicated any adverse remarks and displeasure. 4. The petitioner was promoted to the rank of Additional Subordinate Judge on 26.2.1975. He was placed in permanent Court of Subordiante Judge at Biharsharif in February 1978 and was made Sub-Judge I Patna in 1979-80. In August 1980, he was selected for the post of Chief Judicial Magistrate, Dhanbad and was posted as such in August 1980. 4. The petitioner was promoted to the rank of Additional Subordinate Judge on 26.2.1975. He was placed in permanent Court of Subordiante Judge at Biharsharif in February 1978 and was made Sub-Judge I Patna in 1979-80. In August 1980, he was selected for the post of Chief Judicial Magistrate, Dhanbad and was posted as such in August 1980. The petitioner discharged his functions as the Chief Judicial Magistrate, Dhanbad from August 1980 to June 1983andno complaint whatsoever was made against him during his tenure from any quarter. 5. The petitioner was promoted to the rank of Additional District & Sessions Judge in June. 1983 and he served in that capacity at Dhanbad, Ara and Bhagalpur till March 1991 The petitioner during this period was considered for special post of Professor of Law in Lal Bahadur Shastri Academy, Mussorie and accordingly his name was recommended by this Court for the said appointment. The petitioner was considered for nomination in I.A.S. cadre and his consent was sought by the respondents. He was confirmed in the Cadre of Bihar Superior Judicial Service with effect from 1.2.1987. 6. The petitioner was promoted to the post of District and Sessions Judge in April 1991. and functioned as District Judge, Gumla, Nalanda and Hazaribagh from April 1991 to November 1994. He was granted Selection Grade of Bihar Superior Judicial Service with effect from the due date, i.e., 1.1.1990 by Notification dated 2.9.1991. 7. The petitioner submits that the selection and recommendation for the Special Post was made by the Standing Committee of the High Court on consideration of the service records and character rolls of the concerned officer. The petitioner was recommended by this Court for the post of Law Secretary, Government of Bihar and Secretary, Bihar Legislative Council. Accordingly, he was selected on 6.12.1994 vide Notification dated 16.11.1994. The petitioner worked on the said post till he superannuated from service at. the age of 58 years on 30.6.1997 since he was denied benefit of enhancement of service. 8. The petitioner before his superannuation was granted Super Time Scale in December 1995 with effect from 3.11.1994 vide Notification dated 27.12.1995. All through the petitioner had clean service record. 9. The petitioner worked on the said post till he superannuated from service at. the age of 58 years on 30.6.1997 since he was denied benefit of enhancement of service. 8. The petitioner before his superannuation was granted Super Time Scale in December 1995 with effect from 3.11.1994 vide Notification dated 27.12.1995. All through the petitioner had clean service record. 9. The petitioner was sure that he would be given benefit of enhanced retirement age up to 60 years but he got a shock on reading a news item published in "The Hindustan Times" dated 4.12.1996 that owing to certain adverse remarks, the petitioner is not given extension of service up to 60 years. The petitioner laments publication of the said news item tarnished his image beyond repair. Therefore, the petitioner was served with the impugned notification of the Registrar-General. The petitioner filed a detailed representation on 3.2.1997 before this Court for review of its decision but his representation was rejected without assigning any reason. The rejection order was communicated by Annexures-5 and 6. 10. In the light of the foregoing facts, it was emphatically submitted by the learned Counsel for the petitioner that the decision of this Court not to grant enhancement of service to the petitioner was clear violation of the direction of the Supreme Court under Article 141 of the Constitution of India in All India Judges Association Case (supra). Relying on the decision of the Supreme Court, it was submitted that by no stretch of imagination, it. was possible for this Court to come to the conclusion that the petitioner was indolent, infirm or of doubtful integrity and reputation and that the potential for continued utility of the petitioner has been assessed on the basis of the record of service. Consideration of petitioners case was de hors the record of service, character rolls, quality of judgment and other relevant matters. 11. In All India Judges Association case (supra), the Hon ble Supreme Court laid down the guidelines for grant or refusal of benefit of enhancement of service. Hon ble Supreme Court laid as under: 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 Rules applicable to the Judicial Officers. Hon ble Supreme Court laid as under: 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 Rules applicable to the Judicial Officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement of 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 officers concerned 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 stages under the respective Service Rules. 12. Further it has been held "...the entire service record of character rolls or confidential records would furnish the backdrop for consideration of the Government or Review Committee or the Authority...". 13. It is, therefore, evident that the entire service record of the incumbent has to be gone into to take a decision regarding compulsory retirement of the officer concerned. In the aforesaid facts and circumstances of the case, it is submitted that no reason has been assigned by the respondents for not granting benefit of enhancement of service to the petitioner. The petitioner is entitled to enhancement of service as a matter of course. It is submitted that the petitioner has been denied legitimate enhancement of service without informing the grounds for denial. The impugned decision is, therefore, impermissible and visited by the vice of arbitrariness. 14. The moot question for consideration is whether the decision of the High Court not to grant enhancement to the petitioner suffers from extreme arbitrariness or the decision is based on proper assessment of the service record of the petitioner in the light of the guidelines laid down by the Supreme Court in of All India Judges Association case (supra). 15. The moot question for consideration is whether the decision of the High Court not to grant enhancement to the petitioner suffers from extreme arbitrariness or the decision is based on proper assessment of the service record of the petitioner in the light of the guidelines laid down by the Supreme Court in of All India Judges Association case (supra). 15. A counter-affidavit has been filed on behalf of respondents No. 2 and 3 by Joint Registrar (Estab.). The factual aspect of the case has not been controverter in the counter-affidavit. The High Court tried to defend its action on the ground that the case of the petitioner was considered by the Evaluation Committee in the light of the relevant documents and other in formations and it took decision not to recommend the petitioners case for enhancement from 58 years to 60 years which was finally approved by the Full Court of Patna High Court. It has not been disclosed in the counter-affidavit as to what documents and other in formations were taken into consideration of the petitioners case beyond his service record. Learned Counsel for the High Court has submitted that the grant of relief under Article 226 of the Constitution of India is discretionary hence the High Court should be refrained from interfering in judicial side. Powerful body like Full Court of the High Court approved the recommendation of the Evaluation Committee constituted by the Hon ble Chief Justice. 16. Learned Counsel for the High Court has relied on the following, passage from the Judgment of the Supreme Court in All India Judges Association case (supra): ...the benefit of the increase of the retirement age of 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 not be available to those, who in the opinion of the respective High Courts have potential for continued useful service. It is not intended as windfall for the indolent the inform and those of doubtful integrity, reputation and utility. The benefit will not be available to those, who in the opinion of the respective High Courts have potential for continued useful service. It is not intended as windfall for the indolent the inform and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by the appropriate Committee 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.... 17. The petitioner has also founded his case on the said observation of the Supreme Court. 18. On the request of the Counsel for the High Court, opportunity was given to the Joint Registrar to file a detailed counter-affidavit and a supplementary counter-affidavit was filed. There is no denial of the averments made by the petitioner in the writ petition. The counter-affidavit is nothing but argumentative. 19. In Anirudh Prasad. Choudhary V/s. The High Court of Judicature at Patna and Ors. 1996 (1) PLJR 633 (SB), a Special Bench decision of this Court comprising five Hon ble Judges ruled that a writ petition under Article 226 of the Constitution of India is maintainable against the Full Court decision of the High Court on administrative side. Special Bench further held that the Full Court was not obliged to give reasons for its decision and in absence of reasons alone it cannot be said that the decision of the Full Court was bad in law. One of the learned Judges made following pertinent observations: 132. But, then the aggrieved persons may legitimately ask how is he going to ventilate, his grievance against the decision of the Full Court and how would the Court be able to effectively examine his grievance? In answer to this, I would that if such a decision comes under challenge before the judicial side, the High Court along with its reply affidavit must place the entire relevant records for the scrutiny of the judicial side so that the Judges may test the challenge to the decision with reference to the relevant records. But the aggrieved persons may say that it still left him dependent upon the. But the aggrieved persons may say that it still left him dependent upon the. Court (on the administrative side) and may ask what would happen if the High Court did not file a counter-affidavit at all or filed an affidavit without enclosing the relevant record. In such a situation, when the Full Court. does not record any reason for its decision and the High Court (on administrative side) does not produce the relevant record even when that decision comes under challenge, the desired object can still be achieved by the simple device of calling for the records. The aggrieved person may satisfy the Court regarding the necessity of the relevant records for appreciating/testing his challenge to the decision and in appropriate cases, the Court may, on its own or on a prayer made by the aggrieved person, call for the entire records or such of the documents as it may consider relevant. 20. One learned Judge observed that the High Court was not supposed to re-appraise the materials as an appellate Authority and substitute its own finding or opinion in place of the opinion of the Evaluation Committee/Full Court, but there cannot be any doubt that if the decision is found to be arbitrary, the Court is not precluded from exercising its power or judicial review. 21. Learned Counsel for the petitioner has placed reliance on H.L. Trehan V/s. Union of India -- , for the proposition that there had been denial of natural justice. The petitioner was not given opportunity of being heard before adverse decision was taken. The Supreme Court in this case observed that any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government Servant will offend against the provisions of Article 14 of the Constitution of India. Therefore, opportunity of hearing was mandatory where the Government took a decision to alter condition of service. This decision is hardly applicable to the facts of the present case. It cannot be argued that before refusing to grant enhancement, judicial officer is entitled to pre-decisional hearing. 22. Learned Counsel for the petitioner has placed strong reliance on State of Maharashtra V/s. Pratap singh Dayal Singh Rajput -- , and submitted that the High Court in counter-affidavit has not disclosed even slightest material against the petitioner in terms of the decision of the Supreme Court in All India Judges Association case (supra). 23. 22. Learned Counsel for the petitioner has placed strong reliance on State of Maharashtra V/s. Pratap singh Dayal Singh Rajput -- , and submitted that the High Court in counter-affidavit has not disclosed even slightest material against the petitioner in terms of the decision of the Supreme Court in All India Judges Association case (supra). 23. Entire service record has been noticed in the judgment. It. cannot be gainsaid that the petitioner has an exceptionally good service record and he was never communicated any adverse remark throughout his judicial career. This naturally leads to a valid inference that the denial of the extension of service to the petitioner was founded on extraneous consideration which has not been disclosed by the High Court in the counter-affidavit. I have no hesitation in coming to the conclusion that no reasonable body of persons would have held that the petitioner had outlived his utility for extension of service. The decision on the face of it is extremely arbitrary and violative of Articles 14 and 16 of the Constitution of India. 24. In somewhat similar situation dealing with the case of the Additional District & Sessions Judge, who had been compulsorily retired by the High Court, Hon ble Supreme Court in Madan Mohan Choudhary V/s. State of Bihar -- , observed as follows: 2. The recommendation of the High Court on the basis of which the appellant, who held the rank of Addl. District & Sessions Judge, was compulsorily retired from service, exhibits the tragic fact, that the highest judicial body of the State which abhors anything done contrary to the rule of law or done in a whimsical manner or arbitrarily, can itself act in that manner on the administrative side. Still, the plea that High Court Judges suffer from "split personality" cannot be accepted for the pleasant fact that though on the administrative, side they might have had acted as ordinary bureaucrat, once they don the robes they forget all their previous associations and connections.... 25. The observation of the Supreme Court applies with full force in this case also. 26. The next question for consideration is whether in the facts and circumstances of the case, the petitioner can be granted relief for which he has filed this writ application. This Court has no power under Article 226 of the Constitution of India to grant extension of service to the petitioner. 26. The next question for consideration is whether in the facts and circumstances of the case, the petitioner can be granted relief for which he has filed this writ application. This Court has no power under Article 226 of the Constitution of India to grant extension of service to the petitioner. We can only remit the matter to the Full Court for fresh decision. The petitioner has now crossed the age of 60 years hence it would be futile to request the Full Court to reconsider the case of the petitioner. If we issue mandamus to the High Court to grant extension to the petitioner assuming the matter is remitted, the Court may still refuse to grant extension. I would, however, like to emphasise that the decision of the High Court not to grant extension to the petitioner is no reflection on the character, efficiency or integrity of the petitioner to debar the petitioner from re-employment in Government service or elsewhere. 27. In my considered opinion, the case has own peculiarities. Hon ble Supreme Court in All India Judges Association case (supra) has only given guideline which has to be followed by the High Court. In the circumstances, I decline to grant any relief to the petitioner. 28. This application is dismissed with above observations. There shall be no order as to costs. N.N. Singh, J. I agree.