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2000 DIGILAW 949 (RAJ)

Janaki Vallabh Joshi v. State of Rajasthan

2000-08-01

A.R.LAKSHMANAN, RAJESH BALIA

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Honble Dr. LAKSHMANAN, CJ.–The petitioner entered the Judicial Service of the State of Rajasthan in the year 1972. He was promoted as Addl. Chief Judl. Magistrate and then as Chief Judl. Magistrate. Later, he was appointed to the Rajasthan Higher Judicial Service by way of promotion under order dated 30.08.1988. The promotion was given to him on officiating basis under Rule 22 of the Rajasthan Higher Judicial Service Rules, 1969. By order dated 19.05.1990 Super-Time Scale was allowed to the petitioner in the RJS cadre with effect from 13.08.87 and by order dated 25.06.1999 the petitioner was appointed substantively in the Rajasthan Higher Judicial Service under Annex.-1. The petitioner was served with order dated 08.02.2000 from the Secretary to the Government of Rajasthan, Department of Law & Legal Affairs, whereby His Excellency the Governor of Rajasthan ordered for retirement of the petitioner on attaining the age of superannuation with effect from 31.07.2000. A copy of the order dated 08.02.2000 has been placed on record marked Annex.-14. (2). Mr. Govind Mathur, learned counsel appearing for the petitioner, submits that the non-extension of the superannuation age for the petitioner deserves to be quashed and set aside being unjust and arbitrary and being also in violation of Articles 14 and 16 of the Constitution of India. According to Mr. Mathur, the working of the petitioner was found to be satisfactory and there was nothing adverse on the basis of which promotion could be denied to him or any action adverse could be taken against him. He also invited our attention to the adverse remarks which were entered in the Annual Confidential Reports of the petitioner for the years 1989, 1992, 1994 and 1995. It seems from Annex.-2 and Annex.-3 that the Reviewing Committee expugned the entries made in the A.C.Rs. in so far as the adverse remarks pertaining to the year 1989 and 1992 are concerned and treated the adverse remarks for the years 1994 and 1995 as `advisory so as not to be considered adverse to the petitioner. He further submits that the work of the petitioner was appreciated by the High Court under Annex.-6. The learned counsel also drew our attention to the communication received from the Registrar (Admn.) dated 05.02.1999 requesting him to convey his option before 01.02.1999 as to whether he is desirous to avail the benefit of enhanced superannuation age or not. He further submits that the work of the petitioner was appreciated by the High Court under Annex.-6. The learned counsel also drew our attention to the communication received from the Registrar (Admn.) dated 05.02.1999 requesting him to convey his option before 01.02.1999 as to whether he is desirous to avail the benefit of enhanced superannuation age or not. The petitioner has also opted for availing the enhanced superannuation on 05.02.1999. Later, the petitioner was directed to send at least 3 judgments in civil original cases, 2 judgments in criminal matters -trial or appellate, and 2 judgments in civil appeals by communication dated 22.01.99; and, in response to the request, he remitted copies of the judgments as required. He also submitted his physical fitness certificate as directed and the petitioner was under the impression that enhancement in the age of superannuation has been recommended by respondent No.2. However, he received the order dated 08.02.2000 ordering for retirement of the petitioner on attaining the age of superannuation. (3). Mr. Govind Mathur submits that in view of the judgments of the Supreme Court every subordinate Judicial Officer is entitled to continue in service till he attains the age of 60 years and non-extension of the age of superannuation beyond 58 years is a punishment as the criteria for non-extension of the age of superannuation is the same as is for compulsory retirement. According to Mr. Mathur, extension can be denied to an Officer whose retention in service is not in public interest and the entire service career of the petitioner is without any shadow of doubt and, therefore, the respondents have committed a serious error in not extending his services. It is further submitted that there is no just and valid reason to retire the petitioner on his attaining the age of 58 years. (4). We have carefully perused the entire pleadings and all the annexures. There is no substance in the contentions raised by Mr. Govind Mathur. In the instant case, the compulsory retirement was ordered by the High Court Committee after assessing and evaluating the past records of the Judicial Officers for continued utility. The Committee found that the petitioner is not fit and eligible to continue in service, therefore, he was compulsorily retired on his attaining the age of 58 years. Govind Mathur. In the instant case, the compulsory retirement was ordered by the High Court Committee after assessing and evaluating the past records of the Judicial Officers for continued utility. The Committee found that the petitioner is not fit and eligible to continue in service, therefore, he was compulsorily retired on his attaining the age of 58 years. Therefore, in our view the petitioner is not entitled to the benefit of higher retirement age since he has not satisfied the standard prescribed by the Apex court and, therefore, his services were not extended beyond the age of 58 years. The Committee has properly exercised the power on relevant consideration in public interest. The order, therefore, cannot be termed either arbitrary or mala fide. The Screening Committee was only acting under the guide-lines framed by the Apex Court. The order is within the frame-work of the rules and the principles enunciated by the Supreme Court in All India Judges Association vs. Union of India (1) (review judgment). (5). The Supreme Court issued directions to the High Courts in the above two cases to undertake and complete the exercise in cases 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 service 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 higher retirement age and should be compulsorily retired at the age of 58 years by following the said procedure for compulsory retirement. (6). The Division Bench of Kerala High Court comprising Justice AR. Lakshmanan and Justice D. Sreedevi, in an identical matters S. Paradesi Thyagarajan vs. High Court of Kerala (2), after considering the various judgments rendered by the Courts in India, at para 16 observed as follows: ``(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court they may interfere if they are satisfied that the order is passed (a) malafide or (b) that it is based on no evidence, or (c) that it is arbitrary, in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter -of course attaching more importance to record of and performance during later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is upon merit (selection) and not seniority. (v) An order of compulsory retirement is not liable to be quashed by a court merely on showing that, while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. Again, at para 33, the Division Bench has observed as follows: ``33. Rule 60 sub-clause (a) which deals with compulsory retirement reads thus: ``(Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years). He may be retained after this date only with the sanction of the Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. We have already reproduced the amended Rule 60(aa) of K.S.R. The retirement on superannuation of government servants is contemplated in Rule 60 of K.S.R. The officers are generally to retire at the age of 55 years. We have already reproduced the amended Rule 60(aa) of K.S.R. The retirement on superannuation of government servants is contemplated in Rule 60 of K.S.R. The officers are generally to retire at the age of 55 years. However, in the case of an officer of the Kerala Judicial Service or Kerala State Higher Judicial Service, the retirement age as per Rule 60(aa) is attainment of age of 60 years. The sub-rule stipulates that the officer has the option to retire on attainment of the age of 58 years, availing all terminal benefits due to him on retirement on superannuation. The sub-rule also stipulates that officers who opt to continue beyond the age of 58 years can continue only if the High Court finds him suitable to continue beyond the age of 58 years. The retirement of a Judicial Officer at the age of 58 years is therefore retirement on superannuation. It is not a compulsory retirement imposed as a punishment, as contemplated by the provisions of Kerala Civil Services (Classification, Control & Appeal) Rules and hence no notice is contemplated. We therefore have no hesitation in rejecting the contentions of the learned counsel for the appellant and dismiss the Writ Appeal. As already noticed from the various judgments of the Supreme Court, Ex.P.1 is not punitive in nature and that there is no question of violation of principles of natural justice as contended by the learned counsel for the appellant. The various decisions referred to by us in the earlier part of our judgment could clearly show that no notice is contemplated in the instant case since the retirement of the Judicial Officer at the age of 58 years is a retirement on superannuation and not a compulsory retirement imposed as a punishment. Therefore there is no question of violation of principles of natural justice. The order under Ext. P.1 is perfectly in order and therefore does not call for any interference. Even according to the appellant as could be seen in ground (H) that if there are adverse materials against the appellant the authority can come to the conclusion that the officer is unfit to continue in service. The order under Ext. P.1 is perfectly in order and therefore does not call for any interference. Even according to the appellant as could be seen in ground (H) that if there are adverse materials against the appellant the authority can come to the conclusion that the officer is unfit to continue in service. There is abundant material in the instant case to say that the officer is unfit to continue in service beyond 58 years and also held by the Supreme Court the order need not reveal as to the material which the order of compulsory retirement is based. Therefore we reject the contention of the learned counsel for the appellant. There are no merits in the appeal. The Writ Appeal therefore fails and is dismissed. No costs. (7). A Division Bench of the Madras High Court comprising of Justice Kanakraj and Justice Shivaraj Patil (as His Lordship then was), in an identical matter-The High Court of Judicature at Madras & Anr. vs. N. Mohandoss (3) also held as under: ``It is only under the mandate of the Supreme Court judgment that the High Court is called upon to decide whether an officer is of doubtful integrity or of good reputation. To turn round and say that because the High Court has rendered a finding on that issue it will amount to stigma and therefore, the procedure prescribed for imposing punishment should be undertaken, is in our opinion, totally fallacious and would render the scheme of the Supreme Court unworkable. Therefore, on the question relating to compulsory retirement and the observation that the impugned order has entered into the field of Article 311 of the Constitution of India, we hold that the findings of learned Judge are incorrect Again, at para 21, it is observed as follows: ``We have already indicated our mind that the opinion of the Screening Committee and the consequent impugned orders cannot be treated as an order passed to compulsorily retire the respondent. In our opinion, the decision taken falls under a novel scheme introduced by the Apex Court to extend the benefit of enhanced retirement age on an assessment of the officers merit as per the guide-lines prescribed. (8). The High Court of Bombay, in A.H. Shaw vs. High Court of Bombay (4), held that the Committee need not disclose the materials in the minutes of the meeting nor give reasons for its opinion. (8). The High Court of Bombay, in A.H. Shaw vs. High Court of Bombay (4), held that the Committee need not disclose the materials in the minutes of the meeting nor give reasons for its opinion. (9). The Supreme Court has also held in Baikuntha Nath Das vs. Chief District Medical Officer, Baripada (5) that an order of compulsory retirement cannot be interfered with by the High Court unless the High Court is satisfied that the following grounds exist : (a) malafide, or (b) that it is based on no evidence, or (c) that it is arbitrary, in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (10). It is not the case of the petitioner that the order is the outcome of malafide exercise of power by the High Court; and, even assuming for the sake of argument, that a plea is vaguely raised, the said plea has not been substantiated at all by any acceptable material. In Baikuntha Nath Dass case (supra) the Supreme Court has set out certain principles which are re-produced hereinbelow for convenient reference: ``(a) The order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (b) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (c) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. (11). In a very recent judgment of the Supreme Court reported in Ramesh Chandra Acharya vs. Registrar, High Court of Orissa & Anr. (6), dated 26.06.2000, the Honble Supreme Court has observed as follows: ``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. 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 be retire at the age of 58. This can be departed from only when the State makes specific rule otherwise. Again at para 10, it is observed as follows: ``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 overall assessment with regard to integrity, reputation and utility. (12). In our opinion, what is to be considered in such matters is the examination of overall entries of the officer concerned and not an entry here and there. It may well be in some cases that inspite of satisfactory performance still the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by more efficient and dynamic person. There is no denying of the fact that in all organisations there is great deal of dead-wood and, more so in Government departments, which has to be replaced in public interest. Therefore, as pointed out by many Courts in India, it is purely a matter of subjective satisfaction of the High Court or the Reviewing Committee, as the case may be. In the instant case, the order of compulsory retirement is passed without casting any aspersion or attaching any stigma to the Officer concerned. There cannot be any justification for interference by this Court. In the instant case, the order of compulsory retirement is passed without casting any aspersion or attaching any stigma to the Officer concerned. There cannot be any justification for interference by this Court. Even termination of the services of a public servant would not amount to dismissal or removal but only when such termination is arrived at or imposed by way of punishment it is in contravention of the protection offered under Article 311 of the Constitution of India. In the instant case, the petitioner so compulsorily retired does not lose any part of the benefit that he has earned during the service. Thus compulsory retirement differs both from dismissal and removal as it involves no penal consequences. Therefore, in our view, compulsory retirement is not considered prima facie and per se as punishment and does not attract the provisions of Article 311. (13). The writ petition has no merits and is accordingly dismissed.