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2008 DIGILAW 335 (JK)

Khawja Mohd. Qasim v. High Court Of J&K

2008-09-08

HAKIM IMTIYAZ HUSSAIN

body2008
1. Petitioner, Mohd. Qasim, a member of State Judicial Service, came to be appointed by promotion as District Judge in the year 1997. On attaining the age of 58 years he has been retired on superannuation pension by the High Court of Jammu & Kashmir (respondent no. 1) w.e.f. 31.10.2002 vide Order No.527 dated: 23.10.2002. His case for extension in service upto the age of 60 years was considered in terms of the Apex Court Judgment in All India Judges Association case (AIR 1992 SC 165) but the same was rejected as it has been found that he had no potential for continued useful service. 2. Petitioner is aggrieved of the order (Order No. 527 dated 23.10.2002) and has challenged it on various grounds inter-alia that the order of retirement is not in accordance with law therefore, not maintainable. The petitioner has stated that the order of retirement was required to be issued by the Governor, the Registrar General, who has issued the order has no competence to do so; the decision taken to retire him is not in terms of observations made by the Apex Court in Registrar High Court of Madras v. R. Rajah AIR 1988 SC 1388 and that the respondents have not properly assessed his merit while directing his retirement. The petitioner, therefore, prays for quashment of Order No. 527 dated 23.10.2002 and seeks a writ of mandamus commanding the respondents not to retire him but allow him to continue in service till he attains the age of 60 years. 3. Mr. R.A. Jan, learned counsel for the petitioner states that since during the pendency of this petition, the petitioner attained age of 60 years so the present petition may be considered only for release of service benefits to the petitioner which he would have got had he been retained in service upto the age of 60 years. 4. On 2.11.2002, when the matter was heard by this Court, following three questions were framed by the learned Single Bench and the case was referred to a larger Bench for direction of these issues:- I. Whether the order of retirement was supposed to be passed by the Governor of the State of Jammu & Kashmir or could it be passed by the Registrar General of the High Court? II. II. Whether on the basis of the comparative data as furnished in paragraphs 12 and 13 of the writ petition, the consideration of the petitioner was not in accordance with law? III. Whether the decision which has been taken has been taken in accordance with law and in terms of the observations made by the Supreme Court in Registrar High Court of Madras v. R. Rajiah (supra)? 5. Division Bench of this Court has answered question i & iii on 23.7.2007 and held that the order of petitioners retirement in the circumstances it has been passed could be passed by the High Court only without reference of the same to the Governor. Regarding question (ii) the Division Bench found that the same should be heard and disposed of by the Single Bench. The Bench observed:- "Coming to question No. 2 of the reference as quoted, the substance of para 12 and 13 pleaded in writ petition on which it has been apparently formulated, reflects petitioners allegation that his other colleagues, three in number assessed alongwith him, were given the benefit of extended age by High Court even while they had comparatively inferior APRs as reflected in said Paras in view whereof it is required to be seen as to whether petitioners assessment was properly done. We fail to understand, what exactly is the pure question of law involved because comparative assessment of officers under reference, by the High Court is purely factual an objective appreciation whereof would involve perusal of entire record pertaining to the matter an the norms applied for assessing the concerned officers which in given circumstances of the case and its stage now appears to be essential to the surviving part of the controversy, decision whereupon would dispose of the whole matter. Had the question reflected legality or propriety of the criterion applied or its not being wholly or partially in accordance with the judicially acceptable norms in light of what Honble Apex court said in above quoted judgments, the matter might have been different; but since that is not so, we feel that this question which remains to be the only one to be decided for final disposal of the matter deserves to be spared for consideration of the learned Single Judge after going through the records the criterion applied by the High Court in assessment of the concerned officers, opinions expressed thereupon, and minutes of relevant meetings etc. Accordingly we abstain from returning any finding thereupon." 6. On the directions of the Honble Chief Justice the case has now been placed before this Bench. Heard. Nobody appeared for the respondents so the case was heard in ex-parte. The record pertaining to the present matter was summoned from the Registry which was perused. 7. Under the judgment of the Apex Court (AIR 1993 SC 2493) the Court has laid down the following criteria to be followed while examining the cases of extended benefit of two years:- A. Assessment Standards : Following are the factors to be taken into consideration to assess the officer: 1. Over all past service record of the Officer shall be examined and considered to assess his potential for continued utility in the service beyond 58 years. 2. The quality of the judgments delivered by the officer, whether or not assailed before the High Court in suits, appeals, Sessions cases, Revisions and other proceedings during the past ten years of his service tenure. The quality of judgments will be determined by its content, the legal acumen it reveals, the nature of approach adopted, the language employed and the results achieved etc. etc. 3. Rate of disposal of the cases by the officer in the light of the separate criteria prescribed by the High Court for this purpose, 4. Material reflecting the character of the officer, including the complaints, enquiries and vigilance reports lodged against him. The fact that the officer was superseded in the last promotion shall also be taken into consideration. B. A.C.Rs : 1. Material reflecting the character of the officer, including the complaints, enquiries and vigilance reports lodged against him. The fact that the officer was superseded in the last promotion shall also be taken into consideration. B. A.C.Rs : 1. General; If the other record of the officer is at variance with his ACRs duly prepared under rules ad approved by the High Court for a particular year, the entry in the ACR for that particular year shall prevail. Provided, however, that if the ACR of the officer for a particular year has not been recorded or approved by the High Court, as can be the situation in case of a deputationist, the other record of the officer for that year would be considered for rating him. 2. Special Considerations: A Judicial Officer shall be eligible for the benefit of extended age of superannuation only if he fulfils the following conditions:- I. The officer has on the basis of the prescribed criteria earned seventy five per cent or more (A Grading) of his total ACR entries in `Very Good or `Good gradings. II. If the officer has not earned any adverse or average entry in his ACRs after his last promotion. C. Other Relevant factors : Besides above standards, the over all reputation of the officer including his integrity, honesty, judicial conduct, relations with the bar, his administrative capacity and financial dealings shall also be taken into account while evaluating all round potential of the officer. In the formation of opinion by the Court, the ACRs shall not be sole guiding factor but shall be given due weightage alongwith other equally relevant factors. 8. In September, 2002 cases of two Judicial Officers namely Mohd. Qasim the petitioner and Sat Lal Tingloo were considered for grant of benefit of extended age of superannuation beyond 58 years. Chief Justice constituted two separate Committees for the purpose. The case of the petitioner was considered by a Committee comprising of the Chief Justice, Mr. Justice R.C. Gandhi and Mr. Justice Muzaffer Jan. 9. Qasim the petitioner and Sat Lal Tingloo were considered for grant of benefit of extended age of superannuation beyond 58 years. Chief Justice constituted two separate Committees for the purpose. The case of the petitioner was considered by a Committee comprising of the Chief Justice, Mr. Justice R.C. Gandhi and Mr. Justice Muzaffer Jan. 9. Extension in service in the case of Sat Lal Tingloo was recommended but in case of the petitioner the aforesaid Committee made the following report:- "The case of Shri Mohd Qasim, District & Sessions Judge, has been considered for grant of benefit of extended age of superannuation beyond 58 years, in the light of criteria and guidelines laid down by Honble the Supreme Court in case, All India Judges Association v. Union of India, AIR 1993 SC 2493 and Full Court resolution of this High Court dated 23.09.1994. After evaluation of Judicial Officers available past service record, ACRs, work done Statements and other relevant matter/record we are of the opinion that the said judicial Officer has no potential for continued useful service. He is not found fit and eligible to continue in service after attaining the age of 58 years." 10. Both the reports were placed before the Court in its meeting held on 28.9.2002 at Srinagar. The Court granted extension of two years in favour of Sat Lal Tengloo but in the case of the petitioner it was resolved as under:- PREAMBLE RESOLVED Grant of benefit of extended Age of superannuation beyond 58 years to S/ Shri Mohd. Qasim and Sat Lal Tingloo, District & Sessions Judges. Considered the reports of the committees- RESOLVED --the reports of the Committees are accepted. Shri Mohd. Qasim is denied the benefit of superannuation at the age of 60 years and is not retained in service after attaining the age of 58 years. Shri Sat Lal Tingloo is allowed the benefit of superannuation at the age of 60 years. 11. Thus while the benefit of two years was given to Sat Lal Tingloo it was denied to the petitioner. 12. Mr. Jan, learned counsel for the petitioner would submit that the petitioners ACRS were upto the mark as it had earned `Good grading throughout for the years 1995 to 2000, as compared to it Sat Lal Tingloo had low ratings. Thus while the benefit of two years was given to Sat Lal Tingloo it was denied to the petitioner. 12. Mr. Jan, learned counsel for the petitioner would submit that the petitioners ACRS were upto the mark as it had earned `Good grading throughout for the years 1995 to 2000, as compared to it Sat Lal Tingloo had low ratings. The petitioner had, on the basis of criteria/norm prescribed by the respondent No.1 for adjudging continued utility of a Judicial officer for the purpose of benefit of extended age of superannuation, better case as compared to Sat Lal Tingloo but he has been denied the benefit in sharp contrast, the other Judicial Officer with grading as `Average has been found entitled to the benefit of extended age of superannuation. Learned counsel has also referred to the cases of two other officers namely Kuldip Singh and B.L. Bhat, District Judges who had average ACRs but who were considered and given the benefit of superannuation at the age of 60 years under Court resolutions dated 22.12.2001 and April, 2002 respectively . The gradings of the petitioner and the said Judicial Officers, as appears from the record and as is shown in the petition are as under: Petitioner 1995 1996 1997 1998 1999 2000 Mohd. Qasim G G G G G G Other Judicial Officers 1995 1996 1997 1998 1999 2000 1. Bihari Lal Bhat G G A A A A 2. Kuldeep Singh V.G A A V.G A A 3. S.L. Tingloo G A *F/G *A G A 13. The record would reveal that the petitioner has been denied the benefit of extended age of superannuation while his ACRs for the years from 1995 to 2000 were good while as the benefit has been extended to B.L. Bhat who had `Average entries in the ACRs for the year 1997, 1999 and 2000. Similarly the benefit has been given to Kuldeep Singh who had `Average ACRs for the year 1996, 1997, 1999 & 2000 and to Sat Lal Tingloo who had `Average ACRs for the year 1996, 1998 and 2000 and for the year 1997 the entry in his ACRs was "Needs Improvement". 14. Similarly the benefit has been given to Kuldeep Singh who had `Average ACRs for the year 1996, 1997, 1999 & 2000 and to Sat Lal Tingloo who had `Average ACRs for the year 1996, 1998 and 2000 and for the year 1997 the entry in his ACRs was "Needs Improvement". 14. Learned counsel would refer to these facts to show that denying the petitioner the benefit of extended age of superannuation, is totally arbitrary, discriminatory and violates with impunity the constitutional guarantees, enshrined in Article 14 and 16 of the Constitution of India. 15. Provisions for the benefit of extension in retirement age of the Judicial Officers (upto the age of 60 years) was laid down by the Apex Court in All India Judges Association v. Union of India, 1992 (1) SCC 127. The Court directed that appropriate rules should be framed or the extant rules must be amended in all the States in respect of judicial services so as to fix the age of retirement at 60 years with effect from December 31, 1992. The Court observed: "15. One of the issues debated at the hearing related to the age of retirement. The Constitution has fixed the age of retirement of Judges in the High Courts and the Supreme Court at 62 and 65 years respectively. There is no constitutional prescription of the age of retirement of the members of the subordinate judiciary and in India that is controlled by the relevant rules obtaining in the different States and Union Territories and it is 58 years at present excepting in the State of Kerala where the age of superannuation is 55 years for all State Government employees including the members of the State Judicial Service.... 19. There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge. The work of the judicial officers is usually sedentary while that of the executive officers involves a lot of physical movement. This is particularly so in the lower cadres of both the services. In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical. Experience is an indispensable factor and subject to the basic physical fitness with growing age experience grows. 21. In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical. Experience is an indispensable factor and subject to the basic physical fitness with growing age experience grows. 21. There are certain services in the States where retirement is fixed at the age of 60 years taking into account the special type of work the officers are called upon to perform. For instance, throughout the country teachers of universities are allowed to serve up to 60 years of age. Employees under some of the corporations also go up to the age of 60. Scientific Researeh officers are also allowed in many cases the benefit of 60 year age of retirement. 24. The recommendation that superannuation should be fixed at 58 for judicial officers was made at a time when in public services retirement was prescribed at the age of 55, Considering the enhancement of the longevity of human life and taking all other relevant considerations into account, all the States and all the Union Territories have now enhanced the age of retirement to 58 years excepting, as already pointed out, in the case of the State of Kerala. We are of the view that on the logic which was adopted by the Law Commission and for the reasons which we have indicated the age of retirement of judicial officers should be 60 years. We accordingly direct that appropriate alterations shall be made in the Rules obtaining in the States and Union Territories in respect of judicial service so as to fix the age of retirement at 60 years with effect from December 31, 1992. We have given a long period so that appropriate amendments may be made in the meantime." (emphsis supplied). 16. This and other directions were reconsidered by the Court in 1993 on an application for review filed by the Union of India and various States in All India Judges Association v. Union of India, 1993 (4) SCC 288. While disposing of the review application, it was stated 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. While disposing of the review application, it was stated 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. The benefit will be available to those who, in the opinion of the respective High Courts, have 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 past record of service, character rolls, quality of judgment and other relevant matters. 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 service rules applicable to the judicial officers. Those who will not be found fit as eligible by this standard should not be given the benefit of the higher retirement 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. 17. While giving these directions the Court made it clear that `the directions issued were mere aids and incidental to and supplemental of the main direction and intended as a transitional measure till a comprehensive national policy is evolved. 18. These directions would show that the method laid down by the Supreme Court in granting the benefit of two years in the retirement age to the Judicial Officers would remain in force only till rules in this behalf are framed by the State. Once such rules are framed the matter would be regulated by such rules only the directions given in All India Judges Association case would cease to exist. 19. Once such rules are framed the matter would be regulated by such rules only the directions given in All India Judges Association case would cease to exist. 19. A Three-Judge Bench of the Apex Court in Rajat Baran Roy v. State of W.B. (1999) 4 SCC 235, has dealt with this issue and dealing with a case relating to the Judicial Service of the State of West Bengal, held that if a Rule is made by the State Govt. extending the age of retirement of the Judicial Officers, the directions of the Supreme Court in the Review Petition for scrutiny of the service record would not be applicable as the Judicial Officers, by virtue of the new Rule, would continue upto the age of superannuation fixed under the new Rule. The Court held; "...This direction in regard to the retirement age and other directions given in regard to the members of the Higher Judicial Service in India in the 1993 case came to be issued because of the failure on the part of the Governments concerned to perform their obligatory duties. If as per the 1992 directions, the Governments concerned had acted diligently then there would not have been any cause for issuing the 1993 directions and, consequently, the rider that was included in the 1993 directions, would not have been there at all. That apart, in the 1993 directions, this Court in unequivocal terms said: (SCC p. 299, para 15) "The directions issued are mere aids and incidental to and supplemental of the main direction and intended as a transitional measure till a comprehensive national policy is evolved." (emphasis supplied) The Court further said: "In view of this observation, it is clear that the direction issued as above, would cease to exist when appropriate rule enhancing the retirement are of the judicial officers to 60 years is made. Consequently, the rider to the direction issued by the Court also ceases to operate, being coterminous with the direction. After the directions in the 1993 case in the case of such States which had framed rules consequent upon which the members of the subordinate judiciary in those States became entitled to continue in service till the age of 60 years, it will have to be held that the enhancement has come into force by virtue of such rules framed. After the directions in the 1993 case in the case of such States which had framed rules consequent upon which the members of the subordinate judiciary in those States became entitled to continue in service till the age of 60 years, it will have to be held that the enhancement has come into force by virtue of such rules framed. In other words, the enhancement of retirement age in those States will be dehors the directions of this Court and will be subject only to the terms of the rules applicable. In such cases, in our opinion, the pre-retirement assessment will not be applicable unless the same is specifically provided under the rules". (emphasis supplied) 20. A similar view was taken in High Court of Judicature at Allahabad v. Sarnam Singh AIR 2000 SC 2150. It was held: 13. These observations indicate that the procedure indicated by this Court for evaluating the work, performance and conduct of Judicial Officers, before allowing them to continue in service upto the age of 60 years, was evolved as a temporary measure and was not to be adopted as a permanent feature. The choice was thus left to the Appointing Authority. If the Appointing Authority itself had made necessary Service Rules extending the age of retirement, the above procedure was to be given up as the Officers would continue in service in accordance with the Service Rules made by the Appointing Authority in the respective States. If it was not done, then the Judicial Officers were to continue in service till the age of 60 years in accordance with the directions of this Court in the earlier case, provided the Officers, on a scrutiny of their service records, in accordance with the directions issued in the Review Petition, were found suitable for the benefit of extended service. 14. As pointed out above, the State Govt., acting upon the directions of this Court in the earlier case (1992) 1 SCC 119: (1991 AIR SCW 2869: AIR 1992 SC 165: 1992 All LJ 185), made new Rules under Art. 309 of the Constitution, and that too within the time fixed by this Court, by which the age of retirement of all Judicial Officers was raised from 58 to 60 years. In view of these Rules, which also had the overriding effect over F.R. 56, the Judicial Officers in the State of U.P. became entitled to continue in service upto the age of 60 years. The directions of this Court for scrutiny of their service records before allowing them to continue in service beyond 58 years, being of a transitory character, yielded place to the new Rules made by the State Govt. under Art. 309 of the Constitution and, therefore, it was no longer incumbent upon the High Court to resort to the procedure of scrutiny of the service records of all Judicial Officers before allowing them the benefit of extension in the age of retirement. The contention of Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the High Court, that the directions of this Court about the scrutiny of the service record should be read as supplemental to the new Service Rules cannot be accepted as this Court itself had indicated clearly that the directions were intended to serve as a "transitional measure". 21. In Bishwanath Prasad Singh v. State of Bihar and others (2001) 2 SCC 305 the Supreme Court in para 7 has observed as under : "It is clear that this Court intended to confer a benefit on the Judicial Officers by the force of the judgment of this Court and to provide a mechanism for availing the benefit during the period until the State concerned amended the Service Rules governing the age of superannuation of Judicial Officers. Once rules are amended, the age of superannuation would be governed by the Service Rules. But so long as that was not done, the judgment of this Court in 1993 case was intended to govern the age of superannuation. Under the Service Rules, if amended, the right to hold the Judicial Office shall be a statutory right subject to satisfying the requirements, if any, contemplated by the rules. Till then, the extended age of superannuation of 60 years shall be a benefit available to Judicial Officers subject to their satisfying the test of suitability at the evaluation or assessment to be made by the High Courts in accordance with the judgment of the Supreme Court. Such evaluation is independent of and other than an assessment undertaken for compulsory retirement in public interest which could be resorted to earlier or later also. Such evaluation is independent of and other than an assessment undertaken for compulsory retirement in public interest which could be resorted to earlier or later also. The above said view finds support from a number of decisions, rendered by this Court which may be referred to briefly. Similar view was taken in Chandra Singh v. State of Rajasthan AIR 2003 SC 2889. (emphasis supplied). 22. In S. D. Singh v. Jharkhand High Court AIR 2006 SC 670 it was held as under; "6.The State of Uttar Pradesh, however, framed rules enhancing the retirement age to 60 years. The question whether these rules would prevail over the directions issued in the second All India Judges Association case was considered again in the case of High Court of Judicature at Allahabad v. Sarnam Singh, 2000 (2) SCC 339 wherein it has been held that once rules have been framed., the directions given by the Court would not apply. Therefore, where necessary service rules had been framed extending the age of retirement, the procedure prescribed in the second All India Judges Association case would be inapplicable and the concerned officers would continue in service in accordance with the service rules. However, it was made clear that if there were no rules framed, then the Judicial Officers were to continue in service till the age of 60 years in accordance with the directions of this Court in the earlier case, provided the Officers, on a scrutiny of their service records in accordance with the directions issued in the second All India Judges Association case were found suitable for the benefit of extended service. 7. It was made clear that the directions given in second All India Judges Association case yielded the new rules and therefore it was no longer incumbent upon the High Court to resort to the procedure on scrutiny of the service records of all judicial officers before allowing them the benefit of extension in the age of retirement". 23. Under these authorities the benefit contained in and the procedure to grant the benefit prescribed in All India Judges case would remain in force only till a provision for the purpose was made in the recruitment rules. 24. In this State service conditions of the members of the High Judicial Service are regulated by the Jammu and Kashmir Higher Judicial Service Rules, 1987. 24. In this State service conditions of the members of the High Judicial Service are regulated by the Jammu and Kashmir Higher Judicial Service Rules, 1987. The rules, however, do not contain any provision regarding retirement so the members of service are in this behalf governed by the General Service Rules as contained in the Jammu & Kashmir Civil Service Regulations. Art. 226 (1) of the Regulations provides age of superannuation of Government employees as 58 years. In compliance to the directions of the Apex Court in All India Judges Association case ( supra) the following proviso was added to Article 226 (1) of the Regulation vide SRO No. 333 dated 22.12.1995. "Subject to provisions of Sub-Clause (2) a member of the State Judicial Service shall retire from service in the afternoon of the last day of the month in which he attains the age of 60 years.; (1) The High Court shall assess and evaluate the record of the Judicial officers for his continued utility before he attains the age of 58 years by following the procedure for compulsory retirement under the service rules applicable to him and if he is not found fit and eligible he will compulsorily retire on his attaining the age of 58 years. This shall be deemed to have come into effect from 31.12.1992". 25. Under this proviso the age of superannuation of judicial officers in the State is 60 years. However, when an officer attains the age of 58 years the High Court shall assess and evaluate his service record and if from such record he is not found fit and eligible the High Court may direct his retirement at the age of 58 years. In such case procedure prescribed for compulsory retirement is should be followed. 26. Since express provision has been provided in the Service Rules to regulate the superannuation of judicial officers and grant of two years benefit to them, the cases for the purpose are to be considered and dealt with under the said proviso to the Regulation. The procedure of constitution of a Committee by the Chief Justice as provided by All India Judges Association case will not apply as it ceased to have any force after a specific provision in the rules was made in this behalf. 27. The procedure of constitution of a Committee by the Chief Justice as provided by All India Judges Association case will not apply as it ceased to have any force after a specific provision in the rules was made in this behalf. 27. Supreme Court in High Court of Punjab and Haryana v. State of Haryana AIR 1975 SC 613 held that the initial appointment and initial promotions of District Judges rested with the Governor, but once they were appointed or promoted to be District Judges the entire control over them vested in the High Court. In view of this judgment and certain other judgments of the Apex Court, it is clear that power to decline two years benefit in service or resorting to the process of compulsory retirement of a District Judge in an incident of the control vested in the High Court by Art. 235 of the Constitutions of India. In State of U.P. v. Batuk Deo 1978 Lab. IC 839, five judges bench of the Supreme Court held that Article 235 has to be construed to mean that the control over District Courts and courts subordinate thereto is vested in the entire body of judges who together constitute the High Court and not in the Chief Justice as representing the High Court or an Administrative Judge or a smaller body of Judges acting as an Administrative Committee. 28. Thus in view of this legal position under the proviso to Article 226 (1) the service record of the officer concerned has to be considered by the High Court and the High Court would mean Full Court comprising of all the judges of the Court. 29. In the present case it is found that the matter has mainly been considered by a Committee of three judges headed by the Chief Justice. The Committee was constituted by the Chief Justice in terms of the Judgment in All India Judges Association case (supra). The committee has on consideration of the ACR and other service record of the officer found that the petitioner had no potential for continued useful service. The report of the Committee has been considered by the Court in its meeting held on 28.9.2002 and the report of the Committee was accepted. The committee has on consideration of the ACR and other service record of the officer found that the petitioner had no potential for continued useful service. The report of the Committee has been considered by the Court in its meeting held on 28.9.2002 and the report of the Committee was accepted. The resolution of the Court, reproduced above, would show that while considering the matter the Court has not itself considered the service record and other material pertaining to the officer but has in this behalf relied on the report of the Committee. The resolution of the Court, shows that there was not a due and effective consideration of the matter by all the judges of the Court. Out of 9 judges, who were in position on that date, only four have attended the meeting. Four judges namely Mr. Justice Jhanji, Mr. Justice T.S. Doabia, Mr. Justice S.K. Gupta and Mr. Justice B.L. Bhat were at Jammu due to which they could not attend the meeting. They were contacted by the Chief Justice on phone and their approval was sought obviously without associating them with the discussion on the matter or even showing them the record of the officer or the material considered by the Committee. Another Judge Mr. Justice N.A. Kakru also did not attend the meeting. He was contacted by the Registrar General but his Lordship declined to give his approval for the reasons recorded by the Honble Judge separately, The Honble Judge found that the power to give benefit of superannuation is an administrative power of the Honble Judges and to save this power from arbitrariness and prejudice, there has to be an exchange of views which is only possible when the Chief Justice convenes the meeting of Full Court to deliberate upon the issue. 30. Thus majority of the judges (i.e. five out of nine judges) did not get the chance to discuss and deliberate upon the issue. This would show that the issue has not been effectively considered by the Court. 31. Under proviso to Art. 226(2) CSR if the High Court finds that an officer is not fit and eligible for retention in service beyond the age of 58 years, the High Court may compulsorily retire such officer after following the procedure for compulsory retirement. 32. This would show that the issue has not been effectively considered by the Court. 31. Under proviso to Art. 226(2) CSR if the High Court finds that an officer is not fit and eligible for retention in service beyond the age of 58 years, the High Court may compulsorily retire such officer after following the procedure for compulsory retirement. 32. An order of compulsory retirement is not a punishment but it is well settled position of law now that the competent authority can exercise its power only in public interest to effectuate the efficiency of the service. The entire service record including the confidential reports maintained would furnish the back drop material for consideration by the competent authority. In S. Ramachandra Raju v. State of Orissa AIR 1995 SC 111 it was held: "It is thus settled law that though the order of compulsory retirement is not a punishment and the government employee is entitled to draw all retiral benefits including pension, the government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the back drop material for consideration by the Government or the Review Committee or the appropriate authority. On consideration of the totality of the facts and circumstances alone, the government should form the opinion that the government officer needs to be compulsorily retired from service. Therefore, the entire service records more particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a government officer. Therefore, the entire service records more particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a government officer. When an officer reaching the age of compulsory retirement, as was pointed out by this Court, he could neither seek alternative appointment nor meet the family burdens with the pension or other benefits he gets and thereby he would be subjected to great hardship and family would be greatly affected. Therefore, before exercising the power, the competent appropriate authority must weigh pros and cons and balance the public interest as against the individual interest. On total evolution of the entire record of service if the Government or the Governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the court may not interfere with the exercise of such bonafide exercise of power but the court has power and duty to exercise the power of judicial review not as a review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service." 33. In case of judicial officers the High Court has in the guidelines (supra) laid down what material is to be considered before directing compulsory retirement of the officers at the age of 58 years. 34. In the present case on going through the record I find there is no adverse material, at least no such material has been brought to my notice against the petitioner which could justify his compulsory retirement. On the contrary his plea that he earned `Good grade in the ACRs pertaining to the year 1995 to 2000 has not been disputed by the respondents. It does not appear that there was any material on the basis of which the Committee could have formed an opinion that it was in public interest to compulsorily retire the petitioner. 35. The Committee has not referred to any such material in the report nor has the High Court said anything about it in its counter filed in the present petition. Even the record produced does not show that there was any such material available with the committee. 36. 35. The Committee has not referred to any such material in the report nor has the High Court said anything about it in its counter filed in the present petition. Even the record produced does not show that there was any such material available with the committee. 36. Although Art. 226(2) CSR vests an absolute right in the `High Court to compulsorily retire a judicial officer at the age of 58 years if he is not found fit and eligible for the same, yet the power is to be exercised fairly and properly. The order must be based on sufficient material which would justify such retirement. In the present case there being no material muchless sufficient material, I find there was really no justification for denying the benefit of two years to the petitioner. The impugned order No. 527 dated 23.10.2002 must therefore be struck down as being arbitrary. 37. This petition is therefore, allowed. The impugned order No. 527 dated 23.10.2002 denying benefit of two years to the petitioner is quashed and he shall be treated as having retired from service on attaining 60 years of age and shall be entitled to pay and allowance and also to his pensionary benefits upon that basis. Order accordingly.