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2016 DIGILAW 53 (JK)

High Court of J&K v. Jankar Singh Cheema

2016-02-16

BANSI LAL BHAT, DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasanthakumar, J. This appeal is preferred against the order of the learned Single -Judge made in SWP No. 1326/1996, dated 17.05.2001 wherein the original appellant (deceased) questioned his retirement on completion of 58 years of age as Additional District and Sessions Judge, Reasi with effect from 31.03.1996 afternoon passed by the Registrar General of this Court dated 02.03.1996. The Writ Court allowed the writ petition by order dated 17.05.2001 with directions to request the Governor of the State to pass formal order of retirement of the writ petitioner and also held that the writ petitioner is entitled to salary, allowances and all other consequential benefits. Having-aggrieved about the said order the Registrar General of this Court has preferred this appeal. 2. Mr. A.V. Gupta, learned senior counsel appearing for the High Court argued that order of the Governor is not required when a Judicial Officer is retired at the age of 58 years after the resolution is passed by the Full Court, considering his utility and the said matter was already considered by a Division Bench of this Court in SWP No. 1315/2002, decided on 23.07.2007 (Khawaja Mohd. Qasim v. State and Ors.), therefore, the matter in issue is covered by the judgment of Division Bench and the order of the Writ Court is liable to be set aside. 3. The learned counsel appearing for the respondent during the course of his submissions submitted that judgment in LPA No. 39/2009 dated 27.07.2012 reported in 2013 KLJ 302 : 2012 (3) JKJ 577 [HC] : (High Court of J&K v. Khwaja Mohd. Qasim), even though the competency of the High Court to retire a person without order from the Governor was raised, the same was not answered. He relied on the judgment of the Hon'ble Supreme Court reported in (1992) 1 SCC 127 (All India Judges Association v. Union of India) and contended that even if the High Court is competent to recommend to the Governor to compulsorily retire a person, under Article 235 of the Constitution of India, a formal order is required to be passed by the Governor, who being the appointing authority. In the light of the Division Bench judgment of this Court dated 23.07.2007, the Division Bench by order of reference dated 10.06.2015 referred the matter to the Full Bench for resolving the issue once for all i.e. to answer as to whether the Governor's order is required to be obtained before a Judicial Officer is retired at the age of 58 years without granting extension of service up to 60 years. Reference made by the learned counsel for the respondents to a decision of Hon'ble the Supreme Court reported in 2011 (10) SCC 1 is with regard to the criteria/norms which shall be taken into account by the High Court in i is administrative capacity while assessing the judicial officers for their continued utility in service. The said judgment nowhere states that on completion of 58 years, if the judicial officer has to be retired without giving extension of service upto 60 years, order of the Governor be obtained or not. 4. That learned senior counsel appearing for the appellant as well as the respondent submitted that the respondent is no more who passed away on 21.06.2015 and his legal heirs are brought on record by this Court by order dated 29.12.2015 to claim service benefits up to the writ petitioner's age of 60 years, and, therefore, while answering the question of law raised, the facts of the case can also be gone into and final order, namely, the validity of the order retiring the respondent (deceased) is justified or not can be decided by the Full Bench itself. Hence by consent the appeal itself is taken up for disposal by the Full Bench along with the question of law referred. 5. The case of the respondent (deceased) before the Writ Court was that lie was appointed as a Munsiff on 18.07.1970 and promoted as Sub-Judge on 19.12.1979 and further promoted as District and Sessions Judge on 31.05.1991. The date of birth of the respondent (deceased) being 09.03.1938, he completed his age of 58 years on 09.03.1996. 5. The case of the respondent (deceased) before the Writ Court was that lie was appointed as a Munsiff on 18.07.1970 and promoted as Sub-Judge on 19.12.1979 and further promoted as District and Sessions Judge on 31.05.1991. The date of birth of the respondent (deceased) being 09.03.1938, he completed his age of 58 years on 09.03.1996. His contention was that the Jammu and Kashmir Civil Service Regulations, as amended pursuant to the judgment of the Hon'ble Supreme Court in All India Judges Association v. Union of India, reported in 1992 (1) SCC 127, giving directions to extend the service of the Judicial Officers up to 60 years on assessment of utility, the Government of Jammu and Kashmir amended the provisions of Article 226 of the Jammu and Kashmir Civil Service Regulations vide SRO 333 of 1995, dated 22.12.1995 to the effect that members of the State Judicial Service shall retire from service in the afternoon of the last date of the month in which age of 60 years is attained, as amended by SRO 333 of 1995, dated 22.12.1995 and the said amendment shall be deemed to have come into effect from 31.12.1992. Thus the contention of the learned counsel for the respondent was that by virtue of the said amendment, which was issued in terms of the judgment of the Hon'ble Supreme Court in All India Judges Association case in 1992 and clarified subsequently by decision reported in AIR 1993 SC 2493 (All India Judges Association v. Union of India), he ought not to have been retired from 31.03.1996 and he should have been allowed to continue up to the age of 60 years as a matter of right and the retirement of the respondent on completion of 58 years ordered by the High Court being an order of compulsory retirement, the order of the Governor must have been obtained before retiring the respondent at the age of 58 years. Heavy reliance was placed by the learned counsel for the respondent on the judgment of the Hon'ble Supreme Court reported in (1988) 3 SCC 211 (Registrar, High Court of Madras v. R. Rajaiah) to the proposition that if an order of compulsory retirement has to be passed against a Judicial Officer, the Governor being appointing authority, without get ting the order from the Governor, however formal it may be, the Judicial Officer cannot be prematurely/compulsorily retired. 6. 6. The learned Single Judge allowed the writ petition in spite of the objections filed by the appellant-High Court to the effect that in terms of the judgment in All India Judges Association case in 1992 and clarified subsequently by decision reported in AIR 1993 SC 2493 , even though the Rules are amended fixing the age of retirement of the Judicial Officers as 60 years, the same is subject to a rider i.e. only if the High Court on assessment of the merit, ability and worthiness and utility found that the Judicial Officer is fit to continue beyond 58 years and if the Judicial officer is not found fit, the High Court can very well retire the Judicial officer at the age of 58 years and the said retirement cannot be treated as compulsory retirement or premature retirement as it is the normal age of retirement of a judicial officer unless recommended to continue up to 60 years. The learned counsel appearing for the appellant argued that the very same issue was already-answered by a Division Bench of this Court in the reference made in SWP No. 1315 of 2000, by judgment dated 23.07.2007 and the issue is no longer res integra, therefore, the order of the writ court is liable to be set aside and the question of law raised before this Full Bench is to be answered in favor of the appellant. 7. It is not in dispute that the committee of the Judges assessed the performance utility and other parameters fixed by Hon'ble the Supreme Court to consider the continuance of the respondent-Judicial officer in service beyond 58 years. His performance was assessed for the year 1970-71 with reference to Annual Confidential Report (for short "the ACR" hereafter) and it is opined that the quality of judgments and judicial ability is average and the grade awarded is average with the endorsement that the officer must show an all round improvement. For the years 1971-72, the remarks made in the ACR is that the officer should improve all round. For the year 1972-73, the reputation, character and honesty was assessed as average and impartiality and quality of judgment was found average. The judicial ability has again been shown as average. For the years 1973-74, 1974-75, 1975-76, 1976-77, 1977-78, 1978-79, 1980-81, 1981-82, 1982-83, 1983-84, 1984-85. For the year 1972-73, the reputation, character and honesty was assessed as average and impartiality and quality of judgment was found average. The judicial ability has again been shown as average. For the years 1973-74, 1974-75, 1975-76, 1976-77, 1977-78, 1978-79, 1980-81, 1981-82, 1982-83, 1983-84, 1984-85. The ACR entries of 1992-93 and 1993-94 contains adverse entry of poor and overall performance is poor in respect of columns 8, 9 and 10. The entries for the year 1992-93, 1993-94 and 1994-95 are as follows: Name of Officer Extent of Impartiality Quality of Judgment Judicial ability Speed in disposal Adm. ability Temperament Attendance Remarks Class awarded 1992-93 Janak Singh Cheema : District & Sessions Judge Poonch Yes Average Average Good Poor Poor Poor Average Poor 1993-1994 District & Sessions Judge Poonch up to 30.10.1993 on leave up to 26.06.1994 Yes Average Good Good Poor Poor Poor Average Poor 1994-1995 Addl. District & Sessions Judge Srinagar from 27.6.1994 to 2/95 hereafter Addl. District & Sessions Judge, Reasi. Yes Average Average Good Poor Poor Poor Average Average 8. The committee of Judges including the Chief Justice evaluated the ACRs of the respondent form the date of appointment till 1994-95 and recommended for not giving the benefit of two years extension to the respondent which was placed before the; Full Court and the Full Court unanimously resolved on 14.02.1996 to accept the recommendations of the Committee and not to grant benefit of two years extension to the respondent. Based on the said resolution passed by the Full Court the respondent was given an intimation on 02.03.1996 by the Registrar stating in Order No. 810, as follows" "Sanction is accorded to the retirement of Sh. Jankar Singh Cheema, Additional District and Sessions Judge Reasi on superannuation w.e.f. 31.03.1995 after-noon. By order of the Court" 9. The said order, as stated above, has been challenged mainly on the ground of want of jurisdiction i.e. without getting the order of the Governor, the High Court is not justified in retiring t he respondent. 10. Insofar as adverse entries made against the respondent, the same were duly communicated and the representations submitted by the respondent were also considered and rejected. Thus, there is no procedural violation in taking note of the adverse entries made in the ACRs of tire respondent. The same is very clearly stated in the counter affidavit filed by the High Court before the Writ Court. Thus, there is no procedural violation in taking note of the adverse entries made in the ACRs of tire respondent. The same is very clearly stated in the counter affidavit filed by the High Court before the Writ Court. Thus, the only issue to be answered as per the reference is, as to whether the retirement order passed against the respondent on 02.03.1996 based on the Full Court decision to retire the respondent from service on 31.03.1996 communicated by Registrar General is in any manner vitiated due to the reason that approval of the Governor was not obtained. 11. The learned counsel appearing for the respondent did not question the decision of the Full Court with reference to the performance appraisal made by the committee of Judges which was approved by the Full Court. The reasons for extension of service to be given to a Judicial Officer up to the age of 60 years is very clear as same was based on the decision of Hon'ble the Supreme Court reported in 1992 (1) SCC 119 (All India Judges Association v. Union of India) and clarified in 1993 (4) SCC 288 . In the said decisions, the Hon'ble Supreme Court held that to take care of betterment of services of the subordinate judiciary, one of the directions given was to raise the retirement age of the judicial officers to 60 years uniformly throughout the country and appropriate steps in that regard be taken by December 31,1992. The review petition filed against the said judgment was considered and the order was modified to the following effect: "While the superannuation age of every subordinate judicial officer shall stand extended up to 60 years, the respective High Court should as stated above, assess and evaluated the record of the judicial officer for his continued utility well within time before he attains the age of 58 years by following the procedure for the compulsory retirement under the Service rules applicable to him and give him the benefit of the extended superannuation ago from 58 to 60 years only if he is found fit and eligible to continue in service". "The assessment in question should be done before the attainment of the age of 58 years even in case where the earlier superannuation age was less than 58 years." 12. "The assessment in question should be done before the attainment of the age of 58 years even in case where the earlier superannuation age was less than 58 years." 12. It is also stated therein that the judicial officers who are willing to continue beyond 58 years should exorcise their option in writing before they attain the age of 57 years and those who do not exercise the said option before attaining the age of 57 years would be deemed to have opted for continuing in service till the enhanced superannuation age of 60 years with the liberty to compulsorily retire at the age of 58 years. It was also ordered that review should be undertaken and if found unfit they should be retired compulsorily and the State Governments were ordered to amend the service rules accordingly. It was also ordered that the benefits will be available to those who in the opinion of the respective High Courts have the potential for continued useful service which shall be assessed and evaluated by a committee of Judges of the respective High Cour ts constituted and headed by the Chief Justice of the High Court and the evaluation shall be made on the basis of the judicial officers' record of service, character, rolls, quality of judgments and other relevant matters. Thus, one who will not be found fit and eligible by the standard should not be given the benefit of extension and should be compulsorily retired at the age of 58 years by following the said procedure of compulsory retirement. 13. As stated supra, the State Government implemented the said judgment by SRO 333 of 1995, dated 22.12.1995 w.e.f. 31.12.1998 and the relevant article reads as follows: "226------ Provided further that: (1) 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. (3) The High Court shall assess and evaluate the record of the Judicial officer for his continued utility before he attains the ago of 58 years by following the procedure for compulsory retirement under the service rules applicable to him and if he is not found lit and eligible he will compulsory retire on his attaining the ago of 58 years". 14. 14. On perusal of the above amended Civil Service Regulations it is clear that a judicial officer will retire on attaining the age of 60 years subject to the provisions of sub-clause 2, namely, the High Court shall assess and evaluate the record of the Judicial officer for his continued utility before ho 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 compulsory retire on his attaining the age of 58 years. The procedure to be followed for compulsory retirement means their performance appraisal as stated in the judgment. It is to be noted that if an Officer is to retire on compulsory retirement other than punishment based on performance appraisal the same will not attract any stigma and it is otherwise called graceful exit at the age of 58 years. 15. A similar issue arose before the Hon'ble the Supreme Court in the decision reported in 2001 (2) SCC 305 (Bishwanath Prasad Singh v. State of Bihar). In the said case also the challenge was made on the ground that appellant ought not to have been retired at the age of 58 years by the Patna High Court except by following procedures of compulsory retirement and the judicial officer having held a civil post under the State of Bihar, the order of retirement can be passed only by the Governor of Bihar and jurisdiction of the High Court is only advisory as the State of Bihar/Governor of Bihar has not passed any order of retirement, the petitioner cannot be asked to retire on its own by the High Court. The Hon'ble Supreme Court in the said decision held that the issue with reference to the All India Judges case reported in 1992 (1) SCC 119 , as clarified in 1993 (4) SCC 288 , as well as the amendment issued in some of the States incorporating the age of retirement as 60 years was with a rider that continuance beyond 58 years would be subject to assessment made by the High Court and the availability of benefit of continuance up to the age of 60 years is dependent upon the evaluation undertaken by the High Court and the individual judicial officer must satisfy the test of continued utility in the judicial system in the opinion of the High Court. The extension of service is neither automatic nor a windfall. The High Court may find an officer not entitled for being conferred the benefit of extended age of superannuation and may also find that the officer is a burden on the public exchequer with no utility for judicial service, intolerable even to be retained up to the age of 58 years and in case the officer is to be prematurely retired before 58 years the procedure for compulsory retirement under the service rules i.e. giving three months notice or three months salary in lieu of notice shall be given and in case the judicial officer is retired on completion of 58 years, the same cannot be treated as a compulsory retirement and it is in fact order of retirement without extension of service and in case a person has to be retired prematurely before the age of 58 years, recommendations for compulsory retirement shall have to be sent to the State Government which would pass the necessary order and if the High Court finds that a judicial officer is not entitled to the benefit of extension, no specific order or communication in that regard is called for either by the High Court or by the Governor of the State and such retirements) is not compulsory retirement in the sense of its being by way of penalty in disciplinary proceedings or even byway of'compulsory retirement in public interest' as no right of the judicial officer is taken away and the High Court may choose to make any communication in that regard. However, the High Courts are advised that it will be better not to use the expression 'compulsory retirement' as it creates confusion and it would suffice to communicate the officer concerned that he would stand retired on the date of superannuation. 16. On a perusal of the order communicated to the respondent dated 02.03.1996, which was impugned in the writ petition, as extracted above, nowhere the word compulsory retirement is used and only a communication was given on 02.03.1996 stating that the respondent shall retire on completion of 58 years on 31.03.1996, Thus, the issue raised by the respondent before the writ court was already considered by three Judge Bench by the Hon'ble Supreme Court in 2001 (2) SCC 305 (Bishwanath Prasad Singh v. State of Bihar). A Division Bench of this Court followed the said judgment and rejected a similar claim made by another judicial officer by judgment dated 23.07.2007. Thus, we fail to note any reason to deviate from the earlier decision taken by the Division Bench of this Court as the point of law raised in this appeal has already settled by the Hon'ble Supreme Court. 17. On merits also, the High Court assessed the entire service record of the respondent before deciding to continue or retire him from service after reaching a particular age. The Hon'ble Supreme Court in the decision reported in AIR 2015 SC 2426 (Punjab State Power Corporation Ltd. and Ors. v. Hari Kishan Verma) clearly held that the entire service record of the Officer shall be seen before retiring the Officer after reaching a particular age. 18. In this case, the performance of the respondent from the date of appointment till his age of 58 years was assessed based on ACR recordings, which was properly considered by the committee of Judges headed by Chief Justice which was also approved by the Full Court. Hon'ble the Supreme Court considered similar aspect with reference to one Shri Shakti Kumar Gupta v. State of J&K and Anr. 2016 (1) JKJ 1 SCI, who was denied service beyond 55 years and was prematurely retired on the ground of overall assessment of his performance, in writ petition (C) No. 355 of 2014, decided on 11.12.2015. Hon'ble the Supreme Court considered similar aspect with reference to one Shri Shakti Kumar Gupta v. State of J&K and Anr. 2016 (1) JKJ 1 SCI, who was denied service beyond 55 years and was prematurely retired on the ground of overall assessment of his performance, in writ petition (C) No. 355 of 2014, decided on 11.12.2015. In the said judgment criteria to be followed as explained in the decision reported in 2011 (10) SCC 1 is relied on and the said criteria/norms reads thus:- "A. Assessment standards: Following are the factors to be taken into consideration individually/collectively to assess the officer. 1. Over all past service record of the Officer shall be examined and considered with emphasis on the last 5 years' record to assess his potential for continued utility in the service beyond 50, 55 and 58 years. 2. The quality of the judgments delivered by the officer, whether or not assailed before the High Court, in suits, appeals, Session 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 case 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. Annual Confidential Reports (A.C.Rs.) 1. General (a) The ACRs for the last five years should be taken into account. (b) If the other record of the officer is at Variance with ACRs. 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. 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 permitted to continue beyond 50, 55 and 58 years of age 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 standard and recording of ACR, following factors shall also be taken into account while evaluating all round potential of the officer: (i) His integrity, honesty and judicial conduct shall be kept in view and utmost importance be attached, (ii) His relations with the Bar and his administrative capacity should also be considered; (iii) His dealing with the finance shall also be taken into account while evaluating the all round potential of the officer; (iv) The ACRs shall not constitute the sole guiding factor but shall be given due weight age along with other equally relevant factors; (v) The institutional integrity being in larger public interest is the uppermost and shall be preferred to individual interest. These are guidelines for internal use of the High Court. However, it would not limit the power of the High Court vested by Article 235 of the Constitution of India read with Article 104 of the J&K Constitution." 19. As stated in paragraph 7 and 8 of this order, we are fully satisfied that all the norms were followed in the case of the respondent while assessing the claim of the respondent for his continuance beyond 58 years by the Committee which was approved by the Full Court. 20. In the light of the above findings on facts as well as the law laid down by the Hon'ble Supreme Court, the reference is answered as against the respondent and in favour of the appellant. 21. 20. In the light of the above findings on facts as well as the law laid down by the Hon'ble Supreme Court, the reference is answered as against the respondent and in favour of the appellant. 21. Consequently, the order of retiring the respondent at the age of 58 years w.e.f. 31.03.1996 without the order of the Governor is held legal and the interference made by the writ court being unwarranted is set aside. The appeal is allowed. 22. No costs.