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CASE NO.: Appeal (civil)  2898 of 2001 Appeal (civil)  2920 of 2001 Appeal (civil)  7342 of 2001

PETITIONER: Nawal Singh                                                      Chander Pal Singh        Bharthari Prasad

RESPONDENT: State of U.P. & Another                                  State of U.P. & Another  State of U.P. & Another          

DATE OF JUDGMENT: 23/09/2003

BENCH: M.B. SHAH  & Dr. AR. LAKSHMANAN.

JUDGMENT: J U D G M E N T  

Shah, J.

Challenge in these appeals is to the orders of compulsory  retirement of Judicial Officers, who were working in the State of U.P.  

At the outset, it is to be reiterated that the judicial service is not  a service in the sense of an employment.  Judges are discharging their  functions while exercising the sovereign judicial power of the State.   Their honesty and integrity is expected to be beyond doubt.  It should  be reflected in their overall reputation.  Further nature of judicial  service is such that it cannot afford to suffer continuance in service of  persons of doubtful integrity or who have lost their utility.  If such  evaluation is done by the Committee of the High Court Judges and is  affirmed in the writ petition, except in very exceptional  circumstances, this Court would not interfere with the same,  particularly because order of compulsory retirement is based on the  subjective satisfaction of the Authority.

On the basis of the aforesaid principles these appeals against the  judgments and orders dated 19.4.1999, 27.3.1999 and 15.2.2000  passed by the High Court of Allahabad in CMWP No.14831 of 1999,  CMWP No.28664 of 1998 and CMWP No.1312 of 1999, challenging  their compulsory retirement at the age of 58 years, are required to be  decided. I.      At the time of hearing, firstly, it is submitted by the learned  counsel for the appellants that:â\200\223  ?       In view of the Rule increasing the retirement age from 58  years to 60 years, Rule 56 of U.P. Fundamental Rules  would stand repealed.

For this purpose, learned counsel for the appellants relied upon  the Rules regulating the retirement on superannuation of the Judicial  Officers framed by the State of U.P. vide Notification dated 20th  October, 1992, published in the U.P. Gazette Part 1(ka) dated 3rd  April, 1993, p. 930, SI. No.14.  The said Rules read as under:â\200\224 1.      Short title and commencement.â\200\224 (1)   These rules may be called the Uttar Pradesh Judicial  Officers (Retirement on Superannuation) Rules, 1992.

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(2)     They shall come into force with effect from  the date of their publication in the Gazette.

2.      Overriding effect.â\200\224 The provisions of  these rules shall have effect notwithstanding anything  to the contrary contained in Rule 56 of the Uttar  Pradesh Fundamental Rules, contained in the Financial  Handbook, Volume II, Parts II to IV or any other rules  made by the Governor under the proviso to Article 309 of  the Constitution or orders, for the time being in force.

3.      â\200¦.  

4.      Retirement.â\200\224 A Judicial Officer shall  retire from service on superannuation in the afternoon of  the last day of the month in which he attains the age of  sixty years."

Before appreciating the contentions of the learned counsel for  the parties, we would refer to Rule 56 of the U.P. Fundamental Rules,  which reads thus:â\200\224 "56. (a)        Except as otherwise provided in this Rule,  every Government servant other than a Government  servant in inferior service shall retire from service on the  afternoon of the last day of the month in which he attains  the age of fifty eight years.  He may be retained in  service after the date of compulsory retirement 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.

(b)     A Government servant in inferior service  shall retire from service on the afternoon of the last day  of the month in which he attains the age of sixty years.   He must not be retained in service after that date, except  in very special circumstances and with sanction of the  Government.

(c)     Notwithstanding anything contained in  clause (a) or clause (b), the appointing authority may, at  any time by notice to any Government servant (whether  permanent or temporary), without assigning any reason,  require him to retire after he attains the age of fifty  years or such Government servant may by notice to the  appointing authority voluntarily retire at any time after  attaining the age of forty five years or after he has  completed qualifying service of twenty years.

(d)     The period of such notice shall be three  months:

Provided thatâ\200¦ (e)     A retiring pension shall be payable and other  retirement benefits, if any shall be available in  accordance with and subject to the provisions of the  relevant Rules to every Government servant who retires  or is required or allowed to retire under this Rule.

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Provided thatâ\200¦â\200¦

Explanation: (1) The decision of â\200¦.. public interest.

(2)     In order to be satisfied whether it will be in  the public interest to require a Government servant to  retire under clause (c) the appointing authority may take  into consideration any material relating to the  Government servant and nothing herein contained shall  be construed to exclude from considerationâ\200\224

(a)     any entries relating to any period before  such Government servant was allowed to  cross any efficiency bar or before he was  promoted to any post in an officiating or  substantive capacity or on an ad hoc basis;  or

(b)     any entry against which a representation is  pending, provided that the representation is  also taken into consideration along with the  entry; or

(c)     any report of the Vigilance Establishment  constituted under the Uttar Pradesh  Vigilance Establishment Act, 1965.

(2-A) Every such decision shall be deemed to have  been taken in the public interest.

               (3)â\200\224(4)         â\200¦ "

The title of the aforesaid 1992 Rules makes it clear that the  Rules only pertain to U.P. Judicial Officers’ Retirement on  Superannuation and provide that a judicial officer shall retire from  service on superannuation when he attains the age of sixty years.

Learned counsel for the appellants submitted that Rule 2 would  have overriding effect and Rule 56 as a whole would not be applicable  to the Judicial Officers.  This submission is without any substance.   Rule 2 only provides that notwithstanding anything to the contrary  contained in Rule 56 of the U.P. Fundamental Rules, a Judicial  Officer shall retire from service on superannuation when he attains the  age of 60 years.  Under Rule 56 (a), the retirement age is 58 years and  that part of the Rule would not be applicable as it is contrary to Rule 4  of the 1992 Rules.

Further, from the Rules quoted above, it is apparent that the  1992 Rules regulating the retirement on superannuation of the Judicial  Officers deal only with the extension of retirement age from 58 to 60  and by giving overriding effect Rule 56 (a) of the Fundamental Rules  is substituted for judicial officers of the State of U.P.  From this, by no  stretch of imagination, it can be said that Rule 56 (b) to (e) and the  Explanations (1), (2) or (3) are, in any way, altered, amended or  substituted.  If the contention of the learned counsel for the appellant  is accepted, the other rules which provide for giving such employee  retirement benefits as provided in Rule 56 (e), issuance of notice by   considering the material relating to government servants for  compulsory retirement would be redundant.  Such contention is  apparently without any basis. Hence, it does not require further  elaboration.  However, we would refer to the decision in A.G.  Varadarajulu and Another v. State of T.N. and Others [(1998) 4

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SCC 231] which was relied upon by the learned senior counsel Mr.  Dwivedi, wherein [in para 16] this Court held as under:- "16.   It is well settled that while dealing with a non  obstante clause under which the legislature wants to give  overriding effect to a section, the court must try to find  out the extent to which the legislature had intended to  give one provision overriding effect over another  provision.  Such intention of the legislature in this behalf  is to be gathered from the enacting part of the section.  In  Aswini Kumar Ghose v. Arabinda Bosee AIR 1952 SC  369, Patanjali Sastri, J. observed"

"The enacting part of a statute must, where  it is clear, be taken to control the non obstante  clause where both cannot be read harmoniously."

In Madhav Rao Scindia v. Union of India (1971) 1 SCC  85 at page 139, Hidaytullah, C.J. observed that the non  obstante clause is no doubt a very potent clause intended  to exclude every consideration arising from other  provisions of the same statute or other statute but "for  that reason alone we must determine the scope" of that  provision strictly.  When the section containing the said  clause does not refer to any particular provisions which it  intends to override but refers to the provisions of the  statute generally, it is not permissible to hold that it  excludes the whole Act and stands all alone by itself. "A  search has, therefore, to be made with a view to  determining which provision answers the description and  which does not."  

II.     The learned counsel next submitted that as per the Allahabad  High Court Rules, before recommending compulsory retirement of the  appellants, the Full Court was required to pass such orders and as the  Full Court has not passed any resolution, compulsory retirement is  bad.

Dealing with Allahabad High Court Rules, in State of Uttar  Pradesh v. Batuk Deo Pati Tripathi & Another [(1978) 2 SCC 102],   7-Judge Bench of this Court considered similar contention and  negatived the same by holding that it was misconception that control  over the Subordinate Judiciary which is vested by Article 235 in the  High Courts must be exercised by the whole body of the Judges.   The Court negatived the contention that the High Court cannot  delegate its function or power to a Judge or smaller body of Judges of  the Court; it is no exaggeration to say that the control will be better  and more effectively exercised if a smaller committee of Judges has  the authority of the court to consider the manifold matters falling  within the purview of Article 235.  Such an authorisation effectuates  the purpose of Article 235. After elaborate discussion, the Court  upheld the minority judgment of the Full Bench that Rule 1 of Chapter  III of the 1952 Rules framed by the Allahabad High Court is within  the framework of Article 235 and the recommendation made by the  Administrative Committee that the Judicial Officer should be  compulsorily retired cannot be said to suffer from any legal or  constitutional infirmity.  The aforesaid decision is repeatedly followed  by this Court.  Finally, in Chandra Singh and Others v. State of  Rajasthan and Another [(2003) 6 SCC 545] the Court observed as  under:â\200\224 "40.    Article 235 of the Constitution of India enables the  High Court to assess the performance of any judicial  officer at any time with a view to discipline the black  sheep or weed out the deadwood.  This constitutional  power of the High Court cannot be circumscribed by any

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rule or order. â\200¦  

47.     In the instant case, we are dealing with the higher  judicial officers. We have already noticed the  observations made by the Committee of three Judges.   The nature of judicial service is such that it cannot  afford to suffer continuance in service of persons of  doubtful integrity or who have lost their utility."

Similarly, in High Court of Judicature for Rajasthan v. P.P.  Singh [(2003) 4 SCC 239], the Court held that:â\200\224 "19.    It is also true that the powers of the Chief  Justice under Articles 235 and 229 of the Constitution of  India are different and distinct.  Whereas control over the  subordinate courts vests in the High Court as a whole, the  control over the High Court vests in the Chief Justices  only. (See All India Judges’ Association’s case).   However, the same does not mean that a Full Court  cannot authorize the Chief Justice in respect of any  matter whatsoever.  In relation to certain matters keeping  the rest of it in itself by the Full Court, authorization to  act on its behalf in favour of the Chief Justice on a  Committee of Judges is permissible in law.  How far and  to what extent such power has been or can be delegated  would be discernible only from the Rules.  Such a power  by the Full Court can also be exercised from time to  time."

III.    The learned counsel for the appellants thirdly submitted that in  view of the decision rendered by this Court in High Court of  Judicature at Allahabad through Registrar v. Sarnam Singh &  Another [(2000) 2 SCC 339] the orders passed by the High Court  compulsory retiring the appellants on the basis of the directions issued  by this Court in All India Judges’ Association v. Union of India &  Others [(1992) 1 SCC 119] cannot be justified.

Learned Counsel submitted that in similar set of circumstances  for the rules framed by the State of U.P. extending the age limit from  58 years to 60 years, this Court has held that for all Judicial Officers  working in the subordinate courts, retirement age would be 60 years  and thus, the age having been raised from 58 years to 60 years, all  Judicial Officers in the State would retire on attaining the age of 60  years and not earlier.   

In the aforesaid case, the Court held that in view of the  aforesaid rule which had overriding effect, the directions given by this  Court [in All India Judges’ Association case (supra)] for scrutiny of  the service records before allowing the Judges to continue in service  beyond 58 years, being of a transitory character, yielded place to the  new rules made by the State Government under Article 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 the Judicial Officers before allowing them the benefit of extension  in the age of retirement.  The Court held that the directions issued by  this Court in the Review Petition in All India Judges’ Association  case, for scrutiny of service record would not be applicable as the  judicial officers by virtue of new rule would continue up to the age of  superannuation fixed under the new rule.   

Firstly, it is to be stated that in the case of Sarnam Singh  (supra), the High Court on judicial side has set aside the order of  compulsory retirement passed on the report of the Scrutiny  Committee, as it was based on no material in support of such order.  

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That order was challenged before this Court by the High Court of  Allahabad.  In that set of circumstances, the Court arrived at the  conclusion that once the retirement age of judicial officers was  extended to 60 years, the direction issued in All India Judges’  Association Case for scrutiny of service records before allowing the  judges to continue in service beyond 58 years would not survive and,  therefore, there was no question of passing order of compulsory  retirement.  The only reason recorded in the said judgment for  confirming the order passed by the High Court was that compulsory  retirement was bad as the judicial officer was entitled to continue up  to the age of 60 years in view of the amended Rules framed under  Article 309 of the Constitution.

This Court in Sarnam Singh’s case (supra) was not required  and has not dealt with exercise of powers by the High Court under  Rule 56(c).

In these matters, the High Court has exercised its jurisdiction  not only on the basis of the directions issued by this Court in All India  Judges’ Association Case but also in exercise of its powers under  Rule 56 (c) which empowers it to pass an order of compulsory  retirement after an employee attains the age of 50 years.  In All India  Judges’ Association and others v. Union of India and others [(1993)  4 SCC 288 â\200\223 (Review Petition)], this Court has made it clear that the  direction issued by the Court for continuing judicial officers in service  by considering their suitability for the entitlement of the benefit of  increased age of superannuation from 58 to 60 years was in addition  to the assessment to be undertaken for the compulsory retirement  and the compulsory retirement at the early stage/s under the  respective Services Rules.

Therefore, there is no embargo on the competent authority to  exercise its power of compulsory retirement under Rule 56 of  Fundamental Rules.  As stated above, we have arrived at the  conclusion that because of the increase in retirement age, rest of the  Rules providing for compulsory retirement would not be nugatory and  are not repealed.  Hence, it was open to the High Court to follow the  procedure for exercising the power under Rule 56 (c) and the  procedure prescribed in Explanation (2-A) requires that such order  should be in public interest and the appointing authority may take into  consideration any material relating to such officer.  It inter alia  provides that any entry in service record against which a  representation is pending can be taken into consideration provided  that the representation against such entry is also taken into  consideration along with the entry and to consider any report of the  Vigilance Establishment.  This power was exercised by the High  Court.  No doubt, the Committees were constituted on the basis of the  directions issued by this Court in First All India Judges’ Association  case, but at the same time, before passing the order of compulsory  retirement, the High Court exercised its powers under Fundamental  Rules and that is specifically mentioned in the orders.

IV.     It was finally contended by the learned counsel for the  appellants that there was no justifiable reason for passing the order of  compulsory retirement.   

This contention is required to be appreciated on the basis of  settled law on the subject of compulsory retirement.  In Baikuntha  Nath Das and another v. Chief District Medical Officer, Baripada  and another [(1992) 2 SCC 299], this Court considered Fundamental  Rule 56(j) and rule corresponding to it and observed that the object  and purposes for exercise of these powers are well stated in Union of  India v. J.N. Sinha [(1970) 2 SCC 458] and other decisions referred  to by the Court and held thus:â\200\224 "34.    The following principles emerge from the

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above discussion:

(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.  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) mala fide or (b) that it is based on  no evidence or (c) that it is arbitrary â\200\224 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 â\200\224 of course attaching  more importance to record of and  performance during the 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 based  upon merit (selection) and not upon  seniority.

(v)     An order of compulsory retirement is not  liable to be quashed by a Court merely on  the showing that while passing it  uncommunicated adverse remarks were also  taken into consideration.  That circumstance  by itself cannot be a basis for interference."

In J.N. Sinha’s case (supra), the Court specifically held that  the rule embodies one of the facts of the pleasure doctrine embodied  in Article 310 of the Constitution and that the rule holds the balance  between the rights of the individual government servant and the  interest of the public; the rule is intended to enable the government  to energise its machinery and to make it efficient by compulsorily  retiring those who in its opinion should not be there in public interest.  

Further, it is to be reiterated that the object of compulsory  retirement is to weed out the dead wood in order to maintain high  standard of efficiency and honesty to keep judicial service unpolluted.

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It empowers the authority to retire officers of doubtful integrity which  depends upon overall impression gathered by the higher officers and it  is impossible to prove by positive evidence that a particular officer is  dishonest.  This aspect is dealt with in Union of India v. M.E. Reddy  and another [(1980) 2 SCC 15] wherein the Court (in para 17) held  thus:â\200\224 "Mr. Krishnamurty Iyer appearing for Reddy  submitted that the order impugned is passed on materials  which are non-existent inasmuch as there are no adverse  remarks against Reddy who had a spotless career  throughout and if such remarks would have been made in  his confidential reports they should have been  communicated to him under the rules.  This argument, in  our opinion, appears to be based on a serious  misconception.  In the first place, under the various rules  on the subject it is not every adverse entry or remark that  has to be communicated to the officer concerned.  The  superior officer may make certain remarks while  assessing the work and conduct of the subordinate officer  based on his personal supervision or contact.  Some of  these remarks may be purely innocuous, or may be  connected with general reputation of honesty or integrity  that a particular officer enjoys.  It will indeed be difficult  if not impossible to prove by positive evidence that a  particular officer is dishonest but those who have had  the opportunity to watch the performance of the said  officer from close quarters are in a position to know the  nature and character not only of his performance but also  of the reputation that he enjoys."

In the backdrop of the settled law, the learned counsel for the  parties have drawn our attention to the relevant material considered by  the Committee appointed by the High Court.  The Committee  followed the procedure prescribed in Rule 56, as provided in  explanation to the said Rule.  The material on record reveals that the  High Court has taken into consideration all the relevant facts.  There  is no allegation that the orders were arbitrary or mala fide.  Still  however, with regard to each case, we would refer in brief what has  been stated in Confidential Reports of the appellants.

CIVIL APPEAL No.2898  OF 2001

       Appellant Nawal Singh was appointed in 1972.  In Confidential  Reports for the year 1975-76, 1976-77, it has been mentioned that his  judicial work needs improvement.  For the year 1980-81, his judicial  work was of average quality.  For the year 1984-85, the District Judge  has rated him as good officer.  For the year 1986-87, there were  complaints about his integrity.  For this purpose, reference was made  to cases wherein he had granted bail in serious offences.  However,  with regard to doubtful integrity, the representation of the appellant  was accepted and it was substituted by holding that no reason to doubt  the integrity of the officer.  Again, for the year 1990-91, it has been  stated that with regard to the interim orders/injunctions, he was  directed to be more scrupulous; it was stated that integrity was  doubtful and over all assessment was poor.  On his revision, adverse  remarks with regard to his integrity were expunged by holding that the  appellant was suspended during the relevant year pending the  departmental enquiry touching his integrity but he was exonerated by  the Administrative Committee.  Again, there are instances indicating  that various inquiries were held subsequently.  It is not necessary to  refer to the same. His application for revoking the suspension was also  rejected.  However, later on, order of suspension was revoked.

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CIVIL APPEAL No.2920 OF 2001

Same is the position with regard to Chander Pal Singh.  His  confidential reports reveal that various allegations were made and  various inquiries were held against him.  Once he was charged with  the offence of committing breach of guidelines prescribed by the High  Court and also for committing an act of gross mis-conduct by  misusing the authority of the District & Sessions Judge in violation of  Rule 3 of U.P. Government Servants Conduct Rules, 1956.  In one  matter, the District Magistrate, Fatehpur made a complaint against  him stating that he was entertaining revisions against orders passed by  him under Section 3 of U.P. Control of Goondas Act, 1970.  The  matter was referred to the Administrative Committee for  consideration.  

CIVIL APPEAL No.7342 OF 2001

Case of Bharthari Prasad is also of the same nature.  His  confidential reports reveal that various allegations were made and  various inquiries were held against him.  In confidential report for the  year 1975-76, the District Judge observed disposal of cases to be poor  and judgment of average quality.  For the years 1978-79 and 1980-81,  the disposal was observed to be below standard.  Once he was charged  for the omission while delivering the judgment of conviction in the  absence of the accused and also discharging the bail bonds and  sureties, which was in violation of Section 353 of Cr.P.C.   For this,  he was asked to be careful in future.  For the year 1994-95, District  Judge remarked his integrity to be doubtful and overall assessment as  poor.  Representation of the appellant against these remarks was also  rejected.  For the year 1997-98, the District Judge awarded adverse  remarks against him.  The District Judge also requested for his  transfer from Allahabad to another station.  The appellant was later on  transferred from Allahabad.    It is also stated that the appellant did  not comply the orders of transfer but even after receiving the orders of  transfer, he continued to decide cases.  The matter was later on  considered by the Administrative Committee.  Hence, it is apparent that the Screening Committee after  examining the past records of service; character roll and other matters  relating to the appellants opined that they were not suitable for  continuing in service beyond the age of 58 years.   

       From the facts narrated above, even if we were to sit in appeal  against the subjective satisfaction of the High Court, it cannot be said  that the orders of compulsory retirement of the appellants are, in any  way, erroneous or unjustified.  Further, it is impossible to prove by  positive evidence the basis for doubting integrity of the judicial  officer.  In the present day system, reliance is required to be placed on  the opinion of the higher officer who had the opportunity to watch the  performance of the concerned officer from close quarters and  formation of his opinion with regard to overall reputation enjoyed by  the concerned officer would be the basis.

It is to be reiterated that for keeping the stream of justice  unpolluted, repeated scrutiny of service records of judicial officers  after specified age/completion of specified years of service provided  under the Rules is must by each and every High Court as the lower  judiciary is the foundation of judicial system.  We hope that the High  Courts would take appropriate steps regularly for weeding out the

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dead-wood or the persons polluting justice delivery system.

       In the result, the appeals are dismissed with costs, quantified at  Rs.5000/- in each appeal.