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PETITIONER: RAMESH CHANDRA ACHARYA

       Vs.

RESPONDENT: REGISTRAR, HIGH COURT OF ORISSA & ANR.

DATE OF JUDGMENT:       26/06/2000

BENCH: M.B.Shah, K.T.Thomas

JUDGMENT:

     Shah, J.

     Question  involved in this petition is  Can, for  any reason,  it be held that Service Rule which provides that an officer  who  has no potential for continued useful  service beyond  a  particular  age, is invalid?   Nowill  be  the obvious  answer for various reasons.  Further, there can  be no  right  of  an employee to continue in  service  de  hors statutory  or administrative rule prescribing superannuation age and continuation in service could be only subject to the conditions   provided.    The    question   which   requires consideration  by the authorities is  Have we not reached a stage  where  services  of   government  or  semi-government employees  should be regulated in such a way that only  such persons  who can render useful service be continued and  not the  indolent,  infirm  and  those  of  doubtful  integrity, reputation  or utility?  Periodical exercise of reviewing or evaluating the utility is required for better administration and  for  removal  of dead wood or persons  having  doubtful integrity and reputation.

     Petitioners  case  is that he was appointed  on  14th January,  1981  by the High Court of Orissa as  a  temporary Munsif  and  he  was  confirmed in the  said  post  on  21st December,  1985;   he was promoted as a Civil Judge  (Senior Division)  in 1993 and was in service since then.  It is his further  case  that in 1998 High Court of  Orissa  conducted review in respect of the petitioner as per Rule 71(a) of the Orissa  Service Code and allowed him to remain in service up to  the date of completion of the age of 58 years.  On  28th January, 2000, he received a copy of the confidential letter from  the  Registrar (Administration), High Court of  Orissa addressed  to  the Secretary, Law Department, Government  of Orissa  conveying  the decision of the High Court of  Orissa that  as  per  Rule  71(a-1) of  the  Orissa  Service  Code, petitioner  should  be  retired from Government  service  on attaining  the age of 58 years i.e.  on 30th June, 2000.  It is  his say that on receipt of the said confidential letter, he  submitted  a representation by letter dated 3.4.2000  to the  High  Court  seeking  reconsideration of  his  case  by pointing  out  that  this  Court has  enhanced  the  age  of superannuation  of judicial officers to 60 years and pointed

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out the decision of this Court in Rajat Baran Roy and others v.   State of W.B and others, [(1999) 4 SCC 235].  But there was  no response.  It is his contention that he has a  clean record  qua integrity and efficiency and there is no adverse entry  or  remark  ever  made in  his  confidential  record. Thereafter,  the  petitioner received a  notification  dated 11.5.2000  from  the Law Department of Government of  Orissa notifying the State Governments decision to retire him from the  Government  service on attaining the age of  58  years. Hence,  he has approached this Court by filing writ petition under Article 32 of the Constitution.

     At  the  time  of  hearing this  petition,  Mr.   A.S. Nambiar,  learned  senior  counsel submitted that  the  Rule 71(a-1)  is  against the decision rendered by this Court  in All India Judges Association v.  Union of India and others, [(1992)  1 SCC 119] and a subsequent clarification given  by this  Court  in  review  application in  All  India  Judges Association  and  others  v.   Union of  India  and  others, [(1993) 4 SCC 288].

     For  appreciating the contention raised by the learned senior  counsel,  we would first refer to relevant  part  of Rule  71(a)  of the Orissa Service Code.  71.(a) Except  as otherwise  provided  in the other clauses of this  rule  the date  of  compulsory  retirement of  a  Government  servant, except  a ministerial servant who was in Government  service on  the 31st March, 1939 and Class IV Government servant, is the  date  on  which he or she attains the age of  58  years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order  to  determine  whether he/she should  be  allowed  to remain in service up to the date of completion of the age of 58  years  or retired on completing the age of 55  years  in public interest:

     Provided.  (a-1).  Notwithstanding anything contained in  sub-rule  (a) of rule 71, Judicial Officer belonging  to State  Judicial  Services, who, in the opinion of  the  High Court  of  Orissa,  have a potential  for  continued  useful service,  shall  be retained in service up to the age of  60 years.

     [NoteThe  potential  for continued utility  shall  be assessed and evaluated by appropriate Committee of Judges of the  High Court, constituted and headed by the Chief Justice and  the  valuation  shall  be  made on  the  basis  of  the Officers past record of service, Character Roll, quality of judgments and other relevant matters.  The High Court should undertake  and  complete the exercise in case of an  officer about  to  attain  the age of 58 years well within  time  by following  the procedure for compulsory retirement under the service  rules applicable to him and give him the benefit of the extended superannuation age from 58 to 60 years only, if he  is  found fit and eligible to continue in  service.   In case  he  is  not  found  fit  and  eligible,  he  shall  be compulsorily  retired on his attaining the age of 58  years. This exercise should be undertaken well in advance before an officer attains the age of 58 years.]

     (b).  .

     (c).  .  .

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     In  our  view,  the  aforesaid rule  is  not  only  in conformity  with the decision rendered by this Court in  the aforesaid  case but also in conformity with the  requirement of  service  jurisprudence.  The purpose of  increasing  the superannuation  age  for the judicial officers was  with  an intention  to  raise  the tone and morale  of  the  judicial services  as  a whole but not to continue the  officers  who have lost their utility in rendering service to the society. It  needs  no emphasis as it is accepted that  the  judicial officer   is  required  to   discharge  much  more   greater responsibility  to  the Society.  As observed in  All  India Judges  Association  case (Review) [Para 7], the  judicial service  is  not service in the sense of employment.   The Judges are not employees.  As members of the judiciary, they exercise  the sovereign judicial power of the State. Hence, judicial  officers must be fit in all respects for discharge of  such  onerous duties.  In All India Judges  Association case,   the  Court  quoted   the  following  observation  of Professor  Pannick from his book entitled Judges:  Judges do  not have an easy job.  They repeatedly do what the  rest of  us  seek  to  avoid;  make  decisions.  After  detailed discussions,  the Court finally observed [in Para 61] thus:- The  conduct  of  every judicial officer  should  be  above reproach.   He should be conscientious, studious,  thorough, courteous,  patient, punctual, just, impartial, fearless  of public clamour, regardless of public praise, and indifferent to  private,  political or partisan influences;   he  should administer  justice  according  to law, and  deal  with  his appointment  as  a public trust;  he should not allow  other affairs  or  his  private interests to  interfere  with  the prompt  and  proper performance of his judicial duties,  nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.

     Hence,  for decidingwhether the judicial officer  has potential  for continued useful service, the authority  (the High Court) has to take into consideration all the aforesaid aspects and has to make overall evaluation.

     This  Court in the aforesaid case emphasised 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 and,  therefore,  directed  thus:-   The  benefit  will  be available  to  those who, in the opinion of  the  respective High  Courts, have a 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 officers past  record of  service, character rolls, quality of judgments and other relevant matters.

     The  Court thereafter clarified that the assessment at the  age  of  58  years is for the purpose  of  finding  out suitability of the concerned officers for the entitlement of

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the  benefit of the increased age of superannuation from  58 years  to 60 years;  it is in addition to the assessment  to be  undertaken for compulsory retirement and the  compulsory retirement  at  the  earlier stage/s  under  the  respective Service Rules.

     It is apparent that aforesaid directions of this Court are  faithfully  incorporated  in   the  aforequoted   rule. Therefore,  the High Court was fully justified in  following the  aforesaid  rules  in  evaluating   the  record  of  the petitioner  for  his  continued   utility  in  the  judicial service.

     Further,  the  aforequoted rule does  not  straightway extend  the age of superannuation at the age of 58 years but it  only  enables  the  High Court to retain  in  service  a judicial officer belonging to the State Judicial Services up to  the  age of 60 years, if it is in the opinion that  such judicial  officer  has  potential  to  continue  in   useful service.   For  finding  out whether he  has  potential  for continue  in useful service, assessment is to be made on the basis of past record of service, character rolls, quality of the  judgments and other relevant matters, which may include over all assessment with regard to integrity, reputation and utility.

     However,  the  learned  counsel   for  the  petitioner referred  to  the decision rendered by this Court  in  Rajat Baran  Roy and others v.  State of W.B.  and others, [(1999) 4 SCC 235] and submitted that once the superannuation age is extended  to 60 years, there is no question of reviewing  it at  the  age of 58 years.  In our view, this  submission  is without  any  substance because it is open to the  competent authority to frame appropriate rules permitting it to assess the  overall performance of the officer periodically to find out whether such officer has potential for continued utility in service.  The aforesaid judgment only deals with the rule where  there was no such specific provision of review at the age  of  58  years  and  the Court referred  to  a  Memo  of Government   of   W.B.   dated   15.5.1998   extending   the superannuation  age to 60 years and held that officers  have right  to  continue till the age of 60 years.  Further,  the Court  found that power vested under rule 75(aa) of the West Bengal  Service Rules (Part I) were not exercised and in any case  from  the  record  it appeared  that  there  was  non- application  of mind to the material particulars which  were mandatory for invoking the said rule.  The Court, therefore, held that there was no question of referring to the decision in  case  of All India Judges Association (Supra).  In  our view, the said decision in Rajat Baran Roy has no bearing in the present case because of specific Rule 71(a).

     In  this view of the matter, there is no substance  in the  contention that Rule 71(a-1) is ultra-virus, invalid or against  the  judgment rendered by this Court in  All  India Judges  Association case.  We reiterate that in the absence of specific rule made by the State no judicial officer has a right  as such to continue beyond the age of 58.  It is only when  the High Court, after reviewing all aspects of service including   the  past  record  of  the  officer   concerned, specifically orders that in the interest of judicial service

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of  the  State  it  is necessary to  retain  the  particular officer  beyond that age limit and allow him to superannuate at  the  age of 60.  In other words, continuation beyond  58 years  is  permissible  only  when the High  Court  makes  a positive  recommendation in favour of that officer for  such continuation.   Otherwise the judicial officer has to retire at  the age of 58.  This can be departed from only when  the State makes specific rule otherwise.

     The  learned  counsel  for   the  petitioner   further referred  to the decision in M.S.  Bindra v.  Union of India and  others [(1998) 7 SCC 310] and Madan Mohan Choudhary  v. State  of  Bihar and others [(1999) 3 SCC 396].   These  two cases  pertain to compulsory retirement of the officers on a pre-mature  stage and considering facts and circumstances of the  case, this Court observed that judicial scrutiny of any order   imposing   pre-mature   compulsory   retirement   is permissible if the order is either arbitrary or mala fide or it  is based on no evidence.  However, in this writ petition under  Article  32  it is not necessary for  us  to  examine whether  the  recommendations made by the High Court on  the basis  of Rule 71(a-1) of the Orissa Service Code is in  any way  arbitrary or mala fide as it is open to the  petitioner to approach the High Court for his grievances.

     Hence,  this petition under Article 32 is not required to be entertained and is dismissed.