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PETITIONER: SHRI RAJAT BARAN ROY

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT:       13/04/1999

BENCH: N.S.Hegde, R.C.Lahoti, S.P.Bharucha,

JUDGMENT:

SANTOSH HEGDE, J.

     The  above  writ  petitions  are  admitted  for  final hearing.  Notice having been served on the respondents, they have  put  in  their appearance and  filed  their  response. Since  the  questions involved in these writ  petitions  are common, they are being disposed of by a common judgment.

     In  W.P.   No.578/98, the petitioner was  holding  the post  in the rank of a District Judge, who was  compulsorily retired  by  an order of the Governor of West  Bengal  dated 23.10.1998  w.e.f.  the date on which he attained the age of 58 years, i.e.  31.10.1998.

     In  W.P.  No.601/98, the petitioner was also holding a post  equivalent  to  that  of  a  District  Judge  and  was similarly  retired by an order of the Governor of the  State of  West Bengal dated 26.10.1998 on his attaining the age of 58 years which also happened to be 31.10.1998.

     In  W.P.   No.638/98, the petitioner was posted  as  a District  Judge  and  was also compulsorily retired  on  his attaining the age of 58 years w.e.f.  30.11.1998 by an order of the Governor of West Bengal dated 2.11.1998.  Admittedly, the  retirements of the petitioners are not on  disciplinary ground but on the ground that the High Court of Calcutta had recommended  the  retirement of these judicial  officers  on their having attained the age of 58 years.  The grievance of the  petitioners  in  these  petitions is that  as  per  the service  rules  applicable  to them, their  retirement  from service can take place only on their attaining the age of 60 years;   whereas the respondents by the impugned orders have prematurely  retired them at the age of 58 years purportedly on the basis of a review of the petitioners’ service record, performance,  efficiency,  integrity,  utility  etc.   by  a Review  Committee of the High Court which, according to  the petitioners,  is not permissible in law.  The respondents in their  pleadings urged that it is open to the High Court  to make  a pre-retirement assessment of a member of the  Higher Judicial Service in the State of West Bengal on or about the time  such  member attains the age of 58 years, and  if  the High  Court  is  not satisfied with the performance  of  the officer concerned, it could recommend to the Governor of the State  to  compulsorily retire the concerned officer at  the

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age  of  58  years.  For this proposition,  the  respondents relied  upon the directions given by this Court in All India Judges’  Association  &  Ors.  vs.  Union of  India  &  Ors. (1993 4 SCC 288).  The respondents further contend that even otherwise  in view of the power vested in them under  Clause 2(a)(a) of Rule 75 of the West Bengal Service Rules, Part-I, which  applies  in  respect of officers of the  West  Bengal Civil Service (Judicial) and the West Bengal Higher Judicial Service,  they have the authority to retire the  petitioners prematurely.  We have heard learned counsel for the parties. It is an admitted fact by both sides that the retirement age of  the  judicial  officers, at present, is 60  years.   The petitioners  contend  that by virtue of the Notification  of the  Government  of West Bengal No.14136-J dated  20.6.1992, the  members of the West Bengal Higher Judicial Service  are treated at par with the members of the Indian Administrative Service  in all matters.  Therefore, when the Government  of India  on 31.1.1998 fixed the retirement age of the  members of   the   Indian  Administrative   Service  at  60   years, automatically  the  retirement  age of members of  the  West Bengal  Higher  Judicial  Service also got  enhanced  to  60 years.  Hence, it is contended by the petitioners that their retirement  age  is  enhanced  by   the  provisions  of  the statutory rules.  Per contra, the respondents contended that the  petitioners’ retirement age is extended to 60 years  by virtue  of the directions issued by this Court on  20.8.1993 in  the  case of All India Judges’ Association case  (supra) and  not  by  any statutory rules.  This difference  in  the source  of  retirement  age  has a  direct  bearing  on  the validity   of   the  impugned   orders.   To   decide   this controversy,  it  is  necessary  to  briefly  refer  to  the directions  issued  in  the two cases of All  India  Judges’ Association.   In  the  first  case  of  All  India  Judges’ Association  reported  in  (1992)  1  SCC  119  (hereinafter referred  to  as  ‘the 1992 case’), this  Court  issued  the following  direction  :- "(iii) Retirement age  of  judicial officers  be raised to 60 years and appropriate steps are to be taken by December 31, 1992."

     As  per the above direction, it became the duty of all the  States  and  the  Union  of  India  to  make   suitable provisions  in the concerned Rules to enhance the retirement age  of  the  judicial officers to 60 years  by  31.12.1992. Instead  of  complying with the directions of this Court  in the  1992  case, the Union of India and some of  the  States filed review petitions before this Court on various grounds. The  stand  taken by the review petitioners was rejected  by this  Court  by  an  order which is reported  in  All  India Judges’ Association & Ors.  V.  Union of India & Ors.  (1993 4 SCC 288) (hereinafter referred to as ‘the 1993 case’).  By this  order, this Court while directing that the  retirement age  of the members of subordinate judiciary in India should be 60 years, added a rider to the increase in the retirement age  by holding that this benefit of increase in  retirement age  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, according to this Court, was available to those who,  in  the opinion of the respective High Courts, have  a potential  for continued useful service.  The Court  further said that 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 was  directed to  be  assessed and evaluated by appropriate Committees  of Judges  of the respective High Courts constituted and headed

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by the Chief Justices of the High Courts.  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 :   "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).  In view of this observation, it  is clear that the direction issued as above, would cease to  exist when appropriate rule enhancing the retirement age of the judicial officers to 60 years is made.  Consequently, the  rider to the direction issued by the Court also  ceases to operate, being co-terminus 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.    In  other  words,   the enhancement  of  retirement age in those States will  be  de hors  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.  In the State of West Bengal, it is to be  noted that  by virtue of the Government Order dated 20.6.1992, the members  of  the  West Bengal Higher Judicial  Service  were treated at par with the members of the Indian Administrative Service  in all matters.  From this order, it flows that any change  that  is brought about in the service conditions  of the  members of the Indian Administrative Service would ipso facto  becomes applicable to the members of the West  Bengal Higher   Judicial  Service  also.    Consequent   upon   the recommendations  made by the 5th Central Pay Commission,  it is  seen from records that the Ministry of Personnel, Public Grievances  & Pension (Department of Personnel &  Training), Government   of  India,  by  an  Office   Memorandum   dated 13.5.1998,  informed  the  State of West  Bengal  that  "the President  is  pleased  to  direct   that:   (a)  Except  as otherwise  provided  specifically, every Government  servant whose  age  of  retirement is currently 58 years  shall  now retire  from service on the afternoon of the last day of the month  in  which  he/she  attains the age  of  sixty  years. However,  Government  servants  whose date of birth  is  the first  of a month shall retire from service on the afternoon of  the last day of the preceding month on attaining the age of  sixty  years;".   The  Government of West  Bengal  by  a separate  order  dated 15.5.1998 implemented  the  aforesaid Office  Memorandum  of  the  Government   of  India  in  the following terms :

     "The  terms  of  reference of the 4th  Pay  Commission include  inter  alia,  the  issues  relating  to  retirement benefits.   The  Pay Commission has submitted a  report  for enhancement  of age of retirement from fifty eight years  to sixty years.

     After careful consideration of the recommendation, the

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Governor is pleased to order in partial modification of Rule 75(a)  of W.B.S.R.  Pt.  I, that the Government employees of Group-A,  Group-B  and  Group-C service  shall  retire  from service  compulsorily with effect from the afternoon of  the last  day of the month in which they attain the age of sixty years.

     This will take immediate effect."

     By virtue of the Government Order of the State of West Bengal dated 20.6.1992 when the State Government applied the change  in  service conditions as per the Office  Memorandum dated 15.5.1998 to the members of its services automatically the  said change in the age of retirement became  applicable to  the  members of the West Bengal Higher Judicial  Service also.   In  other  words,  when the retirement  age  of  the officers of the Indian Administrative Service stood extended from 58 years to 60 years, the retirement age of the members of  the West Bengal Judicial Service also automatically  got extended  from 58 years to 60 years.  Therefore on and  from the above date, the age of superannuation of a member of the West  Bengal Higher Judicial Service came to be governed  by the above rules.  Consequently, the directions including the raider there on issued by this court in the 1993 case ceases to  operate.   Therefore, in our opinion, the contention  of the  respondents  that  the  rights of  the  petitioners  to continue in service till the age of 60 years is derived from the directions issued by this Court in the 1993 case, cannot be  accepted, and we hold that so far as the members of  the West Bengal Higher Judicial Service are concerned, their age of  superannuation  is  60  years, as  contemplated  in  the Official  Memorandum of the Government of West Bengal  dated 15.5.1998  as made applicable to the Higher Judicial Service of  West  Bengal in its order dated 20.6.1992 and  the  said Office  Memorandum and the Government Order having not fixed any  pre-retirement assessment at the age of 58, it was  not open  to  the High Court to have recommended the  compulsory retirement  of the petitioners, following directions of this court  which  had  ceased to exist.   Alternatively,  it  is contended  on  behalf of the respondents that  the  impugned orders  can also be justified by virtue of the power  vested in  them  under  Rule 75(a)(a) of the  West  Bengal  Service Rules,  Part  I.  It is contended that in view of  the  said Rule,  it is open to the respondents to retire a  Government Servant  in public interest.  Before we go into the validity of  this  argument, it is necessary to examine  whether,  in fact,  the respondents invoked this Rule for the purpose  of issuing  the  impugned  orders  or not.  A  perusal  of  the affidavit  filed  on behalf of the High Court clearly  shows that the respondents in exercise of the power vested in them by  virtue  of  the  directions  given  in  the  1993  case, proceeded  to  pass  the impugned orders.  This  is  crystal clear  from  the  following paragraphs  extracted  from  the affidavit filed on behalf of the Registrar of the High Court of Calcutta :

     "3.4  In terms of the aforementioned memorandum  dated 13.9.1994,  and  this  Hon’ble Court’s judgment in  the  All India Judges case, Respondent No.1, the Judicial Department, Govt.  of West Bengal passed an order, Order No.9509-J dated 23.10.1998  inter alia stating that the writ petitioner  was to  retire  compulsorily  from service on his  attaining  58 years i.e.  on 31.10.1998.  The said order was passed on the recommendation  of the High Court.  The High Court  reviewed

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the  petitioner’s service records, performance,  efficiency, integrity,  utility  etc.   and only after  full  assessment thereof  the  said decision by the Review Committee  of  the High  Court  to compulsorily retire the writ petitioner  was taken and consequential orders passed."

     x x x

     "3.8  Primarily  it appears from the contents  of  the various  grounds  taken  by  the writ  petitioner  that  the petitioner  is  praying for continuance in judicial  service till  age of 60 without the required review procedure to  be followed  in  terms  of this Hon’ble Court’s orders  in  All India  Judges case basing his claim on the recommendation of the 4th Pay Commission of the State Government enhancing the age  of superannuation of officers etc.  of the West  Bengal Civil  Service  which  is in effect  a  consequential  order issued  after  the  5th  Pay   Commission  of  the   Central Government recommended the age of retirement at 60 years.  "

     In view of the above pleadings, it is not possible for us  to accept the alternate argument of the respondents that the  impugned  orders are de hors the directions  issued  by this  Court  in  the  1993 case.  We will  now  examine  the contention  of the respondents that the impugned orders  can be  independently  justified in view of the power vested  in them  by virtue of Rule 75(a)(a) of the West Bengal  Service Rules, Part- I.  The said Rule reads thus :

     "Notwithstanding  anything contained in this Rule  the appointing  authority shall, if it is of opinion that it  is in  the public interest so to do, have the absolute right to retire  a  government employee by giving him notice  of  not less  than three months in writing or three months’ pay  and allowances in lieu of such notice -

     i) If he is in Group-A or Group-B (erstwhile gazetted) service  of  post and had entered government service  before attaining the age of 35 years, if he has attained the age of 50  years  and ii) In all other cases after he has  attained the age of 55 years."

     A  perusal  of this Rule shows that this Rule  can  be invoked  for the purpose of retiring a Government servant in "public  interest" on satisfying the conditions mentioned in sub-clauses  (1) and (2) of that Rule.  A careful perusal of the  impugned orders nowhere shows that the said orders  are being  issued  in  "public interest" which  is  a  condition precedent  for  invoking  this  Rule.  Nor  does  it  advert anywhere  in the impugned orders in regard to the conditions specified in sub-paras (1)( and (2) of the said Rule.  If we have  to  examine the impugned orders in the light  of  this Rule  then  the  same has to be held to be bad  in  law  for non-application  of  mind and want of  material  particulars which  are mandatory for invoking the said Rule.  Therefore, the  argument  of  the respondents seeking  to  justify  the impugned  orders  based on Rule 75(a)(a) of the  said  Rules also has to be rejected.  In the said view of the matter, we do not find any force in the arguments advanced on behalf of the  respondents  to sustain the impugned orders.   For  the reasons stated above, these writ petitions are allowed.  The impugned  orders No.9509-J dated 23.10.1998, No.9518-J dated 26.10.1998  and No.9628-J dated 2.11.1998 issued in the name of  the  Governor of West Bengal by the Government  of  West Bengal are hereby quashed.  No order as to costs.

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