Karnataka High Court
The State Of Karnataka vs Sri T. Nagappa on 20 September, 2012
Bench: Chief Justice, B.V.Nagarathna
-: 1 :- R
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 20TH DAY OF SEPTEMBER, 2012
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.A.No.623/2012 C/W. W.A.NOS.624/2012, 625/2012,
626/2012, 627/2012, 628/2012, 629/2012, 630/2012,
631/2012, 632/2012, 1138/2012 & 1453-54/2012 (S-DIS)
IN W.A.No.623/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI.T.NAGAPPA,
S/O BASAPPA,
AGED ABOUT 56 YEARS,
RESIDING AT NO.80, 1ST FLOOR,
-: 2 :-
GANGOTRI LAYOUT,
MYSORE. ... RESPONDENT
(BY SRI: G.VIDYA SAGAR AND SRI.CHAITRESH.D.HABBU,
ADV.)
******
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30016/2009(S-DIS) DATED 03/01/2012.
IN W.A.No.624/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI MARTHAND,
S/O PARAPPA TONNE,
AGED ABOUT 59 YEARS,
R/A NO.96, BURUDA GALLI,
CHIKKODI, BELGAUM. ... RESPONDENT
(BY SRI: G.B.MANJUNATH, ADV. A/W
SRI.G.VIDYA SAGAR, ADV.)
-: 3 :-
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30018/2009(S-DIS) DATED 03/01/2012.
IN W.A.No.625/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI. SHIVANAND DHAGE,
S/O NARASINGAPPA DHAGE,
AGED ABOUT 57 YEARS,
R/A NO.419/10, KARLA COMPOUND,
ANANTHASHAYAN, KARKALA,
UDUPI DISTRICT. ... RESPONDENT
(BY SRI: G.VIDYA SAGAR, ADV. AND SRI.H.N.M.PRASAD,
ADV.)
*****
-: 4 :-
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30019/2009(S-DIS) DATED 03/01/2012.
IN W.A.No.626/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI. ANWAR,
S/O DAVALSAB ANSARI,
AGED ABOUT 55 YEARS,
R/AT "AMEENA MANZIL",
KUMARESHWAR LAYOUT,
RAJTGIRI, DHARWAD. ... RESPONDENT
(BY SRI: G.B.MANJUNATH, ADV. &
SRI.G.VIDYA SAGAR, ADV.)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
-: 5 :-
THE ORDER PASSED IN THE WRIT PETITION
NO.30020/2009(S-DIS) DATED 03/01/2012.
IN W.A.No.627/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI.C.R.JAWEED PASHA,
S/O C.ABDUL RAZACK,
AGED ABOUT 57 YEARS,
R/AT NO.5/4, UPSTAIRS,
1ST CROSS, 2ND MAIN,
WILSON GARDEN,
BANGALORE. ... RESPONDENT
(BY SRI: G.VIDYA SAGAR, ADV. A/W SRI.G.B.MANJUNATH,
ADV)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30022/2009(S-DIS) DATED 03/01/2012.
-: 6 :-
IN W.A.No.628/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI. ULHAS,
S/O ISHWAR BALEKUNDRI,
AGED ABOUT 57 YEARS,
R/AT NO.S-28, SHRADHA RESIDENCY,
SAMPIGE ROAD,
SADASHIV NAGAR,
BELGAUM. ... RESPONDENT
(BY SRI: G.B.MANJUNATH, ADV. A/W
SRI.G.VIDYA SAGAR, ADV.)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30024/2009(S-DIS) DATED 03/01/2012.
-: 7 :-
IN W.A.No.629/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI. MAHANTHA GOUDA BIRADARA,
S/O LATE BASAVANNA BIRADARA,
AGED 60 YEARS,
R/AT NO.27, "SRINIVASA",
17TH 'A' CROSS, BHUVANESHWARANAGAR,
NEAR COFFEE BOARD LAYOUT,
BANGALORE-560 024. ... RESPONDENT
(BY SRI: VISHWANATH HIREMATH, ADV. A/W
SRI.G.B.MANJUNATH, ADV. FOR C/R1)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30240/2009(S-DIS) DATED 03/01/2012.
-: 8 :-
IN W.A.No.630/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI. LAKSHMIKANT,
S/O RAMAPPA DESHI,
AGED ABOUT 61 YEARS,
R/AT NO. A-4, 406,
THUNGABHADRA BLOCK,
NGV KORAMANGALA,
BANGALORE-560 047. ... RESPONDENT
(BY SRI: G.B.MANJUNATH, ADV. A/W
SRI.G.VIDYA SAGAR, ADV. FOR C/R)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30241/2009(S-DIS) DATED 03/01/2012.
-: 9 :-
IN W.A.No.631/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.L.ACHARYA,
ADV. A/W SRI.B.V.ACHARYA, SR. COUNSEL FOR A2)
AND:
SRI. BAPUJI,
S/O THIMMAPPA CHANAL,
AGED ABOUT 57 YEARS,
OCC: RETD. CIVIL JUDGE (SR. DN.),
R/O BIDARI TQ: JAMKHANDI,
DIST: BAGALKOT-587301,
NOW TEMPORARILY RESIDING AT
# 81 A/15D "SUPRABATH",
MICHIGAN COMPOUND,
DHARWAD-580 001. ... RESPONDENT
(BY SRI: S.P.KULKARNI, ADV.)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.30020/2009(S-DIS) DATED 03/01/2012.
-: 10 :-
IN W.A.No.632/2012
BETWEEN:
1.THE REGISTRAR GENERAL,
HIGH COURT OF KARNATAKA,
BANGALORE.
2.STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BANGALORE-560 001.
3.THE SECRETARY TO THE GOVERNMENT
OF KARNATAKA,
DEPARTMENT OF LAW,
JUSTICE AND HUMAN RIGHTS,
VIDHANA SOUDHA,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
SRI RUDRAMUNI RUDRAPPAYYA BHAIRANAPADAMATH,
AGED ABOUT 57 YEARS,
S/O LATE RUDRAPPAYYA BHAIRANAPADA
MATH, CIVIL JUDGE (SENIOR DIVISION
AND JMFC), NAGAMANGALA,
MANDYA DISTRICT,
(UNDER ORDERS OF COMPULSORY
RETIREMENT FROM SERVICE). ... RESPONDENT
(BY SRI: K.C.SHANTHAKUMAR, ADV. FOR C/R1)
*****
-: 11 :-
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NO.27829/2009(S-R) DATED 03/01/2012.
IN W.A.Nos.1138/2012 & 1453-54/2012
BETWEEN:
1.THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
TO THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2.THE HIGH COURT OF KARNATAKA,
REP. BY ITS REGISTRAR GENERAL,
BANGALORE-560 001. ... APPELLANTS
(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.
COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)
AND:
1.SRI SHIVAPUTRAPPA YAMANAPPA KUMBAR,
S/O. YAMANAPPA,
AGED ABOUT 58 YEARS,
R/AT NO. 394, 18TH MAIN,
6TH BLOCK, KORAMANGALA,
BANGALORE-560 095.
2.SRI M.RAJU,
S/O MUREGEPPA.G,
AGED ABOUT 60 YEARS,
R/AT NO.402, SITARA RESIDENCY,
33RD MAIN, B.T.M. I STAGE,
DOLLARS COLONY,
BANGALORE-560 068.
-: 12 :-
3.SRI. VASANTH HUCHAPPA MULASAVALAGI,
S/O HUCHAPPA MULSAVALAGI,
AGED ABOUT 60 YEARS,
R/AT NO.10, NANJAPPA LAYOUT,
I MAIN, 2ND CROSS, KORAMANGALA,
8TH BLOCK, BANGALORE-560 047. ... RESPONDENTS
(BY SRI: G.VIDYASAGAR, ADV. A/W SRI.G.B.MANJUNATH,
ADV. AND SRI.H.N.M.PRASAD, ADV. FOR R1)
*****
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
NOS.30021/2009 C/W WP.NO.30023/2009 C/W
WP.NO.30025/2009 (S-DIS) DATED 30/01/2012.
THESE APPEALS BEING RESERVED AND COMING
ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
These writ appeals are filed by the State and the High Court, through the Registrar General, assailing the separate judgments dated 03/01/2012, passed by the learned Single Judge in the writ petitions filed by each of the respondents herein.
-: 13 :-
2. Since the issues raised in these writ petitions are similar, these appeals have been heard together and are disposed of by this common judgment.
3. The respondents in these appeals were Judicial Officers in the State who had assailed the Notification dated 23/06/2009, issued in the name of the Governor of Karnataka, in exercise of the powers conferred on him under Section 233 of the Constitution of India. By the said Notification, the respondents were retired from service under sub-rule (4) of Rule 285 of the Karnataka Civil Services Rules (hereinafter, referred to as "KCSR" for the sake of convenience) with immediate effect. In fact, by the said Notification, fifteen Judicial Officers were ordered to be retired from service, out of which, thirteen such Officers assailed the said Notification by filing separate writ petitions.
4. Prior to the issuance of the impugned Notification dated 23/06/2009, permitting the compulsory retirement of the fifteen Officers, the High Court had constituted a Screening Committee by issuance of -: 14 :- Notification dated 28/09/2005 as per the recommendation of the 1st National Judicial Pay Commission accepted by the Hon'ble Supreme Court in the case of All India Judges Assn. v. Union of India (2002 (4) SCC 247) to review the performance of officers prior to their attaining 58 years of age in order to determine as to whether they could continue upto 60 years. The said Committee was also entrusted to review the performance and confidential records of all the Judicial Officers in the cadre of District Judges, Civil Judges (Sr.Dn.) and Civil Judges (Jr.Dn.) on their attaining the age of 50 years or 55 years as the case may be to decide upon the desirability, utility and suitability, to continue them in service or for retiring them from service in public interest, in terms of sub-rule (4) of Rule 285 of the KCSR. The said Committee met on 17/4/2009 and considered the suitability of all the Judicial Officers who had completed 50 or 55 years of age as the case may be and submitted its Report recommending compulsory retirement of fifteen Judicial Officers under Sub-rule (4) of Rule 285 of KCSR. Thereafter, the Full Court met on 25/4/2009 and accepted the Report of -: 15 :- the said Committee and a Resolution to that effect was passed. Thereafter, the impugned Notification dated 23/06/2009 was issued ordering retirement of the fifteen Judicial Officers.
5. Assailing the same before the learned Single Judge, the respondent - Officers had contended that their premature retirement from service purportedly in public interest was in contravention of Article 311 of the Constitution of India; that while invoking Rule 285 of the KCSR, it was obligatory on the part of the competent authority to follow the procedure prescribed under the Constitution of India. It was also contended that as far as invocation of Rule 285 of KCSR in the case of Government servants were concerned, there were guidelines which were applicable but insofar as the Judicial Officers are concerned, there were no guidelines or Rules framed or followed; that the Judicial Officers had the right to continue in service till they attained the age of superannuation at 60 years subject to a review contemplated when they attained the age of 58 years and that the law did not permit any review of the -: 16 :- career of the Judicial Officers prior to his/her attaining the age of 58 years; that the invocation of Article 235 of the Constitution in the instant case was in violation of the Principles of Natural justice and therefore, the Notification 23/06/2009 was illegal and had no validity in the eye of law.
6. The impugned Notification dated 23.06.2009 was supported by the State by contending that a Judicial Officers could be compulsorily retired from service on the competent authority forming an opinion that continuing him/her in service would not be in public interest. That an order of compulsory retirement would not carry any stigma and that all the service benefits that a person is entitled to on the passing of an order of compulsory retirement would be granted to such an officer; that sub-rule (4) of Rule 285 does not envisage issuance of a notice or holding of an enquiry before passing an order of compulsory retirement; that there is no violation of Article 311 of the Constitution or the Principles of Natural justice in the instant case. That the High Court had constituted a Committee for the purpose of screening the performance of the Judicial Officers for their -: 17 :- continuation in service beyond 50 years or 55 years as the case may be and the Report of the Committee had been accepted by the Full Court of the High Court and therefore, there is no merit in the writ petitions.
7. By way of reply, the respondents herein had contended before the learned Single Judge that the procedure adopted by the High Court culminating in the impugned notification dated 23/06/2009 was contrary to the directions of the Apex Court in various decisions. Further, the Resolution of the Committee of Judges as well as the Full Court Resolution did not reflect the review of the performance made in the case of each of the Judicial Officers who were retired. Therefore, the exercise of power was not in accordance with law.
8. In the light of the above contentions, the learned Single Judge framed the following points for his consideration in each of the Writ Petitions.
i) Whether the Notification dated 28/9/2005 was invalid as being contrary to the law as laid down by the Apex Court?
-: 18 :-
ii) Whether the impugned notification by
which the petitioner was compulsorily
retired from service in terms of Rule 285(4) of the KCSRs is actually punitive in nature, though couched in innocuous language as being compulsory retirement, on being found unsuitable to be continued in service in public interest?
iii) Whether it is no longer permissible for the competent authority to undertake a review of a Judicial Officers' performance, either at the time, the officer attains the age of 50 or 55 or on completion of the 20 years of service?
iv) Whether the exercise was permissible insofar as the petitioner was concerned?
9. While answering the said points, the learned Single Judge held that sub-rule (4) of Rule 285 of the KCSR could no longer be pressed into service insofar as Judicial Officers are concerned; that the question of desirability, utility and suitability to continue as Judicial Officers in service or to retire them from service in public interest could only be on proven mis-conduct; that only prior to the -: 19 :- Judicial Officers attaining the age of 58 years could they be assessed and evaluated for their being continued in service and not prior to that stage. Therefore, the exercise of power in the instant cases and the Notification dated 28/09/2005 were contrary to law as laid down by the Apex Court and accordingly answered the points for consideration in favour of the respondents herein and allowed the writ petitions by quashing the Notification 28/09/2005. A direction was also issued to reinstate the respondents herein with continuity in service and with all consequential benefits. The said order of the learned Single Judge passed in the case of each of the respondents herein has been assailed in these writ appeals.
10. We have heard the learned Senior Counsel along with the AGA for the appellants and the learned counsel for the respondents.
11. Learned Senior Counsel appearing for appellant No.2 submitted that the learned Single Judge was not right in holding that Rule 285 of KCSR is no longer applicable to Judicial Officers in view of the decisions of the Apex Court. -: 20 :- It was pointed out that the latest decision of the Apex Court in the case of Rajendra Singh Verma (Dead) through L.Rs And Others v. Lieutenant Governor (NCT of Delhi) and others [(2011) 10 SCC 1], has explained the position of law with regard to the powers that could be exercised by the High Court under Article 235 of the Constitution which also includes premature/compulsory retirement of the members of the subordinate judiciary; that All India Judges' Assn. and Others v. Union of India and others [1993 (4) SCC 288] and two other decisions in All India Judges' Assn. were concerned with the age of a retirement of a Judicial Officers on attaining superannuation and not with compulsory retirement of Judicial Officers. But the learned Single Judge has based his reasoning on the dicta of the decisions in All India Judges' Assn. to come to a conclusion that sub-rule (4) of Rule 285 could no longer be invoked in the case of Judicial Officers which is not correct.
12. Drawing our attention to the case of Bishwanath Prasad Singh v. State of Bihar and Others [(2001) 2 SCC 305], it was contended that compulsory -: 21 :- retirement by way of penalty is quite distinct from compulsory retirement in public interest; that in the instant case, the order of compulsory retirement is in public interest and not by way of penalty and therefore, there was no violation of the Principles of Natural justice or infraction of any other mandate of the law, which could have called for the intervention of the Court. It was also contended that the learned Single Judge was not right in observing that the order of compulsory retirement in the instant case was passed as a short-cut to avoid a departmental enquiry and therefore, it was punitive in nature.
13. Drawing our attention to the case of Rajendra Singh Verma, it was contended that the grounds which would arise for assailing an order of compulsory retirement impugned in the writ petitions have not at all been raised in these cases; therefore the learned Single Judge was not right in ordering reinstatement of the respondent - Officers by setting aside the order of compulsory retirement. -: 22 :-
14. Placing reliance on certain other decisions of the Apex Court as well as this Court, it was contended that the order of the learned Single Judge passed in the case of each of the respondents has to be set aside by allowing these appeals.
15. Per contra, learned counsel for the respondents in unison supported the order of the learned Single Judge. It was contended that the three decisions of the Apex Court in the case of All India Judges' Association have a bearing on these cases. That in the first decision inter alia, the age of superannuation for Judicial Officers was held to be 60 years; that in the second decision, there was a review of the judgement passed in the earlier decision and it was observed that the age of retirement was to be 60 years subject to review of the concerned Judicial Officers at 58 years; that in the third decision of All India Judges' Assn. once again, it was affirmed that the age of superannuation insofar as Judicial Officers are concerned, has to be at 60 years. The Report of the First National Judicial Pay Commission under the Chairmanship of Justice K.Jagannath Shetty, (Retd.) -: 23 :- Judge, Supreme Court of India, was accepted by the Apex Court. That Rule 95-A of KCSR was inserted pursuant to the decision of the Apex Court in All India Judges' Association permitted review of the performance of the Judicial Officers prior to attaining 58 years but the same was deleted in December 2008 and therefore, the review of Officers on completion of the age of 50 years or 55 years was not permissible. Therefore, the High Court could not have constituted a Committee for review of the Judicial Officers who had completed the age of 50 years or 55 years as the case may be; that the consideration made by the Committee was an exercise in futility as in terms of the decision in the All India Judges' Assn., the only review of performance that was permissible was at 58 years for the purpose of ascertaining as to whether the Judicial Officers could be continued beyond 58 years till the age of superannuation at 60 years in terms of the said decision. Therefore, review of the performance of the Judicial Officers on attaining the age of 50 years or 55 years was not permissible as there was now no provision available for the exercise of such power after the -: 24 :- decision of the Apex Court in All India Judges' Assn. It was also contended that in the absence of any guidelines and the impugned order not reflecting the manner of assessment of the performance of the concerned Judicial Officers, the exercise of powers was arbitrary and that there was violation of Article 311 of the Constitution in the instant case.
16. Reliance was also placed on Nawal Singh v. State of U.P. (AIR 2003 SC 117) and also the Full Bench decision of the Andhra Pradesh High Court in the case of K.Veera Chary Vs. Hon'ble High Court of Andhra Pradesh (2008 (5) ALD 372 (F.B.). Other learned counsel appearing for respondents while adopting these arguments and by placing reliance on certain decisions, contended that the procedure followed in the instant case culminating in the compulsory retirement of the respondent - Officers was not in accordance with law. Therefore the learned single Judge was justified in quashing the order of compulsory retirement and ordering re instatement, which orders would not call for any intervention in these appeals.
-: 25 :-
17. Learned Govt. Advocate placing reliance on Rajendra Singh Verma's case and other cases, supported the contentions of the learned Senior Counsel appearing for appellant No.2.
18. By way of reply, learned Senior Counsel appearing for appellant No.2 contended that there was no infraction in the constitution of the Committee to review the performance of Judicial Officers who had completed 50 years or 55 years of age as the case may be. That earlier a Committee was constituted to review the performance of the Judicial Officers who were to complete the age of 58 years for the purpose of ascertaining as to whether the Judicial Officers could be continued up to 60 years, the very same Committee was entrusted with the task of reviewing the performance of the Judicial Officers who had attained 50 years or 55 years, there was no ambiguity in the functioning of the Committee. That sub-rule (4) of Rule 285 is applicable while reviewing the performance of the Judicial Officers at 50 years or 55 years. That the Full Bench opinion of the Andhra Pradesh High Court is contrary to latest decision of -: 26 :- the Supreme Court in Rajendra Singh Verma, and that Rule 285 squarely applies in the instant case. Therefore, the learned Single Judge was not right in quashing the order of compulsory retirement.
19. On a consideration of the aforesaid contentions, the following points would arise for our consideration:-
1. Whether Rule 285 of the KCSR is applicable to the Judicial Officers of the State in the matter of compulsory retirement?
2. Whether the learned Single Judge was right in quashing the notification of compulsory retirement and ordering reinstatement of the respondent -
Officers?
20. Before considering the points for consideration it would be relevant to extract Article 235 of the Constitution of India and the same reads as follows:-
"235.Control over subordinate courts The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of -: 27 :- leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."
21. The Supreme Court has elucidated on the mandate of Article 235 in the following decisions:
a) In Bishwanath Prasad Singh Vs. State of Bihar and Others, (2001) 2 SCC 305), it is observed that Article 235 of the Constitution vests administrative and disciplinary control over the district judiciary including the subordinate judiciary in the High Court immunising them from the executive control of the State Government so as to protect judicial independence. Control over subordinate courts vested in the High Court is a trust and confidence reposed -: 28 :- by the founding fathers of the Constitution in a high institution like the High Court. The trust has to be discharged with a great sense of responsibility. All the High Courts have framed rules dealing with executive and administrative business of the Court. There are administrative committees and Inspecting Judges in the High Court. Periodical inspections of subordinate courts have to be carried out regularly so as to keep a vigil and watch on the functioning of the subordinate judiciary, the importance and significance whereof needs no emphasis.
b) In Chandra Singh Vs. State of Rajasthan, (2003) 6 SCC 545), the Court observed as under:
"40. Article 235 of the Constitution of India enables the High Court to assess the performance of any Judicial Officers at any time with a view to discipline the black sheep or weed out the dead wood. This constitutional power of the High Court cannot be circumscribed by any rule or order."
c) In Rajendra Singh Verma (Dead) Through Lrs. And Others Vs. Lieutenant Governor (NCT of Delhi) and -: 29 :- Others, (2011) 10 SCC 1), it is observed that the mandate of Article 235 of the Constitution is that the High Court has to maintain constant vigil on its subordinate judiciary as laid down in High Court of Judicature of Bombay v. Shirishkumar Rangrao Patil, (1997) 6 SCC 339. In the said case, this Court has explained that the lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and need to stem it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235 and 124(6) of the Constitution, and therefore, it would be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection.
It was further observed that judicial service is not a service in the sense of an employment as is commonly understood. 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. There is no -: 30 :- manner of doubt that 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.
While elucidating on the expression "control", the Apex Court has observed as follows:
"98. The expression "control" has been elucidated in several reported decisions of this Court, the leading case being Samsher Singh v.
State of Punjab [(1974) 2 SCC 831]. The
"control" vested in the High Court is a
mechanism to ensure independence of the subordinate judiciary. Under Article 235 of the Constitution, the control over the subordinate judiciary, vested in the High Court, is exclusive in nature, comprehensive in extent and effective in operation and it is to subserve a basic feature of the Constitution i.e., independence of judiciary. Among others things, it includes:
(a)(i) disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal and reduction in rank of the District Judges and initial posting and promotion to the cadre of District Judges, (ii) in Article 235 the word "control" is accompanied by the word "vest"-: 31 :-
which shows that the High Court alone is made the sole custodian of the control over the judiciary, and (iii) suspension from service of a member of judiciary with a view to hold disciplinary enquiry;
(b) transfers, promotion and confirmation of such promotions, of persons holding posts in judicial service, inferior to that of the District Judge;
(c) transfer of District Judges;
(d) recall of District Judges posted on
ex-cadre posts or on deputation on
administrative posts;
(e) award of selection grade to the members of the judicial service, including District Judges and grant of further promotion after their initial appointment to the cadre;
(f) confirmation of the District Judges who have been on probation or are officiating after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233; and
(g) premature or compulsory retirement of Judges of the District Courts and of subordinate courts."
-: 32 :-
22. Therefore, premature or compulsory retirement of Judges of subordinate judiciary is one of the aspects of control over subordinate judiciary by vesting of power in the High Court under Article 235 of the Constitution. The same is therefore a constitutional control which would not really require a statutory support. Even in the absence of any provision in a statute or Rule specifically vesting Power in the High Court to compulsorily retire any Judicial Officers, the same being traceable to Article 235 of the Constitution, can be exercised by the High Court in accordance with law and judicial precedents. Therefore in the exercise of the Constitutional power to compulsorily retire Judicial Officers, the High Court is guided by settled principles of law.
23. At this stage it is relevant to advert to the content of the expression compulsory retirement. The concept of compulsory retirement in service jurisprudence has been explained in the following decisions of the Apex Court:
-: 33 :-
a) In Bishwanath Prasad Singh Vs. State of Bihar and Others, (2001) 2 SCC 305, the conceptual content has been explained by stating that Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent Government servant consequent upon a finding of guilt being recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following the procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a Government servant must also withstand the scrutiny of Article 311 of the Constitution, so also for Judicial Officers. Then there are service rules, such as Rule 56(j) of the Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a Government servant on his attaining a particular age or on his having completed a certain number of years of service on formation of an opinion -: 34 :- that in public interest it is necessary to compulsorily retire a Government servant. In this case, it is neither a punishment nor a penalty with loss of retiral benefits. More appropriately, it is like premature retirement. It does not cast any stigma. The Government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming the basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is not to punish or penalise the Government servant but to weed out the worthless who have lost their utility for the administration by their insensitive, unintelligent or dubious conduct impeding the flow of administration or promoting stagnation. The country needs speed, sensitivity, probity, non-irritative public relation and enthusiastic creativity which can be achieved by eliminating -: 35 :- the dead wood, the paperlogged and callous. The controversy in the present case is as to whether this type of compulsory retirement is permissible vis-à-vis Judicial Officers.
b) More recently in Rajendra Singh Verma (Dead) through Lrs. and Others Vs. Lieutenant Governor (NCT of Delhi) and Others, (2011) 10 SCC 1, the consequences of an order of compulsory retirement is explained by observing that Compulsory retirement from service is not considered to be a punishment. Under the relevant rules, an order of dismissal is a punishment laid on a Government servant when it is found that he has been guilty of misconduct or the like. It is penal in character because it involves loss of pension which under the rules has accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for reappointment, one who is removed is. A compulsory retirement is neither dismissal nor removal and differs from -: 36 :- both of them, in that it is not a form of punishment prescribed by the rules and involves no penal consequences, inasmuch as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.
24. Before proceeding further, the trilogy of decisions in All India Judges' Assn. could be considered since the genesis of the present controversy is predicated on the same.
a) In All India Judges' Association v. Union of India and Others [1992 (1) SCC 119], one of the issues considered by the Supreme Court was the age of retirement by superannuation of the members of the subordinate judiciary in India. After referring to Clause (ii) of Article 233, which states that a person would be eligible to be appointed as District Judge, if he has been for not less than seven years an Advocate or a Pleader and considering the nature of work of a Judicial Officers, the Supreme Court opined as follows:-
-: 37 :-
"20. 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 Officers 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. As already indicated, retirement age for High Court Judges is 62 years. A sizeable portion of the manning in the High Court is done by elevating District Judges and those who are elevated to continue up to the age of 62 years like directly elevated members of the bar to the High Court.
****
25. 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 -: 38 :- 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."
b) In All India Judges' Association and Others Vs. Union of India and Others [1993 (4) SCC 288], the direction with regard to age of superannuation of the Judicial Officers was modified thus:-
"52 to sum up we held as follows:
(a) x x x -: 39 :-
(b) The direction with regard to the enhancement of the superannuation age is modified as follows:
While the superannuation age of every subordinate Judicial Officers shall stand extended up to 60 years, the respective High Courts should, as stated above, assess and evaluate the record of the Judicial Officers 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 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 should be compulsorily retired on his attaining the age of 58 years.
The assessment in question should be done before the attainment of the age of 58 years even in cases where the earlier superannuation age was less than 58 years.
The assessment directed here is for evaluating the eligibility to continue in service beyond 58 years of age and is in addition to and independent of the assessment for compulsory retirement that may have to be undertaken under the relevant Service rules, at the earlier stage/s."-: 40 :-
c) In All India Judges' Association and Others v. Union of India and Others [2002 (4) SCC 247], the recommendation of the Justice Shetty Commission to increase the age of retirement from 60 to 65 years was not accepted by the Supreme Court by giving the following reasons:-
"26. The Shetty Commission had recommended that there should be an increase in retirement age from 60 to 62 years. In our opinion, this cannot be done for the simple reason that the age of retirement of a High Court Judge is constitutionally fixed at 62 years. It will not be appropriate, seeing the constitutional framework with regard to the judiciary, to have an identical age of retirement between the members of the Subordinate Judicial Service and a High Court. As of today, the age of retirement of a Supreme Court Judge is 65 years, of a High Court Judge it is 62 years and logically the age of retirement of a Judicial Officers is 60 years. This difference is appropriate and has to be maintained.
However, as there is a backlog of vacancies which has to be filled and as the Judge strength has to be increased, as directed by us, it would be appropriate for the States in consultation -: 41 :- with the High Court to amend the service rules and to provide for re-employment of the retiring Judicial Officers till the age of 62 years if there are vacancies in the cadre of the District Judge. We direct this to be done as early as possible."
25. In Bishwanath Prasad Singh v. State of Bihar (2001 (2) SCC 305), the Supreme Court has observed as follows with regard to the modified directions in the second of the aforesaid cases :
"5. In All India Judges' Assn. v. Union of India, one of the directions given was to raise the retirement age of Judicial Officers to 60 years uniformly throughout the country and appropriate steps in that regard being taken by 31-12-1992. The Court was at pains in demonstrating how the members of judicial services stand on pedestal different from other civil services and, therefore, deserve to be dealt with by ameliorating service conditions so as to provide initiative for attracting better persons in judicial services and which would tend to raise the tone and morale of the judicial services as a whole, the services being essential bulwark of democracy. The executives of the Union of India and various States, far from complying with the -: 42 :- directions, chose to prefer several review petitions which were heard and disposed of by this Court by its judgment dated 24-8-1993, reported as All India Judges' Assn. v. Union of India. Feeling anguished by inaction on the part of the executive, this Court issued very many directions in continuation of and also in modification of those made in 1992 case."
**** "18. We may sum up our conclusions on this aspect as under:
1. Direction with regard to the enhancement of superannuation age of Judicial Officers given in All India Judges Assn. v. Union of India does not result in automatic enhancement of the age of superannuation. By force of the judgment a Judicial Officers does not acquire a right to continue in service up to the extended age of 60 years. It is only a benefit conferred on the Judicial Officers subject to an evaluation as to their continued utility to the judicial system to be carried out by the respective High Courts before attaining the age of 58 years and formation of an opinion as to their potential for their continued useful service. Else the Judicial Officers retire at the superannuation age -: 43 :- appointed in the service rules governing conditions of services of the Judicial Officers.
2. The direction given in 1993 case is by way of ad hoc arrangement so as to operate in the interregnum, commencing the date of judgment and until an appropriate amendment is made in the service rules by the State Government. Once the service rules governing superannuation age have been amended, the direction ceases to operate.
3. The High Court may, before or after the normal age of superannuation, compulsorily retire a Judicial Officers subject to formation of an opinion that compulsory retirement in public interest was needed. The decision to compulsorily retire must be in accordance with relevant service rules independent of the exercise for evaluation of Judicial Officers made pursuant to 1993 case. Recommendation for compulsory retirement shall have to be sent to State Government which would pass and deliver the necessary orders.
4. If the High Court finds a Judicial Officers not entitled to the benefit of extension in superannuation age he would retire at the age of superannuation appointed by the service rules.
No specific order or communication in that -: 44 :- regard is called for either by the High Court or by the Governor of the State. Such retirement is not "compulsory retirement" in the sense of its being by way of penalty in disciplinary proceedings or even by way of "compulsory retirement in public interest". No right of the Judicial Officers is taken away. Where the High Court may choose to make any communication in this regard, it would be better advised not to use therein the expression "compulsory retirement". It creates confusion. It would suffice to communicate, if at all, that the officer concerned, having been found not fit for being given the benefit or extended age of superannuation, would stand retired at the normal age or date of superannuation."
Therefore, the age of superannuation for the members of the subordinate judicial service was fixed at 60 years by the Apex Court with a direction given to all State Governments as well as Union Territories to amend the Service Rules.
26. On a conspectus reading of the three judgments in All India Judges' Assn. what emerges is the fixation of the -: 45 :- age of retirement of Judicial Officers on superannuation at 60 years in the first of the cases. Accordingly, a direction was issued to make appropriate alterations 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 31/12/1992.
27. The second All India Judges' Assn. was in fact a review sought by the Union of India and various States raising general and specific objections to the several directions issued by the Apex Court in the earlier judgment with regard to the service conditions of the members of the subordinate judiciary in the country. With regard to the age of superannuation, an objection was raised with regard to the determination of the age by the Apex Court on the ground that it is a matter of policy for the executive and that the said age had been fixed having regard to the distinction between the members of the judicial service and other services. The objection with regard to fixation of the age of superannuation at 60 years was considered and a modification was made by stating that the benefit of the -: 46 :- increase of the retirement age to 60 years would not be available automatically to all Judicial Officers irrespective of their past record of their service and evidence of their continued utility to the judicial system. The benefit was to be available to those who in the opinion of the respective High Courts had a potential for continued useful service by making an assessment and evaluation by an appropriate Committee of Judges of the respective High Courts. The evaluation was to be made on the basis of the Judicial Officers' past record of service, character roles, quality of judgment and other relevant materials. It was also observed that 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. It was made clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be -: 47 :- undertaken for compulsory retirement at the earlier stage/s under the respective Service Rules.
28. The enhancement of the superannuation age of 60 years coupled with the provision for compulsory retirement at the age of 58 years introduced a change in the service condition of the Judicial Officers in the State. An amendment to KCSR by way of insertion of Rule 95A was made by the State Government on 26/08/1997 with effect from 1/1/1993. The same reads as follows:
"[95-A. The age of retirement of Judicial Officers shall be raised to 60 years subject to the following conditions, namely:-
1) The High Court of Karnataka should assess and evaluate the record of the Judicial Officers for his continued utility well within the 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 age from 58 to 60 years, only if he is found fit and eligible to continue in service.-: 48 :-
2) If found not fit, and ineligible he should be compulsorily retired on his attaining the age of 58 years.
3) The assessment as indicated above should concerned administrative Department shall be the competent authority to sanction the stagnation increments;
4) The above assessment is for evaluating the eligibility to continue in service beyond 58 years of age and is in addition to and independent of the assessment for compulsory retirement that may have to be undertaken as per the relevant service rules.
5) Those Judicial Officers who are not desirous of availing of the benefit of enhanced superannuation age with the condition of compulsory retirement at the age of 58 years may give an option to retire at the age of 58 years and such an option shall be exercised in writing by the Judicial Officers before he attains the age of 57 years.
6) Such of the Judicial Officers who do not exercise the said option mentioned above before attaining the age of 57 years, shall be deemed to have opted for continuing in service till the enhanced superannuation age of 60 -: 49 :- years with the liability to compulsory retirement at the age of 58 years.
7) 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 High Court have a potential for continued useful service. The potential for continued utility shall be assessed and evaluated by appropriate committees of Judges of the High Court constituted and headed by the Chief Justice of the High Court and the evaluation shall be made on the basis of the Judicial Officers past record of service, character rolls, quality of judgements and other relevant matters. Explanation: For the purpose of this rule Judicial Officers means "District Judge or Civil Judge (Senior Division) or Civil Judge (Junior Division), belonging to the Karnataka Judicial Service."
The extension of the age of superannuation for all Government servants to 60 years in the State in the year 2008 automatically brought about a parity between the -: 50 :- Judicial Officers and Government servants in the State. Consequently Rule 95A was omitted with effect from 18.12.2008. It is significant to note that the modified direction in the second of the All India Judges' Assn. was made having regard to the fact that the age of retirement of Government servants was 55 or 58 as the case may be in the States but for Judicial Officers it was fixed at 60 years. Therefore the assessment prior to the age of 58 years was made in order to ascertain as to whether the Judicial Officers could be continued till 60 years. With the State Government increasing the age of superannuation to 60 years for all Government servants across the board, a question would arise as to whether the age of retirement at 60 years for Judicial Officers is still not automatic and would depend on their crossing the efficiency bar. However, we express no opinion on that aspect as in these cases we are concerned with compulsory retirement in terms of Rule 285 of the KCSR except re iterating what has been said by the Apex Court in Bishwanath Pratap Singh that the said evaluation at 58 years is an ad hoc measure to be adhered to -: 51 :- till the amendment is made to the service Rules extending the age of superannuation of Judicial Officers to 60 years. What is significant as far as State of Karnataka is concerned is that the age of superannuation has been enhanced to 60 years en masse.
29. But the Apex Court while enhancing the age to 60 years however made it clear that the age of retirement of the subordinate Judicial Officers was extended up to 60 years and that an evaluation ought to be made before the officer attains the age of 58 years by following the procedure for compulsory retirement under the relevant Service Rules applicable, for the purpose of evaluation. But, the said evaluation is in addition to and independent of the assessment for compulsory retirement that may have to be undertaken under the relevant Service rules, at an earlier stage/s. Therefore evaluation for the purpose of continuing a Judicial Officers beyond 58 years is distinct from considering whether a Judicial Officers should be compulsorily retired from service in public interest, even though the nature and procedure of evaluation is identical. -: 52 :- Therefore it becomes clear that assessment is for the purpose of continuing a Judicial Officer beyond 58 years. Such an understanding is apparent by the fact that Rule 95A was inserted to KCSR pursuant to the dictum in the second of the All India Judges Assn. and was subsequently deleted on 18.12.2008, on raising the age of superannuation for Government servants including Judicial Officers to 60 years in the State. Moreover even when Rule 95A was on the Rule book, exercise of power under Rule 285 under which the respondent officers are compulsorily retired was prevalent. Indeed Rule 285 has been invoked prior to as well as subsequent to the decisions in All India Judges Assn. and is de hors the dicta in the said case which essentially raised the age of superannuation of Judicial Officers to 60 years throughout the country, amongst other directions. Thus the exercise of power under Rule 285 is distinct from the evaluation of the Judicial Officers for the purpose of continuing them beyond the age of 58 years. Moreover such an evaluation according to the Apex Court was to be made as an ad hoc arrangements till an amendment was made to the -: 53 :- service Rules enhancing the age of superannuation to 60 years by the states and the Union Territories. As far as the State of Karnataka is concerned the enhancement of the age of superannuation to 60 years has been made for the Government servants as well as for Judicial Officers. Therefore the validity of the exercise of power under Rule 285 has to considered in the present cases, keeping in mind the aforesaid background and de hors the enhancement of the age of superannuation of Judicial Officers to 60 years.
30. Thus, the controversy in these appeals is with regard to the retirement of a Judicial Officer on attaining the age of 50 or 55 years as contemplated under sub-rule (4) of Rule 285. In the instant case, the impugned Notification has invoked sub-rule (4) of Rule 285 of the KCSR. Rule 285 is in Section V of the KCSR deals with pension on retirement and the same reads as follows:
"[285. (1) Retiring Pension.- A retiring pension is a pension granted to a Government servant.-
(a) who is permitted to retire any time after completion of a qualifying service of not less -: 54 :- than [15 years,] subject to the conditions specified in sub-rule (2) hereunder; or
(b) who is permitted to retire any time on attaining the age of 50 years, subject to the conditions specified in sub-rule (3) hereunder; or [(c) who is retired in public interest any time after completion of 20 years qualifying service or after he has attained the age of 50 years, subject to sub-rule (4) thereunder.] 285 (2) XXXXXX 285 (3) XXXXXX "(4) Retirement of a Government servant in public interest under the orders of Government.-
[(i) Government may, by order, retire a Government servant who is working in a substantive, quasi-permanent or temporary capacity, after he has attained the age of 50 years or after he has completed 20 years of qualifying service, if the retirement is in their opinion necessary in the public interest:
Provided that the Government servant concerned shall either be given a notice of three months before the date of retirement or if he is ordered to retire forthwith, be permitted to draw, every month in lieu of pension for the period of three months, from the date of such retirement, -: 55 :- a sum equivalent to the salary which he was drawing immediately before the date of retirement and any increment which accrues to him during the said period shall be paid to him and the said period for which he draws such salary shall be treated as duty.]
(ii) Salary for this purpose will include [special allowance], dearness allowance, house rent allowance, city compensatory allowance, uniform allowance, deputation allowance, foreign service allowance and any other allowance, except conveyance allowance and the fixed travelling allowance. If the service of the Government servant who is on deputation or on foreign service for a specified period on specified terms and conditions, are withdrawn to his parent department before orders are passed under this sub-rule, no deputation or foreign service allowance will be paid.
(iii) Retirement under this sub-rule is not permissible after, issue of an order under clause (c) of Rule 95 of the Rules.
(iv) Orders retiring a Government servant under this sub-rule, any time after his completion of [20] years of qualifying service shall not be issued until after the fact that he has put in a qualifying service of not less than -: 56 :- [20] years has been verified in consultation with the Accountant General.
(v) The quantum of pension and death-
cum-retirement gratuity admissible to a
Government servant, who is retired under this sub-rule shall be proportionate to the length of his qualifying service and calculated in accordance with the provisions of Chapter XIX of the Rules.
(vi) The amount of pension/gratuity to be granted shall be subject to the right of the Government or any Competent Authority to make reduction therein in accordance with the provisions of the rules, if his service is not satisfactory.
(vii) The provisions of this sub-rule shall come into force from the date of their publication in the Official Gazette.]"
Sub-rule (1) deals with three kinds of retirements namely,
a) a Government servant who is permitted to retire any time after completion of a qualifying service of not less than 15 years subject to conditions specified in sub-rule (2).-: 57 :-
b) a Government servant who is permitted to retire any time on attaining the age of 55 years, subject to the conditions specified in sub-rule (3).
(c) a Government servant who is retired in public interest any time after completion of 20 years qualifying service or after he has attained the age of 50 years, subject to sub-rule (4).
The first two kinds of retirements are at the instance of the Government servant while the third kind is at the instance of the Government. However as observed above the scheme of retirement contemplated under sub-rule (4) of 285 is quite distinct from retirement on attaining the age of superannuation or compulsory retirement by way of penalty.
31. Under sub-rule (4) of Rule 285, a Government servant could be retired in public interest if he has attained the age of 50 years and has completed 20 years of qualifying service, if in the opinion of the Government, retirement is in the public interest. Under the proviso, the Government servant shall be given notice of three months before the date -: 58 :- of retirement or if he is ordered to retire forthwith, be permitted to draw, every month in lieu of pension for the period of three months from the date of such retirement, a sum equivalent to the salary which he was drawing immediately before the date of retirement and any increment which accrues to him during the said period shall be paid to him and the period for which he draws such salary shall be treated as duty. Therefore, salary and other allowances in lieu of three months notice are contemplated under the proviso where the retirement is ordered forthwith. Therefore, the conditions for invoking sub-rule (4) of Rule 285 are as follows:
a) The Government servant must have attained the age of 50 years or has completed 20 years of qualifying service;
b) An opinion must be formed that the retirement of the Government servant is in public interest;
c) The Government must pass an order retiring the public servant in public interest and -: 59 :-
d) Either give a three month notice before the date of retirement or if the order of retirement is to take effect immediately, then salary and other allowances in lieu of three months notice must be paid and the said period will have to be treated as duty.
32. In the third decision of All India Judges' Association, while not accepting the recommendation of the Justice Shetty Commission to increase the age of superannuation from 60 to 62 years and having in mind the backlog of vacancies, it was observed that the State in consultation with the High Court could amend the Service Rules to provide re-employment of the Judicial Officers till the age of 62 years if there are vacancies on the cadre of District Judge. The observations in the second decision were left untouched. Pursuant to the modified direction in the second of the cases, what becomes clear is the fact that compulsory retirement could be at two stages, 1) at the stage of considering whether the Judicial Officers is eligible for continuation from 58 to 60 years which is by way of an -: 60 :- ad hoc arrangement till the service Rule is amended to raise the age of superannuation to 60 years and 2) compulsory retirement in terms of the relevant Service Rules. Of course, while considering the eligibility for continuation of a Judicial Officers up to 60 years, the consideration is also under the newly inserted Rule 95A of the KCSR.
33. As far as the State of Karnataka is concerned, the KCSR is applicable to the Judicial Officers also. Also there are no separate Rules of Retirement made applicable to the Judicial Officers in the State. As observed above Rule 95A was added to KCSR pursuant to the decision in All India Judges' Assn. and the same was deleted when the age of superannuation was raised to 60 years in the State. Therefore, the consideration to be made just prior to 58 years for the purpose of continuing or not continuing such an officer upto 60 years is now rendered otiose. Hence, it is under Rule 285 itself that the case of the Judicial Officers has to be considered and in terms of sub-rule (4) of Rule 285 of KCSR compulsory retirement in public interest is envisaged. Also, it would be relevant to rely upon the -: 61 :- decisions of the Division Bench of this Court in the case of Rajagopal Gangadhar Sajekhar v. High Court of Karnataka [ILR 2001 Kar. 29] and in G.V.Naik vs. State of Karnataka and Another [ILR 2000 Kar. 881], wherein, the applicability of sub-rule (4) of Rule 285 for a compulsory retirement of a Judicial Officers in public interest has been affirmed. Such a consideration can also be on completion of 50 or 55 years of age as the case may be or on completion of 20 years of service. Therefore the contention that on the deletion of Rule 95A, the concept of compulsory retirement in public interest is obliterated from the Rule book is incorrect. As stated above, the evaluation under Rule 95A and Rule 285 are for different purposes though the manner of evaluation is similar. Thus compulsory retirement in public interest under Rule 285 was in vogue prior to the decisions in All India Judges' Assn. and continues to be invoked even after the deletion of Rule 95A of the KCSR which was introduced pursuant to the decision in the first of the All India Judges' Assn. It is needless to mention that both Rule 285 as well as Rule 95A could have been invoked -: 62 :- in the case of a Judicial Officers in the state prior to the deletion of Rule 95A. Thus the deletion of Rule 95A has made no impact on the invocation of Rule 285.
34. In this context, the contention of the respondents is that as far as Government servants are concerned, there are guidelines in the form of instructions whereby, the screening committee reviews the performance of the Government servants and on the recommendation of the screening committee, the Government servant would be retired from service in public interest, when it is not desirable to continue a Government servant any longer. But in the case of Judicial Officers, such safeguards are conspicuous by their absence and therefore the exercise of power in the instant case is arbitrary.
35. As far as the respondent Judicial Officers are concerned, a Screening Committee of the High Court constituted to screen the Judicial Officers for the purpose of continuation of service beyond 58 years was also entrusted with the screening of the Judicial Officers in terms of sub- -: 63 :- rule (4) of Rule 285. After considering the Confidential Reports, work performance and over-all assessment of efficiency, reputation as to integrity, honesty and impartiality of the officers who had attained 50 or 55 years, the Committee resolved that fifteen Judicial Officers ought to be retired in public interest under sub-rule (4) of Rule 285. Infact the consideration was of 121 Judicial Officers who had attained the age of 50 years and 78 Judicial Officers who had attained the age of 55 years. The resolution of the Screening Committee was placed before the Full Court meeting held on 25/04/2009. The Full Court on considering the resolution of the Screening Committee along with the work performance, confidential records, overall assessment of efficiency, reputation as to integrity, honesty and impartiality of the fifteen Judicial Officers, resolved that the invocation of sub-rule (4) of Rule 285 was in public interest and resolved to recommend to the Government accordingly. Therefore, the procedure followed by the High Court in the instant case is similar to the guidelines issued by the State Government by way of instructions, vis-à-vis Government -: 64 :- servants, a copy of which was submitted by the learned counsel for the respondents during the course of arguments.
36. Thus, what emerges is that invocation of sub- rule (4) of Rule 285 has no nexus for the purpose of screening the Judicial Officers who have attained the age of 58 years in order to ascertain as to whether they could be continued up to the age of 60 years in terms of the dicta of the All India Judges Assn. The said Rule is applicable to evaluate the Judicial Officers on completion of 20 years of qualifying service or on attaining the age of 50 years, as the case may be. To reiterate, the age of superannuation was for the first time increased to 60 years in terms of the decision in the All India Judges' Assn. case, on 13/11/1991, prior to that the age of retirement was 58 years as far as the State of Karnataka is concerned. It is only on account of the increase in the age of superannuation in All India Judges Assn., the modified direction in the second case became applicable by which the screening and evaluation of the Judicial Officers before he/she attains the age of 58 years was mandated in terms of the newly inserted Rule i.e., Rule -: 65 :- 95A of the KCSR as for the Judicial Officers in State is concerned. However what has to be borne in mind is that the screening for the purpose of continuation of the Judicial Officers up to 60 years is not the same thing as the assessment and evaluation to be made for the purpose of compulsory retirement under the Rule 285. In the former, it is in order to ascertain as to whether the Judicial Officers could be continued up to 60 years whereas, in the latter, it is to ascertain as to whether the Judicial Officers has to be retired in public interest. Though the object of consideration in both the cases is different, the manner of consideration is the same. A Judicial Officers who is evaluated after 50 years of age could once again be evaluated just prior to attaining 58 years of age having regard to the dicta in All India Judges Assn. In fact in the case of Nawal Singh, Fundamental Rule 56 made applicable to Judicial Officers in the State of Uttar Pradesh in the matter of compulsory retirement was upheld by observing as follows:
"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 -: 66 :- Judges' Assn. 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.
Therefore, there is no embargo on the competent authority to exercise its power of compulsory retirement under Rule 56 of the 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 -: 67 :- directions issued by this Court in First All India Judges' Assn. case but at the same time, before passing the order of compulsory retirement, the High Court exercised its powers under the Fundamental Rules and that is specifically mentioned in the orders."
37. Therefore, the learned Single Judge was not right in holding that there could be no assessment of a Judicial Officers prior to his reaching the age of 58 years and that sub-rule (4) of Rule 285 could be invoked only at one time, insofar the Judicial Officers is concerned and that is, only for the purpose of ascertaining as to whether the Judicial Officers could be continued beyond 58 years. The enhancement of the age of superannuation in terms of the judgments of the Supreme Court necessiating a screening of the Judicial Officers prior to his attaining the age of 58 years is an ad hoc arrangement and not as a substitution for the evaluation of the Judicial Officers on completion of 20 years of qualifying service or on attaining 50 years of age. Infact, Judicial Officers who are assessed on completion of the age of 50 years or 20 years of qualifying service and are -: 68 :- continued in service could have been once again assessed for the purpose of continuing their service beyond 58 years and up to 60 years as per the dicta of the Apex Court as the object of the said assessments are different as stated above, till the amendment made to the service Rule enhancing the age of superannuation to 60 years on acceptance of the decision of the Apex Court which initially raised the said age to 60 years.
38. It is also significant to observe that since the State of Karnataka has enhanced the age of superannuation for all Government servants to 60 years, which would also include the members of the subordinate judiciary, the screening prior to attainment of 58 years for the purpose of continuing the officer till 60 years would in our view now be unnecessary. In such a changed scenario, the evaluation made in terms of Sub-Rule (4) of Rule 285 on attaining the age of 50 years or on completion of 50 years of age assumes greater significance. In these cases of course the evaluation of the officers was on completion of 50 or 55 years of age or 20 years of qualifying service as the case may be for the -: 69 :- purpose of compulsory retirement which is an aspect of control of the subordinate judiciary under Article 235 of the Constitution, which vests administrative control over the subordinate judiciary in the High Court. If compulsory retirement is by way of a punishment or a penalty inflicted on a Government servant, then in that case, it is consequent upon a finding of guilt being recorded in Disciplinary Proceedings. The relevant Rules and procedures would apply involving the Principles of Nature Justice. Such compulsory retirement must meet the requirements of Article 311 of the Constitution. But a retirement as contemplated under sub- rule (4) of 285 of KCSR is not by way of a punishment or penalty and it does not cast any stigma. The object of invocation of such a provision is as often stated, "to eliminate the deadwood, the paper logged and callous". It is not by way of a punishment and as stated in Rajendra Singh Verma, the order is passed on the subjective satisfaction of the Government. The Principles of natural justice have no place in the exercise of such power and such an order of compulsory retirement cannot be lightly interfered with by -: 70 :- the Constitutional Courts. Therefore invocation of Rule 285 of KCSR is valid. Therefore point No.1 is answered in favour of the appellants.
39. As far as a remedy being available to assail an order of compulsory retirement the Apex Court in Rajendra Singh Verma has observed as follows:
"41. Normally, an aggrieved civil servant can challenge an order of compulsory retirement on any of the following grounds, namely, (a) that the requisite opinion has not been formed, or (b) that the decision is based on collateral grounds, or (c) that it is an arbitrary decision. If the civil servant is able to establish that the order of compulsory retirement suffers from any of the above infirmities, the court has jurisdiction to quash the same."
In the aforesaid decision reliance has been placed on Baikuntha Nath Das. v. District Medical Officer, (1992) 2 SCC 299), wherein the Apex Court has laid down the following firm propositions of law stated in para 34.
"34. The following principles emerge from the above discussion:-: 71 :-
(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-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 - 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 -: 72 :- 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.
Interference is permissible only on the grounds mentioned in Principle (iii) above."
In Rajendra Singh Verma, the Apex Court has elucidated on the manner of consideration of the service record and performance of a Judicial Officers by stating that before exercise of the power to retire an employee compulsorily from service, the authority has to take into consideration the overall record, even including some of the adverse remarks, which though for technical reasons, might have been expunged on appeal or revision. What is emphasised in the said decision is that in the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the court/tribunal in exercise of its power of -: 73 :- judicial review. According to the Apex Court, what is needed to be looked into is whether a bonafide decision is taken in the public interest to augment efficiency in the public service.
In Union of India v. V.P.Seth, (1994 SCC (L&S) 1052), it has been held that uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement. The Bench in the said case made reference to Baikuntha Nath Das.
The Apex Court in Rajendra Singh Verma has further observed as follows:
"183. It is well settled by a catena of decisions of this Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record up to that date on which consideration is made has to be taken into account. What weight should be attached to earlier entries as compared to recent entries is a matter of evaluation, but there is no manner of doubt that consideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry was promoted does not -: 74 :- wipe out earlier adverse entry at all. It would be wrong to contend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from considering the earlier adverse entry. When the law says that the entire service record has to be taken into consideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether the officer concerned was promoted to higher position or whether he was granted certain benefits like increments, etc. **** "192. Normally, the adverse entry reflecting on the integrity would be based on formulations of impressions which would be the result of multiple factors simultaneously playing in the mind. Though the perceptions may differ, in the very nature of things there is a difficulty nearing on impossibility in subjecting the entries in the confidential rolls to judicial review. Sometimes, if the general reputation of an employee is not good though there may not be any tangible material against him, he may be compulsorily retired in public interest. The duty conferred on the appropriate authority to -: 75 :- consider the question of continuance of a Judicial Officers beyond a particular age is an absolute one. If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a Judicial Officers is in public interest, the writ court under Article 226 or this Court under Article 32 would not interfere with the order.
193. While undertaking judicial review, the Court in an appropriate case may still quash the decision of the Full Court on administrative side if it is found that there is no basis or material on which the ACR of the Judicial Officers was recorded, but while undertaking this exercise of judicial review and trying to find out whether there is any material on record or not, it is the duty of the Court to keep in mind the nature of -: 76 :- function being discharged by the Judicial Officers, the delicate nature of the exercise to be performed by the High Court on administrative side while recording the ACR and the mechanism/system adopted in recording such ACR."
In Nand Kumar Verma V/s. State of Jharkhand (2012) 3 SCC 580) the Apex Court has opined that when an order of compulsory retirement is challenged in a court of law, the court has the right to examine whether some ground or material germane to the issue exists or not. Although, the court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the -: 77 :- subjective satisfaction of the administrative authority is based.
40. Having regard to the aforesaid parameters set by the Apex Court, the present cases have to be considered. In this context, while the contention of the learned counsel for the respondents is that the order of compulsory retirement is arbitrary as the requisite guidelines have not been followed, on the other hand, the contention of the learned Senior Counsel for the appellants is that such a plea has not been raised at all before the learned Single Judge. We have perused each of the cases of the respondents independently. As stated earlier, the Committee of Judges constituted by the Chief Justice of the High Court deliberated on the service record, the work performance etc., to assess the overall assessment of the efficiency and reputation as to the integrity, honesty and impartiality of the concerned Judicial Officers and has resolved to retire the -: 78 :- respondent-officers invoking sub-rule (4) Rule 284 of the KCSR. The said resolution along with the extracts from the vigilance records, which was the basis for forming an opinion by the Committee, were placed before the Full Court meeting held on 25.04.2009. On a consideration of the said details, extracted from the vigilance records of each of the respondent-officers, the Full Court resolved to retire the respondent-officers in public interest under sub-rule (4) of Rule 284 of KCSR and accordingly, recommended the same to the Government. The particulars of the vigilance cases and disciplinary enquiries of the respondent-officers are annexed to each of the Memorandum of Appeal as Annexure-R4 to the additional statement of objections filed by appellant No.2 herein before the learned Single Judge. We have perused the same. We do not find that there is any arbitrary exercise of the power in the instant cases. Of course, no malafides have been attributed by the respondents. We are of the view that the opinion formed by the High Court -: 79 :- is based on material considered by the Committee of Judges as well as the Full Court.
41. However, the learned Single Judge has stated that though there were several allegations of corrupt practices against the concerned officers, these were not taken to the logical conclusion by holding a departmental enquiry. On the other hand, in the absence of there being any departmental enquiry, the order of compulsory retirement is punitive in nature. No doubt, there are several allegations against each of the respondent- officers, some of which have also been enquired into and in some cases may have also resulted in certain minor punishments. However, what has to be considered under sub-rule (4) of Rule 285 is, as to whether in the opinion of the High Court, the concerned officer has to be retired in the public interest. It is not whether a departmental enquiry has to be instituted against the respondent- officers for the purpose of imposing a penalty. The entire -: 80 :- service record of the officers is considered in order to assess their efficiency and suitability for continued service or to compulsorily retire from service, those persons who in the words of Apex Court are "deadwood and callous" and do not have a utility to the judicial system. Therefore, the desirability, utility and suitability to continue the Judicial Officers in service or to retire him from service in the public interest is a sole consideration. Compulsory retirement in public interest is not the same as compulsory retirement on a proven misconduct. Sub- rule (4) of Rule 285 of the KCSR does not envisage the conduct of an enquiry before an officer could be compulsorily retired. As stated above, compulsory retirement in the public interest is not punitive or by way of punishment, but to ensure purity and efficiency in judicial administration by compulsorily retiring those officers who, in the opinion of the High Court have lost their utility to serve the system. Therefore, the learned Single Judge is not right in concluding that invocation of -: 81 :- sub-rule(4) of Rule 285 of the KCSR is a punitive measure "a shortcut to avoid the departmental enquiry or enquiries". Such a thing is not envisaged under the said Rule. On the other hand, we do not find that on the material considered by the Committee of Judges as also by the Full Court the opinion formed is either arbitrary or unreasonable or based on insufficient or irrelevant material or based on irrelevant considerations. The subjective satisfaction arrived at by the Committee and thereafter by the Full Court cannot be questioned by way of judicial review by getting a different view substituted for the one taken on the administrative side. In fact we do not find any taint in the decision-making process while exercising the power under Rule 285. Indeed the exercise of power under the Rule for ordering the compulsory retirement of the respondents is in public interest. Therefore, Point No.2 is also answered in favour of the appellants.
-: 82 :-
42. In this context, reliance could be placed on Jugal Chandra Sichia V/s. State of Assam (2003) 4 SCC 59) wherein it has been held that it is open for the court to interfere in an order of compulsory retirement in public interest, only when such an order is placed on no evidence or is totally perverse. In D.G.Shivacharana Singh V/s. The State of Mysore (AIR 1965 SC 280), while upholding Rule 285 of the KCSR (then MCSR) the Supreme Court held that public interest is a matter for the Government to consider. In Shivdayal Gupta V/s. State of Rajasthan (2006 SCC (L&S) 1230) it has been held that when on the basis of overall perusal of Annual Confidential Reports (ACR) and overall assessment of service record, the Review Committee found that the continuance of an officer would be a liability to the Department and adverse to the public interest and recommended for his compulsory retirement, in the absence of any allegation of malafide or non-application of mind, the challenge to compulsory retirement has to be -: 83 :- rejected, as it is based on the subjective satisfaction of the matter on the basis of the records placed before the authority. In Chandra Singh V/s. State of Rajasthan (2003 SCC (L&S) 951), Rule 53 of the Pension Rules pertaining to compulsory retirement in public interest was held to be applicable to Judicial Officers also. In the said decision it has also been held that the Constitutional power under Article 235 cannot be circumscribed by any rule.
43. We also do not subscribe to the view expressed by the Full Bench of the Andhra Pradesh High Court in K.Veera Chary that compulsory retirement of a Judicial Officers on attaining the age of 50 or 55 years curtails his right to continue till he attains the age of 58 years and then 60 years and therefore, deprives the officer of the chance of serving and getting is pay till he attains superannuation as per law, is punitive in nature. In fact, in Bishwaanath Prasad Singh the Apex Court has -: 84 :- held that the object of compulsory retirement is not to punish or penalise but to weed out the worthless, who have lost their utility for the administration of justice. In fact the Full Bench, with respect, has misconstrued the dicta in All India Judges' Association and Bishwanath Prasad Singh by stating that the said judgments do not contemplate assessment and evaluation of the record of an officer at the age of 50 or 55 years. On the other hand, in the said judgments it is categorically stated that the review at the age of 58 years for the purpose of continuation till 60 years is distinct and independent of compulsory retirement in public interest or by way of a punishment as the case may be. The Full Bench opinion also loses sight of the fact that the exercise of power is ultimately traceable to Article 235 of the Constitution of India. In fact, the understanding of Naval Singh by the Full Bench is also not correct since in the said case, the Apex Court has held that there was no embargo on the competent authority to exercise its power of compulsory -: 85 :- retirement under Rule 56 of the Fundamental Rules de hors the direction in All India Judges' Association.
44. In the result, the notification dated 23.06.2009 is upheld. The direction of the learned Single Judge regarding reinstatement of the concerned officers with continuity of service with all consequential benefits is set aside. Consequently, the appeals are allowed. Parties to bear their own costs.
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CHIEF JUSTICE Sd/-
JUDGE *mvs Index: Y/N