Bombay High Court
Arvind H. Shah vs High Court Of Judicature At Bombay And ... on 3 October, 1994
JUDGMENT Majithia, J.
1. The petitioner, Arvind H. Shah a former Additional Principal Judge of the Bombay City Civil and Sessions Court, has challenged notice/order contained in No. P-1611-197 of 1994 dated July 1, 1994 issued by order and in the name of respondent No. 2 declining him the benefit of increase of retirement to 60 years in this petition under Article 226 of the Constitution of India.
2. All India Judge's Association moved the Supreme Court under Article 32 of the Constitution of India for direction for setting up of All India Judicial Service and for bringing about uniform conditions of service for members of the subordinate judiciary throughout the country. The Apex Court, while disposing of the writ petition, issued various directions including that the retirement age of judicial offices be raised to 60 years. The Union of India, the State Government and the Union Territories were directed to take appropriate steps in this behalf. The judgment is now reported as All India Judges' Association v. Union of India . The Union and the State Government sought review of this judgment. The Review Petitions were disposed of by judgment dated August 24, 1993. The judgment is reported as All India Judges' Association v. Union of India, . The Apex Court modified the direction with regard to the enhancement of the retiring age. Guidelines were laid down for granting benefit of the increase of the retirement age to 60 yeas. The respective High Courts were directed to constitute appropriate Committees for assessing the cases of Judicial officers who were about to attain the age of 58 years. The petitioner was to attain the age of 58 years on July 12, 1994. The Appropriate Committee comprising of the Hon'ble the Chief Justice an two Hon'ble Judges examined the case of the petitioner and opined that the benefit of increase in the age of retirement should be denied to him. The Committee also requested the Chief Justice to issue requisite to the Registrar to communicate the decision to the petitioner. It is how the order under challenge was issued.
3. The petitioner was selected as a Judge of the City Civil Court and Additional Sessions Judge for Greater Bombay by respondent No. 1 and on its recommendation, the State of Maharashtra by L. & J. D.'s Notification No. C. C. S. 1083/116(7)-3 dated August 17, 1983 appointed him as such and he took charge on August 23, 1983. The petitioner was confirmed as a Judge of the City Civil Court, Bombay, and Additional Sessions Judge, Greater Bombay by High Court Notification dated March 12, 1985 with effect from August 23, 1983. On the retirement of Mr. V. D. Deshmukh, Additional Principal Judge in the City Civil and Sessions Court, a vacancy in the cadre of Additional Principal Judge arose. The Registrar submitted a note dated April 23, 1992 before the Administrative Committee of this Court comprising of the Hon'ble the Chief Justice, the Hon'ble Mrs. Justice Sujata Manohar and the Hon'ble Mr. Justice M. L. Pendse. The note in so far, as it relates to the petitioner reads thus :
"My Lords, this is regarding appointment of Additional Principal Judge, in the City Civil and Sessions Court, Greater Bombay. Shri V. D. Deshmukh, Additional Principal Judge is due to retire on superannuation with effect from 30th April, 1992. There will, therefore, be a vacancy in the cadre of Additional Principal Judge, City Civil Court, Bombay. In order of seniority, the following Judges in City Civil Court, Greater Bombay, are eligible for promotion as Additional Principal Judge, City Civil Court, Bombay :-
x x x x x x 3. Shri A. H. Shah x x x
In this connection, your Lordship may please peruse the provisions of Rule 5 of the Bombay Judicial Service Recruitment Rules, 1956. The provisions are reproduced below :
5. Principal Judge and the Additional Principal Judge, Bombay City Civil Court :- Appointment to these posts shall be made by the Governor by selection in consultation with the High Court from the Judges of the City Civil Court (not being those appointed from amongst the District Judges).
It is thus clear from the said Rule that the selection of a Judge for appointment to the post of Additional Principal Judge in the City Civil Court, is on merits subject to the approval of Full House.
In order to examine the cases of the above Judges for the post of Additional Principal Judge, City Civil Court, Bombay, I have collected the gist of the complaints, disposal figures etc. in respect of the above judges.
xxx xxx xxx
xxx xxx xxx
Shri A. H. Shah : His confidential record right from 1985
is fairly good. The disposal figures are
inadequate. The S. I. D. whom I consulted
has supplied the gist of the
complaints which is reproduced below :-
Name of the Complaint Shri Sadanand Sahadeo Paradkar
Date of the Complaint 27.2.1991
Nature of the Complaint Alleged that his matter was summarily
dismissed by the Judge, being enraged by
his act of making two advocates party,
because they had betrayed him.
Stage The complaint is closed vide Hon'ble the
Chief Justice's Order dated 16.6.1991
because he has not alleged the Judge of
any corruption and his impression that the
Advocate/defendants are left scotfree is
not correct.
Name of the Complaint Miss P. D.'Souza.
Date of the Complaint 14.12.1990.
Nature of the Complaint Alleging that fraud is committed in the
Court of Judge Shri Arvind H. Shah. Also
allegation of corruption partiality,
misconduct and disobedience of High Court
orders are made in the complaint.
Stage Complaint is yet to be processed.
The Principal Judge has in his report about the work and conduct of Shri Shah says as under :-
Judge, Shri A. H. Shah :
(i) He took charge as Judge of this Court on 23rd August 1983, as a practising Advocate from the Bombay Bar.
(ii) He has now administrative experience as he is one of the members of the Cell constituted for the destruction of old Record in Criminal matters.
(iii) Presently since about a year, he is dealing with Special Cases instituted by the C. B. I. under Prevention of Corruption Act, as a special Judge. He has also experience in the conduct of Matrimonial Petitions, conduct of trial of Civil suits, notices of Motion as also trail of Sessions cases. He also was the Special Judge appointed to deal with the cases registered under the Disturbed Areas Act.
(iv) Perusal of the previous correspondence between the Administrative Judge the then Shri Lentin and my predecessor, it is noticed that a complaint of serious nature was made by one of the litigants by name Shri N. Menezes in the conduct of a civil matter against Shri Shah and the Hon'ble High Court called upon Shri Shah to submit his explanation.
(v) Report about judicial work. Good.
'C' I, therefore, propose that your Lordships may consider whether Shri Shah be consider whether Shri Shah be appointed as Additional Principal Judge, City Civil Court, Bombay.
x x x x x x x x x As regards the rest of the Judges in the City Civil and Sessions Court, Bombay, I submit that they are junior in seniority in the above that they are junior in seniority to the above Judges and, therefore, their cases may not be considered.
Your Lordships' directions are solicited."
Minutes of the Administrative Judges' Meeting held on Tuesday, 28th July, 1992, in so far as they relate to the petitioner; read thus :-
"Subject No. 15 Appointment of Additional Principal Judge in City
Civil and Sessions Court, Greater Bombay.
Decision Discussed.
x x x
x x x
Having considered the service record of Shri A. H. Shah, it was decided to select him for appointment as Additional Principal Judge, City Civil Court, Bombay.
The selection of the petitioner was approved by the Full Court in circulation. On November 23, 1992, the Chief Justice passed the following order :-
"Mrs. K. K. Baam and Mr. A. H. Shah should be appointed as Principal Judge and Additional Principal Judge respectively.
The matter to be placed before the Full Court so far as Mrs. Baam's appointment is concerned. Mr. A. H. Shah's appointment is already approved by the Full Court.
In view of the amendment of Rule 5(1) of the Bombay Judicial Service Recruitment Rules 1956, and the well-settled legal position, the High Court will have to make the appointments. The appointment of Mr. Shah to await the Full Court decision of Mr. Shah to await the Full Court decision regarding Mrs. Baam so that both the appointments can be made simultaneously."
The Full Court approved the appointment of Mrs. K. K. Baam as Principal Judge and the petitioner as Additional Principal Judge. On January 14, 1993, the Registrar of this Court submitted the following note to the Hon'ble the Chief Justice :-
"My Lord, this is regarding appointment of Principal Judge, and Additional Principal Judge, City Civil and Sessions Court, Greater Bombay.
The matter was placed before the Full Court for appointments of Mrs. K. K. Baam as Principal Judge and Mr. A. H. Shah as Additional Principal Judge, City Civil Court, Bombay.
The Full Court has taken decision to appoint Mrs. K. K. Baam as Principal Judge and Mr. A. H. Shah as additional Principal Judge, City Civil Court, Bombay.
In view of the recent amendment of Rule 5(1) of the Bombay Judicial Service Recruitment Rules, 1956, the High Court can make the appointments of Mrs. K. K. Baam, as Principal Judge and Mr. A. H. Shah as Additional Principal Judge, City Civil Court, Bombay.
'A' Your Lordship may, therefore, direct me to issue notification of appointments of Mrs. Baam as Principal Judge and Mr. Shah as Additional Principal Judge, City Civil Court, Bombay.
Your Lordship's directions are solicited."
The Hon'ble the Chief Justice approved the proposal marked 'A' in the note quoted above on January 15, 1993 and on January 16, 1993 Notification No. A. 6721/91 was issued. The Notification reads thus :-
"The Honourable the Chief Justice and Judges the pleased to appointed Smt. K. K. Baam, Additional Principal Judge, Bombay City Civil Court & Additional Sessions Judge, Greater Bombay as Principal Judge, Bombay City Civil Court & Sessions Judge, Greater Bombay and Shri A. H. Shah, Judge, City Civil Court & Additional Sessions Judge, Greater Bombay as Additional Principal Judge, City Civil Court & Additional Sessions Judge, Greater Bombay with effect from the dates they assume charge of their appointments."
On November 3, 1993, the Registrar of this Court submitted a note before the Administrative Committee comprising of the Hon'ble the Chief Justice, the Hon'ble Mrs. Justice Sujata Manohar, the Hon'ble Mr. Justice M. L. Pendse and the Hon'ble Mr. Justice S. P. Kurdukar relating to the confirmation of the Principal Judge, Additional Principal Judge and Judges of the City Civil Court, Bombay.
The note in so far as it relates to the confirmation of the petitioner, reads thus :-
"My Lords, this relates to the confirmation of the Principal Judge, Additional Principal Judge and Judges, City Civil Court, Bombay.
xx xx xx xx xx xx ADDITIONAL PRINCIPAL JUDGE I may state that recently Government of Maharashtra have made on temporary post of Additional Principal Judge permanent vide Resolution, L. & J. D. No. CCS 1091/232(31)-X, dated 19th January, 1993. Thus one post of Additional Principal Judge is available for confirmation with effect from 19.1.1993. Formerly, no post of Additional Principal Judge was confirmed and, therefore, none of the Additional Principal Judges were confirmed in that post. At present, there are two posts of Additional Principal Judges in the City Civil Court, Bombay and they are manned by S/Shri A. H. Shah and V. K. Kulkarni. Shri Shah is appointed as Additional Principal Judge w.e.f. 18.1.1993 whereas Shri Kulkarni is appointed on 28.7.1993.
'B' The Confidential Record of Shri Shah is placed below for your Lordships' perusal. There are no adverse remarks in his confidential record. There is, therefore, no objection to confirm Shri Shah as Additional Principal Judge, City Civil Court, Bombay w.e.f. 19.1.1993. Your Lordships directions are solicited as at 'A' to 'F' above."
After the note was circulated among the other members of the Committee, the Hon'ble the Chief Justice approved the proposals 'A' to 'F' on November 23, 1993. Proposal 'B' relates to the confirmation of the petitioner. The High Court issued notification No. A/6704/93 dated November 30, 1993 confirming the petitioner as an Additional Principal Judge with effect from January 19, 1993.
4. Now we give a brief resume of the confidential reports pertaining to the petitioner as under :-
----------------------------------------------------------------------
Year Character Judicial Speed in Quality of ability disposals judgments
----------------------------------------------------------------------
1983-84 Good Fair Fair Fair
1984-85 Good Fairly Fairly Fairly
Good Good Good
1985-86 Good Good Good Good
1986-87 Good Fair Fair Fair
1987-88 Good Fair Fair Fair Letters to High
Court indiscreet.
1988-89 Good Fair Fair Fair To be watched
in future.
1989-90 Good Fairly Fairly Fairly
Good Good Good
----------------------------------------------------------------------
In 1991, a different proforma was prescribed for recording the Annual Confidential Reports. For the reporting periods ending 31st March 1991 and 31st March 1992, the relevant columns read as under :-
---------------------------------------------------------------------
Period ending Period ending
31.3.1991 31.3.1992
4. What is the quality of his
judgments as regards reasoning,
clarity and precision. Fair Fair
8. Remarks about his attitude towards
his superiors, subordinates and
colleagues. Good Good
9. Remarks regarding his behaviour
towards members of the Bar and
the Public. Good Good
10. Remarks about reputation and
integrity, impartiality and
character. Good Good
13. Is he fit for taking additional
responsibility. Yes Yes
18. Net result. (Outstanding, Very
Good, Good, Average, Poor). Good Good
---------------------------------------------------------------------
The Report for the period ending March 31, 1991 was recorded on March 19, 1992 by the Hon'ble Mrs. Justice Sujata Manohar (as she then was), the Hon'ble Mr. Justice M. L. Pendse, the Hon'ble Mr. Justice S. P. Kurdukar (as he then was), the Hon'ble Mr. Justice S. W. Puranik (as he then was) and the Hon'ble Mr. Justice S. N. Variava. The Report for the period ending March 31, 1992 was recorded on July 23, 1993 by the Hon'ble Mrs. Justice Sujata Manohar (as she then was), the Hon'ble Mr. Justice S. P. Kurdukar (as he then was), the Hon'ble Mr. Justice S. W. Puranik (as he then was) and the Hon'ble Mr. Justice S. N. Variava. For the period ending March 31, 1993, the Annual Confidential Report was not been recorded, Mrs. K. K. Baam, Principal Judge, City Civil Court, Bombay was allowed to avail earned leave for 30 days from February 17, 1994 to March 18, 1994. The petitioner was directed to attend to the matters during the absence of Mrs. K. K. Baam, Principal Judge, City Civil Court, Bombay, by High Court Notification dated December 14, 1993.
5. The petitioner's case was reviewed, as enjoined by the Apex Court in the All India Judges' Association's case (supra), by the Appropriate Committee for grant of the benefit of increase of retirement age to 60 years. The Minutes of the Committee meeting held on February 9, 1994, in so far as they relate to the petitioner, read thus :-
The following were present :
Chief Justice M. L. Pendse, J. V. A. Mohta, J.
In pursuance of the judgment dated 24th August, 1993 of the Supreme Court in Review Petition No. 249 of 1992 in Writ Petition No. 1022 of 1989, the Committee examined the cases of 5 Judicial Officers who are due to complete 58 years of age before the end of December, 1994 and consideration of whose cases were deferred at the last meeting held on 30th November, 1993. The names of these 5 judicial officers are as under :-
xxx xxx xxx (3) Shri A. H. Shah xxx xxx xxx In accordance with the directions of the Supreme Court the benefit of increase of retirement age to 60 years is to be made available to those Judicial Officers who have potential for continued useful service and is not to be granted as a matter of course to the officers who are indolent, infirm and of doubtful integrity, reputation and utility. The evaluation is to be made on the basis of the Judicial Officer's past record of service, character rolls, quality of judgments and other relevant matters. Bearing these principles in mind, the committee examined the service record, leave record, physical fitness certificate and quality of judgments. Taking into consideration all these factors, the committee is of the unanimous opinion that the benefit of increase of retirement age to 60 years should be granted to the following Judicial Officers :-
xxx xxx xxx xxx The Committee is also of the unanimous opinion that the benefit should be denied to Judicial Officers, namely... ... ... Shri A. H. Shah and ......... and all these Officers who have or have not given in writing their option to continue in service till they attain the age of 60 years, should be made to retire on their completion of age of 58 years.
The Committee requests the Chief Justice to issue requisite directions to the Registry to communicate the above decisions.
These facts have been collected from the record produced by Mr. C. J. Sawant, learned counsel appearing for respondent Nos. 1 and 2.
6. From the close scrutiny of the record reproduced above, we summarise thus :-
(i) The petitioner was selected for appointment as Additional Principal Judge, City Civil Court, by the Full Court on January 16, 1993.
(ii) The Administrative Committee, exercising the delegated power of the Full Court, after examining the overall suitability of the petitioner, ordered his permanent absorption in the service. The order of confirmation was issued by notification dated November 30, 1993.
(iii) The Review Committee appointed by the Hon'ble the Chief Justice from time to time for recording the Annual Confidential Reports graded the petitioner as 'Good' throughout.
(iv) The petitioner's service book does not contain an adverse entry.
(v) Registrar's note, of the type prepared for the selection and for the confirmation of the petitioner as Additional Principal Judge, was not prepared for the meeting of the Appropriate Committee held on February 9, 1994. Registrar's earlier notes prepared on the basis of the official record graded the petitioner as 'Good'.
(vi) The petitioner attended to the matters pertaining to the Principal Judge, Bombay City Civil Court from February 17, 1994 to March 18, 1994.
(vii) Two Hon'ble Members of the Appropriate Committee were Members of the Administrative Committee who approved the petitioner for permanent absorption in the service as Additional Principal Judge.
7. The sole point arising for adjudication is whether the petitioner is entitled to the benefit of the increased age of retirement provided under the scheme judicially framed by the Apex Court in the All India Judges' Associations case (supra)? We have not thought it necessary to refer to all the contentions raised in the writ petition. The relevant pleas necessary for resolution of the dispute will be alluded to.
8. Now the stage is set to deal with the submissions raised by the parties' counsel at the Bar. Learned counsel for the petitioner submitted that there is no material on record to justify the order of the Appropriate Committee denying to the petitioner the benefit of increased age of retirement. He further submitted that the petitioner was selected for appointment as Additional Principal Judge on January 16, 1993 and he was confirmed in the service on November 30, 1993. The High Court had further to show as to how there was a deterioration in the quality of his work or integrity. On the other hand, learned counsel for the High Court submitted that the decision of the Appropriate Committee was the result of its subjective satisfaction and it is not necessary to disclose the material on the basis of which the opinion was formed.
9. The petitioner did not have access to the service record. He averred in the petition that his service record is unblemished and he drew this inference from the fact that no adverse report was ever communicated to him. Paras 3 and 4 of the writ petition read thus :-
"3. The petitioner says that in 1988 the quality of the judgment of the petitioner was very much appreciated by the Division Bench of this Hon'ble High Court of Bombay in its judgment in Appeal from Order No. 178 of 1988. In the said Appeal from Order, the Judgment given by the petitioner in Notice of Motion No. 5612 of 1987 in L. C. Suit No. 7098 of 1987 of Bombay City Civil Court (i.e. Nicholas Menezes v. Municipal Corporation of Greater Bombay and M/s. Seaface Builders Pvt. Ltd.) was not only upheld by the Division Bench of Hon'ble High Court consisting of the then Hon'ble Judge Mr. Justice Pratap and Mr. Justice Tated, but the petitioner also believes that the said judgment was even upheld by the Hon'ble Supreme Court. The Hon'ble Division Bench of the High Court also offered handsome compliments devoting one entire para in the said judgment in Appeal from Order No. 178 of 1988 for complimenting the petitioner and the said observations of the said Hon'ble Judges of the Division Bench are as under :-
"6. Hearing in extenso counsel on either side and considering all such facts and circumstances of which our attention was invited by them, we find this not to be a case warranting interference. Carefully going through the 64 pages impugned Judgment, we find the same to be well-reasoned and well-considered. Interim relief has been declined in the sound exercise of judicial discretion. The Order reflects just and proper consideration of all relevant facts and circumstances. There has been, even at this interim stage, a very detail and serious application of mind. Besides, when interim or interlocutory proceedings, such as this, come up to the Appellate Court, the Appellate Court is, as it should be, slow to interfere. And this is all the more so when it finds the Court of first instance well applying its mind to all the relevant facts and circumstances and well considering all aspects and pronouncing a well-reasoned judgment."
4. The petitioner says that from the commencement of his judicial service in August 1983 till today no adverse remarks of any nature whatsoever have been communicated to the petitioner as according to the petitioner there are no adverse remarks against the petitioner in his confidential report maintained by the respondents No. 1 and 2. The petitioner also says that even if it is assumed without admitting that there is any such adverse remarks in his confidential report, the petitioner has not been given any opportunity to explain about the adverse remarks, if any, at any time. The petitioner says that there could not have been any adverse remarks against the petitioner in his confidential report because as aforesaid not only the quality of the petitioner's judgment was appreciated by the Hon'ble High Court but in January 1993 the petitioner was also appointed as an Additional Principal Judge of his Court by the entire house of the Hon'ble Bombay High Court after considering the names of some other senior Judges along with the petitioner and the petitioner was preferred in comparison with the said other Judges which could not have been done if there was any adverse remarks against the petitioner in his confidential report. The petitioner says that with effect from September, 1992, the petitioner was also entrusted with the Administrative Duties of his Court as he was likely to be appointed as an ADDITIONAL PRINCIPAL JUDGE of his Court."
The written statement by way of affidavit was filed on behalf of the High Court by Vidyadhar Ramchandra Datar, Additional Registrar of this Court. The corresponding reply to these paragraphs reads thus :-
"9. As regards contents of paragraphs 3 and 4 of the petition, those are not at all relevant, for the present purpose. Even so, the claim of the petitioner about the quality of his judgment based upon his single judgment in Notice of Motion No. 5612/87 in L. C. Suit No. 7089/87 is not admitted. So also the claim of the petitioner regarding his appointment as Additional Principal Judge of the City Civil Court, Bombay in January 1993, being based upon the facts alleged by the petitioner in this paragraph is denied."
10. Respondent No. 1 should have dealt with specifically each allegation of fact. If it intended to deny any such fact, it must not have done evasively. It must answer the point of substance. If a denial is not specific but evasive, the said fact can be taken as admitted. We would have appreciated if respondent No. 1 had admitted undisputed facts borne out from the record.
11. Respondent No. 1 through its Additional Registrar filed an affidavit dated September 19, 1994 purporting to be additional affidavit in reply to the petitioner. We are afraid if the rules permit filing of reply to the rejoinder without the permission of the Court. The affiant has placed a chart showing that disposal of cases in some months in the years 1990, 1991, 1992 and 1993 was inadequate. The affiant does not say that the chart was placed before the Appropriate Committee and it took it into consideration in forming its opinion. The chart must have been placed before the Full Court which selected the petitioner for appointment as Additional Principal Judge and thereafter before the Administrative Committee which approved his permanent absorption in the service. It was found to be of no substance.
12. It is correct that it is not necessary for the Appropriate Committee to record reasons in support of its decision. It is also correct that it is not necessary to disclose the material in the Minutes of the Meeting which was taken into consideration by the Appropriate Committee. It cannot be disputed that the decision of the Appropriate Committee is justiciable. If the decision is challenged, it is necessary for respondent No. 1 to disclose that material in the written statement which was taken into consideration by the Appropriate Committee in arriving at its decision. Respondent No. 1 did not disclose that material in the written statement. It is also did not place that material before us during the hearing of the writ petition. It was in these circumstances that it became necessary for us to delve into the record to find out if the decision of the Appropriate Committee was justified.
13. The Registrars notes reproduced supra describe the petitioners confidential record right from 1985 as fairly good. It was in view of this record that the petitioner was selected as an Additional Principal Judge in the City Civil and Sessions Court, Greater Bombay and subsequently, on overall review of his record, was found suitable for permanent absorption in the service. He was permanently absorbed in the service by order dated November 23, 1993 and the Notification in this behalf was issued on November 30, 1993. The decision of the Administrative Committee selecting the petitioner for confirmation obviously implies that the Administrative Committee, after considering the overall suitability of the petitioner, ordered his permanent absorption in service. In Dhanjibai v. State of Gujarat , the Apex Court in para 8 observed thus :-
"The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service."
14. The Annual Confidential Report is intended to be a general assessment of work performed by a member of the service subordinate to the reporting authority. Such reports are maintained for the purpose of serving as data of a comparative merits when question of promotion, confirmation, etc. arise. In Gurdial Singh Fiji v. State of Punjab , the Apex Court in para 12 observed thus :-
"Integrity is indeed the sine qua non of merit and suitability; no person can be considered as possessing merit and suitability if he lacks in character and integrity."
In the Annual Confidential Reports the petitioners character/integrity has been described as Good throughout his service career. His quality of judgments has been graded as "Fair" or "Fairly Good". The Administrative Committee of this Court exercising delegated power of the Full Court, keeping in view the overall suitability of the petitioner, ordered his permanent absorption in service as Additional Principal Judge of the City Civil and Sessions Court on November 23, 1993. The Appropriate Committee on February 9, 1994 opined that the petitioner is not entitled to the benefit of increased age of retirement. It was in these circumstances, further necessary for respondent No. 1 to show as to how suddenly the quality of work or integrity of the petitioner had deteriorated. In the All India Judges' Association's case (supra), the Apex Court laid down, the guidelines for determining the suitability of judicial officers for grant of benefit of enhanced age of retirement. The relevant portion of para 7 of the Report reads thus :-
"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 respectively High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officers' past record of service, character rolls, quality of judgments and other relevant matters.
The 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 rules applicable to the judicial officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attaintment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it 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 undertaken for compulsory retirement and the compulsory retirement at the earlier stage/s under the respective Service Rules."
The judicial officers past record of service, character, rolls, quality of judgments and other relevant matters are determinative factors. The petitioner's case, if examined on the touchstone of this judgment, is entitled to the benefit of increase in age of retirement. The age of retirement is 58 years under the statutory rules applicable to the petitioner. The increase in the retirement age has been provided for under the judicially framed scheme by the Apex Court. The same criterion will govern the decision of the Appropriate Committee as has been applied for ordering compulsory retirement.
15. The petitioner's work, conduct and integrity were never doubted throughout his service career. The suitability of the petitioner for grant of the benefit of enhanced age of retirement has to be determined on the basis of his service record. We do not find that his service record justifies the denial of the benefit. The decision of the Appropriate Committee is not based on any material and cannot be sustained. This conclusion of ours finds support from the decision of the Supreme Court in Swami Saran v. State of U. P. . The appellant before the Apex Court was a Judicial Officer in the service of the State of Uttar Pradesh. He was compulsory retired from service on August 2, 1974. In June 1973, he was allowed to cross the second efficiency bar. The order of compulsory retirement was challenged by him in a writ petition before the Allahabad High Court. a learned single Judge of the High Court allowed the writ petition and quashed the order of compulsory retirement. On appeal by the State, the judgment of the learned single Judge was reversed by a Division Bench of the Allahabad High Court. The judgment of the Letters Patent Bench was challenged in the Apex Court and the judgment was reversed by the Apex Court. In the appeal it was contended that order of compulsory retirement could not be sustained having regard to the personal file and character roll of the appellant. The contention was disposed of observing thus :
"This contention follows inevitably from the particular circumstances, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily entire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order."
The ratio of this judgment is fully attracted to the facts of the instant case. Reliance can also be placed on Registrar, High Court, Madras v. R. Rajiah, 1988 (3) Service Law Reporter 113. In this case, two judicial officers challenged the orders of their compulsory retirement in writ petitions before the Madras High Court. The High Court found that the orders of compulsory retirement were not supported by any material. The High Court further held that no material was placed before it to show that the orders of retirement had been passed in public interest. The writ petitions were allowed by the High Court. The High Court challenged the decision rendered on its judicial side in appeal in the Apex Court. The Apex Court upheld the decision of the High Court observing thus :-
"22. It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. It there is no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court."
Reference can also be usefully made to Baikuntha Nath Das v. Chief Dist. Medical Officer, Baripada. where the Apex Court held that the order of compulsory retirement cannot be sustained if it is not based on any evidence. The appellant before the Apex Court was compulsorily retired from Government service. The Government while forming an opinion that it was not in public interest to retain him in service, also took into consideration uncommunicated adverse remarks. The order of the State Government ordering compulsory retirement was challenged in a writ petition before the High Court of Orissa. The High Court after looking into the proceedings of the Review Committee and the confidential character rolls of the petitioner, dismissed the writ petition. The judgment of the High Court was challenged in appeal. The Apex Court confirmed the judgment and laid down the following principles to be kept in view while ordering compulsory retirement :
"(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 appellant 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 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 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."
The principle laid down in this case was reiterated in Union of India v. V. P. Seth AIR 1994 Supreme Court 12.
16. In fairness to Mr. Sawant, his submission needs to be noted. He submitted that it is purely dependent upon the subjective satisfaction of the Appropriate Committee whether to grant the benefit of increased age of retirement to a particular officer. We do not want to express any opinion on the aspect of the argument. We have, on examination of the record, found that the Appropriate Committee was not justified in denying the benefit of the increased age of retirement to the petitioner. He also relied upon the decision in G. Nageswara Rao v. State 1994, LIC 870 in support of his submission that no judicial officer has got a right to hold the post beyond the age of 58 years. In this case it is to be observed that the petitioners in those writ petitions were denied the benefit of the enhanced age of retirement by the High Court keeping in view the guidelines laid down by the Apex Court in the All India Judges' Association's case. The High Court after making assessment of the service record of the petitioners, found that they were not entitled to the benefit. In the case of one judicial officer, the High Court considered the material on record that he was overlooked for promotion as District and Sessions Judge Grade II on two occasions. In the other case, the High Court found that the decision of the Committee is based on material on record. In para 20 of the Report, the High Court observed thus :-
"Even on merits, it cannot be said that the decision of the committee of the High Court is based on no material to come to the said conclusion."
These observations clearly indicate that the High Court sustained the decision of the Appropriate Committee as it was found that the decisions were based on materials on record and the materials were found to be relevant. The ratio of this judgment has no application to the facts of the instant case.
17. The other question which arises is : To what relief the petitioner is entitled to? Should the case be sent back to the Appropriate Committee for reconsideration in the light of the observations made in the body of this judgment? The ratio of the judgment in the All India Judges' Association's case (supra) has to be understood in its correct perspective. The Apex Court wanted that the benefit of increase in the age of retirement should be given to the officers who have got an outstanding record of service. In the instant case, on the material on record, we have found that the petitioner has been wrongly denied the benefit. The service record justifies the grant of the benefit to the petitioner. Having so held, it will amount to denial of justice to the petitioner if we do not direct that he should be granted the benefit. Non-exercise of our jurisdiction will lead to denial of justice. This conclusion finds support from Swami Saran's and R. Rajiah' cases (supra).
18. For the reasons stated above, the writ petition succeeds. The Order No. P-1611-197 of 1994 dated July 1, 1994 declining benefit of increase of the retirement age to 60 years to the petitioner is quashed. He will be deemed to be in service till he retires on attaining the age of 60 years. Rule in the above terms is made absolute. Necessary writ to issue forthwith.
19. Oral prayer of Mr. Sawant to suspend operation of the judgment is declined.