Andhra HC (Pre-Telangana)
M. Vijaya Bhaskara Reddy vs The Hon'Ble High Court Of A.P. Rep. By Its ... on 11 October, 2007
Equivalent citations: 2008(2)ALD70, 2007(6)ALT518
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER Goda Raghuram, J.
1. Heard Sri M. Surender Rao, the learned Counsel for the petitioner, Sri P.V. Sanjay Kumar, the learned Standing Counsel for the 1st respondent and the learned Government Pleader for Home for the 2nd respondent.
2. By the impugned G.O.Ms. No. 121 Law (LA&J SC.F) Department, dated 22.8.2006, the 2nd respondent, on the recommendation of the 1st respondent notified the petitioner's retirement from service on 30.6.2006 on his attaining the age of 58 years. The 1st respondent issued a consequent order dated 22.8.2006 directing the petitioner to hand over charge of the post and to retire forthwith.
3. Facts in brief:
The petitioner entered the judicial service of the State in 1976 as District Munsif/Junior Civil Judge. He was promoted as a Senior Civil Judge in 1986 and appointed as a District & Sessions Judge Grade-II in 1992. He was further appointed as District & Sessions Judge Grade-I in 2000. On the recommendations of the 1st respondent the petitioner was also appointed to the super time scale in the category of District & Sessions Judge w.e.f.26-05-2005, by an order of the 2nd respondent dated 29.5.2006.
4. Perhaps learning of the decision/resolution of the Administrative Committee of the Honourable Judges of the 1st respondent ('the Administrative Committee'), the petitioner submitted representations dated 15.7.2006, 7.8.2006 and 8.8.2006 for reconsideration of his case for continuance in service till the age of 60 years. He also made representations on 1.9.2006 and 7.9.2006. The later representations were made after the impugned order. The 1st respondent by an order dated 17.10.2006 rejected the petitioner's representation for review of the decision of the Administrative Committee, dated 30.6.2006.
5. Regarding the review by the 1st respondent, of the petitioner's record of service for ascertaining his continued utility to serve till he attains the age of 60 years, the relevant facts as apparent from the 1st respondent counter and the record, are as under:
A) The Administrative Committee at a meeting held on 19.4.2006 considered the petitioner's service record and other material and resolved to defer consideration of the issue. The Committee met again on 20.6.2006 and resolved to defer the mater while directing the Registrar (Vigilance) of the 1st respondent to put up the relevant legal position which regulates and has bearing on compulsory retirement of judicial officers otherwise than by way of punishment, for its consideration.
B) The Administrative Committee again met on 30.6.2006 and resolved that the petitioner is not fit to be continued in service up to the age of 60 years; that he be compulsorily retired from service on completion of 58 years, in terms of the First proviso to Section 3(1)(A) of the AP Public Employment (Regulation of Age of Superannuation) Act 1984 ('the Act'), and be paid three months salary in lieu of notice.
C) On the recommendation of the 1st respondent, the impugned order was issued by the 2nd respondent, retiring the petitioner w.e.f. 30.6.2006. The Administrative Committee at a meeting held on 29.11.2005 had resolved to take up review (of the records of judicial officers for considering utility for continuance in service), two months before an officer is due to complete the age of 58 years and further resolved to call for fresh annual confidential reports of the officers concerned. In the light of this resolution the case of the petitioner was taken up, in the first instance by the meeting of the Administrative Committee held on 19.4.2006. The eventual decision of the Administrative Committee was also circulated to all the Hon'ble Judges of the High Court.
6. It is apparent from the record and the counter affidavit, that the Administrative Committee at the meeting on 30.06.2006 had considered the service record of the petitioner and resolved as under:
The Committee considered the service profile of the Officer (ACR and other records), the rate of disposal, quality of judgments and orders, integrity, complaints received from time to time and the action taken.
The Committee noted that in the year 2002, one of the Honourable Judges has adversely commented on his conduct. In the year 2004, two Honourable Judges adversely commented on his conduct.
7. While deciding Civil Revision Petition No. 4398 of 2002, arising of IA SR No. 2701 of 2002 on the file of the I Additional Judge, City Civil Court, Secunderabad, this Court noted that the officer, Sri M. Vijaya Bhaskara Reddy, had tried to overreach the direction given by the High Court and observed that letter dated 11.02.2003 sent by the officer soliciting direction from the High Court warranted initiation of the proceedings under the Contempt of Courts Act, 1971. Thereafter, notice was issued to the office to explain his position. In the final order recorded on 18.07.2003, the court observed as under:
The whole attitude of the Officer leaves an impression in my mind that it is one of the insubordination and one up-manship. Such an attitude in my view would undermine the authority of the hierarchy of the judicial system. In view of the fact that the Officer involved is a very senior Officer of the State Higher Judicial Service, I do not propose to proceed with the matter under the Contempt of Courts Act, but the whole episode deserves examination of the High Court in exercise of its authority under Article 235 of the Constitution of India.
8. On an overall consideration of the record of the Officer, the Committee is convinced that he is not fit to be continued in service up to the age of 60 years.
9. It was further resolved that Sri M.Vijaya Bhaskara Reddy be compulsorily retired from service on completion of 58 years in terms of first proviso to Section 3(1A) of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act 1984. He shall be paid three months pay in lieu of notice.
10. The Challenge:
The petitioner assails the decision and recommendation of the 1st respondent and the consequent (impugned) order of the 2nd respondent in G.O.Ms. No. 121, on several grounds:
(A) According to the petitioner the normal age of retirement of a Judicial Officer is 60 years. But in view of the decision of the Supreme Court in All India Judges' Association and Ors. v. Union of India and Ors. r/w the provisions of Section 3(1)(A) of the Act, the exercise (for review of the record of a judicial officer for considering his continued utility in service) should be undertaken well before the officer attains the age of 58 years. Even as per the original date of birth as recorded in the Service Register (15.06.1948), the petitioner would complete 58 years by 14.06.2006. As the resolution of the 1st respondent is itself dated 30.06.2006, the exercise must be considered as having been undertaken after the petitioner attained the age of 58 years, in contravention of the judgment of the Supreme Court and of Section 3(1)(A) of the Act. The impugned order is therefore illegal.
(B) Though the petitioner's original date of birth as per the entry in Service register is 15.06.1948, in view of the judgment of this Court in W.P. No. 36155 of 1998 dated 3.12.2001 and 15.3.2002, it is 15.08.1949. The 1st respondent had filed Civil Appeal No. 4993 of 2002 before the Supreme Court against the judgment and the Supreme Court has granted on 13-08-2002 an ex parte stay of the operation of the order of the High Court. However, since the Supreme Court has merely stayed but not set aside the order of the High Court, the petitioner's date of birth must be reckoned as 15.08.1949 and he would accordingly attain the age of 58 years by 14.08.2007. The impugned order is therefore invalid as it directs his compulsory retirement even before attainment of the age of 58 years.
In any event since the exercise of assessment and evaluation must be undertaken "well within time", it should have been undertaken at least a year or six months earlier to the petitioner attaining the age of 58 years.
(C) The second proviso to Section 3(1)(A) of the Act enables a judicial officer to exercise an option to retire from service after attaining the age of 58 years, by exercising such option in writing before he attains the age of 57 years. In the light of this provision it must be construed that even to compulsorily retire a judicial officer under Section 3(1)(A), the exercise must be concluded at least an year in advance of the date by which the officer is to be retired on attaining the age of 58 years.
(D) The Administrative Committee at the meeting held on 29.4.2006 had resolved to grant Super Time Scale in the category of District & Sessions Judge to the petitioner on the basis of merit-cum-seniority, just about two months prior to its resolution recommending his compulsory retirement. Super Time Scale was granted on evaluation of his record of service. Consequently the 2nd respondent in G.O.Ms. No. 84 Law (LA & J SCF) Department dated 29.5.2006 appointed the petitioner to the Super Time Scale of District & Sessions Judge. The exercise of power under Section 3(1)(A) is therefore unsustainable.
(E) The petitioner's record of service that was considered by the Administrative Committee (obtained by the petitioner from the 1st respondent pursuant to his representations dt 15.7.2006 and 1.9.2006) also discloses appreciation of his work, conduct and performance. Further pseudonymous or other complaints against him were "lodged/filed" without any action as there was no merit in such complaints. Though the Administrative Committee's resolution dated 30.06.2006 records that there were adverse comments in the year 2002 by an Hon'ble Judge, no adverse comments are seen from the record considered by the Administrative Committee, which has been furnished to the petitioner. Even in the year 2004 there is no comment against the petitioner's conduct which could be considered adverse. With respect to comments against the petitioner in CRP No. 4398 of 2002, the Administrative Committee considered the same at the meeting held on 11.9.2003 and resolved to caution the petitioner to be careful. Consequent proceedings were issued on 15.9.2003. The administering of a caution cannot be considered as an adverse aspect, particularly as these were already on record and were considered while approving grant of Super Time Scale. In any event, any aspect even if considered adverse that was on record prior to the decision to grant him Super Time Scale must be considered as having been effaced and the sting of such adverse aspect can no longer operate.
(F) In 2004 Sri Bilal Nazki,J had commented - 'no judgment is made available, conduct not satisfactory.' This solitary remark cannot be held against the petitioner as there was no basis for the comment of Sri Bilal Nazki. J - 'not satisfactory'.
(G) The total record of service of the petitioner including his judicial performance quantitatively and qualitatively does not compare unfavourably with several other Officers who were continued up to the age of 60 years. The 1st respondent asked for the willingness of the petitioner for appointment to the AP State Administrative Tribunal, the Special Court under Land Grabbing (Prohibition) Act, the Central Administrative Tribunal, and the Debts Recovery Tribunal. Retirement for these posts is 62 years. The petitioner's willingness for appointment to such posts would not have been sought if the 1st respondent was not satisfied as to the continued utility in Judicial Service of the petitioner.
(H) Sri J. Chelameswar, J. who recorded an adverse entry against the petitioner in 2004 was a member of the Administrative Committee which passed the resolution dated 30.06.2006. The resolution of the Administrative Committee is therefore vitiated in view of the decision in Kashi Ram Ahirwar v. State of U.P. 2001 All. L.J. 1655.
11. The pleadings in response and rejoinder:
The 1st respondent has filed a counter affidavit. After setting out the chronology of events pertaining to the assessment and review of the service record of the petitioner in the context of Section 3(1)(A) of the Act leading to the resolution of the Administrative Committee at the meeting held on 30.06.2006 and the consequent issue of the impugned order by the 2nd respondent in G.O.Ms. No. 121, the 1st respondent pleads that the High Court had considered the issue of continued utility of the petitioner's service in the context of provisions of Section 3(1)(A) of the Act and upon an over all review and assessment of the entire record of his service, decided to retire him as he was not of continued utility for service up to the age of 60 years. The claim of the petitioner that the normal age of retirement of a judicial officer is 60 years and that an officer is entitled to continue up to that age, is categorically denied. The 1st respondent contends that the entitlement to continue up to the age of 60 years is subject to evaluation as to the continued utility of an officer to continue beyond the age of 58 years. According to the 1st respondent a judicial officer does not acquire a right to continue in service up to the extended age of 60 years. It is only a benefit conferred subject to an evaluation as to his continued utility to the judicial system. The 1st respondent has also pleaded that in the light of the resolution of the Administrative Committee at a meeting held on 29.11.2005 (to take up review in each case two months before the officer is due to complete the age of 58 years), the case of the petitioner was taken up for consideration by the Administrative Committee in the first instance on 19.4.2006 and a decision was eventually taken on 30.06.2006 to retire the petitioner from service upon his attaining the age of 58 years.
12. Responding to the petitioner's contention that since he was not ordered to retire on the date he attained the age of 58 years, he is entitled to continue up to 60 years, the 1st respondent asserts that such an interpretation of Section 3(1)(A) would defeat the very purposes for which the statutory provision has been incorporated pursuant to the judgment of the Supreme Court. Responding to the petitioner's claim as to his overall performance in the course of his career and his assertion as to having a record of service comparable to others who have been continued up to the age of 60 years, the 1st respondent states that a reassessment as an appellate scrutiny is not warranted under Article 226 of the Constitution and the petitioner cannot be permitted to agitate or seek reappreciation of the factual aspects which contributed the assessment and the decision of the High Court. Responding to the petitioner's plea as to the grant of super time scale on 29.5.2006, the 1st respondent states that the grant of super time scale and the assessment and review of the record of the petitioner for continuance beyond 58 years under the provisions of Section 3(1)(A) are distinct aspects and have no nexus.
13. As regards the petitioner's claim that the High Court calling upon him to express his willingness for appointment to other posts in judicial service constitutes an affirmation of his merit and suitability to continue in judicial service up to the age of 60 years, the 1st respondent denies such claim contending that willingness of senior members of subordinate judiciary is called for in a routine manner and the forwarding of any such communication does not constitute a certification of the merit of the addressee, justifying his continuance in service beyond 58 years.
14. In the rejoinder filed on 17.02.2007 the petitioner rebuts the assertions in the counter affidavit and reiterates those already pleaded in the writ petition.
15. The petitioner has also filed a memorandum of written submissions dated 10.09.2007. This is a compendium and reiteration of the pleadings and contentions advanced on behalf of the petitioner.
16. In view of the rival pleadings and contentions, the following are the core issues that fall for consideration:
(a) Whether the impugned order (in G.O.Ms. No. 121) directing the petitioner's compulsory retirement from service w.e.f.30-06-2006 is in violation of the provisions of Section 3(1)(A) of the Act since the petitioner had completed 58 years of age by 14-06-2006 (according to the initial entry regarding his date of birth in the Service Register). As part of this issue, will also fall for consideration the aspect whether the petitioner's date of birth ought to be reckoned as 15-08-1949 (in view of the judgment of Division Bench of this Court in W.P. No. 36155 of 1998, dated.03-12-2001 and 15-03-2002, notwithstanding the order of stay dated.13-08-2002 granted by the Supreme Court in Civil Appeal No. 4993 of 2002). Also integral to this issue is whether in view of the statutory requirement that the review and assessment of the service record of an Officer should be undertaken well in time for assessing his continued utility to serve up to 60 years, the Administrative Committee violated the statutory prescription in resolving that the petitioner is unfit to be continued in service, only on 30-06-2006 and whether as a consequence the petitioner is entitled to continue till he attains the age of 60 years. As part of this issue will also be considered whether in view of the second proviso to Section 3(1)(A) of the Act, the review must be undertaken an year or atleast six(6) months in advance of an Officer completing the age of 58 years;
(b) Whether in view of the grant of Super Time Scale to the petitioner (consequent on the resolution of the Administrative Committee dated.30-08-2005 and the consequent order of the 2nd respondent dated.29-05-2006 qua G.O.Ms. No. 84 Law Department), the decision by the 1st and 2nd respondents that the petitioner is not of continued utility to serve up to the age of 60 years, is irrational and inoperative. Integral to this issue is whether the grant of Super Time Scale wholly obliterates the adverse aspects of the petitioner's service as on record prior to the date of the decision to grant him the Super Time Scale;
(c) Whether the resolution/decision of the Administrative Committee is unsustainable. This issue has several facets viz whether there were no adverse comments by an Hon'ble Judge as regards the petitioner in the year 2002; whether the comments recorded in the ACRs of the petitioner for the year 2004 do not constitute adverse remarks; whether the administrating of a caution to the petitioner by the proceedings dated 15-09-2003 is not an adverse comment on his record of service; and whether the participation of Chelameswar, J in the Administrative Committee meeting on 30-06-2006 invalidates the decision as this Hon'ble Judge had recorded an adverse comment against the petitioner's record of service in the ACR for the year 2004; and
(d) Whether within the available spectrum of scrutiny and judicial review the satisfaction of the 1st respondent, his recommendation and the impugned order of the 2nd respondent is liable to be interfered with including on the basis of the petitioner's allegation that other officers with a record of service similar or inferior to the petitioner were continued up to the age of 60 years.
Analysis:
Issues (a) and (b):
The relevant statutory position:
Section 3(1) of the Act mandates that every Government employee not being a workman or belonging to the Last Grade Service, shall retire on the AN of the last day of the month in which he attains the age of 58 years. Sub-section (A) of Section 3(1) of the Act reads:
Section 3(1)(A): Notwithstanding anything contained in Sub-section (1) every member of the A.P. State Higher Judicial Service or the A.P State Judicial Service shall retire from service on the Afternoon of the last day of the month in which he attains the age of 60 years.
Provided that any such member of the A.P State Higher Judicial Services or the A.P State Judicial Services may be compulsorily retired from service on the Afternoon of the last day of the month in which he attains the age of 58 years, if he is not found fit and eligible to be continued in service by the High Court of A.P. on the assessment and evaluation of the record of such member for his continued utility well within time before he attains the age of 58 years by following the procedure for compulsory retirement under the Rules applicable to him.
Provided further that any such member of the A.P State Higher Judicial Service or A.P State Judicial Service at his option to be exercised in writing before he attains the age of 57 years may retire from service on the Afternoon of the last day of the month in which he attains the age of 58 years.
17. For a proper appreciation of the purport of the provisions of Section 3(1)(A) of the Act it is necessary to consider its evolutionary history. In All India Judges' Association and Ors. v. Union of India and Ors. the Supreme Court had issued a raft of directives respecting the service conditions of members of the subordinate Judiciary through out the country. Consequent on the analysis in Paras 16 to 25 (of the SCC report), Para-63 the judgment summarized the directions contained therein. One of the directions is that the retirement age of judicial officers be raised to 60 years and appropriate steps in that behalf be taken by 31.12.1992.
18. The Supreme Court revisited this issue in a review application filed by the Union of India and some of the States. This decision in All India Judges Association 1993 (4) SCC 288 considered the aspect regarding age of superannuation of members of the subordinate judiciary at Paras 25 to 34. While rejecting the plea for review of the directions set out in the main judgment 1992 (1) SCC 119 regarding the age of superannuation, the Supreme Court issued further directions, to an extent modifying the directions in the main judgment in so far as the age of superannuation is concerned. It is relevant to extract to the extent modified directions are issued:
(30) There is, however, one aspect we should emphasise here. To that extent the direction contained in the main judgment under review shall stand modified. 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 respective High courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officer's past record of service, character rolls, quality of judgments and other relevant matters.
(31) 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. 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 attainment 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, (32) The enhancement of the superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 58 years does introduce a change in the service condition of the existing personnel. There may be judicial officers who are not desirous of availing of the benefit of the enhanced superannuation age with the condition of compulsory retirement and may like to opt for retirement at the age of 58 years. In such cases, the concerned officers should intimate in writing their desire to retire at the age of 58 years well in advance and in any case before they attain the age of 57 years. Those who do not do so will be deemed to have exercised their option to continue in service till they attain 60 years of age subject to the liability of being retired compulsorily at the age of 58 years according to the procedure for compulsory retirement laid down in the Service Rules.
(33) Those who have already crossed the age of 57 years and those who will cross the age of 58 years soon after the date of this decision, will exercise their option within one month from the date of this decision. If they do not do so, they will be deemed to have opted for continuing in service till the age of 60 years. In that case, they will also be subjected to the review for compulsory retirement, if any, notwithstanding the fact that there was not enough time to undertake such review before they attained the age of 58 years. However in their case, the review should be undertaken within two months from the date of the expiry of the period given to them above for exercising their option and if found unfit, they should be retired compulsorily according to the procedure for compulsory retirement under the Rules.
(34) Since those who have already crossed the age of 58 years have had no benefit of exercising their option to retire earlier and the point of time at which their assessment could be undertaken for compulsory retirement, if any, has also passed, it is not considered proper to subject them to the review for compulsory retirement at this stage. They may, therefore, be given the benefit of the enhanced superannuation age of 60 years without subjecting them for such review.
19. Section 3(1)(A) has been incorporated by the State into the provisions of the Act pursuant to the direction in the above judgment of the Supreme Court. On a true and fair construction of the provisions of Section 3(1)(A) considered in its entirety, it is apparent that while the age of superannuation of the judicial officers belonging to the AP State Higher Judicial Service or AP State Judicial Service has been fixed at 60 years, the entitlement to continue to that age (after attainment of the age of 58 years) is conditional upon being assessed fit and eligible for such continuance. There is no unconditional right vouchsafed to continue in service up to the age of 60 years. Such interpretation of the provisions of Section 3(1)(A) is compelling and in the light of the observations in Para-30 of the All India Judges' Association (the review judgment) 1993 (4) SCC 288. The Supreme Court has clearly mandated that the benefit of the increase to 60 years is not available automatically to all judicial officers irrespective of their past record of service and fitness or their continued utility to the judicial system. The Apex Court held that the benefit would be available only to those officers, who in the opinion of the respective High Courts have a potential for continued useful service and that this is not intended to be a bounty for the indolent, infirm and those of doubtful integrity, reputation and utility. It was also directed that the potential for continued utility should be assessed and evaluated by appropriate committees of Judges of the respective High Courts constituted and headed by the Chief Justice of the High Court and that 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.
20. It is apparent that the provisions of Section 3(1)(A) read in the context of their evolutionary history and in particular the judgment of the Supreme Court referred to supra are a legislative measure evolved for ushering in a qualitative improvement in the functioning of the subordinate judiciary, through incorporating incentives and disincentives for achieving qualitative and efficient delivery of Justice. The assessment and evaluation by the appropriate committee must identify (as directed by the Supreme Court) officers who are indolent, infirm, of doubtful integrity, reputation and utility and those whose past record of service, character roll, quality of judgments and other relevant aspects of the judicial persona are not such as to justify an assessment as to their continued utility. On such identification, those not cleared in the assessment of the appropriate committee are not to be given the windfall of continuance up to 60 years.
21. The charter enjoined upon the appropriate committee of Judges of the High Court headed by the Chief Justice concerned, is a critical function. Continuation beyond 58 years of age is not a routine entitlement, the Supreme Court judgment emphasizes. The review decision 1993 (4) SCC 288 at Para-31 directed that the exercise must be undertaken well before attainment of the age of 58 years and for finding out the suitability of the concerned officer for entitlement to the benefit of the increased age of superannuation, from 58 to 60 years.
22. In Rajat Baran Roy v. State of West Bengal 1999 (4) SLR 1 a peculiar fact situation came to be considered by Supreme Court in the context of an order of compulsory retirement of an officer of the rank of a District Judge of West Bengal. The appellant (the officer concerned) was compulsorily retired by an order dated 23.10.1998 w.e.f. 31.10.1998, the date by which he attained the age of 58 years. This retirement, not on disciplinary grounds was on the recommendations of the High Court. In West Bengal on account of the order of the Government dated 20.06.1992 members of the West Bengal Higher Judicial Service were treated on par with the members of the Indian Administrative Service in all matters. Pursuant to the recommendations by the 5th Central Pay Commission and consequent on an order of the Government of India in office memorandum dated 13.05.1998, the age of retirement was increased from 58 years to 60 years. The State Government by a separate order dated 15.5.1998 amended the State Rules providing for retirement of Government employees belonging to Group-A, Group-B and Group-C w.e.f the A.N. of the last day of the month in which they attain the age of 60 years, with immediate effect. As a consequence the retirement age of the members of IAS was extended up to 60 years and thus of the members of the West Bengal Judicial Service as well. Rule 75(a)(a) of the West Bengal Service Rules, Part-I enables the State to retire a Government servant in public interest. The appellant before the Supreme Court however was not compulsorily retired invoking this Rule. From the counter affidavit it was apparent that the retirement was effected in terms of the judgment of the Supreme Court in the All India Judges case 1993 (4) SCC 288. In Rajat Baran Roy 1999 (4) SLR 1 Supreme Court held that the directions issued in the All India Judges case 1993 (4) SCC 288 were intended to be a mere aid and incidental to and supplemental of the main directions and were intended to be a transitional measure till a comprehensive national policy is evolved [quoting the All India Judges case ] and that the directions of the Supreme Court would cease to operate when an appropriate rule enhancing the retirement age of the judicial officers to 60 years is made. Since the State of West Bengal had enhanced the age of superannuation to 60 years and neither the office memorandum nor the Government order had fixed any pre- retirement assessment at the age of 58 years, it was not open to the High Court to have recommended compulsory retirement, following the directions of the Supreme Court which had ceased to exist, held the Supreme Court.
23. In Ramesh Chandra Acharya v. Registrar, High Court of Orissa and Anr. a Civil Judge of the Orissa Subordinate Judicial Service was retired in the year 2000 on attaining the age of 58 years. In a writ petition instituted under Article 32 the officer contended that Rule 71(a-1) of the Orissa Service Code was contrary to the decision of the Supreme Court in the All India Judges cases (3 & 1 supra) and that he was entitled to continue in service till he attains the age of 60 years. Rule 71(a-1) is, for all relevant purposes substantially similar to Section 3(1)(A) of the Act. The Supreme Court repelled the petitioner's contention that the Orissa Rules are not in conformity with the decision in the All India Judges cases (3&1 supra) relied upon. Interpreting the Rule the Supreme Court held (Para-10) that the Rule does not straight away extend the age of superannuation at the age of 58 years but only enables the High Court to retain in service a judicial officer belonging to State Judicial service up to the age of 60 years, if it is of the opinion that such Judicial Officer has the potential to continue in useful service (emphasis is ours). The Supreme Court also rejected claim of the petitioner projected on the basis of the judgment in Rajat Baran Roy 1999 (4) SLR 1. The Supreme Court held that in Rajat Baran Roy there was no specific provision in the rule considered, for review at the age of 58 years and the memorandum of the West Bengal Government dated 15.5.1998(had unconditionally) extended the age of superannuation to 60 years.
24. The decision in Ramesh Chandra Acharya 2000 (6) SCC 332 is a valuable and binding guide for elucidating the purport of the provisions of Section 3(1)(A) which in all relevant aspects are substantially similar to the provisions of Rule 71(a-1) of the Orissa Rules. The conclusion is therefore compelling that qua the provisions of Section 3(1)(A) read in the context of the evolutionary history of the provision, a member of the State Judicial Service has no right to continue up to the age of 60 years automatically. The entitlement to retire on attaining the age of 60 years is conditional upon an assessment by the High Court of an officer's continued utility.
25. In Bishwanath Prasad Singh v. State of Bihar and Ors. (2001) 2 SCC 305 the petitioner sought a mandamus directing the State of Bihar to frame rules for enhancement of the age of superannuation of the Judicial Officers in the State as per the directions in the All India Judges case . By letter dated 17.5.2000 the parent High Court had informed the petitioner that having assessed and evaluated his service in the light of the decision in the All India Judges case it has been decided not to allow him to retire at the age of 60 years and that he would cease to be a member of the Judicial Service of the State on completion of the age of 58 years. The petitioner contended that in view of the decision of the Supreme Court the retirement age of judicial officers stood increased to 60 years and he could not have been made to retire at 58 years except by following the procedure applicable to compulsory retirement. He also contended that an order of retirement could be passed only by the Governor and he could not be retired by the High Court acting on its own, besides contending that there was no material justifying the decision of the High Court. In para-14 of this judgment the Supreme Court analysed the decision in the All India Judges case and observed that on evaluation by the High Court three conclusions with respective consequences are possible: (A) the High Court may find the officer to have the potential of rendering continued useful service and would give an extension in age of superannuation; (B) the High Court may find the officer not so entitled, a burden on the public exchequer as also intolerable even to be retained up to the age of 58 years, in which event it may undertake the further exercise by following the procedure prescribed in the statutory rules governing compulsory retirement and in such event and on an opinion bona fide arrived at, may compulsorily retire him forth with, before or after crossing the age of 58; and (C) the High Court may form an opinion that the officer does not have utility for continued service so as to be retained beyond 58 years but at the same that he is not such a deadwood as cannot be tolerated even up to the normal age of superannuation i.e., 58 years; in such an event the High Court may simply observe silence and allow the officer concerned to retire at the normal age of superannuation (i.e., 58 years). In para-16 the Apex Court observed that the word "compulsory retirement" is not an appropriate expression for the cases covered by Category-C, since the non extension of service beyond 58 years is not either premature or compulsory retirement in the sense the expression is known in service jurisprudence. In para-18, summing up the relevant principles the Supreme Court clearly held that the decision in the All India Judges case 1993 (4) SCC 288 does not result in automatic enhancement of the age of superannuation nor does the judicial officer acquire a right to continue in service up to the extended age of 60 years. It is only a benefit conferred subject to an evaluation as to the continued utility of an officer to the judicial system. Judicial officers would otherwise retire at the superannuation age (58 years). The challenge of the petitioner on merits was also repelled by the Supreme Court. At para-20 of the judgment the Supreme Court considered that the standing committee of the High Court had resolved on 28/29-6-1996 to grant first and second level promotions to officers of the rank of Munsifs and Sub Judges according to seniority including to those who had been retired compulsorily but without any right to the so benefited officer to make any further claim on this account. The Supreme Court accepted the defence that this resolution was by way of compassion to give some monetary benefit to certain judicial officers, nor were the promotions based on merit which would have the effect of washing away the unsatisfactory records, anterior to the date (of promotions).
26. This decision offers a clear guidance to the proper interpretation of the provisions of Section 3(1)(A) of the Act. This provision read as a whole does not signal an automatic and unconditional extension of the age of superannuation to 60 years nor does it confer any right on the judicial officer to continue up to the age of 60 years. Continuance beyond 58 years is conditional upon a formal recommendation followed by a formal order of the Government assessing the officer's suitability for continued judicial service, beyond 58 years. In Nawal Singh v. State of U.P. certain judicial officers of the State of U.P. were compulsorily retired at 58 years. They contended that in view of the increase in the retirement age from 58 years to 60 years, Rule 56 of the U.P. Fundamental Rules ('UPFR') stood repealed and there was no power to compulsorily retire them at the age of 58 years. The U.P. Judicial Officers (Retirement on Superannuation) Rules, 1992 were notified on 20.10.1992 and Gazetted on 3.4.1993. Rule 4 of these Rules provided that a judicial officer shall retire from service on superannuation on the last day of the month in which he attains the age of 60 years. Rule 2 is to the effect that the provisions of these Rules shall have effect notwithstanding anything contrary contained in Rule 56 of the UPFR or any other Rules made by the Governor under the proviso to Article 309 of the Constitution or orders for the time being in force. Rule 56(a) of the UPFR, to the extent relevant and material, provides for retirement of every Government servant on the last day of the month in which he attains the age of 58 years. Rule 56(b) enables the appointing authority to retire a Government servant after he attains the age of 50 years, in public interest and by taking into consideration the specified material relevant to the Government servant in question. The Supreme Court repelled the contention of the petitioner that the enabling power to compulsorily retire in public interest available under FR 56(c) was over borne and eclipsed by the 1992 Rules. The Apex Court held that the power to compulsorily retire under FR 56(c) was not overborne by the non obstante clause in Rule 2 of the 1992 Rules and that the non obstante provision only targeted the age of retirement at 58 years substituting it by 60 years in case of judicial officers while not disturbing the power under FR 56(c) to administer compulsory retirement in public interest. This decision illustrates a holistic and purposive approach to construction as was applied to the UPFR and the 1992 Rules relating to the superannuation of judicial officers. Though the non obstante provision in the 1992 Rules was facially broad, it was given a narrow construct on a holistic consideration of the two sets of Rules and in the context of the judgment in the All India Judges case .
27. In S.D. Singh v. Jharkhand High Court through R.G. and Ors. in an Article-32 application, the petitioner assailed an order dated 14.5.2003 intimating that the High Court has assessed and evaluated the petitioner's service and had decided not to allow the petitioner the benefit of enhancement of the retirement age from 58 to 60 years and that he would retire on the completion of 58 years on superannuation, on 13.12.2003. The petitioner contended that the All India Judges case had no application and that the grounds for not extending his services (as disclosed in the counter affidavit filed in answer to the writ petition) were unsustainable in fact and law. The Supreme Court held that no rules were framed for changing the age of retirement as prescribed by the Supreme Court in the All India Judges case and therefore the scheme in that decision would apply. Consequently the Apex Court held, the High Court was required to consider the petitioner's case to take a decision whether to continue him in service on the basis of his record of service. The Supreme Court found that an evaluation committee set up by the High Court had considered his service record and recommended that he and two other could not be continued in service beyond the age of 58 years. This recommendation was also approved by the Full Court and consequently the impugned letter was addressed. After noticing that no mala fides were alleged by the petitioner, the Supreme Court found that the Evaluation Committee of the High Court had taken into consideration the petitioner's ACRs, many of which disclosed that he was an average officer, particularly in respect of the years immediately preceding his attaining the age of 58years. There was also a vigilance proceedings initiated against him on the basis of several allegations made including a report by the inspecting Judge who had made an inspection and had reported that the petitioners did not have a good reputation. The allegation by the inspecting Judge was however considered in the Standing Committee meeting and ultimately dropped. Thereafter the evaluation committee assessed the petitioner's record of service and had made the impugned recommendations. Dealing with the petitioner's reliance on an order of promotion superseding others, the Supreme Court held that this fact merely shows that he was better than the others superseded but not that he was fit to continue in service.
28. Summing up the scope of judicial review in such cases, the Apex Court relied on its decision in Syed T.A. Naqshbandi v. State of J&K . The quoted observation merits extraction:
Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same as if sitting on an appeal. On a careful consideration of the entire materials brought to our notice by learned Counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinion is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinion, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court to judicial review except in an extraordinary case when the court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.
29. By AP Act 12 of 2006 (which received the assent of the Governor on 16.10.2006 and published in the Gazette on 19.10.2006, and was enjoined to come into force w.e.f. 15.01.2005) amendments were made to the provisions of the Act whereby a member of the AP State Higher Judicial Service or the AP State Judicial Service may be compulsorily retired on the AN of the last date of the month in which he attains the age of 50 years, or 55 years, or 58 years, or has 33 years of qualifying service, if he is not found fit to be continued in service by the High Court on assessment and evaluation of his record of service well within time, before he attains the age of 58 years. Another proviso was introduced by this Amendment Act whereby any member of the service, after giving three months notice in writing or three months of pay and allowances in lieu of notice, may be required to retire in public interest from public service on the date on which such member attains the age of 50 years or 55 years or 58 years or 33 years of qualifying service or any date thereafter to be specified in the notice.
30. We have analysed hereinbefore the several judgments relied upon by the petitioner with regard to retirement on superannuation of a member of the subordinate judiciary at the age of 60 years, including judgments rendered after the judgment in the All India Judges case 1993 (4) SCC 288. In our considered view, by text and context and considered as well in the light of the various pronouncements of the Apex Court referred to above, Section 3(1)(A) of the Act does not postulate an automatic or unconditional right in a member of the subordinate judiciary in the State to continue in service up to the age of 60 years. The right to continue in service beyond 58 years (prior to the AP Act 12 of 2006) is conditional upon an evaluation and assessment by the High Court and its satisfaction that such member is of continued utility for extension of service up to attaining of the age of 60 years. As pointed out in Bishwanath Prasad Singh (2001) 2 SCC 305 retirement at the age of 58 years and non-grant of extension up to 60 years on an assessment by the High Court is neither penal, stigmatic nor does it strictu sensu amount to compulsory or premature retirement as traditionally understood in service jurisprudence. Pursuant to evaluation undertaken under Section 3(1)(A) and the formation of the requisite and bona fide opinion, where an officer is found not of continued utility then the inchoate expectation of a judicial officer for continuance in service up to the age of 60 years does not ripen into a right or even a legitimate expectation. In the considered view of this Court, the provisions of Section 3(1)(A) of the Act read in the light of the evolutionary history of the provisions and the precedential guidance available, do not unconditionally or routinely extend the age of superannuation of members of the subordinate judiciary up to the age of 60 years. Beyond the age of 58 years, the entitlement to continue up to 60 years is conditional upon an assessment made (well in time before the attainment of age of 58 years), of an officer's continued utility to the judicial system. Upon these fundamental premises must be considered the provisions of Section 3(1)(A). Interpretation of this provision is not an exclusive lexicographic exercise. The social and institutional reform dimensions of the provision cannot be eschewed (consistent of course with the legislative phraseology) in identifying the meaning of the provision.
31. Section 3(1)(A) enjoins retirement from service on the last day of the month on which an officer attains the age of 60 years if the High Court on an evaluation and assessment, well within time of an officer attaining the age of 58 years finds him of continued utility for continuance up to the age of 60 years. Both the main provision and the first proviso to Section 3(1)(A) spell out the entitlement of an Officer to continue in service up to the last date of month in which an officer attains the age of 58 or 60 years, as the case may be. The last day of the relevant month is the effective date on which an officer is reckoned to have attained the age of 58 or 60 years as the case may be, for the purpose of his superannuation. Such is the statutory package of entitlement. The proviso to Section 3(1)(A) enables compulsory retirement on the AN of the last date of the month in which an Officer attains the age of 58 years and enjoins that an assessment as to the eligibility of an officer for continuance in service up to 60 years, must be well within time before the officer attains the age of 58 years. The statutory directive to the High Court (on the administrative side) (regarding evaluation of the record of an officer for assessing his continued utility well before he attains the age of 58 years) cannot be understood disjunctively from the right conferred by the provisions for continuance in service up to the last day of month in which he attains the age of 58 years. The evaluation and assessment by the High Court must therefore be "well within time" before the date by which officer is due to retire under the statutory provision i.e., the last day of month in which he attains the age of 58 years. There is no rational legislative purpose discernable for assuming that while that an officer is entitled to continue in service till the last day of the month in which he attains the age of 58 years, the assessment and evaluation by the High Court must however be with reference to an insignificant date; namely the actual date of attainment of the age of 58 years. Effectively, under the statutory provision 58 years means the last date of the month in which an officer attains the age of 58 years. The decision, the evaluation and assessment by the High Court must also therefore be with reference to the effective date of retirement and not the artificial date of attainment of age of 58 years. In interpreting a pluri signative statutory provision one must look to the underlying legislative purposes disclosed by the enactment as a whole considered in the light of its evolutionary history.
32. In the case on hand, as is apparent from the record, pursuant to the resolution of the Administrative Committee dated.29-11-2005, the case of the petitioner was first taken up for consideration on 19-04-2006 by the Administrative Committee. It must be rationally inferred that after some deliberation the eventual assessment was deferred. This aspect was again considered by the Administrative Committee on 20-06-2006 and after deliberations the Registry of the High Court was directed to put up the relevant Rules that regulate the assessment and evaluation and the matter was again deferred. Eventually on 30-06-2006 the Administrative Committee resolved and recommended to the 2nd respondent that the petitioner is not eligible for continuance up to the age of 60 years. The genesis of the assessment and evaluation by the Administrative Committee is therefore, in the considered view of this Court "well within time" as mandated by the Supreme Court in All India Judges' case (3rd and 1st supra) as well as the provisions of the Section 3(1)(A). That the process of deliberations was extended over three sittings and culminated in a decision only by 30-06-2006 (which is incidentally the last day of the month in which the petitioner attained the age of 58 years), does not derogate from fact that there was substantial compliance with the statutory mandate, that the assessment and evaluation should be well within time.
33. In view of the facts and circumstances and the analysis above including analysis of the provisions of Section 3(1)(A) earlier in this judgment, the petitioner's contention that since the evaluation by the High Court did not reach a conclusion before 14-06-2006, he is entitled to continue in service till he attains the age of 60 years, is devoid of merits and is accordingly rejected. There is nothing in the provisions of Section 3(1)(A) either explicit or by any compelling implication of the text which requires that the review must be undertaken an year or at least six(6) months in advance of an officer completing the age of 58 years. We have analyzed supra that the provision does not inhere a normal or routine right in a judicial officer to serve till he attains the age of 60 years. The entitlement to serve beyond 58 years is conditional upon an assessment and evaluation by the High Court as to the continued utility of an officer. In the circumstances no legitimate expectation lawfully arises that an officer would continue to serve up to the age of 60 years and therefore the retirement at 58 years terminates no expectation either.
34. From the option available to a judicial officer to retire on the last date of the month in which he attains the age of 58 years, on his exercising his option before he attains he age of 57 years, [second proviso to Section 3(1)(A) - before the 2006 amendments] it cannot be inferred that there is an obligation under the first proviso that the assessment by the High Court must also be an year in advance (of 58 years). The second proviso is intended to afford reasonable time to the establishment to make administrative arrangements for meeting the exigencies consequent upon an officer choosing to retire at the age of 58 years. This may include arrangements for postings and transfers, arrangements for recruitment or promotions as well as other incidental administrative processes preparatory to the retirement of an officer. The first and second provisos to Section 3(1)(A) are not interdependent in that sense. The petitioner's contention in this regard is misconceived and is accordingly rejected. Another contention of the petitioner is that his date of birth must be reckoned as 15-08-1949 in view of the judgment of the Division Bench in W.P. No. 36155 of 1998. The operation of this judgment had been stayed by the Supreme Court by an order dated.13-08-2002 in C.A. No. 4993 of 2002. As pointed out in Smt.Indira Nehru Gandhi v. Sri Raj Narain and Anr. (1975) 2 SCC 159, the grant of stay by the Supreme Court operates as a plenary eclipse of the judgment in W.P. No. 36155 of 1998 during the currency of the operation of the stay by the Supreme Court. In Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association CSI Cinod Secretariat, Madras (on which reliance is placed by the petitioner), proceedings before the Board of Industrial Finance and Reconstruction under the provisions of the Sick Industrial Companies (Special Provisions) Act,1985 were terminated by an order of the Board dated.26-04-1990 wherein the Board found the appellant-Company to have become non-viable and had directed its winding up. The appeal under Section 25 of the Act was dismissed by the appellate authority by the order dated.07-01-1991. Consequently no proceedings under the Act were pending either before the Board or the appellate authority under the Act as on 21-02-1991 when the Delhi High Court passed an interim order staying the operation of the order of the appellate authority dated.07-01-1991. The Supreme Court held in the circumstances that the stay granted by the High Court can not have the effect of reviving the proceedings which had been disposed of by the appellate authority's order dated.07-01-1991. It is in this context that the Supreme Court observed that the effective interim order staying the operation of the order under challenge does not tantamount to restoration of the decision as it stood on the date of passing of the order, which had been quashed. An order of stay only means that the order which had been stayed would not be operative from the date of passing of the stay order and it does not mean that the order passed had been wiped out of existence.
35. It requires to be noticed that the analysis and observations in para-10 of Shree Chamundi Mopeds Ltd. were in the context of the plea of the appellant that in view of the order of stay granted by the Delhi High Court the proceedings before the Appellate authority under the Act must be considered as having stood revived and therefore an order dated.14-08-1991 by a learned single Judge of the Karnataka High Court directing winding up of the company and the order dated.06-11-1991 of a Division Bench of the Karnataka High Court dismissing the appellants' OSA were contrary to the provisions of Section 22 of the Act. The Supreme Court in Shree Chamundi Mopeds Ltd. repelled this contention.
36. In the case on hand, on and with effect from the grant of stay by the Supreme Court on 13-08-2002 in C.A. No. 4993 of 2002, (of the judgment in W.P. No. 36155 of 1998), the operation of the judgment in the writ petition stood eclipsed (ceased to be operative). It is the conjoint assertion at the Bar that the order of stay continues till the date and thus so does the inoperability and eclipse of the judgment in writ petition No. 36155 of 1998. In the circumstances the petitioner's date of birth must be considered to be 15-06-1948 (as per the original entry in the Service Register) and not as per the judgment in the writ petition namely 15-08-1949. This facet of the contention of the petitioner is therefore rejected.
37. Issue(c):
(i) Whether there was an adverse comment against the petitioner by an Honourable Judge of the High Court in 2002:
The resolution of the Administrative Committee dated.30-06-2006 inter alia records that in the year 2002 one of the Honourable Judges has adversely commuted on the petitioner's conduct. The petitioner pleads and contends that there is no such adverse comment in his record of service in 2002. The petitioner sought and had been furnished by the 1st respondent the service particulars, reviews and extracts from his personal file which were placed for the consideration before the Administrative Committee. The petitioner has filed the record so furnished to him along with the writ petition. As is apparent from this record there is a portion of the record labelled "adverse comments made by the Honourable Judge in the year 2002" and reads as under:
The Hon'ble Sri Justice J.Chelameswar, while disposing of CRP No. 4398/2002, directed the trial court to number the I.A.(SR No. 2701/2002) on the file of I Addl. Chief Judge, City Civil Court, Secunderabad, and pass appropriate orders in accordance with law. Against the above said order the Officer addressed a letter dated.11-2-2003 to the High Court seeking clarification of the order. The Hon'ble Court upon considering the letter took serious view and observed in the said C.R.P. thus:
The contents as well as the tenor of the letter left impression on this Court that the learned trial judge was sitting in judgment over the correctness of the order of this Court and the court recorded a prima facie opinion that the above referred letter warranted initiation of proceedings under Contempt of Courts Act against Sri M. Vijaya Bhaskara Reddy. It is further observed "the whole attitude of the officer leaves an impression in my mind that it is one of insubordination and one up man ship. Such an attitude in my view would undermine the authority of the hierarchy of the judicial system. In view of the fact that the officer involved is a very senior officer of the State Higher Judicial Service, I do not propose to proceed with the matter under the Contempt of Courts Act, but the whole episode deserves the examination of the High Court in exercise of its authority under Article 235 of the Constitution of India."
As directed, the comments of the Officer were called for and received in the matter. The Hon'ble Judges of the Disciplinary Committee in the meeting held on 11-09- 2003 considered the comments and resolved to caution the Officer and to direct him to be careful in future. Accordingly the officer was CAUTIONED vide proceedings dated. 15-09-2003.
It is thus apparent that in the year 2002 while disposing of CRP No. 4398 of 2002 a learned judge of this Court had made adverse comments against the petitioner. The comment made in the judicial order was clearly an adverse comment as to the conduct of the petitioner. In the circumstances the petitioner's contention (that there is no adverse comment in his record of service in 2002), is contrary to the record and is accordingly rejected.
(ii) Whether the comments recorded in the ACR of the petitioner in the year 2004 do not constitute adverse remarks.
In the year 2004 (as per the material filed along with the writ petition) the following comments are recorded:
Work-Average, Other Remarks - To be watched carefully Sd/-
J. Chelameswar, J Work - No judgment is made available, Conduct - Not satisfactory, Other remarks - NIL Sd/-
Bilal Nazki, J.
Clearly the comment that the performance of the petitioner in terms of work is average and he is to be watched carefully as recorded by one learned judge and that the petitioner's conduct is "not satisfactory" recorded by another learned judge, is an adverse comment.
(iii) Whether the administering of caution to the petitioner by the proceedings dated.15-09-2003 is not an adverse comment on his record of service. By the proceedings ROC No. 1269/03/Vigilance Cell dated.15-08-2003 the petitioner was communicated an order. Pursuant to the observations recorded in CRP No. 4398 of 2002 the comments of the petitioner were called for. The petitioner submitted his explanation which was considered and by the communication dated.15-09-2003 the decision to caution the officer and direct him to be careful in future was recorded and communicated to the petitioner. In the considered view of this Court this does constitute an adverse comment on the record of his service.
(iv) Whether the participation of Chelameswar, J who had recorded an adverse comment against the petitioner in 2004, in the Administrative Committee deliberations on 30-06-2006 invalidates the resolution of the Administrative Committee on the ground of procedural fairness.
38. The petitioner contends that since the learned judge had recorded an adverse comment against him in the year 2004, he ought not to have participated in the deliberations of the Administrative Committee including the one held on 30-06-2006 whereat the continued utility of the petitioner for extension of service till the age of 60 years was being assessed in the context of Section 3(1)(A). Reliance for this submission is placed on the decision of a learned single judge in Kashi Ram Ahirwar 2001 All.L.J. 1655. On the facts of that case, the petitioner was compulsorily retired in exercise of powers under F Rule 56(1)(C) while working as a Senior Clerk in the Consolidation Department in U.P. He was promoted as a Senior Clerk on 31-03-1997. A screening committee was constituted by the Joint Director of Consolidation pursuant to the order dated.21-07-1998 of the Consolidation Commissioner, Uttar Pradesh to evaluate the efficiency of employees with a view to screen out the deadwood by compulsorily retiring such employees in the public interest. The screening committee prepared a summary of the ACR's of the various employees and recommended that the petitioner be compulsorily retired. As per the ACRs, the Consolidation Commissioner one R.B.Bhaskar had recorded an adverse entry against the petitioner in March-1992.
There were adverse entries also including for the year 1998. For the year 1998- 1999 the Settlement Officer, Consolidation one R.D.Tripathi described the petitioner as the most corrupt employee. The Allahabad High Court found the order of compulsorily retirement punitive in nature since Sri R.D.Tripathi the Settlement Officer, Consolidation who had recorded the adverse entry in 1998 had also acted as the Chairman of the Screening Committee which assessed the petitioner's record of service under F.R.56. The Court found that the Officer who had passed the impugned order of compulsorily retirement had himself awarded the special adverse entries and had also presided over the Screening Committee.
The record disclosed that Sri R.D.Tripathi had recorded the adverse entry for the year 1998, had also presided over the meeting of the Screening Committee and further it was the same Officer who had passed the order compulsorily retiring the petitioner under F.R.56. In the peculiar facts of the case including the further fact that despite the allegation of mala fides in the writ petition by impleading the officer concerned as a 2nd respondent, no denial of the allegation of mala fides were filed. In the peculiar facts and circumstances the writ petition was allowed and the order of compulsorily retirement quashed on several grounds including the ground that the same Officer who had recorded adverse remarks had presided over the Screening Committee for evaluation and had also passed the impugned order of compulsorily retirement. In the considered view of this Court this judgment is not an authority for a generic principle that an Officer who records adverse remarks cannot participate in assessment of the service record of a judicial officer under Section 3(1)(A).
39. In Baldev Raj Chadha v. Union of India and Ors. an order of compulsory retirement under F.R.56(J)(i) was inter alia challenged on the ground that the competent authority had taken into consideration the recommendation of the reviewing committee (alleged to be an illegal body) for assessing the appellant's record and arriving at the decision to an order compulsory retirement. Considering this contention and rejecting the same the Supreme Court observed (para.12) that the reviewing committees' presence "prevents the opinionatedness of one of the collective recommendations of a few". The Administrative Committee is a multi member body comprising four Honourable Judges apart from the Honourable Chief Justice. The decision of the Administrative Committee is pursuant to collective deliberations. The plural membership has the inbuilt safeguard of ensuring fair and rational assessment, diminuting the potential for pejoritative subjective predilections.
40. Neither on principle nor authority is it possible to hold that a decision of the evaluation committee regarding the continued utility of a judicial officer for considering extension of service up to 60 years, is vitiated on account of the participation in the deliberations by a learned Judge of the High Court who at an earlier point of time had recorded an adverse remark on the performance of the judicial officer concerned.
Judiciary is an important component of the governance mechanism. In the very nature of its function a judicial officer is invested with considerable power, authority and jurisdiction along with a broad spectrum of discretion to pronounce upon issues, often of great moment and importance to citizens and the State. Important issues relating to the economic sphere of the civil society or to the life, liberty and property of the citizens often arise for consideration. Despite established statutory positions substantive and procedural as well as a well-chronicled body of precedential authority, a considerable spectrum of discretion inheres even in members of the subordinate judiciary. In aspects like appreciation of evidence oral and documentary, the quantum of sentence to be imposed and several other areas of adjudication, there is a wide measure of discretion available and integral to the process of adjudication. The competence, forensic knowledge, expertise and experience and a deep sense of commitment to values of fairness and neutrality underscore the quality of judgments. All these are aspects and components of the judicial persona best appreciated and assessed by judges of the superior court who have had the opportunity to observe the functioning of an officer of the subordinate judiciary. To hold that a judge of the High Court who had observed a member of the subordinate judiciary either as an inspecting judge of the Session Division or otherwise and who had recorded an adverse comment on the performance of the judicial officer, is disentitled to participate in the process of evaluation of the record of such member, for the purpose of assessing his continued utility in judicial service, would undermine the very object for which Section 3(1)(A) has been enacted. Strangers to the persona and performance of a member of the subordinate judiciary would be ill equipped to make the relevant assessment. It must be also noted that no allegation of malice in fact has been alleged against the learned Judge concerned and no specific animus is either pleaded or asserted.
41. On the above analysis, the contention of the petitioner on this aspect of the issue is seen to be misconceived and is accordingly rejected. Issue (d):
Before proceeding to identify and apply the principles relating to the spectrum of the jurisdiction of this Court under Article 226, to review a decision as to the continued utility of a member of the subordinate judiciary for service up to the age of 60 years, we will briefly deal with the several precedents cited at the Bar on behalf of the petitioner in this regard:
In Swami Saran Saksena v. State of U.P. the validity of an order of compulsory retirement of a temporary Judicial Officer in the service of the State of U.P., (who was retired in August 1974 on attaining the age of 50 years and after the said officer was allowed to cross the second efficiency bar in June 1973), fell for the consideration by the Supreme Court. The compulsory retirement was administered in exercise of the power available under Article 465 of the Civil Service Regulations. The officer was allowed to cross the second efficiency bar in June 1973. On 2.8.1974 the State Government passed the order of compulsory retirement from service. In allowing the appeal (against the order of a Division Bench of the High Court reversing the judgment of a single Judge allowing the officer's writ petition directed against the compulsory retirement), the Supreme Court held that on the material before it, it was unable to reconcile the apparent contradiction that on the one hand the officer was considered to have worked with distinct ability and integrity beyond question, yet a few months thereafter was found so unfit as to deserve compulsory retirement. On an examination of the record the Supreme Court found no evidence of a sudden deterioration in the appellant's work or integrity which justified the compulsory retirement. This judgment is a fact-based determination on the wholly arbitrary nature of assessment as perceived from the record. It requires to be noticed that the Supreme Court in this judgment too reiterated the principle that ordinarily courts do not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a Government servant and that the court would be even more reluctant to reach such conclusion when the impugned order of compulsory retirement was made on the recommendation of a High Court itself. Despite such caution as to the exercise of judicial scrutiny reiterated, the Supreme Court found on the glaring facts on record that the discretion was arbitrarily exercised. It also requires to be noticed that this is not a judgment in relation to a statutory frame work as under Section 3(1)(A) in the present case. The normal and routine date of retirement of the appellant was cut short and terminated by administering compulsory retirement in that case. In the present case we have already analysed that service up to the age of 60 years is not a matter of course or right but is conditional upon the satisfaction as to continued utility beyond 58 years.
42. Baldev Raj Chadha AIR 1980 SC 269 involved a challenge to the compulsory retirement of an Accounts Officer, exercising power under FR 56(J)(i). The Supreme Court allowed the officer's appeal and quashed the order of compulsory retirement. This again is a decision turning upon the peculiar facts of the case and the reasoning set out in para-15 brings out this aspect into focus. The Apex Court observed that an officer who had continuous service for 14 years, had crossed the efficiency bar and reached the maximum salary and had no adverse entries at least for the 5 years immediately preceding the compulsory retirement, was cashiered from service on the ground that long years ago his performance had been poor, although his superiors had allowed him to cross the efficiency bar. The Court held that the order of compulsory retirement is vitiated since vital material relevant to the decision had been ignored and obsolete material less relevant had influenced the decision.
43. In Baikuntha Nath Das v. Chief District Medical Officer civil servants of the State of Orissa were compulsorily retired by the State Government exercising power under the first proviso to Rule 71(a) of the Orissa Service Code, which is in pari materia with FR 56(j). One of the issues which fell for consideration was whether uncommunicated adverse remarks could be taken into consideration in assessing whether a Government servant was unsuitable for continued service and should be compulsorily retired. The Supreme Court held that the circumstance (as to uncommunicated adverse remarks having been considered) cannot per se justify interference, since principles of natural justice have no place in the context of an order of compulsory retirement, the nature of the function to compulsorily retire is not quasi judicial in nature, the action has to be taken on the subjective satisfaction of the Government and further an order of compulsory retirement is neither a punishment nor involves stigma. The court pointed out that judicial scrutiny is not appellate in quality and the court could interfere only if satisfied that the order of compulsory retirement was passed (a) mala fide; (b) without any evidence to support the satisfaction; or (c) that the order is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material, in short if it were a perverse order. During the course of discussion and analysis, the Supreme Court observed that since the order is based on subjective satisfaction, the Government or the Revenue Department will have to consider the entire record of service before taking a decision in the matter, but must attach more importance to the record and performance during the latter years and the record to be considered should include entries in the confidential record/character rolls, both favourable and adverse. The court observed that if the Government servants were promoted to higher posts notwithstanding the adverse remarks, such remarks loose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
44. S. Ramachandra Raju v. State of Orissa (15) is again a decision relating to compulsory retirement of an employee of the State of Orissa, retired under Rule 71(a) of the Orissa Service Code. On an analysis of the facts, the Supreme Court held that the exercise of power by the State Government falls in the category of arbitrary exercise of power or failure to consider the total record of service objectively. The court found that only a solitary adverse report for the year 1987-88 was the foundation to compulsorily retire the appellant from service and the Revenue Department had considered only that report; neither the earlier nor the subsequent reports were considered. The court found that the appellant was promoted as a Reader after the adverse report in question and that the adverse comments were communicated to him and his representation for expunction of the adverse remarks were rejected mechanically without considering the allegation of the appellant that the author of the adverse remarks was actuated by mala fide. The Supreme Court expressed that there appears to be some foundation in the record for the appellant's apprehension as to mala fides. On the analysis of the entire record, the Supreme Court found the appellant to have had a meritorious record of service and that the officer had maintained discipline, good relations with the students and had imparted teaching fairly and with good knowledge. On facts therefore the Court found the order of compulsory retirement to be without a factual basis and exercised arbitrarily. The appeal was allowed in these circumstances.
45. Narsingh Patnaik v. State of Orissa 1996 (2) SLR 615 was an appeal considered by the Supreme Court in respect of an order of compulsory retirement of a Chief Engineer, Irrigation. This is again a case of compulsory retirement under Rule 71(a) of the Orissa Service Code. The Apex Court found that after the adverse remarks in the confidential reports for the year 1975-76 and 1977-78, the appellant was promoted as Superintending Engineer in 1978 and thereafter as the Chief Engineer in 1984. For the years prior to 1975-76, in 1976-77 and subsequent to 1977-78, the performance of the appellant was appraised as "Good". In the circumstances the Court found that the adverse remarks for the two earlier years cannot furnish a rational justification, in the context of the over all satisfactory record of service, for administering compulsory retirement. This is again a decision on the facts of the case.
46. In Sukhdeo v. The Commissioner, Amravati Division and Ors. 1996 (4) SLR 8 the appellant a civil servant in Maharastra State was compulsorily retired exercising power under Rule 65(1)(b) of the Maharastra Civil Service (Pension) Rules 1982 relying on adverse remarks in the reports for the years 1987-88, 1988-89. On a perusal of the record of service (vide analysis in para-4 of the judgment) the Supreme Court found that in the year 1987-88 and 1988-89 the record disclosed that the appellant was industrious, had good capacity to get work done by the subordinates, his relationship with the colleagues and public was good and his general intelligence is satisfactory. It was however recorded in the column relating to technical ability that it was not satisfactory though his special attitude is good and that his administrative ability including judgment, initiative and strive was not satisfactory and in the general assessment it was recorded that he is irregular and rarely found at head quarters and had a poor record of performance in recovery works. The Apex Court found a great deal of incoherence and inconsistency in the adverse remarks during the same years. The court observed that a person cannot be categorized as being poor in public image when his relationship with public and subordinates is good and if a person is found to have integrity and honesty and had the intelligence to discharge his duties cannot be found to be unsatisfactory. Since the remarks were mutually inconsistent and the adverse entries indicated lack of bona fides, the court discerned an extraneous circumstance and a fatal infirmity in the decision. The appeal was accordingly allowed. This is again a fact-based decision which had applied established principles relating to scrutiny of compulsory retirement orders.
47. In Allahabad Bank Officers Association and Anr. v. Allahabad Bank and Ors. 1996 (4) SLR 22 a Scale-3 Officer who was also the General Secretary of the Bank Officers Association was compulsorily retired after review and assessment of his record of service under Regulation.19 of the Allahabad Bank (Officers) Service Regulations,1979. The order of compulsory retirement inter alia recorded that he was being compulsorily retired for want of application to banks' work, lack of potential and since he was found not dependable. The Supreme Court held that the object of compulsory retirement is to maintain efficiency and integrity in service and is intended to dispense with the services of those whose integrity is doubtful so as to preserve, purity in the administration. On an analysis of the facts the Supreme Court rejected the appeal of the Officers' Union and held that the remarks recorded for administrating compulsory retirement merely indicated that the Officer had ceased to be useful to the bank as a Manager and that no inference could be drawn that the statements recorded cast a stigma on the 2nd appellant or that the real intention of the bank was to punish him for misconduct and lack of integrity. The Court held that in the context of the facts and circumstances it cannot be held that by including those statements in the order of compulsory retirement any stigma has been cast on the officer in question. This decision enunciates the principle that the comments in an order of compulsory retirement must be read as a whole and in the context of the facts and circumstances leading to the order including an appraisal of the record of service of the officer taken in its entirety. Jayata Prasad v. State of Uttar Pradesh and Anr. 1998 All. L.J. 239 is a decision dealing with an order of compulsory retirement of a Jail Guard in the service of the State of Uttar Pradesh. The petitioner was promoted as Head-Jail Guard in 1993 after a consideration of his entire service record. The only adverse material pertained to an enquiry conducted in 1984-85 on a charge that the petitioner had obtained unauthorized possession of a quarter in defiance of the order of his superiors. He was found guilty and was inflicted the punishment of stoppage of a future increment. Apart from this, the learned single Judge found no other material on record to indicate that the petitioner had outlived his utility and had rendered himself useless so as to be sent out of Government employment. The court held that the petitioner's promotion in 1993 extinguished the adverse aspect of his record relating to the punishment. On this analysis and on observing that old and stale enquiries should not be taken into account while considering premature retirement and that the entries of the recent five or ten years should be considered for forming the requisite opinion, the court found in favour of the petitioner and quashed the order impugned. The court applied well established principles for its conclusion on facts. In M.S. Bindra v. Union of India 1998 (3) SLR 358 the Union of India administered compulsory retirement to an Officer of the Indian Revenue Service who served as a Director of Anti Evasion Wing, in 1984. Compulsory retirement was ordered on the ground of doubtful integrity. On scrutiny of the record of service of the appellant- officer, the Court found the conclusion as to doubtful integrity wholly unsupported by any evidence as also perverse. The instances recorded by the Screening Committee to conclude that the Officer was of doubtful integrity were found by the Supreme Court to be wholly inconsistent with the conclusion recorded. This is again a decision on the particular facts of the case. In Madan Mohan Choudhary v. The State of Bihar and Ors. 1991 (1) SLR 718 the Supreme Court was considering the compulsory retirement of an Additional District and Sessions Judge of Bihar under Rule 74 of the Bihar Service Code. The Apex Court scrutinized the record of service that was considered by the Assessment Committee and which had led to the order impugned in the lis. The Court found that the appellant had a good record of service from 1975-76 to 1990-91. Only on 29-11-1996 he was awarded and communicated "C" Grade - for the years 1991-92 to 1993-94 at one time and after having prepared a note on 21-11-1996 for the appellant's compulsory retirement. The record preponderantly disclosed that he had a good record of service both in terms of quality and quantity of judicial work, that his conduct and relationship with the members of Bar and Judicial Officers was satisfactory. He was laborious, painstaking, intelligent and hard working, wrote good judgments and had a good reputation. The appellant was seen to have integrity, was industrious and prompt in the disposal of cases and an efficient officer with satisfactory knowledge of law procedure. The court held in allowing the appeal that the adverse remarks for the years 1991-92 to 1993-94 were not recorded in the normal course but were recorded simultaneously and after the Standing Committee of the High Court had already formed an opinion to compulsorily retire the appellant from service. The appellant's revision against these remarks were also not dealt with promptly but were disposed of by the High Court long after. The categorization of the officer and the initiation of compulsory retirement process, on the ground that the officer had granted anticipatory bail in a case under Section 307 IPC was found to be unreasonable and unfair. The Court held that the committee also failed to take into consideration the categorization of the Officer for the years 1994-95 and 1995- 96. The Supreme Court clearly observed ( in para.40) that it is on account of these abnormalities coupled with other strange circumstances of the case that it is of the opinion that the appellant's categorization could not have been legally taken into consideration and if those remarks were excluded, the action of compulsory retirement cannot but be termed as arbitrary. The Court interfered and allowed the appeal. Again on an analysis of the peculiar facts and circumstances of the case and after recording a finding that the assessment leading to compulsory retirement was based on wholly irrelevant material and was a decision, which no reasonable person could have arrived at. In High Court of Punjab and Haryana v. Ishwar Chand Jain 1999 (2) SLR 531 the respondent in the appeal (by the High Court of Punjab and Haryana) was a member of the superior judicial service of the State of Haryana. He prematurely retired on the recommendation of the High Court. The Division Bench of the High Court on the judicial side set aside the order of compulsory retirement by the State. On a scrutiny of the record relating to the order of the compulsory retirement, the Supreme Court found that the inspecting judge of the High Court graded had the officers' work as "B"-Satisfactory for the year 1993-94 but the Full Court had reduced his grading to "B"- Average-satisfactory. For the year 1984-85 the inspecting judge had graded him " B+ - Good". The Full Court had downgraded it "C - Below Average". While the inspecting judge had considered his knowledge of law and procedure to be "good" the High Court recorded it as "poor". The High Court also downgraded the inspecting officers remarks regarding the officers prompt disposal of cases and ability to deal with heavy work. Earlier in 1985 the High Court had resolved to dispense with the service of the respondent.
48. This recommendation was challenged before the High Court unsuccessfully. On appeal the Supreme Court had set aside the judgment of the High Court and reassessed the officers' performance. As a consequence he was reinstated to service with restoration of seniority. Thereafter an enquiry was also initiated against him. On consideration of the report of the enquiry, the High Court directed charge sheeting of the officer. Disciplinary proceedings were initiated and he was also placed under suspension. There was also an entry for the years 1991-92 of doubtful integrity as also an adverse remark as to quantitative and qualitative performance. While so, proceedings were initiated for his compulsory retirement on attaining the age of 58 years and he was eventually retired compulsorily. In these peculiar circumstances the Supreme Court found that the officer was retired while under suspension; the High Court on the administrative side decided to keep the disciplinary proceedings against the officer pending for the purpose of imposing a cut on retrial benefits and the order of compulsory retirement was based on an allegation of misconduct which was the subject matter of an enquiry and it was also based on the adverse remarks for the year 1991-92. The Supreme Court held that the order of compulsory retirement was a shortcut by the High Court to remove the officer from service and that the order of retirement was based on a charge of misconduct which was pending. On this analysis, the court found that though innocuously worded the order amounted to removal from service and was therefore not sustainable. The Apex Court held that the High Court of the judicial side was right in setting aside the order and allowing the writ petition. Another case cited is P.K. Shastri v. State of M.P and Ors. 1999 (5) SLR 1. The appellant had challenged that part of the order of High Court whereby a direction was issued that an entry be made in the Confidential Record of the Presiding Officer that he had no control over the proceedings of the Court as he had permitted the Prosecutor to leave several times during Court hours, resulting in the Court work suffering. On facts the Supreme Court found that the opinion of the High Court in the judgment was based on an assessment of the efficiency of the officer drawn from a single event and that there was no material before the High Court that this was the general position with regard to the officer in other cases too. The Court also found that this conduct did not undermine the administration of justice. Consequent on this conclusion on facts, the appeal was allowed and the direction issued by the High Court on the judicial side was set aside. This is not a decision in a case relating to compulsory or premature retirement. State of Gujarat and Anr. v. Suryakant Chunilal Shah 1999 (6) SLR 324 is a decision of the apex Court in relation to a case of compulsory retirement of an Assistant Food Controller. The order of compulsory retirement was issued under Rule 161 of the Bombay Civil Services Rules 1959. The Court found that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as Government servant or that he was inefficient and had became a deadwood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permission in favour of fake and bogus institutions. The Court observed that mere involvement in a criminal case does not postulate guilt the trial is yet under process. Even before that stage was reached, on the basis of mere involvement in a criminal case, the order of compulsory retirement was made and that did not constitute relevant material. The Court held that there was no material before the review committee and that there were no adverse remarks in the character roll nor was the integrity of the officer doubted at any time. This is a case where the order of compulsory retirement was based on no material in justification of it.
49. In Devi Sharan Sarma v. District Magistrate 2000 All L.J. 578 compulsory retirement of a Peon in the Collectorate fell for consideration by a learned single Judge. The order of compulsory retirement was based on a single adverse entry dated.25-06-1985. The court found that there was no material produced to show that the petitioner was awarded any other adverse entries. The Court held that the adverse entry related to unauthorized absence and that it did not afford sufficient justification for administering compulsory retirement in public interest, on the basis of absence from duty for a few days. This is again a decision that rests on a conclusion of arbitrary exercise of power and on the basis of no evidence on record supporting an order of compulsory retirement.
50. In High Court of Judicature at Allahabad v. Sarnam Singh AIR 2000 SC 2150 the Supreme Court considered the validity of an order of compulsory retirement of a Judicial Officer of U.P., by an order dated 12.11.1997 passed by the State Government on the recommendations of the High Court which was the appellant. The High Court had scrutinized the service record of the respondent when he had completed 58 years of age to determine whether he was fit to be continued in service up to the age of 60 years. The exercise was undertaken in terms of the judgment in the All India Judges Association case . The Supreme Court held that the High Court had overlooked the vital fact that new rules were already promulgated by the State Government in 1992 known as The U.P. Judicial Officers (Retirement on Superannuation) Rules 1992, notified on 20.10.1992, which specifically provided that judicial officers would retire on attaining the age of 60 years. In the circumstances, held the Supreme Court, it was not open to the High Court to have scrutinized the service record at that stage. Under the new Rules the respondent was entitled to continue in service up to the age of 60 years. The new Rules contained no provision for a review of an officer's record at the age of 58 years. Consequently the order of compulsory retirement passed by the State Government was held to be erroneous. On the merits of the decision, the Apex Court found no adverse material against the respondent justifying the order of compulsory retirement and accordingly dismissed the appeal preferred by the Allahabad High Court.
51. In State of Gujarat v. Umedbhai Patel the Supreme Court considered an order of compulsory retirement of an Executive Engineer working in the Narmada Development Department of the State of Gujarat at the age of 59 years invoking Rule 161(1)(aa)(i)(1) of the Bombay Civil Service Rules 1959. The record of service of the officer concerned which led to the order of compulsory retirement was scrutinized and analysed by the Supreme Court, set out at para-12 of the judgment. The Supreme Court held that there were absolutely no adverse entries in the respondent's confidential record and even in the rejoinder filed in the Supreme Court nothing was stated that the respondent's service record revealed any adverse entry. The respondent had also successfully crossed the efficiency bar at the age of 50 as well as at 55. The officer was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Government had sufficient time to complete the enquiry against him but that was not done within reasonable time. The Court found that even the Review Committee did not recommend compulsory retirement and the respondent had less than 2 years to retire from service. The Supreme Court held that the order of compulsory retirement was recorded for extraneous reasons without waiting for a conclusion of the enquiry and merely on the basis of an allegation which had not been proved and in the absence of any adverse entry in the service record to support the order of compulsory retirement. This is again a decision predicated on the specific facts of the case and applying the established principles drawn from a catena of precedential authority.
52. A Division Bench of this Court in P. Raghavender v. High Court of AP and Ors. 2006 (5) ALD 566 considered the validity of an order of compulsory retirement of a member of the AP State Higher Judicial Service on attaining the age of 58 years, invoking power under the proviso to Section 3(1)(A) of the Act. Inter alia, the petitioner had contended before this Court that an order of retirement on attaining the age of 58 years [under the proviso to Section 3(1)(A)], could be imposed only after following the procedure of a disciplinary inquiry under the provisions of the A.P Civil Services (Conduct, Control and Appeal) Rules, 1991. This contention was emphatically rejected by this Court. It was held that in its very nature, compulsory retirement envisaged under the proviso to Section 3(1)(A) is non-punitive in character and therefore the requirement of following the procedure prescribed under Rule 20 of the CCA Rules cannot be read as implicit in the proviso to Section 3(1)(A) of the Act and that if the provision were to be interpreted in the manner suggested by the learned Counsel for the petitioner, the purpose of the substantive portion of the proviso would be defeated, since the power to compulsory retire an officer by way of punishment could be exercised by the competent authority at any time by following the disciplinary procedure. On a scrutiny of the merits of the order of compulsory retirement however and on a scrutiny and review of the record of the officer which led to the impugned order this Court held that for the period of 9 years preceding the order of compulsory retirement (which was the record considered by the Committee for assessing his continued utility), the officer's performance, work and conduct were rated as 'good'; his work was quantitatively categorized as 'very good' and qualitatively as 'good or satisfactory'. His integrity was always considered above board. In the 5 years preceding his retirement the work of the petitioner was quantitatively recorded as 'very good' and qualitatively as 'satisfactory' in the year 1998. Even thereafter including in 2002 the officer's work was rated as 'very good' and 'good' quantitatively and qualitatively. One Judge had remarked that the officer was a very hard work and honest officer. Even in the year 2003-04, the officer was rated as quantitatively 'very good' and qualitatively as 'good/satisfactory'. Though during his career from 16.8.1976 to 31.7.2005 eighteen complaints were received against him, all these were dropped or lodged or closed after scrutiny by the competent authority and in none of the 18 complaints the High Court had found any substance though in two cases in 1986 and 1991 the officer was cautioned. This Court analysed the contents of the several complaints received against the petitioner and concluded that in a career spread over more than 29 years the petitioner's work and conduct was always treated to be as 'very good', 'good', 'satisfactory', quantitatively and qualitatively as well and his integrity was never doubted. This Court concluded that on a fair and objective evaluation of the service record of the petitioner, it could not have been possible for the Administrative Committee of the High Court to have arrived at an opinion that the officer was not fit to be continued in service up to the age of 60 years. The court concluded that even applying the criteria of subjective satisfaction the conclusion is inescapable that the recommendations for compulsory retirement of the petitioner at the age of 58 years is liable to be characterized as arbitrary. This is again a decision in which the conclusion as to the invalidity of the order of compulsory retirement (passed in exercise of the powers under the proviso to Section 3(1)(A), was invalidated on the ground that there was an irrational and arbitrary assessment of the service record and that the subjective satisfaction arrived at was one which no reasonable person could have come to.
53. We have already referred to and analysed the several decisions cited on behalf of the petitioner in support of his plea for review of the impugned order. Many of the cases cited and analysed by us hereinbefore on this aspect, have set out the analysis of the factual matrix of the officers in each of the cases and have recorded conclusions either up holding or rejecting challenges to the orders of compulsory retirement. In many of the cases, as observed by us, the conclusion was the result of the peculiar fact circumstances of the case. The core principles regarding judicial review of an order of compulsory retirement have been summarized succinctly in the recent judgment of a Division Bench of this Court in Raghavender 2006 (5) ALD 566. Raghavender referred to the principles enunciated in Baikuntha Nath Das AIR 1992 SC 1020. These are:
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 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 circumstances by itself cannot be a basis for interference.
54. Raghavender 2006 (5) ALD 566 also recorded the decision of the Supreme Court in Post and Telegraphs Board v. C.S.N. Murthy (29). The following passage from this decision extracted in Raghavender is worth reiteration. It reads:
An order of compulsory retirement is not an order of punishment. F.R.56(j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record. No mala fides have been urged in the present case. There was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review and it is, therefore, not possible for us to fault the conclusion of the department as being mala fide, perverse, arbitrary or unreasonable.
55. As observed in All India Judges Association case 1993 (4) SCC 288, judicial service is not service in the sense of "employment"; Judges are not mere employees, they exercise the sovereign judicial power of the State. In All India Judges Association case 1992 (1) SCC 119 the several qualities that go into the formation of a balanced judicial personality were spelt out. The Court observed (Para 61 - SCC p.140):
The conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough, courteous, patient punctual, just, impartial, fearless of public clamour, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
56. As pointed out in Ramesh Chandra Acharya 2000 (6) SCC 332 for deciding whether a judicial officer has potential for continued useful service, the High Court has to take into consideration all the aforesaid aspects summarized in All India Judges Association case 1992 (1) SCC 119. The benefit of the increased retirement age to 60 years, shall not be available automatically to all judicial officers irrespective of their past record of service and fitness or their continued utility to the judicial system. All India Judges Association case 1992 (1) SCC 119 & Ramesh Chandra Acharya 2000 (6) SCC 332.
57. The proviso to Section 3(1)(a) of the Act is substantially similar to the provision of Rule 71(a-1) of the Orissa Service Code as considered in Ramesh Chandra Acharya 2000 (6) SCC 332 wherein analyzing the Orissa provision the Supreme Court observed (Para 10, SCC) that the rule does not straight away extend the age of superannuation at the age of 58 years but only enables the High Court to retain in service a judicial officer belonging to the State Judicial Service up to the age of 60 years, if it is of the opinion that such judicial officer has the potential to continue in useful service and for that purpose assessment is to be made on the basis of the past record of service, character roll, quality of the judgments and other relevant matters, which may include an over all assessment with regard to integrity, reputation and utility.
58. In the context of the evolutionary history and the legislative purposes that substrate the enactment of the first proviso to Section 3(1)(A) considered in the light of the interpretation of a similar provision by the Supreme Court in Ramesh Chandra Acharya 2000 (6) SCC 332, the conclusion is compelling that members of the subordinate judiciary in the State are not inhered an automatic or routine right to continue in service till attainment of the age of 60 years. Continuation beyond 58 years of age is conditional upon the assessment and satisfaction of the High Court, as to their continued utility assessed on the parameters spelt out in the All India Judges Association cases (3 & 1 supra), Ramesh Chandra Acharya 2000 (6) SCC 332 and P. Raghavender 2006 (5) ALD 566. It must also not be lost sight of that the concerned High Court is the pater familiars of the judiciary in the State and is also constitutionally consecrated a supervisory, mentoring and disciplinary role over the conduct of members of the subordinate judiciary of the State. This is the reason why the critical evaluation function for assessing the continued utility of a judicial officer beyond 58 years is vested in the High Court. In considering the scope of judicial review against an order of assessment in the context of the proviso to Section 3(1)(A) of the Act, these aspects must inform the spectrum of scrutiny of judicial review available. Even in respect of a normal process of compulsory retirement under FR 56 or like regulations, the extent of judicial review is spelt out to be limited to identification of perversity, demonstrable irrationality or mala fides in the exercise of power. Judicial review of the assessment by the High Court in the context of the proviso to Section 3(1)(A) cannot be more extensive than judicial review in the context of an exercise of power under FR 56.
59. The several critical traits that should inform and contribute to the personality of a worthy judicial officer have been summarized in the All India Judges Association case 1992 (1) SCC 119 - extracted herein above. An assessment whether the conduct of a judicial officer confirms and to what extent or degree, to the several critical requirements of the office, is predominantly a mater for the subjective evaluation and satisfaction by the concerned High Court and in the light of the fact that the evaluation is required to be done by a multi- member body comprising Honourable Judges presided over by the Honourable the Chief Justice. Considerable deference must be accorded to the assessment, in the circumstances.
60. The review by the High Court, of the quantitative and qualitative performance of the petitioner for the period 1996-2004 as considered by the Administrative Committee discloses that while his quantitative performance ranged from a singular "Satisfactory" record to a general "Good" to "Very Good", quantitatively the officer was assessed predominantly as "Average" "Just Satisfactory" or "Satisfactory". He was qualitatively rated "Very Good" only during the first period of 1999, as "Good" only twice, during the first period of the year 2000 and the second period for the year 2003. During the year 1996 one Hon'ble Judge had remarked on the petitioner's work that it could qualitatively be rated as "Average". During the year 2000 an Hon'ble Judge had remarked that the petitioner's conduct revealed lack of discipline and insubordination. During the same period however other Judges recorded either a satisfactory conduct or that he was honest, competent, hardworking and pleasing. It was already noticed hereinabove that there are adverse comments recorded, one during the year 2002 and two during the year 2004. During his career since his appointment in 1976 as a Junior Civil Judge there appear to have been 12 complaints. All of the complaints except the following were either lodged, filed or further proceedings dropped. In respect of a complaint in the year 1996 the disciplinary committee at a meeting held on 02-02-1996 resolved to recall the officer from his deputed post in the Andhra Pradesh State Consumer Redressal Commission. In respect of another complaint in 1998, by proceedings dated.26-03-1999 of the High Court the petitioner was advised that he must be more restrained in giving a self-estimate of his performance - expression s "with all the pride in the world and with all the fairness in the world", ought to have been avoided. Pursuant to the adverse comment made in a judicial order in CRP No. 4398 of 2002, after soliciting the response of the petitioner, receiving the same and considering it the Disciplinary Committee of the High Court at the meeting held on 11-09-2003 resolved to caution the petitioner and to direct him to be careful in future. This was intimated to the petitioner by proceedings dated.15-09-2003.
61. The above is broadly the record of the petitioner as was considered by the Administrative Committee of the High Court. On an overall consideration and assessment of the record, the Administrative Committee was satisfied that the petitioner is not fit to be continued in service up to the age of 60 years and that he should be retired on attaining the age of 58 years in terms of the first proviso to Section 3(1)(A) of the Act.
62. Having considered the petitioner's record of service within the contours of judicial review, in the considered view of this Court, the assessment of the Administrative Committee and its consequent satisfaction is not liable to be characterized as arbitrary, perverse, irrational, based on irrelevant considerations, or by eschewing relevant considerations. No doubt in his pleadings and written submissions the petitioner asserts that he has a good and outstanding record of service, he is of undoubted continued utility to the judicial service and that his continuance is in the public interest. It is however not within the province of this Court to make an appellate assessment juxtaposing the petitioner's self-assessment with the assessment by the Administrative Committee. Apart from the adverse attributes in the record, specifically recorded in the assessment by the Administrative Committee, the Committee might legitimately have been satisfied that while the petitioner was measuring up to the quantitative standards, he was qualitatively mediocre. That is a legitimate inference eminently within the lawful, rational, subjective domain of the Administrative Committee, on an assessment of the petitioner's record of service.
63. The petitioner claims that his record of service is better or in any event cannot be rated inferior to the record of service of the 16 officers mentioned in para.28 of the writ petition. In the context of the judgments of the Supreme Court in the All India Judges Association cases (3 & 1 supra), reiterated in Ramesh Chandra Acharya 2000 (6) SCC 332, S.D. Singh (2005) 13 SCC 737 and P. Raghavender 2006 (5) ALD 566 and in the context of the first proviso to Section 3(1)(A) of the Act, the assessment by the appropriate committee of the concerned High Court is not required to be on a comparative assessment vis--vis other members of the service. There is abundant normative guidance available from the tradition and rich experience of the High Court as an institution and from the observations in several binding precedents as to the several qualities that are required of a judicial officer. These constitute a valuable raft of guidelines that substrate the assessment parameters to be applied by the Administrative Committee. It cannot be gainfully contended that the requisite performance and personality standards of a judicial officer must correspond to the average quality of the serving judicial officers in the State. Even if an assessment by the High Court had erred in respect of one or more officers who had erroneously been considered to be of continued utility for service up to 60 years, such error would not constitute a binding precedent or the norm for repetetition of the flawed assessment. We neither hold nor observe that the 1st respondent had erred in assessing the officers mentioned in para.28 of the petitioner's affidavit. We have recorded this observation only in the context of the petitioner's claim that a comparative assessment is mandated and the further claim that he does not compare unfavorably with those officers. We emphatically hold that the assessment under the first proviso to Section 3(1)(A) is, by text and purpose required to be in respect of each Officer for considering continued utility for service up to the age of 60 years and on the well established principles, parameters and guidelines available to the assessing authority - the High Court.
64. Relying on the decisions in the Baikuntha Nath Das AIR 1992 SC 1020, Umedbhai Patel AIR 2001 SC 1109 and P. Raghavender 2006 (5) ALD 566 the petitioner contends that since he was awarded Super Time Scale by the 2nd respondent's order in G.O.Ms. No. 84, Law Department, dt 29-05-2006 barely a month before the impugned order; as award of Super Time Scale is to be on the basis of merit-cum-seniority as spelt out in the 2nd respondent's order in G.O.Ms. No. 106, Law Department dated.27-08-203 and as his entire record of service must be presumed to have been considered while awarding him Super Time Scale, all the adverse aspects in his record of service must be considered as having been effaced. It is true that in several decisions including those referred to by the petitioner and analyzed hereinabove it has been observed that in considering compulsory retirement under F.R.56(J) or like regulations, the fact that despite certain adverse entries in the Service Record of an Officer he was granted a promotional or other career advancement benefit on an assessment of merit and suitability, must be considered as removing the sting out of such adverse entries in the matter of assessment for compulsory retirement. We respectfully agree that this is the pervasive and generic principle. There is nothing on record however to suggest that critical evaluation of a degree and rigor warranted in an assessment under the first proviso to Section 3(1)(A) is either mandated or was adopted in the resolution of the High Court recommending grant of Super Time Scale to the petitioner and other officers. The Administrative Committee (disciplinary matters) on 30-08-2005 had inter alia resolved to appoint four Officers including the petitioner to the Super Time Scale of District and Sessions Judge and w.e.f.26-05-2005. The minutes of the resolution do not disclose any deliberations or assessment of the merit, ability and suitability of the Officers having preceded the resolution. This resolution was approved by the Full Court on 18-04-2006 and consequently the 2nd respondent issued the order in G.O.Ms. No. 84 dated.29-05-2006. In an assessment under the first proviso to Section 3(1)(A) a rigorous evaluation is mandated both in terms of the statutory provision and in terms of the several judgments of the Supreme Court which clearly emphasize the relevant parameters and public interest concerns for which the extension in the age of superannuation has been evolved initially by a judicial mandate, and eventually adopted and expressed as a legislative provision. The statement of objects and reasons accompanying the Bill which came to be enacted as the A.P Public Employment (Regulation of age of Superannuation)(Amendment) Act,1998 (which incorporated Sub-section 1(A) in the Act), clearly refers to the judgments of the Supreme Court in All India Judges Association cases (3 & 1 supra). It is thus clear that the legislative impetus for incorporating the provision is the directions issued by the Apex Court in the aforementioned decisions. This provision is a faithful and verbal re-production of the directions contained in the All India Judges Association case 1993 (4) SCC 288 which had modified the directions in the earlier case 1992 (1) SCC 119. The focused and critical evaluation mandated in an assessment under Section 3(1)(A), in the considered view of this Court cannot be avoided, diluted, or casually side-stepped by reference to the generic principle that a promotion granted on merit considerations brings about a plenary eclipse of all earlier adverse entries in the record of an officer. The requirement that merit-cum-seniority standards must inform the grant of selection grade and Super Time Scale is an administrative requirement flowing from G.O.Ms. No. 106, dated 27-08-2003, no doubt following upon the recommendations of the First National Judicial Pay Commission which had also recommended the standard that should inform the grant of these grades. The obligation to adhere to the rigorous standard of evaluation under the 1st proviso to Section 3(1)(A) is not merely the product of the legislative mandate but of a legislative mandate informed and fertilized by a catena of binding judicial authority, the several decisions of the Supreme Court commencing from the All India Judges Association cases 1992 (1) SCC 119.
65. On the above analyses, in the considered view of this Court the fact that the petitioner was awarded Super Time Scale w.e.f 26-05-2005 pursuant to a resolution by a Committee of the High Court dated 30-08-2005 would not wholly extinguish the adverse entries in the record of the petitioner nor would render the Administrative Committee incapacitated to perform its legislatively mandated and judicially delineated critical function of assessing the entire record of service of an officer, for determining his continued utility to serve up to the age of 60 years. This contention is therefore rejected.
66. In the facts and circumstances, in the light of the analyses and for the reasons recorded above, we see no merit in the writ petition. Issues (a) to (d) are answered against the petitioner.
67. The writ petition is dismissed but in the circumstances without costs.