Madras High Court
K.S. Venkatachalam vs The High Court on 31 March, 2006
Author: P.K. Misra
Bench: P.K. Misra, R. Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31/03/2006
CORAM
THE HON'BLE MR. JUSTICE P.K. MISRA
AND
THE HON'BLE MR. JUSTICE R. SUDHAKAR
WRIT PETITION No.39845 of 2005
and
WPMP.NO 5481 of 2006
K.S. Venkatachalam
S/o K.S. Sankaralina Konar,
No.F-192, Anna Nagar,
Chennai 600 102. .. Petitioner
-Vs-
1. The High Court
of Judicature at Madras
Rep. by its
Registrar General,
High Court,
Chennai 600 104.
2. The Government of Tamilnadu,
Rep. by Secretary
to Government,
Personnel &
Administrative Reforms
(FRIV) Department,
Fort St. George,
Chennai 600 009. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of writ of Certiorarified Mandamus calling for the records of the
first respondent vide ROC.No.2A/2004 Con.B2 dated 2.11.2004 and consequent
order of the 1st respondent dated 4.7.2005 against the petitioners
representation dated 18.6.2005 issued to the petitioner and quash the same and
direct the respondents to extend the petitioners service upto 60 years.
!For Petitioner : Mr.V. Prakash
Senior Advocate for
Mr.P. Chandrasekaran
^For Respondents: Mr.V. Raghupathy
Government Pleader
Assisted by
Mrs.V. Velumani, A.G.P.,
:J U D G M E N T
P.K. MISRA, J The present writ petition has been filed for issuing a writ of Certiorarified Mandamus to call for the records of the first respondent vide ROC.No.2A/2004 Con.B2 dated 2.11.2004 and consequent order of the 1st respondent dated 4.7.2005 against the petitioners representation dated 18.6.2005 issued to the petitioner and quash the same and direct the respondents to extend the petitioners service upto 60 years.
2. The facts giving rise to the present writ petition are required to be noticed in some detail :-
The petitioner joined the Subordinate Judicial Services in 1977 and served in different capacities. In course of time, he was promoted to the cadre of District Judge and was posted as Additional District Judge-cum-Chief Judicial Magistrate on 7.11.1995. Thereafter he functioned as the Presiding Officer, I Additional Labour Court, Madras from 9.6.1997 to 11.6.1998 and Presiding Officer, Principal Labour Court, Madras from 20.5.1999 to 20.12.1999. Thereafter, he functioned as Registrar, State Human Rights Commission from 20.12.1999 to 15.9.2001 and subsequently promoted as Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur from 21.9.2001 to 30.4.2002. As Principal Judge, Thiruvanamalai from 2.5.2002 to 20.12.2003 and as Presiding Officer, Industrial Tribunal from 11.2.2004 till 30.11.2004, when he was superannuated on reaching the age of 58 and the benefit of extension of service till 60th year was denied to him as per the administrative decision of the High Court, which was communicated to him as per Roc.2A/2004-Con.B2 dated 2.11.2004. However, before filing of the writ petition, the petitioner had also submitted appeal petition dated 18.11.2004, which was addressed to the Secretary to the Government through the Registrar General, wherein the petitioner had prayed for setting aside the order of the High Court dated 2.11.2004 and seeking permission to continue him in service till the age of 60. A few days thereafter, the petitioner filed Review application dated 23.11.2004 addressed to the Registrar General of the High Court seeking for review of the order dated 2.11.2004. However, the petitioner himself had written another letter dated 25.11.2004 addressed to the Government through the Registry stating that the appeal petition dated 18.11.2004 addressed to the Government may be withdrawn as the petitioner intended to file writ petition in the High Court. An Office Note referring to these aspects was placed on 6.12.2004 before the Honourable the then Chief Justice, who endorsed seen on such Office Note. Thereafter, the present writ petitioner filed W.P.No.34761 of 2004. The writ petitioner had also filed W.P.No.271 of 2005 claiming Selection Grade and Super Time Grade Scale with effect from 5.11.2000 to 5.11.20 03. W.P.No.34761 of 2004 was admitted and counter was filed by the High Court. From the original docket sheet of such writ petition it appears that an endorsement had been made by the counsel for the petitioner on 16.2.2005 to the effect that the petitioner may be permitted to withdraw the writ petition with liberty to file a fresh writ petition. Such endorsement had been signed by the Advocate. However, it appears that a line has been put across such endorsement in a different ink, but there is no endorsement or initial and it is not possible to know as to who has drawn such line. The order dated 23.2.2005 is to the following effect :-
The learned counsel appearing for the petitioner seeks permission to withdraw the above writ petition. Permission is granted. Accordingly, the writ petition is dismissed as withdrawn. ...
The aforesaid order does not indicate as to whether such withdrawal is on the basis of any oral submission or on the basis of the endorsement. Immediately after making the endorsement on 16.2.2005, the petitioner filed a representation before the High Court on 17.2.2005 stating that he had withdrawn both the writ petitions and, therefore, his review application for review in ITR No.579/2004 dated 23.11.2004 and grant of grades in ITR No.555/2004 dated 10.11.2004 may be considered favourably. Different representations of the writ petitioner having been rejected on 4.7.2005, the present writ petition has been filed.
3. At the time of filing of the present writ petition, the learned counsel appearing for the petitioner has made an endorsement to the following effect, which is apparent from the docket :-
W.P.34761/2004 was filed as against the order declining to extend service and for a direction that the service be so extended. The present writ petition is questioning the validity of the amendment and the quashing for the order which is based on the said amendment. Hence this writ petition is maintainable. Liberty sought for while withdrawing W.P.34761/2004 has been scored out by somebody else. The counsel made the endorsement found in the bundle. We do not know who scored it out. The Appeal to the Government was not pressed as no such appeal lies. Review filed to the High Court was rejected on 4.7.2005 which may be challenged independently if such necessity is there.
In view of the fact that this W.P is questioning the validity of the amendment to the rules, W.P may be numbered and posted before Court for admission.
4. Along with W.P.No.39845 of 2005, the petitioner also filed a separate writ petition numbered as W.P.No.39846 of 2005 challenging the validity of the amendment to the Fundamental Rule 56(1), made by the State Government. By a separate order dated 30.1.2006, such writ petition has already been dismissed.
5. The main contention of the petitioner is to the effect that no adverse remarks had been communicated to the petitioner at any time and to his knowledge he had good record and therefore non-extension of service of the petitioner beyond 58 is not in accordance with the decision of the Supreme Court reported in AIR 1993 SC 2493 (ALL INDIA JUDGES ASSOCIATION AND OTHERS v. UNION OF INDIA AND OTHERS). It is further submitted by way of additional grounds that the decision not to accord the benefit of service upto 60 years of age is not based on any material and it is an arbitrary decision and unfairly arrived at. It was therefore prayed that such order of the High Court in its Administrative side dated 2.11.2004 may be quashed and the petitioner should be permitted to continue in service till his 60th year.
6. A counter affidavit has been filed on behalf of Respondent No.1. In such counter affidavit it has been indicated that keeping in view the principle enunciated in the decision of the Supreme Court, the case of the petitioner had been considered and the Full Court thought it fit not to extend the services of the petitioner beyond the age of 58 and such order is not arbitrary and does not call for any interference. Apart from the above defence on merit, the High Court has also taken the plea that the earlier writ petition filed by the petitioner had been withdrawn and since no liberty had been given to the petitioner to file a fresh writ petition, the subsequent writ petition on the same subject matter is barred under the principle enunciated in Order 23 Rule 1 CPC. Learned counsel appearing for the respondent has referred to a decision of the Supreme Court reported in AIR 1987 SC 88 (SARGUJA TRANSPORT SERVICE v. STATE TRANSPORT APPELLATE TRIBUNAL, GWALIOR AND OTHERS).
7. In our considered opinion, the plea raised by the respondents regarding maintainability of the present writ petition does not merit acceptance in the peculiar facts and circumstances of the case.
8. From the various contemporaneous records it is apparent that the counsel for the petitioner has made an endorsement dated 16.2.2005 on the docket regarding withdrawal of the writ petition with a liberty to file a fresh writ petition. Even though it has not been specifically stated so in such endorsement, the obvious reason for such withdrawal was that the petitioner in his representation dated 17.2.2005 has indicated that the review application dated 25.11.2004 was pending. As a matter of fact, after making the endorsement on 16.2.2005, on the very next day, i.e., 17.2.2005, the petitioner intimated to the Registry that he has taken steps to withdraw both the writ petitions (one relating to non-extension of service beyond 58 years and the other relating to grant of Super Time Scale) and his representations should be considered. The present writ petition has been filed only after further communication was received regarding rejection of his representation. Apart from the above, at the time of filing of the present writ petition, he filed a separate writ petition on the same day numbered as W.P.No.39846 of 2005 challenging the validity of the amendment. In the present case, the petitioner has also challenged rejection of his representation.
9. In these peculiar circumstances, it can be held that fresh writ petition is based on a different cause of action. Moreover, it is quite well known that in this Court, the normal practice is to obtain an endorsement regarding withdrawal of a case. In the present case, the endorsement indicates as if the petitioner wanted to withdraw with an intent to file a fresh writ petition. In the absence of any other endorsement and there is nothing to show that the endorsement was struck off by the petitioner having made such an endorsement, we can venture to observe that the intention of the court was to permit withdrawal with liberty to file a fresh writ petition. This conclusion is buttressed by the fact that immediately after 16.2.2005, when the endorsement was made, the petitioner himself wrote to the Registry to consider his review application and his representation regarding payment of Supertime scale. It is not that the petitioner was indulging in a Bench hunting and, therefore, withdrew the writ petition. On the other hand, it is quite evident that the petitioner wanted to withdraw the writ petition as he intended to pursue the review application and the representation filed by him, which were pending before the High Court in the Administrative side. Therefore, we proceed to take up the writ petition on merits.
10. The main contention of the learned counsel appearing for the petitioner is to the effect that though in view of the decision of the Supreme Court it cannot be said that a Judicial Officer has a right to continue in service till he attains the age of 60, a benefit has been conferred on the basis of the decision of the Supreme Court in AIR 1993 SC 2493 (cited above). It is submitted by him that a Judicial Officer can legitimately expect to have the benefit of extension of service till 60th year unless the High Court comes to the conclusion on a just and fair assessment that such officer would not be of any continued utility in Judicial Services for the purpose of administration of justice. In this context, he has submitted that the petitioner had not been communicated with any adverse entry, like serious lapses in Judicial service including any fall in the standard of integrity. In the absence of any discernible material to come to the conclusion that the petitioner would not be of any continued utility, it is submitted that the decision of the appropriate Committee as approved by the Full Court in its Administrative side, should be taken as vitiated as based on no material.
11. In this connection, the learned counsel appearing for the petitioner has pointed out that in the counter affidavit filed on behalf of the High Court, reference has been made to the Full Court meeting held on 28.10.1993, where the Full Court had adopted certain norms and guidelines to be followed by the screening committee. As reflected in the counter, the Full Court had resolved the following norms and guidelines :-
(1) Confidential Records of the Judicial Officer for the immediate last 5 years.
(2) The statement of Quantum of work turned out by the Officer for the immediate last 5 years.
(3) Medical Certificate from a District Surgeon about physical fitness of the officer to continue in service upto 60 years.
(4) Leave availed on medical grounds or on any other ground for the immediate last 5 years.
(5) Complaints / petitions against the Judicial Officer in the last 5 years.
(6) Any imposition of penalty against the officer in any departmental inquiry/inquiries against the officer during his service.
(7) Information, if any, regarding general reputation of the Officer. Learned counsel has further submitted that except taking a stand in the counter that these guidelines are strictly followed by the Full Court, there is no other material to indicate that the petitioner had been found inadequate on any particular aspect. In fact the counsel for the petitioner would invite the Courts attention to the petitioners service records to justify his claim that his service records are exemplary and relevant factors have missed the attention of the Administrative Committee.
12. In the counter affidavit except indicating that the Full Court had followed the guidelines and had come to the conclusion that the Officer was found to be not of any continued utility for Judicial service, no other material is indicated. In the absence of any other material in the counter affidavit, this court is constrained to look into the materials which had been considered by the Appropriate Committee / Full Court.
13. The relevant records have been made available to us at the time of hearing of the writ petition. A perusal of these records indicates that the following resolution was adopted by the Full Court :-
The Full Court has considered the desirability of continuing the services of Thiru K.S. Venkatchalam, District Judge, now functioning as Chairman, Industrial Tribunal, Chennai ... and decided not to continue the services of Thiru K.S. Venkatchalam, District Judge, Chairman, Industrial Tribunal, Chennai beyond 30.11.2004, on which date he is retiring on attaining 58 years, as he is found to be not of any continued utility for judicial services.
14. The aforesaid resolution is obviously based on note to the Full Court to the following effect :-
NOTE TO THE FULL COURT It is submitted that the following Judicial Officers are crossing the age of superannuation at 58 years on the date mentioned against their names :
_________________________________________________ Name and Designation Date of attaining of the Officer the age of 58 years Tvl.
1. K.S. Venkatachalam 30-11-2004 Industrial Tribunal, Chennai.
2. J.D. Rugmangathan 30-11-2004 Chief Judicial Magistrate Namakkal.
-_________________________________________________ According to the guidelines issued in the Judgment of Supreme Court of India in W.P.No.1022/89 dated 13-11-1991 and in the Review Application No249/92 in No.1022/89 dated 24-08-1993, the Screening Committee of High Court shall review the cases of the Judicial Officers who are crossing the age of 58 years for their continuance in service beyond the age of 58 years and upto 60 years or otherwise.
In this connection, it is submitted that as the medical fitness is one of the requirements, the aforesaid 2 Judicial Officers have been required to appear before the respective Medical Boards. The Medical Fitness Certificates in respect of Tvl.K.S. Venkatachalam, J.D. Rugmangathan have been received.
In the said circumstances, the booklets containing remarks recorded in the confidential reports by the Honourable Judges for the year 199 8-2002, the workdone statements for the abovesaid period, medical certificates, details of leave taken and the Vigilance report on the aforesaid 2 Judicial Officers is submitted below for Your Lordships kind consideration and orders."
15. Along with such Note, the service bio-data, confidential entries and the workdone statement for the period of 1998, 1999, 2000, 2001 and 2002 had been enclosed. In addition, the medical certificates, details of leave taken and the Vigilance report had also been furnished. The Vigilance report relating to the petitioner discloses that on the basis of certain allegations discreet enquiry had been undertaken, but no action had been taken. In other words, the Vigilance report is not incriminatory.
16. So far as the entries in Annual Confidential Report for the year 1998 is concerned, the learned Portfolio Judge has made endorsement Good. For the year 1999 the endorsement was satisfactory. Endorsement for the year 2000 upto the period September, 2001 are not available obviously because the petitioner was working as Registrar of the State Human Rights Commission and was holding administrative post. The endorsement for the period October, 2001 to 31.12.2001 is also recorded as satisfactory. The endorsement for the period from 1.1.2002 to 30.4.2002 is satisfactory.
17. Endorsement relating to promptitude in disposal of cases for the period from 3.5.2000 to 31.5.2002 is as follows :-
(a) Current - Satisfactory
(b) Old - There is shortfall in Civil Appeals The overall view of the aforesaid period is indicated to be satisfactory. In the Special Remarks, it has been indicated has done Sessions Cases more than the norms, but not reached the norms in the Civil Appeals. Such adverse remark, obviously relating to the shortfall in the Civil Appeals, had been communicated. The Statement relating to work turned out indicates that for the year 1998, the petitioner had not only reached the norms,but had done work in excess of the norms. The workdone for the year 1999 seems to be excess in respect of certain type of cases and shortfall in respect of some cases, but the overall work appears to be satisfactory as evident from the entries in the Annual Confidential Reports. During the year 2000 and till September, 2001, he was holding administrative post and, therefore, there was no judicial work. The workdone is indicated to be below for the year 2002. However, the endorsement in such report clearly indicates that there was Advocates boycott for 60 days, the Officer was on earned leave for 17 days and was on other duty for 9 days. The decision not to extend the services had been taken during October, 2004, by then, obviously, the workdone for the year 2003 must have been available. However, records do not show that the Confidential Entries for the year 2003 or the workdone for the year 2003 were placed for consideration.
18. A conspectus of the records, which had been placed before the Full Court, indicate that during the year 2002 there has been shortfall. However, the fact remains that there was Advocates boycott for 6 0 days and the Officer was on earned leave for 17 days and on other duty for 9 days. The entries relating to the earlier period do not indicate anything alarming against the officer. On the other hand, the entries for the year 1998 was good and the workdone was much in excess and the entries for the year 1999 was also satisfactory and the norms had been more or less reached. Even for the year 2002, except the entry relating to shortfall in the norms, other entries in the Annual Confidential Report indicate satisfactory. Nothing was available relating to the period of 2000 and major period of 2001 as the Officer was discharging duty as Registrar of the State Human Rights Commission. The confidential entries for the year 2003 and the workdone for the year 2003 have not been considered. Therefore, the case of the petitioner was not considered for the full five years in terms of the guidelines dated 28.10.1993.
19. Keeping in view these aspects, there appears to be sufficient justification in the submission made by the learned counsel appearing for the petitioner that the question of permitting such officer to continue beyond 58 years perhaps requires a further consideration. If the entries and workdone relating to the year 2003 would have been produced, it would be of some assistance to the Honble Administrative Committee / Full Court. If nothing was available for the year 2000 and a major portion of 2001, the entries and the workdone statement for the previous years 1996 or 1997 could have also been assessed. If all these materials had been placed before the Administrative Committee, it could have helped the Administrative Committee in the decision making process. Except to state this we do not wish to state anything on merits of the claim of the petitioner as regards his service records.
20. In the above view of the matter, we feel interest of justice would be served if the question of extension of service of the petitioner beyond 58 years is re-examined by the Appropriate Committee as well as the Full Court as expeditiously as possible.
21. With the above direction, the writ petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
Index : Yes Internet: Yes dpk To
1. The High Court of Judicature at Madras Rep. by its Registrar General, High Court, Chennai 600 104.
2. The Government of Tamilnadu, Rep. by Secretary to Government, Personnel & Administrative Reforms (FRIV) Department, Fort St. George, Chennai 600 009.