Service matter – an adverse remark not acted upon – pay hurdle for evaluation committee from not extending service of the respondent beyond the age of 58 years – when challenged High court set aside the same and order to review the same – Hence this appeal – Apex court held that the High court rightly set aside the orders of Evaluation committee but the delay of 14 years for reaching this case for hearing restrained the court to take right decision to redo the things – the apex court held that the respondent be treated to have retired from service on completion of 60 years of age and all consequential benefits, including pay and pension on that basis, be made available to him forthwith and without any delay.=
By a communication dated 17.5.2000 issued by the Registrar General of
the Patna High Court the respondent herein was informed that he would
retire from the service on completion of 58 years of age.
The said
communication of the Registrar General was, inter alia, based on a decision
of the High Court on the administrative side taken in a meeting of the Full
Court held on 6.5.2000 wherein the decision of its Evaluation Committee
dated 2.5.2000 not to extend the service of the respondent beyond the age
of 58 years was approved.
All the aforesaid decisions being challenged,
were set aside by the High Court by its order dated 20.2.2001 and the
matter was directed to be reconsidered.
Aggrieved, the High Court is in appeal before us.=
It is not in dispute that the adverse remarks/comments dated
15.12.1995 had not been communicated to the respondent.
It is also clear
from the materials on record that the standing committee of the High Court
in its meeting held on 3.1.1997 had decided to close the matter instead of
proceeding any further.
The subsequent ACRs of the respondent for the
years 1997-1998 and 2000-2001 are sufficiently positive and depicts the
respondent as an efficient judicial officer with a good reputation for
honesty and impartiality.
The respondent was promoted to the post of
District and Sessions Judge on 5.9.1998.
By Notification dated 17.2.2000
he was promoted to the selection grade of the Bihar Superior Judicial
Service with effect from 1.1.1997.
Therefore, not only the adverse remark
dated 15.12.1995 was not acted upon but subsequent thereto promotion to the
highest level in the district judiciary as well as selection grade in the
said cadre was granted to the respondent.
Promotion to the higher post of
District Judge and placement in the selection grade is on an assessment of
positive merit and ability.
The said promotion(s), therefore, would have
the effect of wiping out the adverse remark dated 15.12.1995.
Such a view
has in fact been expressed in Brij Mohan Singh Chopra Vs. State of
Punjab[4] (Para 10).
In the light of the above facts, we do not see how
the High Court, on the administrative side, can be found to be justified in
refusing to continue with the service of the respondent beyond the age of
58 years.
The order dated 20.2.2001 passed by the High Court setting aside
the said decision, therefore, will have to be affirmed and the present
appeal dismissed. We order accordingly.
10. What should be the consequential relief that ought to be granted?
A
period of nearly 14 years has elapsed in the meantime. It will be highly
inequitable to request the High Court to redo the exercise at this belated
stage.
Besides such a course of action will also be unnecessary,
particularly, when the entire service record of the respondent had been
placed before us, details whereof is also available in the impugned
judgment of the High Court.
Having considered the same, we deem it fit to
order that the respondent be treated to have retired from service on
completion of 60 years of age and all consequential benefits, including pay
and pension on that basis, be made available to him forthwith and without
any delay.
2014 (March . Part) judis.nic.in/supremecourt/filename=41350
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2529 OF 2002
HIGH COURT OF JUDICATURE … APPELLANT (S)
AT PATNA, THROUGH R.G.
VERSUS
SHYAM DEO SINGH & ORS. … RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. By a communication dated 17.5.2000 issued by the Registrar General of
the Patna High Court the respondent herein was informed that he would
retire from the service on completion of 58 years of age. The said
communication of the Registrar General was, inter alia, based on a decision
of the High Court on the administrative side taken in a meeting of the Full
Court held on 6.5.2000 wherein the decision of its Evaluation Committee
dated 2.5.2000 not to extend the service of the respondent beyond the age
of 58 years was approved. All the aforesaid decisions being challenged,
were set aside by the High Court by its order dated 20.2.2001 and the
matter was directed to be reconsidered. Aggrieved, the High Court is in
appeal before us.
2. A perusal of the order under challenge goes to show that two reasons,
in the main, had prevailed upon the High Court to arrive at the impugned
conclusion.
The first is that the negative remarks/adverse comments recorded in
the Annual Confidential Report (ACR) of the respondent on 15.12.1995 were
not communicated to the respondent and the foundational facts for the said
remarks are wholly unsubstantiated. It was also found by the High Court
that the standing committee of the High Court on 03.01.1997 had decided not
to pursue the matter but to treat the same as closed. The High Court also
took the view that notwithstanding the said remarks the respondent was
subsequently promoted to the post of District & Sessions Judge and also
granted the selection grade. The aforesaid facts, according to the High
Court, had the effect of wiping out the adverse remarks dated 15.12.1995.
The High Court, in the impugned order, also took note of the fact that the
ACRs of the respondent for the subsequent years indicated that the
respondent, over all, is a good officer with nothing adverse as to his
integrity and reputation.
The other reason for which the High Court had come to the impugned
conclusion is that while extension of service was refused to the
respondent, one Mr. Udai Kant Thakur whose ACRs were decidedly inferior to
that of the respondent was granted continuation after 58 years. It is on
the aforesaid twin basis that the High Court had concluded that the denial
of extension to the respondent necessitated interference in exercise of
power of judicial review under Article 226 of the Constitution.
3. We have heard Shri P.H. Parekh, learned senior counsel for the
appellant and Mr. Ambhoj Kumar Sinha, learned counsel appearing for the
respondent No.1.
4. It is convenient to deal, at the first instance, with the second
ground that had prevailed upon the High Court to set aside the orders
passed by it on the administrative side. Having considered the matter, we
do not think it is necessary for us to go into the said question inasmuch
as the entitlement to continuation/extension of service of a judicial
officer beyond the age of 58 has to be determined on the basis of the
service record of the particular officer under consideration and not on a
comparative assessment with the record of other officers. Therefore, even
if we hold that the ACRs of Shri Udai Kant Thakur were decidedly inferior
to those of the respondent, the same, at best, may have relevance to the
grant of extension to the aforesaid officer without conferring any right or
entitlement to the respondent for a similar extension. It is, therefore,
the first ground that had weighed with the High Court to grant relief to
respondent which really needs to be examined by us.
5. The adverse remarks dated 15.12.1995 being the center of focus may be
conveniently set out hereunder:
“Of late I have heard quite disturbing reports about the
integrity of Sri S.D. Singh, A.D.J., Dhanbad. I had a talk with
the District Judge there and he also expressed his
dissatisfaction about the working of Sri Singh in the discharge
of his duties as a Judicial Officer. Recently, I heard about a
criminal case lodged by C.B.I. (in which one Sri Modi and Sri
Gandhi figure as accused) where the conduct of Sri Singh is not
beyond reproach.”
6. In Bishwanath Prasad Singh Vs. State of Bihar & Ors.[1] which
coincidently arises out of the same resolution of the Full Court as in the
present case, this Court had the occasion to consider whether continuance
in service beyond 58 years is a right or a benefit conferred and also the
norms that should govern the decision to grant or refuse such continuance.
The aforesaid consideration by this Court was necessitated by the different
interpretations that seem to have emerged from the directions in All India
Judges’ Association & Ors. Vs. Union of India & Ors.[2]. In paragraph 18
of the report in Bishwanath Prasad Singh (supra) the conclusions of this
Court were summed up as follows:
“1. Direction with regard to the enhancement of superannuation age of
judicial officers given in All India Judges Assn. v. Union of India
does not result in automatic enhancement of the age of superannuation.
By force of the judgment a judicial officer does not acquire a right
to continue in service up to the extended age of 60 years. It is only
a benefit conferred on the judicial officers subject to an evaluation
as to their continued utility to the judicial system to be carried out
by the respective High Courts before attaining the age of 58 years and
formation of an opinion as to their potential for their continued
useful service. Else the judicial officers retire at the
superannuation age appointed in the service rules governing conditions
of services of the judicial officers.
2. The direction given in 1993 case is by way of ad hoc arrangement so
as to operate in the interregnum, commencing the date of judgment and
until an appropriate amendment is made in the service rules by the
State Government. Once the service rules governing superannuation age
have been amended, the direction ceases to operate.
3. The High Court may, before or after the normal age of
superannuation, compulsorily retire a judicial officer subject to
formation of an opinion that compulsory retirement in public interest
was needed. The decision to compulsorily retire must be in accordance
with relevant service rules independent of the exercise for evaluation
of judicial officer made pursuant to 1993 case2. Recommendation for
compulsory retirement shall have to be sent to State Government which
would pass and deliver the necessary orders.
4. If the High Court finds a judicial officer not entitled to the
benefit of extension in superannuation age he would retire at the age
of superannuation appointed by the service rules. No specific order or
communication in that regard is called for either by the High Court or
by the Governor of the State. Such retirement is not “compulsory
retirement” in the sense of its being by way of penalty in
disciplinary proceedings or even by way of “compulsory retirement in
public interest”. No right of the judicial officer is taken away.
Where the High Court may choose to make any communication in this
regard, it would be better advised not to use therein the expression
“compulsory retirement”. It creates confusion. It would suffice to
communicate, if at all, that the officer concerned, having been found
not fit for being given the benefit or extended age of superannuation,
would stand retired at the normal age or date of superannuation.”
7. It is in the light of the above propositions laid down in Bishwanath
Prasad Singh (supra) that the entitlement of the respondent as claimed and
the decision of the High Court on the administrative side to the contrary
will have to be examined, particularly, in the context of the extent of the
power of judicial review that would be available to examine the impugned
refusal made by the High Court.
8. The importance of the issue can hardly be gainsaid. The evaluation
of the service record of a judicial officer for the purpose of formation of
an opinion as to his/her potential for continued useful service is required
to be made by the High Court which obviously means the Full Court on the
administrative side. In all High Courts such evaluation, in the first
instance, is made by a committee of senior Judges. The decision of the
Committee is placed before the Full Court to decide whether the
recommendation of the Committee should be accepted or not. The ultimate
decision is always preceded by an elaborate consideration of the matter by
Hon’ble Judges of the High Court who are familiar with the qualities and
attributes of the judicial officer under consideration. This is also what
had happened in the present case. The very process by which the decision
is eventually arrived at, in our view, should permit a limited judicial
review and it is only in a rare case where the decision taken is
unsupported by any material or the same reflects a conclusion which, on the
face of it, cannot be sustained that judicial review would be permissible.
An enumeration of the extent of permissible judicial review has been made
by this Court in Syed T.A. Naqshbandi Vs. State of J&K[3]. Paragraph 10 of
the report which highlights the above position may be specifically noticed:-
“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 opinions, 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.”
(Emphasis is ours)
9. In the light of the above, we may now advert to the facts of the
present case.
It is not in dispute that the adverse remarks/comments dated
15.12.1995 had not been communicated to the respondent. It is also clear
from the materials on record that the standing committee of the High Court
in its meeting held on 3.1.1997 had decided to close the matter instead of
proceeding any further. The subsequent ACRs of the respondent for the
years 1997-1998 and 2000-2001 are sufficiently positive and depicts the
respondent as an efficient judicial officer with a good reputation for
honesty and impartiality. The respondent was promoted to the post of
District and Sessions Judge on 5.9.1998. By Notification dated 17.2.2000
he was promoted to the selection grade of the Bihar Superior Judicial
Service with effect from 1.1.1997. Therefore, not only the adverse remark
dated 15.12.1995 was not acted upon but subsequent thereto promotion to the
highest level in the district judiciary as well as selection grade in the
said cadre was granted to the respondent. Promotion to the higher post of
District Judge and placement in the selection grade is on an assessment of
positive merit and ability. The said promotion(s), therefore, would have
the effect of wiping out the adverse remark dated 15.12.1995. Such a view
has in fact been expressed in Brij Mohan Singh Chopra Vs. State of
Punjab[4] (Para 10). In the light of the above facts, we do not see how
the High Court, on the administrative side, can be found to be justified in
refusing to continue with the service of the respondent beyond the age of
58 years. The order dated 20.2.2001 passed by the High Court setting aside
the said decision, therefore, will have to be affirmed and the present
appeal dismissed. We order accordingly.
10. What should be the consequential relief that ought to be granted? A
period of nearly 14 years has elapsed in the meantime. It will be highly
inequitable to request the High Court to redo the exercise at this belated
stage. Besides such a course of action will also be unnecessary,
particularly, when the entire service record of the respondent had been
placed before us, details whereof is also available in the impugned
judgment of the High Court. Having considered the same, we deem it fit to
order that the respondent be treated to have retired from service on
completion of 60 years of age and all consequential benefits, including pay
and pension on that basis, be made available to him forthwith and without
any delay.
……………………………CJI.
[P. SATHASIVAM]
………………………………J.
[RANJAN GOGOI]
………….……………………J.
[N.V. RAMANA]
NEW DELHI,
MARCH 28, 2014.
———————–
[1] (2001) 2 SCC 305
[2] (1993) 4 SCC 288
[3] (2003) 9 SCC 592
[4] AIR 1987 SC 948
———————–
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