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