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CASE NO.:

Appeal (civil) 2898 of 2001

Appeal (civil) 2920 of 2001

Appeal (civil) 7342 of 2001

PETITIONER:

Nawal Singh

Chander Pal Singh

Bharthari Prasad

RESPONDENT:

State of U.P. & Another

State of U.P. & Another

State of U.P. & Another

DATE OF JUDGMENT: 23/09/2003

BENCH:

M.B. SHAH & Dr. AR. LAKSHMANAN.

JUDGMENT:

J U D G M E N T

Shah, J.

Challenge in these appeals is to the orders of compulsory

retirement of Judicial Officers, who were working in the State of U.P.

At the outset, it is to be reiterated that the judicial service is not

a service in the sense of an employment. 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. Further 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. If such

evaluation is done by the Committee of the High Court Judges and is

affirmed in the writ petition, except in very exceptional

circumstances, this Court would not interfere with the same,

particularly because order of compulsory retirement is based on the

subjective satisfaction of the Authority.

On the basis of the aforesaid principles these appeals against the

judgments and orders dated 19.4.1999, 27.3.1999 and 15.2.2000

passed by the High Court of Allahabad in CMWP No.14831 of 1999,

CMWP No.28664 of 1998 and CMWP No.1312 of 1999, challenging

their compulsory retirement at the age of 58 years, are required to be

decided.

I. At the time of hearing, firstly, it is submitted by the learned

counsel for the appellants that:â\200\223

? In view of the Rule increasing the retirement age from 58

years to 60 years, Rule 56 of U.P. Fundamental Rules

would stand repealed.

For this purpose, learned counsel for the appellants relied upon

the Rules regulating the retirement on superannuation of the Judicial

Officers framed by the State of U.P. vide Notification dated 20th

October, 1992, published in the U.P. Gazette Part 1(ka) dated 3rd

April, 1993, p. 930, SI. No.14. The said Rules read as under:â\200\224

1. Short title and commencement.â\200\224 (1)

These rules may be called the Uttar Pradesh Judicial

Officers (Retirement on Superannuation) Rules, 1992.

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(2) They shall come into force with effect from

the date of their publication in the Gazette.

2. Overriding effect.â\200\224 The provisions of

these rules shall have effect notwithstanding anything

to the contrary contained in Rule 56 of the Uttar

Pradesh Fundamental Rules, contained in the Financial

Handbook, Volume II, Parts II to IV or any other rules

made by the Governor under the proviso to Article 309 of

the Constitution or orders, for the time being in force.

3. â\200¦.

4. Retirement.â\200\224 A Judicial Officer shall

retire from service on superannuation in the afternoon of

the last day of the month in which he attains the age of

sixty years."

Before appreciating the contentions of the learned counsel for

the parties, we would refer to Rule 56 of the U.P. Fundamental Rules,

which reads thus:â\200\224

"56. (a) Except as otherwise provided in this Rule,

every Government servant other than a Government

servant in inferior service shall retire from service on the

afternoon of the last day of the month in which he attains

the age of fifty eight years. He may be retained in

service after the date of compulsory retirement with the

sanction of the Government on public grounds which

must be recorded in writing, but he must not be retained

after the age of 60 years except in very special

circumstances.

(b) A Government servant in inferior service

shall retire from service on the afternoon of the last day

of the month in which he attains the age of sixty years.

He must not be retained in service after that date, except

in very special circumstances and with sanction of the

Government.

(c) Notwithstanding anything contained in

clause (a) or clause (b), the appointing authority may, at

any time by notice to any Government servant (whether

permanent or temporary), without assigning any reason,

require him to retire after he attains the age of fifty

years or such Government servant may by notice to the

appointing authority voluntarily retire at any time after

attaining the age of forty five years or after he has

completed qualifying service of twenty years.

(d) The period of such notice shall be three

months:

Provided thatâ\200¦

(e) A retiring pension shall be payable and other

retirement benefits, if any shall be available in

accordance with and subject to the provisions of the

relevant Rules to every Government servant who retires

or is required or allowed to retire under this Rule.

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Provided thatâ\200¦â\200¦

Explanation: (1) The decision of â\200¦.. public interest.

(2) In order to be satisfied whether it will be in

the public interest to require a Government servant to

retire under clause (c) the appointing authority may take

into consideration any material relating to the

Government servant and nothing herein contained shall

be construed to exclude from considerationâ\200\224

(a) any entries relating to any period before

such Government servant was allowed to

cross any efficiency bar or before he was

promoted to any post in an officiating or

substantive capacity or on an ad hoc basis;

or

(b) any entry against which a representation is

pending, provided that the representation is

also taken into consideration along with the

entry; or

(c) any report of the Vigilance Establishment

constituted under the Uttar Pradesh

Vigilance Establishment Act, 1965.

(2-A) Every such decision shall be deemed to have

been taken in the public interest.

(3)â\200\224(4) â\200¦ "

The title of the aforesaid 1992 Rules makes it clear that the

Rules only pertain to U.P. Judicial Officers' Retirement on

Superannuation and provide that a judicial officer shall retire from

service on superannuation when he attains the age of sixty years.

Learned counsel for the appellants submitted that Rule 2 would

have overriding effect and Rule 56 as a whole would not be applicable

to the Judicial Officers. This submission is without any substance.

Rule 2 only provides that notwithstanding anything to the contrary

contained in Rule 56 of the U.P. Fundamental Rules, a Judicial

Officer shall retire from service on superannuation when he attains the

age of 60 years. Under Rule 56 (a), the retirement age is 58 years and

that part of the Rule would not be applicable as it is contrary to Rule 4

of the 1992 Rules.

Further, from the Rules quoted above, it is apparent that the

1992 Rules regulating the retirement on superannuation of the Judicial

Officers deal only with the extension of retirement age from 58 to 60

and by giving overriding effect Rule 56 (a) of the Fundamental Rules

is substituted for judicial officers of the State of U.P. From this, by no

stretch of imagination, it can be said that Rule 56 (b) to (e) and the

Explanations (1), (2) or (3) are, in any way, altered, amended or

substituted. If the contention of the learned counsel for the appellant

is accepted, the other rules which provide for giving such employee

retirement benefits as provided in Rule 56 (e), issuance of notice by

considering the material relating to government servants for

compulsory retirement would be redundant. Such contention is

apparently without any basis. Hence, it does not require further

elaboration. However, we would refer to the decision in A.G.

Varadarajulu and Another v. State of T.N. and Others [(1998) 4

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SCC 231] which was relied upon by the learned senior counsel Mr.

Dwivedi, wherein [in para 16] this Court held as under:-

"16. It is well settled that while dealing with a non

obstante clause under which the legislature wants to give

overriding effect to a section, the court must try to find

out the extent to which the legislature had intended to

give one provision overriding effect over another

provision. Such intention of the legislature in this behalf

is to be gathered from the enacting part of the section. In

Aswini Kumar Ghose v. Arabinda Bosee AIR 1952 SC

369, Patanjali Sastri, J. observed"

"The enacting part of a statute must, where

it is clear, be taken to control the non obstante

clause where both cannot be read harmoniously."

In Madhav Rao Scindia v. Union of India (1971) 1 SCC

85 at page 139, Hidaytullah, C.J. observed that the non

obstante clause is no doubt a very potent clause intended

to exclude every consideration arising from other

provisions of the same statute or other statute but "for

that reason alone we must determine the scope" of that

provision strictly. When the section containing the said

clause does not refer to any particular provisions which it

intends to override but refers to the provisions of the

statute generally, it is not permissible to hold that it

excludes the whole Act and stands all alone by itself. "A

search has, therefore, to be made with a view to

determining which provision answers the description and

which does not."

II. The learned counsel next submitted that as per the Allahabad

High Court Rules, before recommending compulsory retirement of the

appellants, the Full Court was required to pass such orders and as the

Full Court has not passed any resolution, compulsory retirement is

bad.

Dealing with Allahabad High Court Rules, in State of Uttar

Pradesh v. Batuk Deo Pati Tripathi & Another [(1978) 2 SCC 102],

7-Judge Bench of this Court considered similar contention and

negatived the same by holding that it was misconception that control

over the Subordinate Judiciary which is vested by Article 235 in the

High Courts must be exercised by the whole body of the Judges.

The Court negatived the contention that the High Court cannot

delegate its function or power to a Judge or smaller body of Judges of

the Court; it is no exaggeration to say that the control will be better

and more effectively exercised if a smaller committee of Judges has

the authority of the court to consider the manifold matters falling

within the purview of Article 235. Such an authorisation effectuates

the purpose of Article 235. After elaborate discussion, the Court

upheld the minority judgment of the Full Bench that Rule 1 of Chapter

III of the 1952 Rules framed by the Allahabad High Court is within

the framework of Article 235 and the recommendation made by the

Administrative Committee that the Judicial Officer should be

compulsorily retired cannot be said to suffer from any legal or

constitutional infirmity. The aforesaid decision is repeatedly followed

by this Court. Finally, in Chandra Singh and Others v. State of

Rajasthan and Another [(2003) 6 SCC 545] the Court observed as

under:â\200\224

"40. Article 235 of the Constitution of India enables the

High Court to assess the performance of any judicial

officer at any time with a view to discipline the black

sheep or weed out the deadwood. This constitutional

power of the High Court cannot be circumscribed by any

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rule or order. â\200¦

47. In the instant case, we are dealing with the higher

judicial officers. We have already noticed the

observations made by the Committee of three Judges.

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."

Similarly, in High Court of Judicature for Rajasthan v. P.P.

Singh [(2003) 4 SCC 239], the Court held that:â\200\224

"19. It is also true that the powers of the Chief

Justice under Articles 235 and 229 of the Constitution of

India are different and distinct. Whereas control over the

subordinate courts vests in the High Court as a whole, the

control over the High Court vests in the Chief Justices

only. (See All India Judges' Association's case).

However, the same does not mean that a Full Court

cannot authorize the Chief Justice in respect of any

matter whatsoever. In relation to certain matters keeping

the rest of it in itself by the Full Court, authorization to

act on its behalf in favour of the Chief Justice on a

Committee of Judges is permissible in law. How far and

to what extent such power has been or can be delegated

would be discernible only from the Rules. Such a power

by the Full Court can also be exercised from time to

time."

III. The learned counsel for the appellants thirdly submitted that in

view of the decision rendered by this Court in High Court of

Judicature at Allahabad through Registrar v. Sarnam Singh &

Another [(2000) 2 SCC 339] the orders passed by the High Court

compulsory retiring the appellants on the basis of the directions issued

by this Court in All India Judges' Association v. Union of India &

Others [(1992) 1 SCC 119] cannot be justified.

Learned Counsel submitted that in similar set of circumstances

for the rules framed by the State of U.P. extending the age limit from

58 years to 60 years, this Court has held that for all Judicial Officers

working in the subordinate courts, retirement age would be 60 years

and thus, the age having been raised from 58 years to 60 years, all

Judicial Officers in the State would retire on attaining the age of 60

years and not earlier.

In the aforesaid case, the Court held that in view of the

aforesaid rule which had overriding effect, the directions given by this

Court [in All India Judges' Association case (supra)] for scrutiny of

the service records before allowing the Judges to continue in service

beyond 58 years, being of a transitory character, yielded place to the

new rules made by the State Government under Article 309 of the

Constitution and, therefore, it was no longer incumbent upon the High

Court to resort to the procedure of scrutiny of the service records of

all the Judicial Officers before allowing them the benefit of extension

in the age of retirement. The Court held that the directions issued by

this Court in the Review Petition in All India Judges' Association

case, for scrutiny of service record would not be applicable as the

judicial officers by virtue of new rule would continue up to the age of

superannuation fixed under the new rule.

Firstly, it is to be stated that in the case of Sarnam Singh

(supra), the High Court on judicial side has set aside the order of

compulsory retirement passed on the report of the Scrutiny

Committee, as it was based on no material in support of such order.

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That order was challenged before this Court by the High Court of

Allahabad. In that set of circumstances, the Court arrived at the

conclusion that once the retirement age of judicial officers was

extended to 60 years, the direction issued in All India Judges'

Association Case for scrutiny of service records before allowing the

judges to continue in service beyond 58 years would not survive and,

therefore, there was no question of passing order of compulsory

retirement. The only reason recorded in the said judgment for

confirming the order passed by the High Court was that compulsory

retirement was bad as the judicial officer was entitled to continue up

to the age of 60 years in view of the amended Rules framed under

Article 309 of the Constitution.

This Court in Sarnam Singh's case (supra) was not required

and has not dealt with exercise of powers by the High Court under

Rule 56(c).

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

Judges' Association 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. In All India

Judges' Association and others v. Union of India and others [(1993)

4 SCC 288 â\200\223 (Review Petition)], this Court has made it clear that the

direction issued by the Court for continuing judicial officers in service

by considering their suitability for the entitlement of the benefit of

increased age of superannuation from 58 to 60 years was in addition

to the assessment to be undertaken for the compulsory retirement

and the compulsory retirement at the early stage/s under the

respective Services Rules.

Therefore, there is no embargo on the competent authority to

exercise its power of compulsory retirement under Rule 56 of

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

directions issued by this Court in First All India Judges' Association

case, but at the same time, before passing the order of compulsory

retirement, the High Court exercised its powers under Fundamental

Rules and that is specifically mentioned in the orders.

IV. It was finally contended by the learned counsel for the

appellants that there was no justifiable reason for passing the order of

compulsory retirement.

This contention is required to be appreciated on the basis of

settled law on the subject of compulsory retirement. In Baikuntha

Nath Das and another v. Chief District Medical Officer, Baripada

and another [(1992) 2 SCC 299], this Court considered Fundamental

Rule 56(j) and rule corresponding to it and observed that the object

and purposes for exercise of these powers are well stated in Union of

India v. J.N. Sinha [(1970) 2 SCC 458] and other decisions referred

to by the Court and held thus:â\200\224

"34. The following principles emerge from the

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above discussion:

(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 â\200\224 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 â\200\224 of course attaching

more importance to record of and

performance during the later years. The

record to be so considered would naturally

include the entries in the confidential

records/character rolls, both favourable and

adverse. If a government servant is

promoted to a higher post notwithstanding

the adverse remarks, such remarks lose their

sting, more so, if the promotion is based

upon merit (selection) and not upon

seniority.

(v) An order of compulsory retirement is not

liable to be quashed by a Court merely on

the showing that while passing it

uncommunicated adverse remarks were also

taken into consideration. That circumstance

by itself cannot be a basis for interference."

In J.N. Sinha's case (supra), the Court specifically held that

the rule embodies one of the facts of the pleasure doctrine embodied

in Article 310 of the Constitution and that the rule holds the balance

between the rights of the individual government servant and the

interest of the public; the rule is intended to enable the government

to energise its machinery and to make it efficient by compulsorily

retiring those who in its opinion should not be there in public interest.

Further, it is to be reiterated that the object of compulsory

retirement is to weed out the dead wood in order to maintain high

standard of efficiency and honesty to keep judicial service unpolluted.

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It empowers the authority to retire officers of doubtful integrity which

depends upon overall impression gathered by the higher officers and it

is impossible to prove by positive evidence that a particular officer is

dishonest. This aspect is dealt with in Union of India v. M.E. Reddy

and another [(1980) 2 SCC 15] wherein the Court (in para 17) held

thus:â\200\224

"Mr. Krishnamurty Iyer appearing for Reddy

submitted that the order impugned is passed on materials

which are non-existent inasmuch as there are no adverse

remarks against Reddy who had a spotless career

throughout and if such remarks would have been made in

his confidential reports they should have been

communicated to him under the rules. This argument, in

our opinion, appears to be based on a serious

misconception. In the first place, under the various rules

on the subject it is not every adverse entry or remark that

has to be communicated to the officer concerned. The

superior officer may make certain remarks while

assessing the work and conduct of the subordinate officer

based on his personal supervision or contact. Some of

these remarks may be purely innocuous, or may be

connected with general reputation of honesty or integrity

that a particular officer enjoys. It will indeed be difficult

if not impossible to prove by positive evidence that a

particular officer is dishonest but those who have had

the opportunity to watch the performance of the said

officer from close quarters are in a position to know the

nature and character not only of his performance but also

of the reputation that he enjoys."

In the backdrop of the settled law, the learned counsel for the

parties have drawn our attention to the relevant material considered by

the Committee appointed by the High Court. The Committee

followed the procedure prescribed in Rule 56, as provided in

explanation to the said Rule. The material on record reveals that the

High Court has taken into consideration all the relevant facts. There

is no allegation that the orders were arbitrary or mala fide. Still

however, with regard to each case, we would refer in brief what has

been stated in Confidential Reports of the appellants.

CIVIL APPEAL No.2898 OF 2001

Appellant Nawal Singh was appointed in 1972. In Confidential

Reports for the year 1975-76, 1976-77, it has been mentioned that his

judicial work needs improvement. For the year 1980-81, his judicial

work was of average quality. For the year 1984-85, the District Judge

has rated him as good officer. For the year 1986-87, there were

complaints about his integrity. For this purpose, reference was made

to cases wherein he had granted bail in serious offences. However,

with regard to doubtful integrity, the representation of the appellant

was accepted and it was substituted by holding that no reason to doubt

the integrity of the officer. Again, for the year 1990-91, it has been

stated that with regard to the interim orders/injunctions, he was

directed to be more scrupulous; it was stated that integrity was

doubtful and over all assessment was poor. On his revision, adverse

remarks with regard to his integrity were expunged by holding that the

appellant was suspended during the relevant year pending the

departmental enquiry touching his integrity but he was exonerated by

the Administrative Committee. Again, there are instances indicating

that various inquiries were held subsequently. It is not necessary to

refer to the same. His application for revoking the suspension was also

rejected. However, later on, order of suspension was revoked.

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CIVIL APPEAL No.2920 OF 2001

Same is the position with regard to Chander Pal Singh. His

confidential reports reveal that various allegations were made and

various inquiries were held against him. Once he was charged with

the offence of committing breach of guidelines prescribed by the High

Court and also for committing an act of gross mis-conduct by

misusing the authority of the District & Sessions Judge in violation of

Rule 3 of U.P. Government Servants Conduct Rules, 1956. In one

matter, the District Magistrate, Fatehpur made a complaint against

him stating that he was entertaining revisions against orders passed by

him under Section 3 of U.P. Control of Goondas Act, 1970. The

matter was referred to the Administrative Committee for

consideration.

CIVIL APPEAL No.7342 OF 2001

Case of Bharthari Prasad is also of the same nature. His

confidential reports reveal that various allegations were made and

various inquiries were held against him. In confidential report for the

year 1975-76, the District Judge observed disposal of cases to be poor

and judgment of average quality. For the years 1978-79 and 1980-81,

the disposal was observed to be below standard. Once he was charged

for the omission while delivering the judgment of conviction in the

absence of the accused and also discharging the bail bonds and

sureties, which was in violation of Section 353 of Cr.P.C. For this,

he was asked to be careful in future. For the year 1994-95, District

Judge remarked his integrity to be doubtful and overall assessment as

poor. Representation of the appellant against these remarks was also

rejected. For the year 1997-98, the District Judge awarded adverse

remarks against him. The District Judge also requested for his

transfer from Allahabad to another station. The appellant was later on

transferred from Allahabad. It is also stated that the appellant did

not comply the orders of transfer but even after receiving the orders of

transfer, he continued to decide cases. The matter was later on

considered by the Administrative Committee.

Hence, it is apparent that the Screening Committee after

examining the past records of service; character roll and other matters

relating to the appellants opined that they were not suitable for

continuing in service beyond the age of 58 years.

From the facts narrated above, even if we were to sit in appeal

against the subjective satisfaction of the High Court, it cannot be said

that the orders of compulsory retirement of the appellants are, in any

way, erroneous or unjustified. Further, it is impossible to prove by

positive evidence the basis for doubting integrity of the judicial

officer. In the present day system, reliance is required to be placed on

the opinion of the higher officer who had the opportunity to watch the

performance of the concerned officer from close quarters and

formation of his opinion with regard to overall reputation enjoyed by

the concerned officer would be the basis.

It is to be reiterated that for keeping the stream of justice

unpolluted, repeated scrutiny of service records of judicial officers

after specified age/completion of specified years of service provided

under the Rules is must by each and every High Court as the lower

judiciary is the foundation of judicial system. We hope that the High

Courts would take appropriate steps regularly for weeding out the

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dead-wood or the persons polluting justice delivery system.

In the result, the appeals are dismissed with costs, quantified at

Rs.5000/- in each appeal.