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PETITIONER:

SHRI RAJAT BARAN ROY

Vs.

RESPONDENT:

STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT: 13/04/1999

BENCH:

N.S.Hegde, R.C.Lahoti, S.P.Bharucha,

JUDGMENT:

SANTOSH HEGDE, J.

The above writ petitions are admitted for final

hearing. Notice having been served on the respondents, they

have put in their appearance and filed their response.

Since the questions involved in these writ petitions are

common, they are being disposed of by a common judgment.

In W.P. No.578/98, the petitioner was holding the

post in the rank of a District Judge, who was compulsorily

retired by an order of the Governor of West Bengal dated

23.10.1998 w.e.f. the date on which he attained the age of

58 years, i.e. 31.10.1998.

In W.P. No.601/98, the petitioner was also holding a

post equivalent to that of a District Judge and was

similarly retired by an order of the Governor of the State

of West Bengal dated 26.10.1998 on his attaining the age of

58 years which also happened to be 31.10.1998.

In W.P. No.638/98, the petitioner was posted as a

District Judge and was also compulsorily retired on his

attaining the age of 58 years w.e.f. 30.11.1998 by an order

of the Governor of West Bengal dated 2.11.1998. Admittedly,

the retirements of the petitioners are not on disciplinary

ground but on the ground that the High Court of Calcutta had

recommended the retirement of these judicial officers on

their having attained the age of 58 years. The grievance of

the petitioners in these petitions is that as per the

service rules applicable to them, their retirement from

service can take place only on their attaining the age of 60

years; whereas the respondents by the impugned orders have

prematurely retired them at the age of 58 years purportedly

on the basis of a review of the petitioners' service record,

performance, efficiency, integrity, utility etc. by a

Review Committee of the High Court which, according to the

petitioners, is not permissible in law. The respondents in

their pleadings urged that it is open to the High Court to

make a pre-retirement assessment of a member of the Higher

Judicial Service in the State of West Bengal on or about the

time such member attains the age of 58 years, and if the

High Court is not satisfied with the performance of the

officer concerned, it could recommend to the Governor of the

State to compulsorily retire the concerned officer at the

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age of 58 years. For this proposition, the respondents

relied upon the directions given by this Court in All India

Judges' Association & Ors. vs. Union of India & Ors.

(1993 4 SCC 288). The respondents further contend that even

otherwise in view of the power vested in them under Clause

2(a)(a) of Rule 75 of the West Bengal Service Rules, Part-I,

which applies in respect of officers of the West Bengal

Civil Service (Judicial) and the West Bengal Higher Judicial

Service, they have the authority to retire the petitioners

prematurely. We have heard learned counsel for the parties.

It is an admitted fact by both sides that the retirement age

of the judicial officers, at present, is 60 years. The

petitioners contend that by virtue of the Notification of

the Government of West Bengal No.14136-J dated 20.6.1992,

the members of the West Bengal Higher Judicial Service are

treated at par with the members of the Indian Administrative

Service in all matters. Therefore, when the Government of

India on 31.1.1998 fixed the retirement age of the members

of the Indian Administrative Service at 60 years,

automatically the retirement age of members of the West

Bengal Higher Judicial Service also got enhanced to 60

years. Hence, it is contended by the petitioners that their

retirement age is enhanced by the provisions of the

statutory rules. Per contra, the respondents contended that

the petitioners' retirement age is extended to 60 years by

virtue of the directions issued by this Court on 20.8.1993

in the case of All India Judges' Association case (supra)

and not by any statutory rules. This difference in the

source of retirement age has a direct bearing on the

validity of the impugned orders. To decide this

controversy, it is necessary to briefly refer to the

directions issued in the two cases of All India Judges'

Association. In the first case of All India Judges'

Association reported in (1992) 1 SCC 119 (hereinafter

referred to as `the 1992 case'), this Court issued the

following direction :- "(iii) Retirement age of judicial

officers be raised to 60 years and appropriate steps are to

be taken by December 31, 1992."

As per the above direction, it became the duty of all

the States and the Union of India to make suitable

provisions in the concerned Rules to enhance the retirement

age of the judicial officers to 60 years by 31.12.1992.

Instead of complying with the directions of this Court in

the 1992 case, the Union of India and some of the States

filed review petitions before this Court on various grounds.

The stand taken by the review petitioners was rejected by

this Court by an order which is reported in All India

Judges' Association & Ors. V. Union of India & Ors. (1993

4 SCC 288) (hereinafter referred to as `the 1993 case'). By

this order, this Court while directing that the retirement

age of the members of subordinate judiciary in India should

be 60 years, added a rider to the increase in the retirement

age by holding that this benefit of increase in retirement

age 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, according to this Court, was available to those

who, in the opinion of the respective High Courts, have a

potential for continued useful service. The Court further

said that it is not intended as a windfall for the indolent,

the infirm and those of doubtful integrity, reputation and

utility. The potential for continued utility was directed

to be assessed and evaluated by appropriate Committees of

Judges of the respective High Courts constituted and headed

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by the Chief Justices of the High Courts. This direction in

regard to the retirement age and other directions given in

regard to the members of the Higher Judicial Service in

India in the 1993 case, came to be issued because of the

failure on the part of the Governments concerned to perform

their obligatory duties. If as per the 1992 directions, the

Governments concerned had acted diligently then there would

not have been any cause for issuing the 1993 directions and,

consequently, the rider that was included in the 1993

directions, would not have been there at all. That apart,

in the 1993 directions, this Court in unequivocal terms said

: "The directions issued are mere aids and incidental to

and supplemental of the main direction and intended as a

transitional measure till a comprehensive national policy is

evolved." (emphasis supplied). In view of this observation,

it is clear that the direction issued as above, would cease

to exist when appropriate rule enhancing the retirement age

of the judicial officers to 60 years is made. Consequently,

the rider to the direction issued by the Court also ceases

to operate, being co-terminus with the direction. After the

directions in the 1993 case, in the case of such States

which had framed rules consequent upon which the members of

the subordinate judiciary in those States became entitled to

continue in service till the age of 60 years, it will have

to be held that the enhancement has come into force by

virtue of such rules framed. In other words, the

enhancement of retirement age in those States will be de

hors the directions of this Court and will be subject only

to the terms of the rules applicable. In such cases, in our

opinion, the pre-retirement assessment will not be

applicable unless the same is specifically provided under

the Rules. In the State of West Bengal, it is to be noted

that by virtue of the Government Order dated 20.6.1992, the

members of the West Bengal Higher Judicial Service were

treated at par with the members of the Indian Administrative

Service in all matters. From this order, it flows that any

change that is brought about in the service conditions of

the members of the Indian Administrative Service would ipso

facto becomes applicable to the members of the West Bengal

Higher Judicial Service also. Consequent upon the

recommendations made by the 5th Central Pay Commission, it

is seen from records that the Ministry of Personnel, Public

Grievances & Pension (Department of Personnel & Training),

Government of India, by an Office Memorandum dated

13.5.1998, informed the State of West Bengal that "the

President is pleased to direct that: (a) Except as

otherwise provided specifically, every Government servant

whose age of retirement is currently 58 years shall now

retire from service on the afternoon of the last day of the

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

However, Government servants whose date of birth is the

first of a month shall retire from service on the afternoon

of the last day of the preceding month on attaining the age

of sixty years;". The Government of West Bengal by a

separate order dated 15.5.1998 implemented the aforesaid

Office Memorandum of the Government of India in the

following terms :

"The terms of reference of the 4th Pay Commission

include inter alia, the issues relating to retirement

benefits. The Pay Commission has submitted a report for

enhancement of age of retirement from fifty eight years to

sixty years.

After careful consideration of the recommendation, the

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Governor is pleased to order in partial modification of Rule

75(a) of W.B.S.R. Pt. I, that the Government employees of

Group-A, Group-B and Group-C service shall retire from

service compulsorily with effect from the afternoon of the

last day of the month in which they attain the age of sixty

years.

This will take immediate effect."

By virtue of the Government Order of the State of West

Bengal dated 20.6.1992 when the State Government applied the

change in service conditions as per the Office Memorandum

dated 15.5.1998 to the members of its services automatically

the said change in the age of retirement became applicable

to the members of the West Bengal Higher Judicial Service

also. In other words, when the retirement age of the

officers of the Indian Administrative Service stood extended

from 58 years to 60 years, the retirement age of the members

of the West Bengal Judicial Service also automatically got

extended from 58 years to 60 years. Therefore on and from

the above date, the age of superannuation of a member of the

West Bengal Higher Judicial Service came to be governed by

the above rules. Consequently, the directions including the

raider there on issued by this court in the 1993 case ceases

to operate. Therefore, in our opinion, the contention of

the respondents that the rights of the petitioners to

continue in service till the age of 60 years is derived from

the directions issued by this Court in the 1993 case, cannot

be accepted, and we hold that so far as the members of the

West Bengal Higher Judicial Service are concerned, their age

of superannuation is 60 years, as contemplated in the

Official Memorandum of the Government of West Bengal dated

15.5.1998 as made applicable to the Higher Judicial Service

of West Bengal in its order dated 20.6.1992 and the said

Office Memorandum and the Government Order having not fixed

any pre-retirement assessment at the age of 58, it was not

open to the High Court to have recommended the compulsory

retirement of the petitioners, following directions of this

court which had ceased to exist. Alternatively, it is

contended on behalf of the respondents that the impugned

orders can also be justified by virtue of the power vested

in them under Rule 75(a)(a) of the West Bengal Service

Rules, Part I. It is contended that in view of the said

Rule, it is open to the respondents to retire a Government

Servant in public interest. Before we go into the validity

of this argument, it is necessary to examine whether, in

fact, the respondents invoked this Rule for the purpose of

issuing the impugned orders or not. A perusal of the

affidavit filed on behalf of the High Court clearly shows

that the respondents in exercise of the power vested in them

by virtue of the directions given in the 1993 case,

proceeded to pass the impugned orders. This is crystal

clear from the following paragraphs extracted from the

affidavit filed on behalf of the Registrar of the High Court

of Calcutta :

"3.4 In terms of the aforementioned memorandum dated

13.9.1994, and this Hon'ble Court's judgment in the All

India Judges case, Respondent No.1, the Judicial Department,

Govt. of West Bengal passed an order, Order No.9509-J dated

23.10.1998 inter alia stating that the writ petitioner was

to retire compulsorily from service on his attaining 58

years i.e. on 31.10.1998. The said order was passed on the

recommendation of the High Court. The High Court reviewed

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the petitioner's service records, performance, efficiency,

integrity, utility etc. and only after full assessment

thereof the said decision by the Review Committee of the

High Court to compulsorily retire the writ petitioner was

taken and consequential orders passed."

x x x

"3.8 Primarily it appears from the contents of the

various grounds taken by the writ petitioner that the

petitioner is praying for continuance in judicial service

till age of 60 without the required review procedure to be

followed in terms of this Hon'ble Court's orders in All

India Judges case basing his claim on the recommendation of

the 4th Pay Commission of the State Government enhancing the

age of superannuation of officers etc. of the West Bengal

Civil Service which is in effect a consequential order

issued after the 5th Pay Commission of the Central

Government recommended the age of retirement at 60 years. "

In view of the above pleadings, it is not possible for

us to accept the alternate argument of the respondents that

the impugned orders are de hors the directions issued by

this Court in the 1993 case. We will now examine the

contention of the respondents that the impugned orders can

be independently justified in view of the power vested in

them by virtue of Rule 75(a)(a) of the West Bengal Service

Rules, Part- I. The said Rule reads thus :

"Notwithstanding anything contained in this Rule the

appointing authority shall, if it is of opinion that it is

in the public interest so to do, have the absolute right to

retire a government employee by giving him notice of not

less than three months in writing or three months' pay and

allowances in lieu of such notice -

i) If he is in Group-A or Group-B (erstwhile gazetted)

service of post and had entered government service before

attaining the age of 35 years, if he has attained the age of

50 years and ii) In all other cases after he has attained

the age of 55 years."

A perusal of this Rule shows that this Rule can be

invoked for the purpose of retiring a Government servant in

"public interest" on satisfying the conditions mentioned in

sub-clauses (1) and (2) of that Rule. A careful perusal of

the impugned orders nowhere shows that the said orders are

being issued in "public interest" which is a condition

precedent for invoking this Rule. Nor does it advert

anywhere in the impugned orders in regard to the conditions

specified in sub-paras (1)( and (2) of the said Rule. If we

have to examine the impugned orders in the light of this

Rule then the same has to be held to be bad in law for

non-application of mind and want of material particulars

which are mandatory for invoking the said Rule. Therefore,

the argument of the respondents seeking to justify the

impugned orders based on Rule 75(a)(a) of the said Rules

also has to be rejected. In the said view of the matter, we

do not find any force in the arguments advanced on behalf of

the respondents to sustain the impugned orders. For the

reasons stated above, these writ petitions are allowed. The

impugned orders No.9509-J dated 23.10.1998, No.9518-J dated

26.10.1998 and No.9628-J dated 2.11.1998 issued in the name

of the Governor of West Bengal by the Government of West

Bengal are hereby quashed. No order as to costs.

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