Important Point
Directions issued by the Supreme Court in All India Judges Association case 1993(4) SCC 288 to fix retirement age of members of Higher Judicial Service, which inter alia stipulated pre-retirement assessment to extend retirement age at 60 would cease to exist once a State Government frames appropriate Rules fixing age at 60. In such cases, unless the rules provide for pre-retirement assessment a member of Higher Judicial Service would be entitled to continue in servie till the age of 60.

Headnote:Service Law - West Bengal Higher Judicial Service - Superannuation-Compulsory retirement -Superannuation age fixed at 60 years on treating West Bengal Higher judicial service at par with Indian Administrative Service in all matters - Petitioners compulorily retired at 58 years on basis of review of petitioners service records-Governments plea that in terms of Supreme Courts decision in All Inida Judges Association case, 1993(4) SCC 288 High Court review performance of member of Higher Judicial Service could order compulsorily retirement-Not tenable-Directions issued in All India Judges Association case would cease to exist on framing of rules by State Governments-Once rule enhancing retirement age at 60 in framed as directed in All India Judges case which provided for pre-retirement assessment, in such case a district judge would be entitled to continue in service till 60 years of age in absence of rule providing for pre-retirement assessment-No provision in West Bengal Higher Judicial Service Rules-Compulsory retirement at age of 58 years on basis of review of service record not justified.
       Held : Directions in regard to retirement age and other directions given in regard to the members of the Higher Judicial Service in All India Judges Association case 1993(4) SCC 288 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, this Court in unequivocal terms and : “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 direction 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 all 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. (Para 7)
       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. Consequent upon the recommendation of the 5th Pay Commission the Central Government fixed the retirement age of Indian Administrative Services at 60. 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 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 compulsorily retirement of the petitioners, following directions of this court which had ceased to exist. (Paras 8 & 9)
       (ii) West Bengal Service Rules-Rule 75(2)(a)(a) - Compulsory retirement-Condition precedent to invoke rule 75(2)(a)(a)-Order must be in public interest. (Para 11)

Judgment

Santosh Hegde, J.-The above writ petitions are admitted for final hearing Notice having been served on he 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.

2. 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 yeras, i.e. 31.10.1998.

3. 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.

4. 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.

5. 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 yeras 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 onor 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 Governo of the State to compulsorily retire the concerned officer at the age of 58 years. For this proposition, the respondents relied upon the directions given by this Court in All India Judges’ Association & Ors. v. Union of India & Ors.1 . 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 permaturely.

6. 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 Higher Judicial Serice are treated at par with the members of the Indian Administrative Service in all matters. Therefore, when the Government of India 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.

7. To decide this controversy, it is necessary to briefly refer to the directions issued in the two cases of All India Judges’ Association.

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1999 Supreme(SC) 494

Cases Referred (2)