2000 Supreme(SC) 2059

2000(8) Supreme 585
Supreme Court of India
(Under Art. 32 of the Constitution of India)
Dr. A.S. Anand, CJI., R.C. Lahoti & Shivaraj V. Patil, JJ.
Bishwanath Prasad Singh etc. —Appellants
versus
State of Bihar & Ors. —Respondents
Writ Petition (C) No. 419 of 2000
With
Writ Petition (Civil) No. 505 of 2000
Decided on 15-12-2000
Counsel for the Parties :
For the Appellants : R.K. Jain, Sr. Advocate, Amarendra Sharan, Neeraj Shekhar, Ambhoj Kumar Sinha, Advocates.
For the Respondents : G.L. Sanghi, Sr. Advocate, Uma Nath Singh and B.B. Singh, Advocates.

Important Point
Direction with regard to the enhancement of superannuation age of judicial officers given in All India Judges’ Association & Ors. v. Union of India & Ors., (1993) 4 SCC 288 does not result in automatic enhancement of the age of superannuation. By force of the judgment a judicial officer does not acquire a right to continue in service upto the extended age of 60 years. It is only a benefit conferred on the judicial officers subject to an evaluation as to their continued utility to the judicial system to be carried out by the respective High Courts before attaining the age of 58 years and formation of an opinion as to their potential for their continued useful service. Else the judicial officers retire at the superannuation age appointed in the service rules governing conditions of services of the judicial officers.

Headnote:(i) Service Law—Judicial Service—District and Session Judge—Age of Superannuation—Direction with regard to enhancement of superannuation age in All India Judges Association & Ors. v. Union of India & Ors., (1993) 4 SCC 288—Does not result in automatic enhancement of age of superannuation—A judicial officer does not acquire a right to continue in service upto extended age of 60 years by force of above judgment—Directions in above judgment is ad hoc arrangement—Availability of benefit is conditioned upon exercise of evaluation undertaken by High Court and individual judicial officer having satisfied test of continued utility to judicial system in opinion of High Court.

       1993 case is not intended to operate as a piece of legislation and certainly it could not have been so. It is only on account of inaction of the executive to carry out the directions of this court made in the 1992 case that persuaded this court into issuing suitable directions, ad-hoc in nature, to remain in operation for the period for which the field was not occupied by statutory rules by amendment made to bring the rules in conformity with the directions in 1993 case. The direction in 1993 case, enhancing the age of retirement from 58 to 60 years is a benefit and not a right. The availability of benefit is conditional upon the exercise of evaluation undertaken by the High Court and the individual judicial officer having satisfied the test of continued utility to the judicial system in the opinion of the High Court. Extension of service is neither automatic nor a windfall. (Para 13)

       In 1993 case this court mandated that the exercise of evaluation for the purpose of finding out the suitability of the concerned officer for entitlement of the benefit of the increased age of superannuation has to be undertaken before the officer attains the age of 58 years. At such evaluation the High Court may arrive at one of the three conclusions with respective consequences as under :-

       (i) The High Court may find the officer having the potential for rendering continued useful service whereupon the officer would be given an extension in the age of superannuation;

       (ii) The High Court may find the officer not only not entitled for being conferred the benefit of extended age of superannuation but may also find that the officer is a burden on public exchequer with no utility for judicial service, intolerable even to be retained upto the age of 58 years, the normal superannuation age, then the High Court may undertake further exercise by following the procedure prescribed by the statutory rules governing compulsory retirement and, in the event of such an opinion being formed bonafide, may compulsorily retire him forthwith. The later exercise can be undertaken before or after crossing the age of 58;

       (iii) The High Court may form an opinion that the officer does not have utility for continued service so as to be retained beyond 58 years of age but at the same time he is not such a dead wood as cannot be tolerated even upto the normal age of superannuation, i.e. 58 years, as appointed by the statutory rules, then the High Court may simply observe silence and allow the officer concerned to retire at the normal age of superannuation.

       In the first case, the only follow-up action required by the High Court is to inform the Government of its decision so that the Government knows that the officer which, according to its records, was going to retire on completing the age of 58 years would be continuing upto the age of 60 years. The officer concerned may also be informed so as to feel assured that he has to serve upto the age of 60 years and also feel encouraged that his performance in office, honesty, uprightness and hard work have earned him the benefit of holding the post for another two years beyond the normal age of superannuation; the judicial system acknowledges his utility for continuing the association ahead. In the second case, the High Court, having followed the statutory procedure applicable to compulsory retirement in public interest, shall communicate its finding by way of recommendation to the State Government and the State Government shall act on the recommendation as required by Article 235 of the Constitution and pass the consequential order of compulsory retirement whereupon the compulsory retirement shall take effect. In the third case, no order is required to be passed or communicated either to the State Government or to the officer concerned. The officer would be retiring on his reaching the normal superannuation age. The State Government and the officer both know as soon as the officer enters the service as to what his date of retirement is. However, for the sake of convenience and by way of courtesy, the High Court may inform the officer that he was not being given the benefit of extended age of superannuation under the 1993 case. (Paras 14 & 15)

       The word compulsory retirement is not a very appropriate expression to be employed in the cases covered by category (iii) because the officer has neither been given the benefit of ‘extended age of superannuation’ nor was being retired prematurely nor was being compulsorily retired’ in the sense the expression is known to service jurisprudence but was being allowed to retire simplicitor at the age of superannuation appointed by the service rules governing him. His length of service was neither being extended nor snapped mid-way. In this third category of cases, the employment of words compulsory retirement’ denotes only this much that the High Court having undertaken the exercise of evaluation in the terms of 1993 case and having formed the opinion that the officer was not entitled to benefit of extension, there was no other option left available except to allow the officer concerned to retire at the normal age of his superannuation. Even assuming, without conceding that the retirement at the normal age of superannuation, viz. 58 years, has been consciously called ‘compulsory retirement in the 1993 case, the same would at the most be a compulsory retirement in public interest’ and certainly not by way of penalty casting any stigma. But in any case other than the exercise of evaluation undertaken by the High Court, an order of so called compulsory retirement’ would not need to be passed by the State Government in as much as such retirement was not under the service rules but only in terms of the judgment of the Supreme Court which judgment does not require an order by the State Government to be passed for its validity or efficacy. Thus, there is no scope for raising the pleas sought to be raised by the petitioner herein. The observation of the Supreme Court contained in clause (b) of para 52 - "since the service conditions with regard to superannuation age of the existing judicial officers is hereby changed" read in the context where it occurs is intended to mean this much and nothing more than that the judicial officers not desirous of availing the benefit of the enhanced superannuation age have to give an option failing which they will be subjected to the exercise of evaluation by the High Court (in terms of the Supreme Court directions) to consider their suitability for allowing the benefit of extended superannuation age. The observation are required to be construed in the context in which they appear and not de-hors the same. (Paras 16 & 17)

       Direction with regard to the enhancement of superannuation age of Judicial officers given in All India Judges’ Association & Ors. v. Union of India & Ors., (1993) 4 SCC 288 does not result in automatic enhancement of the age of superannuation. By force of the judgment a judicial officer does not acquire a right to continue in service upto the extended age of 60 years. It is only a benefit conferred on the judicial officers subject to an evaluation as to their continued utility to the judicial system to be carried out by the respective High Courts before attaining the age of 58 years and formation of an opinion as to their potential for their continued useful service. Else the judicial officers retire at the superannuation age appointed in the service rules governing conditions of services of the judicial officers. 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. The High Court may, before or after the normal age of superannuation, compulsorily retire a judicial officer subject to formation of an opinion that compulsory retirement in public interest was needed. The decision to compulsorily retire must be in accordance with relevant service rules independent of the exercise for evaluation of judicial officer made pursuant to 1993 case. Recommendation for compulsory retirement shall have to be sent to State Government which would pass and deliver the necessary orders. If the High Court finds a judicial officer not entitled to the benefit of extension in superannuation age he would retire at the age of superannuation appointed by the service rules. No specific order or communication in that regard is called for either by the High Court or by the Governor of the State. Such retirement is not ‘compulsory retirement’ in the sense of its being by way of penalty in disciplinary proceedings or even by way of ‘compulsory retirement in public interest’. No right of the judicial officer is taken away. Where the High Court may choose to make any communication in this regard, it would be better advised not to use therein the expression ‘compulsory retirement . It creates confusion. It would suffice to communicate, if at all, that the officer concerned, having been found not fit for being given the benefit of extended age of superannuation, would stand retired at the normal age or date of superannuation. (Para 18)

       (ii) Service Law—Compulsory retirement—Meaning of.

       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 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. Then there are service rules, such as Rule 56(j) of 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 that in public interest it is necessary to compulsorily retire a government servant. In that 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 basis of the order for compulsory retirement in public interest is formed bonafide, 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 malafide, 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 the dead wood, the paper-logged and callous. (Para 12)

       (iii) Service Law—Confidential records—Annual entries—In case of judicial officers—Assessment of quality and quantity of performance and progress should be ongoing process continued round the year—Purpose of annual entry—Need for vigilently carrying out annual inspections at regular intervals and making timely entries in service records followed by prompt communication to judicial officers so as to afford them a right of representation in the event of entry being adverse.

       The well-recognised and accepted practice of making annual entries in the confidential records of subordinate officials by superiors has a public policy and purposive requirement. It is one of the recognized and time-tested modes of exercising administrative and disciplinary control by a superior authority over its subordinates. The very power to make such entries as have potential for shaping the future career of a subordinate officer casts an obligation on the High Courts to keep a watch and vigil over the performance of the members of subordinate judiciary. An assessment of quality and quantity of performance and progress of the judicial officers should be an ongoing process continued round the year and then to make a record in an objective manner of the impressions formulated by such assessment. An annual entry is not an instrument to be wielded like a teachers cane or to be cracked like a whip. The High Court has to act and guide the subordinate officers like a guardian or elder in the judicial family. The entry in the confidential rolls should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of a superior. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officers to secure an improvement in his performance where need be; to admonish him with the object of removing for future, the shortcoming found; and expressing an appreciation with an idea of toning up and maintaining the immitable qualities by affectionately patting on the back of meritorious and deserving. An entry consisting of a few words, or a sentence or two, is supposed to reflect the sum total of the impressions formulated by the inspecting judge who had the opportunity of forming those impressions in his mind by having an opportunity of watching the judicial officer round the period under review. In the very nature of things, the process is complex and the formulation of impressions is a result of multiple factors simultaneously playing in the mind. The perceptions may differ. In the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in confidential rolls to judicial review. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls. (Para 33)

       Rules - where they are, else the executive instructions, require that entries in confidential records are made within a specified time soon following the end of the period under review, generally within three months from the end of the year. Delay in carrying out inspections or making entries frustrates the very purpose sought to be achieved. The mental impressions may fade away or get embellished, not to be restored. Events of succeeding year may cast their shadow on assessment of previous years. Recording of entries for more than one period in one go must be avoided as it is pregnant what is the risk of causing such harm as may never be remedied or granting undeserved benefits. We trust and hope the High Courts would have regard to what we have said and streamline the procedure and practice of inspections and recording of entries in confidential rolls so as to achieve regularity, promptness and objectivity inspiring confidence of subordinate judiciary controlled by them. We can only emphasise upon the High Courts the need for vigilantly carrying out the annual inspections at regular intervals and making timely entries in the service records followed by prompt communications to the judicial officers so as to afford them a right of representation in the event of the entry being adverse. (Para 34)