2003 Supreme(SC) 638

2003(5) Supreme 128
SUPREME COURT OF INDIA
(From Rajasthan High Court)
V.N. Khare, CJI., S.B. Sinha & AR. Lakshmanan, JJ.
Chandra Singh -Appellant
versus
State of Rajasthan & Anr. -Respondents
Civil Appeal No. 5576 of 2000
With
Civil Appeal Nos. 6078/2000 and 7441/2000
Decided on 22-7-2003
Counsel for the Parties :
For the Appearing Parties : P.P. Rao, Sr. Advocate, K.V. Viswanathan, Atul Kumar Sinha, Advocate for K.V. Venkataraman, A.P. Dhamija, Advocate for Sushil Kumar Jain, Ranji Thomas, Ms. Bharati Upadhyaya, Advocate for V.N. Raghupathy, Ms. Sandhya Goswami, Advocate (NP)/Advocates.
For the In-person : C.A.No. 6078/2000.

IMPORTANT POINT
Orders retiring appellants belonging to Rajasthan Higher Judicial Service w.e.f. 31.3.1999 when all the appellants had crossed the age of 58 years, held unsustainable as their cases could not have been reviewed as on the said date.

Headnote:(i) Service Law-Rajasthan Service Rules, 1951-Rules 56 and 56A-Rajasthan Civil Services (Pension) Rules, 1996-Appellants Officers of Rajasthan Higher Judicial Service, retired from service w.e.f. 31.3.1999 on attaining age of superannuation-Order challenged-Appellants had crossed age of 58 years on 31.3.1999 -Their cases could not have been reviewed as on the said date-Review Committee of the High Court considered the question as to whether having regard to their performance their services should be extended or not in terms of exception contained in Rule 56, although the amended rules had not come into force-They were found ineligible for extension of their services-Recommendations were made by Full Court of Rajasthan High Court that they be compulsorily retired-Whether High Court has requisite jurisdiction to evaluate performance of appellants to hold that their services should not have been extended from 58 to 60 years-(No)-Rajasthan General Clauses Act, 1955-Section 24.

       Held : The impugned orders, therefore, could not have been passed in terms of the Exception contained in Rule 56 of the Rajasthan Service Rules. Further contention of the appellants to the effect that the High Court, keeping in view the fact that amended rules were to come into force with effect from 31.3.1999, could not have initiated a proceeding, prior thereto also appears to be correct. This Court in Boppanna Venkateswaraloo and Others (supra) categorically held that the orders affecting substantive right could be made under such law only after it comes into force and not in anticipation thereof. (Para 32)

       The appellants themselves have relied upon the un-amended Rule 56. The Rajasthan Service Rules, 1951 apply also to the judicial officers in terms whereof the age of superannuation had been fixed at 60 years or 58 years, as the case may be. Exception provided for in Rule 56 of the said Rules also is a pointer to the fact that the said Rules apply to the judicial officers. Unless the said rules are per se applicable, the question of making any exception to the applicability thereof would not arise. In other words, the exclusionary clause contained in the exception points out to the applicability of the rules and thus it must be held that the members of the judicial service come within the purview thereof. The contention of the appellants to the effect that the said exception runs contrary to the decisions of this Court in All India Judges Association s case (supra) is not correct. The said exception, in our opinion, has been provided in conformity with the directions contained in said decision. (Para 34)

       This takes us to the question as to the whether the action of the High Court in making the assessment of the performance of the appellants prior to 31.3.1999 stand the scrutiny of Rule 53 of the Rajasthan Civil Service (Pension) Rules, 1996. In a given case, the said rule may be taken recourse to but the High Court never took any stand that its action was justified thereunder. Ex facie the said rule is not applicable inasmuch as it has never been the contention of the respondents that the impugned order had been passed in public interest or other pre-requisite therefor, namely, giving of three months notice in writing to the Government servant before the date on which he is required to retire in public interest or three months pay and allowances in lieu thereof, had been complied with. Compliance of pre-requisites of such a rule, it is well-settled, is mandatory and not directory. (Para 35)

       (ii) Constitution of India-Article 136-Appeal by special leave-Scope-Refusal to exercise discretionary jurisdiction in favour of appellant-Appellant must show that exceptional and special circumstances exist and if there is no interference, substantial and grave injustice will result-Service Law-Higher Judicial Service-Retirement before attaining age of 60 years.

       Held : Even if the appellants contention is right in law having regard to the overall circumstances of the case, this Court would be justified in declining to grant relief under Article 136 while declaring the law in favour of the appellants. (Para 40)

       We have been taken through the annual confidential reports as against the appellants. Having gone through the same, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction in favour of the appellant. This Court in Brij Mohan Gupta s case (supra) has also refused to exercise its discretionary jurisdiction in favour of the appellant although the order of the High Court was found liable to be set aside being not in accordance with law. This Court said that this principle applies to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter. So even after the appeal is admitted and special leave is granted, the appellant must show that exceptional and special circumstances exist, and that, if there is no interference, substantial and grave injustice will result and that the case has features of sufficient gravity to warrant a review of the decision appealed against on merits. So this Court may declare the law or point out the lower Courts error, still it may not interfere if special circumstances are not shown to exist and the justice of the case on facts does not require interference or if it feels the relief could be moulded in a different fashion. Paras 42 and 43)

       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. In the instant case, the appellants, so retired, does not lose any part of their benefit that they have earned during their service and it involves no penal consequence and in our view the retirement is not considered prima facie and per se as punishment. (Paras 45 and 46)