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2006 Supreme(Pat) 302
PATNA HIGH COURT
J.N.Bhatt and S.N.Hussain JJ.
Rana Abhai Singh
Versus
Hon Ble High Court Of Judicature At Patna
Civil Writ Jurisdiction Case No. 6826 of 2005 ;
Decided On : APRIL 05, 2006
Headnote:Bihar Service Code, 1952-Rule 74(b) (ii)-Compulsory retirement-For sending home a government servant on his completing 30 years of qualifying service or his attaining the age of 50 years, there after the authority can pass an order for compulsory retirement against the government servant in public interest provided he has been served with a notice of three months in writing or an amount equal to three months pay and allowances in lien of such notice-This provision is mandatory and non-observance and non-implementation of the said provisions shall violate and vitiate the order of compulsory retirement against the government servant.
(Paras 31 & 33)
2000(1) PLJR 1016, (1995)3 SCC 608, AIR 199 SC 1018, 200(1) PLJR 649 -Relied upon.
1987 LabIC 1878- Referred to.
Bihar Service Code 1952-Rules 73 and 74 (b) (ii)-Compulsory retirement of Judicial officer-Entire consolidated service record of the petitioner is not only satisfactory by the administrative side of the High Court but has been graded as "good" and at times even higher than that as "very good"-Nothing has been spelt out from the record that continuation of such an officer Who has a "Good service record will be against Public interest-Statutory Provision of Rule 74 (b) (ii) not complied with-Also after amended provision of Rule 73 provisional directions for extended two years service from 58 years to 60 in terms of All India Judges Associations case ceased to apply and statutory provision remains in the field-Impugned order of compulsory retirement set aside being vitiated for noncompliance of Rule 74(b) (ii) and amended provision of Rule 73-Prayerallowed with direction to give all consequental benefits monetory and otherwise and directed to place the matter expeditiously on High Courts administrative side for further necessary administrative orders and directions as to reinstatement of the petitioner and to post him as District and Sessions Judge with all consequential benefits.
(Paras 40, 44, 82, 84 & 86)
Words and Phrases-When a mala fide is alleged against an institution or constitutional authority ordinarily it would be a question of malice of law and not malice in fact-However it depends upon the fact situation.
(Para 41)
Administrative law-It is celebrated and known doctrine that when the decision making process itself is influenced by extraneous consideration for whatever reasons it would be nothing but malice, either in law or fact or both as well as the case may be.
(Para 42)
Constitution of India-Article 235-Constitution makers have designedly provided provision in Article 235 for complete control over the subordinate judiciary by the High Court so that independence of judiciary doctrine could be very well subserved-The control over the subordinate judiciary by High Court is exclusive in nature, comprehensive in extent and effective in operation-High Court is thus sole guardian and custodian as mandated by Article 235- The role of High Court exercising its power under Article 235 is not only a role of a manager or master, but it is a role of guardian-High Court exercising its administrative side is obliged to consider various aspects, various considerations and thereafter has to reach to a conclusion collectively-High Court acts on its judicial side through Benches-But the decision of any Bench is a decision of the High Court-Likewise High Court acts on its administrative side through committees, but the decision of the committee is a decision of High Court reflecting the collective will and wistom of High Court-Order under Article 235 is justiciable-Judicial review is permissible to an extent namely to prob and analyse decision making process itself only and not to examine the merits of the decision-What should be the quality, what should be the standard what should be the nature of order of a management or a master much less the High Court under Article 235 is not within the domain of judicial review-The parameters of judicial review under Article 226 are very much certain-Therefore a court dealing with such an "order is obliged to address itself to this distinction-The Constitutional history undoubtedly commands and demands that the parameters and the safeguards envisaged in Articles 235 and 226 must be borne in mind while examining the merits of disputes and questions arising out of the orders of administrative nature.
(Paras 49 to 51)
Constitution of India-Article 226-The powers of High Court under Article 226 are no doubt very wider but are circumscribed in certain parameters and are to be exercised in a limited circumference-Any and every administrative order is not challengeable with the aid of Article 226-Extraordinary, special, prerogative plenary equitable powers of writ Court are required to be exercised essentially for the prevention of violation of constitutional provisions or statutory provisions-Article 226 therefore can be employed in a given case when illegibility is perpetrated or manifest in justice is done in violation of the principles of natural justice-The powers under Article 226 are discetionary-What is disigned is to see as to whether the "decision making process" is just, proper and legal without any contamination-It the decision making process is found to be free from any vice or quite fair or quite reasonable it is not for the High Court to question the nature of the decision, the type of the action and the quality of the actors-Otherwise the role of the Court under Article 226 would not be supervisory but it would become a role of an appellate Court it is not what is decided to be seen but how decided that is to be seen-It law say free, fair, just reasonable then what becomes immaterial-Court can not substitute the managerial decision or administrative wisdom.
(Paras 52 to 54)
Bihar Service Code 1952-Rule 74(b) (ii)-Compulsory retirement of judicial officer from Superior Judicial Officer-Role of High Court under Article 226 is narrower in case of a challenge against the Management arising out of service jurisprudence-It cannot be administrative-What is required to be seen by the court when a question is ralsed with the help of Article 226 against the order of compulsory retirement which is passed by the management much less collective decision of the High Court is as to whether any vice or extraneous consideration like "mala fide" violation of principle of law, irrationality, unreasonableness or unjustness has tainted the decision of the authority-If the answer I no the matter ends-Of course the orders are required to be passed on public ground, on the ground of administrative exigencies and if the impugned orders are recorded on these grounds which are unquestionable and without any contamination they can not be challenged much less with the aid of extraordinary equitable prerogative powers under Article 226 of the Constitution of India-Standard extent quality and like aspect are not to be examined like an appellate court or superior authority under Article 226-The administrative order can not be interfered with unless (1) it is vitiated by proved mala fide or (ii) is found in violations of rule, provision or statutory provisions or (iii) suffers from vice or irrationalist unreasonableness or impropriety.
(Paras 55, 56, 62 & 65)
Administration of Justice-Judicial Review-in the realm of public law is the heart and hub of the judicial mechanism in our constitution-Ground of judicial review are illegality, irrationality and procedural impropriety-Initial source of power for judicial review was common law and that the over all ground of judicial review is that the repository of public power has breached the limits placed upon grant of that power-Approach of the court in judicial review on administrative decision rendered by another constitutional functioning on administrative side in terms of another constitutional statutory functionary ordinarily shall be to respect and honour unless it is suffering from vice of legal factual malice or want of rationality, reasonableness or suffers from discrimination or non application of mind.
(Paras 68 & 69)
Bihar Service Code, 1952-Rules 73 and 74 (b) (ii) read with Article 235 of Constitution of India and Rule 3 (x) of Rules of High Court at Patna 1916-Compulsory retirement of judicial officer-Compulsory retirement of an employee or an officer in terms of service rule or in terms of statutory power read with Article 235 of constitution of India of the functionary like the High Court is not punitive and not stigmatic but when it is questioned or assailed it is incumbent upon the High Court on its judicial side to place in scale all the facts and circumstances along with service record of an officer or the employee concerned and examine as to whether in the light of the materials on record whether an ordinary prudent man would have reached to the same decision as it is being recorded and latter on challenged by the adversely affected officer-Supervision and control of the High Court over the judicial officer working in the district judiciary is paramount and is mainly vested in the Standing Committee-Case of compulsory retirement of any judicial officer of any rank has to be dealt with and decided by the standing committee-Consideration of benefit of the enhanced age from 58 to 60 years of retirement of judicial officers in terms of direction in All India Judges Associations case and later on in statutes and subject to the statutory provisions and ceased to operate when extended or enhanced age of superannuation at 60 under rule 73 came to be effective.
(Paras 70, 78 to 83)
(1992)2 SCC 299, (1984)2 SCC 8, (1999)3 SCC 396, (1999)3 SCC 235, (2000)2 SCC 339, (2003)6 SCC 545- Relied upon.
Bihar Service Code 1952-Rule 74 (b) (ii) read with Rule 3 (x) of Rules of High Court at Patna, 1916-Compulsory retirement of a judicial officer has to be dealt with and decided by the Standing Committee of High Court and net by taking the matter to the Full court. (Para 82)
Bihar Service Code 1952-Rule 74 (b) (ii) read with Article 235 of Constitution of India-Compulsory retirement of judicial officer-High Court on its powers under Article 235 of the Constitution of India, may so take a decision which is spelt out to be in violation of statutory provision or, on facts, is found to be irrational and unreasonable but the High Court on its judicial side, in exercise of its duty under the provisions of Article 226 has to put such an impugned order in its legal shape and give justice to a judicial officer.
(Para 84)
Constitution of India-Article 235-August constitutional institution of the High Court is not only the bacon light and the brought ray as hope of citizens of this country but is also a guardian and custodian as well as head of the judicial family of the judicial officers working within its jurisdiction in terms of Article 235 of the constitution of India.
(Para 86)
J.N.Bhatt, J.
1. The Sole issue, which is brought into focus by the petitioner, in this petition, by invocation of the Constitutional Writ remedy under Art. 226 of the Constitution of India for our consideration and adjudication, has been "as to whether the order of compulsory retirement recorded against the petitioner, who was working at the relevant time, as District & Sessions Judge, in the Superior Judicial Service, in the State of Bihar, in terms of the provisions of Rule 74(b)(ii) of the Bihar Service Code, 1952 (Bihar Code) and denying him the benefit of the extended age from 58 to 60 years, passed by the State Government under the order of the Governor and on the recommendation of the High Court, upon exercise of Administrative wisdom and Jurisdiction, in terms of the constitutional powers, under Art. 235 of the Constitution of India, requires any interference by this Court under Art. 226 of the Constitution of India ?
2. Thus, shortly stating, the Petitioning Judicial Officer has invited a legal battle between the exercise of Constitutional Power under Art. 235 and Constitutional Duty under Art. 226 of the Constitution of India in this petition for our consideration and Judicial Adjudication. PREFATORY-BACKGROUND
3. In order to appreciate the merits of the petition, at the instance of the petitioner, one Mr. Rana Abhai Singh, District Judge, who came to be compulsorily retired by virtue of a notification bearing No. 4198, dated 30.5.2005, of the Personnel & Administrative Reforms Department, Government of Bihar, Patna, issued under the order of the Governor, on the recommendation of the High Court in exercise of power under Rule 74(b)(ii) of the Bihar Code, with effect from service of the said notification which is, precisely, under focus by way of challenge in this writ petition, let there be a projection and narration of skeleton of factual profile from the pleadings and materials from record giving rise to the present petition.
4. By virtue of a letter addressed by the Registrar General, dated 18th May, 2005, to the Secretary to the Government of Bihar, Department of Personnel Administrative Reforms, Patna, in continuation of High Courts earlier letter No. 9627, dated 16th December, 2004, it came to be communicated to the State Government that the Court having reconsidered the entire service record of Shri Rana Abhai Singh, petitioner herein, District & Sessions Judge, Gopalganj, at the relevant time, who having completed 58 years of age and in the opinion of the High Court, it was not in the public interest to retain him in service any longer and that the power under Rule 74(b)(ii) of the Bihar Code should be exercised to make him retire compulsorily from service with effect from 31st May, 2005, the date on which, otherwise, also he was due to complete 56 years of age. It is further stated, on behalf of the High Court, by the Registrar General in the said letter under reference, that the High Court recommended that Shri Rana Abhai Singh, the petitioner, herein, be made to retire compulsorily in public interest under Rule 74(b)(ii) of the Bihar Code on giving him three months salary in lieu of three months notice.
5. Let it be mentioned that one of the contentions of the petitioner has been that there is flagrant violation of the provisions incorporated in Rule 74(b)(ii) of the Bihar Code and in that it has been further contended that prerequisite of giving three months notice, or in lieu thereof, three months salary has not been paid before the impugned order of compulsory retirement was passed and served upon him and it has yet not been paid till date. It is in these context, for the purpose of factual record, it appears from the record of the High Court, the respondent No. 1 that High Court had not placed any thing on record as to whether such a contention is justified or even correct or not.
6. Is this an apthy or sympathy ? We have yet to follow. However, in order to have a factual profile, which has a
