IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.10.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.28080 of 2006 O.A.No.6934 of 1996 E.Nagasubramaniam ... Petitioner vs. 1. The Secretary to Government, Personnel and Administrative Reforms Department, Madras-9. 2. The Secretary to Government, Revenue Department, Madras-9. 3. The Principal Commissioner and Commissioner of Revenue Administration, Madras-5. ... Respondents This petition came to be numbered by transfer of O.A.No.6934 of 1996 from the file of the Tamil Nadu Administrative Tribunal praying for a Mandamus, directing the respondents to continue the petitioner in service beyond 30.11.1996 till he attains the age of 60 years. For Petitioner : Mr.S.Ilamvaludhi For Respondents : Mr.V.Viswanathan, Addl. Government Pleader O R D E R The petitioner was a Deputy Collector of Tamil Nadu Civil Services. At the time of filing of the Original Application, he was working as Personal Assistant (General) to the District Collector, Salem. He was due to retire from service on attaining the age of superannuation in the Afternoon of 30.11.1996. Placing reliance on G.O.Ms.No.365, Personnel and Administrative Reforms (F.R.IV) Department, dated 04.10.1996, enhancing the retirement age of Judicial Officers from 58 to 60 years, the petitioner has contended that as between the post of Deputy Collector in the Tamil Nadu Civil Service and the post of District Munsif cum Judicial Magistrate in the judicial department, there is no similarity in the scale of pay and the nature of duties, etc. According to the petitioner, prior to separation of judiciary, the posts of Sub Magistrate (now designated as Judicial Magistrate) were held by the Deputy Tahsildars of the Revenue Subordinate Service. 2. The petitioner has further submitted that in the post of Deputy Tahsildar, apart from passing departmental tests, the Personal Assistants in Revenue Service have to pass, (1) Criminal Judicial Test, (2) Indian Evidence Act and (3) Medical jurisprudence. Besides, they have to undergo Police Training for six weeks and Magisterial Training for six months. As a Revenue officer, the petitioner is also conferred with the powers of a Special Judicial Magistrate under Section 13 of the Code of Criminal Procedure read with the rules framed by this High Court. He has further submitted that at the level of Deputy Collectors/Executive Officers, they have the powers to enforce Sections 107, 144, and 145 etc., of the Criminal Procedure Code. 3. The petitioner has further contended that Judicial Magistrates are confined within the four corners of the Court, whereas the Executive Magistrates have to do both judicial and field work. He has contended that the amended Rule 56 of the Fundamental Rules issued in favour of the Judicial Officers is discriminatory and arbitrary. According to the petitioner, the amendment brought about to Judicial officers, should be made applicable to the case of Revenue Officers also and that a resolution was also passed to that effect in the meeting of the Joint Action Committee of the Tamil Nadu Civil Service Association and the Tamil Nadu Tahsildars and Deputy Tahsildars Association held at Trichy on 16.11.1996. Since the petitioner was due to retire on 30.11.1996, he had prayed for a direction to the respondents to continue his service beyond 30.11.1996 till he attained the age of 60 years. 4. Heard the learned counsel for the parties and perused the materials available on record. 5. At the time of filing of the Original Application, the petitioner was aged 58 years and in the normal course, he would have retired from service on attaining the age of superannuation. As on today, the relief prayed for in the Writ Petition cannot be granted. 6. As per FR 56(1), every government servant in the superior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He shall not be retained in service after that age except with the sanction of the Government on public grounds, which must be recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances. Article 234 deals with the recruitment of persons other than District Judges to the judicial service and it reads as follows: "Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State." 7. Chapter VI of Part VI of the Constitution of India deals with Subordinate Courts. Article 233 of the Constitution of India deals with the appointment of district judges and it reads as follows: "(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment." 8. The purpose of increasing the age of retirement is well explained in All India Judges Association (I) v. Union of India reported in 1992 (1) SCC 119, on consideration of various aspects of the matter under Articles 32, 234 and 235 of the Constitution of India, passed the following directions, "(i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard. (ii) Steps should be taken to bring about uniformity in designation of officers both in civil and the criminal side by March 31, 1993. (iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by December 31, 1992. (iv) As and when the Pay Commissions/Committees are set up in the States and Union territories, the question of appropriate pay scales of judicial officers be specifically referred and considered. (v) A working library at the residence of every judicial officer has to be provided by June 30, 1992. Provision for sumptuary allowance as stated has to be made. (vi) Residential accommodation to every judicial officer has to beprovided and until State accommodation is available, government should provide requisitioned accommodation for them in the manner indicated by December 31, 1992. In providing residential accommodation, availability of an office room should be kept in view. (vii) Every District Judge and Chief Judicial Magistrate should have a State vehicle, judicial officers in sets of five should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits as specified. (viii) In-service Institute should be set up within one year at the Central and State or Union territory level." 9. In All India Judges Association (II) v. Union of India reported in 1993 (4) SCC 288, decided on 24.08.1993, the Supreme Court laid down that the benefit of enhanced age of retirement, 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 will be available to those, who in the opinion of the respective High Courts, have a potential for continued useful service. It is not an windfall for the indolent, the infirm and those integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate committee of judges of the High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation has to be made on the judicial officer's past record of service, character rolls, quality of judgments and other relevant matters. 10. In Ramesh Chandra Acharya v. Registrar, High Court of Orissa, reported in 2000 (6) SCC 332, the Supreme Court observed that the purpose of increasing the superannuation age for the judicial officers was with an intention to raise the tone and morale of the judicial officer's as a whole, but not to continue the officers who had lost their utility in rendering service to the society. It is accepted that the judicial officer is required to discharge much more greater responsibility to the society. 11. In the above two judgments, the Supreme Court also held that there should be no question of equation or parity between the judicial service and the executive service. Pursuant to the judgement in All India Judges Association (II)'s case, the Government have issued G.O.Ms.No.365, Personnel and Administrative Reforms (F.R.IV) Department, dated 04.10.1996, enhancing the retirement age of Judicial Officers from 58 to 60 years. 12. Duties and functions of a District Munsif cum Judicial Magistrate and Judges of higher judiciary are not equivalent to that of the revenue authorities, as claimed by the petitioner. Merely because, the petitioner had undergone Police and Magistrate training for a period of six months, he cannot equate himself with that of a Judicial Officer. Substantive powers of the Judicial officers under various laws of this Country and that of the revenue officers are distinct and separate. Executive officers, incidentally exercising powers under any of the provisions of Criminal Procedure Code or any other procedural law, cannot claim or equate themselves to the level of judicial officers. The revenue officers are tested only in selected area for the purpose of discharging their executive magisterial duty and by no stretch of imagination, their knowledge of law in the above areas is equivalent or sufficient for adjudicating various types of litigation in Courts. 13. Hence, I do not find any merits in the Writ Petition and the same is dismissed. No costs. 24.10.2008 Index: Yes skm To 1. The Secretary to Government, Personnel and Administrative Reforms Department, Madras-9. 2. The Secretary to Government, Revenue Department, Madras-9. S. MANIKUMAR, J. skm 3. The Principal Commissioner and Commissioner of Revenue Administration, Madras-5. W.P.No.28080 of 2006 24.10.2008