IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 22.07.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P. NO. 16317 OF 2007 P.Shanmugam .. Petitioner - Vs - 1. State of Tamil Nadu rep. by Secretary to Government Home Department Fort St. George Chennai 600 009. 2. The High Court of Judicature at Madras rep. by its Registrar General High Court Chennai 600 104. .. Respondents Writ petition filed for the issuance of a writ of certiorarified mandamus calling for the records of the respondent herein relating to the order of the High Court in ROC No.2A/2006- Con.B2, dated 25th Jan., 2007 and quash the same and consequently direct the respondents to permit the petitioner herein to continue in service till the age of 60 years. For Petitioner : Mr. Venkataramani, SC, for Mr.A.Thiagarajan For Respondents : Mr. M.Dhandapani, Spl. G.P. for R-1 Mr. T.S.Sivagnanam for R-2 ORDER S.J.MUKHOPADHAYA, J. The petitioner, who was serving as district Judge-cum-Chief Judicial Magistrate, Udagamandalam, his case fell for consideration before the High court to determine whether he should be allowed to continue in service beyond the age of 58 years and upto 60 years and by order ROC No.2A/2006-Con.B2 dated 25th Jan., 2007, as he was informed that he was not found fit to continue in service beyond the age of 58 years in public interest and allowed him to retire from https://hcservices.ecourts.gov.in/hcservices/ service on attaining the age of 58 years, the petitioner preferred the present writ petition against the said order. 2. The background of the petitioner is that he was appointed as second class Magistrate (Sub Judge (Jr. Division)) on 22nd Feb., 1982; promoted to the cadre of Subordinate Judge (Civil Judge – Sr. Division) on 8th June, 1998 and then to the next higher post of District & Sessions Judge on 3rd May, 2000. On 4th Oct., 2000, he was transferred and posted as II Addl. District Judge, Coimbatore and, thereafter, as Addl. District Judge-cum-Judicial Magistrate at Perambalur. From 28th Oct., 2002 to 31st Dec., 2005, the petitioner was serving as District Judge-cum-Chief Judicial Magistrate, Udagamandalam. From 5th Jan., 2006 till attaining the age of 58 years he was serving as Addl. District Judge, City Civil Court at Chennai. 3. Learned senior counsel appearing on behalf of the petitioner submitted that the impugned order dated 25th Jan., 2007, has been issued without any basis, in absence of any adverse remark against the petitioner. Though for all purpose the performance of the petitioner was adjudged 'Good' or 'Satisfactory' and the standard of judgment was found to be 'Good', still he was not granted extension upto 60 years, though it was allowed in favour of others, including juniors, without any basis. It was further submitted that except for one year, where a remark 'Shortage of Disposal' is recorded, even such remark was never communicated. Learned senior counsel further submitted that the petitioner requested the Information Officer, High Court of Madras on 7th Feb., 2007, under the Right to Information Act to provide the certain particulars, but curiously the particulars were not furnished. 4. According to the 2nd respondent, Madras High Court, the case of the petitioner was considered by the Administrative Committee in its meeting held on 10th Jan., 2007, which resolved as follows :- "On considering the remarks recorded in the Annual Confidential Reports, work done statements and other relevant records including the latest vigilance reports relating to the above mentioned officers, it is resolved to allow Thiru P.Jacob Jayakumar, Sub Judge, Kallakurichi and Thiru K.Ravikumar, Sub Judge, Tiruvarur, to continue in service beyond the age of 58 years. Further considering the Annual Confidential Reports, work done statements, vigilance reports and all other relevant records and overall performance in respect of Thiru P.Shanmugam, VI Additional Judge, City Civil Court, Chennai, it is resolved that he is found not fit to continue in service beyond the age of 58 years in public interest. It https://hcservices.ecourts.gov.in/hcservices/ is resolved to retire him from service on his attaining the age of superannuation at 58 years. The Registry is directed to obtain approval of the Full Court by circulation." Subsequently, the matter was approved by the Full Court as appears from the note to Hon'ble the Chief Justice dated 20th Jan., 2007, wherein the following order has been passed :- "Majority view accepted. Issue proceedings accordingly." Further case of the 2nd respondent is that as certain disciplinary action has been taken against the petitioner, the Administrative Committee and Full Court, taking into consideration the Annual Confidential Reports, work done statements, leave availed by the officer, vigilance report, etc., has taken the decision. 5. As learned counsel for the petitioner submitted that there was nothing adverse against the petitioner except for the year 2004- 2005, which was later on expunged by the High Court; one adverse observation with regard to shortage of disposal in one quarter of a year and that no disciplinary proceeding was initiated or pending, to find out the actual fact, we called for the records and perused the same. The following fact emerges from the records, as produced by the respondents :- For the last more than 10 years, the service record of the petitioner is 'Satisfactory'. The unit head or the Hon'ble Administrative Judge of this Court has either recorded the performance of the officer as 'Satisfactory' or 'Good'. Only during one part of year 2000, i.e., 1st Jan., 2000 to 20th April, 2000 and in one part of the year 2002, i.e., 8th April, 2002 to 25th Oct., 2002, a specific remark was made relating to poor disposal of cases and for the officer to improve. For the year 2005, certain adverse remarks were recorded, which were later expunged by the High Court vide official memorandum dated 25th Sept., 2006. The overall Annual Confidential Report of the officer written by the Head of the Unit as approved by the Hon'ble Administrative Judge of this Court since 1996, particularly knowledge of law, quality of judgment, disposal of cases, conduct and dignity inside and outside court, reputation (honesty, integrity and impartiality) are quoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ Year Knowled ge of Law Quality of Judgmen t Disposal of cases Conduct inside & outside Court Reputatio n (Honesty, Integrity & Impartial ity) Overall view Special Remarks 1196 Satisfa ctory Satisfa ctory Good / Prompt Good / Satisfac tory Good / Satisfact ory Good Officer / Satisfact ory - 1997 Satisfa ctory Satisfa ctory Satisfac tory Good Satisfact ory Satisfact ory - 1998 Good / Satisfa ctory Good / Satisfa ctory Fair Good / Satisfac tory Good / Satisfact ory Good / Satisfact ory - 1999 Satisfa ctory Satisfa ctory Satisfac tory Satisfac tory Satisfact ory Satisfact ory 2000 Good Satisfa ctory 1st Quarter – Poor Rest – Satisfac tory Satisfac tory Satisfact ory Satisfact ory - 2001 Satisfa ctory Satisfa ctory Satisfac tory Satisfac tory Satisfact ory Satisfact ory - 2002 Satisfa ctory Good in Civil Law Satisfa ctory in Crl. Law Satisfac tory Satisfac tory Satisfact ory Satisfact ory Must Improve 2003 Sound Sound Prompt Satisfac tory Satisfact ory Satisfact ory - 2004 Good Good Good Good Good Good - https://hcservices.ecourts.gov.in/hcservices/ 2005 Good Good Good Initial adverse remark expunged by High Court Initial adverse remark expunged by High Court Initial adverse remark expunged by High Court So far as leave is concerned, following statement of last five years were produced before the Administrative Committee/Full Court :- S. No. Year Leave Availed 1 2000 Nil 2 2001 Nil 3 2002 Nil 4 2003 EL - 12 days 5 2004 EL - 15 days Against the head 'complaint, imposition of penalty and general reputation', the information in the chart as were placed before the Administrative Committee and Full Court, nothing was shown against the petitioner. In a separate chart it was only shown that there were certain allegations and complaint made between 2002 and 2005 in almost all of which, after going through the records, the High Court ordered for no action and in three matters only discreet enquiry was ordered, but the officer was never suspended nor any departmental proceeding was initiated. 6. From the aforesaid fact it will be evident that there is nothing adverse against the petitioner; his knowledge of law, quality of judgment, conduct inside and outside court, reputation (integrity, honesty and impartiality), on the other hand, are either 'Good' or 'Satisfactory'. So far as disposal of cases is concerned, nothing adverse has been reflected in the character role except for a quarter of a year in 2000, which was taken into consideration at the time of granting him promotion to the higher post. 7. We have also perused the records of the two other officers, whose cases were also considered along with the petitioner and they were allowed to continue in service upto the age of 60 years. In their cases also, the remarks are 'Satisfactory'. In the case of one of the officer, adverse remarks were communicated for the year 2002, such as 'Quality of Judgment – Poor; Knowledge of Law & Procedure – Poor; Readiness to take up responsibility – Poor; Supervision and Control on office staff – Poor; Attitude towards superior – Poor' and the representation for expunging the remarks was rejected. For the year 2003, another adverse remark was communicated such as 'Supervision and Control – Has to Improve', but even in such case, taking into consideration the 'Overall View – Satisfactory', the said officer has been granted extension beyond 58 https://hcservices.ecourts.gov.in/hcservices/ years by common proceeding of the Administrative Committee and the Full Court of this Court. With regard to another officer, the disposal chart also shows shortfall, as in the case of the petitioner, but in his case also extension was granted beyond 58 years upto 60 years by the common proceeding of the Administrative Committee and the Full Court. 8. Though the present case is not a case of compulsory retirement, but extension of service beyond 58 years, but the principle as is followed in the case of compulsory retirement may be made applicable in such cases. In the case of State of Gujarat – Vs – Umedbhai M.Patel reported in 2001 (3) SCC 314, the principles were summarised by Supreme Court as follows:- "11. The law relating to compulsory retirement has not crystallised into definite principles, which could be broadly summarised thus : (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure." In the case of judicial officers, the Supreme Court made the following observations in Nawal Singh – Vs – State of U.P. reported in 2003 (8) SCC 117 :- "2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the https://hcservices.ecourts.gov.in/hcservices/ State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, 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. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority." 9. A judicial officer, whose continuance in service, in public interest, is no longer useful, cannot be allowed extension of service. A judicial officer is known for his knowledge of law, quality of judgment, integrity, behaviour inside and outside court and number of disposal of cases (efficiency), etc. If the judicial officer has no knowledge of law, is not in a position to deliver satisfactory or good judgment, if conduct is not good inside or outside the court or his integrity is doubtful and disposal of cases is minimal or punished a number of times in departmental proceeding, the question of giving extension of service does not arise. 10. So far as the present case is concerned, we have already noticed that there is nothing adverse against the petitioner on record. The Annual Confidential Reports show performance as "Satisfactory" or "Good", qualify of judgment – "Good/Satisfactory", etc. Therefore, we find no ground made out on behalf of the respondents to justify the decision dated 25th Jan., 2007, or to reject the case of the petitioner for extension of his service beyond 58 years. 11. We, accordingly, set aside the proceeding contained in ROC No.2A/2006-Con.B2, dated 25th Jan., 2007, communicated by the 2nd respondent, Madras High Court to the petitioner and the order of rejection dated 31st Jan., 2007 and remit the case to the 2nd respondent with direction to reconsider the case of the petitioner for extension of his service beyond 58 years for continuance upto the age of 60 years. Taking into consideration the records of service, as noticed above, the 2nd respondent is expected to deliberate on the issue in similar manner as deliberated in regard to the other officers, who were similarly situated like the petitioner. It is expected that an early decision will be taken, preferably within a month and for that, the Registrar General of Madras High Court is directed to place this order before the Hon'ble the Chief Justice of the High Court for appropriate orders. We make it clear that if the officer is granted extension of time beyond the period of 58 years, he may not be given full salary of the https://hcservices.ecourts.gov.in/hcservices/ intervening period for which he has not performed the duty, but may be counted for all other purpose. The writ petition is allowed with the aforesaid observations and directions. But there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. GLN To 1. The Secretary to Government Home Department Government of Tamil Nadu Fort St. George, Chennai 600 009. 2. The Registrar General High Court of Judicature at Madras High Court, Chennai 600 104. 1 cc to the Government Pleader, High Court, Madras, SR. 39096 1 cc to Mr.T.S. Sivagananam, Advocate, SR. 39120 W.P. NO. 16317 OF 2007 MRD (CO) kk 25/7 https://hcservices.ecourts.gov.in/hcservices/