CIVIL WRIT JURISDICTION CASE No.11102 of 2005 (In the matter of an application under Article 226 of the Constitution of India) LAXMAN RAM, son of Late Dedhari Ram at + PO – Balia, Via Tarwara, PS Maharajganj, Distt. Siwan … …. Petitioner Versus 1. THE HON'BLE HIGH COURT OF JUDICATURE AT PATNA through its Registrar General 2. The Registrar General, Patna High Court, Patna 3. The State of Bihar through the Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Patna ….Respondents ******* For the Petitioner : Mr. Sanjay Kumar Verma, Advocate For Respondent nos.1 and 2 : Mr. Chittaranjan Sinha, Sr. Advocate Mr.Sanjeet Kumar, Advocate Mr. Raj Kamal, Advocate For the State : Mr. Rajesh Kumar Singh Assistant Counsel to AAG II ******** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, J. This writ petition is directed against the order dated 16.12.2004 (Annexure 10), issued under the signature of respondent no.2, whereby the petitioner was not given the benefit of continuance of service beyond 58 years of age. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner was appointed as a Munsif on a purely ad-hoc basis in the Bihar Judiciary by notification dated 23.8.76 (Annexure 1), and had joined as such on 28.9.76. He was confirmed as Munsif with effect from 28.9.76, vide notification dated 28.10.77 (Annexure 2). He was promoted to the post of Subordinate Judge on 4.3.98 (Annexure 4). He was confirmed as Subordinate Judge by notification dated 22.4.2003 (Annexure 7). 2.1) In view of the judgment of the Supreme Court in All India Judges’ Union vs. Union of India (AIR 1993 SC 2493), a number of judicial officers including the petitioner were considered by a Committee of nine Judges of the Patna High Court to evaluate their service record and potential, whether or not to give them the benefit of service upto 60 years of age. The petitioner was due to 2 complete 58 years of age on 31.1.2005. At its meeting held on 7th and 9th of December 2004, the Committee resolved that the benefit of extension of service from 58 years upto 60 years cannot be granted to the petitioner. Respondent no.2 issued the consequential direction to the petitioner, and impugned herein. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that there is no adverse material on record to deny to the petitioner the benefit of extension of age. He next submits that the entire adverse materials prior to the promotion is wiped off. He submits in the same vein that he has twice been confirmed at different levels of service in Bihar Judicial Service, and was promoted as a Subordinate Judge, as a result of which all materials on record adverse to the petitioner prior to 22.4.2005, cannot be taken into account to deprive him of the benefit. He relies on the following reported judgments:- (i) Rana Abhay Singh vs Hon’ble High Court of Judicature at Patna 2006(3) PLJR 400 (ii) Nawal Kishore vs State of Bihar 2001(3) PLJR 165 (iii) Judgment dated 25.2.2005, passed by a Division Bench of this Court, in CWJC No.9325 of 2003 (Shibeshwar Narain vs. High Court of Judicature at Patna) 4. Learned counsel for respondent nos. 1 and 2 submits that the petitioner has maintained a poor record of service. He relies on the judgment of five-Judge Bench of this Court in Anirudh Prasad Choudhary vs State of Bihar [1996(1) PLJR 633).He lastly submits that, for the purpose of compulsory retirement and also in the present context, the records prior to the date(s) of promotion(s) is not wiped off, and the employer is entitled to take into account the past records. The value to be attached to the same is the exclusive prerogative of the authorities. He relies on a Division Bench judgment of this Court in the case of Chhotelal Chunihara vs Hon’ble Patna High Court [2010(1)PLJR 519] (Ps. 4, 9, and 13). In his submission, the present case is governed by the yardstick formulated by the Supreme Court in All India Judges’ Association case (supra). He lastly submits that the yardstick to adjudge a candidate for the present purpose is far less rigorous than a case of compulsory retirement. He has indeed produced before us the entire original records which has been made available to the learned counsel 3 for the petitioner, as well as respondent no.3, for their perusal, and has also provided us with summary of the same. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is correct to state that the petitioner was, prior to the impugned order, confirmed as a Munsif, was promoted as a Subordinate Judge on temporary basis, and was ultimately confirmed as such by notification dated 22.4.2003. 6. The admitted position is that the retirement age for the employees of the Bihar Government was 58 years of age, and the State Government enhanced it to 60 years of age, by its notification dated 24.3.2005. In other words, the petitioner was allowed to be in service upto 58 years of age, the impugned order notwithstanding. The purpose for which the Supreme Court allowed the judicial officers in this country to continue beyond the age of superannuation, till 60 years of age, under limited circumstances is clearly spelt out in the judgment in All India Judges’ Association (supra). The relevant portions of the judgment are reproduced hereinbelow for the facility of quick reference:- “ There is, however, one aspect we should emphasise here. To what extent the direction contained in the main judgment under review shall stand modified. The benefit of the increase of the retirement age to 60 years 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 intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officers’ past record of service, character rolls, quality of judgments and other relevant matters. The High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement ae and should be compulsorily retired at the age of 58 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for compulsory retirement and the compulsory 4 retirement at the earlier stage/s under the respective Service Rules. (Emphasis added) It is evident that the Supreme Court granted this benefit only to those of the judicial officers who had completed their scheduled age of superannuation. This has to be seen in contra-distinction to compulsory retirement which takes place before the employee reaches the age of superannuation, and his tenure promised at the time of entry into service is cut short by his poor performance in terms of the relevant provisions of rule 74(1)(b) of the Bihar Service Code. On the other hand, the Supreme Court allowed continuance of the service of such judicial officers beyond the age of superannuation in the interest of the Judiciary so that their services are available in view of their good record of service and wide experience. The Supreme Court made it perfectly clear that the benefit will be available to those who have the potential for continued useful service. It is not intended as a windfall for the indolent, the infirm, and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts, constituted and headed by the Chief Justices of the High Courts, and the evaluation shall be made on the basis of the judicial officers’ past record of service, character rolls, quality of judgments, and other relevant matters. We are, therefore, of the view that, in view of the position that the employee has been allowed to reach the prescribed age of superannuation, his continuance beyond the same perhaps does not create an enforceable right, and can be subjected to judicial review on very limited grounds. 7. This takes us on to the factual position obtaining in the petitioner’s service record. Following is the summary of the service record of the petitioner recorded by District Judges:- “From perusal of his ACRs recorded since 1976-76 to 2000-01 by his District Judges, it appears that in the year 1976-77, the District Judge has recorded that quality and quantity of his work is poor and his reputation in unwholesome. In the year 1979-80 and 1980- 81, the District Judge recorded that he is suspected many often by litigant public on integrity though truth not ascertained. In the year 1991-92 and 1992-93 his District Judge has recorded that the officer is not industrious and prompt in the disposal of cases. Moreover, he transferred G.R.Case no.312/91 while acting as CJM to his own file for which an enquiry was held by the Hon’ble 5 Court. Besides the aforesaid the officer has earned good and satisfactory remarks from rest of his District Judges.” 7.1) Following is a summary of the remarks recorded by the Inspecting Judges, described in the some of the High Courts as Portfolio Judges: February, 1986 -Col.1: Knowledge of law and procedure : “Poor” Col.2: Is he industrious and prompt in the Disposal of cases? “ No. He does not even understand the questions and does not record the correct answer in the deposition.” Col.3 : Are his judgments and orders well Written and clearly expressed? “No” © Col. 5: Is he an efficient judicial officer? “No” Col.9 : Net result -`C’ ---- Hon’ble S K Jha April, 1994 B ----- Hon’ble G C Bharuka June, 1998 B+ ------Hon’ble Chy. S N Mishra August, 1999 Col. 7: Remarks about his attitude towards his superiors, subordinates, and colleages. “Not good” Col. 8 : Behaviour towards members of the Bar and the public. “Not cordial” Net result : “Average” -------Hon’ble Chy. S N Mishra” 7.2) It is evident that the petitioner maintained poor record of service ever since he joined the service. It appears to us that the first promotion to the petitioner from Munsif to Subordinate Judge was on the basis of the seniority- cum-merit. The first promotion is almost a matter of course. In view of such liberal approach, it would be travesty of justice if the petitioner is permitted to take undue advantage of such a generous approach, allowing him to improve in future. But that was not to be. The petitioner continued unabated with his wayward habits. However, he was promoted to the post of Additional District Judge on 16.6.2003. 8. We have perused the entire original records maintained by the High Court on the administrative side in this connection. We have noticed that a Committee of nine Judges was constituted to evaluate the petitioner’s performance, apart from other judicial officers not before us. On a consideration of the service record, disposal, quality of judgments, and such other relevant circumstances, they came to the conclusion that the benefit of extension of service cannot be 6 allowed to the petitioner. We are of the view that it is not possible to reach to a different conclusion. Learned counsel for respondent nos. 1 and 2 has rightly relied on the judgment of a Division Bench of this Court in Chhotelal Chunihara (supra), paragraphs 4, 9, and 13 of which are reproduced hereinbelow:- “4. Three main contentions have been advanced by learned counsel for the petitioner. The first contention is that the High Court adopted a short-cut and instead of completing the departmental proceeding on its merits recommended for compulsory retirement of the petitioner and, therefore, the impugned order should be held to be penal in nature and should be quashed as such. Secondly, it was contended that some old entries in the confidential reports relating to the petitioner should have been kept out of consideration whereas the materials on record show that the entire records were considered by the High Court for recommending compulsory retirement. In particular, it was submitted that entries adverse to the petitioner prior to his promotion in 1986 could not have been taken into consideration. Lastly, it was contended that even that adverse entry by the Inspecting Judge has been taken into consideration against which the petitioner had filed a representation which was still pending. ……… ………….. ……… “9. Reliance was also paced upon Supreme Court decision in the case of Badrinath v. Government of Tamil Nadu, AIR 2000 SC 3243. In Paragraph -56 of that judgment the Apex Court considered an earlier judgment in the case of State of Punjab v. Gurdas Singh, AIR 1998 SC 1661 in which it was held that although in the case of Baikunth Nath Das it was said that adverse remarks prior to promotion lose their sting, but such entries are not wiped out and can be taken into consideration while considering the overall performance of the employee during the whole tenure of service. It was also noticed with approval that even uncommunicated adverse remarks could be relied upon. After considering the other relevant judgments, in Paragraph -59, the Supreme Court summarized the principles, of course in the context of right of consideration for promotion, that adverse remarks of an officer for the entire period of service can be taken into consideration “while promoting an officer or while passing an order of compulsory retirement” but what weight should be attached to the adverse remarks depends upon sound principles of fairness. Some of the principles were to highlight how fairness could be achieved and the 6th principle in Paragraph-59 is in following words:- “Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed.” …………… ………. ……….. “13. In the background of the aforesaid materials relating to Service Record of the petitioner, and on applying the principles emerging from the judgments of the Apex Court noticed above we find substance in the submission advanced by the learned Senior Counsel appearing for the Respondents no.1, 2 and 3 that the High Court on its administrative side committed no illegality in looking into the entire Service Record of the petitioner at the time passing the order of compulsory retirement. There was no requirement to exclude the earlier entries relating to lack of integrity. In view of Principle No.5 in Paragraph-59 of the Supreme Court judgment in 7 the case of Badri Nath (supra), for highlighting the principles of fairness it was further held that:- “If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.” This Court clearly laid down that the event of promotion does not wipe out the past records for the purpose of compulsory retirement. The value to be attached to the action like the present one depends on the perception of the Evaluation Committee. Law is well settled that such an evaluation is the subjective satisfaction to the members of the Committee on the basis of objective circumstances. We have noticed hereinabove that the records of the petitioner disentitles him to the benefit of extension of service. The conclusion drawn by the Evaluation Committee was their subjective satisfaction, was a possible view, perhaps the only possible view, and we entirely agree with the same. 9. Learned counsel for respondent nos. 1 and 2 has also rightly relied on the five Judges’ Bench decision in Anirudh Prasad Choudhary vs. State of Bihar. That was a case of a District Judge in the Bihar Judiciary and was also similarly denied extension of service beyond 58 years of age. The High Court refused to grant him the benefit leading to the writ petition. The observations of this Court in paragraphs-50 and 52 of the judgment are relevant in the present context and are set out hereinbelow:- “50. Reverting to the next question as to whether the lofty principles laid down in All India Judges’ Association v. Union of India & Ors. (AIR 1993 SC 2493) have been followed. These principles have been indicated at page 2509 of the aforesaid decision as referred to earlier but the same is reiterated for convenience. The benefit of the increase of the retirement age to 60 years shall not be granted automatically to all the 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 intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility was to be judged and assessed and evaluated by the appropriate Evaluation Committee of the judges of the respective High Courts that was to be constituted and headed by the Chief Justice. The evaluation was made keeping in view the judicial officers’ past record of service, character rolls, quality of judgments and other relevant matters. The desire of the judicial officers as to whether they want to retire after 58 years was to be obtained. In the instant case it was done. ……. …….. …… 8 “52. In fundamental principles of the sociology of Laws, Ehrlich’s (1862 to 1992 AD) thesis was that laws found in formal legal sources such as statutes and decided cases, give only an inadequate picture of what really goes on in a community for the norms which in fact govern life are only imperfectly and partially reflected in them. The living law of society has to be sought out outside the confines of formal legal material, in other words, in society itself. On only a minute fractions of social life comes before courts. Geremy Bentham (1748 to 1832 AD) was known for his analytical jurisprudence social philosophy and his strong views for utilitarian outlook as life. According to Benthem, the function of laws should be the promotion, of the greatest happiness of the greatest number. There is an age old problem of reconciling interests of individual with those of the community. (See An introduction to the principles of Morales and Legislation, para-5). The public good ought to be object of the legislature and general utility ought to be object of the legislature and general utility ought to be the foundation of his reasoning.” 9.1) We must sound a note of caution that there was a strong circumstance against the petitioner there which is not at all relevant in the present context. That was a case where the petitioner was at the relevant point of time posted and functioning as Registrar General of this Court, and was in possession of the entire records of the Court. The High Court came to the conclusion that he had misused his position of trust and confidence by utilizing the records of the High Court in the writ proceedings which disentitled him to any benefit in the discretionary writ jurisdiction. To that extent, the judgment stands on a different footing. 10. We must notice the three judgments relied upon by learned counsel for the petitioner. We first of all notice the judgment of the Supreme Court in Nawal Kishore Prasad v. State of Bihar (supra). The petitioner of that case was a District Judge in Bihar Judiciary. He was not given the benefit of extension of service leading to the writ petition in this Court. The High Court in its judgment noticed that the petitioner had an exceptionally good record of service and he was never communicated any adverse remark throughout his judicial career. After having said so, the High Court denied to him the relief prayed on the sole ground that he had by then completed 60 years of age. The Supreme Court held that once the High Court reached the conclusion that the petitioner should not have been denied the benefit of extension of service on the ground that the petitioner had reached the age of 60 years during the pendency of the proceeding. In other words, the Supreme Court was of the view that he could have been compensated in terms of money. The judgment on facts as well as on law stands on a 9 fundamentally different footing and is wholly inapplicable to the facts and circumstances of the present case. 12. We should next examine the Division Bench judgment in the case of Rana Abhay Singh v. Hon’ble High Court of Judicature at Patna (supra). The petitioner in that case was also a District Judge in the services of Bihar Judiciary and was denied the benefit of extension of service beyond 58 years. Before he reached 58 years of age so that the order of the High Court could become effective, the State Government issued the notification raising the age of superannuation of its employees to 60 years of age for all its employees, which rendered the order of the High Court infructuous. The High Court on its administrative side re-considered his entire service record, and came to the conclusion that the petitioner was “a dead wood”, and was compulsorily retired.. The entire service record of the petitioner is summarized in the judgment and on the whole was very good. Therefore, the High Court in the writ proceedings disagreed with the conclusion of the Evaluation Committee, and held that it was not a case where the High Court could have on the basis of objective circumstances reached the conclusion that it was a case for compulsory retirement. There was thus almost complete absence of materials to reach the conclusion that he had become “a dead wood”. Indeed the Division Bench was deeply impressed by the factual position that one of the Inspecting Judges of this Court had awarded him the remark `A: Very good’, who, at the time of disposal of the writ petition, had joined the Bench of the Supreme Court. The High Court was equally impressed by the `A+ : Outstanding’ occurring in the service record of that petitioner. The cumulative effect of the objective scrutiny by this Court of the service record of the petitioner was that the Evaluation Committee had erred in the assessment. Paragraph 46 of the judgment is reproduced hereinbelow:- “46. Earlier record and assessment of Service Record is not only satisfactory but is graded `Good’ and last reporting year, Hon’ble Judge of this High Court, as he then was, and now Hon’ble Judge of the Apex Court has assessed the service performance as `Very Good’.