RAJA T BARAN ROY ETC.

STATE OF WEST .. BENGAL AND ORS.

APRIL 13, 1999

[S.P. BHARUCHA, R.C. LAHOTI AND N. SANTOSH HEGDE, JJ.]

Service Law :

Judicial Officers-Members of Higher Judicial Service-Service c conditions-Retirement age-Jn 1992 Supreme Court directing the Central and State Governments to raise the age of retirement to 60 years-In 1993 case putting a rider that benefit of raised retirement age be given to only those, who in the opinion of the respective High Courts had a potential for continued useful service-Members of State Higher Judicial Service equated

D at par with !AS in respect of their service conditions by way of State GO dated 20.06.1992-Central Government raised the age of retire'!'lent to 60 years to the !AS vide its OM dated 13. 5.1998-State Government also raising the age of retirement of the members of the Higher Judicial Service to 60 years vide its GO dated 15. 5.1998-Held, State cannot resort to compulsory retirement' at the age of 58 years after raising the retirement age to 60 years E by issuing GO dated 15. 5.1998-Administrative Law-Doctrine of Promissory Estoppel-Constitution of India, Articles 312, 233 and 234.

Compulsory retirement-Judicial review-Grounds for-Material particular and non application of mind-State Government compulsorily

F retired members of the State Higher Judicial Service under the judgment of - this Court in 1993-Retirement sought to be justified under the powers vested in the State under Rule 75(aa) of the West Bengal Service Rules, Part !

I-No indication in the impugned orders of retirement that any aspect of : public interest or ingredients of rule 75(aa) were taken into consideration while issuing the impugned orders-Held, the impugned orders were bad on G account of non-application of mind and for want of material particulars , . . ' mandatory for invoking rule 75(aa)-Administrative Law-Administrative '-"· ,,

action-Application of mind-Judicial review.

J In 1992, this Court directed all State and Central Governments to make necessary amendments in the Rules to enhance the retirement age of H all judicial officers to 60 years. Instead of complying with the direction of 618

R.B. ROY v. ST ATE 619

this Court, some of the State Governments and the Union of India filed a A review petition which was disposed of by this Court in 1993 holding that the benefit was available to those who, in the opinion of the respective High Court had a potential for continued useful service. However, an emphasis was supplied in the 1993 case that the direction issued were mere aids and incidental and supplemental to the main direction and intended as a transitional B measure till a comprehensive national policy was evolved. Members of State Higher Judicial Service were equated at par with IAS in respect of their service conditions by way of state GO dated 20.06.1992. Central Government raised the age of retirement to 60 years for the IAS vide its OM dated 13.5.1998. State Government also raised the age of retirement of the mem hers of the Higher Judicial Service to 60 years vide State GO dated 15.5.1998. C The petitioners, members of the West Bengal Higher Judicial services, were governed by the West Bengal Service Rules, Put I. The petitioners were prematurely retired from the services by the impugned orders passed by the Governor of the State, and the same was challenged by way of the present writ petition before this Court.

D It was contended by the petitioners that by virtue of Government Order dated 20.6.1992, the members of Higher Judicial Service were treated at par with the members of the Indian Administrative Service in all matters and

threfore when the Central Government vide its OM dated 13.5.1998 intimated to, the State Government that the retirement age of the Central Government E employees had been raised to 60 years, the petitioners automatically became entitled to be retired at the age of 60.

It was contended by the respondent that in 1992 this Court had directed the raising of retirement age of judicial officers to 63 years with a rider in 1993 that the benefit of raised retirement age should not be available p automatically to all judicial officers, but to those who in the opinion of the respective High Courts had the potential for continued useful service. It was further contended that rule 75(aa) of West Bengal Service Rules Part I gave the power to the State Government to retire the petitioners in public interest.

Allowing the petitions, this Court

HELD: 1. In view of the observations made in 1993, it is clear that the direction issued in 1992 for raising the retirement age to 60 years would cease to exist when appropriate rule is made for enhancing retirement age

of judicial officers to 60 years. Consequently, the rider to the direction issued by this Court also ci:ases to operate, being coterminus with the H

A direction. Once the State had framed rules for raising retirement age to 60 years, it will have to be held that the enhanced retirement age came into force by virtue of those rules and not by virtue of the directions issued by the Court in the 1992* and the 1993** cases. In such cases, pre-retirement assessment will not be applicable unless the same is specifically provided B under the rules. (623-H; 624-A-C)

2. The order dated 20.6.1992 of the respondent-State lays down that members of West Begal Higher Judicial Service are to be treated on par with the members of IAS in all matters. It flows from this order that any change brought about in the-service conditions of the members oflAS would C ipso facto become applicable to the members of the West Bengal Higher Judicial Service also. Retirement age in Central Government was raised to 60 years by OM dated 15.5.1998 issued by the Ministry of Personnel, Public Grievances and Pension. The West Bengal Government too, by its order dated 15.5.1998, raised retirement age to 60 years. By virtue of the order dated 20.6.1992, retirement age raised in OM dated 15.5.1998 would b automatically become applicable to the members of the West "Bengal Higher Service and therefore mem hers of the service, like IAS officers, too became entitled to higher retirement age i.e. 60 years. Therefore, on and from 15.5.1998, superannuation age of the members of the West Bengal Higher Judicial Service came to be governed by the above rules. Consequently, the E directions including the rider thereon issued in the 1993 case ceased to operate. It cannot therefore be said that the petitioners' right to continue in service between the age of 58 to 60 years was object to the rider imposed in the 1993 case. [624-C-F; 625-B-D]

*All India Judges' Association v; Union of India, (1993) 4 SCC 288 F and **All India Judges' Association v. Union of India, (1992) 1 sec 119, relied on.

3. According to the respondents the impugned orders are justified on the basis of power of compulsory retirement conferred on them under Rule G 75 (aa) of the West Bengal service Rules, Part I. However, their own affidavit filed in the High Court shows that they did not invoke this Rule, instead they purportedly invoked the power of rider in the 1993 case. Even otherwise, Rule 75(aa) applies where power of compulsory retirement is exercised in "public interest" and that too, on satisfying conditions mentioned in subclauses (1) and (2) of that Rule. The impugned orders nowhere show that H they were being issued in public interest, which is a condition precedent for

R.B. ROYv. STATE [SANTOSH HEGDE, J.] 621

invoking this rule. Nor do the impugned orders advert to the conditions A specified in sub-paras (1) and (2) of the said rule. If the impugned orders are to be examined in the light of this rule, then the same has to be held bad in law for non-application of mind and want of material particulars, which are mandatory for invoking the said rule. Therefore, the argument of the respondents seeking to justify the impugned orders based on rule 75(aa) of B the said rules also has to be rejected. [625-E-H; 627-B-D]

 CIVIL ORIGINAL JURISDICTION : Writ Petition (c) No. 578 of 1998 Etc.

(Under Article 32 of the Constitution of India.)

C.S. Vaidyanathan, Additional Solicitor General, T. Ray, A.S. Nambiar, M.K. Singh, D.M. Chowdhary, S. Chandra, Pankaj Aggarwal, L.C. Agrawala, Ms. A. Subhashini, T.A. Khan, P. Parmeshwaran, T.C. Sharma and B.K. Prasad for the appearing parties.

The Judgment of the Court was delivered by

SANTOSH HEGDE, J. The above writ petitions are admitted for final hearing. Notice having been served on the respondents, they have put in their appearance and filed their response. Since the questions involved in these writ petitions are common, they are being disposed of by a common E judgment. ·

In W.P. No.578/98, the petitioner was holding the post in the rank of a District Judge, who was compulsorily retired by an order of the Governor of West Bengal dated 23.10.1998 w.e.f. the date on which he attained the age of 58 years, i.e. 31.10.1998.

In W.P. No.601/98, the petitioner was also holding a post equivalent to that of a District Judge and was similarly retired by an order of the Governor of the State of West Bengal dated 26.10.1998 on his attaining the age of 58 years which also happened to be 31.l 0.1998.

In W.P. No.638/98, the petitioner was posted as a District Judge and was also compulsorily retired on his attaining the age of 58 years w.e.f. 30.11.1998 by an order of the Governor of West Bengal dated 2.11.1998. Admittedly, the retirements of the petitioners are not on disciplinary ground but on the ground that the High Court of Calcutta had recommended the retirement of

these judicial officers on their having attained the age of 58 years.

A The grievance of the petitioners in these petitions is that as per the service rules applicable to them, their retirement from service can take place only on their attaining the age f 60 years; whereas the respondents by the impugned orders have prematurely retired them at the age of 58 years purportedly on the basis of a review of the petitioners' service record, performance, efficiency, integrity, utility etc. by a Review Committee of the B High Court which, according to the petitioners, is not permissible in law. The respondents in their pleadings urged that it is open to the High Court to make a pre-retirement assessment of a member of the Higher Judicial Service in the State of West Bengal on or about the time such member attains the age of 58 years, and if the High Court is not satisfied with the performance of the C officer concerned, it could recommend to the Governor of the State to compulsorily. retire the concerned officer at the age of 58 years. For this proposition, the res_pondents relied upon the directions given by this Court in All India Judges' Association & Ors. v. Union of India & Ors., [1993] 4 SCC 288. The respondents further contend that even otherwise in view of the power vested in them under Clause 2(aa) of Rule 75 of the West Bengal D Service Rules, Part-I, which applies in respect of officers of the West Bengal Civil Service (Judicial) and the West Bengal Higher Judicial Service, they have the authority to retire the petitioners prematurely.

We have heard learned counsel for the parties.

It is an admitted fact by both sides that the retirement age of the judicial officers, at present, is 60 years. The petitioners contend that by virtue of the Notification of the Government of West Bengal No.14136-J dated 20.6.1992, the members of the West Bengal Higher Judicial Service are treated at par with the members of the Indian Administrative Service in all matters. Therefore, F when the Government of India on 31. l .1998 fixed the retirement age of the members of the Indian Administrative Service at 60 years, automatically the retirement age of members of the West Bengal Higher Judicial Service also got enhanced to 60 years. Hence, it is contended by the petitioners that their retirement age is enhanced by the provisions of the statutory rules. Per G contra, the respondents contended that the petitioners' retirement age is extended to 60 years by virtue of the directions issued by this Court on 20.8.1993 in the case of All India Judges' Association case (supra) and not by any statutory rules. This difference in the source of retirement age has a direct bearing on the validity of the impugned orders.

H To decide this controversy, it is necessary to briefly refer to the directions

R.B. ROYv. STATE [SANTOSH HEGDE,"J.] 623

issued in the two cases of All India Judges' Association.

In the first case of All India Judges' Association reported in (1992] I SCC 119 (hereinafter referred to as 'the 1992 case'), this Court issued the following direction :-

"(iii) Retirement age of judicial officer~ be raised to 60 years and B appropriate steps are to be taken by December 31, 1992."

As per the above direction, it became the duty of all the States and the Union of India to make suitable provisions in the concerned Rules to enhance the retirement age of the judicial officers to 60 years by 31.12.1992. Instead C of complying with the directions of this Court in the 1992 case, the Union of India and some of the States filed review petitions before this Court on various grounds. The stand taken by the review petitioners was rejected by this Court by an order which is reported in All India Judges' Association & Ors. v. Union of India & Ors., (1993] 4 SCC 288 (hereinafter referred to as 'the 1993 case'). By this order, this Court while directing that the retirement age D of the members of subordinate judiciary in India should be 60 years, added a rider to the increase in the retirement age by holding that this benefit of increase in retirement age 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, according to this Court, E was available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. The Court further said that 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 directed to be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the F High Courts. This direction in regard to the retirement age and other directions given in regard to the members of the Higher Judicial Service in India in the 1993 case, came to be issued because of the failure on the part of the Governments concerned to perform their obligatory duties. If as per the 1992 directions, the Governments concerned had acted diligently then there would G not have been any cause for issuing the 1993 directions and, consequently, the rider that was included in the 1993 directions, would not have been there at all. That apart, in the 1993 directions, this Court in unequivocal terms said:

"The directions issued are mere aids and incidental to and supplemental of the main direction and intended as a transitional measure till a comprehensive national policy is evolved." (emphasis supplied). In view of H

A this observation, it is clear that the direction issued as above, would cease

to exist when appropriate rule enhancing the retirement age of the judicial officers to 60 years is made. Consequently, the rider to the direction issued by the Court also ceases to operate, being co-terminus with the direction.

After the directions in the 1993 case, in the case of such States which had framed rules consequent upon which the members of the subordinate judiciary B in those States became entitled to continue in srvice till the age of 60 years, it will have to be held that the enhancement has come into force by virtue of such rules framed. In oter words, the enhancement of retirement age in those States will be de hors the directions of this Court and will be subject only to the terms of the rules applicable. In such cases, in our opinion, the C pre-retirement assessment will not be applicable unless the same is specifically provided under the Rules.

In the State of West Bengal, it is to be noted that by virtue of the Government Order dated 20.6.1992, the members of the West Bengal Higher Judicial Service were treated at par with the members of the Indian D Administrative Service in all matters. Fro111 this order, it flows that any change that is brought about in the service conditions of the members of the Indian Administrative Service would ipso facto becomes applicable to the members of the West Bengal Higher Judicial Service also. Consequent upon the recommendations made by the 5th Central Pay Commission, it is seen from E records that the Ministry of Personnel, Public Grievances & Pension

(Department of Personnel & Training), Government of India, by an Office Memorandum dated 13.5.1998, informed the State of West Bengal that "the President is pleased to direct that: (a) Except as otherwise provided specifically, every Government servant whose age of retirement is currently 58 years shall now retire from service on the afternoon of the last day of the in on th in which F he/she attains the age of sixty years. However, Government servants whost:

date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years".

The Government of West Bengal by a separate order dated 15.5.1998 implemented the aforesaid Office Memorandum of the Government of India in G the following terms :

"The terms of reference of the 4th Pay Commission include inter alia, the issues relating to retirement benefits. The Pay Commission has submitted a report for enhancement of age of retirement from fifty eight years to sixty years.

After careful consideration of the recommendation, the Gt>vernor


R.B. ROY v. STATE [SANTOSH HEQDE, J.] 625

is pleased to order in partial modification of Rule 75(a) ofW.B.S.R. Pt. A I, that the Government employees of Group-A, Group-B and Group-C, service shall retire from service compulsorily with effect from the afternoon of the last day of the month in which they attain the age of sixty years.

This will take immediate effect."

By virtue of the Government Order of the State of West Bengal dated 20.6.1992 when the State Government applied the change in service conditions as per the Office Memorandum dated 15 .5 .1998 to the members of its services automatically the said change in the age of retirement became applicable to

the members of the West Bengal Higher Judicial Service also. In other words, C when the retirement age of the officers of the Indian Administrative Service stood extended from 58 years to 60 years, the retirement age of the members of the West Bengal Judici~I Service also automatically got extended from 58 years to 60 years. There'fore on and from the above date, the age of superannuation ofa member of the West Bengal Higher Judicial Service came D to be governed by the above rules. Consequently, the directions including the raider there on issued by this court in the 1993 case ceases to operate.

Therefore, in our opinion, the contention of the respondents that the rights of the petitioners to continue in service till the age of 60 years is derived from the directions issued by this Court in the 1993 case, cannot be accepted, and we hold that so far as the members of the West Bengal Higher Judicial Service E are concerned, their age of superannuation is 60 years, as contemplated in the Official Memorandum of the Government of West Bengal dated 15.5.1998 as made applicable to the Higher Judicial Service of West Bengal in its order dated 20.6.1992 and the said Office Memorandum and the Government Order having not fixed any pre-retirement assessment at the age of 58, it was not F open to the High Court to have recommended the compulsory retirement of the petitioners, following directions of this court which had ceased to exist.

Alternatively, it is contended on behalf of the respondents that the impugned orders can also be justified by virtue of the power vested in them under Rule 75(aa) of the West Bengal Service Rules, Part I. It is contended G that in view of the said Rule, it is open to the respondents to retire a Government Servant in public interest. Before we go into the validity of this argument, it is necessary to examine whether, in fact, the respondents invoked this Rule for the purpose of issuing the impugned orders or not. A perusal of the affidavit filed on behalf of the High Court clearly shows that the respondents in exercise of the power vested in them by virtue of the directions H

A given in the 1993 case, proceeded to pass the impugned orders. This is crystal clear from the following paragraphs extracted from the affidavit filed on beha:fr of the Registrar of the High Court of Calcutta :

"3.4 In terms of the aforementioned memorandum dated 13.9.1994, and this Hon'ble Court's judgmellt in the All India Judges case; B Respondent No. I, the Judicial Department, Govt. of West Bengal passed an order, Order No.9509-J dated 23.10.1998 inter alia stating that the writ petitioner was to retire compulsorily from service on his attaining 58 years i.e. on 31. l 0.1998. The said order was passed on the recommendation of the High Court. The High Court reviewed the c

petitioner's service records, performance, efficiency, integrity, utility etc. and only after full assessment thereof the said decision by the Review Committee of the High Court to compulsorily retire the writ petitioner was taken and consequential orders passed."

xxx xxx xxx

"3.8 Primarily it appears from the contents of the various grounds taken by the writ petitioner that the petitioner is praying for continuance in judicial service till age of 60 without the required review procedure to be followed in terms of this Hon'ble Court's orders in All India Judges case basing his claim on the recommendation of the 4th Pay Commission of the State Government enhancing the age of superannuation of officers etc. of the West Bengal Civil Service which is in effect a consequential order issued after the 5th Pay Commission of the Central Government recommended the age of retirement at 60 years."

F In view of the above pleadings, it is not possible for us to accept the alternate argument of the respondents that the impugned orders are de hors the directions issued by this Court in the 1993 case.

We will now examine the contention of the respondents that the G impugned orders can be independently justified in view of the power vested in them by virtue of Rule 75(aa) of the West Bengal Service Rules, Part-I. The said Rule reads thus :

"Notwithstanding anything contained in this Rule the appointing authority shall, if it is of opinion that it is in the public interest so to H do, have the absolute right to retire a government employee by giving

• r-- r

-,;..

R.B. ROYv. STATE (SANTOSH HEGDE, J.] 627

him notice of not less than three months in writing or three months' A pay and allowances in lieu of such notice-

(i) If he is in Group-A or Group-B (erstwhile gazetted) service of post and had entered government service before attaining the age of 35 years, if he has attained the age of 50 years and

(iI) In all other cases after he has attained the age of 55 years."

A perusal of this Rule shows that this Rule can be invoked for the purpose of retiring a Government servant in "public interest" on satisfying

the conditions mentioned in sub-clauses (l) and (2) of that Rule. A careful perusal of the impugned orders nowhere shows that the said orders are being C issued in "public interest" which is a condition precedent for invoking this Rule. Nor does it advert anywhere in the impugned orders in regard to the conditions specified in sub-paras (I) and (2) of the said Rule. If we have to examine the impugned orders in the light of this Rule then the same has to be held to be bad in law for non-application of mind and want of material particulars which are mandatory for invoking the said Rule. Therefore, the D argument of the respondents seeking to justify the impugned orders based on Rule 75(aa) of the said Rules also has to be rejected.

In the said view of the matter, we do not find any force in the arguments advanced on behalf of the respondents to sustain the impugned orders.

For the reasons stated above, these writ petitions are allowed. The impugned orders No.9509-J dated 23.10.1998, No.9518-J dated 26.10.1998 and No.9628-J dated 2.11.1998 issued in the name of the Governor of West Bengal by the Government of West Bengal are hereby quashed. No order as to costs.

R.K.S.

Petitions allowed. F