J.N. Bhatt, C.J.
THE MAIN PROPOSITION IN FOCUS
1. The Sole issue, which is brought into focus by the petitioner, in this petition, by invocation of the Constitutional Writ remedy under Article 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 Article 235 of the Constitution of India, requires any interference by this Court under Article 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 Article 235 and Constitutional Duty under Article 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 Court's 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 material bearing on the merit of the dispute raised in this petition under Article 226 of the Constitution, it was thought expedient by us to request the counsel for the High Court to ascertain and file a supplementary counter affidavit in this behalf so as to know whether three months' notice, or 1n lieu thereof, three months' salary has been paid or not It is very unfortunate that a very vague and bold general affidavit came to be filed on behalf of the High Court despite our specific direction What a pity ?
7. It is in this context with a view to see that correct information is brought on record from the original file of the High Court, We again directed the High Court to verify and state on oath in a further supplementary counter affidavit as to whether compliance of the said provision has been made or not and as to whether, also, the contention raised on behalf of the petitioner that the same has not been paid or tendered till date is correct or not Despite on two occasions supplementary counter affidavits have been filed keeping, conspicuous, silence on the main point or heart of the order earlier passed in this behalf to state in clear terms whether it has been complied with or not, or whether the submission on behalf of the petitioner is correct or not.
8. Even today when we drew the attention of the learned Counsel for the High Court with painful voice, he frailed ignorance saying that officers did not, clearly, indicate or instruct him though they were called for the same in open court and who are, also, present in Court. It may be noted that the Officer on Special Duty Mr. Bijendra Kumar Singh and the Registrar General, Mr. Singh, are present in Court. Yet the learned Counsel has not been able to state and put the records straight for the reasons not, clearly, known to us. Therefore, in this context, whether further direction should be issued or observation should be made, we reserve our comments at this stage which, however, will be dealt with, later on, hereinafter at an appropriate stage in this Judgment or later on, on Administrative side.
HIGHLIGHTS OF SERVICE PROFILE OF THE PETITIONER:
9. Let there be a service profile of the petitioner from the records about which there is no dispute before us, heralded and highlighted hereinbelow, which will have material bearing and relevance for dealing the points involved in this petition.
SERVICE RECORD OF PETITIONER
PART I
1. 1.6.1947 : Date of birth of the petitioner as per the service record.
2. 31.5.2005: Date of retirement of the petitioner on completion of 58 years of age, and
3. 31.5.2007: Date of retirement of the petitioner on the basis of enhanced age of retirement of 60 years.
4. 10.4.1974: The petitioner joined Bihar Subordinate Judicial Service in the capacity of Munsif on probation, pursuant to 14th Judicial Services Recruitment.
5. 24.6.1977: He was confirmed on the aforesaid post of Munsif.
6. 30.6.1982: He was promoted to the post of Sub Judge.
7. 1.1.1987 : He was confirmed on the post of Sub Judge.
8. 30.9.1989: The petitioner was promoted to the Bihar Superior Judicial Services.
9. 1.12.1991: The petitioner came to be confirmed on the post of Superior Service.
10. 3.8.1999 : The petitioner came to be appointed as or District & Sessions Judge.
11. 3.4.1999
Learned Counsel for respondent No. 1
Special High Court explains from the records
Note that it should be the month of April
and not the month of August.
Therefore, it should be read as
3.4.1999 Instead of 3.8.1999.
1.2.1998 : The petitioner was granted and posted on selection grade.
SERVICE PROFILE FROM PRE-FILE
PART II
The service record including the assessment of work and the allegations against the petitioner is highlighted by the High Court in the supplementary counter affidavit filed on 30.3.2006. The said affidavit reads as under:
From perusal of his ACRs recorded since 1974-75 to 1987-88 by the District Judges, it appears that in the year 1984-85, the District Judge in his comment about the reputation of Sri Singh had recorded that in petition purporting to be in the name of Bihari Lall, accusations were attributed against his conduct and integrity and the District Judge rated this officer in final assessment as any how satisfactory. Similar comment was made by the District Judge in the year 1986 regarding enquiry of allegation matter. In the year 1987-88, the District Judge found reputation of this Officer not clean, and recorded that he did not maintain impartiality. Petitioner Sri Singh was found to be quite average and not an efficient Officer. Besides the aforesaid comments, he has earned good and satisfactory remarks from rest of his District Judges.
PART III
THE HIGH COURT EVALUATION ON THE WORK OF PETITIONER
Gradation awarded by the Standing Committee:
From the year 1989-90 to 1993-94 - B (Average)
1995-96 - B
1997-98 - A
Remarks recorded by the Hon'ble Inspecting Judges:
February, 1985 - B+ - Hon'ble S.K. Choudhuri
June, 1987 - B+ - Hon'ble S.K. Jha
June, 1995 - Col.6 - Has he maintained
Judicial reputation for honesty and impartiality ?
No complain about his reputation or integrity, but he has granted bail in a murder case in S.Tr. No. 11/94 after the rejection of prayer for bail by this Court in Cr. Misc. No. 11603/93 on 6.10.93
Net Result : B (Satisfactory)
Hon'ble Nagendra Rai.
July, 1998 - A Hon'ble B.P. Singh
['A' = Very Good ]
Emphasis supplied
May, 2002 - Satisfactory Hon'ble Aftab Alam
PART IV
GRADES - SC MEETING HELD ON 3.1.1997.
As per this decision Grading is provided:
A+ - Outstanding.
A - Very Good.
B+ - Good.
B - Average.
C - Below Average.
This highlights system of Grading and its source, as per the decision of the Standing Committee held on 3.1.1997.
MATERIAL ALLEGED AGAINST PETITIONER
(1)Admn. Apptt. File No. XXIX-9-87:
This file was processed on receipt of minutes of Hon'ble Inspecting Judge from Special Call File No. XXII-29-85 and File No. VI-3-84. The allegation was that Sri Singh, SDJM, Muzaffarpur in. collusion with the accused persons recalled the date in G.R. Case No. 1402/1985 and accepted final form. A report was called for from the District Judge who reported that he found irregularity in accepting final form by recalling the date. However, the District Judge reported no motive on the part of the officer.
Another allegation was that Sri Singh, Sub Judge, Muzaffarpur has granted injunction on flimsy ground in favour of Sri Jai Nath Prasad, a suspended Junior Engineer, Works Division, Motihari. A report was called for from the Officer concerned, as well as, District Judge. In both allegation matters, the Hon'ble Inspecting Judge found conduct of the Officer not above board and directed that the District Judge should keep strict watch over him.
In view of the minutes aforesaid, the District Judge, Deoghar, where the Officer was transferred, was requested to keep watch for a period of six months and, thereafter, to report. The District Judge reported that work of Sri Singh as Chief Judicial Magistrate, Deoghar was not found to be clean and conduct should be watched further. This matter was circulated to the Hon'ble Members of the S.C. and the Officer was again placed under watch as per minutes dated 13.4.1988. Thereafter, no watch report is available on the record.
(2)XXI-1-1994:
This file was processed on receipt of allegation from Prabhawati Kumari, informant of Goria Khari P.S. Case No. 30 of 1993 corresponding to Sessions Trial No. 11/94 alleging therein that the main assailant whose prayer for bail was earlier refused by the Hon'ble Court in Cr.Misc. No. 11603/1993 was subsequently granted bail by the court of Sri Singh. The matter was enquired by the Hon'ble Inspecting Judge and His Lordship found that Sri Singh has granted bail against the settled judicial discipline and propriety and stern action requires to be taken against him. Thereafter the matter was placed before the Standing Committee in its meeting dated 12.7.1994 and it was resolved to call for an explanation from Sri Singh in the matter. The District Judge further directed to recall the Sessions Trial from the Court of Sri Singh and to transfer the same to some other Court. Sri Singh submitted his explanation and the same was accepted in Standing Committee meeting dated 6.1.1996.
Another allegation was received against Sri Singh ADJ, Siwan alleging therein that Title Appeal No. 47/1991 of the petitioner was pending in the Court of Sri Singh and he was asked to come to the residence of Sri Singh, whereat Sri Singh demanded several wooden articles worth Rs. 70.000/- for favour in the judicial matter. The allegation was directed to be enquired by an officer of the District Judge rank by the Hon'ble Inspecting Judge. Thereafter, the enquiry was made by Sri N.N. Singh, the then Registrar, who reported that the allegationnist denied before him that he has made any allegation. The report of the Registrar (Vigilance) was placed before the Hon'ble Inspecting Judge and his Lordships directed no further action in as the matter as per minutes dated 11.11.1994.
Another allegation petition was received from Sri Raj Narayan Bhagat against Sri Singh, ADJ, Siwan alleging therein that Sri Singh has granted bail in Ziradai P.S. Case No. 239/1993, which was earlier refused by another Addl. District Judge. The matter was placed before the Hon'ble Inspecting Judge and His Lordship directed to call for the records. After going through the records, his Lordships found that Sri Singh was not justified in granting bail to some of the accused in murder case where four persons were allegedly murdered. Moreover, when the prayer was refused by another Court of coordinate jurisdiction, Sri Singh should not have allowed the same unless there was fresh material or additional facts justifying grant of bail.
In the circumstances, His Lordship desired that the Officer should be cautioned. The matter was placed before the S.C. in its meeting dated 25.2.1995 and the Standing Committee was pleased to call for an explanation from Shri Singh. Shri Singh submitted his explanation which was considered in the S.C. meeting dated 6.1.1996 and was accepted.
Another allegation petition was received from the mother of Sri Singh relating to some family dispute and quarrelling. Allegation was placed before the Hon'ble Inspecting Judge and his Lordships directed no further action in the matter as it was a family affairs as per minutes dated 26.8.2002.
One more allegation petition was received from Md. Muslim that Sri Singh, District Judge, Sitamarhi, has granted bail in a kidnapping case, wherein, the bail was refused to the petitioner by the Hon'ble High Court . A copy of the order passed in the bail matter as well as a report through court concerned was called for under orders of the Registrar (Vigilance). Sri Singh in his report submitted that he has granted bail in exercise of power Under Section 437(6) Cr.P.C. as witnesses could not be examined by the prosecution within the stipulated time. The matter was placed before the Hon'ble Inspecting Judge and his Lordship directed no further action in the matter.
(3) Admn. Apptt. File No. XXIX-37-97
This file was processed on receipt of order dated 18.8.1997, passed in Misc. Appeal No. 83/1994 by the Bench of Hon'ble Mr Justice S.N. Jha. It appears that Sri Singh, Addl. District and Sessions Judge, Siwan, while hearing appeal against refusal of an order of injunction by the court of Munsif, granted injunction restraining transfer of a Doctor posted at Siwan and, subsequently, issuing notice against the Civil Surgeon for disobedience of the order of the injunction. This Hon'ble Court found that the orders were not only bad and illegal but also were, rather tainted, as wel1.
In the circumstances, His Lordship desired the matter to be placed before the Hon'ble the Chief Justice in the administrative side. Eventually, the matter was placed before the S.C. and the S.C. in its meeting dated 19.9.1997 was pleased to call for an explanation from Sri Singh. Thereafter, Sri Singh submitted his explanation which was considered in Standing Committee Meeting dated 12th and 15th December, 1997, and punishment of censure was imposed on Sri Singh . It appears that said punishment was subsequently converted into warning as per S.G. decision dated 4.1.1999.
PART VI
(A)Vig. Cell File No. XXI-1-94.
While Sri Singh was posted as District Judge, Sitamarhi, several allegation petitions were filed touching integrity of the officer in granting bail in different referred cases, in transfer and posting of Civil Court employees for extraneous consideration and misuse of official petrol. It appears that in some of allegations, the comment of the Officer was called for and after consideration of the same, the Hon'ble Inspecting Judge directed to place the matter at the time of His Lordship's visit to Sitamarhi as per minutes dated 20.6.2001 and subsequently by present Hon'ble Inspecting Judge as per minute dated 1.9.2004. The file is still pending.
CONSIDERATION AS TO WHETHER BENEFIT OF 2 YEARS FROM 58 TO 60 BE GIVEN OR NOT
The respondent No. 1 High Court for taking a decision as to whether the petitioner, as well as, other judicial officers, who were about to complete the age of 58 years, should be granted extension from 58 to enhanced age of 60, in terms of the Judgment of the Hon'ble Supreme Court in All India Judges' Association and Ors. v. Union of India and Ors. as well as, Review Petn. No. 249 of 1992 (Writ Petn No. 1022 of 1989) reported in AIR 1993 SC 2493, constituted a Evaluation Committee consisting of eight Hon'ble Judges of this High Court.
10. On 7th December, 2004, there was a meeting of the Evaluation Committee and the case of two judicial officers came to be considered and cleared, who were found fit for giving benefit of increased age of superannuation from 58 to 60 years with whom we are not concerned in the present petition. However, in the said meeting, while the case of the petitioner, Mr. Rana Abhai Singh was considered, members of the committee gave different opinions and view as to whether the benefit of Increase of retirement age should be given to him or not. It is, therefore, the then Hon'ble Acting Chief Justice (Nagenedra Rai, J.) decided to add one more Hon'ble Judge as a member of the Evaluation Committee in order to make its number uneven or odd.
11. It appears, probably, since there had been a division amongst eight members in such a way that even the majority decision would not have been possible, probably because of such possibility of equal number, for and against, one more addition was thought appropriate.
12. The re-constituted Evaluation Committee consisting of nine Hon'ble Judges adding one more Hon'ble Judge, held its meeting on 9th December, 2004 in which two Hon'ble Hon'ble Members remained absent. The Evaluation Committee, as per the affidavit filed by respondent No. 1 High Court, came to be constituted in accordance with the guidelines laid down by the Hon'ble Supreme Court of India in the case of All India Judges Association and Ors. (supra) for the assessment and evaluation of the service record concerning 18 judicial officers and to find out whether they have potential for continued useful service so as to be retained in service beyond 58 years of age.
13. It is stated in the affidavit of the High Court, which is also filed by Officer-on-Special Duty, in purported capacity of Incharge of Registrar General, Patna High Court, that one of the officers did not opt for enhanced age on health ground and, therefore, cases of 17 Judicial Officers came to be considered in the said meeting. As per the notification of the High Court, the Evaluation Committee met, on 9.12.2004, and having considered the principles and guidelines laid down by the Hon'ble Supreme Court in the light of the earlier decision of the Full Court and having considered the question as to whether benefit of enhanced superannuation age from 58 to 60 years in terms of the decision of the Hon'ble Supreme Court, referred to hereinabove, shall be made available to the concerned Judicial Officers of the State, and having considered the potential for continued useful service of the Judicial Officers concerned, as well as, having considered the records of service, character rolls, quality of Judgment and other relevant matters including the general reputation regarding efficiency, integrity and honesty of the judicial officers concerned, it came to be resolved that the benefit of enhanced age of superannuation from 58 years to 60 years shall be made available to only 13 judicial officers and the same benefit shall not be made available to four judicial officers.
14. Needless to mention that out of 18 stated earlier hereinbefore, one of the 18 Judicial Officers had not opted for increase age of superannuation on medical ground. It is, therefore, apparent that out of 18 Judicial Officers one was not considered on health ground, 13 were granted the benefit of enhanced age upto 60 years, whereas, four persons were not granted this benefit and, therefore, they were directed to be compulsorily retired and the petitioner, Rana Abhai Singh, was one of the four persons, who has questioned the legality and validity of the said decision on various grounds in this petition.
15. Let it be mentioned here that the report of the Evaluation Committee, which we will refer hereinafter, came to be placed before the Full Court, in its meeting, which was held on 11.12.2004. It is noticed that the agenda considered in the Full Court and the decision rendered thereon has been, as follows:
AGENDA DECISION
1. Assessment and Evaluation of the service Having considered the decision of the
Records of the Judicial Officers who are Evaluation Committee dated the 9th
to attain the age of 58 years to consider December, 2004, as also the connected
their continued useful service so as to papers concerning the service records
retain them in service beyond 58 years of of each of the concerned Officers. It
age. is resolved that the decision of the
Evaluation Committee allowing the
benefit of increase of retirement age
from 58 years to 60 years to some
Officers as also disallowing such
benefit to some other officers is
accepted subject to the condition that
in case- The proposed Bihar Judicial
Officers (Retirement on Superannuation)
Rules, 2004, comes into force before
the retirement such officers who have
not been granted benefit of increase of
retirement age from 58 years to 60 years
then their cases will be reconsidered
in the light of the above said rules.
2. To consider the report of Having considered the report of the Sub
the Sub Committee in Committee, it is resolved
connection with the Draft of Rules that 'The Bihar Judicial Officers
proposed to be framed regarding (Retirement on Superannuation)
retirement of Judicial Officers. Rules, 2004, be approved subject
to the modification that at the end of
Rule (3) after the words 'for the time
being in force' the following words shall
be added 'subject to Rule 74 of the Bihar
Service Code'
Now Rule 3 will read as under:
3. Over riding effect - Subject only to
the provisions of Rule 74 of the Bihar
Service Code the provisions of these
Rules shall have over-riding effect
notwithstanding anything to the contrary
contained in Rule 73 of Bihar Service
Code or any other rules made by the
Governor under the proviso to Article
309 of the Constitution of India or
order for the time being in force.
16. It could be very well be deduced from the decision rendered in one of the agendas of the Full Court that the Evaluation Committee in its meeting dated 7th and 9th December, 2004 having considered the connected papers concerning service record of each of the concerned officers, resolved to extend the benefit of increase of age of superannuation from 58 years to 60 years to some of officers and to disallow such benefit to some other officers subject to the conditions that in case- The proposed Bihar Judicial Officers (Retirement on Superannuation) Rules, 2004 comes into force before the retirement of such offices who have not been granted benefit of Increase of retirement age from 58 years to 60, then their cases will be reconsidered in the light of the above said rules. Of course, the second agenda item was with regard to decision about the proposed draft rules proposed to be framed regarding retirement age of judicial officers which is not very relevant in the present context.
17. Before we rose for the second session, learned Counsel appearing for respondent No. 1 High Court Mr. Tripathy, has requested us to permit him to file 4th supplementary counter affidavit on behalf of the High Court. After hearing the parties, we have permitted him to place it on record, reference of which shall be made at the time of further oral dictation.
RESUMED ORAL DICTATION
WHETHER SUFFICIENT COMPLIANCE OF RULE 74(B) (II) OF THE BIHAR CODE ?
Without explaining as to how and why such a clear supplementary counter affidavit on behalf of respondent No. 1 was filed, yesterday, only (and why not earlier?), after we rose for the second session. However, the Registrar General has, clearly, deposed on affidavit that the High Court has not paid three months' salary in lieu of three months' notice, to the petitioner in terms of the provisions of Rule 74(b)(ii) of the Bihar Code till this date.
18. Therefore, the submission raised on behalf of the petitioner on this score, as well as, reinforced by the specific affidavit filed on behalf of the petitioner, on 4.4.2006, that he has not been paid or tendered payment of three months' salary and allowances, in lieu of three months' previous notice along with order of compulsory retirement stands substantiated. He has further stated in his affidavit that it is a condition precedent but the same has not been followed. The petitioner has not been paid anything on that count not only on the day he came to be compulsorily retired on 31.5.2005, but even thereafter till date, in terms of the provisions contained in Rule 74(b)(ii) of the Bihar Code.
19. Thus the averments made in the affidavit and the submissions raised in course of submissions before us is also not disputed by the learned Counsel appearing for the High Court respondent No. 1, as well as, by the learned Additional Advocate General, appearing for the State. It is, therefore, admitted fact, by now, that the amount of three months' salary and allowances, as contemplated by the provisions of Rule 74(b)(ii) of the Bihar Code was not, only not paid, at the time when the compulsory retirement order came to be served on the petitioner, on 31.5.2005, but, thereafter, also till this date.
20. It is in this context the vehement submission propounded, has been, that a failure to comply with the provisions of Rule 74(b)(ii) of the Bihar Code which are mandatory itself shall vitiate the order of compulsory retirement recorded against the petitioner, on 31.5.2005, and served, also, on same date 31.5.2005 itself. As such, this submission has not been countenanced on behalf of the respondent for obvious reason.
21. Apart from that, let there be appreciation of the said provision contained in the Bihar Service Code. Incidentally, it may be mentioned that Rule 73 of the Bihar Code provides for the date of compulsory retirement of a Government servant. Earlier the superannuation age in Rule 73 of the Bihar Code for the Government servant was fixed at 58 years which subsequently came to be upwardly revised from 58 years to 60 years with effect from 24th March, 2005 and superannuation age, as per the amended date or enhanced age of the petitioner, would be 31st May, 2007. This is just, incidentally, highlighted which can be later on, considered, hereinbelow.
22. The material proposition to which we wanted to advert has been in Rule 74 of the Bihar Code. Rule 74 of the Bihar Code deals with the provisions of compulsory retirement. It would, therefore, be appropriate at this juncture to reproduce the provisions thereof with profit which reads hereunder:
74.(a) The State Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire, no claim to any special compensation shall be entertained.
(b) (i) Notwithstanding anything contained in the preceding sub-rule, a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government.
Provided further that in case of the officers and servants of the Patna. High Court (including those of Circuit Bench at Ranchi) under the rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with specific approval of the Chief Justice.
(ii) The appointing authority concerned may after giving a Government servant at least three months' previous notice in writing, or an amount equal to three months' pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
(iii) A Government servant who retires voluntarily or is required to retire in public interest under this rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cum-retirement gratuity.
23. It could very well be visualized from the plain perusal of the provisions of Clause (ii) of Sub-rule (b) of Rule 74 of the Bihar Code, that the master or in other words the appointing authority is empowered to pass an order for compulsory retirement of any Government servant who has completed 30 years of qualifying service or who has attained 50 years of age, after giving the Government servant at least three months' previous notice, in writing, or an amount equal to three months' pay and allowances in lieu of such notice.
24. It means that for sending home a Government servant on his completing 30 years of qualifying service or his attaining the age of 50 years thereafter, 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 lieu of such notice. This statutory rule provision is admittedly not followed. A question then would emerge that what should be the result? What should be the legal ramification on passing of such an order for compulsory retirement?
INTERPRETIVE PERCEPTION OF STATUTORY NOTICE
25. The submission has been on behalf of the petitioner that it is the condition precedent or it is pre-requisite in view of the phraseology of the expression like 'after service of notice' or 'previous notice in writing' which are indicative of its compulsive nature. In other words, it has been submitted that it is incumbent upon the authority exercising powers under Rule 74(b)(ii) of the Bihar Code to pass such an order provided a three months' notice in writing previously is served on the Government servant or in the alternative, payment of three months' pay and allowances in lieu of three months' notice which process is admittedly not done. In this connection two decisions of the Division Bench of this Court are material and relevant.
CASE-LAW ON STATUTORY NOTICE
26. In Vijoy Narain Jha v. The State of Bihar and Ors. 2000(1) PLJR 1016, a Division Bench of this Court while interpreting the same provision of Rule 74(b)(ii) of the Bihar Code, has held, that the said provisions are mandatory and non-observance and non-implementation of the said provisions shall violate and vitiate the order of compulsory retirement against the Government servant.
27. A detailed discussion in similar case against the Judicial Officer has been, succinctly, highlighted in the said decision in paragraph 12. The Division Bench has, also, considered and relied on the following decisions of the Hon'ble Apex Court Chief General Manager, State Bank of India v. Suresh Chandra Behera reported. : (1995)IILLJ852SC and Madan Mohan Choudhary v. State of Bihar AIR 1999 SC 1018. This decision was rendered by the Division Bench on a similar point in a writ petition, on 14.12.1999, whereas, in Krishna Mohan Srivastava v. The State of Bihar 2000 (1) PLJR 649, was decided, on 17.12.1999, on a principle as to whether for non-compliance of the said provisions of Rule 74(b)(ii) of the Bihar Code, order of compulsory retirement shall stand vitiated or not, the Division Bench has agreed that it shall vitiate but there was difference in so far as issue of substantial compliance of the said provision, in the light of the factual profile of the case on hand with them at the relevant time, was concerned, as the cheque was given which could not be realised on the date when the incumbent was sent home by virtue of the compulsory retirement
28. In a similar matter, in the case of L.C. Bawa v. V.K. Kapoor and Anr. 1987 LAB.I.C. 1878, a Division Bench of the Delhi High Court had occasion to interpret and deal with the similar rule provision contained in the Fundamental Rules, Rule 56(j), read with Article 309 of the Constitution of India. It has been held that Rule 56(j) of the Fundamental Rules makes it clear that the order of premature-compulsory retirement of a Government servant can be passed only by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, which means that the giving of notice has to be at least three months prior to the passing of such an order or in the alternative in lieu of such notice three months' pay and allowances have to be paid to the official sought to be retired prematurely either prior to the passing of such an order or at least simultaneously with the passing of such an order and if this is not done, the order of premature compulsory retirement would be invalid. It has been further propounded that where the payment of three months' pay and allowances was made by giving the official a cheque along with the order of compulsory retirement and the cheque was dishonoured by the bank on presentation for its being undated, the issue of the cheque would be tantamount to non-payment which would render the order of retirement invalid.
29. Even the subsequent rectification of the cheque by putting a date could not cure the defect because the payment of three months' pay and allowances is mandated to be made before or simultaneously with the passing of the order of premature compulsory retirement. This view has been held upon consideration of several decisions including some decisions of the Hon'ble Apex Court, as noticed by us from the observations made in paragraphs 4 and 5 of the Judgment.
30. This aspect, in our view, is 'IPSO facto' sufficient to quash and set aside the impugned order of compulsory retirement, as it goes to the root of the matter on account of non-implementation and non-compliance of the mandatory statutory provisions under which the order has been passed.
WHETHER THERE WAS NON-APPLICATION OF MIND
31. Apart from that, in our opinion, on appreciation of and upon proper evaluation, of the service record of the petitioner, while viewed in the light of jurisprudential doctrine governing compulsory retirement, more so, in case of Judicial Officers, we have found that the case of the petitioner has not been seriously, correctly and properly examined and gross irrationality is spelt out when case is appreciated and considered apart from the allegation of arbitrariness, mala fide, victimization, so on and so forth, as stated in the petition by the petitioner against the respondent No. 1 High Court-Administration. Thus, second serious contention of 'Non-app1ication of Mind' comes into Consideration on the forefront. We have considered part of the service record of the petitioner earlier, We would ,now, like to highlight the entire consolidated service record in terms of the appreciation of performance by the District Judges, Inspecting Judges concerned, as well as, the Standing Committee, in last three decades of service spell.
CONSOLIDATED EVALUATION OF SERVICE RECORD
Name of Judicial Annual Confidential Reports/ Allegations
Officer Remarks of Hon'ble Inspect-
ing Judge.
1 . Sri Rana Abhay A.C.R. Total No of
Singh. 1974-75: Intelligent. Quality and : allegation
quantity of work fair. Relation : petition received
with the Bar satisfactory. : - 8.
1975-76: Intelligent. Quality : Petition No. 1
of work fair. Quantity of :
capable of improvement. Relat- : File No. :XXIX-9
ion with Bar satisfactory. : -87
: Allegation
1976-77: Quality of work : Initiated: 5.3.87
satisfactory and quantity : Nature of
capable of improvement. Relat- : Allegation:
ion with Bar Fair. : Accepting final
: form prior to
1977-78: An intelligent and : date recalling
well mannered officer. Integrity : date in G.R.
is sound. He is devoted to his : 1402/85 at the
work. He has managed the Copying : instance of
Department with high efficiency. : accused.
:
1978-79: He is a pood and an : Result: No
intelligent officer. His disposal : action recomm-
is also satisfactory. He is in : ended.
charge of Copying Department :
and he manages it efficiently. : Petition No. 2
His relationship with the Bar : File No. XXI-1-94
and his colleagues is good. : Allegation
: Initiated: 18.2.94
1979-80: A laborious officer : Nature of
with sound integrity. I have : Allegation:
heard appeals arising out of : Corruption charges
his Judgments and have found : and granting
his Judgments well discussed : injunction on
and evidence-nicely appreciat- : flimsy ground.
ed. His disposal was appreci- :
ated. His disposal was also : Result: Action
satisfactory . His reltaionship : not recommended
with his colleagues and members :
of the Bar is good. : Petition No. 3
:
1980-81: A painstaking officer. : File No. XXI-1-94
As S.D.J.M., he was carrying : Allegation
good reputation. His orders are : Initiated: 18.5.94
well discussed. : Nature of
: Allegation:
1981-82: Took interest in his : Granted bail as
work and tried to help in admi- : ADJ VI, Siwan
nistration. An officer of average : although earlier
merit. : refused by Ist
:
1982-83: Smart and good Judicial : Result : Explanation
Officer. Knowledge of law fair. : on of Sri Singh
Relationship with members : was accepted by
of the Bar, colleagues and staff : Hon'ble Standing
satisfactory. : Committee.
:
1983-84: A good Judical Officer :
Intelligent and Sm Article Relation- : Petition No. 4
ship with the members of the Bar : File No. XXI-1-94
colleagues and staff good. : Allegation
: Initiated: 25.6.
1984-85: He has satisfactory know-: 1994.
ledge of law and procedure. He is : Nature of
industrious and average in dispo- : Allegation:
al of cases. He is an efficient : Granted bail
Officer. In a petition purporting : although it
to be in the name of one Bihari : has been rejected
Lall allegations were made against : earlier by the
his conduct and integrity. : Hon'ble Court.
Satisfactory . Anyhow satisfactory :
:
1985-86: His knowledge of law and : Result:
procedure is satisfactory. He is : Explanation of
industrious and prompt and the : Sri Singh
disposal of cases is average. : accepted by
He is an efficient officer. : Hon'ble Court.
Regarding an allegation petition :
confidential letter No. 55 dated : Petition No. 5
17.4.86 as sent to the Hon'ble
: Court and under Hon'ble Court's : File No. XXI-1-
confidential letter No. 649 dt. : 94
21.5.86, report was required to : Allegation
be submitted by him which has : Initiated: 26. 9.
been submitted by him and : 1994.
transmitted to the Hon'ble High : Nature of
Court.
Any how satisfactory. : Allegation:
: Demanding
1986-87: C.R. Not received. : articles by
: Sri Singh's
1986-87: He Joined on 10.1.87. Due : wife and his
to N.G.Es' strike from 20.1.87 : son and
work to his court remained : 'Palang'etc
almost paralysed up to 20.2.87and : was taken as
thereafter he is on leave. Thus : the case was
period too short to assess him. : pending in his
Hence no comment. : Court.
:
1987-88: Average knowledge of law : Result:
and procedure. Average both in : No action and
industry and in disposal of cases : allegation
He is not an efficient officer. : ordered to be
Judicial work not clean. : filed.
Could not maintain reputation of :
honesty and impartiality. : Petition No. 6
Final Assessment-Any how satisfactory.
: File No. XXI-1-94
Remarks of Hon'ble Inspecting :
Judge : Allegation
1985: B+ (Good) : Nature of
1987: B+ (Good) : Allegation:
1995: B (Satisfactory) : Torturing his
1998: A (very good) : mother
2002: Satisfactory : advantage of
2004: A (Very Good) : his post.
:
Remarks by Standing Committee : Result: Family
: affair. No
1997: Censure (Later on warning : action required
recorded in stead of punishment : at this stage.
of censure. :
1989-90 : Petition No. 7
to :
1993-94: 8 (Average) : File No. :XXI-1
1994-95: Not recorded : 94
1995-96: B : Allegation
1996-97: Not recorded : Initiated
1997-98: A : 7.8.2002
: Nature of
: allegation:
: Grant of bai1
: to accused to
Besides the aforesaid matters in Guard File there are other matters they are as follows:
1. File No. P.F. No. XXI-1-1994 (Vig. Cell): Serious allegations touching the integrity of the officer for granting bail in different serious case. In transfer and posting of Civil Courts staff for extraneous consideration and misuse of official petrol are matters pending before the Hon'ble Inspecting Judge.
2. File No. LVII-38-1996: There is matter to show that against the officer there is a complaint filed before the Chief Judicial Magistrate, Gopalganj by his brother Rana Vijay Singh ad Rana Dilip Singh that the officer entered into the shop with his bodyguard and looted away Rs. 85,000/- in case. The officer also said about the money suit pending against him and his brother. The file was placed before the then Hon'ble Inspecting Judge, but no order was passed.
3. File No. PF IV-2-90 Admn. (Misc.): There was serious allegation of corruption and bribe was alleged. The matter was place before the then Hon'ble Inspecting Judge, Hon'ble Mr. Justice Radha Mohan Prasad, who found that the matters were very serious and requires immediate action whereupon the Hon'ble Acting Chief Justice stayed the process of appointment.
In the same file there was report of the District Judge by fax that the lock of the Almirah was tampered and the key of which was with Mr. Rana Abhay Singh before his demitting office. The matter was processed and placed before the Hon'ble Inspecting Judge and the matter still to be verified under the orders of Hon'ble Inspecting Judge and Hon'ble the Chief Justice.'
32. Even at the cost of repetition, let it be stated at this stage, that by virtue the resolution of the Standing Committee in its meeting held on the 3rd January, 1997, the following grades were classified to be awarded to the Judicial Officers in respect of their work, conduct and performance:
Grade - A+ - Outstanding.
Grade - A - Very Good
Grade - B+ - Good
Grade - B Average
Grade - C - Below Average.
33. It could very well be appreciated from the aforesaid service record that service record of the petitioner has been overall 'Good' of course, the Hon'ble Inspecting Judges concerned 1n 1998 and 2004 after assessing his performance found him 'Very Good' and, unfortunately, even before the completion of next one year, he was found to be unfit - a dead wood to be chopped off by the administrative side of the High Court! What an utter unreasonableness and manifest unjustness and eye-catching irrationality! It is, also, admitted fact that in the whole service career of three decades out of 8 complaints received against him, for only one complaint only, in 1997, endorsement of ' censure ' came to be recorded which later on came to be converted into ' warning '. Thus, the old and stale minor punishment of 'censure' was also converted later on, on representation made by the petitioner into 'warning' in place of 'censure' was given by the Respondent High Court. Would it ' ipso-facto ' obliterate clean and good service record denying him benefit of two years Extended Service Positive answer would be in negative.
34. It is in this context the sharp contention of the petitioner that he has been victim of mala fide victimization, discrimination and unreasonableness, as well as, non-application of mind cannot easily be thrown overboard on being correctly appreciating entire fact profile and 'Good' Service record of 30 years. At the same time, a question will crop up to be answered as to whether the appraisal and evaluation of the aforesaid entire service record of an employee or officer and that too in the Department of Justice would lead to only and only one inference or perception that how his continuation can be said to be against the public interest. Of course, when a mala fide is alleged against an Institution or Constitutional authority, ordinarily, it would be a question of malice in law and not malice in fact. However, it depends upon the fact situation.
35. 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. That apart, from the comparative service record, as alleged by the petitioner and submitted before us, other officers of the superior judicial service whose service record were not that good as the petitioner has, even then they were considered, favourably, and were granted enhanced age upto 60, or there was no interception, which will be rather abstract and in any way has to be proved by the petitioner in the light of the fact and other allegations.
36. Therefore, we do not propose to discuss and divulge ourselves into that arena in absence of specific material.
37. It would very well be seen from the aforesaid facts situation, placed on record in form of affidavit from the record by the High Court, that the entire consolidated service record of the petitioner is not only satisfactory but has been graded as 'Good' and at times even higher than that as 'Very Good'. In the light of overall consideration and the evaluation made by the concerned District Judges, Hon'ble Inspecting Judges, and the Standing Committee of the High Court, how could it be said that such a meritorious Judicial Officer should be visited with the order of compulsory retirement by intercepting his superannuation age of 60 years and sent home at the age of 58 on the plea of, and in the name of 'Public Interest'. 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. We failed to comprehend as to how and why the Administrative side of the High Court reached to such a dubious decision There is no supportable material. On the contrary, the service record speaks otherwise. Again, for the years 1994-95 and 1996-97, as well as, from 1998-99 till 2004-05, nine years', ACRs have not been written. When earlier record is meritorious and is graded and evaluated 'Good' and for subsequent years, consistently for seven years, record is not evaluated and graded for the reasons unknown to us, on what basis the High Court reached to a conclusion that continuation of such a Judicial Officer would be against Public interest 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'. This speaks volume about the manner and mode in which the impugned decision came to be taken on the Administrative side of the High Court. The impugned order, as such, is spelt out to be bad in Law being faulty and irrational, unjust, unfair and suffering from non-application of mind.
38. We are conscious of the circumscribed jurisprudential sweep of the Constitutional Writ Court Powers in appreciation of such cases for Judicial Review under Article 226 of the Constitution of India. Following principles may be highlighted which are the hallmarks of the Judicial Review. In short, we are not concerned with the quality of the decision taken on the administrative side by the administrative authority or Constitutional functionary but the decision making process.
THE AMPLITUDE OF POWER OF ARTICLE 235 OF THE CONSTITUTION
39. The impugned order of compulsory retirement is passed by the High Court, on its administrative side exercising its Constitutional powers under Article 235 Article 235 contemplates complete control of Subordinate Judiciary by the High Court. It would be, therefore, pertinent to refer to Article 235 at this juncture. It reads as under:
235. Control over subordinate Courts: The control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this Article shall be construed as taking away from any such persons any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
40. It could very well be seen from the aforesaid provision that complete control is vested in the High Court on its administrative side. Article 235 of the Constitution of India, undoubtedly, prescribes control over the Subordinate Judiciary. There is purpose and policy behind it. The 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 the High Court is exclusive in nature, comprehensive in extent and effective in operation. The High Court is, thus, the sole guardian and custodian as mandated by Article 235. We do not propose to enunciate or indicate that the administrative exercise of powers under Article 235 is beyond the purview of the provisions of Articles 226 and 32 of the Constitution of India.
41. Though the administrative orders exercising powers under Article 235 are passed, they are subject to judicial review, but the question is of considering the extent thereof. Order under Article 235 is justiciable. But the extent and ambit of justiciability is very much circumscribed. In other words, the judicial review is permissible to an extent, namely, to probe and analyze decision making process itself only and not to examine the merits of the decision. It is settled proposition of law that what should be the quality, what should be the standard, what should be the nature of order or 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 administrative 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.
42. The role of the High Court exercising its power under Article 235 is not only a role of a manager or master, but it is a role of a guardian. It is ,also, a role of a custodian and the position of the High Court vis-a-vis the judicial officers is also, like a 'loco parentis.' In order to effectively and efficiently perform its power, as well as, duties, the High Court on its administrative side is obliged to consider various aspects, various considerations and thereafter has to reach to a conclusion collectively. We may state at this juncture that the High Court acts on its judicial side through Benches. But the decision of any Bench is a decision of the High Court. Likewise, the High Court acts on its administrative side through Committees, but the decision of the Committee is a decision of the High Court. What we try to emphasise is that the decision taken by the Committee is reflecting the collective will and wisdom of the High Court.
43. The powers of this Court under Article 226 of the Constitution of India are, no doubt, very wide, but are circumscribed in certain parameters and are to be exercised in a limited circumference. Any and every administrative order is not challengable with the aids 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. They are also required to be exercised in the light of the recent developments in the administrative law. Article 226, therefore, can be employed in a given case when illegality is perpetrated or manifest injustice is done in violation of the principles of natural justice.
44. The powers under Article 226 are discretionary. They are circumscribed. When an administrative order is challenged before the Court under the help or aids of the provisions of Article 226, what is required to be shown is that the person, management or the authority or decision making institution has taken the decision which is vitiated either because of non-observance of principles of natural justice or in violation of the principles of law or on the ground of proved strong case of 'mala-fides' or tainted with illegality. It is not designed to substitute the just and meritorious administrative orders or decisions. It is not devised to supplant the managerial action or discretion. What is designed is to see as to whether the 'decision making process' is just, proper and legal and without any contamination. If 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 action. Otherwise, the role of the Court under Article 226 would not be supervisory but it would become a role of an appellate Court.
45. It is a settled proposition of law that the role of the Court while exercising its power under Article 226 is not that of an appellate Court. It is not what is decided to be seen. It is 'how' decided, that is to be seen. If 'how' says free, fair, just, reasonable, then 'what' becomes immaterial. The Court cannot substitute the managerial decision or administrative wisdom. These parameters must be borne in mind by us. It is, therefore, rightly said that the powers of the Court under Article 226, though very very wide, are circumscribed to an extent in selected spheres and fields.
46. It may further be noted that the role of a court under Article 226 is still narrower in case of a challenge against the order of the Management arising out of service jurisprudence. It cannot be objected ordinarily. When it could be objected is also highlighted in catena of judicial pronouncements. So, limited role assigned to a Court in a writ jurisdiction is still narrower in a challenge of an order of compulsory retirement.
47. What is required to be seen by the Court when a question is raised 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 extrneous considertion, like 'mala fide' . violation of principle of law, irrationality, unresonbleness or unjustness has tainted the decision of the authority. If the answer is '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 cannot be challenged, much less with the aid of extraordinary, equitable, prerogative powers under Article 226 of the Constitution of India.
48. The administrative law is developing very fast. so is the case of fast developments in service jurisprudence. Ordinarily, it is for the master or the management to decide the administrative problems and take appropriate administrative decisions. Whereas, in the present case, the administrative decision is taken by the Constitutional authority exercising its Constitutional powers under Article 235.
49. Judicial service is not a service in the sense of 'employment'. The Judges are not employees. As members of Judiciary, they exercise the sovereign judicial powers of the 'State'. They are holders of public office in the same way as members of Council of Ministers and members of Legislature. This view is very much enunciated by th Apex Court in two decisions of All India Judges Cases.
50. We may point out here that the concept of exercise of discretionary power is though complex, but, undoubtedly, says that it involves variety of alternatives, it covers different types of options and approaches. The very expression 'discretion' connotes more than one action, more than one alternative. The perception of situational reality arising out of the record and the facts made by the Standing Committee based on the report of the Evaluation Committee could be said to be reasonable.
51. Be that as it may, even if a different view is possible or taken then, also, it is not permissible for the Court on the judicial side to supplant it, by its wisdom. This is the gist and genesis of the administrative law. If decision making process is vitiated, the judicial order must enter into it. In a case of discretion, if more than one perception or more than one alternative can be considered and can be reached and if not reached the same and one as taken in impugned order would warrant exercise of extraordinary powers under Article 226 Perception may be different. It depends upon the appreciation, depends upon the assessment.
PARAMETERS OF JUDICIAL REVIEW
52. Let us look into and surf through the celebrated principles and parameters of the amplitude and altitude of Article 226 of the Constitution of India . Thus, the scope and jurisdictional sweep of Article 226 is highlighted hereinbelow:
(i) Judicial review under it cannot be converted into an appeal;
(ii) It is confined to examining procedural correctness;
(iii) It does not extend to going into merits of dispute or controversy.
(iv) Judicial review is not directed against the decision, but is confined to the examination and appreciation of the decision making process.
(v) Resort to it has been provided, inter alia. for protection and enforcement of rights. It is discretionary relief which cannot be granted as a matter of right and it could be, also, refused if there is conflicting interest of an individual with that of the public interest. In other words, public interest is of paramount consideration.
(vi) It must also be remembered that the Court would always expect utmost faith and equity on the part of the party applying for the discretionary and equitable relief under Article 226.
(vii) It is also necessary to consider whether the decision making process is faulterable or objectionable and whether the fault is such which would vitiate the making of decision itself.
(viii) Justiciability and control of discretionary power depends upon variable, divergent and different situational reality and type of factual scenario.
(ix) Justiciable issue has been described in general terms as simply one which raises real and substantial questions in a form appropriate for judicial determination.
(x) It is true an administrative law which is as such in the form of judicial review of an executive action is stripped of its outdated technicalities and artificial distinction.
(xi) The critical question is whether the intervention of the court is desirable or appropriate and no where is the answer more frequently difficult to find than in the control of discretionary power.
(xii) It is also necessary to consider that the control of discretionary power is arising out of which source:
(a) Is it the discretionary exercise out of non-statutory power?
(b) Is it out of statutory powers ?
(c) Is it out of Constitutional powers ?
(xiii) The exercise of power is made by whom and how ?
(xiv) The principles of judicial review may be employed and exercised considering whether exercise of discretionary power is not bona fide. whether it is unreasonable? Whether there is abuse or misuse of such power ?
(xv) Variability, of course, is the outstanding feature of judicial review of administrative action.
(xvi) Innumerable factors influence the Courts in the judicial surveillance of discretionary powers and there is as much variability in the application of well known principles as in other areas of facets of the scope of review.
(xvii) It is for the administration to decide and determine which criteria, which factor, which perception must receive weight out of many alternative in 'bona fide' exercise of discretionary power and not the courts.
(xviii) It is not for the adjudicator to supplant or implant, supply or simply modify or nullify, fester or foster, simplify or nullify 'bona fide' exercise of administrative discretionary power and more so when it is prerogative or Constitutional;
(xix) Judicial review process is permissible only in decision making process and not the type, nature, quality and standard of decision or action;
(xx) Vulnerability of Court's intervention when discretion is 'bona fide' exercised in certain orders or decisions on administrative side more so when judicial technique and policy contents or internal managerial wisdom is used or employed 'bona fide' ;
(xxi) The reasons for decision maker taking one course rather than another do not normally involve question to which if disputed judicial process is adopted to provide right answer.
(xxii) The subject-matter of judicial review in reality encompass virtually the entire machinery of executive - administrative mechanism.
(xxiii) Justiciability is enevitably bound up with issues of judicial restrains, judicial techniques and judicial disciplines and judicial propriety.
53. It becomes, therefore, clear from the aforesaid settled proposition of law that the standard, extent, quality and like aspects are not to be examined like an appellate Court or superior authority.
54. It may, also, be mentioned that the administrative action is a comprehensive term and defies the exact definition. Speaking generally, that an administrative case can be classified into four categories, i.e. (1) rule making action, (2) rule-decision action, (3) rule application action and (4) ministerial action. Administrative action itself is residuary and it is neither legislative nor judicial. It has no procedural obligation of collecting evidence and weighing arguments. It cannot be gainsaid that such an action on many occasions is based on subjective satisfaction rather than the decision is based on policy and expediency. It does not decide the right though it may affect the right. It is, therefore, a settled proposition of law that writ Court under Article 226 cannot probe into the expediency of the decision.
55. Administrative discretion in common parlance means choosing from amongst the various available options, perceptions of alternatives without reference to any pre-determined criteria, no matter how subjective that choice or the perception it may be. The problem of administrative discretion is, no doubt, complex. There has been constant conflict between the claims of the administration to an absolute discretion and claims of subject to a reasonable exercise thereof.
56. Notwithstanding that, the powers enshrined under Article 226 do not empower the writ Court to supplant the administrative decision merely on the hypothesis or on the basis that a different view could have been taken. The authority concerned is obliged to take into account various aspects and circumstances and has to reach a decision which is precisely, prima facie done in the present case. The administrative order, therefore, cannot be interfered with unless:
(i) it is vitiate by proved mala fides or
(ii) it is found in violation of rule provision or statutory provisions; or
(iii) suffers from the vice of irrationalist, unreasonableness or impropriety
57. We do not propose to divulge in details into the pathology and prognosis of service jurisprudence. We, however, can't resist the temptation of making a reference of what Benzamin Cardozo said (in the factual backdrop which led to the filing of writ petiton) -
The judge, even when he is free is still not wholly free. He is not a knight errant roaming at will in pursuit of his own ideal beauty or goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion, informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity or order in the social life wide enough in all conscience is the field of discretion that remains.
As propounded by the Hon'ble Apex Court in C. Ravichandran Iyer v. Justice A.M. Bhattarcharjee : (1995)5SCC457 ,
Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the Court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten Code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only, of the Judge but the Court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an Advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill afford to seek shelter from the fallen standard in the society.
58. After having examined the principles laid down by the Hon'ble Apex Court in the case of Ravichandran Iyer (supra), it can safely be stated that in case even a feeling is created rightly or wrongly that there is failure to act freely and fairly and where there is a reasonable suspicion or appearance or likelihood of bias in the mind of litigant or a party or improper use of power, then in that case, such a conduct or behaviour or an action on the part of a Judge or decision making authority would harm the independence of Judiciary or the system.
59. Judicial review in the realm of public law is the heart and hub of the judicial mechanism in our Constitution. The main grounds of judicial review are illegality, irrationality and procedural impropriety. While it has been stated that the grounds of judicial review define precise definition most, if not all, are concerned with either the process by which the decision was made or the scope of the power of decision-maker. It is important to remember that initial source of power for judicial review was common law and that the overall ground of judicial review is that the repository of public power has breached the limits placed upon grant, of that power.
60. Ordinarily, apart from the aforesaid limited scope of judicial review, in appreciation and consideration of the administrative decision and more so, in a case when the decision is a collective managerial or administrative action of a constitutional authority in exercise of the constitutional power but on the administrative side, it is very rare that the constitutional power, like powers under Article 235 of the Constitution read with Rule 74(b)(ii) of the Bihar Code and in exercise of such administrative decision on being questioned before the Constitutional authority on its judicial side, has to be steered off in the light of the factual panorama and profile emerging from the record of the case, but we want to bring home the point that the approach of the Court in judicial review on administrative decision rendered by another Constitutional functionary 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 or factual malice, or want of rationality, reasonableness, or suffers from discrimination, or non-application of mind.
61. We are, also, conscious of the fact that compulsory retirement of an employee or an officer in terms of the service rule or in terms of the statutory power read with Article 235 of the Constitution of India, of the functionary like the High Court is not punitive and not stigmatic but when it is questioned or assailed on the ground as aforesaid, 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 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 later on challenged by the adversely affected officer.
CASE LAW RELIED ON AND CONSIDERED
62. In this connection we have, also, considered the propositions propounded and principles highlighted in the following decisions:
(i) J.D. Srivastava v. State of M.P. and Ors. : (1984)ILLJ344SC ,
(ii) Baikunth Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. : (1992)ILLJ784SC ,
(iii) Madan Mohan Choudhary v. State of Bihar and Ors. : (1999)IILLJ229SC ,
(iv) Rajat Baran Roy and Ors. v. State of W.B and Ors. : [1999]2SCR618 ,
(v) High Court of Judicataure at Allahabad v. Sarnam Singh and Anr. : (2000)2SCC339 , and
(vi) Chandra Singh and Ors. v. State of Rajasthan and Anr. : AIR2003SC2889 .
63. In the case of J.D. Srivastava (supra), there had been a similar question that after scrutinizing the entire service record right from the year 1975 it has been held that in the light of the service record, compulsory retirement cannot be directed. In view of the aforesaid proposition and the exposition of law, the power to retire a Government servant in 'public Interest', in terms of the service rule is held to be absolute provided the authority concerned forms an opinion bona fide that it is necessary to pass such an order in public interest. However, if such decision is based on collateral grounds or if the decision is arbitrary, or is unreasonable or irrational, it is liable to be interfered with by the Courts. The material observation in the case of J.D. Srivastava (supra) is very important which reads as under:
The power to retire a Government servant compulsorily in public interest in terms of a service rule is absolute provided the authority concerned forms an opinion bona fide that it is necessary to pass such an order in public interest. However, if such decision is based on collateral grounds or if the decision is arbitrary, it is liable to be interfered with by courts.
64. The Constitution Bench in the case of Baikuntha Nath Das and Anr. (supra) held that the judicial review of the order passed on administrative side is open only on grounds of mala fide, arbitrariness and perversity. The relevant part of the Judgment runs thus:
In the circumstances, it cannot be said that the order of compulsory retirement suffers from mala fides or that it is based on no evidence or that it is arbitrary.
An order of compulsory retirement has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/ character rolls, both favourable and adverse. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a rule corresponding to it. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
65. In the case of Madan Mohan Choudhary v. State of Bihar and Ors. (supra) it has been held that duty of judiciary is to act fairly and to uphold rule of law. Faith reposed in Indian judiciary enjoins upon the Judges to apply these principles even while judicially reviewing the decision taken by them on the administrative side. Such an approach however was held to be found wanting in this case. Further in the case of Rajat Baran Roy and Ors. (supra), it was held that the benefit of raised retirement age be made available only to efficient judicial officers and not to others. The directions and the rider were of transitional nature, applicable till the time State Governments framed suitable provisions for raising retirement age to 60 years. Retirement age in the case of petitioners, in this case, who were judicial officers in respondent State, stood raised to 60 years by virtue of State G.O. dated 20.6.1992, read with Central Govt. OM dated 13.5.1998 and State G.O. dated 15.5.1998. The State Government after issue of order dated 15.5.1998, could not take recourse to the rider for compulsorily retiring the petitioners on their attaining the age of 58 years. It is, clearly, applicable to the present case.
66. In the case of High Court of Judicature at Allahabad v. Sarnam Singh and Anr. (supra) it has been held as follows:
It was clarified in All India Judges' association case itself that the condition laid down by the Supreme Court regarding assessment of work was only a temporary measure and was not to be accepted as a permanent feature. The choice was thus left to the appointing authority. If the appointing authority had made necessary service rules extending the age of retirement, the above procedure was to be given up as the officers would continue in service in accordance with the service rules made by the appointing authority in the respective States. If it was not done, the judicial officers were to be continued in service till the age of 60 years, in accordance with the directions of the Court in the earlier case, provided the officers, on a scrutiny of their service records, were found suitable for the benefit of extended service.
The directions of the Court for scrutiny of their service records being of transitory character, yielded place to the new rules made by the State Government. It was no longer incumbent on the High Court to resort to the procedure of scrutiny of service records of all judicial officers before allowing them benefit of extension of retirement age.
The respondent's service records were scrutinised by the High Court purportedly in view of the directions given in the second All India Judges' Association case. The High Court however, overlooked a vital fact that retirement age had already been increased to 60 years by new statutory rules notified before this Judgment. The respondent, in view of new rules, was entitled to continue in service upto the age of 60 years. It was, therefore, not necessary, for the High Court (on the administrative side) to have scrutinized service records at that stage. The order of compulsory retirement passed by the State Government on the recommendation of the High Court was wholly erroneous.
67. In the case of Chandra Singh and Ors. v. State of Rajasthan, and Anr. (supra) it has been held that in terms of Rule 53 of the Pension Rules, an order of compulsory retirement can be passed only in the event the same is in public Interest and/or three months' notice or three months' pay in lieu thereof had been given. Compliance with prerequisites of such a rule is mandatory and not directory.
68. It will be interesting to note that directions have been incorporated in the Patna High Court Rules 1916 in Chapter I- The Rules for the disposal of Non-judicial Business. Rule 1 provides the constitution of the Standing committee. Rule 2 provides that the Standing Committee shall be charged with the control and direction of the subordinate Courts, so far as such control and direction are exercised otherwise than judicial. The material rule provision is made in Rule 3 which is relevant for our purpose. Rule 3 reads thus:
The Standing Committee shall have power, without reference to the Judges
(i) to dispose of all correspondence within its own Department urgent in its nature and not of general importance;
(ii) to make recommendations for promotion of subordinate Judges to the rank of Additional District & Sessions Judges and of the Additional District and Sessions Judges to the rank of District and Sessions Judges, and their initial posting on promotion or appointment;
(iii) (a) to exercise the power exercisable by the Court under the Code of Criminal Procedure, 1973;
(b) to make recommendations to the Government for the testing of special powers under any special Act;
(iv) (a) to pass orders of transfer of District and Sessions Judges and Additional District and Sessions Judges;
(b) to pass orders of the transfer and posting of Subordinate Judge, with or without the powers of an Assistant Sessions Judges and Munsifs.
(v) To make recommendations for the deputation of officers of Bihar Judicial Service or Superior Judicial Service to posts under the Government of India, Government of Bihar or other State Government or to Foreign Service;
(vi) to issue orders regarding the promotion of Munsifs;
(vii) to pass orders of suspension, initiation of departmental proceedings against member of the Superior Judicial Service and Subordinate Judicial Service, and consequential orders in the said proceedings other than that of dismissal from service;
(viii) to issue Circular Orders and General Letters to the Subordinate Courts;
(ix) to dispose of any matter which might have been dealt with by the Judge-in-charge of the Administrative Department, but which he has referred to the Committee for their opinion;
(x) to make recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank:
Provided that notice of the decision of the Standing Committee shall be circulated to the Full Court within ten days from the date of the decision and if any member of Full Court desires, within three weeks of the decision, the matter to be discussed at a meeting of the Full Court then no action will be taken till the decision at such a meeting, and
(xi) to dispose of any matter referred to it by the Full Court which might have been dealt with by the Full Court.
69. The supervision and control of the High Court over the Judicial Officers working in the District judiciary is paramount and is, mainly, vested in the Standing Committee. Of course, the constitutional powers for superintendence under Article 235 of the constitution cannot be fettered by the provisions in the other law. But one thing is certain, as provided in Rule 3 of the Patna High Court Rules that which power is to be exercised how and when by the Standing Committee.
70. It is in these context that Sub rule (x) of Rule 3 is material which provides and empowers the Standing Committee to make recommendation to the State Government for compulsory retirement of any judicial officer of any rank with a proviso attached to it which prescribes as to when the decision of the Standing Committee shall become effective and operative.
71. It is evident from the said provision that the case of compulsory retirement of any judicial officer of any rank has to be dealt with and decided by the Standing committee. Any of the counter affidavit or any other supplementary counter affidavits in succession sixth, filed on behalf of the respondent No. 1 High Court, unfortunately, does not even remotely renunciate as to why this provision has not been resorted to in the case of the petitioner. Probably, in view of All India Judges Association cases (supra), the confirmation by the Full Court might have led to take a decision in the Full Court but when the extended or enhanced age of superannuation at 60 under Rule 73 came to be effective before the completion of 58 years stipulated in the decision by the earlier Full Court of the High Court, the principles and guidelines evolved and enunciated in the All India Judges Association Cases, and subsequent review case would cease to operate and exist in view of the statutory provisions. Consideration of the benefit of the enhanced age from 58 to 60 years of retirement to the Judicial Officers in terms of the direction of the Hon'ble Supreme Court highlighted in the All India Judges case and later on review case were temporary in nature were, ad hoc, in status and subject to the statutory provisions.
72. It will be at this stage interesting to highlight the observation made in the case of High Court of Judicature at Allahabad v. Sarnam Singh and Anr. (supra), wherein, the Hon'ble Apex Court took note of the fact that it has already been clarified in All India Judges' Association case that 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. It was, therefore, clarified in this case that the condition laid down by the Supreme Court regarding assessment of work, performance and conduct of Judicial Officers was a temporary measure and was not to be adopted as a permanent feature. The choice was thus left to the appointing authority. If the appointing authority had made necessary service rules extending the age of retirement, the above procedure was to be given up as the Officers would continue in service in accordance with the service rules made by the appointing authority in the respective States.
73. It is in this context, probably, that the amended provision of the Bihar Service Code applicable to the Judicial Officers enhancing the age from 58 years to 60 years was made applicable with effect from 24.3.2005, obviously, the guidelines or the directions contained in the All India Judges case would cease to operate and there was no question of taking the matter to the Full Court as per the statutory provisions as highlighted hereinabove in Rule 3(x) of the Patna High Court Rules, 1916. It is the Standing Committee which is empowered to recommend for the compulsory retirement.
74. Without going into the other details at least one thing would emerge without any question of doubt that there was serious confusion at the time of taking the decision. It was probably not certain whether the provisional directions contained and enunciated in the earlier Judgment of 'All India Judges case' (supra) would apply or the subsequently amended statutory provisions of the 'Bihar Service Code' would apply, but, in any case, it would be an indicative of serious confusion resulting into manifest non-application of mind to the vital issue. The decision taken by the Full Court though not required under Rule 3(x) of the Patna High Court Rules, 1916, after the amendment of the Rule 73 of the Bihar Code may not be, technically, a fatal aspect, but it radiates an imprint of utter confusion, undue haste, and non-application of mind, at the relevant time showing unwarranted expedition to intercept the Regular March of the petitioner in Service career as District and Sessions Judge. Therefore, the impugned order of compulsorily retirement recorded against the petitioner before us is vitiated as after amended provision of Rule 73 of the Bihar Code, there was non-compliance of statutory provision of Rule 74(b)(ii) of the Bihar Code as the provisional directions for extended two years service from 58 years to 60 in terms of 'All India Judges' Case' (supra) ceased to apply and, therefore, statutory provisions remain in the field and there will not be any question of granting benefit of extended retirement age of 2 years from 58 years to 60. On the date of impugned order of Compulsory Retirement the superannuation was statutorily fixed at the age of 60 in the State of Bihar in terms of Rule 73 of the Bihar Code applicable to the Judicial Officers. Otherwise also, on facts, We found that impugned order is irrational, unreasonable and unsupportable from the Service record of the petitioner. Therefore, on both, legally and factually, the impugned order is unsustainable and unsupportable. It ought to be, therefore, quashed and set aside. Accordingly, it is quashed and set aside and the petition shall stand allowed with all monetary and otherwise benefits.
EPILOGUE
75. The High Court on its Administrative side in purported exercise of powers under Article 235 of the Constitution of India may so take a decision which is spelt out to be in violation of the statutory provisions 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 of the Constitution of India, has to put such an impugned order in its legal shape and give justice to a Judicial Officer.
76. Unfortunately, We have found that the impugned order of compulsory retirement, recorded by the High Court on its Administrative side, while exercising its powers under Article 235 of the Constitution is in violation of the statutory provision of Rule 74(b)(ii) of the Bihar Code for want of compliance of the provisions referable to the statutory notice or, in lieu thereof, salary, after the, statutory extended period of superannuation from 58 years to 60, as well as, factually irrational, unreasonable and unjust. Therefore, painfully but dutifully, in the conclusion, We are left with no alternative but to quash and set aside the illegal order of compulsory retirement passed against the petitioner and to allow this petition with a direction to the respondents to grant and give the petitioner all the consequential benefits, monetary and otherwise, expeditiously.
77. Although, prima-facie. We were inclined to award exemplary cost against respondent No. 1 High Court, on the serious submission by the Senior Counsel for the petitioner and, also, in the light of the manner and mode in which the case of the petitioner has been dealt with by the High Court on its Administrative side, we don't divulge into this aspect taking broader perception, and, notwithstanding that, We prefer to refrain from passing any order in this regard while saying that the 'August Constitutional Institution of the High Court' is not, only, the beacon light and the bright ray of 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 term of Article 235 of the Constitution of India.
78. With these observations, We direct the Registrar General of Respondent No. 1 High Court, to place the matter, expeditiously, on its Administrative side, for further necessary administrative orders and directions as to reinstatement of the petitioner and to post him as District & Sessions Judge, with all consequential benefits. Rule is made absolute with costs.
.