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Saturday, March 29, 2014

Service matter - an adverse remark not acted upon - pay hurdle for evaluation committee from not extending service of the respondent beyond the age of 58 years - when challenged High court set aside the same and order to review the same - Hence this appeal - Apex court held that the High court rightly set aside the orders of Evaluation committee but the delay of 14 years for reaching this case for hearing restrained the court to take right decision to redo the things - the apex court held that the respondent be treated to have retired from service on completion of 60 years of age and all consequential benefits, including pay and pension on that basis, be made available to him forthwith and without any delay.= HIGH COURT OF JUDICATURE ... APPELLANT (S) AT PATNA, THROUGH R.G. VERSUS SHYAM DEO SINGH & ORS. ... RESPONDENT (S)= 2014 (March . Part) judis.nic.in/supremecourt/filename=41350

 Service matter - an adverse remark not acted upon - pay hurdle for evaluation committee from not extending service of the respondent beyond the age of 58 years - when challenged High court set aside the same and order to review the same - Hence this appeal - Apex court held that the High court rightly set aside the orders of Evaluation committee but the delay of 14 years for reaching this case for hearing restrained the court to take right decision to redo the things - the apex court held that the respondent  be  treated  to  have  retired  from  service  on completion of 60 years of age and all consequential benefits, including  pay and pension on that basis, be made available to him  forthwith  and  without any delay.=

  By a communication dated 17.5.2000 issued by the Registrar General  of
the Patna High Court the  respondent  herein  was  informed  that  he  would
retire from the service  on  completion  of  58  years  of  age.   
The  said
communication of the Registrar General was, inter alia, based on a  decision
of the High Court on the administrative side taken in a meeting of the  Full
Court held on 6.5.2000 wherein the  decision  of  its  Evaluation  Committee
dated 2.5.2000 not to extend the service of the respondent  beyond  the  age
of 58 years was approved.  
All the  aforesaid  decisions  being  challenged,
were set aside by the High Court  by  its  order  dated  20.2.2001  and  the
matter was directed to be reconsidered.  
Aggrieved, the  High  Court  is  in appeal before us.=

           It  is  not  in  dispute  that  the  adverse  remarks/comments   dated
15.12.1995 had not been communicated to the respondent.  
It  is  also  clear
from the materials on record that the standing committee of the  High  Court
in its meeting held on 3.1.1997 had decided to close the matter  instead  of
proceeding any further.  
The subsequent  ACRs  of  the  respondent  for  the
years 1997-1998 and 2000-2001 are  sufficiently  positive  and  depicts  the
respondent as an efficient judicial  officer  with  a  good  reputation  for
honesty and impartiality.  
The  respondent  was  promoted  to  the  post  of
District and Sessions Judge on 5.9.1998.  
By  Notification  dated  17.2.2000
he was promoted to the  selection  grade  of  the  Bihar  Superior  Judicial
Service with effect from 1.1.1997.  
Therefore, not only the  adverse  remark
dated 15.12.1995 was not acted upon but subsequent thereto promotion to  the
highest level in the district judiciary as well as selection  grade  in  the
said cadre was granted to the respondent.  
Promotion to the higher  post  of
District Judge and placement in the selection grade is on an  assessment  of
positive merit and ability. 
The said promotion(s),  therefore,   would  have
the effect of wiping out the adverse remark dated 15.12.1995.  
Such  a  view
has in fact  been  expressed  in  Brij  Mohan  Singh  Chopra  Vs.  State  of
Punjab[4] (Para 10).  
In the light of the above facts, we  do  not  see  how
the High Court, on the administrative side, can be found to be justified  in
refusing to continue with the service of the respondent beyond  the  age  of
58 years.  
The order dated 20.2.2001 passed by the High Court setting  aside
the said decision, therefore, will have  to  be  affirmed  and  the  present
appeal dismissed.  We order accordingly.

10.   What should be the consequential relief that ought to be  granted?   
A
period of nearly 14 years has elapsed in the meantime.  It  will  be  highly
inequitable to request the High Court to redo the exercise at  this  belated
stage.   
Besides  such  a  course  of  action  will  also  be   unnecessary,
particularly, when the entire service record  of  the  respondent  had  been
placed before  us,  details  whereof  is  also  available  in  the  impugned
judgment of the High Court.  
Having considered the same, we deem it  fit  to
order that the respondent  be  treated  to  have  retired  from  service  on
completion of 60 years of age and all consequential benefits, including  pay
and pension on that basis, be made available to him  forthwith  and  without
any delay.
2014 (March . Part) judis.nic.in/supremecourt/filename=41350
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

                    REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL  NO.2529 OF  2002


HIGH COURT OF JUDICATURE          ...   APPELLANT (S)
AT PATNA, THROUGH R.G.



                                   VERSUS


SHYAM DEO SINGH & ORS.            ...   RESPONDENT (S)




                               J U D G M E N T

RANJAN GOGOI, J.

1.    By a communication dated 17.5.2000 issued by the Registrar General  of
the Patna High Court the  respondent  herein  was  informed  that  he  would
retire from the service  on  completion  of  58  years  of  age.   The  said
communication of the Registrar General was, inter alia, based on a  decision
of the High Court on the administrative side taken in a meeting of the  Full
Court held on 6.5.2000 wherein the  decision  of  its  Evaluation  Committee
dated 2.5.2000 not to extend the service of the respondent  beyond  the  age
of 58 years was approved.  All the  aforesaid  decisions  being  challenged,
were set aside by the High Court  by  its  order  dated  20.2.2001  and  the
matter was directed to be reconsidered.  Aggrieved, the  High  Court  is  in
appeal before us.

2.    A perusal of the order under challenge goes to show that two  reasons,
in the main, had prevailed upon the High Court to  arrive  at  the  impugned
conclusion.

      The first is that the negative remarks/adverse  comments  recorded  in
the Annual Confidential Report (ACR) of the respondent  on  15.12.1995  were
not communicated to the respondent and the foundational facts for  the  said
remarks are wholly unsubstantiated.  It was also found  by  the  High  Court
that the standing committee of the High Court on 03.01.1997 had decided  not
to pursue the matter but to treat the same as closed. The  High  Court  also
took the view that notwithstanding  the  said  remarks  the  respondent  was
subsequently promoted to the post of District  &  Sessions  Judge  and  also
granted the selection grade.  The aforesaid facts,  according  to  the  High
Court, had the effect of wiping out the adverse  remarks  dated  15.12.1995.
The High Court, in the impugned order, also took note of the fact  that  the
ACRs  of  the  respondent  for  the  subsequent  years  indicated  that  the
respondent, over all, is a good officer  with  nothing  adverse  as  to  his
integrity and reputation.

      The other reason for which the High Court had  come  to  the  impugned
conclusion  is  that  while  extension  of  service  was  refused   to   the
respondent, one Mr. Udai Kant Thakur whose ACRs were decidedly  inferior  to
that of the respondent was granted continuation after 58 years.   It  is  on
the aforesaid twin basis that the High Court had concluded that  the  denial
of extension to the respondent  necessitated  interference  in  exercise  of
power of judicial review under Article 226 of the Constitution.

3.    We have heard  Shri  P.H.  Parekh,  learned  senior  counsel  for  the
appellant and Mr. Ambhoj Kumar Sinha,  learned  counsel  appearing  for  the
respondent No.1.

4.    It is convenient to deal, at  the  first  instance,  with  the  second
ground that had prevailed upon the  High  Court  to  set  aside  the  orders
passed by it on the administrative side.  Having considered the  matter,  we
do not think it is necessary for us to go into the  said  question  inasmuch
as the entitlement  to  continuation/extension  of  service  of  a  judicial
officer beyond the age of 58 has to  be  determined  on  the  basis  of  the
service record of the particular officer under consideration and  not  on  a
comparative assessment with the record of other officers.   Therefore,  even
if we hold that the ACRs of Shri Udai Kant Thakur  were  decidedly  inferior
to those of the respondent, the same, at best, may  have  relevance  to  the
grant of extension to the aforesaid officer without conferring any right  or
entitlement to the respondent for a similar extension.   It  is,  therefore,
the first ground that had weighed with the High Court  to  grant  relief  to
respondent which really needs to be examined by us.

5.    The adverse remarks dated 15.12.1995 being the center of focus may  be
conveniently set out hereunder:

           “Of late  I  have  heard  quite  disturbing  reports  about  the
           integrity of Sri S.D. Singh, A.D.J., Dhanbad.  I had a talk with
           the  District  Judge   there   and   he   also   expressed   his
           dissatisfaction about the working of Sri Singh in the  discharge
           of his duties as a Judicial Officer.  Recently, I heard about  a
           criminal case lodged by C.B.I. (in which one Sri  Modi  and  Sri
           Gandhi figure as accused) where the conduct of Sri Singh is  not
           beyond reproach.”


6.    In Bishwanath  Prasad  Singh  Vs.  State  of  Bihar  &  Ors.[1]  which
coincidently arises out of the same resolution of the Full Court as  in  the
present case, this Court had the occasion to  consider  whether  continuance
in service beyond 58 years is a right or a benefit conferred  and  also  the
norms that should govern the decision to grant or refuse  such  continuance.
The aforesaid consideration by this Court was necessitated by the  different
interpretations that seem to have emerged from the directions in  All  India
Judges’ Association & Ors. Vs. Union of India & Ors.[2].   In  paragraph  18
of the report in Bishwanath Prasad Singh (supra)  the  conclusions  of  this
Court were summed up as follows:

      “1. Direction with regard to the enhancement of superannuation age  of
      judicial officers given in All India Judges Assn. v.  Union  of  India
      does not result in automatic enhancement of the age of superannuation.
      By force of the judgment a judicial officer does not acquire  a  right
      to continue in service up to the extended age of 60 years. It is  only
      a benefit conferred on the judicial officers subject to an  evaluation
      as to their continued utility to the judicial system to be carried out
      by the respective High Courts before attaining the age of 58 years and
      formation of an opinion as to  their  potential  for  their  continued
      useful  service.  Else   the   judicial   officers   retire   at   the
      superannuation age appointed in the service rules governing conditions
      of services of the judicial officers.

      2. The direction given in 1993 case is by way of ad hoc arrangement so
      as to operate in the interregnum, commencing the date of judgment  and
      until an appropriate amendment is made in the  service  rules  by  the
      State Government. Once the service rules governing superannuation  age
      have been amended, the direction ceases to operate.

      3.  The  High  Court  may,  before  or  after  the   normal   age   of
      superannuation, compulsorily retire  a  judicial  officer  subject  to
      formation of an opinion that compulsory retirement in public  interest
      was needed. The decision to compulsorily retire must be in  accordance
      with relevant service rules independent of the exercise for evaluation
      of judicial officer made pursuant to 1993  case2.  Recommendation  for
      compulsory retirement shall have to be sent to State Government  which
      would pass and deliver the necessary orders.

      4. If the High Court finds a judicial  officer  not  entitled  to  the
      benefit of extension in superannuation age he would retire at the  age
      of superannuation appointed by the service rules. No specific order or
      communication in that regard is called for either by the High Court or
      by the Governor of the  State.  Such  retirement  is  not  “compulsory
      retirement”  in  the  sense  of  its  being  by  way  of  penalty   in
      disciplinary proceedings or even by way of “compulsory  retirement  in
      public interest”. No right of the  judicial  officer  is  taken  away.
      Where the High Court may choose to  make  any  communication  in  this
      regard, it would be better advised not to use therein  the  expression
      “compulsory retirement”. It creates confusion.  It  would  suffice  to
      communicate, if at all, that the officer concerned, having been  found
      not fit for being given the benefit or extended age of superannuation,
      would stand retired at the normal age or date of superannuation.”



7.    It is in the light of the above propositions laid down  in  Bishwanath
Prasad Singh (supra) that the entitlement of the respondent as  claimed  and
the decision of the High Court on the administrative side  to  the  contrary
will have to be examined, particularly, in the context of the extent of  the
power of judicial review that would be available  to  examine  the  impugned
refusal made by the High Court.

8.    The importance of the issue can hardly be  gainsaid.   The  evaluation
of the service record of a judicial officer for the purpose of formation  of
an opinion as to his/her potential for continued useful service is  required
to be made by the High Court which obviously means the  Full  Court  on  the
administrative side.  In all High  Courts  such  evaluation,  in  the  first
instance, is made by a committee of senior  Judges.   The  decision  of  the
Committee  is  placed  before  the  Full  Court  to   decide   whether   the
recommendation of the Committee should be accepted  or  not.   The  ultimate
decision is always preceded by an elaborate consideration of the  matter  by
Hon’ble Judges of the High Court who are familiar  with  the  qualities  and
attributes of the judicial officer under consideration.  This is  also  what
had happened in the present case.  The very process by  which  the  decision
is eventually arrived at, in our view,  should  permit  a  limited  judicial
review and  it  is  only  in  a  rare  case  where  the  decision  taken  is
unsupported by any material or the same reflects a conclusion which, on  the
face of it, cannot be sustained that judicial review would  be  permissible.
An enumeration of the extent of permissible judicial review  has  been  made
by this Court in Syed T.A. Naqshbandi Vs. State of J&K[3].  Paragraph 10  of
the report which highlights the above position may be specifically noticed:-


      “Neither the High Court nor this Court, in exercise of its  powers  of
      judicial review, could or would at any rate substitute  themselves  in
      the place of the Committee/Full Court of the High Court concerned,  to
      make an independent reassessment of the same,  as  if  sitting  on  an
      appeal. On a careful consideration of the entire materials brought  to
      our notice by learned counsel on either side, we  are  satisfied  that
      the  evaluation  made  by  the  Committee/Full  Court  forming   their
      unanimous opinion is neither so arbitrary or  capricious  nor  can  be
      said to be so irrational as to shock the conscience of  the  Court  to
      warrant or justify any interference.  In  cases  of  such  assessment,
      evaluation and formulation of  opinions,  a  vast  range  of  multiple
      factors play a vital and important role and no one  factor  should  be
      allowed to be overblown out of proportion either to decry or deify  an
      issue to be resolved or claims sought to be considered or asserted. In
      the very nature of things it would be  difficult,  nearing  almost  an
      impossibility to subject such exercise undertaken by the  Full  Court,
      to judicial review except in an extraordinary case when the  Court  is
      convinced that some monstrous thing which  ought  not  to  have  taken
      place has really happened  and  not  merely  because  there  could  be
      another possible view or someone has some grievance about the exercise
      undertaken by the Committee/Full Court.”


                                                          (Emphasis is ours)




9.    In the light of the above, we may now  advert  to  the  facts  of  the
present case.

      It  is  not  in  dispute  that  the  adverse  remarks/comments   dated
15.12.1995 had not been communicated to the respondent.  It  is  also  clear
from the materials on record that the standing committee of the  High  Court
in its meeting held on 3.1.1997 had decided to close the matter  instead  of
proceeding any further.  The subsequent  ACRs  of  the  respondent  for  the
years 1997-1998 and 2000-2001 are  sufficiently  positive  and  depicts  the
respondent as an efficient judicial  officer  with  a  good  reputation  for
honesty and impartiality.  The  respondent  was  promoted  to  the  post  of
District and Sessions Judge on 5.9.1998.  By  Notification  dated  17.2.2000
he was promoted to the  selection  grade  of  the  Bihar  Superior  Judicial
Service with effect from 1.1.1997.  Therefore, not only the  adverse  remark
dated 15.12.1995 was not acted upon but subsequent thereto promotion to  the
highest level in the district judiciary as well as selection  grade  in  the
said cadre was granted to the respondent.  Promotion to the higher  post  of
District Judge and placement in the selection grade is on an  assessment  of
positive merit and ability. The said promotion(s),  therefore,   would  have
the effect of wiping out the adverse remark dated 15.12.1995.  Such  a  view
has in fact  been  expressed  in  Brij  Mohan  Singh  Chopra  Vs.  State  of
Punjab[4] (Para 10).  In the light of the above facts, we  do  not  see  how
the High Court, on the administrative side, can be found to be justified  in
refusing to continue with the service of the respondent beyond  the  age  of
58 years.  The order dated 20.2.2001 passed by the High Court setting  aside
the said decision, therefore, will have  to  be  affirmed  and  the  present
appeal dismissed.  We order accordingly.

10.   What should be the consequential relief that ought to be  granted?   A
period of nearly 14 years has elapsed in the meantime.  It  will  be  highly
inequitable to request the High Court to redo the exercise at  this  belated
stage.   Besides  such  a  course  of  action  will  also  be   unnecessary,
particularly, when the entire service record  of  the  respondent  had  been
placed before  us,  details  whereof  is  also  available  in  the  impugned
judgment of the High Court.  Having considered the same, we deem it  fit  to
order that the respondent  be  treated  to  have  retired  from  service  on
completion of 60 years of age and all consequential benefits, including  pay
and pension on that basis, be made available to him  forthwith  and  without
any delay.




                                       ...…………………………CJI.
                                        [P. SATHASIVAM]



                                  .........………………………J.
                                        [RANJAN GOGOI]


                                                       …..........……………………J.
                                        [N.V. RAMANA]

NEW DELHI,
MARCH 28, 2014.

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[1]    (2001) 2 SCC 305
[2]    (1993) 4 SCC 288
[3]    (2003) 9 SCC 592
[4]    AIR 1987 SC 948

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