9911796707
TMI Blog2003 (9) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... o suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same particularly because order of compulsory retirement is based on the subjective satisfaction of the Authority. 3. On the basis of the aforesaid principles these appeals against the judgments and orders dated 19.4.1999, 27.3.1999 and 15.2.2000 passed by the High Court of Allahabad in CMWP No. 14831 of 1999, CMWP No. 28664 of 1998 and CMWP No. 1312 of 1999. challenging their compulsory retirement at the age of 58 years, are required to be decided. I. At the time of hearing, firstly, it is submitted by the learned counsel for the appellants that:-- * In view of the Rule increasing the retirement age from 58 years, to 60 years, Rule 56 of U.P. Fundamental Rules would stand repealed. 4. For this purpose, learned counsel for the appellants relied upon the Rules regulating the retirement on superannuation of the Judicial Officers framed by the State of U.P. vide 'Notification dated 20th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice shall be three months: Provided that... (e) A retiring pension shall be payable and other retirement benefits, if any shall be available in accordance with and subject to the provisions of the relevant Rules to every Government servant who retires or is required or allowed to retire under this Rule. Provided that..... Explanation: (1) The decision of..... public interest. (2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration-- (a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or (b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bosee [1953]4SCR1 , Patanjali Sastri, J. observed The enacting part of a statute must where it is clear, be taken to Control the non obstante clause where both cannot be read harmoniously. In Madhav Rao Scindia v. Union of India [1971]3SCR9 , Hidaytullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude even consideration arising from other provisions of the same statute or other statute but for that reason alone we must determine the scope of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not. II. The learned counsel next submitted that as per the Allahabad High Court Rules, before recommending compulsory retirement of the appellants, the Full Court was required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts vests in the High Court as a whole, the control over the High Court vests in the Chief Justices only. (See All India Judges' Association's case). However, the same does not mean that a Full Court cannot authorize the Chief Justice in respect of any matter whatsoever. In relation to certain matters keeping the rest or it in itself by the Full Court authorization to act on its behalf in favour of the Chief Justice on a Committee of Judges is permissible in law. How far and to what extent such power has been or can be delegated would be discernible only from the Rules. Such a power by the Full Court can also be exercised, from time to time. III. The learned counsel for the appellants thirdly submitted that in view of the decision rendered by this Court in High Court of Judicature at Allahabad through Registrar v. Sarnam Singh and Anr. (2000)2SCC339 the orders passed by the High Court compulsory retiring the appellants on the basis of the directions issued by this Court in All India Judges Association v. Union of India and Ors. (1993)ILLJ723SC cannot be justified. 11. Learned Counsel submitted that in similar set of circumstances for the rules framed by the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with exercise of powers by the High Court under Rule 56(c). 15. In these matters, the High Court has exercised its jurisdiction not only on the basis of the directions issued by this Court in All India Judges' Association Case but also in exercise of its powers under Rule 56(c) which empowers it to pass an order of compulsory retirement after an employee attains the age of 50 years. In All India Judges' Association and Ors. v. Union of India and Ors. [ (1993)IILLJ776SC - (Review Petition)], this Court has made it clear that the direction issued by the Court for continuing judicial officers in service by considering their suitability for the entitlement of the benefit of increased age of superannuation from 58 to 60 years was in addition to the assessment to be undertaken for the compulsory retirement and the compulsory retirement at the early stage/s under the respective Services Rules. 16. Therefore, there is no embargo on the competent authority to exercise its power of compulsory retirement under Rule 56 of Fundamental Rules. As stated above, we have arrived at the conclusion that because of the increase in retirement age, rest of the Rules providing for com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable person would form the requisite opinion on the given material; in short if it is found to be a perverse order. (iv) 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, 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. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. 18. In J.N. Sinha's case (supra), the Court specifically held that the rule embodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure prescribed in Rule 56, as provided in explanation to the said Rule. The material on record reveals that the High Court has taken into consideration all the relevant facts. There is no allegation that the orders were arbitrary or mala fide. Still however, with regard to each case, we would refer in brief what has been stated in Confidential Reports of the appellants. CIVIL APPEAL No. 2398 OF 2001 21. Appellant Nawal Singh was appointed in 1972. In Confidential Reports for the year 1975-76. 1976-77. it has been mentioned that his judicial work needs improvement. For the year 1980-81, his judicial work was of average quality. For the year 1984-85. the District Judge has rated him as good officer. For the year 1986-87, there were complaints about his integrity. For this purpose, reference was made to cases wherein he had granted bail in serious offences. However, with regard to doubtful integrity, the representation of the appellant was accepted and it was substituted by holding that, no reason to doubt the integrity of the officer. Again, for the year 1990-91, it has been stated that with regard to the interim orders/injunctions, he was directed to be more scrupulous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n transferred, from Allahabad. It is also stated that the appellant did not comply the orders of transfer but even after receiving the orders of transfer, he continued to decide cases. The matter was later on considered by the Administrative Committee. 24. Hence, it is apparent that the Screening Committee after examining the past records of service; character roll and other matters relating to the appellants opined that they were not suitable for continuing in service, beyond the age of 58 years. 25. From the facts narrated above, even if we were to sit in appeal against the subjective satisfaction of the High Court, it cannot be said that the orders of compulsory retirement of the appellants are in any way, erroneous or unjustified. Further, it is impossible to prove by positive evidence the basis for doubting integrity of the judicial officer. In the present day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the concerned officer from close quarters and formation of his opinion with regard to overall reputation enjoyed by the concerned officer would be the basis. 26. It is to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
