2003 JTR(SC) 78
2003 3 AIC 21 ; 2003 AIR(SC) 1459 ; 2003 AIR(SCW) 798 ; 2003 2 ALT(SC) 56 ; 2003 3 BomCR(SC) 779 ; 2003 2 BomLR 659 ; 2003 96 FLR 900 ; 2003 6 JT 122 ; 2003 LIC 754 ; 2003 1 LLN 755 ; 2003 1 Scale 590 ; 2003 2 SCC 390 ; 2003 SCC(L&S) 174 ; 2003 1 SCR 532 ; 2003 1 SCT 824 ; 2003 3 SLR 182 ; 2003 2 UPLBEC 1887 ; 2003 KHC 845 ; 2003 2 Supreme 113
2003(2) Supreme 113
SUPREME COURT OF INDIA
(From Bombay High Court)
V.N. Khare, CJI., S.B. Sinha & A.R. Lakshmanan, JJ.
High Court of Judicature at Bombay through Registrar & Anr. -Appellants
versus
Brij Mohan Gupta (Dead) through LRs. & Anr. -Respondents
Civil Appeal No. 137 of 1999
With
Civil Appeal No. 138 of 1999
Decided on 23-1-2003
Counsel for the Parties :
For the Appearing Parties : U.U. Lalit, S.S. Shinde, V.N. Raghupathy, K.B.S. Rajan, Anil Kumar Sinha, P. Narasimhan, Naresh Kumar, Advocates.
IMPORTANT POINT
Only in the event the age of superannuation of the judicial officers is 60 years under the Service Rules, the question of review of his performance on attaining the age of 58 years would not arise, but when under the Service Rules applicable to the judicial officers the age of superannuation is 58 years or below, he would be entitled to the benefit of the judgment in Judges case, in which event the limitations of applicability thereof would also squarely apply.
Act Referred :MAHARASHTRA CIVIL SERVICES PENSION RULES : R.10(3)(c), R.53, R.10(3)(c)
(A) Read with the operative facts, Rule 10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982, governs the eligibility of direct appointees from the Bar to continue in service until they complete ten years of qualifying service, subject to an outer limit linked to the age of superannuation. Rule 53 of the same Rules, invoked in this appeal, provides the consequential pension benefits upon completion of that ten-year requirement. The directions issued in Judges Case-I and Judges Case-II, requiring the constitution of a Committee of High Court Judges to review officers about to attain the age of 58 years and determining whether they may be allowed to continue until 60 years, operate as the controlling framework, and Rule 10(3)(c) was held subrogated to those directions, mandating that the age of superannuation for such officers be aligned with the overarching policy.
(B) The core legal principles are: (i) the Committee process is mandatory for judicial officers approaching the age of superannuation under the relevant service rules; (ii) eligibility for extension to 60 years depends on fitness and performance assessed by the Committee; (iii) where the applicable service rule prescribes an earlier age of superannuation, the benefit of Judges Case extends only subject to the conditions therein; and (iv) if a Committee recommends against continuation, the administrative order must be followed unless it is legally unsustainable.
Facts of the case:
The respondent was directly appointed as a Judge of City Civil & Sessions Court, Bombay, assumed charge in November 1988, and would have completed ten years of service in November 1998. A Committee was appointed under Judges Case-II, found the respondent not suitable due to lack of integrity and unsatisfactory performance, and recommended compulsory retirement at the age of 58 years, which was implemented. The High Court allowed the respondents petition, holding that he was entitled to continue until completion of ten years, and modified the order accordingly. The present appeal challenges that judgment.
Findings of Court:
The higher appellate body found that the impugned order was in conformity with the directions in Judges Case-I and Judges Case-II, and that Rule 10(3)(c) had been subrogated by those decisions. It concluded that the Committees adverse report and the consequent administrative order were valid, and set aside the High Courts judgment. However, it noted that the respondent had in fact completed ten years of service, and directed that he be treated as having retired on that basis to ensure that all retiral benefits remain payable.
Issues:
Whether the High Court was correct in holding that the respondent could continue in service until completion of ten years under Rule 10(3)(c), notwithstanding the Committees recommendation and the applicable age of superannuation; and whether the Committee process and its recommendation were binding on the High Court in the circumstances of this case.
Ratio Decidendi:
The exercise of the Committee constituted the correct mechanism under Judges Case-I and Judges Case-II. The Committees finding that the respondent lacked integrity and was not fit for extension was valid, and Rule 10(3)(c) being subrogated, the High Court could not override the Committees recommendation. Consequently, the respondent was rightly compulsorily retired at 58 years, and in view of his de facto completion of ten years, retiral benefits are payable accordingly.
Result:
The appeal is allowed in part; the impugned order is set aside, but the respondent is treated as having retired after completing ten years of service, with all retiral benefits payable as of that date.
(A) Read with the operative facts, Rule 10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982, governs the eligibility of direct appointees from the Bar to continue in service until they complete ten years of qualifying service, subject to an outer limit linked to the age of superannuation. Rule 53 of the same Rules, invoked in this appeal, provides the consequential pension benefits upon completion of that ten-year requirement. The directions issued in Judges Case-I and Judges Case-II, requiring the constitution of a Committee of High Court Judges to review officers about to attain the age of 58 years and determining whether they may be allowed to continue until 60 years, operate as the controlling framework, and Rule 10(3)(c) was held subrogated to those directions, mandating that the age of superannuation for such officers be aligned with the overarching policy.
(B) The core legal principles are: (i) the Committee process is mandatory for judicial officers approaching the age of superannuation under the relevant service rules; (ii) eligibility for extension to 60 years depends on fitness and performance assessed by the Committee; (iii) where the applicable service rule prescribes an earlier age of superannuation, the benefit of Judges Case extends only subject to the conditions therein; and (iv) if a Committee recommends against continuation, the administrative order must be followed unless it is legally unsustainable.
Facts of the case:
The respondent was directly appointed as a Judge of City Civil & Sessions Court, Bombay, assumed charge in November 1988, and would have completed ten years of service in November 1998. A Committee was appointed under Judges Case-II, found the respondent not suitable due to lack of integrity and unsatisfactory performance, and recommended compulsory retirement at the age of 58 years, which was implemented. The High Court allowed the respondents petition, holding that he was entitled to continue until completion of ten years, and modified the order accordingly. The present appeal challenges that judgment.
Findings of Court:
The higher appellate body found that the impugned order was in conformity with the directions in Judges Case-I and Judges Case-II, and that Rule 10(3)(c) had been subrogated by those decisions. It concluded that the Committees adverse report and the consequent administrative order were valid, and set aside the High Courts judgment. However, it noted that the respondent had in fact completed ten years of service, and directed that he be treated as having retired on that basis to ensure that all retiral benefits remain payable.
Issues:
Whether the High Court was correct in holding that the respondent could continue in service until completion of ten years under Rule 10(3)(c), notwithstanding the Committees recommendation and the applicable age of superannuation; and whether the Committee process and its recommendation were binding on the High Court in the circumstances of this case.
Ratio Decidendi:
The exercise of the Committee constituted the correct mechanism under Judges Case-I and Judges Case-II. The Committees finding that the respondent lacked integrity and was not fit for extension was valid, and Rule 10(3)(c) being subrogated, the High Court could not override the Committees recommendation. Consequently, the respondent was rightly compulsorily retired at 58 years, and in view of his de facto completion of ten years, retiral benefits are payable accordingly.
Result:
The appeal is allowed in part; the impugned order is set aside, but the respondent is treated as having retired after completing ten years of service, with all retiral benefits payable as of that date.
ORDER
C.A. No. 137/1999
The respondent herein Brij Mohan Gupta was born on 2nd July, 1939. He was directly appointed from the Bar as a Judge of City Civil & Sessions Court, Bombay (Maharashtra Higher Judicial Service). He assumed charge on 4th November, 1988. In normal course, the respondent would have completed 10 years of service on 4th November, 1998. He would have attained the age of 58 years on 2nd July, 1997 and the age of 60 years on 2nd July. 1999.
2. The High Court of Bombay, in view of the decision of this Court in All India Judges Association and Others vs. Union of India and Others, 1993 (4) SCC 288 (hereinafter referred to as "Judges Case-II"), appointed a Committee to review the case of the respondent for giving him the benefit of continuity in service till the age of 60 years. The Committee made an adverse report against the respondent and recommended that he may be made to retire on attaining the age of 58 years. The High Court, in view of the recommendation of the Committee, issued an order on 30th July, 1997 retiring the respondent from service w.e.f. 31st July, 1997. Aggrieved, the respondent filed a petition under Article 226 of the Constitution before the Bombay High Court.
3. The case of the respondent before the High Court was that, under Rule 10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982, he was entitled to continue till completion of 10 years qualifying service which was necessary to entitle him to get the benefit of Rule 53 of the Rules. The High Court accepted the said argument and held that the respondent would be entitled to continue in service until 4th November, 1998 on which date he would have completed 10 years in service and as a result the respondent would be liable to retire from service when he actually would complete 59 years, 4 months and 2 days. In that view of the matter, the writ petition was allowed and the impugned order stood modified.
4. It is against the said judgment of the High Court, the appellants are before us in appeal.
5. Mr. U.U. Lalit, learned counsel appearing for the appellants contends that in terms of Judges Case-I [1992 (1) SCC 119] and Judges Case-II [1993 (4) SCC 288], Rule 10(3)(c) stood subrogated therein and the High Court was justified in taking a decision on completion of the age of 58 years of the respondent to find out whether he would be allowed to continue till the age of 58 years. We find merit in his contention.
6. In Judges Case-I, a direction was issued by this Court to all the States and the Union Territories, including the State of Maharashtra, to fix the age of retirement at 60 years w.e.f. 31st December, 1992 in respect of members of the Judicial Service. In Judges Case-II again this Court held that where there is no Rule providing for the age of superannuation at the age of 60 years, a Committee of the High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsorily retirement as laid down in respective Service Rules applicable to Judicial Officers; that those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 years by following the said procedure for compulsory retirement; and that the exercise should be undertaken before the attainment of the age of 58 years even in case where earlier the age of superannuation was less than 58 years.
7. In terms of these directions, the Chief Justices of the respective High Courts were required to set up appropriate Committees of five Hon ble Judges to look into the service records of the concerned Judicial Officer, so as to consider as to whether he should be allowed to continue upto the age of 60 years. The said procedure was followed in the instant case.
8. The five-Judges Committee looked into the records of the respondent and opined :
"The Committee has considered the annual Confidential Reports of Shri Gupta for the last 5 years i.e. since 1992. He lacks integrity. He does not enjoy good reputation. His behaviour with the members of Bar and public is unsatisfactory. He is rated as a poor Judge. The S.I.D. record shows that in File No. SID/BY/34/93, the Disciplinary Committee has, on 29th March, issued a warning informing him that he should be more careful while passing order in future.
Considering the material placed before the Committee and the overall performance of Shri Gupta, the Committee is of the opinion that he is not suitable to be continued, his performance is not upto the mark and, therefore, he does not deserve grant of benefit of increase of retirement age of 60 years."
9. In view of the said report, the respondent was made to retire on attaining the age of 58 years i.e. 30.7.1997.
10. Rule 10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982 is applicable only to the direct appointees from the Bar. By reason thereof, the benefit of pension has been extended to them so as to enable them to complete the minimum qualifying service of ten years subject to the outer limit of 60 years of age. The normal age of superannuation of such an officer would either be completion of ten years of service or 55 years whichever is earlier. In that view of the matter, the respondent would have reached the age of superannuation on attaining the age of 55 years. He, however, in view of the benefit conferred in terms of the Judges Case, as referred to hereinbefore, was to retire at the age of 60 years but such benefit was subject to the conditions laid down therein. Only in the event the age of superannuation of the judicial officers is 60 years under the Service Rules, the question of review of his performance on attaining the age of 58 years would not arise; but when under the Service Rules applicable to the judicial officers the age of superannuation is 58 years or below, he would be entitled to the benefit of the judgment, in which event the limitations of applicability thereof would also squarely apply.
11. In our view, the exercise of setting up a Committee by the Chief Justice, the recommendation made by the Committee and also finally the administrative order passed by the High Court, were strictly in terms of the Judges Case-I and Judges Case-II. In fact, by virtue of Judges Case-I and Judges Case-II, Rule 10(3)(c) stood subrogated. We are, therefore, of the view that the judgment under challenge is not in conformity with the aforesaid decisions and is liable to be set aside.
12. However, in the peculiar facts and circumstances of the case and particularly in view of the fact that the original respondent has expired on 17.3.2001, we direct that he may be held to have retired on completion of 10 years of service and in that view of the matter, all retiral benefits would be payable in accordance with law. We have taken this view as in the event, the respondent was allowed to complete ten years of his service, he would have retired at the age of 58 years six months only.
13. In that view of the matter, we are not inclined to interfere in the matter. The appeal is disposed of with the aforementioned observations and directions.
C.A. No. 138/1999
Learned counsel appearing for the appellant states that the appeal is rendered infructuous. It is dismissed as such.
(N.K.R.) Order accordingly.
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Parallel Citations of other Journals :
High Court of Judicature at Bombay through Registrar & Anr. v. Brij Mohan Gupta (Dead) throgh LRs. & Anr., 2003(2) Supreme 113 : 2003(1) LLN 755 : (2003) 2 SCC 390 : 2003(1) ACE 534 : 2003(96) FLR 900 : 2003 SCC (L&S) 174 : 2003 LIC 754 : 2003(1) SCSLJ 284 : 2003(2) SLJ 62 : 2003(2) SLR 182 : 2003(6) JT 122 : AIR 2003 SC 1459 : 2003(4) SBR 567.
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