High Court Of Judicature, Patna vs Shiveshwar Narayan And Anr

SHIVESHWAR NARAYAN ...APPELLANT

VERSUS

HIGH COURT OF JUDICATURE, PATNA & ANR. ...RESPONDENTS

J U D G M E N T

R.M. LODHA, J.

These two appeals, by special leave, are from the

judgment dated May 20, 2005 of the High Court of judicature

at Patna (for short "the High Court") whereby the Division

Bench of that court allowed the Writ Petition filed

by Shri Shiveshwar Narayan (for short "Judicial Officer")

and quashed the communication dated July 30, 2003 and

directed the High Court on its administrative side to re-

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evaluate the case of the Judicial Officer (petitioner

therein) for extension of service upto the age of 60 years.

2. One appeal has been filed by the High Court through

its Registrar General and the other by the Judicial

Officer.

3. In appeal filed by the High Court, challenge is to

the judgment dated May 20,2005 whereby its communication on

the administrative side dated July 30, 2003 refusing

extension of service to the Judicial Officer beyond the age

of 58 years has been quashed. In the other appeal, the

grievance of the Judicial Officer is that on allowing the

Writ Petition, the Division Bench was not justified in

directing the High Court on its administrative side to re-

evaluate the case of Judicial Officer for extension of

service for two years.

4. In All India Judges' Association and others vs.

Union of India and others1, this Court directed the

enhancement of the superannuation age of the judicial

officers to 60 years. While directing so, this Court made

it clear that the benefit of increased age to 60 years

shall not be available automatically to all the judicial

officers and the benefit will be available to those who, in

1 (1993) 4 SCC 288

3

the opinion of the respective High Courts, have a potential

for continued useful service.

5. In light of the decision in All India Judges'

Association1, the Chief Justice of the High Court

constituted the Evaluation Committee for assessment and

evaluation of service record concerning sixteen judicial

officers, the present Judicial Officer being one of them,

to find out whether they have potential for continued

useful service upto 60 years. The case of the present

Judicial Officer was required to be considered for

extension of service as he was attaining the age of 58

years on July 15, 2003 and by virtue of the State

Government's decision dated September 29, 1973 he was

entitled to work till the last date of July, 2003 only. The

Evaluation Committee on consideration of the present

Judicial Officer's entire service record and also having

considered the quality of judgments, character rolls and

other relevant material including general reputation,

efficiency, integrity and honesty, finally resolved on July

10, 2003 that he was not fit for further continuance in

service in public interest as he does not have the

potential for continued useful service.

1 (1993) 4 SCC 288

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6. The report of the Evaluation Committee came up for

consideration before the Full Court of the High Court on

July 26, 2003 and the Full Court unanimously, on that day,

accepted and approved the decision of the Evaluation

Committee denying the benefit of increase of retirement age

to the present Judicial Officer.

7. On July 30, 2003, Judicial Officer received a

communication from the Registrar General of the High Court

informing him that he was not being given the benefit of

enhancement of retirement age from 58 to 60 years.

8. The Judicial Officer challenged the Communication

dated July 30, 2003 in a Writ Petition before the High

Court and the Division Bench of that Court, as indicated

above, by its judgment dated May 20, 2005, quashed the

communication dated July 30, 2003 and further directed the

High Court on its administrative side to re-evaluate his

case for extension from 58 to 60 years.

9. In para 30 of the All India Judges' Association1,

this Court stated as follows:

".......The benefit will be available to those who,

in the opinion of the respective High Courts, have a

potential for continued useful service. It is not

intended as a windfall for the indolent, the infirm

1 (1993) 4 SCC 288

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and those of doubtful integrity, reputation and

utility. The potential for continued utility shall

be assessed and evaluated by appropriate Committees

of Judges of the respective High Courts constituted

and headed by the Chief Justices of the High Courts

and the evaluation shall be made on the basis of the

judicial officer's past record of service, character

rolls, quality of judgments and other relevant

matters."

10. The direction for increase of retirement age to 60

years by this Court on consideration of the factors as

indicated therein was basically of transitory nature until

the statutory rules were put in place by respective State

governments. However, no statutory rules were framed nor

the rules governing superannuation were amended in the

State of Bihar until 2003 and, therefore, the case of the

present Judicial Officer for increase of retirement age to

60 years had to be considered in accordance with the

judgment of this Court in All India Judges' Association1.

11. The primary consideration for the High Court in

extending benefit of increase in the retirement age of the

Judicial Officer is his continued usefulness in the service

based on entire service record, quality of judgments, his

1 (1993) 4 SCC 288

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conduct, integrity and all other relevant factors. A

Judicial Officer may have a service record not tainted by

many adverse remarks; he may have got promotion from time

to time but still he may be found to be lacking in

potential for continued useful service. In assessing

potential for continued useful service, obviously entire

record of service, character rolls, quality of judgments

are of considerable importance. At the same time, over-

all reputation of a Judge in the entire period of

service, his judicial conduct, objective and impartial

performance throughout his career are the relevant factors

which also have to be kept in mind. A Judicial Officer is

not an ordinary government servant; he exercises sovereign

judicial power. Like Caesar's wife; he must be above

suspicion. The personality of an honest judicial officer

is ultimate guarantee to justice. The judicial officers

hold office of great trust and responsibility and their

judicial conduct must not be beyond the pale. A

slightest dishonesty (monetary, intellectual or

institutional) by a judicial officer may have disastrous

effect. The repeated complaints of judicial impropriety

and questionable integrity against a judicial officer -

although not proved to the hilt - may be sufficient basis

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to disentitle such judicial officer the benefit of

extension of retirement age to 60 years.

12. The Evaluation Committee comprising of eight Judges

including the Chief Justice on examination of the past

service record, character rolls, quality of judgments and

matters like general reputation, efficiency, integrity and

honesty did not consider the present Judicial Officer fit

for continued useful service after attaining the age of 58

years. The Full Court unanimously accepted and approved

the decision of the Evaluation Committee. The question to

be considered by us, is whether the Division Bench was

justified in its power of judicial review under Article

226 of the Constitution of India to interfere with the

unanimous administrative decision of the Full Court?

13. Lord Hailsham in Chief Constable of the North Wales

Police vs. Evans2 made the following statement:

"......The purpose of judicial review is to ensure

that the individual receives fair treatment, and not

to ensure that the authority, after according fair

treatment, reaches on a matter which it is authorised

or enjoined by law to decide for itself a conclusion

which is correct in the eyes of the court."

14. In State of U.P. and others vs. Maharaja Dharamander

2 (1982) 3 All ER HL 141

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Prasad Singh and others3, it was held by this Court that

judicial review is directed, not against the decision, but

is confined to the examination of the decision-making

process.

15. Recently, in the case of Centre for PIL and another

vs Union of India and another4, a three Judge Bench of this

Court stated that a difference between judicial review and

merit review has to be kept in mind.

16. The present Judicial Officer joined the judicial

service on April 8, 1974 as a Munsif and over the years got

promotion. He was promoted to the post of Additional

District & Sessions Judge on July 2, 1987 and confirmed as

such on March 1, 1991. He was further promoted to the post

of District & Sessions Judge on May 1, 1998. From the

material on record, it is apparent that in the course of

his service, ten complaints were received against him from

time to time. In the complaints, there were allegations

that he decided cases on considerations other than

judicial; he indulged in mis-behaviour and use of

unparliamentary language while conducting court

proceedings; he granted bail in a triple murder case where

the High Court had rejected the bail thrice; he committed

3 (1989) 2 SCC 505 4 (2011) 4 SCC 1

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irregularities in the judicial proceedings etc. In

relation to some of the complaints, inquiries were

instituted. In one of the inquiries relating to grant of

bail orders, it was found that the bail orders, passed by

the Judicial Officer, were not sound but the inquiry was

dropped as there was delay in making a complaint. In

yet another complaint relating to grant of bail orders,

although it was found that the bail orders were not sound

but no action was taken on the administrative side as it

was opined that the merits of these orders would be seen

on judicial side. In respect of his mis-behaviour with a

member of the Bar, in inquiry, the District & Sessions

Judge, Sasaram did find that unpleasant words were used by

the Judicial Officer but the advocate was also found to

have used unpleasant words and, therefore, no action was

taken. He was also found lazy in the confidential roll of

the year 1982-1983. In a service span of almost 30 years,

most of the time, the Judicial Officer has been adjudged as

an "average officer". It is true that entry "below

average officer" was expunged but the fact of the matter

is that he has never been adjudged an "outstanding" or

"very good officer".

17. In the backdrop of the above material, if the

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Evaluation Committee formed an opinion that Judicial

Officer did not have potential for continued service and

that decision has been accepted and approved by the Full

Court unanimously, can it be said that the decision of the

Full Court in not extending benefit of increase of

retirement age to 60 years is based on irrelevant

considerations or no material? In our view, the answer has

to be no. The use of the expression by the Evaluation

Committee in its resolution viz; 'further continuance in

service will not be in public interest' has to be read in

the context of the subsequent expression immediately

following i.e. 'as he does not have the potential for

continued useful service'. The Evaluation Committee

evaluated and assessed the case of the Judicial Officer

with a primary object to find out as to whether Judicial

Officer has potential for continued useful service and

having regard to the entire service record, character

rolls, quality of judgments and other relevant factors,

concluded that he does not have potential for continued

useful service. The Full Court unanimously accepted and

approved the view of the Evaluation Committee. The

decision making process is, thus, not at all flawed.

Unfortunately, the Division Bench considered the matter as

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if it was sitting in appeal over the decision of the High

Court on administrative side which, in our view, was not

permissible. The consideration of the matter by the

Division Bench shows that it has gone into the correctness

of the decision itself taken by the High Court on the

administrative side and not the correctness of the decision

making process.

18. On a careful reading of the judgment of the High

Court, we are of the view that the Division Bench failed

to keep in mind the distinction between judicial review and

merit review and, thereby committed a serious error in

examining the merits of the decision of the Full Court.

19. To find out the potentiality of a Judicial Officer

for continuation in service beyond the age of 58 years

following the decision of this Court in All India Judges'

Association1, obviously, the entire record of service,

character rolls, quality of judgments and other relevant

circumstances like general reputation, integrity,

efficiency, performance, conduct etc. do form the basis but

at the same time, it is not 'proved dishonesty' or 'proved

mis-conduct' that is determinative but doubtful integrity

or suspicious judicial conduct may be sufficient to deny a

1 (1993) 4 SCC 288

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judicial officer benefit of enhancement of superannuation

age to 60 years. It is in totality of the circumstances

available from the entire service record and all other

relevant circumstances that an opinion has to be formed

whether or not the Judicial Officer deserves to be given

benefit of increase of superannuation age to 60 years.

20. The present case is a case where the Division Bench

embarked upon exercise of examining each complaint and

material against the Judicial Officer to find out the

correctness of the decision of the Full Court which was

legally not permissible. The weight of the material is

not capable of re-assessment while sitting in judicial

review over such decision. Even if, some other view is

possible on the material that was considered by the

Evaluation Committee and the Full Court to evaluate

Judicial Officer's case for extension of superannuation age

to 60 years, in our opinion, that did not justify

interference in the decision of the Full Court which was

founded on material and relevant considerations.

21. We may observe that there is not even an iota of

allegation of bias or mala fides- nor it could have been-

against the decision making authority.

22. The Division Bench of the High Court was, thus,

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clearly in error in interfering with the decision of the

High Court on administrative side in not extending the

benefit of enhancement of retirement age of the Judicial

Officer from 58 to 60 years.

23 Consequently, Civil Appeal No. 6103 of 2005, High

Court of Judicature, Patna vs. Shiveshwar Narayan and

another is allowed and Civil Appeal No. 7372 of 2005,

Shiveshwar Narayan vs. High Court of Judicature at Patna

and another is dismissed. Parties shall bear their own

costs.

.......................J. [R.M. LODHA]

.......................J. [JAGDISH SINGH KHEHAR ] NEW DELHI SEPTEMBER 22, 2011.

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