N.C. Das vs Gauhati High Court Thr. Registrar & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO(s). 31 OF 2004

N.C. DAS Petitioner(s)

VERSUS

GAUHATI HIGH COURT THR. REGISTRAR Respondent(s) & ORS.

J U D G M E N T

R.M. LODHA, J.

The petitioner on the date of filing the

Writ Petition under Article 32 of the Constitution of India

was a member of Tripura Judicial Service (Grade II) and was

holding the post of Civil Judge (Senior Division) and

Assistant Sessions Judge, North Tripura. He has prayed for

diverse reliefs in the Writ Petition, including the

direction to the High Court to incorporate "court

suitability test" in the Tripura Judicial Service Rules,

2003 (for short, '2003 Rules') and further direction that

the petitioner should be considered for promotion on the

post of Grade-I.

2. On February 3, 2004 this Court issued

limited notice on the question of not making any provision

for judging the suitability of Judicial Officers for the

purposes of promotion in the 2003 Rules and relaxation in

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the age of qualifying service.

3. The petitioner has retired from service on

December 31, 2006, during the pendency of the Writ

Petition, as Civil Judge (Senior Division) and Assistant

Sessions Judge, Grade-II.

4. The petitioner made application being

Interlocutory Application No. 3 of 2005 and prayed to quash

the Memo dated June 7, 2005 issued by the Gauhati High

Court and for direction to the Gauhati High Court to

consider the case of the petitioner for the benefits of

Assured Career Progress in accordance with the

recommendations of Shetty Commission Report which was

accepted by this Court in All India Judges' Association &

Ors. Vs. Union of India & Ors., 2002 (4) SCC 247.

5. On October 7, 2010, while disposing of

Interlocutory Application No. 3 of 2005, the matter was

adjourned to enable the petitioner to challenge the order

dated June 7, 2005 by which the benefits under Assured

Career Progress were denied to him in appropriate

proceedings. We are informed that the petitioner has not

challenged the order dated June 7, 2005 pursuant to the

above liberty.

6. Mr. Manoj Swarup, learned counsel for the

petitioner, submitted that the petitioner was wrongly

denied promotion in July 2003 although his juniors were

accorded promotion. He further submitted that in July

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2003, the petitioner's case for promotion ought to have

been considered under the Tripura Judicial Service Rules,

1974 (for short, '1974 Rules'). In this regard, he referred

to Rule 7(1) of the 1974 Rules. Rule 7(1) of the 1974

Rules provides for qualifications for recruitment to the

service in Grade-I and Grade-II. According to this Rule,

appointment to the post of Grade-I and Grade-II by

promotion from the next grade below shall be made on the

ground of merit-cum-seniority. In the petitioner's ACR of

the year 2000, it has been recorded that he was not yet fit

for promotion. Similar remarks have been recorded in 2001

and 2002 ACRs. Thus, in last three years immediately

preceding the date of consideration of the petitioner's

case for promotion, his ACRs show that he was not found fit

for promotion. Based on the remarks in the ACRs of the

years 2000, 2001 and 2002 if the petitioner has been denied

promotion in July 2003, such action can hardly be faulted.

The remarks in ACRs do enable the authority to assess

comparative merit once the question of promotion arises

when the criteria for promotion is merit-cum-seniority. It

is pertinent to notice that the adverse remarks in the ACRs

of 2000 and 2001 were communicated to the petitioner on

November 28, 2002 and the adverse remarks for the year 2002

were communicated to him on May 19, 2003. The adverse

remarks were thus communicated to the petitioner before

July 29, 2003 and these remarks continued to remain on

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record though the petitioner had submitted his

representation/reply thereto. Be that as it may, in view

of the petitioner's service record of the years 2000, 2001

and 2002, it cannot be said that he has been wrongly denied

promotion to Grade-I.

7. Mr. Manoj Swarup, learned counsel for the

petitioner, also raised the grievance that the petitioner

has been made to retire on December 31, 2006 on attaining

the age of 58 years although the superannuation age stood

enhanced to 60 years. He invited our attention to the

prayer made in Interlocutory Application No. 5 of 2006.

8. From the communication dated January 7, 2006

sent by the Registrar, Gauhati High Court to the Secretary,

Law Department, Government of Tripura, it appears that the

matter pertaining to extension of services of the

petitioner under the 2003 Rules was considered by the

Gauhati High Court and the High Court was satisfied that

the extension of petitioner's services upto the age of 60

years did not deserve to be recommended. The only ground

raised in the Interlocutory Application No. 5 of 2006 is

that the amended Rule 20 of the 2003 Rules has enhanced the

age of superannuation upto the age of 60 years which is

not subject to any discretion to be applied by the High

Court. We are unable to accept the contention of the

petitioner in this regard. Rule 20 of the 2003 Rules prior

to amendment reads as follows :-

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"RETIREMENT

(A) Except as otherwise provided in these Rules, every Judicial Officer shall retire from the service on the afternoon of the last date of the month in which he attains the age of 58 years.

Provided that all Judicial Officers whose date of birth is the 1st day of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 58 years.

(B) Notwithstanding anything contained in Clause (A) above, a Judicial Officer, who in the opinion of the High Court, have the potential to continue with his service, shall be retained in service up to 60 years.

(I) The potential for continued utility shall be assessed and evaluated by appropriate Committee of Judges of the High Court, constituted and headed by the Chief Justice and the evaluation shall be made on the basis of the Officer's past record of service, character roll, quality of judgments and other relevant matters.

(II) The High Court should undertake and complete the exercise well within time before the Officer attains the age of 58 years and take a decision whether the benefit of extended service is to be given to the officer or not.

(III) In case he is found fit for being given the benefit of extended age of superannuation, the Governor shall, on the recommendation of the High Court, issue necessary order."

9. Rule 20 of the 2003 Rules came to be amended

with effect from May 19, 2006. In Clause (A) of Rule 20 for

the figure '58' at both the places, the figure '60' was

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substituted. For Clause (B), the following was substituted

:-

"Clause (B) Notwithstanding anything contained in Clause (A) above, the High Court shall have power to assess and evaluate the record of the Judicial Officer for his continued utility in service upto 60 years.

(I) The potential for continued utility shall be assessed and evaluated by appropriate Committee of Judges of the High Court, constituted and headed by the Chief Justice and the evaluation shall be made on the basis of the Officer's past record of service, character roll, quality of judgments and other relevant matters.

(II) The High Court shall undertake and complete the exercise well within time before the Officer attains the age of 58 years."

10. A bare perusal of the Clause (B) of amended Rule 20

leaves no manner of doubt that the High Court is empowered

to assess and evaluate the record of a judicial officer for

continued utility in service upto 60 years. Clause (B) has

overriding effect over Clause (A) of Rule 20. This is

clear from the expression "Notwithstanding anything

contained in Clause (A)" with which Clause (B) begins. The

mode and manner of assessment and evaluation of the

potential of continued utility is prescribed in Rule

20(B)(I) of the 2003 Rules. No legal flaw has been pointed

out to the exercise undertaken by the High Court in respect

of the assessment and evaluation of the petitioner's

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service for continued utility in service upto 60 years. We

are satisfied that the petitioner is not entitled to the

relief claimed in Interlocutory Application No. 5 of 2006.

Interlocutory Application No. 5 of 2006 is, accordingly,

dismissed.

11. It is not necessary to consider the other prayers

in the Writ Petition as Mr. Manoj Swarup, learned counsel

for the petitioners, did not press for prayers 1 to 4 made

in the Writ Petition.

12. Accordingly, Writ Petition has no merit and deserves

to be dismissed and is dismissed.

13. We record the statement of Mr. Vijay Hansaria,

learned senior counsel for the respondent No. 1-Gauhati

High Court- that the petitioner has been paid all his

retiral benefits, including accumulated pension.

.........................J. (R.M. LODHA)

NEW DELHI; .........................J. JANUARY 11, 2012 (H.L. GOKHALE)