N. Mohandoss vs The High Court of Judicature and The Government of Tamil Nadu

Mishra, J.—Petitioner herein, who held the post of the District Judge-Grade I, with effect from 1.11.1990, has been compulsorily retired at

the age of 58 years and not given the benefit of the extended age upto 60 years by the High Court. He has been served accordingly with the order

issued by the second Respondent, Government of Tamil Nadu, vide G.O. Ms. No. 834 dated 21-7-1994. He (Petitioner) has invoked this

Court''s jurisdiction under Article 226 of the Constitution of India and sought the relief of quashing the said Government Order and consequently

for a direction to allow him to continue in service till he attains the age of 60 years.

Petitioner joined the judicial service as a District Munsif in the year 1969, was promoted to the post of Subordinate Judge in due time, to the

post of District Judge, Grade II, with effect from 17-1-1986 and to the post of District Judge-Grade I, with effect from 1-11-1990. In his long

tenure of service, according to him, he never received any charge memo or any other memo from his superiors in connection with the performance

of his duties. His career, according to him, was unblemished throughout. He has, however, been retired compulsorily under the abovementioned

Government Order, which contains inter alia, the following:

ORDER

Based on the directions of the Supreme Court of India in the Review Petition No. 249/92, the Government, in the orders first read above, have

raised the age of superannuation of Judicial Officers to 60 years subject to certain conditions laid down therein. The benefit of the increase of the

retirement age to 60 years, shall not be available automatically to all Judicial Officers irrespective of their past record of service and evidence of

their continued utility to the Judicial system. The benefit will be available to those who, in the opinion of the High Court, Madras have a potential

for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The

potential for continued utility shall be assessed and evaluated by appropriate Committee of the Judges of the High Court constituted and headed by

the Chief Justice of the High Court and the evaluation shall be made on the basis of the Judicial Officers'' past record of service, character rolls,

quality of judgments and relevant matters.

The Registrar, High Court, Madras has stated that a Screening/Committee was constituted as directed by the Supreme Court to review the

cases of the Judicial Officers The Screening Committee has gone through the following materials in respect of Thiru N. Mohandoss, District Judge

Grade. I:

(1) Available confidential records for the last five years;

(2) Quantum of work turned out for the immediate last five years;

(3) Medical Certificate.

(4) Leave availed on medical grounds or any other grounds for the immediate last 5 years.

(5) Complaints/Petitions received in the last 5 years.

(6) Imposition of penalty in any departmental enquiry against the officer during his service

(7) General reputation.

The Screening Committee on examining the said materials has resolved as follows:

(a) from the records it is noticed that the opinion of the Hon''ble Judges as to the work and functioning of the Officer is sharply divided.

(b) The disposals during the period from 1.1.1989 to December, 1993 indicate continuous shortfall.

(c) The reputation of the officer is also not good as evidenced by the report dated June 1, 1994 of the Hon''ble Administrative Judge.

On considering therefore said materials, the Committee is satisfied that the officer is of doubtful integrity and does not enjoy good reputation and he

has also lost his utility to be continued in the service because of the poor turnout of work and questionable reputation. Therefore, the Committee

finds that he is not entitled to the benefit of increased age of superannuation from 58 to 60 years.

The Register, High Court has also stated that the said resolution was placed before the Full Court, wherein it was resolved by the Full Court on

4-7-1994 as follows:

On consideration of the relevant materials relating to Thiru N. Mohandoss, District Judge Grade-I and the recommendation of the Screening

Committee as per its resolution dated 27.6.1994, the Full Court is of the view that the Officer is not entitled to the benefit of higher retirement age

concession from 58 to 60 years. Accordingly the resolution of the Screening Committee, dated 27.6.1994 is approved. Hence, it is resolved to

permit the Officer to retire on attaining the age of superannuation of 58 years.

Thiru N. Mohandoss is completing the age of 58 years on 1-8-1994.

The Governor of Tamil Nadu accepts the view of the High Court that Thiru N. Mohandoss, District Judge Grade-I is not entitled to the benefit

of higher retirement age concession and therefore directs that he be retired from service on 1-8-1994 A.N.

Petitioner has stated that, the first Respondent has constituted a Screening Committee to scrutinize the service records of the concerned judicial

officers who reached the age of 58 years before they were permitted to continue in service as per the directions of the Supreme Court upto the age

of 60 years, which Committee at the relevant time of the consideration of the case of the Petitioner included five seniormost Judges of the Court

including the Chief Justice and Justice T.S. Arunachalam, the Administrative Judge of Madurai District of which district the Petitioner was the

Principal District Judge. The Administrative Judge inspected certain subordinate Court in Madurai district on 17th and 18th of December, (May)

1994. The Chief Judicial Magistrate, Madurai, on 17-5-1994 informed the learned Administrative Judge that he (former) had received an

anonymous phone call on 12.5.94 in the early hours in the morning that a party was being pestered by the Judicial Magistrate No. 2, Madurai for a

bribe of Rs. 5,000/- for a favourable judgment. Petitioner has alleged,

The Chief Judicial Magistrate seems to have told the learned Judge further that the party concerned has pledged the ''Mangalyasutra'' of his wife

and paid a sum of Rs. 5000/- to the abovesaid Magistrate. In spite of it, the concerned Magistrate was delaying the pronouncement of the

judgment and he had not declared judgment on the past several hearing dates. The party had further told that the matter was posted for judgment

on the same day, i.e., 12.5.94. The Chief Judicial Magistrate is stated to have requested the party who had made anonymous call to disclose his

identity and the party had refused to disclose his identity. But the party had insisted that the particular case was posted for judgment to be

delivered on the same day, i.e., 12.5.94.

During noon, the Chief Judicial Magistrate, Madurai inspected the Court of the Judicial Magistrate No. 2, Madurai and found that only one

judgment had been pronounced on that date till then and the same was delivered in C.C. No. 897/93. The accused therein had been acquitted.

The Chief Judicial Magistrate seems to have told further that he has withdrawn the entire case record from the file of the concerned Magistrate and

he retained the same in his custody. On the same day, the learned Chief Judicial Magistrate had forwarded a memo to the concerned Magistrate

seeking explanation for the irregularities pointed out in the memo within 3 days of its receipt.

The concerned magistrate is stated to have submitted his explanation on 14.5.94 to the Chief Judicial Magistrate accepting that it is a mistake that

the judgment was not pronounced in full and complete shape as per rule and admitted that the procedure followed by him is a gross mistake

committed by him. He seems to have assured the learned Chief Judicial Magistrate that such mistakes would not occur in future.

The learned Chief Judicial Magistrate after narrating the abovesaid facts seems to have told further that on his questioning the concerned

Magistrate namely, A. Muralidharan, had confessed in front of certain other Magistrates also that he had received some consideration for

pronouncing the judgment in the abovesaid case.

His Lordship The Hon''ble Mr. Justice T.S. Arunachalam is believed to have questioned the above named Magistrate under the above narrated

facts and circumstances on 18.5.94 about 1 p.m. When the learned Judge asked the concerned Magistrate, whether he had confessed before the

learned Chief Judicial Magistrate, Madurai in respect of the judgment delivered in C.C. No. 897/93, he answered in the affirmative. Then the

learned judge seems to have questioned the nature of the confession and the concerned Magistrate was hesitant. Hence, the learned judge is

believed to have called the concerned Magistrate to the room of the learned Chief Judicial Magistrate and the learned Chief Judicial Magistrate had

insisted him to narrate the statements made before him in front of the learned judge also.

Then, the concerned Magistrate seems to have reiterated what he said to the learned Chief Judicial Magistrate and he had further told that it is false

to say that he had received a sum of Rs. 8000/- or 10,000/- as bribe but he had received only a sum of Rs. 1,000/-. When he was questioned

about the mode of payment he seems to have said that the said amount was paid to him through an advocate named Mr. Ramesh.

His Lordship The Hon''ble Mr. Justice T.S. Arunachalam is believed to have written a letter to the Hon''ble the Chief Justice narrating the entire

above narrated facts and requested him to take necessary action against the concerned Magistrate. He is believed to have advised for the

suspension of the concerned Magistrate immediately also.

While writing such a letter to the Hon''ble Chief Justice he has pointed out about the conversation between me and the Hon''ble Judge also.

The learned Judge is believed to have said that he had brought to my knowledge about the conduct of the concerned Magistrate namely, A.

Muralidharan, the Judicial Magistrate No. 2. and in reply to that I had told him that the concerned Magistrate confessed before the Chief Judicial

Magistrate and the learned Judge only with a hope that he would be pardoned. The learned Judge is believed to have said further that I had told

him that there was no other evidence except the confession and hence further action would be dropped against the learned Judicial Magistrate No.

2.

The learned Judge is believed to have made an observation also that it is apparent that tails wag only because of the heads.

I bona fide believe that on the basis of the said letter written by the Hon''ble Administrative Judge, Mr. Justice T.S. Arunachalam only, my service

is not extended till the attainment of the age of 60 as per the dictum laid down by the Hon''ble Supreme Court of India in the case called - All India

Judges'' Association Vs. Union of India and others, .

Petitioner has stated in some detail how the Office Memorandum dated 23.12.1993 issued by the first Respondent, that is, the High Court, did

not support the allegation against the Petitioner that there was a shortfall in his work and that reputation was not kept up at the required level.

Separate returns have been filed by first and second Respondents, the latter, however, has endorsed the counter of the first Respondent, viz.,

the High Court. The High Court''s counter-affidavit by the Registrar of the Court does not appear to dispute most of the allegations of the

Petitioner except the following:

Available confidential records for the last five years;

Quantum of work, turned out for the immediate last five years;

General reputation.

In part 6 of the counter it is stated as follows:

It is submitted that the following records in respect of the Petitioner and certain officers were placed before the Honourable Screening Committee:

The said Honourable Committee had gone through the said materials and passed the following resolution in respect of the Petitioner:

a) From the records it is noticed that the opinion of the Honourable Judges as to the work and functioning of the Officer is sharply divided.

b) The disposals during the period from 1.1.1989 to December, 1993 indicate continuous shortfall.

c) The reputation of the Officer is also not good as evidenced by the report dated June 1, 1994 of the Honourable Administrative Judge and

On considering the aforesaid materials, the Committee is satisfied that the Officer is of doubtful integrity and does not enjoy good reputation, and

he has also lost his utility to be continued in service because of the poor turnout of work and questionable reputation. Therefore, the Committee

finds that he is not entitled to the benefit of increased age of superannuation from 58 to 60 years.

The Honourable Screening Committee recommended to the Full Court not to extend the benefit of Higher Retirement age of 60 to the Petitioner

and another Judicial Officer.

And it is stated further that the Full Court approved the resolution of the Screening Committee. It has been asserted specifically that the Screening

Committee did not act solely on the letter of the learned Administrative Judge of Madurai District, but it has also taken into consideration the

integrity, reputation utility and the quantum of work turned out by the Petitioner.

In All India Judges'' Association and Others Vs. Union of India and Others, , the Supreme Court has stated,-

The judicial service is not service in the sense of ''employment''. The judges are not employees. As members of the Judiciary, they exercise the

sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of Ministers and the

members of the legislature. When ft is said that in a democracy such as ours, the executive, the legislature and the Judiciary constitute the three

pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State

and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators

and the judges, and not the members of their staff who implement or assist in implementing their decisions.

The Supreme Court has pointed out,

As member of the Judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the

members of the Council of Ministers and the members of the legislature.... The Council of Ministers of the political executive is different from the

Secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from

the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and not

between the Judges and the administrative executive. In some democracies like the U.S.A., members of some State Judiciaries are elected as

much as the members of the legislature and the hands of the State. The Judges, at whatever level, they may be, represent the State and its authority

unlike the administrative executive or the members of the other service. The members of the other service, therefore, cannot be placed on par with

the members of the Judiciary, either constitutionally or functionally.

The Supreme Court has emphasised that distinction between the Judges and the members of the other services has to be constantly kept in mind

for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured

both in substance and in practice. It is trite to say that those who are in want cannot be free. Self - reliance is the foundation of independence. The

society has a stake in ensuring the independence of the Judiciary and no price is too heavy to secure it.

The Supreme Court in this judgment has reiterated the directions it had already issued See All India Judges'' Association Vs. Union of India and

others, including the direction that the age of retirement of the members of the subordinate Judiciary should be uniform in all States and increased

from 55 to 60 years in such States in which they were made to retire on attaining the age of 55 years and in such other States; from 58 to 60 years

in which they were made to retire on attaining the age of 58 years. A screening, however, of the Officers for the benefit of the increase of the

retirement age upto 60 years, is introduced in this judgment in these words:

There is, however, one aspect we should emphasise here. To what extent the direction contained in the main judgment under review shall stand

modified. The benefit of the increase of the retirement age to 60 years shall not be available automatically to all judicial officers irrespective of their

past record of service and evidence of their continued utility to the judicial system. 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 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 Court constituted and headed by the Chief Justices of the High Court and the evaluation shall be made on the basis of the

Judicial officers'' past record of service, character rolls; quality of judgments and other relevant matters.

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 compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. 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 by

following the said procedure for compulsory retirement. 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. It is necessary to make it clear that this assessment is for the purpose of

finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60

years. It is in addition to the assessment to be undertaken for'' compulsory retirement and the compulsory retirement at the earlier stage/s under the

respective Service Rules.

The enhancement of the superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 58 years does

introduce a change in the service condition of the existing personnel. There may be judicial officers who are not desirous of availing the benefit of

the enhanced superannuation age with the condition of compulsory retirement and may like to opt for retirement at the age of 58 years. In such

case, the concerned officers should intimate in writing their desire to retire at the age of 58 years well in advance and in any case before they attain

the age of 57 years. Those who do not do so will be deemed to have exercised their option to continue in service till they attain 60 years of age

subject to the liability of being retired compulsorily at the age of 58 years according to the procedure for compulsory retirement laid down in the

Service Rules.

Since those who have already crossed the age 57 years and those who will cross the age of 58 years soon after the date of this decision, will

exercise their option within one month from the date of this decision. If they do not do so, they will be deemed to have opted for continuing in

service till the age of 60 years. In that case, they will also be subjected to the review for compulsory retirement, if any, notwithstanding the fact that

there was not enough time to undertake such review before they attained the age of 58 years. However, in their case, the review should be

undertaken within two months from the date of expiry of the period given to them above for exercising their option and if found unfit, they should

be retired compulsorily according to the procedure for compulsory retirement under the Rules.

Since those who have already crossed the age of 58 years have no benefit of exercising their option to retire earlier and the point of time at which

their assessment could be undertaken for compulsory retirement, if any, has also passed, it is not considered proper to subject them to the review

for compulsory retirement at this stage. They may, therefore, be given the benefit of the enhanced superannuation age of 60 years without

subjecting them for such review.

It is clear that the Supreme Court has increased the age of superannuation uniformly for all judicial officers irrespective of the States in which

they are serving and to apply uniformly to all of them irrespective of the State laws as to the service conditions of the Judicial Officers retiring them

at the age of 55 or 58 as the case may be but has said that the benefit of the increase of the retirement age to 60 years shall not be available

automatically to all Judicial Officers irrespective of their past record of service and evidence of their continued utility of the judicial system.

Screening for the said purpose is envisaged in the words of the Supreme Court, ""The High Court should undertake and complete the exercise in

case of officers about to attain the age 58 years well within time by following the procedure for compulsory retirement as laid down in the

respective Service Rules applicable to the Judicial Officers."" and ""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 by following the said procedure for compulsory

retirement."" Since retirement at the age of 58 years has not been envisaged as a punishment and the enhancement of the superannuation of age to

60 years, has introduced a change in the service conditions of the existing personnel the Supreme Court, has on the one hand, contemplated that

Judicial Officers, who are not desirous of availing of the benefit of the enhanced superannuation age with the condition of compulsory retirement,

may opt for retirement at the age of 58 years by intimating in writing their desire well in advance and in any case before they attain the age of 57

years.

The observations ""the benefit will be available to those who, in the opinion of the respective High Courts, have potential for continued useful

service, is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility"" are only such that operate

whenever a case of an officer is reviewed for compulsory retirement under the Service Rules and introduce only an additional matter for

consideration for the decision to compulsorily retire a serving officer at the age of 58 and not to give to him the benefit of the extended service upto

the age of 60 years.

A Five Judge Bench judgment of the Patna High Court in the case of Syed Iqbal Ali v. State of Bihar 1994 Lab.I.C. 2202 is the first to deal

with the right of the subordinate Judicial Officers to continue in service beyond the age of 58 years as flowing from the review judgment

aforementioned. This judgment has taken notice of the expressions ""the benefit will be available to those who in the opinion of the. respective High

Courts have a potential for a continued useful service"" and ""the potential for continued utility shall be assessed and evaluated by appropriate

Committees of Judges of the respective High Court constituted and headed by the Chief Justices of the High Court and the evaluation shall be

made on the basis of the judicial officers'' past record of service, character rolls, quality of judgments and other relevant matters"" to convey clearly

that the decision to retire compulsorily at the age of 58 shall be only when it is in the opinion of the respective High Courts appropriate to do so.

The Screening Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts are only for

the evaluation whether the officer is fit and eligible to be continued in service upto the age of 60 years.

The Patna Full Bench has said,

Once the High Court decides after assessment and evaluation of his record of service etc., that he is not to be continued beyond the age of 58

years, the decision becomes effective from the date he attains the said age, no matter whether the actual formal order is issued later in point of time.

To this extent and in this sense the compulsory retirement of a judicial officer, as envisaged in the review judgment is different from the concept of

compulsory retirement simplicitor under the Service Rules.

A perusal of Fundamental Rules 56 reveals that the age of retirement on superannuation is envisaged under Sub-rule (1)(a) in these words.

Every government servant in the superior service shall retire from service on the afternoon of the last day of the month in which he attains the age of

fifty-eight years. He shall not be retained in service after that age except with the sanction of the Government on public grounds, which must be

recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances,

and compulsory retirement is envisaged under Sub-rule (2) in these words:

Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the

absolute right to retire any Government Servant by giving him notice of not less than three months in writing or three months pay and allowances in

lieu of such notice at any time after he has attained the age of fifty years or fifty five years in the case of Basic Servants, as the case may be, or after

he has completed thirty years of qualifying service.

The effect of the judgment of the Supreme Court in All India Judges'' Association and Others Vs. Union of India and Others, thus can be

noted for the application of Fundamental Rules 56(2) as (1) the age of 58 years in Sub-rule (1)(a) of Fundamental Rules 56 is substituted by the

age of 60 years and the sentence ""he shall not be retained in service after that age except with the sanction of the Government on public grounds,

which must be recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances"" is altogether ignored

in the said sub-rule and (2) in addition to what has been envisaged in Rule (2) above quoted, the following words are introduced, that is, in case of

judicial officers attaining the age of 58 years, the High Court shall evaluate on the basis of the judicial officer''s past record of service, character

rolls, quality of judgments and other relevant matters, whether in its opinion it is in the public interest to retire the officer on his attaining the age of

58 years provided that any judicial officer who is not desirous of availing of the benefit of the enhanced age of 60 years with the condition of

compulsory retirement as above, may intimate in writing his desire to retire at the age of 58 years well in advance and in any case, before he

attained the age of 57 years.

A Judicial Officer of the State holds, as a member of the judicial service, a post in civil service of the State and as a holder of civil post, he

enjoys the protection of Article 311 of the Constitution of India and although he holds his office during the pleasure of the Governor of the State as

.contemplated under Article 310 of the Constitution and his service conditions are thus as are prescribed under the Acts of the appropriate

Legislature or the Rules framed in lieu thereof as contemplated under Article 309 of the Constitution, he enjoys independence from the

administrative control of the executive Government of the State for, Article 235 thereof vests the control over the District Courts and Courts

subordinate thereto, in the High Court. The expression ''control over Courts'' in Article 235 of the Constitution is wide enough to include the power

as respects punishment of dismissal, removal or reduction in rank. Control, which is vested in the High Court is complete control and thus, the

decision of High Court in matters relating to discipline and service condition rules is binding upon the executive government. See State of Bihar v.

Inder Prakash AIR 1976 SC 1840. Retirement of a judicial officer before attaining the age of superannuation or retirement from service is effected

only in the exercise of administrative and disciplinary jurisdiction and thus, the High Court''s decision in this behalf is binding upon the executive

Government of the State. A premature'' retirement or compulsory retirement in public interest does not amount to dismissal or removal from

service within the meaning of Article 311 of the Constitution. It is neither a punishment nor does it visit with loss of retirement benefits. It does not

cast a stigma. The officer compulsorily retired is entitled to the benefits of pension that is actually earned and there is no diminution of the accrued

benefits. It is stated by the Supreme Court in the case of Union of India (UOI) Vs. Col. J.N. Sinha and Another, that the power to retire

compulsorily is exercised subject to the conditions mentioned in the relevant rule applicable to the Officer concerned, one of which is that the

concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that

opinion cannot be challenged before courts. It is open to the aggrieved party to contend that the requisite opinion has not been formed or the

decision is based on collateral grounds or that it is an arbitrary decision. Various considerations, of course, would weigh with the appropriate

authority and in some case the appropriate authority may feel that a particular post may be more usefully held in public interest by an officer more

competent than the one who is holding the office or that a person of undoubted integrity and ability should alone be retained and not those whose

ability and integrity are doubtful or who have not shown the ability to discharge their duties efficiently.

In Baldev Raj Chadha Vs. Union of India (UOI) and Others, the Supreme Court has pointed out that the administration, to be competent,

must have servants who are not plagued by uncertainty about tomorrow. In S. Ramachandra Raju Vs. State of Orissa, the Supreme Court has

pointed out, ""At the age of 50 when you have family responsibility and the sombre problems of one''s own life''s evening, your experience,

accomplishments and fullness of fitness become an asset to the administration, if and only if you are not harried or worried by ''what will happen to

me and my family?'' ''Where will I go if cashiered?''. These considerations become all the more important in departments where functional

independence, fearless scrutiny, and freedom to expose evil or error in high place is the task. And the Ombudsmanic tasks of the office of the audit

vested in C and AG and the entire army of monitors and minions under him are too strategic for the nation''s financial health and discipline that

immunity from subtle threats and oblique over-awing is very much in public interest. So it is that we must emphatically state that under the guise of

''public interest'' if unlimited discretion is regarded acceptable for making an order of premature retirement, will be the surest menace to public

interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalise the rule, we must so read it as to free it from

the potential for the mischief we have just projected. The exercise of power must be bona fide and promote public interest. When an order is

challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied

that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the

grounds of ''public interest'' justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator

but they are not absolved from the ""minimal review well settled in administrative law and founded on constitutional obligations. The limitations on

judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may

conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest"".

The Supreme Court in the above judgment has almost used the same words as we find in the All India Judges'' Association and Others Vs.

Union of India and Others, as respects those who should be weeded out, in these words:

The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution. After all,

Administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies. They may not be delinquent who must

be punished but may be a burden on the Administration if by insensitive, unefficient, unintelligent or dubious conduct impede the flow or promote

stagnation. In a country where speed, sensitivity"" ""probity and non-irritative public relations and enthusiastic creativity are urgently needed, paper

logged processes and callous cadres are the besetting sin of the Administration.

The Supreme Court, however, has cautioned,

It is in public interest to retire a never-do-well, but to juggle with confidential reports when a man''s career is at stake, is a confidence trick contrary

to public interest. Moreover, confidential reports are often subjective; impressionistic and must receive sedulous checking as basis for decision-

making. The appropriate authority, not the Court, makes the decision, but even so, a caveat is necessary to avoid misuse.

Most of the important judgments of the Supreme Court on the subject of compulsory retirement are referred to and the principles culled out by

the Supreme Court in S. Ramachandra Raju''s case J.T. 1994 (5) 459 (supra) for the benefit of the instant judgment are extracted:

(1) An officer who has served continuously for long years and permitted to cross the efficiency bar and reach the maximum salary in the scale with

no adverse entries for five years immediately before the compulsory retirement, should not be cashiered on the score that long years ago, his

performance had been poor although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be wrong cut.

(2) If vital material, relevant to the decision has been ignored and absolute material, less relevant to the decision, has influenced the decision, the

premature retirement order is bad.

(3) Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in

law.

(4) An order passed on collateral grounds taken arbitrarily or without proper application of mind is bad in law,

(5) Though the order of compulsory retirement is based on the subjective satisfaction, the proper authority has 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

records so considered would, naturally include the entries in the confidential records/character rolls, both favourable and adverse.

(6) The order of compulsory retirement is not liable to be quashed on more showing that while passing it uncommunicated adverse remarks were

taken into consideration. That does not mean that judicial scrutiny is excluded altogether. Though the courts would not examine the matter as an

appellate court, they may interfere if they are satisfied that the order is mala fide or passed on no evidence or 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 perverse order, the remedy under Article 226

is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions.

(7) It is thus settled law that though the order of compulsory retirement is not punitive and the government employee is entitled to draw all retiral

benefits, including pension, the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead

wood need to be removed to augment efficiency. Integrity in public service need to be maintained. The exercise of power of compulsory retirement

must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and be free from corruption

and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take

punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in

public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the

backdrop material for consideration by the Government or the Review Committee or the appropriate authority. On consideration of the totality of

the facts and circumstances alone, the government should the opinion that the government officer needs to be compulsorily retired from service.

Therefore, the entire service record more particularly the latest, would form the foundation for the opinion and furnish the base to exercise the

power under the relevant rule to compulsory retire a government officer. When an officer is reaching the age of compulsory retirement, he can

neither seek alternative appointment nor meet the family burdens with the pension or other, benefits he would get and thereby he would be

subjected to great hardship and family would be greatly affected. Therefore, before exercising the power, the competent/appropriate authority

must weigh pros and cons and balance the public interest as against the individual interest On total evolution of the entire record of service if the

government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the Court may

not interfere with the exercise of such bona fide exercise of power but. the Court has power and duty to exercise the power of judicial review not

as a Court of appeal but in exercise of the power of judicial review and see whether the competent authority has exercised his power properly or

has acted arbitrarily or with malafide either in fact or in law.

One of the often cited decisions is a judgment of the Court of Appeal in the case of The Queen v. Vestry of St. Pancras 1890 Q.B.D. 371.

The observations in the said judgment are often quoted on the question how when a statute gives full discretion, it should be exercised. A collector

of rates wanted to take retirement on the ground of declining health, on such superannuation allowance as the vestry were empowered to grant for

long service. After a long protracted procedure, the vestry decided that no superannuation allowance should be granted to the Collector who

sought voluntary retirement. In Lord Esher''s words,

I have no doubt about what is the right thing for a vestry to do on the resignation of his office by a servant of theirs and his application under this

statute. I have no doubt that the vestry should take his application into their fair consideration, and do what they think fair to the men under the

circumstances, and if they do this, I have equally no doubt that the legislature has entrusted the sole discretion to them, and that no mandamus

could go to them to alter their decision. But they must fairly consider the application and exercise their discretion on it fairly and not take into

account any reason for their decision, which is not legal one. If people who have to exercise a public duty by exercising their discretion take into

account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised

their discretion.

In Sadler v. Sheffield Corporation 1924 CD 483, the Chancery considered the case of a headmaster and headmistress of certain public

elementary non-provided schools, who were retired on the recommendation of the Director of Education, on attaining the age of 60 years. The

Education Committee resolved to remove them under pressure from the Board of Education and the City Council as an urgent measure of

economy and as the only alternative to suspending certain branches of instruction. The grievance before the Court was made mainly on the ground

that the resolution was adopted in the absence of sufficient information relating to the two teachers upon which alone the committee could properly

decide whether any and what educational grounds existed to justify their dismissal. The view expressed in the case of The Queen v. Vestry of St.

Panchras (1890) 24 Q.B.D. 371 (Supra) is adopted by the Chancery Division and expanded in these terms:

In the result, on a consideration of the whole of the evidence, I have arrived at the clear conclusion, and find as a fact, that the real and only ground

for the dismissal of the Plaintiffs"" ""were financial grounds, and that the alleged educational grounds were merely colourable.

In these circumstances, I am of opinion that the case is covered by the decision of the Court of Appeal, affirming Russell J. Hanson v. Radcliffe

Urban (1922) 2 Ch. 490 where it was held that a mere desire to economies is not an educational ground within the meaning of Section 29, Sub-

section 2(a)....

I propose to say a few words on the assumption that (contrary to my opinion) some bona fide educational grounds for the dismissal of the Plaintiffs

did exist. If that be so, then the most that can be said on behalf of the Defendants is that the grounds for the dismissal were mixed grounds,

compounded as to part of financial grounds and as to the rest of educational grounds. Even if that be the true view.... I am still of opinion that the

notices were bad.... Mixed financial and educational grounds, in my judgment, are not educational grounds.... In my opinion it would not be right

(even if it were possible) to attempt"" ""to resolve the mixed grounds into their component parts, and then to cast away the financial grounds so as to

leave the educational grounds as the undiluted and sole grounds for the dismissal. It seems to me...that here the financial grounds and educational

grounds were inextricably mixed and must stand or fall together, all the more so, as, on the uncontradicted evidence, the education Committee

would never have attempted, but for the existence of urgent financial reasons, to exercise the power conferred by Sub-section (2)(a) at all....

Another way of putting the same point is that Sub-section 2(a) confers upon the local education authority a discretionary power to require the

dismissal of a teacher in a non-provided school on educational grounds only, and, if the authority in exercising this discretionary power takes other

grounds into account, the power is not well exercised. The principle which, in my opinion, is applicable on this view of the case is thus stated by

Lord Esher Mr., in Reg. v. Vestry of St. Pancras 24 Q.B.D. 371, 375.... It is true that the facts there were distinguishable from the facts in the

present case, inasmuch as the body exercising the discretion took a wrong view as to the scope of the discretion; but it is plain from the judgment

of Lord Esher that he did not intend to confine the general proposition stated by him to the particular facts of that case.

In Shearer v. Shields (1914) A.C. 808, the House of Lords dealt with a case of damages for wrongful apprehension against two Constables,

who had arrested the pursuer on suspicion without a warrant and has drawn the distinction between malice in law and malice in fact the distinction

which the Supreme Court has approved in several judgments (to some of such judgments I will be referring later). Viscount Haldane, L.C. has

pointed out,

Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who

inflicts an injury upon another person in contravention of the law is not allowed to say that"" ""he did so with an innocent mind; he is taken to know

the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts

ignorantly, and in that sense innocently. Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who

has done the wrongful act, and it may be in proceedings based on wrongs independent of contract, a very material ingredient in the question of

whether a valid cause of action can be stated.

In Pilling v. Abergele Urban District Council (1950) 1 KB 636 another expansion of this principle is stated in these words:

Where a duty to determine a question is conferred on an authority which state their reason for the decision, and the reason which they state show

that they have taken into account matters which they ought not to have taken into account, or that they have filed to take matters into account

which they ought to have taken into account, the Court to which an appeal lies can and ought to adjudicate on the matter.

The Supreme Court in the case of Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, relating to a compulsory retirement of a

government servant, after quoting the above authorities, has stated the law in these words:

It is trite law that if discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting

in good faith or in bad faith,

and

It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or

circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith;

and in actual experience, and as things go, these may well be said to run into one another.

The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross

abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which make a useful

provision for the premature retirement of Government servants only in the ''public interest'', to a purpose wholly unwarranted by it, and to arrive at

quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected

with an abuse of power.

The Supreme Court has expressed the above view in the case of a Joint Director of Family Planning, who was ordered to retire prematurely from

service with immediate effect on the ground that she had already attained the age of 50 years, and the President was of the opinion that her

retirement was in the ''public interest''. She (the officer) made a representation against the retirement which was rejected. She moved the Delhi

High Court alleging inter alia that one V.D. Vyas, who had taken over as Chairman of the Central Board of Film Censors, had made certain

adverse remarks in her service record even after she had ceased to work under him which, according to her, were totally unfounded, biased,

malicious and without any justification. She had alleged in the writ petition that her integrity had never been considered doubtful 28 years before or

4 years after the period of 2 1/2 months she spent under him. She alleged that Vyas had made certain baseless allegations against her because of

malicious vendetta, besides the other grounds, one of the ground raised by her was that the order cast a stigma on her conduct, character and

integrity and amounted to imposition of one of the major penalties under the Central Civil Services (Classification, Control and Appeal) Rules,

1965. The Supreme Court has noticed the facts of the case in these words:

It is also not in dispute that the power under the aforesaid rule had to be exercised in accordance with the criteria and the procedure laid down in

office memorandum No. F-33/13/61-Ests. (A) dated 23rd June, 1969, of the Ministry of Home Affairs, Government of India. It is however the

grievance of the Appellant that her premature retirement was not made in accordance with"" ""the requirements of the rule and the memorandum, but

was ordered because of malice, and was arbitrary and capricious as the Government did not apply its mind to her service record and the facts and

circumstances of her case. It has been specifically pleaded that the power under F.R. 56(j)(i) has not been exercised ''for the furtherance of public

interest'' and has been based on ''collateral grounds''. The Appellant has pointed out in this connection that her service record was examined in

March. 1976, by the Departmental Promotion Committee, with which the Union Public Service Commission was associated and the Committee

considered her fit for promotion to the selection grade subject to clearance in the departmental proceeding which were pending against her, and

that she was retired because of bias and animosity. Our attention has also been invited to the favourable entry which was made in her confidential

report by the Secretary of the Ministry.

Mr. Lekhi, Learned Counsel for the Union of India, produced the relevant record of the Appellant for our perusal. While doing so he frankly

conceded that there was nothing on the record which could justify the order of the Appellant''s premature retirement. He went to the extent of

saying that the Government was not in a position to support that unfair order.

What is particularly important to note, however, in this judgment, is that the Supreme Court found, ''although she made an allegation of malice

against V.D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was

able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the

Appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement

so as to amount to malice in fact. Proceeding, however, on the principle of malice in law, the Court held,

So when it has been conceded by Mr. Lekhi that there was nothing on the record which would justify the impugned order dated March 26, 1976,

of the Appellant''s premature retirement under Clause (j)(i) of Rule 56 of the Fundamental Rules, and that Government was not in a position to

support that unfair order, that order must be set aside, for it amounts to an abuse of the power which was vested in the authority concerned.

Before I advert to the contentions in the instant case, it is necessary also to see on principle that an order to compulsorily retire is not a

punishment and the Officer, who is compulsorily retired is not subjected to any pecuniary loss and is granted pension and other retirement benefits,

which he has already earned, even though he is not allowed to continue in service in the public interest. It is one thing as indicated by the Supreme

Court to take into account the entire service record and character roll of an officer and see his overall conduct as an officer to decide whether he

should be retained in service until the age of superannuation or retire prematurely at some level after completing a certain period of qualifying

service or attaining the age of compulsory retirement, and another to charge him of lack of integrity or of doubtful integrity or of not maintaining a

good reputation. In the former case, the materials used are for the formation of opinion and not to attach any stigma to the officer. In the latter

case, a stigma is attached and even though one can say that service benefits are not denied to him, he is made to live with the stigma and thus

denied any benefit which he could otherwise derive for his experience as an officer in any other employment.

A Bench of seven Judges of the Supreme Court has in the case of Samsher Singh Vs. State of Punjab and Another, touched upon almost

every aspect of a person in the judicial service of the State and the control that the High Court is required to exercise with respect to the service

conditions of the Judicial Officers. Dealing with the aspect of the case how the termination of the appointment of a probationer in service or a

temporary employee in service should be viewed by the Courts, the Supreme Court took notice of the case-law on the subject beginning from the

judgment of the Supreme Court in the case of Parshotam Lal Dhingra Vs. Union of India (UOI), and the judgment of the Supreme Court in The

State of Bihar Vs. Gopi Kishore Prasad, , The State of Orissa and Another Vs. Ram Narayan Das, , Madan Gopal Vs. State of Punjab, ,

Ranendra Chandra Banerjee Vs. Union of India (UOI), , Champaklal Chimanlal Shah Vs. The Union of India (UOI), , K.H. Phadnis Vs. State of

Maharashtra, and The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, and stated the law in these words:

No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of

termination that the services are terminated, it can never amount to a punishment in the facts and circumstances of the case. If a probationer is

discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable

opportunity of showing case against his discharge it may in a given case amount to removal from service within the meaning of Article 31(2) of the

Constitution.

Elucidating further the Supreme Court has said,

Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or

whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion

that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for

the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the

probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the

probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. It, on

the other hand the probationer is faced with an enquiry on charges of misconduct or Inefficiency or corruption, and if his services are terminated

without following the provision of Article 311(2) he can claim protection.

The Supreme Court has also pointed out that the fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really

by way of punishment.

The march of law thereafter is noticed by the Supreme Court in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and

Others, . The Constitution Bench of the Supreme Court this time has said,

It is undoubtedly true as contended by Sir Bhasin, Learned Counsel for the intervenor, that it is open to the authorities to terminate the services of a

temporary employee without holding an enquiry. But in view of the march of law made viz., that it is not the form of the section but the substance of

the order is to be looked into, it is open to the court to lift the veil and pierce the impugned action to find whether the impugned action is the

foundation to impose punishment or is only motive. A larger bench of seven Judges of this Court in Air-India Corporation, Bombay Vs. V.A.

Rebellow and Another, elaborately considered the question and laid down the rule in this regard. The play of fair play is to secure justice

procedural as well as substantive. The substance of the order, the effect thereof, is to be looked into. Whether no misconduct spurns the action or

whether the services of a probationer is terminated without imputation of misconduct is the test. Termination simplicitor, either due to loss of

confidence or unsuitable to the post may be a relevant factor to terminate the services of a probationer. But it must be hedged with a bona fide

over-all consideration of the previous conduct without being tainted with either mala fide or colourable exercise of power or for extraneous

considerations. Such actions were upheld by this Court. The action must be done honestly with due care and prudence.

In the same judgment it is also stated as follows:

Article 14 is the general principle while Article 311(2) is a special provision applicable to all civil services, under, the State. Article 311(2)

embodies the principles of natural justice but proviso to Clause (2) of Article 311 excludes the operation of principles of natural justice engrafted in

Article 311(2) as an exception in the given circumstances enumerated in the three clauses of the proviso to Article 311(2) of the Constitution.

Article 14 read with Articles 16(1) and 311 are to be harmoniously interpreted that the proviso to Article 311(2) excludes the application of the

principles of natural justice as an exception and the applicability of Article 311(2) must, therefore, be circumscribed to the civil service and be

construed accordingly. In respect of all other employees covered by Article 12 of the Constitution the dynamic role of Art 14 and other relevant

Articles, like Article 21 must be allowed to have full play without any inhibition, unless the statutory Rules themselves, consistent with the mandate

of Articles 14, 16, 19 and 21 provide, expressly such an exception.

A Division Bench of this Court of which I was a Member has, in the case of Government of Tamil Nadu v. S. Rajalakshmi 1993 Writ L.R.

863 has considered the case of a judicial officer who was holding the post of a temporary Judicial Second Class Magistrate under Rule 13(e) of

the Tamil Nadu State Magisterial Service Rules and whose service were terminated allegedly in accordance with provisions of the Service Rules.

The Special Officer, Vigilance Cell of the High Court received a petition and a letter from the Chief Judicial Magistrate and submitted a note to the

Chief Justice which referred to the allegations of corruption against the said Officer. In the note submitted to the Chief Justice, the Special Officer

referred to a telegram sent by the members of the Bar Association praying for not reposting the officer to Aruppukkottai after the expiry of the

maternity leave granted to her. In those circumstances her (Magistrate''s) services were terminated. On the proceedings, the Court has held:

In the instant case, the Special Officer, Vigilance cell of the High Court, on receipt of the petition and the letter from the Chief Judicial Magistrate

submitted a note to the Chief Justice which referred to the allegations of corruption made in the petition. In the note submitted to the Chief Justice

the Special Officer also referred to the telegram sent by the Bar members of Aruppukkottai Bar Association praying for not reporting the writ

Petitioner to Aruppukkottai after the expiry of the maternity leave granted to the writ Petitioner/Respondent. He prayed for orders from the Chief

Justice as to whether the register may be required not to report the writ Petitioner to Aruppukkottai after the expiry of the maternity leave and

whether a probe may be made with regard to the allegations made against her. On 1-10-1985 on the office - note submitted by the Special

Officer, Vigilance Cell, High Court, referring to the various complaints of corruption received against the writ Petitioner/Respondent the then Chief

Justice passed an order stating the the services of the writ Petitioner/Respondent may be terminated by an order of termination simplicitor.

Thereupon, the second Appellant sent a D.O. letter (No. 22/85) dated 4-10-1985 to the Commissioner and Secretary to the Government, Home

Department, requesting that orders of the Government may be obtained terminating the service of the writ Petitioner in the Judicial Department in

the Tamil Nadu State Magisterial Service. On the basis of the D.O. Letter dated 4-10-1985, received from the second Appellant the first

Appellant passed the impugned Government Order, G.O.M.S. No. 809 terminating the temporary service of the writ Petitioner. These facts are

not in dispute. It is thus a case of the decision taken to terminate the services of her. The decision to take action under the rule empowering the

Government to terminate the service of a temporary judicial Second Class Magistrate was used as a cloak to avoid a regular probe into the

allegations and to get rid of the writ Petitioner/Respondent without affording the opportunity of being heard and without there being any material to

substantiate the allegations.

In a case of compulsory retirement, in H.C. Gargi Vs. State of Haryana, . the Supreme Court has applied the principles laid down in Union of

India (UOI) Vs. Col. J.N. Sinha and Another, in these words:

In this case, the Appellant who was an Assistant Excise and Taxation Officer, Haryana, 35 years of service has been compulsorily retired in public

interest by the State Government of Haryana by impugned order dated February 1,1985, purporting to act under Rule 3-25(d) of the Punjab Civil

Services Rules, Vol. I, Part 1. From the record of service it appears that based upon the report of the review committee in 1979, the Appellant

was retained in service after he attained the age of 55 years and thereafter on the report of the second Review Committee in 1983, he was

continued in service on his attainment of the age of 55 years, on the basis of his record of service which was uniformly good right from the year

1964-65 to the year 1981-82. When he was just on the verge of retirement the State Government directed his compulsory retirement under Rule

3-25(d) of the Rules on the basis of two adverse entries made by the then Excise and Taxation Commissioner. Although the Appellant pleaded

that he earned a good report from the Deputy Excise and Taxation Commissioner who had opportunity to watch his performance during the years

in question, the State Government in the return filed before the High Court contested the writ petition on the ground that the Appellant was retired

under Rule 3-25(d) of the Rules as the adverse entries made by the Commissioner showed that he was of doubtful integrity. This however is not

borne out by the two adverse entries made by the Commissioner showing that his performance in the year 1982-83 was ''average'' and that in the

year 1983-84 ''below average'' which did not pertain to his integrity. The Appellant alleged that he had incurred the displeasure of the

Commissioner for certain reasons. While his representation against the adverse entries made by the Commissioner was pending consideration, the

Government passed the impugned order of compulsory retirement and thereafter rejected the representation. The power of compulsory retirement

under Rule 3.25(d) of the Rules can be exercised subject to the conditions, mentioned in the rule, one of which is that the concerned authority must

be of the opinion that it is in public interest to do so. The test in such cases is public interest as laid down by this Court in Union of India (UOI) Vs.

Col. J.N. Sinha and Another, . It does not appear that there was any material on the basis of which the State Government could have formed an

opinion that it was in public interest to compulsorily retire the Appellant at the age of 57 years. There was really no justification for his compulsory

retirement in public interest. The impugned order of compulsory retirement of the Appellant under Rule 3.25(d) of the rule must therefore be struck

down as being arbitrary.

The salient features of the instant case are quite eloquent. The order to retire the Petitioner at the age of 58 years and not to allow him to reap

the benefit of the enhancement of the retirement age, has itself some informations. The Screening Committee has noted,

(1) The opinion of the learned judges as to the work and functioning of the Officer is sharply divided;

(2) The disposals during the period from 1-1-1989 to December, 1993 indicate continuous shortfall;

(3) The reputation of the officer is also not good as evidenced by the report dated June 1, 1994 of the learned Administrative Judge.

The Screening Committee has inferred,

(1) The Officer is of doubtful integrity,

(2) He does not enjoy a good reputation and

(3) He has lost his utility to continue in service because of the poor turnout of work and questionable reputation.

The Full Court has only said,

On a consideration of the relevant materials on the recommendation of the Screening Committee, it was of the view that the officer was not entitled

to the benefit of higher retirement age concession from 58 to 60 years.

The obvious mistake, it appears, is that the Full Court has treated the benefit of higher retirement age as a concession to the judicial officers. In

the judgment in All India Judges'' Association Vs. Union of India and others, , besides the other direction issued, the Supreme Court has issued a

direction to raise the age of retirement of judicial officers to 60 years and fixed a time-limit for the said purpose. However, several States sought a

review of the directions by the Supreme Court and on the extension of age of retirement, the Supreme Court in the review judgment in All India

Judges'' Association and Others Vs. Union of India and Others, rejected all the contentions of the objections and after so rejecting the objections,

observed, as quoted above, that the direction contained in the main judgment should not be implemented without examining the potential of the

judicial officer for continued useful service. The Supreme Court''s direction is clear and categoric. The age of retirement is increased to 60 years; it

shall, however, be not available automatically; the High Court should examine the continued utility and while doing so, follow the procedure for

compulsory retirement as laid down in the Service Rules applicable to the judicial officers.

Learned Counsel for the Petitioner has contended,

1) The High Court has misconstrued the judgment of the Supreme Court in All India Judges'' Association and Others Vs. Union of India and

Others, in conceding to the Chief Justice the power to constitute a, Screening Committee and in endorsing the view of the Screening Committee

without any independent application of mind by the Judges of the Court for evaluation of the past record to service of the Petitioner, character rolls

and quality of judgments as well as other relevant matters;

2) The Screening Committee was informed on the subject of ''statement of complaints received against the Petitioner'' that there were complaints

against him published as a news item in a magazine ""Ippadithanda Police"" and by one Thiru K. Pandurengan, when he was functioning as a District

Judge in Chengalpattu to the effect that he had indulged in corruption and was in possession of assets disproportionate to his known source of

income and in occupation of two government quarters simultaneously and that in respect of the allegation of corruption and possession of assets

disproportionate to known source of income, the Chief Justice had ordered a secret probe which was pending and in respect of the occupation of

two government quarters departmental action had been ordered but was closed. The probe as ordered by the Chief Justice, however, had

concluded and the Special Officer, Vigilance Cell had reported accordingly in C. No. 15.91, 174/90-V.C. (Roc. No. 766/90 and 75/91 V.C.)

Roc.390/91, 90/91, 199/91 and 129/91) to the Chief Justice on 28-10-1993 finding no fault in the allegation against the Petitioner. The said report

of the Special Officer was not circulated and the Screening committee or the Full Court was not informed in time before the decision about the said

report of the Special Officer, Vigilance Cell, and thus, a vital information as to the allegations of corruption and irregularities allegedly committed by

the Petitioner was withheld. Both the Screening Committee as well as the Full Court decided against the Petitioner without being informed about

the same and thus, failed to take into account a vital material that was/is relevant for any decision to retain the Petitioner in service to retire at the

age of 60 years or to compulsorily retire him at the age of 58 years.

3) Confidential reports, which are brought on the record of the proceedings in course of the hearing, by the Registrar of the Court revealed that for

the period 1-1-1989 to 31-12-1990, 13 learned Judges of this Court recorded no remarks for or against the Petitioner; eight recorded either

good or satisfactory, and only three recorded adversely, (1) though the rates of disposal of case have been alright, the standard of District level

administration and reputation was not kept up at the required level, (2) not satisfactory and (3) I cannot compliment this officer for his work

efficiency, For the period 1-1-1991 to 31-12-1991, four learned Judges recorded ''no remarks''; 14 learned Judges recorded either ''good or

satisfactory'' and only two recorded adverse remarks (1) must increase disposals; otherwise satisfactory and (2) though the work turned out

appears to be in order, there is scope for better turnout with a little more of sincere, honest and devoted effort towards judicial work.

Arunachalam, J. recorded ''no remarks'' for or against the Petitioner for the period 1-1-1989 to 31-12-1990 and 1-1-91 to 31-12-1991. The

confidential reports, however, about the Petitioner, it appears, were circulated only to Arunachalam, J. for the period 1-1-1992 to 31-12-1992

and 1-1-1993 to 31-12-1993. For the period from 1-1-1992 to 31-12-1992, he alone has recorded ""Judicial Work & Disposals Average;

General Opinion - Much to be desired"" and for the period from 1-1-1993 to 31-12-1993, the report of the learned Judge (Arunachalam, J.) is

Quantum - Fair Disposals"". No other opinion is available about the work turned out by the Petitioner; the quality of the judgments by the

Petitioner or anything as to reputation or integrity of the Petitioner. The Screening Committee''s opinion which is said to have been endorsed by the

Full Court, the opinion of the learned Judges as to the work and functioning of the Officer is sharply divided and the disposals during the period

from 1-1-1989 to December, 1993 indicated continuous shortfall, is not supported by any material whatsoever. For the third opinion, ''the

reputation of the officer is also not good as evidenced by the report dated June 1,1994, of the learned Administrative Judge"" is not supported by

the letter of Arunachalam, J. dated 1-6-1994 who alone, as the Administrative Judge, on 19-3-1994 had recorded in the confidential file of the

Petitioner ""Quantum-Fair Disposals"".

4) The resolution of the Screening Committee and its endorsement by the full Court that the Officer is of doubtful integrity; be does not enjoy a

good reputation and he has lost his utility to continue is service because of the poor turnout of work and questionable reputation is obviously based

on extraneous and irrelevant materials and in complete ignorance of the most appropriate information which was available in the form of the report

of the Special Officer, Vigilance Cell, on the allegations, if any, that were levelled against the Petitioner and since the order to retire the Petitioner at

the age of 58 years carries the remarks, ''the officer is of doubtful integrity; he does not enjoy a good reputation and he has lost his utility to

continue in service because of the poor turnout of work and questionable reputation'', the order has travelled beyond the realm of compulsory

retirement which is not a punishment and entered into the field covered by Article 311 of the Constitution of India and in any case in the field of the

common law principle of natural justice that no one should be condemned without having been afforded an opportunity of being heard.

Learned Additional Government Pleader appearing for the Respondents has fairly produced before the Court all the relevant records and has

contended that in course of the screening of the case of the officers, who were approaching the age of 58 years, the Court has followed the

procedure as envisaged in the judgment of the Supreme Court in All India Judges'' Association and Others Vs. Union of India and Others, and

taken into account all such materials which were available, until the Chief Justice passed some order on the report of the Special Officer, Vigilance

Cell, there was/is nothing wrong in reporting to the Screening Committee that secret probe was pending into the allegations of corruption against

the Petitioner and although the letter of Arunachalam, J. to the Chief Justice dated 1-6-1994 was mainly in respect of the conduct of a Magistrate,

the learned Judge had taken notice of the behaviour of the Petitioner as the District Judge and doubted his intentions and accordingly integrity for

the reason that he (Petitioner) had tried to shield the corruption of the Magistrate. He has contended that the Court should not ignore the fact that

the Screening Committee consisted of seven senior most Judges of the Court including the Chief Justice and all materials concerning the service of

the Petitioner were examined by the seven senior most Judges of the Court and their report was placed before the Full Court and the Full Court in

its turn after being fully informed about the report concerning the Petitioner decided to agree with the recommendations of the Screening

Committee to retire the Petitioner at age of 58 years.

There is no force in the contention of the Learned Counsel for the Petitioner as respects the constitution of the Screening Committee by the

Chief Justice assuming that there is a departure from the general rule that the High Court, that is, all the Judges constituting the Court should

constitute any committee and the direction of the Supreme Court, ''the potential for continued utility shall be assessed and evaluated by appropriate

Committee 6T Judges of the High Court'' does not mean that the Chief Justice alone is authorised by the Supreme Court to constitute the

Screening Committee. Since the Committee has been constituted and has functioned only to submit a report to the Full Court and the Full Court

has not found any fault with its constitution by the Chief Justice and desired to replace it by another Committee, no fault can be noticed in the

constitution and its meetings to decide whether a certain judicial officer, who was approaching the age of 58 years, should be retired at the age of

58 years or should be contained until the increased age of retirement, i.e., 60 years.

There are some facts, however, which seem to disturb the entire procedure by which the Petitioner''s case has been evaluated by the Screening

Committee and the Full Court. The direction of the Supreme Court is categoric and clear. The High Court is required to follow the procedure for

compulsory retirement as laid down in the Service Rules applicable to the judicial officers. The Rule which is applicable in the case of the Petitioner

has been extracted by me earlier.

A perusal of the report of the Special Officer, Vigilance Cell, who had the secret probe conducted by the Additional Superintendent of Police,

Vigilance Cell (Madras), into the allegation against the Petitioner, under the orders of the Chief Justice and accordingly submitted the report to the

Chief Justice on 28-10-1993 reveals that no allegation of corruption against the Petitioner was supported by any evidence. The report remained

pending with the Chief Justice ever since.

It is not explained to me in course of the hearing of the instant petition why the Administrative Judge of a District was required to address a

letter to the Chief Justice instead of submitting a report of his inspection and placing the report for consideration in accordance with law.

Nonetheless, Arunachalam, J. addressed a letter to the Chief Justice on 1-6-1994,

Dear Chief,

I had inspected some of the Courts in Madurai District on 17th and 18th May, 1994.

and reminded the Chief Justice,

You may remember that during our last visit to Madurai in connection with Lok Adalat, we had warned Thiru A. Muralitharan, Judicial Magistrate

No. 2, Madurai, to be diligent in his work and maintain integrity, since several complaints were being made against him.

The learned Judge had then directed the Chief Judicial Magistrate to keep a close watch of the disposal of cases by the said Magistrate, Thiru A.

Muralitharan, as well as the manner of disposals. Learned Additional Government Pleader appearing for the Respondents has not been able to give

any satisfactory answer why when the Petitioner was present in the District and he was the Head of the District Judiciary which, the learned

Administrative Judge has himself recognized in the letter in these words,

Since Thiru Mohandas, District Judge, Madurai, is the Chief Judicial Officer of the District concerned, I called him inside and made him aware of

the conduct of this Judicial Officer.

the Petitioner was not directed to keep a watch upon Judicial Magistrate No. 2, Madurai and instead the Chief Judicial magistrate was preferred.

The Chief Judicial Magistrate, the letter reveals, informed the learned Administrative Judge that he had received an anonymous phone call on 12-5-

1994 in the early hours of the morning stating that a party was being pestered by Judicial Magistrate No. 2, Madurai, to offer a bribe of Rs.

5,000/- to render a favourable judgment. The learned Judge, the letter says, called the said Magistrate and questioned him and all this happened in

the presence of the Chief Judicial Magistrate. The Petitioner, i.e., the District Judge was called only thereafter and made aware of the conduct of

the Judicial Magistrate No. 2. The learned Judge has said,

I was amazed and astonished at the conduct of the learned District Judge who told me that Judicial Magistrate No. 2 had confessed before me and

the Chief Judicial Magistrate only with a fond hope that he would be pardoned and not taken to task. He also stated that apart from the

confession, there was no other evidence and hence I can drop further action after administering stern warnings to the erring officer. It is apparent

that tails wag only because of the heads.

Since the Chief Justice alone was not competent to take any action upon the letter of Arunachalam, J. the records reveal, he marked this letter to

Committee No. 3, which alone was the competent Committee to decide as to what action should be taken against any delinquent judicial officer of

the rank of a Magistrate-cum-Munsif. The said letter was not circulated to the members of the Screening Committee with the papers concerning

the Petitioner. Nonetheless, it is obvious, it was Drought at the meeting of the Screening Committee and found a mention in the minutes of the

Screening Committee meeting dated 27-3-1994. If there has been some information about the poor reputation of the Petitioner or about the

doubtful integrity it was in the chart aforementioned which precisely stated that there were complaints against the Petitioner making allegations of

corruption and amassing wealth disproportionate to his known source of income and as respects which, secret probe was pending and not in the

letter of Arunachalam, J. which revealed misconduct of a Judicial magistrate in the District and not the District Judge himself except that the learned

Administrative Judge felt shocked why the Petitioner, when asked, told him that the Magistrate had confessed hoping that he would be pardoned

and not punished. How serious the task of any administrative/controlling authority is and that no person in authority should take any casual view of

the activities of his/her subordinates has been so often stated by the Courts that it will only bear repetition if I quote once again from the judgment

of the Supreme Court in S. Ramachandra Raju Vs. State of Orissa, ,

This case would establish as a stark reality that writing confidential reports bears onerous responsibility on the reporting officer to eschew his

subjectivity .and personal prejudices or procilivity or predilections and to make objective assessment. It is needless to emphasise that the career

prospect of a Subordinate Officer/employee largely depends upon the work and character assessment by the reporting officer. The latter should

adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and

responsibility displayed by the concerned officer/employee during the relevant period for the above objectives if not strictly adhered to in making

an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy. The reporting officer is bound to lose his

credibility in the eyes of his subordinates and fail to command respect and work from them. The Constitutional and statutory safeguards given to

the government employees largely became responsible to display callousness and disregard of the discharge of their duties and make it impossible

to the superior or controlling officers to extract legitimate work from them. The writing of the confidentials is contributing to make the subordinates

work at least to some extent. Therefore, writing the confidential reports objectively and constructively and communication thereof at the earliest

would pave way for amends by erring subordinate officer or to improve the efficiency in service. At the same time, the subordinate-

employee/officer should dedicate to do hard work and duty, assiduity in the discharge of the duty, honesty with integrity in performance thereof

which alone would earn his usefulness in retention of his service. Both would contribute to improve excellence in service.

It is difficult to see any basis for the inference, in respect of the integrity of the Petitioner in the words,

It is apparent that tails wag only because of the heads

and if this is made the basis to say that the Petitioner''s integrity is doubtful, the very purpose as pointed out by the Supreme Court, of a fair

assessment of the merit of the officer is defeated.

It is difficult for any reasonable person, in my view, to see any merit in keeping the Special Officer''s report in abeyance and not making any

order on it and at least in not informing the Screening Committee or the Full Court that probe had already been completed into the complaints

against the Petitioner and the Special Officer had submitted his report which was pending with the Chief Justice. Learned Counsel for the Petitioner

has tenaciously tried to persuade me to see motive and malice in circulating the letter of the learned Administrative Judge when the Screening

Committee members assemble for the meeting and not along with the other papers concerning the Petitioner and in withholding the information

about the completion of the secret probe and the report of the Special Officer, to the Chief Justice. Learned Additional Government Pleader

appearing for the Respondent has, however, stated and I see force in what he has said that no motive can be attributed to either the learned

Administrative Judge or the Chief Justice or for that matter to any other Officer of the Court much less to the Screening Committee or the Full

Court for picking up the Petitioner alone for discriminatory treatment. It has, however, been difficult for him to dispute the fact that the letter of the

learned Administrative Judge was not circulated to the member of the Screening Committee along with the papers concerning the Petitioner, but

was nonetheless brought before the Screening Committee at its meeting and the Screening Committee or the Full Court was not informed that

secret probe had come to a close with the report of the Vigilance Officer of the Court and it was the Chief Justice alone, who was required to

make some order in the matter. As pointed out by the Supreme Court in the case of Samsher Singh Vs. State of Punjab and Another, , the instant

case is not one in which the Court should notice any actual malicious intention. There is no basis or material to see any mala fide in fact. This is one

case, however, in my view, which is completely in the teeth of malice, in law for the reason that the Screening Committee and the Full Court have

acted without being informed about the result of the secret probe and on the basis of the information that there were allegations of corruption

against the Petitioner into which allegations a secret probe was pending. In the language of the Supreme Court in the case of Smt. S.R.

Venkataraman Vs. Union of India (UOI) and Another, , it will be a gross abuse of legal power to punish a person or destroy his/her service career

in a manner not warranted by law by putting a rule which make a useful provision for the premature retirement of Government servants only in the

''public interest'' to a purpose wholly unwarranted by it and to arrive at quite a contradictory result.

I have tried in the light of the judgment of the Supreme Court in H.C. Gargi Vs. State of Haryana, to see whether on the basis of any material it

can be said that the Petitioner is a person of doubtful integrity or he does not enjoy a good reputation and found no adverse entry in the service

record from which such inference is possible, except the information about the complaints in the newspaper report and by Thiru K. Pandurengan.

If true and if the allegations are prima facie accepted, they show misdemeanour on the part of the Petitioner. These complaints, however, alone

cannot be seen. The report of the Vigilance Officer to the Chief Justice was a vital document. Its absence obviously affected the decision of the

Screening committee and the Full Court.

It is not understandable how when the idea was not to punish the Petitioner but to retire him at the age of 58 years and not to give him the

benefit of the extended age of 60 years, all sorts of informations, which were only meant for consideration for formation of opinion of the Court,

have been indicated in the final order and Petitioner has been informed that, ""you are a person of doubtful integrity; you do not enjoy good

reputation and that you have lost your utility because of the poor turnout of work and questionable reputation."" If there can be one so glaringly

putting a stigma, the impugned order is that one. It is needless to say that the law as stated by the Supreme Court in the case of Samsher Singh Vs.

State of Punjab and Another, ) and of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, and the Division Bench judgment

of this Court in the case of S. Rajalakshmi 1993 Writ L.R. 863 (Supra), to pierce the veil and then to find out whether the order has attached any

stigma is not required to be resorted to and it has to be held that for the reason that the Petitioner has been communicated about matters which

touch his integrity a stigma has been attached, he has been subjected to some kind of punishment, a punishment which is not envisaged in the

Service Rules, and, the Petitioner has been made to suffer its evil consequences. It is not possible to ignore such stigmatization and the

consequences thereof. The order has ceased for the said reason to be an order of compulsory retirement, and in the form it has been

communicated become an order of removal from service which attracts Article 311 of the Constitution of India.

The impugned order for the reasons aforementioned is not sustainable and is accordingly fit to be quashed. If the order to retire the Petitioner

at the age of 58 years is quashed, does he continue in service? Should he not be subjected to the review/screening as envisaged in the judgment of

the Supreme Court in All India Judges'' Association and Others Vs. Union of India and Others, It is obvious that mistakes in the procedure

adopted by the Court to retire the Petitioner compulsorily at the age of 58 years have caused hardship to the Petitioner but he cannot be given

extension without his records being reviewed by a Committee of the Judges of the Court headed by the Chief Justice and a decision accordingly by

the Full Court. Setting aside of the order to retire the Petitioner with effect from 1-8-1994 A.N. shall only revive the case of the Petitioner for

being considered whether he should be retired at the age of 58 years or should be continued to superannuate until attaining the age of 60 years.

The course which the Courts should adopt in such a situation is stated in the judgment of a Full Bench of five Judges of the Patna Court in the case

of Syed Iqbal Ali v. State of Bihar 1994 Lab. I.C. 2202. As a consequence of the quashing of the impugned order, the Petitioner''s case is revived

for consideration whether he should be continued beyond the age of 58 years upto the age of 60 years or should be retired at the age of 58 years.

The decision of the Court to retire compulsorily, as pointed out by the Patna Court, becomes effective from the date the officer attains the age of

58 years no matter whether the actual formal order is issued later in point of time. To this extent and in this sense, compulsory retirement of the

judicial officer as envisaged in the review judgment of the Supreme Court in All India Judges'' Association and Others Vs. Union of India and

Others, is different from the concept of compulsory retirement simplicitor under the Service Rules.

The Petitioner has already reached the age of 58 years and for the reason of the pendency of the writ petition, has gone beyond the said age

by quite a few months. Any inordinate delay in not deciding finally and effectively whether to continue the Petitioner beyond the age of 58 years

will, on the one hand, cause embarrassment to the Court, and on the other hand, make the Petitioner suffer more. The only course, in my view, in

such a situation will be to quash the impugned order with a direction to the Respondents to take up forthwith the review/screening/evaluation of the

case of the Petitioner in the light of the directions/judgment of the Supreme Court in the review case, All India Judges'' Association and Others Vs.

Union of India and Others, strictly in accordance with law.

Learned Counsel for the Petitioner has sharply attacked the wisdom of the Court in not following the convention of circulating the confidential

materials to all the Judges of the Court for their opinion and recording accordingly of the views by the Judges of the Court and emphasized that for

the preceding two years of the service of the Petitioner only the Administrative Judge has recorded the opinion and the matter has remained

between the Administrative Judge and the Chief Justice and not before entries were made, views of the other Judges about the performance and

conduct of the Petitioner were taken. There is force in the contention of a Learned Counsel for quite a few reasons. The control upon the

administration of the subordinate Courts is of the High Court and not of a Judge or the Chief Justice of the Court. Where any primacy is given to

the Chief Justice under any scheme of things pertaining to the administration of the subordinate Courts or even otherwise, as respects the

administration of justice, it is so done because he is treated as the first among the equals and is expected to represent the consensus and the

conscience of the Judges of the Court. There is always a chance, although it is not expected of a Judge of the High Court, of some one having

some ideas of an officer, a situation or a thing, which according to him was not good for the administration of justice, but in formation of his ideas

he might have been influenced by some information which was not true or partly true or partly not true. He may be found in certain circumstances

to have acted at a whim and used fiat instead of making a fair assessment of the officer, the situation or the thing which he had found undesirable. In

some courts of the country, as was done in the past in this Court, all confidential reports are circulated to all the Judges of the Court and after their

opinion is taken such information which are adverse to the officer are communicated to him. In some Courts, after the opinion of all the Judges are

taken and more than one entry are seen or opinion of the Judges are found divided, the seniormost Judges of the Court including the Chief Justice

sit to decide and collect materials or the opinions of the Judges to compress the remarks and communicate one Combined remark to the officer

concerned, if necessary. One should not, particularly a Judge of the High Court, feel that he alone is right and others, who are his equals, are

wrong. While he should give his opinion freely and frankly, he should also listen to the opinion of others and should agree to abide by the

consensus of all things than to insist that what he has done should be accepted by all and no one should hold a contrary view. Adoption of a

method which shall be more open than one which is close to one or two - Judges of the Court which shall help the administration of justice and

give no opportunity to any person to say that he has become the victim of the whim or caprice of someone including a Judge or the Chief Justice of

the Court. It is always better that, time-tested conventions are followed and new methods which have the element of arbitrariness are avoided.

Learned Counsel for the Petitioner may not be wholly wrong in attacking the procedure adopted in the assessment of the merit of the Petitioner by

the Judges of this Court.

In the result, the petition is allowed and the impugned Government Order G.O. Ms. No. 834, Home (Courts-I) Department, dated 21-7-

1994, is quashed. The Respondents are directed to proceed to consider whether to retire the Petitioner at the age of 58 years in accordance with

law, without any unreasonable delay. The Petitioner will be entitled to costs. Hearing fee Rs. 1,500/-.