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Judgment
R. Subbiah, J.—The writ petitioner was a Judicial Officer, who entered into the Judicial service in the year 1980 as a Judicial II Class Magistrate and his service was regularised by the Hon''ble High Court of Madras as Judicial II Class Magistrate. Subsequently, the petitioner was promoted as Judicial I Class Magistrate in the month of May 1988. Thereafter, he was recruited as District Munsif through the Tamil Nadu Public Service Commission and he joined as I Additional District Munsif, Erode on 09.11.1988. After going through the regular spell of promotions, he reached the post of District Judge and attained the superannuation on 31.05.2007 at the age of 58 years.
Now the grievance of the writ petitioner is that some of the Judicial Officers who are all juniors to him have been granted extension beyond the age of 58 years, till the age of 60 years. Though he had discharged his duties by maintaining absolute dignity and devotion with integrity and disposed of large numbers of cases in all branches of law his name was not considered for no reasons. Hence, the petitioner has come forward by way of filing this present writ petition with a prayer to issue a Writ of Certiorarified Mandamus, to call for the records from the 2nd respondent in its proceedings in ROC. No. 2A/2007-Con.B2, dated 23.05.2007 and quash the same and consequently, direct the respondents to permit the petitioner to continue in service till the age of 60 years.
Resisting the prayer of the writ petitioner, the Registrar General of the High Court of Judicature at Madras filed a counter affidavit on behalf of the 2nd respondent by raising the following grounds:
i) The petitioner was allowed to retire on superannuation by the impugned order dated 23.05.2007, he had submitted his representation only on 29.04.2008 i.e., after 11 months from the date of superannuation. Even after the rejection of the representation by the second respondent on 14.05.2008, he had waited for about 3 months to file this present writ petition. Thus, totally, there is a delay of about 15 months in approaching this Court. When considering the length of service that may be available on extension, is only 24 months, the delay in approaching this Court after 15 months is a delay of substantial nature. Therefore, the writ petition has suffered by latches, which is not properly explained by him.
ii) The annual confidential reports of the petitioner for the last five years would disclose that there were adverse remarks with reference to the disposal of cases and he was found wanting in achieving the norms etc., In spite of communication of the adverse remarks entered against him in his annual confidential reports, he did not show any interest to set right his position.
iii) There were various complaints of corruption and favouritism received against the writ petitioner by the Vigilance Cell of the High Court. However, most of them have been ordered to be closed as "no further action was warranted".
iv) The seniority of an Officer is not a criterion, the Administrative Committee in its wisdom and discretion analysed the records of each of officers who were attaining the age of superannuation at the age of 58 years as on 31.05.2007 and 30.06.2007 respectively and reviewed for their continuance in service beyond the age of 58 years and upto 60 years or otherwise.
v) The decision not to extend the service of the petitioner is not a stigma and the petitioner cannot be aggrieved by such a decision.
Learned Counsel for the petitioner submits that though the juniors to the petitioner were granted extension beyond the age of 58 years, the name of the petitioner has not been considered for extension for no reason. The representation dated 29.04.2008 made by him for extension permitting him to continue in Tamil Nadu State Judicial Service upto 60 years was also rejected by the second respondent merely stating that "the representation submitted by him considered by the High Court and the same has been rejected". The Administrative Committee has not considered the extension of the writ petitioner on the main reason that there is a short fall in the disposal of the cases and complaints with regard to the corruption as entered in the annual confidential reports of the writ petitioner. In this regard, learned Counsel for the petitioner by going through the contentions made in the counter, pointed out that even in the counter affidavit filed by the second respondent, it has been mentioned that the petitioner had not reached the norms in the year 2002, so far as the rest of the years of service are concerned which ought to have been taken into consideration was not found out as against the petitioner. Similarly, it was further contended by the learned Counsel for the petitioner that it has been admitted by the second respondent in the counter that the complaints of corruption and favouritism received against the petitioner by the Vigilance Cell of the High Court have been ordered to be closed as "no further action was warranted" and under such circumstances, the case of the petitioner should have been considered for extension.
In this regard, learned Counsel for the petitioner made reference to a judgment of the Supreme Court in W.P. (Civil) No. 1022 of 1989 All India Judges'' Association Vs. Union of India and others, wherein guidelines were issued with regard to the retirement age of judicial officers to 60 by December 1992.
Learned Counsel for the petitioner has also made reference to the judgment reported in All India Judges'' Association and Others Vs. Union of India and Others, wherein it has been held that the benefit of extension to those who, in the opinion of the respective High Courts, have a potential for continued useful service. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officer''s past record of service, character rolls, quality of judgments and other relevant matters. Thus, by referring the above said judgments, learned Counsel for the petitioner has also admitted that the extension of service is not an automatic but on the proper assessment of the Administrative Committees of the respective High Courts with regard to the potential for continued useful services of the officer.
Further, learned Counsel for the petitioner brought to the notice of this Court an order passed by this Court in W.P. No. 16317 of 2007 by a Division Bench of this Court which was filed by a Judicial Officer on the grounds similar to that of the petitioner herein. In the said case, the Division Bench of this Court, by going through the records of the writ petitioner therein, had come to the conclusion that there was nothing adverse against the petitioner with regard to his knowledge of law, quality of judgment, conduct inside and outside Court, reputation (Honesty, integrity & impartiality) on the other hand, either good or satisfactory. So far as the disposals of cases are concerned, nothing adverse has been reflected in the character role except for a quarter of a year which was taken into consideration at the time of granting him promotion to the higher post. Thus, the Division Bench of this Court has come to the conclusion that no ground had been made out on behalf of the respondent to justify the decision dated 25.01.2007, and then remitted the case of the writ petitioner for extension of his service beyond 58 years and thus allowed the prayer.
Learned Counsel for the petitioner also contended that in the instant case also out of five years which was taken into consideration only in the year 2002, there is a short fall of the cases, even the complaints made against the petitioner were also ordered to be closed stating that "no further action was warranted". While that be so, the prayer of the petitioner ought to have been considered for extension following the decision in W.P. No. 16317 of 2007, dated 22.07.2008.
Per contra, learned Counsel for the second respondent produced the original records in respect of Judicial Officers inclusive of the petitioner for their further continuation beyond the age of 58 years upto 60 years and submitted that the perusal of the file would show that the petitioner did not reach the norms and there is a short fall in disposal of cases by him and in spite of the warning given by the High Court in the year 2001-2002 itself by communicating the adverse remarks against him in his annual confidential report, the writ petitioner did not show any interest to set right his position. That apart, there were various complaints received against him by the Vigilance of the High Court, and no doubt most of the complaints have been ordered to be closed but however when the question of extension is concerned, the reputation of the Judicial Officers plays a vital role in granting extension. Therefore, the Administrative Committee has correctly considered the number of complaints received by the second respondent as against the petitioner in assessing the potential for continued useful service. Further, learned Counsel for the second respondent contended that the discretion of the Administrative Committee cannot be questioned, unless there is a mala fide. In view of the adverse remarks entered in the annual confidential report as against the petitioner, no grievance can be entertained by the petitioner that the Administrative Committee has not justly considered the extension of service in respect of the petitioner.
In this regard, learned Counsel for the second respondent in support of his submission relied upon a judgment reported in Supreme Court Advocates-on-Record Association and another Vs. Union of India, wherein a direction was given to reconsider the appellant''s promotion to the post of Air Vice Marshal in view of the fact that the adverse remarks have been expunged in the year 1989. Thus, by relying upon the said judgment, the counsel for the second respondent contended that in view of the adverse remarks, the extension of service was correctly negatived by the second respondent.
It is further submitted that the scope of the judicial review of the assessment of the Committee in the absence of any mala fide or arbitrariness is very limited. In this regard, learned Counsel has also relied upon a judgment reported in State Bank of Bikaner and Jaipur and others Vs. Jag Mohan Lal, wherein the requisition for extension of service was rejected. Under such circumstances, the scope of the judicial review of the assessment of the Committee in the absence of any mala fide or arbitrariness is very limited. In the above judgment, the Apex Court held as follows:
9.It seems to us that the High Court has misconstrued the legal right claimed by the respondent. The right to get extension of service beyond the age of superannuation has received consideration of this Court in several cases. In State of Assam and Another, etc. Vs. Basanta Kumar Das, etc. etc., ; after reviewing almost all the earlier decisions Kailash Chandra Vs. Union of India (UOI), ; Bishun Narain Mishra Vs. State of Uttar Pradesh and Others, and The State of Assam and Others Vs. Premadhar Baruah and Others, etc., , this Court said: (SCR p. 165 : SCC p.467, paras 16 and 18)
A government servant has no right to continue in service beyond the age of superannuation and if he is retained beyond that age it is only in exercise of the discretion of the government....
The fact that certain persons were found fit to be continued in service does not mean that others who were not so found fit had been discriminated against. Otherwise, the whole idea of continuing only efficient people in service even after they had completed 55 years becomes only meaningless.
That apart, learned Counsel for the second respondent has also relied upon a judgment of this Court in S. Venkataraman Vs. Union of India (UOI), , wherein it has been held that refusal to engage or extend period of service would not constitute stigma - nor it is an infraction of privilege or amounts to punishment.
Thus, by relying upon the above judgments, learned Counsel for the second respondent submitted that granting of extension is purely a discretion of the Administrative Committee based on their subjective satisfaction, unless there is mala fide, and to the same cannot be questioned. In the instant case, a perusal of the record would show that there are lot of complaints as against the petitioner and in addition, there was a shortfall in disposal of the cases. Under such circumstances, there is no justification in considering the prayer of the writ petitioner.
Learned Counsel for the second respondent has also contended that the present writ petition is hit by latches because the petitioner was allowed to retire on 23.05.2007 thereafter, he waited for about 11 months to submit his representation on 29.04.2008. Secondly, even after the rejection of the representation by the second respondent on 14.05.2008, he had waited for about three months to file this writ petition without any acceptable reason, explaining the delay. Considering the length of service that may be available on extension is only 24 months, the delay in approaching this Court after 15 months is a delay of substantial nature and this was not properly explained and on that ground also the writ petition is liable to be dismissed.
By way of reply, learned Counsel for the petitioner contended that the judgments relied on by the learned Counsel for the second respondent will not apply to the facts of the present case since the issue involved in this present writ petition is granting of extension of the Judicial Officer who attained the age of superannuation at the age of 58 years. The judgments relied upon by the learned Counsel for the second respondent are in respect of promotion cases, arising out of different circumstances, in respect of the other Governmental Organisations and therefore, those decisions will not apply. Under such circumstances, this Court can consider the case of the writ petitioner and allow the prayer sought for by the writ petitioner.
We have heard the submissions made on either side and perused the materials available on record.
On perusal of the original records filed by the Vigilance Cell of the High Court pertaining to the writ petitioner are as follows:
Place of Work
ROC.No.
Complainant
Allegation
Result/Remarks
PDJ, Pudukottai
506/2005
Public of Pudukottai
Corruption
No action/CJ/28.03.2006
PDJ, Pudukottai
775/2005 &
740/2005
Sreenivasan,S.C.Street, Andakulam
Corruption
No further action
PDJ, Pudukottai
916/2005
414/2006
(2nd copy)
(unsigned)
S.M.d.Yusouf
Corruption
No action/CJ /29.08.2006
PDJ, Pudukottai
285/2006
C.138/06
M.P.Muthuveerayan,
Alangudi
Corruption
Registrar(V) to hold Discreet Enquiry /CJ/27.09.06
DJ, Dindigul
692/2006
Court Investigation Branch, Dindigul
Corruption
No Action/CJ/18.12.2006.
DJ, Dindigul
777-A/2006
Rajeswaran,
Liberation Panthers Party
Favouritism
No action /CJ/3.1.2007
DJ, Dindigul
149/2007 &
128/2007
General Public
Advocates, Dindigul
Corruption
Pending Orders
Similarly with regard to the disposal of the cases also, we find that there is a short fall. It is no doubt that the complaints are ordered to be closed stating that no further action is warranted so far as the extension of service is concerned, the complaints received as against an Officer plays a vital role to decide the potential for continued useful service as held by the Apex Court in All India Judges'' Association and Others Vs. Union of India and Others, . In the instant case, the complaints received against the writ petitioner seems to be in plurality. So far as the writ petition in W.P. No. 16317 of 2007 as decided by this Court, the position is not similar to that of the writ petitioner herein. It is a basic principle that each case has to be decided based on the facts and circumstances of each case. So far as this case is concerned, we do not find any justification in accepting the prayer of the writ petitioner in view of the number of complaints received against the petitioner. Similarly, we also find that there was a delay of 15 months in filing writ petition. The writ petitioner even by way of extension, is eligible to get only further period of two years. Under such circumstances, the petitioner ought to have filed the writ petition at the earliest point of time and he waited almost the period of 11 months to file the representation which was rejected on 14.05.2008. Thereafter, he waited for another three months and filed this present writ petition. The admission of the writ petitioner clearly shows that he is making effortless attempt to take his chance and the delay was not properly explained in approaching this Court. Under such circumstances, we feel that there is no proper explanation from the side of the writ petitioner for filing the writ petition belatedly, on this ground also the writ petition has to fail. Similarly, we find no stigma in not extending for his extension of service as held by this Court in S. Venkataraman Vs. Union of India (UOI), . Looking at in any angle, no case has been made out by the petitioner warranting this Court to allow the prayer made in the writ petition. Hence, the writ petition is dismissed. No costs. Consequently, M.P.(MD) Nos. 1 and 2 are closed.