Sri. Anwar Ansari vs The State of Karnataka and The High Court of Karnataka

Anand Byrareddy

Heard the learned counsel for the parties. The facts of the case are as follows :

The petitioner had joined the Karnataka State Judicial Service as Munsiff and JMFC on 5.12.1988. Having regard to merit and seniority, he was promoted as Civil Judge (Senior Division) during the year 2001. He has served at various places in the State of Karnataka, without incident. It transpires that he was working as Cavil Judge (Senior Division), Basavanabagewadi, Bijapur District since 14.11.2008. The petitioner claims that there were no antecedents or any adverse circumstances in his entire career as a judicial officer. There is no indication of any want of efficiency or diligence in the discharge of his official duties. And there was certainly no circumstance which rendered the continuation of the petitioner in service as being opposed to public interest.

In the above background, the judicial work of the petitioner was withdrawn by a letter dated 16-5-2009 and by a Notification dated 23-6-2009, the petitioner, along with 14 other judicial officers, were permitted to be compulsorily retired from service, in public interest - in terms of Sub-rule (4) of Rule 285 of the Karnataka Civil Service Rules (Hereinafter referred to as the ''KCSRs'' for brevity). Accordingly, he was relieved from service on the afternoon of 24.6.2009. He was aged 52 at that point of time.

The petitioner had made a representation to the second respondent on 26.5.2009, seeking reconsideration of the order. The same not having evoked any response, the present petition is filed.

It is contended that the Notification, by which the petitioner has been permitted to retire, purportedly in public-interest, is clearly illegal and is in contravention of Article 311 of the Constitution of India. The KCSRs are framed in exercise of the powers conferred under the Proviso to Article 309. They are subject to other provisions of the Constitution of India. In terms of Article 310, a Civil Servant holds office during the pleasure of the Governor of the State. Article 311 prescribes the conditions which are to be satisfied before the dismissal of a Civil Servant or removal from service, after affording a reasonable opportunity of hearing. The combined reading of Articles 309, 310 and 311 indicates that the Rules made thereunder are subject to doctrine of pleasure, which itself, is subject to the limitations imposed under Article 311. Therefore, while invoking Rule 285(4) of the KCSRs, it is obligatory on the part of the competent authority to follow the procedure prescribed under Article 311 of the Constitution of India and therefore, it is contended that the impugned Notification is violative of the principles of natural justice.

It is urged that the meaning ordinarily attributed to the word "dismissal" is "to let go" or "to be rid of or "to dismiss", in other words, "to take away from the position occupied". Therefore, the effect of removal or dismissal of one from his office is to discharge him from that office. This would take within us fold premature retirement. By that token of reasoning, it is urged that a reasonable opportunity should have been given to the petitioner to show-cause against the proposed action. It is contended that the petitioner has a legal right to continue in service as a Judicial Officer till he attains the age of 60, the age of superannuation, subject to the conditions prescribed under Rule 95-A of the KCSRs. In other words, the second respondent, as on the relevant date, ought to have assessed and reviewed the petitioner''s record for continuing his service beyond 58 and therefore, review of the petitioner''s service, prior to his attaining the age of superannuation, is a direct deprivation of his right to continue as a Judicial Officer as the age of superannuation of Civil Servants in the State of Karnataka is 60 since the year 2008. Whereas the State has chosen to apply the Rule mechanically in purportedly permitting the petitioner to retire in public interest on a mere recommendation by the second respondent. Compulsory or Premature Retirement is one of the known modes of termination of employment at the discretion of the appointing authority. It is a determination of service prematurely. The anomaly is that while invoking Rule 285(4) of the KCSRs, no opportunity is granted to the petitioner; Whereas in respect of imposition of the punishment of dismissal, removal or compulsory retirement under Rule 8(vi) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, (hereinafter referred to as '' the 1957 Rules'' for brevity) art opportunity is given to such persons by conducting a departmental inquiry. A person, who is guilty of misconduct, has a greater protection than an individual against whom no allegation is made. This is a glaring disadvantage. For if a person, such as the petitioner, is prematurely retired without indicating the blame or reason for such treatment, under the guise of invocation of Rule 285(4) of the KCSRs, which is clearly arbitrary and falls foul of the due process of law as envisaged under Article 311 of the Constitution. It is also contended that Rule 285(4) enables the appointing authority to prematurely retire a Government Servant working in a substantive post, if it is necessary in public interest by following the guidelines in applying the Rule. But, insofar as the Judicial Officers are concerned, no such guidelines are framed or followed. Therefore, the action initiated by the second respondent is clearly in contravention of the principles of natural justice. The law as laid down by the apex court is well settled- to the effect that though no express provision is made in following the principles of natural justice, compliance with the same would be implicit, where an affected person suffers civil consequence of an order passed against him, which would be prejudicial to his interest. The present impugned order is certainly prejudicial to the interest of the petitioner and is clearly in violation of the principles of natural justice. The impugned proceedings are also in contravention of Rule 285 of the KCSRs inasmuch as three months'' salary in lieu of three months notice has not been paid along with the order of retirement. The law is also settled insofar as the interpretation of the scope of Rule 285, of the KCSRs is concerned, wherein the apex court has pronounced that the age of retirement of a Judicial Officer cannot be compared with that of a Government Servant and the Judicial Officer has a statutory right to continue in service till he attains the age of superannuation at 60, subject to satisfying the test of suitability. The review contemplated at the age of 58 is for purposes of extending the age of superannuation from 58 to 60 and not for the purpose of compulsory retirement of a Judicial Officer. The law does not permit a career review before a Judicial Officer attains the age of 58.

It is also pointed out that the second respondent in its administrative jurisdiction, has failed to evolve any Rules in exercise of power vested under Article 235 of the Constitution of India, in the absence of which, the decision arrived at is irrational and in violation of the principles of natural justice. The petitioner being picked up for compulsory retirement, would smack of arbitrary action in the absence of any reasons assigned.

The learned Counsel would seek to place reliance on the following authorities in support of the contentions:-

Krishena Kumar Vs. S.P. Saksena and Others, ,

Baldev Raj Chadha vs. Union of India and others, 1980 STPL (LE) 10196 SC,

J.D. Srivastava Vs. State of M.P. and Others, ,

Brij Mohan Singh Chopra Vs. State of Punjab, ,

N.C.Dalwadi vs. State of Gujarat, AIR 1987 (3) SCC 611,

Registrar, High Court of Madras Vs. R. Rajiah, .

Ishwar Chand Jain Vs. High Court of Punjab anfd Haryana and Another,

M.S. Bindra Vs. Union of India and Others,

Rajat Baran Roy and Others Vs. State of W.B. and Others, ,

State of Gujarat Vs. Umedbhai M. Patel,

State of Uttar Pradesh vs. Vijay Kumar Jain. AIR 2002 SCW 1171,

Dev Dutt vs. Union of India, AIR 2008 SCW 3486,

Kesar Enterprises limited vs. State of Utter Pradesh, AIR 2011 SCW 4031,

Rajiv Ranjan Singh ''Lalan'' vs. Union of India, 2006 (6) SCJ 440,

Y.Ganga Raju and others vs. The Railway Board and others, 1983(1) SLR 686

Madan Mohan Choudhary Vs. The State of Bihar, ,

Krishna Kamal Ghosh vs. Union of India, 1980(1) SLR 531.

K.Veera Chary vs. The High Court of Andhra Pradesh, WP 16437 and 18123/2007

On the other hand, the learned Government Pleader contends that the complaint of the petitioner to the effect that his premature retirement is punitive in nature, under the guise of public interest or that it is arbitrary and in violation of principles of natural justice, as being incorrect. It is contended that the compulsory retirement of the petitioner is not violative of Article 311 of the Constitution of India, as it contemplates dismissal, removal or reduction in rank of a person employed in a Civil capacity under the Union or the State Government, the impugned action is neither an order of dismissal or reduction in rank and hence Article 311 cannot be pressed into service.

It is contended that under Rule 285 (4) of the KCSRs, the right to continue in service till attaining the age of superannuation is no longer available. A Government servant can be compulsorily retired from service on the authority forming an opinion that continuing him in service may not be in the public interest. This power is apart from the power available under Rule 95A of the KCSRs.

It is asserted that the expressions "dismissal" or "removal" cannot be construed as "retirement". On the other hand, compulsory retirement carries with it no stigma or implication of misbehaviour or incapacity, whereas this is implicit in an order of dismissal or removal from service. Yet another distinguishing feature of compulsory retirement is that, it carries with it all the service benefits to which the person so retired would be entitled.

It is also pointed out that what was provided for under Rule 95-A and Rule 285(4) are in respect of different situations and were meant to be complementary. Rule 95-A addressed the pitfalls of ineligibility that a Government servant may have incurred during his service, may be oil account of indiscipline or incapacity. Compulsory retirement under Rule 285(4) on the other hand is an incidence of service and falls entirely outside the scope of Article 311 of the constitution.

It is further contended that the tenor of Rule 285(4) does not envisage the issuance of a notice or the holding of a domestic enquiry before invoking the same, hence the plea of violation of principles of natural justice or the violation of Article 311 of the Constitution is not tenable. It is also contended that the very aspect of continuing a Government servant in service till superannuation depending as it does on various other factors such as desirability and incurring of ineligibility by the Government Servant during service, retiring the petitioner under Rule 285 (4) by applying the test of desirability cannot be frowned upon and nor does it infringe upon any right vested in the petitioners as the right to retire a Government Servant compulsorily, is absolute.

It is contended that since the consequences directly spring from an order which is passed on the objective decision of the Competent Authority after due application of mind and also where the civil consequences complained of are not the result of any penalty, the rule of natural justice does not come into play. If an enquiry is made, it is more for enabling the authority passing the order to form an opinion that the retirement of the concerned is necessary in public interest. Such enquiry confers no right on the Government Servant to ask for an opportunity to meet the grounds on which a decision is taken to retire him in public interest. The power conferred on the Government cannot be said to be either unguided or uncontrolled in view of the provisions of Sub-Rule (4) of Rule 285 of the KCSRs and the same is not violative of Article 14 of the Constitution of India.

It is further contended by the respondents that what is required of a competent authority under Rule. 285 (4) is to form an opinion on an objective assessment, in public interest, of the desirability or otherwise of continuing the Government Servant in service. The absence of any rules or guidelines is not fatal to the decision arrived at in so forming an opinion. Where the Rule is silent as to the mode or test to be adopted in examining the desirability of continuing the petitioners in service, the competent authority is tree to adopt or follow whatever procedure they may deem fit. The culmination of such exercise under Rule 285 (4) being only "the retirement" of the official concerned, which is not a punishment, the method or basis of forming an opinion by the Competent Authority becomes irrelevant. In the absence of allegations of mala fides, a Government Servant cannot ask for material, on the basis of which, a conclusion was arrived at, as principles of natural justice come into operation, only when a civil servant is proceeded against in an enquiry which could lead to imposition of punishment. In view of fact that Notification No. DPAR/25/SHC/2009 dated 23.06.2009 is issued in the public interest and the, same being in accordance with law, the petitioners are not entitled for quashing of the same, much less, for a direction to reinstate them with continuity of service with all other consequential benefits.

It is also contended that the High Court of Karnataka had constituted a Committee for the purpose of screening the performance of judicial officers of the State Judiciary, for their continuation in service beyond 50 years and before such officers attained 58 years, under a Notification dated 28.9.2005. The said Committee having submitted its report, the same has been accepted by the Full Court of the High Court by its resolution dated 25.4.2009. It is therefore contended that the petition be dismissed as being without any merit.

The following authorities are cited in support of the above contentions:-

i) Shiv Dayal Gupta vs. State of Rajas than and another, 2006 SCC (L&S)1230,

ii) Allahabad Bank Officers Association and another Vs. Allahabad Bank and others, ,

iii) Pyare Mohan Lal Vs. State of Jharkhand and Others, .

iv) Gian Singh Mann Vs. High Court of Punjab and Haryana and Another, ,

v) All India Judges'' Association and others vs. Union of India, 2002 (3) KLJ 26.

vi) Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, .

By way of reply, the learned counsel for the petitioner, would contend that after the matter was heard finally and reserved for final orders, the State has chosen to file additional pleadings -which is highly irregular and unfair. The learned counsel would seek to meet those pleadings treating the same as arguments canvassed.

It is contended that the procedure adopted by the High Court, culminating in the impugned notification dated 23.6.2009 is contrary to the directions of the apex court and outside the powers of this court on its administrative side. It is urged that the proceedings said to have been initiated pursuant to the Notification dated 28.9.2005 is contrary to law. The decision of the apex court referred to in the Notification does not empower the High Court to constitute a Committee to review the performance and confidential records of all judicial officers on attaining the age of 50 years and 55 years or on completing 20 years of qualifying service to decide on the suitability to continue the judicial officers in service

The decision of the apex court in the judgment dated 21.3.2002 (All India Judges Association and Others vs. Union of India), had modified the directions granted earlier by restraining the review of performance of the Judicial Officers for their continuance in service beyond 58 years before one attains the age of 58 years, by following the procedure for compulsory retirement under the Service Rules applicable to such officer and to give him the benefit of the extended age of superannuation from 58 to 60, only if he is found fit and eligible to continue in service and if he is not so fit and eligible, he could be compulsorily retired on attaining the age of 58. It is pointed out that in the said judgment of the Apex Court, it is reiterated that, subject to the modifications including the above, all other recommendations of the Shetty Commission are accepted. It is thus contended that Recommendation - 21.39 was no longer relevant and could not be pressed into service by the High Court. This view is supported by a Full Bench decision of the Andhra Pradesh High Court in the case of K. Veera Chary Vs. The Hon''ble High Court of Andhra Pradesh and Government of Andhra Pradesh, Law (LA and J.Sc.F.) Department, . The learned counsel would thus contend that the Notification dated 28.9.2005 is misconceived and would not be applicable to the petitioners as no review can be undertaken of a judicial officer at 50 or 55 years of age or on completion of 20 years of service.

It is further pointed out that the minutes of the meeting dated 15.4.2009 and 17.4.2009 would indicate the agenda item as being "to consider the matter with regard to screening of judicial officers at the age of 50 and 55 and the resolution is to consider the work performance, confidential records etc., of the judicial officers who have attained the age of 50 and 55 as on 31.12.2008". It is contended that the petitioner was neither 50 nor 55 as on 31.12.2008 and hence, the exercise was not warranted.

It is further pointed out that the resolution of a Committee of Judges, which has been adopted by the Full Court at its meeting dated 25.4.2009, does not refer to the individual review of performance of the petitioner for his continuance beyond the age of 58. The individual review of the assessment of the confidential reports, performance etc., is also not reflected therein. Recommendations thus cannot be substantiated by producing the vigilance report and remarks in the confidential records before this court at the hearing stage. In other words, the impugned order should withstand the legal scrutiny independently and cannot be supplemented in the form of affidavits or written submissions at the stage of final hearing and when the case is reserved for judgment.

It is also contended that in terms of Paragraph 21.40 of the Shetty Commission Report, there is a suggestion that all the High Courts should frame Rules specifying the age of superannuation without any condition and no such rule has been framed insofar as the State of Karnataka is concerned. Hence, the review of performance of Judicial Officers can only be undertaken at the age of 58 for their continued, utility up to the age of 60. It is further pointed out that the vigilance record and the report insofar as the petitioner is concerned, would indicate that the representations received against the petitioner have been closed by the Chief Justice.

In the light of the above rival contentions and on a perusal of the record that is placed at the disposal of the court, the points that would arise for consideration are as follows:-

i) Whether the Notification dated 28.9.2005 was invalid as being contrary to the law as laid down by the Apex Court ?

ii) Whether the impugned notification by which the petitioner was compulsorily retired from service in terms of Rule 285(4) of the KCSRs is actually punitive in nature, though couched in innocuous language as being compulsory retirement, on being found unsuitable to be continued in service in public interest?

iii) Whether it is no longer permissible for the competent authority to undertake a review of a Judicial Officer''s performance, either at the time, the officer attains the age of 50 or 55 or on completion of the 20 years of service?

iv) Whether the exercise was permissible insofar as the petitioner was concerned?

In addressing the above, it is not necessary to address the several decisions cited above, as the same have been considered in an identical petition, heard along with the present petition. In the opinion of this court, it is sufficient if the position that emerges from the decisions of the Supreme Court in the following decisions is taken into consideration, namely, All India Judges'' Association Vs. Union of India and others, (Hereinafter referred to as the AIJA-It for brevity). All India Judges'' Association and Others Vs. Union of India and Others, (hereinafter referred to as '' the AIJA-2'' for brevity) and All India Judges Association and Others Vs. Union of India (UOI) and Others, (hereinafter referred to as '' the AIJA-3'' for brevity). The age of superannuation of judicial officers in the country was to be 60 years as held in the first of the above decisions, namely, in AIJA I. In AIJA-2, the Supreme Court affirmed its earlier decision and further directed that the enhancement from 58 to 60 years would be subject to the High Court finding an officer fit to be of continued utility for judicial, service even after 58 years of age or else he should be compulsorily retired at 58. In AIJA-3. it was pointed out that pursuant to the directions issued in AIJA-2, the Government of India, by a resolution constituted the First National Judicial Pay Commission under the chairmanship of Mr. Justice K.J.Shetty and one of the terms of reference to the said Commission was to examine and recommend in respect of minimum qualifications, age of recruitment, method of recruitment etc., for judicial officers. A preliminary report was submitted on 11.11.1999. The State Governments and the Union Territories were directed by the Supreme Court by an order dated 14.12.1999 to send the responses to the Union of India so that it could co-relate the responses and indicate its own stand on the recommendations of the Commission. The recommendation of the Shetty Commission in respect of retirement age of judicial officers was from 60 to 62 years apart from several other recommendations that were made in relation to other conditions of service. Insofar as this recommendation was concerned, the Supreme Court, in AIJA-3, held as follows:-

The Shetty Commission had recommended that there should be an increase in retirement age from 60 to 62 years. In our opinion this cannot he done for the simple reason that the age of retirement of a High Court Judge is constitutionally fixed at 62 years. It will not be appropriate, seeing the constitutional framework with regard to the judiciary, to have an identical age of retirement between the members of the Subordinate Judicial Service and a High Court. As of today, the age of retirement of a Supreme Court Judge is 65 years, of a High Court Judge it is 62 years and logically the age of retirement of a judicial officer is 60 years. This difference is appropriate and has to be maintained. However, as there is a backlog of vacancies which has to he filled and as the Judge strength has to be increased, as directed by us, it would be appropriate for the States in consultation with the High Court to amend the service rules and to provide for reemployment of the retiring judicial officers till the age of 62 years if there are vacancies in (he cadre of the District Judge. We direct this to be done as early as possible.

Therefore, from a reading of the above, it is clear that the Notification indicating that the judgment aforesaid permitted a review of the performance and confidential records of all the judicial officers in the cadre of District Judges, Civil Judges (Senior Division) and Civil Judges (Junior Division) on their attaining the age of 50 years and 55 years or completing 20 years of qualifying service etc., as provided under Sub-section (4) of Section 285 of the KCSRs is clearly not reflected in the aforesaid judgments.

On the other hand, in AIJA-1, with reference to the issue pertaining to the age of retirement, it was held as follows:-

One of the issued debated at the hearing related to the age of retirement. The Constitution has fixed the age of retirement of Judges in the High Courts and the Supreme Court at 62 and 65 years-respectively. There is no constitutional prescription of the age of retirement of the members of the subordinate judiciary and in India that is controlled by the relevant rules obtaining in the different States and Union Territories and it is 58 years at present excepting in the State of Kerala where the age of superannuation is 55 years for all Stale Government employees including the members of the State Judicial Service.

It is the claim of the petitioners that the age of retirement of the officers of the subordinate judiciary should be fixed at 60 years inasmuch as the basic qualification for recruitment to the service requires every officer to have in the minimum a bachelor''s degree in law which is acquirable after becoming a graduate. Thus, while for normal civil service a graduate is eligible, for recruitment to the judicial service a minimum further period of three years becomes necessary to acquire the basic qualification. In many of the States and the Union Territories, for recruitment to the post in the judicial service a basic period of experience at the Bar is a prerequisite. Thus, while for the civil service age of recruitment varies between 25 and 28 years, for judicial service at the basic level most of the States permit entry up to the age of 32. In some of the States where direct recruitment of indicial officers for an in between stage is permitted, the age of entry is even up to 35 years. Article 233 (2) of the Constitution provides:

A person not already in service of the Onion or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

Keeping this constitutional requirement in view in respect of direct recruitment for District Judge, entrance is permitted up to a later age in many States. Thus at the point of entry into service there is a marked distinction between civil service and tin judicial service.

Notwithstanding these special features the history of the service would show that no distinction has been maintained in regard to the age of retirement between officers of the civil service and the officers of the judicial service and over the years the same rule has been applied to both. This Court in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., pointed out:

In regard to the age of superannuation, it may ha said prima facie that rules of superannuation which are prescribed in respect of public service in all modern States are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do. They are not fixed on any ad hoc basis and do not involve the exercise of any discretion. They apply uniformly to all public servants falling under the category in respect of which they are framed....

Nature of work is thus one of the considerations relevant to fixing the age of retirement:

There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge. The work of the judicial officers is usually sedentary while that of the executive officers involves a lot of physical movement. This is particularly so in the lower cadres of both the services, In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical. Experience is an indispensable factor and subject to the basis physical fitness with growing age experience grows.

As already indicated, retirement age for High Court Judges is 62 years. A sizable portion of the manning in the High Court is done by elevating District Judges and those who are elevated continue up to the age of 62 years like directly elevated members of the Bar to the High Court.

There are certain services in the States where retirement is fixed at the age of 60 years faking into account the special type of work the officers ore called upon to perform. For instance, throughout the country teachers of universities are allowed to serve up to 60 years of age. Employees under some of the corporations also go up to the age of 60. Scientific Research officers are also allowed in many cases the benefit of 60 year age of retirement.

Mr. Poti for the State of Kerala raised serious objection to raising the age of retirement of judicial officers to a common level of 58 years by contending that this would lead to unrest in the other services of the State and everyone would press for the age of retirement being enhanced to 58. In face, Kerala had once experimented with the enhanced age for all and had reverted back to the age of 55. The main ground raised by Mr. Poti to resist the proposal of enhancement is that in the State of Kerala the level of literacy is high and unemployment is acute. If the age of retirement is enhanced the scope of the unemployed to get employment would he adversely affected We are not impressed by the submission of Mr. Poti on this score. The total number of judicial officers of every category in the Stale may not exceed 3,000 or so. This certainly is not such a big number that might create unemployment problem in the event of the age of superannuation being brought to the all India level of 58 or even enhanced to a higher limit.

The Law Commission in if, 14th Report dealt will ''his aspect at page 213 of the report and said:

There is yet another reason why the question of the age of retirement of the subordinate judiciary should be treated differently from that in other State Services. As noticed earlier a judicial officer enters service at a comparatively higher age than a recruit to the executive or administrative services. It would, therefore, be proper that the retirement age of a judicial officer should be relatively higher than that of an executive officer, so as to enable him to serve for the full number of years if he retains his fitness and capacity of work till he reaches such higher age.

We, therefore, recommend that the retirement age of the subordinate judiciary in all States should he raised to 58 years. Such a treasure will tend in raise the tone and morale of the judicial service as a whole. It will also he consistent with our recommendation to raise the age of retirement of High Court Judges to 65 years.

The recommendation that superannuation should he fixed at $8 for judicial officers was made at a time when in public services retirement was prescribed at the age of 55. Considering the enhancement of the longevity of human life and taking all other relevant considerations into account, all the States and all the Union Territories have now enhanced the age of retirement to 58 years excepting, as already pointed out, in the case of the State of Kerala. We are of the view that on the logic which was adopted by the Law Commission and for the reasons which we have indicated the age of retirement of judicial officers should be 60 years. We accordingly direct that appropriate alterations shall be made in the Rules obtaining in the States and Union Territories in respect of judicial service so as to fix the age of retirement at 60 years with effect from December 31, 1992. We have given it long period so that appropriate amendments may be made in the meantime.

In AIJA-2, which arose out of review petitions filed by the Union of India and various States raising general objections as well as objections to the specific directions given by the Supreme Court in AIJA-1, the objection, that was raised insofar as the retirement age up to 60 years, was to the effect that late entry into service is not peculiar to judicial service and that there were a number of services like, medical, engineering, teaching, where entry into Government Service is made at a late stage and hence any deviation on the ground of late entry may have implications for other services also. Therefore, in services where entry is at a late stage, the interests of the Government Servants are protected by long specified number of years to be added to the qualifying service for the purpose of determining the pension. Further that the judiciary alone was not doing sedentary work and there are other services like Central Secretarial Services, which also performs sedentary work and therefore, it may not be a valid consideration for laying down a longer retirement age and if the age of retirement of the members of the judiciary is changed, on grounds as above, other services would also clamour for the same. In dealing with the said objection, the Supreme Court in AIJA-2 held as follows:

(iii) Superannuation Age: The objection to the direction for enhancement of the superannuation age of all the subordinate judicial officers up to 60 years, is firstly on the ground that the determination of the superannuation age us a matter of policy of the executive and hence the said direction is in violation of the basic structure of the Constitution which envisages separation of powers between the three organs of the state. The further objection is that the distinction made between the members of the judicial service and those of the other services on the ground of the late entry into the service and the sedentary nature of the work of the former is an error on the face of the record. It is contended that members of the other services like the College Teachers, Doctors. Engineers, have also to spend longer period in acquiring qualifications required for appointment to their respective services and almost all officers around the age of superannuation reach the highest level and usually carry on sedentary duties.

This argument misses the point that the longer period required for acquiring the necessary academic qualifications is only one of the grounds on which the enhancement of the superannuation age is directed. Even after the acquisition of the relevant academic qualifications, a minimum practice at the Bar is in most of the States, a pre-requisite for recruitment to the post of the Judge even at the lowest level. There is no such wailing period for the candidates of the other services after the acquisition of the academic qualifications. Thus the judicial officer enters the service at a relatively higher age than the member of the other services. Secondly, as observed by the Law Commission in its Fourteenth Report, the judicial service stands by itself In the matter of the age of retirement by reason of the great importance of a long experience and a mature mind in the judicial office. The recognition of such importance has led most countries to prescribe a much higher age for the retirement of judicial personnel as compared with that of the personnel in other services. In England, the judicial service is governed by special rules both In regard to the emoluments and the age of retirement. While the civil servants retire at the age of 60 years, the County Court Judges and Metropolitan Magistrates retire at 72. In our country also the tenure and other terms and conditions of service of the Supreme Court and the High Court Judges stand out from those relating to the administrative service. Lastly, we cannot shut our eyes to the reality that on account of the sizeable earnings at the Bar, many times out of proportion to the skill and the labour put in, the competent lawyers are reluctant to accept the judicial posts. There is that a dearth of proper talent available to man the judicial service. It is, therefore, for the health of the administration of justice that attractive service conditions including a higher retirement age, is prescribed for the members of the judiciary. For the same reason, it is necessary that whatever treated talent is available is utilised for as long a period as is feasible.

There is also no similarity in the nature of the sedentary work done by the Judge and the members of the other services. The sedentary work is mainly of two types -mechanical and creative. Each case coming before the Judge has its own peculiarities requiring application of fresh mind and skill. The Judge has constantly to be a creative artist. His work, therefore requires constant thinking and display of talent. The exertions involved in the duties of the Judge cannot be compared with the duties of other services. Thus, looked at from any angle, there is need to increase the superannuation age of the Judges as compared to that of the members of the other services. This is apart front the fact that as has been repeatedly pointed out earlier, it is fallacious to compare the judicial service with other services for any purpose, since the judicial service by its very nature stands on a different footing and should be treated as such.

What is further, while directing the enhancement of the superannuation age to 60 years, this Court had taken into consideration the fact that the age of retirement in different States varied from 55 to 60 years. Secondly, the age of retirement for the High Court Judges was in the meanwhile increased from 60 to 62 years. The age of retirement of the Supreme Court Judges is 65 years. If the nature and the magnitude of work clone by the judicial officers all over the country is the same and if further the members of the higher judiciary, who have to discharge more onerous workload, do it efficiently even at a still higher age, there is no reason why in view of the shortage of the proper talent, the age of retirement of the members of the subordinate judiciary should not be increased to 60 years. The said retirement age is prevalent in some of the States for some of the judicial posts. The only reason why the age of superannuation of the judicial officer is at present kept at. 55 or 58 is the misconceived requirement of the parity of service conditions between those of the judicial officers and the members of the other services. That consideration, as pointed out earlier, being both irrelevant and erroneous must fail

Having regard to the above view of the Supreme Court, it is apparent that Rule 285(4) of the KCSRs, which reads as follows, would no longer be applicable insofar as a Judicial Officer is concerned.

285(1) xxxxxxxxxxxxxxxxxxxxxxxxxxx

283(2) xxxxxxxxxxxxxxxxxxxxxxxxxxx

283(3) xxxxxxxxxxxxxxxxxxxxxxxxxxx

235(4) Retirement of a Government servant in public interest under the orders of Government.--

(i) Government may, by order, retire a Government servant who is working in a substantive, quasi-permanent or temporary capacity, after he has attained the age of 50 years or after he has completed 20 years of qualifying service, if the retirement is in their opinion necessary in the public interest:

Provided that the Government servant concerned shall either be given a notice of three months before the date of retirement or if he is ordered to retire forthwith, be permitted to draw, every month in lieu of pension for the period of three months, from the date of such retirement, a sum equivalent to the salary which he was drawing immediately before the date of retirement and any increment which accrues to him during the said period shall be paid to him and the same period for which he draws such salary shall be treated as duty.

(ii) Salary for this purpose will include special allowance, deafness allowance, house rent allowance, city compensatory allowance, uniform allowance, deputation allowance, foreign service allowance and any other allowance, except conveyance allowance and the fixed travelling allowance. If the service of the Government servant who is on deputation or on foreign service for a specified period on specified terms and conditions, are with drawn to his parent department before orders are passed under this sub-rule, no deputation 01 foreign service allowance will be paid.

(iii) Retirement under this sub-rule is not permissible after, issue of an order under clause (c) of Rule 95 of the Rules.

(iv) Orders retiring a Government servant under this sub-rule, any time after his completion of 20 years of qualifying service shall not be issued until after the fact that he bas put in a qualifying service of not less than 20 years has been verified in consultation with the Accountant General.

(v) The quantum of pension and death-cum-retirement gratuity admissible to a Government servant, who is retired under this sub-rule shall be proportionate to the length of his qualifying service and calculated in accordance with the provisions of Chapter XIX of the Rules.

(vi) The amount of pension/gratuity to be granted shall be subject to the right of the Government or any Competent Authority to make reduction therein in accordance with the provisions of the rules, if his service is not satisfactory.

(vii) The provisions of this sub-rule shall come into force from the date of their publication in the Official Gazette.

The Supreme Court has declared, with reference to AIJA-1 and AIJA-2, and has concluded in Bishwanath Prasad Singh vs. Stale of Bihar'' (2001) SCC 305, as follows:-

Direction with regard to the enhancement of superannuation age of judicial officers given in All India Judges'' Association and Others Vs. Union of India and Others, does not result in automatic enhancement of the age of superannuation. By force of the judgment a judicial officer does not acqire a right to continue in service up to the extended age of 60 years. It is only a benefit conferred on the judicial officers subject to an evaluation as to their continued utility to the judicial system to he carried out by the respective High Courts before attaining the age of 58 years and formation of an opinion as to their potential for their continued useful service. Else the judicial officers retire at the superannuation age appointed in the service rules governing conditions of services of the judicial officers.

The direction given in 1993 case is by way of ad ho(sic) arrangement so as to operate in the interregnum, commencing the date of judgment and until an appropriate amendment is made in the service rules by the State Government. Once the service titles governing superannuation age have been amended, the direction ceases to operate.

The High Court may before or after the normal age of superannuation, compulsorily retire a judicial officer subject to formation of an opinion that compulsory: retirement in public interest was needed. The decision to compulsorily retire must be in accordance with relevant service rules independent of the exercise for evaluation of judicial officer made pursuant to 1993 case. Recommendation for compulsory retirement shall have to be sent to State Government which would pass and deliver the necessary orders.

Benefit of extension in superannuation age he would retire at the age of superannuation appointed by the service rules. No specific order or communication in that regard is called for either by the High Court or by the Governor of the State. Such retirement is not "compulsory retirement" in the sense of its being by way of penalty in disciplinary proceedings or even by way of "compulsory retirement in public interest". No right of the judicial officer is taken away. Where the High Court may choose to make any communication in this regard, it would be better advised not to use therein the expression "compulsory retirement". It creates confusion. It would suffice to communicate, if at all, that the officer concerned, having been found not fit for being given the benefit or extended age of superannuation, would stand retired at the normal age or date of superannuation.

The above ad-hoc arrangement insofar as the judicial officers are concerned, as observed above, is intended to be continued till such time that the State Government frames Service Rules governing the age of superannuation of judicial officers or as regards Compulsory Retirement. Rule 285(4) being pressed into service insofar as a judicial officer is concerned, treating him like any other Government employee is no longer possible. The question of "desirability, utility and suitability" to continue as a judicial officer in service or to retire them from service in public interest, can only be on the ground of proven misconduct. It is only a judicial officer, prior to his reaching the age of 58, who could be assessed and subjected to evaluation of his continued utility to the judicial system and that the High Court could form an opinion as to the officer''s potential for the continued useful service, having regard to the present legal position, as settled by the Supreme Court. In that light of the matter, the notification dated 28.9.2005 is invalid and contrary to the law as laid down by the Apex Court. Hence, on Point no. 1, it is to be stated that the Notification is invalid and void as it is contrary to the law as laid down by the Supreme Court.

As already pointed out, the petitioner was aged 52 in the year 2009 when he was compulsorily retired from service. As seen from the material made available to the Court, there were several allegations of corrupt practices and favouritism, which were not taken to their logical conclusion inspire of the reports having been obtained on confidential and preliminary inquiries conducted. The order of compulsory retirement, therefore, is apparently passed as a short-cut to avoid the departmental enquiry or inquiries and is clearly imposed as a punitive measure. Therefore, points - 2,3 and 4 would have to be answered in favour of the petitioner. Consequently, the petition stands allowed. The Notification at Annexure-B, insofar as it relates to the petitioner stands quashed. The respondents shall reinstate the petitioner with continuity of service and all consequential benefits flowing therefrom. No order as to costs.