N.C. DAS Vs GAUHATI HIGH COURT THR. REGISTRAR .
Bench: R.M. LODHA,H.L. GOKHALE
Case number: W.P.(C) No.-000031-000031 / 2004
Diary number: 1152 / 2004
Advocates: SARLA CHANDRA Vs
P. I. JOSE
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO(s). 31 OF 2004
N.C. DAS Petitioner(s)
VERSUS
GAUHATI HIGH COURT THR. REGISTRAR Respondent(s) & ORS.
J U D G M E N T
R.M. LODHA, J.
The petitioner on the date of filing the
Writ Petition under Article 32 of the Constitution of India
was a member of Tripura Judicial Service (Grade II) and was
holding the post of Civil Judge (Senior Division) and
Assistant Sessions Judge, North Tripura. He has prayed for
diverse reliefs in the Writ Petition, including the
direction to the High Court to incorporate “court
suitability test” in the Tripura Judicial Service Rules,
2003 (for short, '2003 Rules') and further direction that
the petitioner should be considered for promotion on the
post of Grade-I.
2. On February 3, 2004 this Court issued
limited notice on the question of not making any provision
for judging the suitability of Judicial Officers for the
purposes of promotion in the 2003 Rules and relaxation in
2
the age of qualifying service.
3. The petitioner has retired from service on
December 31, 2006, during the pendency of the Writ
Petition, as Civil Judge (Senior Division) and Assistant
Sessions Judge, Grade-II.
4. The petitioner made application being
Interlocutory Application No. 3 of 2005 and prayed to quash
the Memo dated June 7, 2005 issued by the Gauhati High
Court and for direction to the Gauhati High Court to
consider the case of the petitioner for the benefits of
Assured Career Progress in accordance with the
recommendations of Shetty Commission Report which was
accepted by this Court in All India Judges' Association &
Ors. Vs. Union of India & Ors., 2002 (4) SCC 247.
5. On October 7, 2010, while disposing of
Interlocutory Application No. 3 of 2005, the matter was
adjourned to enable the petitioner to challenge the order
dated June 7, 2005 by which the benefits under Assured
Career Progress were denied to him in appropriate
proceedings. We are informed that the petitioner has not
challenged the order dated June 7, 2005 pursuant to the
above liberty.
6. Mr. Manoj Swarup, learned counsel for the
petitioner, submitted that the petitioner was wrongly
denied promotion in July 2003 although his juniors were
accorded promotion. He further submitted that in July
3
2003, the petitioner's case for promotion ought to have
been considered under the Tripura Judicial Service Rules,
1974 (for short, '1974 Rules'). In this regard, he referred
to Rule 7(1) of the 1974 Rules. Rule 7(1) of the 1974
Rules provides for qualifications for recruitment to the
service in Grade-I and Grade-II. According to this Rule,
appointment to the post of Grade-I and Grade-II by
promotion from the next grade below shall be made on the
ground of merit-cum-seniority. In the petitioner's ACR of
the year 2000, it has been recorded that he was not yet fit
for promotion. Similar remarks have been recorded in 2001
and 2002 ACRs. Thus, in last three years immediately
preceding the date of consideration of the petitioner's
case for promotion, his ACRs show that he was not found fit
for promotion. Based on the remarks in the ACRs of the
years 2000, 2001 and 2002 if the petitioner has been denied
promotion in July 2003, such action can hardly be faulted.
The remarks in ACRs do enable the authority to assess
comparative merit once the question of promotion arises
when the criteria for promotion is merit-cum-seniority. It
is pertinent to notice that the adverse remarks in the ACRs
of 2000 and 2001 were communicated to the petitioner on
November 28, 2002 and the adverse remarks for the year 2002
were communicated to him on May 19, 2003. The adverse
remarks were thus communicated to the petitioner before
July 29, 2003 and these remarks continued to remain on
4
record though the petitioner had submitted his
representation/reply thereto. Be that as it may, in view
of the petitioner's service record of the years 2000, 2001
and 2002, it cannot be said that he has been wrongly denied
promotion to Grade-I.
7. Mr. Manoj Swarup, learned counsel for the
petitioner, also raised the grievance that the petitioner
has been made to retire on December 31, 2006 on attaining
the age of 58 years although the superannuation age stood
enhanced to 60 years. He invited our attention to the
prayer made in Interlocutory Application No. 5 of 2006.
8. From the communication dated January 7, 2006
sent by the Registrar, Gauhati High Court to the Secretary,
Law Department, Government of Tripura, it appears that the
matter pertaining to extension of services of the
petitioner under the 2003 Rules was considered by the
Gauhati High Court and the High Court was satisfied that
the extension of petitioner's services upto the age of 60
years did not deserve to be recommended. The only ground
raised in the Interlocutory Application No. 5 of 2006 is
that the amended Rule 20 of the 2003 Rules has enhanced the
age of superannuation upto the age of 60 years which is
not subject to any discretion to be applied by the High
Court. We are unable to accept the contention of the
petitioner in this regard. Rule 20 of the 2003 Rules prior
to amendment reads as follows :-
5
“RETIREMENT
(A) Except as otherwise provided in these Rules, every Judicial Officer shall retire from the service on the afternoon of the last date of the month in which he attains the age of 58 years.
Provided that all Judicial Officers whose date of birth is the 1st day of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 58 years.
(B) Notwithstanding anything contained in Clause (A) above, a Judicial Officer, who in the opinion of the High Court, have the potential to continue with his service, shall be retained in service up to 60 years.
(I) The potential for continued utility shall be assessed and evaluated by appropriate Committee of Judges of the High Court, constituted and headed by the Chief Justice and the evaluation shall be made on the basis of the Officer's past record of service, character roll, quality of judgments and other relevant matters.
(II) The High Court should undertake and complete the exercise well within time before the Officer attains the age of 58 years and take a decision whether the benefit of extended service is to be given to the officer or not.
(III) In case he is found fit for being given the benefit of extended age of superannuation, the Governor shall, on the recommendation of the High Court, issue necessary order.”
9. Rule 20 of the 2003 Rules came to be amended
with effect from May 19, 2006. In Clause (A) of Rule 20 for
the figure '58' at both the places, the figure '60' was
6
substituted. For Clause (B), the following was substituted
:-
“Clause (B) Notwithstanding anything contained in Clause (A) above, the High Court shall have power to assess and evaluate the record of the Judicial Officer for his continued utility in service upto 60 years.
(I) The potential for continued utility shall be assessed and evaluated by appropriate Committee of Judges of the High Court, constituted and headed by the Chief Justice and the evaluation shall be made on the basis of the Officer's past record of service, character roll, quality of judgments and other relevant matters.
(II) The High Court shall undertake and complete the exercise well within time before the Officer attains the age of 58 years.”
10. A bare perusal of the Clause (B) of amended Rule 20
leaves no manner of doubt that the High Court is empowered
to assess and evaluate the record of a judicial officer for
continued utility in service upto 60 years. Clause (B) has
overriding effect over Clause (A) of Rule 20. This is
clear from the expression “Notwithstanding anything
contained in Clause (A)” with which Clause (B) begins. The
mode and manner of assessment and evaluation of the
potential of continued utility is prescribed in Rule
20(B)(I) of the 2003 Rules. No legal flaw has been pointed
out to the exercise undertaken by the High Court in respect
of the assessment and evaluation of the petitioner's
7
service for continued utility in service upto 60 years. We
are satisfied that the petitioner is not entitled to the
relief claimed in Interlocutory Application No. 5 of 2006.
Interlocutory Application No. 5 of 2006 is, accordingly,
dismissed.
11. It is not necessary to consider the other prayers
in the Writ Petition as Mr. Manoj Swarup, learned counsel
for the petitioners, did not press for prayers 1 to 4 made
in the Writ Petition.
12. Accordingly, Writ Petition has no merit and deserves
to be dismissed and is dismissed.
13. We record the statement of Mr. Vijay Hansaria,
learned senior counsel for the respondent No. 1-Gauhati
High Court- that the petitioner has been paid all his
retiral benefits, including accumulated pension.
.........................J. (R.M. LODHA)
NEW DELHI; .........................J. JANUARY 11, 2012 (H.L. GOKHALE)