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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.2529 OF  2002

HIGH COURT OF JUDICATURE ... APPELLANT (S) AT PATNA, THROUGH R.G.

VERSUS

SHYAM DEO SINGH & ORS. ... RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

1. By  a  communication  dated  17.5.2000  issued  by  the  

Registrar  General  of  the Patna High Court  the respondent  

herein was informed that he would retire from the service on  

completion of 58 years of age.  The said communication of  

the Registrar General was, inter alia, based on a decision of  

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the High Court on the administrative side taken in a meeting  

of the Full Court held on 6.5.2000 wherein the decision of its  

Evaluation  Committee  dated  2.5.2000  not  to  extend  the  

service of the respondent beyond the age of 58 years was  

approved.  All the aforesaid decisions being challenged, were  

set aside by the High Court by its order dated 20.2.2001 and  

the matter was directed to be reconsidered.  Aggrieved, the  

High Court is in appeal before us.

2. A perusal of the order under challenge goes to show  

that two reasons, in the main, had prevailed upon the High  

Court to arrive at the impugned conclusion.   

The  first  is  that  the  negative  remarks/adverse  

comments recorded in the Annual Confidential Report (ACR)  

of the respondent on 15.12.1995 were not communicated to  

the  respondent  and  the  foundational  facts  for  the  said  

remarks are wholly unsubstantiated.  It was also found by  

the  High  Court  that  the  standing  committee  of  the  High  

Court on 03.01.1997 had decided not to pursue the matter  

but to treat the same as closed. The High Court also took the  

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view that notwithstanding the said remarks the respondent  

was  subsequently  promoted  to  the  post  of  District  &  

Sessions Judge and also granted the selection grade.  The  

aforesaid facts, according to the High Court, had the effect  

of wiping out the adverse remarks dated 15.12.1995.  The  

High Court, in the impugned order, also took note of the fact  

that the ACRs of the respondent for the subsequent years  

indicated that the respondent, over all, is a good officer with  

nothing adverse as to his integrity and reputation.

The other reason for which the High Court had come to  

the impugned conclusion is that while extension of service  

was refused to the respondent,  one Mr.  Udai  Kant Thakur  

whose  ACRs  were  decidedly  inferior  to  that  of  the  

respondent was granted continuation after 58 years.  It is on  

the aforesaid twin basis that the High Court had concluded  

that the denial of extension to the respondent necessitated  

interference in  exercise  of  power  of  judicial  review under  

Article 226 of the Constitution.   

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3. We have heard Shri P.H. Parekh, learned senior counsel  

for  the  appellant  and  Mr.  Ambhoj  Kumar  Sinha,  learned  

counsel appearing for the respondent No.1.

4. It is convenient to deal, at the first instance, with the  

second ground that had prevailed upon the High Court to set  

aside  the  orders  passed  by  it  on  the  administrative  side.  

Having  considered  the  matter,  we  do  not  think  it  is  

necessary for us to go into the said question inasmuch as  

the  entitlement  to  continuation/extension  of  service  of  a  

judicial officer beyond the age of 58 has to be determined on  

the basis of the service record of the particular officer under  

consideration and not on a comparative assessment with the  

record of other officers.  Therefore, even if we hold that the  

ACRs of  Shri  Udai  Kant  Thakur  were  decidedly  inferior  to  

those  of  the  respondent,  the  same,  at  best,  may  have  

relevance to the grant of extension to the aforesaid officer  

without conferring any right or entitlement to the respondent  

for a similar extension.  It is, therefore, the first ground that  

had  weighed  with  the  High  Court  to  grant  relief  to  

respondent which really needs to be examined by us.

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5. The  adverse  remarks  dated  15.12.1995  being  the  

center of focus may be conveniently set out hereunder:

“Of late I have heard quite disturbing reports  about the integrity of Sri S.D. Singh, A.D.J.,  Dhanbad.  I had a talk with the District Judge  there  and  he  also  expressed  his  dissatisfaction about the working of Sri Singh  in  the discharge of  his  duties  as  a  Judicial  Officer.   Recently,  I  heard about a criminal  case lodged by C.B.I. (in which one Sri Modi  and Sri Gandhi figure as accused) where the  conduct of Sri Singh is not beyond reproach.”

6. In Bishwanath Prasad Singh Vs.  State of Bihar &  

Ors.1 which coincidently arises out of the same resolution of  

the  Full  Court  as  in  the  present  case,  this  Court  had the  

occasion to consider whether continuance in service beyond  

58 years is a right or a benefit conferred and also the norms  

that  should  govern  the  decision  to  grant  or  refuse  such  

continuance.  The aforesaid consideration by this Court was  

necessitated  by  the  different  interpretations  that  seem to  

have  emerged  from  the  directions  in  All  India  Judges’  

Association  &  Ors.  Vs.  Union  of  India  &  Ors.2.   In  

paragraph 18 of the report in  Bishwanath Prasad Singh  1 (2001) 2 SCC 305 2 (1993) 4 SCC 288

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(supra)  the conclusions of  this  Court  were summed up as  

follows:

“1.  Direction with regard to the enhancement of   superannuation age of judicial officers given in  All  India Judges Assn. v. Union of India does not result   in  automatic  enhancement  of  the  age  of   superannuation. By force of the judgment a judicial   officer  does  not  acquire  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 be 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.

2. The direction given in 1993 case is by way of ad  hoc  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  rules  governing  superannuation  age   have  been  amended,  the  direction  ceases  to   operate.

3. 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  case2.  Recommendation for compulsory retirement shall   

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have to be sent to State Government which would   pass and deliver the necessary orders.

4.  If  the  High  Court  finds  a  judicial  officer  not   entitled  to  the  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.”

7. It is in the light of the above propositions laid down in  

Bishwanath Prasad Singh (supra)  that the entitlement of  

the  respondent  as  claimed  and  the  decision  of  the  High  

Court on the administrative side to the contrary will have to  

be examined, particularly, in the context of the extent of the  

power of judicial review that would be available to examine  

the impugned refusal made by the High Court.

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8. The importance of  the  issue  can  hardly  be  gainsaid.  

The evaluation of the service record of a judicial officer for  

the purpose of formation of an opinion as to his/her potential  

for continued useful service is required to be made by the  

High  Court  which  obviously  means  the  Full  Court  on  the  

administrative side.  In all  High Courts such evaluation, in  

the first instance, is made by a committee of senior Judges.  

The decision of the Committee is placed before the Full Court  

to  decide whether  the recommendation of  the Committee  

should be accepted or not.  The ultimate decision is always  

preceded  by  an  elaborate  consideration  of  the  matter  by  

Hon’ble Judges of the High Court who are familiar with the  

qualities  and  attributes  of  the  judicial  officer  under  

consideration.   This  is  also  what  had  happened  in  the  

present  case.   The very  process  by which the decision is  

eventually arrived at,  in our view, should permit a limited  

judicial  review  and  it  is  only  in  a  rare  case  where  the  

decision taken is unsupported by any material or the same  

reflects  a  conclusion  which,  on  the  face  of  it,  cannot  be  

sustained  that  judicial  review  would  be  permissible.   An  

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enumeration of the extent of permissible judicial review has  

been  made by  this  Court  in  Syed T.A.  Naqshbandi  Vs.  

State of J&K3.  Paragraph 10 of the report which highlights  

the above position may be specifically noticed:-

“Neither the High Court nor this Court, in exercise of   its powers of judicial review, could or would at any   rate  substitute  themselves  in  the  place  of  the  Committee/Full Court of the High Court concerned,   to make an independent reassessment of the same,   as if sitting on an appeal. On a careful consideration   of  the  entire  materials  brought  to  our  notice  by   learned counsel on either side, we are satisfied that   the  evaluation  made by  the  Committee/Full  Court   forming  their  unanimous  opinion  is  neither  so   arbitrary  or  capricious  nor  can  be  said  to  be  so   irrational as to shock the conscience of the Court to   warrant or justify any interference. In cases of such   assessment, evaluation and formulation of opinions,   a  vast  range  of  multiple  factors  play  a  vital  and   important role and no one factor should be allowed   to be overblown out of proportion either to decry or   deify an issue to be resolved or claims sought to be   considered or asserted. In the very nature of things   it would be difficult, nearing almost an impossibility   to  subject  such  exercise  undertaken  by  the  Full   Court, to judicial review except in an extraordinary   case  when  the  Court  is  convinced  that  some  monstrous  thing  which  ought  not  to  have  taken  place has really happened and not merely because  there could  be another  possible  view or  someone   has some grievance about the exercise undertaken  by the Committee/Full Court.”

3 (2003) 9 SCC 592

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(Emphasis is ours)

9. In the light of the above, we may now advert to the  

facts of the present case.   

It is not in dispute that the adverse remarks/comments  

dated  15.12.1995  had  not  been  communicated  to  the  

respondent.  It is also clear from the materials on record that  

the standing committee of the High Court in its meeting held  

on  3.1.1997  had  decided  to  close  the  matter  instead  of  

proceeding  any  further.   The  subsequent  ACRs  of  the  

respondent  for  the  years  1997-1998  and  2000-2001  are  

sufficiently  positive  and  depicts  the  respondent  as  an  

efficient judicial  officer with a good reputation for honesty  

and impartiality.  The respondent was promoted to the post  

of District and Sessions Judge on 5.9.1998.  By Notification  

dated 17.2.2000 he was promoted to the selection grade of  

the Bihar Superior Judicial Service with effect from 1.1.1997.  

Therefore,  not  only  the adverse remark dated 15.12.1995  

was not acted upon but subsequent thereto promotion to the  

highest  level  in  the  district  judiciary  as  well  as  selection  

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grade  in  the  said  cadre  was  granted  to  the  respondent.  

Promotion to the higher post of District Judge and placement  

in the selection grade is on an assessment of positive merit  

and ability.  The said promotion(s),  therefore,   would have  

the  effect  of  wiping  out  the  adverse  remark  dated  

15.12.1995.  Such a view has in fact been expressed in Brij  

Mohan Singh Chopra Vs. State of Punjab4 (Para 10).  In  

the light of the above facts,  we do not see how the High  

Court,  on  the  administrative  side,  can  be  found  to  be  

justified  in  refusing  to  continue  with  the  service  of  the  

respondent beyond the age of 58 years.  The order dated  

20.2.2001 passed by the High Court setting aside the said  

decision, therefore, will have to be affirmed and the present  

appeal dismissed.  We order accordingly.

10. What should be the consequential relief that ought to  

be granted?  A period of nearly 14 years has elapsed in the  

meantime.  It will be highly inequitable to request the High  

Court to redo the exercise at this belated stage.   Besides  

such a course of action will also be unnecessary, particularly,  

4 AIR 1987 SC 948

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when the entire service record of the respondent had been  

placed  before  us,  details  whereof  is  also  available  in  the  

impugned judgment of the High Court.  Having considered  

the same, we deem it fit  to order that the respondent be  

treated to  have retired  from service  on  completion  of  60  

years of age and all  consequential  benefits,  including pay  

and  pension  on  that  basis,  be  made  available  to  him  

forthwith and without any delay.

...…………………………CJI. [P. SATHASIVAM]

.........………………………J. [RANJAN GOGOI]

…..........……………………J. [N.V. RAMANA]

NEW DELHI, MARCH 28, 2014.

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