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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6103 OF 2005

  HIGH COURT OF JUDICATURE, PATNA                   APPELLANT

                VERSUS

  SHIVESHWAR NARAYAN AND ANR.                       RESPONDENTS

WITH

        CIVIL APPEAL NO. 7372 of 2005

  SHIVESHWAR NARAYAN           ...APPELLANT

VERSUS

  HIGH COURT OF JUDICATURE, PATNA & ANR.          ...RESPONDENTS

J U D G M E N T  

  R.M. LODHA, J.

These two appeals, by special leave, are   from the  

judgment dated May 20, 2005 of the High Court of judicature  

at Patna (for short “the High Court”) whereby the Division  

Bench  of   that   court  allowed the Writ Petition filed  

by Shri Shiveshwar Narayan  (for short “Judicial Officer”)  

and  quashed  the  communication  dated  July  30,  2003  and  

directed the High Court on its administrative side to re-

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evaluate  the  case  of  the  Judicial  Officer  (petitioner  

therein) for extension of service upto the age of 60 years.

2. One appeal has been filed by the High  Court through  

its  Registrar  General  and  the  other  by  the  Judicial  

Officer.   

3. In appeal filed by the High Court, challenge is to  

the judgment dated May 20,2005 whereby its communication on  

the  administrative  side  dated  July  30,  2003  refusing  

extension of service to the Judicial Officer beyond the age  

of 58 years has been quashed.  In  the other appeal, the  

grievance of the  Judicial Officer  is that on allowing the  

Writ  Petition,  the  Division  Bench  was  not  justified  in  

directing the High Court on its administrative side to re-

evaluate  the  case  of  Judicial  Officer  for  extension  of  

service for two years.

4. In  All  India  Judges'  Association  and  others  vs.  

Union  of  India  and  others1,  this  Court  directed  the  

enhancement  of  the  superannuation  age  of  the  judicial  

officers to 60 years.  While directing so, this Court made  

it clear  that the benefit  of increased age to 60 years  

shall not be available automatically to all the judicial  

officers and the benefit will be available to those who, in  

1 (1993) 4 SCC 288

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the opinion of the respective High Courts, have a potential  

for continued useful service.

5. In  light  of  the  decision  in  All  India  Judges'  

Association1,  the  Chief  Justice  of  the  High  Court  

constituted  the  Evaluation  Committee  for  assessment  and  

evaluation of service record concerning sixteen judicial  

officers, the present Judicial Officer being one of them,  

to  find  out  whether  they  have  potential  for  continued  

useful service upto 60 years. The case of the  present  

Judicial  Officer  was  required  to  be  considered  for  

extension of service as he was  attaining the age of 58  

years  on  July  15,  2003  and  by  virtue  of  the  State  

Government's  decision  dated  September  29,  1973   he  was  

entitled to work till the last date of July, 2003 only. The  

Evaluation  Committee  on  consideration  of  the  present  

Judicial Officer's entire service record and also having  

considered the quality of judgments, character rolls and  

other  relevant  material  including  general  reputation,  

efficiency, integrity and honesty, finally resolved on July  

10, 2003 that  he was not fit for further continuance in  

service  in  public  interest  as  he  does  not  have  the  

potential for continued useful service.

1 (1993) 4 SCC 288

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6. The report of the Evaluation Committee came up for  

consideration before the Full Court of the High Court on  

July 26, 2003 and the Full Court unanimously, on that day,  

accepted  and  approved  the  decision  of  the  Evaluation  

Committee denying the benefit of increase of retirement age  

to the present Judicial Officer.

7. On  July  30,  2003,   Judicial  Officer  received  a  

communication from the Registrar General of the High Court  

informing him that he was not being given the benefit  of  

enhancement of retirement age from 58 to 60 years.

8. The  Judicial  Officer  challenged  the  Communication  

dated July 30, 2003 in a Writ Petition before the High  

Court and the Division Bench of that Court, as indicated  

above,  by its  judgment dated  May 20,  2005, quashed  the  

communication dated July 30, 2003 and further directed the  

High Court on its administrative side to re-evaluate his  

case for extension from 58 to 60 years.

9. In para 30 of the All India Judges' Association1,  

this Court stated as follows:

“.......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  

1 (1993) 4 SCC 288

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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 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.”

10. The direction for  increase of retirement age to 60  

years  by this  Court on  consideration of  the factors  as  

indicated therein was basically of transitory nature until  

the statutory rules were put in place by respective State  

governments.  However, no statutory rules were framed nor  

the  rules  governing  superannuation  were  amended  in  the  

State of Bihar until 2003 and, therefore, the case of the  

present Judicial Officer for  increase of retirement age to  

60  years  had  to  be  considered   in  accordance  with  the  

judgment of this Court in All India Judges' Association1.

11.  The primary consideration for the High Court in  

extending benefit of increase in the retirement age of the  

Judicial Officer is his continued usefulness in the service  

based on  entire  service record, quality of judgments, his  

1 (1993) 4 SCC 288

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conduct,  integrity  and  all  other  relevant  factors.   A  

Judicial Officer may have a service record not tainted by  

many adverse remarks; he may have got promotion from time  

to  time  but  still  he  may  be  found  to  be  lacking  in  

potential  for  continued  useful  service.   In  assessing  

potential for continued useful service, obviously entire  

record of service, character rolls, quality of judgments  

are of considerable importance.  At the same time,  over-

all  reputation  of  a  Judge   in  the  entire   period  of  

service,  his  judicial  conduct,  objective  and  impartial  

performance throughout his career  are the relevant factors  

which also have to be kept in mind.  A Judicial Officer is  

not an ordinary government servant; he exercises sovereign  

judicial  power.  Like  Caesar's  wife;  he  must  be  above  

suspicion.  The personality of an honest  judicial officer  

is ultimate guarantee to justice.  The judicial officers  

hold office of great trust and responsibility and their  

judicial  conduct  must  not  be  beyond  the   pale.    A  

slightest   dishonesty  (monetary,  intellectual  or  

institutional) by a judicial officer may have disastrous  

effect.  The repeated complaints of judicial impropriety  

and  questionable  integrity  against  a  judicial  officer  –  

although not proved to the hilt – may be sufficient basis

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to  disentitle  such  judicial  officer  the  benefit  of  

extension of retirement age to 60 years.

12.    The Evaluation Committee comprising of eight Judges  

including  the  Chief  Justice  on  examination  of  the  past  

service record, character rolls, quality of judgments and  

matters like general reputation, efficiency, integrity and  

honesty did not consider the present Judicial Officer fit  

for continued useful service after attaining the age of  58  

years.   The Full Court unanimously accepted and approved  

the decision of the Evaluation Committee.  The question  to  

be  considered by  us, is  whether the  Division Bench  was  

justified  in its power of judicial review under Article  

226  of the  Constitution of  India to  interfere with  the  

unanimous administrative decision of the Full Court?

13. Lord Hailsham in Chief Constable of the North Wales  

Police vs. Evans2  made the following statement:

“......The purpose of judicial review is to ensure  

that the individual receives fair treatment, and not  

to ensure that the authority, after according fair  

treatment, reaches on a matter which it is authorised  

or enjoined by law to decide for itself a conclusion  

which is correct in the eyes of the court.”

14. In State of U.P. and others vs. Maharaja Dharamander  

2 (1982) 3 All ER HL 141

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Prasad Singh and others3, it was held by this Court  that  

judicial review is directed, not against the decision, but  

is  confined  to  the  examination  of  the  decision-making  

process.

15. Recently, in the case of Centre for PIL and another  

vs Union of India and another4, a three Judge Bench of this  

Court stated that a difference between judicial review and  

merit review has to be kept in mind.     

16. The  present  Judicial  Officer  joined  the  judicial  

service on April 8, 1974 as a Munsif and over the years got  

promotion.  He  was  promoted  to  the  post  of  Additional  

District & Sessions Judge on July 2, 1987 and confirmed as  

such on March 1, 1991.  He was further promoted to the post  

of District & Sessions Judge on May 1, 1998.  From the  

material on record, it is apparent that in the course of  

his service, ten complaints were received against him from  

time to time.  In the complaints, there were allegations  

that  he  decided  cases  on  considerations  other  than  

judicial;  he  indulged  in   mis-behaviour  and  use  of  

unparliamentary  language  while  conducting  court  

proceedings; he granted bail in a triple murder case where  

the High Court had rejected  the bail thrice;  he committed  

3 (1989) 2 SCC 505 4 (2011) 4 SCC 1

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irregularities  in  the  judicial  proceedings  etc.    In  

relation  to  some  of  the  complaints,  inquiries  were  

instituted.  In one of the inquiries relating to grant of  

bail orders, it was found that the bail orders, passed by  

the Judicial Officer, were not sound but the inquiry was  

dropped as there was delay in making a complaint. In  

yet another complaint relating to grant of bail orders,  

although it was found that the bail orders were not sound  

but no action was taken on the  administrative side as it  

was opined  that the merits of these orders would be seen  

on judicial side. In respect of his mis-behaviour with a  

member  of the  Bar, in  inquiry, the  District &  Sessions  

Judge, Sasaram did find that unpleasant words were used by  

the Judicial Officer but the advocate was also found to  

have used unpleasant words and, therefore, no action was  

taken.  He  was also found lazy in the confidential roll of  

the year 1982-1983.   In a service span of almost 30 years,  

most of the time, the Judicial Officer has been adjudged as  

an “average officer”.  It is true that  entry  “below  

average officer” was expunged but  the fact of the matter  

is  that he  has never  been adjudged  an “outstanding”  or  

“very good officer”.

17. In  the  backdrop  of  the  above  material,  if  the

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Evaluation  Committee  formed  an  opinion  that  Judicial  

Officer did not have potential for continued service and  

that decision has been accepted and approved by the Full  

Court  unanimously, can it be said that the decision of the  

Full  Court  in  not  extending  benefit  of  increase  of  

retirement  age  to  60  years  is  based  on  irrelevant  

considerations or no material?  In our view, the answer has  

to be no.  The use of the expression by the Evaluation  

Committee in its resolution viz; 'further continuance in  

service will not be in public interest' has to be read in  

the  context  of  the  subsequent  expression  immediately  

following  i.e.  'as  he  does  not  have  the  potential  for  

continued  useful  service'.   The  Evaluation  Committee  

evaluated and assessed the case of the Judicial Officer  

with a primary object to find out as to whether Judicial  

Officer  has  potential  for  continued  useful  service  and  

having  regard  to  the  entire  service  record,  character  

rolls,  quality  of  judgments  and  other  relevant  factors,  

concluded that he does not have potential for continued  

useful service.  The Full Court unanimously accepted and  

approved  the  view  of  the  Evaluation  Committee.   The  

decision  making  process  is,  thus,  not  at  all   flawed.  

Unfortunately, the Division Bench considered the matter as

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if it was sitting in appeal over the decision of the High  

Court on administrative side which, in our view, was not  

permissible.   The  consideration  of  the  matter  by  the  

Division Bench shows that it has gone into the correctness  

of the decision itself  taken by the High Court on the  

administrative side and not the correctness of the decision  

making process.  

18. On a careful reading of the judgment of the High  

Court, we are of the view  that the Division Bench failed  

to keep in mind the distinction between judicial review and  

merit review and, thereby  committed a serious error in  

examining the merits of the decision of the Full Court.

19.  To find out the potentiality of a Judicial Officer  

for  continuation in  service beyond  the age  of 58  years  

following the decision of this Court in All India Judges'  

Association1, obviously,  the entire  record of service,  

character rolls, quality of judgments and other  relevant  

circumstances  like  general  reputation,  integrity,  

efficiency, performance, conduct etc. do form the basis but  

at the same time, it is not 'proved dishonesty' or 'proved  

mis-conduct' that is  determinative but doubtful integrity  

or suspicious judicial conduct may be sufficient to deny a  

1 (1993) 4 SCC 288

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judicial officer  benefit of enhancement of superannuation  

age to 60 years.  It is in totality of the circumstances  

available  from  the  entire  service  record  and  all  other  

relevant circumstances that an opinion has to be formed  

whether or not the Judicial Officer deserves  to be given  

benefit of increase of superannuation age to 60 years.  

20. The present case is a case  where the Division Bench  

embarked upon exercise of examining  each complaint and  

material  against  the  Judicial  Officer  to  find  out  the  

correctness of the decision of the Full Court which was  

legally not permissible.  The  weight of the material is  

not  capable  of  re-assessment  while  sitting  in  judicial  

review over such decision.    Even if, some other view is  

possible  on  the   material  that  was  considered  by  the  

Evaluation  Committee  and  the  Full  Court  to  evaluate  

Judicial Officer's case for extension of superannuation age  

to  60  years,  in  our  opinion,  that  did  not  justify  

interference in the decision of  the Full Court which  was  

founded on  material and relevant considerations.

21. We may observe that there is not even an iota of  

allegation of bias or mala fides- nor it could have been-  

against the decision making authority.

22. The  Division  Bench  of  the  High  Court  was,  thus,

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clearly in error in interfering with the decision of the  

High  Court  on  administrative  side  in  not  extending  the  

benefit of enhancement of retirement age of the Judicial  

Officer from 58 to 60 years.

23 Consequently, Civil Appeal No. 6103 of 2005,  High  

Court  of  Judicature,  Patna  vs.  Shiveshwar  Narayan  and  

another  is  allowed  and  Civil  Appeal  No.  7372  of  2005,  

Shiveshwar Narayan vs. High Court of Judicature at Patna  

and another is dismissed.  Parties shall bear their own  

costs.

.......................J. [R.M. LODHA]  

.......................J. [JAGDISH SINGH KHEHAR ]

NEW DELHI SEPTEMBER 22, 2011.

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