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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

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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

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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

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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 :-

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“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

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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

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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)