B.L. Yadav, J.@mdashBy an order dated 25.1.1995 a Division Bench of this Court referred these analogous Writ Petitions to be heard by a larger Bench as they involve questions of law of far reaching importance, pursuant to that the Hon''ble the Chief Justice constituted this Special Bench. This is how these petitions have been placed before us.
2. Whether these analogous Writ petitions preferred under Article 226/227 of the Constitution would be maintainable, even though on administrative side while passing the impugned orders directing that the Petitioners were not entitled to the enhanced age of superannuation from 58 to 60 years, every members of this Bench participant in the deliberations of the Full Court and whether Doctrine of Necessity was applicable, and whether the impugned orders have been passed after following procedure under Rule 3(X) of Rules of Patna High Court (for short the Rules), read with Rule 74 of Bihar Service Code, (for short the Service Code), and what are actually the contours of the judicial review in such matters and whether under the facts and circumstances of the case Petitioners are entitled to the enhancement of the age of superannuation (from 58 to 60 years), are the main questions that fall for our considerations. As these Writ petitions (hereinafter to be referred as 1st, 2nd, 3rd, 4th and 5th Writ petition) involve similar questions for our determination, hence it is convenient to dispose them of by a common judgment.
3. Relief sought in the 1st Writ petition is for issuance of a writ of certiorari quashing the order dated 7th December, 1994 contained in letter No. 13568/XIX-31/94 dated 7th December, 1994 by which a decision of the administrative side of this Court through the Joint Registrar (Establishment) was communicated stating that the benefit of enhancement of age of superannuation from 58 to 60 years would not be available to Sri Anirudh Pd. Choudhary, the Petitioner No. 1. The next relief is for issuance of a writ of mandamus directing the High Court to allow the benefit of enhancement of age of superannuation from 58 to 60 years to the Petitioners.
4. In the 2nd Writ petition similar relief as that of 1st Writ petition is sought for by the Petitioner.
5. By the 3rd Writ petition relief sought for is substantially the same but issuance of a writ of certiorari has been sought for quashing the letter No. 12711 dated 17.11.1994 issued under the signature of the Registrar-General incharge informing the Petitioner that he would not be entitled to the benefit of enhancement of age of superannuation from 58 to 60 years. The next relief is for issuance of a writ of mandamus directing this Court to permit the Petitioner to avail the benefit of enhancement of age of superannuation.
6. In the 4th Writ petition the relief sought is for quashing the communication contained in letter dated 7.12.1994 (Letter No. 13574) issued under the signature of the Joint Registrar (Estt.) informing the Petitioner that he would not be entitled to the benefit of enhancement of age of superation from 58 to 60 years.
7. In the 5th Writ petition the similar relief has been prayed as that in 4th Writ petition.
8. The factual matrix is that A.P. Choudhary, Petitioner in the 1st Writ petition qualified for Bihar Judicial Service on 30th October, 1961 and was posted as Munsif on Probation and was confirmed w.e.f. 10.11.1963. He was promoted as Subordinate Judge w.e.f. 28.9.1974 and confirmed on that post on 21.4.1978. in between 1979 to 1982 he was appointed on deputation as Under-Secretary (Law) in Mines and Geology Department. Thereafter he was promoted to the cadre of Superior Judicial Service and was posted as Additional District and Sessions Judge w.e.f. 7.1.1983 and was confirmed on that post since 30.7.1986. He was promoted as District and Sessions Judge w.e.f. 24.3.1990 and was posted as District and Sessions Judge at Patna. He was promoted to the selection grade post in Bihar Superior Judicial Service on 1.1.1990. He was appointed as Registrar in the High Court and joined on 1.1.1994. Super-time-scale was granted to him in April, 1994 but w.e.f. 19.10.1992. The Evaluation Committee, constituted by Hon''ble the then Chief Justice, held a meeting on 20th September, 1994 and the case of the Petitioner was recommended for enhancement of the retirement age from 58 to 60 years. But the decision of the Evaluation, Committee was, placed in the meeting of the Full Court held on 1.10.1994 and the Full Court did not consider the case of the Petitioner except the case of Sri S.P. Roy. Again the Full Court meeting was held on 15.11.1994 to consider the report of the Evaluation Committee dated 28.9.1994, but as some papers were required in respect of other candidates, other than the Petitioner No. 1, hence final decision was not taken. Again Full Court meeting was held on 3.12.1994 and the Petitioner was not found fit for enhancement of the retirement age from 58 to 60 years. A communication of the impugned order vide letter No. 13568 dated 7.12.1994 (Annexure-11) was sent to the Petitioner.
9. Sri Raja Ram Singh, 2nd Petitioner (in C.W.J.C. No. 11380 of 1994) was initially appointed as Munsif in the year 1963 and was promoted to the post of Subordinate Judge in 1975 and was given Selection Grade in the rank of Sub-Judge in the year 1982. He was promoted in the Selection Grade in 1990 as member of the Bihar Superior Judicial Service and was appointed as Additional District and Sessions Judge and he continued on the post till he was appointed as District and Session Judge, Sitamarhi on 23.3.1991. According to him there was no adverse remarks given to him. He was promoted to the Bihar Superior Judicial Service w.e.f. 23.5.1994 but without any sufficient reason this Court on the administrative side decided not to extend the benefit of enhanced age of superannuation from 58 to 60 years and the impugned order of the Full Court on administrative side was communicated to him.
10. Sri Indra Nand Pathak, the Petitioner in the 3rd Writ petition was selected as Munsif in 3rd Judicial Service Examination conducted by the Bihar Public Service Commission and was appointed as Munsif-cum-A.S.O. at Chabiasa on 3.11.1961. He was promoted as Subordinate Judge and later on as Additional District and Sessions Judge etc. He was allowed time-bound promotion and senior selection grade, but was not given benefit of enhanced age of superannation from 58 to 60 years. The said order of the Full Court was communicated to him.
11. Sri Nagendra Narain Singh, the Petitioner in the 4th Writ Petition was appointed as Munsif in 1963, on the basis of the 4th Combined Competitive Examination of Bihar Public Service Commission (Judicial Branch). He was confirmed as Munsif on 31.3.1965 and on promotion he joined the post of Subordinate Judge on 1.2.1976. He was communicated adverse annual remarks in the year 1972-73, 1973-74, 1978-79, 1979-80 and 1982-83. He was denied the opportunity of making a representation on account of late communication of the adverse remarks. But ultimately he was promoted in November, 1989 as Additional District and Sessions Judge and was posted at Hajipur. He made representation against Annual adverse remarks in 1992 which were still pending. He completed 58 years on 31.1.1995. He was denied the enhanced age of superannuation by the impugned order passed by the Full Court.
12. Sri Jiwan Tigga, the Petitioner in the 5th Writ petition was appointed as Munsif in 1965 and was posted at Daltonganj. He was promoted as Additional Sub-Judge and was confirmed as such in 1979 and later on promoted in 1986 as Additional District and Session Judge and was confirmed on that post on 1.3.1990 and while serving as such he was communicated the impugned order passed by the Full Court not to extend the benefit of enhanced age of superannuation from 58 to 60 years.
13. Mr. Basudev Prasad, learned Senior Counsel appearing for Respondents 1 and 2, raised a preliminary objection about the maintainability of these petitions primarily on the basis that as the members constituting this Special Bench have been the member of the Full Court and have participated in the deliberations in which these Petitioners were not granted enhancement of age of superannuation from 58 to 60 years, hence as a matter of fact even though the requisite element of bias may not be there but it does give rise to the possibility of bias. The salutary principle is that justice should not only be done but should mainfestly be seen to have done. Under these circumstances the Special Bench may decline to hear these matters. He lean heavily on Hannam v. Bradford City Council (1970) 2 All ELR 690) Metropolatian Properties Co. Ltd. v. Lennon and Ors. (1968) 3 All ELR 304, The King v. Sussex Justices (1924 (1) K.B. 256) and
14. Dr. S.N. Jha, Sri Shyama Prasad Mukherji and Mr. Ram Chandra Jha, learned Senior Counsel and other counsel for the Petitioners refuted the submissions of Mr. Prasad. Their submission was that the Full Court has taken a decision against the Petitioners on administrative side and there is no bar in entertaining the Petitioners under Articles 226/227 of the Constitution on judicial side. The decision of the Evaluation Committee and the Full Court was not on judicial side hence there is no bar in entertaining the present Petitioners. The Special Bench would be deciding the matter dispassionately without there being the least element of bias. Sri A.P. Choudhary (Petitioner of 1st Writ petition) before presenting the petition here had already filed a Writ petition (Civil) No. 780/94 before the Apex Court. But the Apex Court having heard learned Counsel for the Petitioners declined to interfere rather permitted withdrawal of the petition with liberty to file petition in the High Court of Bihar in following terms:
We permit withdrawal of the petition with liberty to file a petition in regard to the cause of action in the High Court of Bihar. The Writ petition is dismissed as withdrawn.
15. In view of the direction of the Apex Court these petitions have to be disposed of on merits by the Special Bench. As the decision of the Full Court was on administrative side, hence on judicial side the High Court or a Bench thereof would decide the matter on merit. The reliance was placed on
16. As regards the maintainability of these petitions particularly on possibility of bias, no doubt the concept of bias is one of the rules of natural justice. There is Latin Maxim "Nemo Debet Esse Judex In Propria" which indicates that no man shall be a Judge in his own cause, (see Diames v. Grand Junction Canal (Propriety) (1892) 3 HL Cas 759, R.V. Hendon Ex-parte Charley (1933) 2 K.B. 696). The second rule of natural justice is "Audi Alteram Partem" and the 3rd rule of natural justice is indicated in the Latin Maxim "Qui Aliquid Statuerit Parte Inaudita Altera, Acquum Licet Statuerit, Haud Acquum Fufrit" i.e. he who decides anything without otherwise having been heard, although he may have said what is right, will not have done what is right, or in other words as it is now expressed "justice should not only be done but should manifestly be seen to have done (See
The benefit of increase of the retiremerit age to 60 years shall not be available automatically to all judicial officers irrespective to their past record of service and evidence of their continued utility to the judicial system. 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 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.
17. The member of the present Special Bench along with other members of the Full Court have dispassionately participated in the deliberations and discussions, keeping in view the aforesaid dictum laid down by the Apex Court that only those members of the higher judicial service must be awarded enhancement of the age of superannuation upto 60 years from 58 years, who have a potential for continued useful service. Every one of us was more particular that enhancement of the age of superannuation was given to a deserving member of the Superior Judicial Service. The matter was thrashed out for each and every Petitioner, and thereafter the decision was taken. As the decision on the administrative side is usually challenged before the judicial side, there is very little hope for possibility of bias.
18. Reverting to the cases relied upon by Shri Prasad, no doubt the dictum in different cases, have been laid down under the particular facts of that case and they need not be extended further. In this connection two old English cases i.e. Quinn v. Leathern 1901 A.C.C 495 and Allar v. Flood (1989) A.C.C 1 deserve to be mentioned which have been referred to in
19. In
The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it.
20. I am really facing the same dilemma as was faced by Danckwerts, L.J. In Metropolitan Properties Co. Ltd. Case (1968) 3 All ER 304, on page 311 supra, as follows:
On the other point I find it extremely difficult to make up my mind. There has been very considerable discussions as to the basis of the jurisdiction relating to bias in regard to a judicial or semi-judicial tribunal which I find the more difficult to apply in view of the statement that actual bias is not alleged in the present case. The doubt seems to me not to be wholly resolved even now. Must there be a real likelihood that the tribunal was biased or it is sufficient that a reasonable person would think that the tribunal might be biased? And how should the principle expressed by Lord Hewart, C.J. (in R.V. Sussux, Justice, Exp. Mc. Carthy (1923) All E.R. 233 : (1924) 1 K.B. 256 that justice should be done and be mainfestly seen to be done" be applied in a matters of this kind.
21. In Hannam v. Bradford City Council (1970) 2 All ELR 690 (supra) if was observed on page 694 as follows:
Then Danckwerts LJ decided the case (1968) 3 All E.R. : (1969) 1 QB 602): A person subsequently hearing of these matters might reasonably feel doubts, I think, of the Chairman''s impartiality.... ''Edmund Davies LJ said (1968) 3 All E.R. 314 (1969) 1 QB 606: ''...I cannot bring myself to hold that a decision may properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body.
Those judgment involve, in effect, somewhat of a swing back towards the principle enunciated in (1924) 1 K.B. 256, (1923) All E.R. Rep. 233, which had to some account been discounted in some previous decisions. For my part, I doubt whether in practice materially different results are produced by the ''real likelihood of bias'' test urged by counsel for the council or that adopted by the country court judge. If there is such a difference, I uphold the latter and respectfully adhere to the school of thought adopted in Lannon''s case (1968) 3 All E.R. 304, (1969) 1 QB 577, for the reasons there given by Lord Denning Mr. I agree, too, that the country court judge applied the test correctly to the facts.
22.
23. Vivekanand Goswami and Ors. v. State of West Bengal and Ors. 1988 Lab. I.C. 1369 (supra) was a case where it was ruled (under para 54) by the Apex Court that any resolution taken by the Full Court or any recommendation given by the Chief Justice in his administrative capacity is amenable to writ jurisdiction as the same is not judicial determination. In that case reliance was placed on the dictum laid down in
24. In
The result of adopting a contrary view would lead to the anomalous position that while all other civil servants who may feel aggrived by orders passed against them by other heads of Departments of Government, can in appropriate cases challenge such orders before the High Court under Article 226, the benefit of such opportunity is denied to the personnel belonging to the staff of the High Court and the subordinate courts, and they will be left without the benefit of the efficacious and comparatively cheap remedy provided for by Article 226 even if the ground of challenge against the order be a violation of Article 311 of the Constitution or of the statutory rules framed under Article 309. We do not think that the framers of the Constitution while enacting Article 226 intended to restrict its scope so as to lead to such hardship and anomaly We therefore over-rule the preliminary objection and hold that the petition is maintainable.
25.
26. Lord Esher in Allinson v. General Council of Medical Education and Registration (1984) 1 QB 750 at page 758 ruled as follows:
The question is not, whether in fact he was or was not biased. The Court cannot inquire into that aspect...in the administration of justice, whether by a recognised legal court or by persons who although not a legal public court, are acting in a similar capacity, public policy requires that in order that there should be no doubt about the purity of the administration any person who is taking part in it should not be in such a position that he might be suspected of being biased.
27. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1969) 1 QB 577 Lord Denning M.R. observed:
...in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice'' himself or at the mind of the Chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, if fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be nevertheless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit....
28. Frankfurter, J. in Public Utilities Commission of the District of Columbia v. Pillak (1951) 343 US 451 observed:
The judicial process demands that a Judge may move within the framework of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, Judges recuse themselves. They do not sit in judgment....
29. In Regina v. Liverpool City Justices, Ex parte Topping (1983) 1 WLR 119 it was ruled as follows:
Assuming, therefore, that the justices had applied the test advised by Mr. Pearson-do I feel prejudiced? - then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow.
30. In view of the aforesaid discussions made about the concept of the likelihood of bias and its impression given to other people but in such matters no Member of the Full Court has any interest in one way or the other, nor he can be said to be interested in any member of the subordinate judiciary in the matters of enhancement of the age of superannuation, rather every Member of the Full Court was conscious about the responsibility he was holding to ascertain about the suitability of a member of Superior Judicial Service as to whether he fulfilled the guidelines laid down by their Lordships of the Supreme Court in
31. In
The order that the first Respondent challenged in the writ petition filed by him before the High Court was an order passed by the High Court on its administrative side. By reason of Article 226 of the Constitution it was permissible for the Appellant to move the High Court on its judicial side to consider the validity of the order passed by the High Court on the administrative side and issue a writ in that behalf. In the writ petition the 1st - Respondent was obliged to implead the High Court for it was the order of the High Court that was under challenge. It was, therefore, permissible for the High Court to prefer a petition for special leave to appeal to this Court against the order on the writ petition passed on its judicial side. The High Court is not here to support the judicial order its Division Bench passed but to support its administrative order which its Division Bench set aside. We find, therefore no merit in what may be termed the preliminary objection to the maintainability of the appeal.
32. The Members of the Full Court, therefore, in my opinion, cannot be said to be bias against any judicial officers and while deciding the age of superannuation against the administrative order of the Full Court, these petitions were maintainable.
33. It is also not inapt to mention that what I could notice that every member of the Full Court was so engrossed in his work and was conscious about the high standard of justice and sincerity or the purpose that it is beyond imagination. It was manifest as if every member had full knowledge of following classical Sanskrit shlokas indicating sacred duties of a judge:
The aforesaid texts connotes that either persons well-versed in legal, spiritual or wordly knowledge may criticise a judgment or they may appreciate or remember him as a judge, or the judge becomes a pauper, or he becomes a rich person, either he dies immediately or he remains alive for ages to come in future, but these aspects would not be material for a well determined judge who shall perform the duties irrespective of those attachments or attractions and in no way he shall deviate for the path of justice. As an efficient Surgeon by operations take out arrow or some undesirable element from the body of a patient, similarly the duty of a judge is to extract elements of justice and must do complete justice out of the misleading facts and arguments from both sides.
34. That the deliberations reflected not only sincerity of purpose but also seriousness with the ideals as suggested by great judges, jurists, thinkers and philosophers particularly Lord Learned Hand and Cromwell as follows:
The great judge (Learned Hand) was fond of recalling Cromwell''s statement.
"I beseech Ye in the bowels of Christ think that Ye may be mistaken." He told a senate Committee, I should like to have written over every court buildings and Court room, the pertal of every church and school, and may I say of every legislative body in the United States, I should like to have every Court and every judge being". I, beseech Ye in the bowels of Christ, think that we may be mistaken.
Yale Lal Journal Vol. 71, 1961 November Part.
35. Shri A.P. Choudhary (Petitioner in the first C.W.J.C.) has preferred a writ petition (Civil) No. 780/94 before the Supreme Court and their Lordships under the order dated 13th January, 1995 permitted the withdrawal of the petition with liberty to file a petition on regard to cause of action in the High Court of Bihar and the petition was dismissed as withdrawn.
36. The matter can be angulated from other perspective as well. There is a Doctrine of Necessity which comes in operation in certain circumstances where all the members of tribunal or Court become disqualified for one reason or the other, in that event also the matter can be entertained by some of its members.
37. In Halsbury''s Laws of England 4th Edn. page 89 paragraph-73 (the material statement explains Doctrine of Necessity) is extracted below:
Even if all the members of the tribunal competent to determine a matter were subject to disqualification, they might be authorised and obliged to hear that matter by virtue of the common law Doctrine of Necessity. An Adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide may in certain circumstances be required to adjudicate if there is no other person who is competent or authorised to be adjudicator or if a quorum cannot be formed without him or if no other competant tribunal can be constituted.
38. In the instant case as the members of this Special Bench and even the remaining Hon''ble Brother Judges participated in the deliberations in which it was resolved that the Petitioners need not be given the benefit of enhanced age of superannuation, in such fact situation the Doctrine of Necessity would come into play. In my opinion as the Members of Full Court and this Special Bench were conscious about their duties with utmost sincerity with ideals and the guidelines indicated by the Apex Court in All India Judges Association case (supra) the apprehension of bias is unfounded and these analogous petitions under Article 226 are maintainable before this Special Bench. The preliminary objections are accordingly overruled.
39. Reverting to the merits of these matters it was contended on behalf of the Petitioners that the Full Court did not follow the procedure for compulsory retirement of a Judicial Officer as provided under Sub-rule (x) of Rule 3 of Chapter 1 of the Rules of Patna High Court read with Rule 74 of the Bihar Service Code vide para 23 of C.W.J.C. No. 534 of 1995 nor the principles indicated by the Apex Court in All India Judges Association case AIR 1993 SC 3493 (supra) were followed. Even Petitioners in first and second C.W.J.C. were entitled to the enhanced age of super-annuation by the Evaluation Committee. The Petitioners were entitled to the relief claimed for. Even though number of authorities were cited in support of the contention of the learned Counsel for the Petitioners but the relevant authorities would be discussed at the appropriate stage, (infra).
40. There was another limb of argument that the Full Court did not record reasons in the order deciding not to grant enhanced age of superannuation to the Petitioner. In case an order does not contain reasons how the Petitioners could know as to what weighed with the Members of the Full Court in not granting enhanced age of superannuation, nor this Court could know the same. The every expanding horizon of the principles of natural justice requires that in an order, even though the same may be an administrative one, reasons must be recorded but the Full Court failed to record reasons and, thus, principles of natural justice have been violated.
41. It was accordingly, submitted that resolution of the Full Court and its communication to the Petitioners (letter No. 13568 dated 7th December, 1994 communicating Petitioner No. 1 that he will superannuate on completion of 58 years of age vide Annexure-7 to the first writ petition) and similar other communication to the rest of the Petitioners be quashed by issuance of a writ of certiorari and Respondents be directed to treat the Petitioners to be entitled to the enhanced age of superannuation and to permit them to continue in service till they complete the age of 60 years.
42. Learned Counsel for the Respondents, including learned Additional Advocate General No. 2 for Respondent No. 3, refuted the submissions of the learned Counsel for the Petitioners. It was contended that the procedure contemplated for compulsory retirement of a Judicial Officer under Rule 3(x) of the Rules read with Rule 74 of the Service Code were substantially complied with. In any case Rule 3(x) contemplate procedure when matter is not to be referred to Full Court, whereas the Apex Court directed the question of enhanced age of superannuation to be decided by the High Court (i.e. the Full Court). In any way these rules cannot run counter to the wide powers conferred oh this Court under Article 235 of the Constitution. The Full Court resolved that the Petitioners were not entitled to the benefit of enhanced age of superannuation only perusing the relevant records and other information furnished to them and after discussing them thoroughly. It was ultimately decided that even though Petitioner Nos. 1 and 2 (Sri A.P. Choudhary and Sri Raja Ram Singh) were held to be entitled to the enhanced age of superannuation by the Evaluation Committee but nevertheless the Full Court had decided keeping in view the principles indicated by the Apex Court in All India Judges'' Association case that the Petitioners including Nos. 1 and 2 have no potential for continued useful service and they were accordingly not entitled to be given enhanced age of superannuation. It was specifically contended that the judicial review is not possible in respect of the result or the conclusion arrived at but only in respect of the process or the procedure adopted by which decision was arrived at Recording of reasons was not must in all cases, particularly when the matter was being decided by the Full Court on administrative side. The Petitioners were correctly held by the Full Court that they were not entitled to the enhanced age of superannuation. The case of the Petitioners is not covered by the scope of judicial review.
43. Having evaluated the submissions of the learned Counsel for the parties, the points for determination, as formulated at the very out set, are as under:
(i) Whether the resolution for non-availability of the enhanced age of super-annuation to the Petitioners is consistent with the provisions of Rule 3(x) of the Rules and Rule 74, of Service Code;
(ii) Whether the principles indicated in
(iv) Whether recording of the reasons by the Full Court was must. If not its effect.
(v) Whether the Petitioners are entitled to the relief claimed?
44. As regards the first question as to whether in the matter of compulsory retirement of the Judicial Officers the procedure contemplated under Rule 3(x) of the Rule and Rule 74 of the Service Code have been complied with?
Ex abundanti cautela the relevant part of Rule 3(x) of the Rules is extracted below:
3. The Standing Committee shall have power, without reference to the judges generally:
(x) to make recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank.
Provided that notice of the decision of the Standing Committee shall be circulated to the Full Court within ten days from the date of the decision and if any Member of Full Court desires, within three weeks of the decision, the matter to be discussed at a meeting of the Full Court then no action will be taken till the decision at such a meeting.
45. The relevant portion of Rule 74 of the Service Code is set out as under:
Rule 74(a) "The State Government may require any Government Servant who has completed twenty one years of duty and twenty five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention is service. Where any Government servant is so required to retire no claim to any special compensation shall be entertained.
(b)(i) Notwithstanding anything contained in the preceding Sub-rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifth years of age or on any date thereafter to be specified in the notice:
Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government:
Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Chief Justice.
(ii) The appointing authority concerned may after giving a Government servant at least three months previous notice in writing, or an amount equal to three months'' pay and allowance in lieu of such notice, require him in public interest to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
46. At the very out set it may be stated that these are rules of the procedure and they are not in themselves an end, rather they are means to achieve goal of justice. In other words, they have been framed with a view to achieve justice and not to frustrate the pathway to justice. In my opinion, therefore, such construction which promotes justice and prevent miscarriage of justice by enabling the court to do justice must be preferred. To put it differently, the approach to interpret these rules need not be made in a rigid way. It is in fact pragmatic approach which may be adopted while construing a procedural provision.
47. In Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh JT. 1993 (5) SC 313 at page 318 in paragraph, 3 it has been emphasised that the procedure is hand-maid to justice. In case the submissions of the learned Counsel for the Petitioners are strictly followed it shall become difficult to convene a meeting of the Full Court and to circulate the agenda, particularly the opinion of the Evaluation Committee. In any way the power given to the High Court under Article 235 of the Constitution of India is very comprehensive. The provisions of Article 235 of the Constitution have to be read conjointly with Article 233 of the Constitution. But before interpreting these Articles I am reminded what his Lordship Oliver Wendell Molmes said in an American Supreme Court case in Gampers v. United States 233 U.S. 604 as follows:
But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English sail, their significance is vital, not formal, it is to be gathered not simply by taking the words and a dictionary but by considering their origin and line of their growth.
48. While interpreting these provisions a broad and liberal spirit must inspire those who are called upon to interpret the provisions of the Constitution of India. In other words the provisions of the Constitution are not to be interpreted in a pedantic manner. Article 233 of the Constitution posits that the appointment, the posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court. Article 235 postulates control over the District Courts and Courts subordinate thereto, including the posting and promotion of the persons belonging to the Judicial Service shall be vested in the High Court. To put it differently, the appointment and promotion of the District Judges in any State is made by the Governor in consultation with the High Court, whereas subsequent to that stage control over the District Courts including the posting and promotion of any member belonging to the Judicial Service of the State is vested in tie High Court. In other words the supervision and control of the High Court over the members of the Judicial Service including the District Judges is paramount. No rule even if framed can feter the powers of the High Court in such matters as is manifest from Article 235 of the Constitution. Even if the procedure contemplated under Rule 3(X) of the Rules was not followed with mathematical precision, that cannot override the powers of the High Court under Article 235. Consideration of the Full Court in its meeting taking into account the recommendation made by the Evaluation Committee cannot be said to be irregular.
49. The five Judges Full Bench of this Court in
50. Reverting to the next question as to whether the lofty principles laid down in
51. That before proceeding further it is convenient to state that aforesaid principles are based on different service Rules pertaining to compulsory retirement and also on the legal philosophy of so many eminent jurists thinkers on law and great authors of ancient and modern jurisprudence. Ihering 1818 to 1892 AD was a member of German Historical School. His major work was ''Der zweek in Rechit'' (purpose in law) which was translated in English as Laws as a Means to an End (Husik Modern Legal Philosophy series V). His notion was that law is but a part of human conduct which are only instruments for serving the needs of society.... The purpose is to reconcile selfish, with unselfish purpose and to suppress the former when they clash with the letter. Law does not exist for the individual as an end in himself but serves his interest with the good of society.
52. In fundamental principles of the sociology of Laws, Ehrlich''s (1862 to 1922 AD) thesis was that laws found in formal legal sources such as statutes and decided cases, give only an inadequate picture of what really goes on in a community for the norms which in fact govern life are only imperfectly and partially reflected in them. The living law of society has to be sought, out outside the confines of formal legal material, in other words, in society itself. On only a minute fractions of social life comes before courts. Geremy Benthem 1748 to 1832 AD was known for his analytical jurisprudence social philosophy and his strong views for utilitarian outlook as life. According to Benthem, the function of laws should be the promotion, of the greatest happiness of the greatest number. There is an age old problem of reconciling interests of individual with those of the community. (See An introduction to the principles of Morals and Legislation, para-5). The public good ought to be the object of the legislature and general utility ought to be the object of the legislature and general utility ought to be the foundation of his reasoning.
52A. It was for the High Court to decide finally as to whether the particular Judicial Officer has a potential for continued useful service. The opinion of the Evaluation Committee was placed before the Full Court and the Full Court considered the materials, including the past records of services, character rolls, quality of judgments and other relevent matters. Certain materials were supplied to every Member of the Full Court. Apart from that, there was full deliberation and "other relevant matters", as pointed out in the relevant paragraph of the judgment were also taken into account. Even though the Apex Court has not indicated what shall be the "relevant matters", apart from the past record of service, character rolls, quality of judgments. But earlier expression including "Past record of service", and "Character rolls" etc. had been indicated and thereafter the expression "other relevant matters" have been pointed out. In such matters "NOSCITUR a Sociis", rule of construction is applicable. This rule has been explained by Lord Macmillian in his Law and Other Things, page 166 and this means meaning of a word is to be judged by the company it keeps. In other words it is legitimate rule of construction to construe the words with reference to the earlier words and expressions found in them, (see
53. Recently in
54. In the instant case, in my opinion, the expression "other relevant matters" in All India Judges'' Association case (Supra) have to be interpreted by reference to the meaning of the words associated with it. In other words other relevant matters means some other matters some what similar to the past record of service, character rolls and the quality of judgments. The Full Court also considered other relevant matters in the cases of the present Petitioners and other judicial officers. Keeping in view the integrity, reputation and utility, getting formal promotion or as the Petitioner No. 1 having been appointed as Registrar General in this Court, does not mean that he has got potential for continued useful service. This expression "potential for continued useful service" is quite meaningful. It indicates so many things on the basis of which the enhanced age of superannuation has to be determined. The meaning of that expression "potential for continued useful service" was fully discussed and applied in deliberation by the Full Court. These Petitioners, particularly Petitioner Nos. 1 and 2 might be supposed to have potential for continued useful service till they completed the age of 58 years, but having scrutinised the entire relevant materials the Full Court came to the conclusion that these Petitioners, particularly Petitioner Nos. 1 and 2 would not have potential for continued useful service after attaining the age of 58 years. The entire materials, circulated to the members of the Full Court containing the relevant past records of service, character rolls etc. were scrutinised and at the same time "other relevant matters", were also kept in mind and discussed and after full deliberation the decision was taken. May be that Petitioner Nos. 1 and 2 have got all promotion in due time, but that does not mean that they have potential for continued useful service even after 58 years.
55. It may be emphasised that the enhanced age of superannuation after completion of 58 years till 60 years was not made available to the Judicial Officers as a matter of right or as a matter of course, or just on the basis of the character rolls or on the basis of the chart of promotion of a particular Judicial Officer, but "other relevant matters", including potentiality for continued utility was to be considered. Keeping in view the different factors pointed out by the Apex Court it was decided that these Petitioners have no potential for continued useful service after 58 years. Nothing has been pointed out in respect of the procedure adopted by the Full Court as to how there was any mistake in the procedure adopted or in the process in which the decision of the Full Court was arrived at. In my opinion, therefore, quite consistent with the principle indicated by the Apex Court the Full Court has taken decision that the Petitioners need not be granted enhanced age of superannuation.
56. Reverting to the contours of a judicial review in the present fact-situation the general principle is that the scope of judicial review of this Court cannot be equated to the powers of an appellate court, nor this Court can substitute its decision or opinion to the resolution or decision of administrative authority which has decided the matter. The scope is only to scrutinise the decision making process by which the decision has been arrived at.
57. In
58. In the instant case the Full Court has considered all the relevant factors for granting enhanced age of superannuation as pointed out by the Apex Court in All India Judges'' Association case (Supra). Consequently the scope of judicial review is not to be equated with that of the appellate court.
59. In
60.
61. In the present case nothing has been pointed out on behalf of the Petitioners that the opinion of the Full Court was based on no evidence or the opinion was not formed or that the decision was bad for collateral grounds or that it was an arbitrary decision.
62. In S. Ramchandra Raju v. State of Orissa : 1994 Supp. (3) SCC 424 it was pointed out by their Lordships of the Apex Court that the integrity in public service needs to be maintained and the exercise of power of compulsory retirement must not be a haunt on the public servant, but must be checked and reasonable measure must be adopted to ensure efficiently of service that it is free from corruption, incompetence and the officer would live by reputation build around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a meance to public service and injurious to public interest and the entire service record or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority and on consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the Government officer needs to be compulsorily retired from service.
63. In the present case also the relevant records of service of the Petitioners, particularly the latest one and the character rolls and other relevant materials were taken into consideration and the Full Court has taken decision not to grant the enhanced age of superannuation of these Petitioners.
64. In
Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.... Judicial review is concerned not with the decision, but with the decision making process. Unless that restriction on the powers of the Court is observed, the Court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.
65. In Amin Re v. Entry Clearance Officer 1983 (2) All ER 864 Lord Fraser pointed out as under:
Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made.... Judicial review is entirely different from an ordinary appeal. It is made effective by the Court quashing the administrative decision without substituting its own decision, and is to be constrasted with an appeal where the Appellate Tribunal substitutes its own decision on the merits for that of the Administrative Officer.
66. The duty of the Court was pointed out by the Apex Court in paragraph 77 of Tata Cellular v. Union of India (supra) as follows:
(1) Whether a decision making authority exceeded its power?
(2) Committed an error of law?
(3) Committed a breach of the rules of natural justice?
(4) Reached a decision which no reasonable tribunal would have reached? or,
(5) abused its powers.
Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
67. In All India Judges'' Association case (supra) the Apex Court has pointed out that the procedure for compulsory retirement under the rules may be followed keeping in view of course the potential for continued useful service after considering the past record of service, quality of judgment and other relevant matters about the nature and legal effect of the compulsory retirement.
68. In
69. In the instant case the guidelines indicated by the Apex Court were kept in mind and on that basis it was resolved by the Full Court that the Petitioners are not entitled to the enhanced age of superannuation.
70. In
It not unoften happens that what appears to be a judicial review for breach of natural justice in reality, it is a review for abuse of discretion. It is true that amongst the many grounds put forward in the show cause notice dated 19.1.1986, quite a few overlap each other and are distinguishable from those urged for the cancellation of the lease itself. Some of the grounds might, perhaps, be somewhat premature: Some of them even if true are so trivial that no authority could reasonably be expected to cancel the permission on that basis. For instance the ground that the permission was applied for and granted in the name of one only of the two lessees would be one.
However, judicial review under Article 226 cannot be converted into appeal. Judicial review is directed not against the decision, but is confined to the examination of the decision making process.
71. In Chief Constable of the North Wales Police v. Evans 1982 (1) W.L.R. 1155 (supra) refers to the merits�legality distinction in judicial review. Lord Hailsham said:
When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision. The judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the factors. In the present case it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice.
72. In
73. No doubt, the Evaluation Committee recommended the case of the Petitioners in the first two writ petitions, but that was not approved by the Full Court. The learned Counsel for the Petitioners were quite emphatic that the opinion of the Evaluation Committee ought to have been ratified by the Full Court and the Full Court was not justified nor it could disagree with the resolution of the Evaluation Committee. In such matters the question has been answered by their Lordships of the Apex Court in
21. The learned Chief Justice, as the head of the judiciary in the State, and in over-all control of its administration, knows better than most of the brother judges know about his subordinate Judges. It is his function to appreciate their merits and demerits. He is entitled to record his comments upon them, and make his views known during relevant discussion at a Full Court meeting. Decisions regarding confirmation, promotion, supersession and the like of subordinate Judges are taken at Full Court meetings. Every High Court Judge is of the same stature, the learned Chief Justice being the first among equals. Every learned Judge is expected to contribute to the discussions of the Full Court and participate in the decisions arrived at. This mode of dealing with the confirmation, promotions and supersessions of those who man the subordinate judiciary is a sure safe-guard against arbitrary or motivated decisions. The view of the learned Chief Justice would be heard, with due respect, but it would not hold sway. It certainly cannot be said that the expression of his view by the learned Chief Justice would prevent independent consideration by the Full Court.
22. The Division Bench relied upon the comparative assessment of the records of the first Respondent on the one hand and the 39 Civil Judges who "were confirmed on 5.2.1973 on the other hand made by the Grievances Committee that considered the second representation of the first Respondent. In its view, the dissent of the one learned Judge who was a member of the Grievances Committee supported the contention that the Full Court resolution of 5.2.1973 had been passed without a comparative study of the records. Having read the dissent of the third learned Judge, we do not put this construction upon it. The learned Judge declined to evaluate the first Respondent''s merit by comparison of his record with that of the others. He declined to do so because Grievances Committee had not undertaken such an exercise in the past and there appeared to him to be no special reason why such an exercise should be performed in the case of the first Respondent. The learned Judge also drew attention to the fact that giving to the first Respondent seniority from 1973 would mean giving consideration to an old and stale grievance as also reversing decisions of the Full Court taken in 1974 and 1976. Very properly, he left it to the Full Court to decide whether the exercise of comparing the record of a candidate with that of other candidates should be undertaken not merely in the case of the first Respondent but in the case of all others who might have been superseded or not confirmed. The Full Court did not accept the recommendation of the two learned Judges of the Grievances Committee to give the first Respondent seniority as of 5.2.1973 and rejected the second representation. We think the Full Court was right. Unless there is clear indication that there has been a misinterpretation of a legal position, it is undesirable and unsafe for one Full Court to revise the decision taken by an earlier Full Court, particularly in cases of promotion, confirmation, supersession and the like.
74. In view of the aforesaid dictum, their Lordships of the Apex Court have ruled that the decision of the two learned Judges of the Grievances Committee is referred to the Full Court and the Full Court would be justified within its power either to agree with the recommendation of the Grievances Committee or the Evaluation Committee or not to agree. In the instant case the Full Court did not agree with the recommendation of the Evaluation Committee in the matters of Shri A.P. Choudhary and Shri Raja Ram Singh. The resolution and/or the conclusion of the Full Court, in my opinion, is perfectly correct and needs no interference.
75. In
In the present case, looking to the findings arrived at by the Reviewing Committee after a detailed examination of the service record of the Respondent, the order of compulsory retirement cannot be faulted on any ground. The High Court cannot examine for itself the service record of any employee and substitute its own judgment for the judgment of the Reviewing Committee. The power under the third proviso of para 19(1) has been properly exercised in this case on relevant considerations in public interest. The order cannot be termed as either arbitrary or mala fide.
76. In the instant case the service records have been filed in the case of Shri A.P. Choudhary, the first Petitioner in the first writ petition, Dr. S.N. Jha was very particular in his submission that even the service records of Shri A.P. Choudhary were better than other Judicial Officers, who were given enhanced age of superannuation. The answer to the submission of Dr. Jha that the service record was not the only factor to be taken into account, but the entire guidelines indicated by the Apex Court in All India Judges'' Association case (supra) were considered and full deliberation was made by the Full Court and thereafter it was resolved and decided that the Petitioners need not be granted enhanced age of superannuation. As the arguments were advanced, the service records were also scrutinised and in my opinion the Full Court has correctly taken decision that none of the Petitioners need be given enhanced age of superannuation.
77. In the case of Chief General Manager, State Bank of India, Bhubneshwar and Ors. v. Suresh Chandra Bahera (supra) it was the Reviewing Committee against the decision of which a writ petition was filed before the High Court. But in the instant case it is resolution and decision of the Full Court against which the present writ petitions have been filed, and as it has been emphasised by the Apex Court, the High Court cannot examine for itself the service records and substitute its own judgment after the judgment of the Review Committee. The decision of the Full Court is quite correct and the scope of judicial review is not directed against the decision arrived at by the Full Court, but only against the decision making process. This Court, therefore, in my opinion, would neither be justified to examine for itself the service records of these Petitioners, including Petitioners in first and second writ petitions, as an appellate court, nor this Court can substitute its decision for that of the expert body like the Full Court on administrative side. The scope of judicial review, in my opinion, is very narrow. It is not to be equated to the power of an appellate court. This Court in the exercise of its discretionary power under Articles 226/227 of the Constitution can not substitute its own decision for that of the Full Court. The judicial review is not against the decision but the decision making process only.
78. In view of the dictum laid down. In the aforesaid catena of the decisions rendered by their Lordships of the Apex Court and other Courts, and having regard to the facts and circumstances of the present cases, as the Full Court, on administrative side was concerned to decide the question as to whether the Petitioners can be granted enhanced age of superannuation, keeping in view the guidelines in All India Judges'' Association case (supra) the Full Court decided that the Petitioners did not deserve the enhanced age of superannuation. The judicial review is not of the decision arrived at by the Full Court but only in respect of the decision making process. I, therefore, do not find any mistake or error in the decision making process. Consequently the decision on the resolution of the Full Court is not amenable to a judicial review as the entire relevant facts including the guidelines have already been taken into account.
79. Coming to the last limb of the arguments on behalf of the Petitioners that the Full Court did not assign any reason for the decision or resolution taken or arrived at. The submission was emphatically refuted on behalf of the Respondents and it was urged that it has never been a principle of natural justice that the reason should be given by an administrative body. The same depends upon the facts and the circumstances of each case but the aggrieved person could not insist as matter of right that the reasons must be assigned for the decision or the resolutions arrived at. To have a correct answer to this, it is convenient to refer to Administrative law by H.W.R. WADE 6th Edn. page 547 where the statement has been made as under:
It has never been a principle of natural justice that reasons should be given for decision. There appears to be no such rule even in the courts of law themselves and it has not been thought suitable to create one for administrative bodies nevertheless there is a strong case to be made for the giving of reasons as an essential elements of administrative justice. (See R. v. Gaming Board for Great Britain (1970) 2B 417 Capital and Suburban Properties Limited v. Swicher (1976) Ch. 319 Pure Spring Co. Ltd. v. Minister of National Revenue (1947) 1 DLR 501 it has been stated as follows :
Although there is no general rule of law requiring the giving of reasons, an administrative authority may be unable to show that it has acted lawfully unless it explains itself.
80. In De Smith''s Judicial Review of Administrative Action, 4th Edition there is a discussion at page 402 to the effect that in England there is a Tribunal and Inquiries Act, 1958 which provides appeals on points of law by case stated or otherwise to the High Court from the decisions of several classes of tribunals from which no appeals lay previously in which a person aggrieved from statutory tribunal and wants to avail the right of appeal. He has to elect out of the two either to apply for certiorari or to prefer an appeal. To this extent the practical scope of the speaking order doctrine was narrowed. At page 406 (F) it has been pointed out that where a tribunal chooses not to give a reason for a particular decision, it is not permissible to infer on that ground alone that the decision is bad in law. In view of this it was manifest that in case one applied for the right of appeal, in that event he may require reasons to be given by the Tribunal but in case he chooses to avail the remedy of writ jurisdiction in that event the reasons were not required to be given by the administrative body.
81. But in our country there is no such statutory requirement to give reasons. As in the instant case where the Full Court makes deliberations and resolves in a matter as to whether the Petitioners were entitled to the enhanced age of superannuation or not in that event in my opinion, the Full Court was not obliged to give reasons for its decision. In absence of reasons alone, it cannot be said that the decision of the Full Court was bad in law.
82. The principles of natural justice are not strait jacket formula and even in the sphere of extending horizon of natural justice it has got several exceptions. It depends upon the facts and the circumstances of each case as to whether to apply the principles or not.
83. In
Public interest requires no compromise on it. Even the absence of hearing in the matters participating to an examinee in the Public Service Commission does not effect any interest rather it could delay the declaration of results of other candidates. The principle of natural justice was not accordingly applied. Similarly there are catena of decisions to that effect.
84. To sum up, the answers to the question posed are that these analogous writ petitions, even though on administrative side every Member of the Special Bench participated in deliberation of the Full Court, but nevertheless there is no question of bias. Apart from that Doctrine of Necessity was available and the Apex Court also directed the Petitioners to avail their remedy under Articles 226 and 227 of the Constitution. Hence these writ petitions are maintainable. The impugned order holding not to be entitled to enhanced age of superannuation, has been passed consistent with the guidelines and the principle indicated by the Apex Court in All India Judges'' Association Case (supra) and the resolution of the Full Court to that effect was consistent with the rules of compulsory retirement. The contours of the judicial review in such matters are quite narrow. It is directed not against a decision but against the decision making process only. Even though the Full Court did not assign any reason for the resolution that the Petitioners were not entitled to the enhanced age of superannuation, but that resolution was not vitiated in law. Under the facts and circumstances of the case1 no ground for interference has been made out in these five analogous writ petitions. Consequently these writ petitions are liable to be dismissed.
85. In view of the premises aforesaid these writ petitions lack merit and hence they are dismissed, but in the circumstances of the case there shall be no order as to costs.
S.N. Jha, J.
86. I have had the advantage of reading the draft judgment prepared and circulated by Brother B.L. Yadav, J. I am in full agreement with him on the question of competence of High Court to issue writs to itself on administrative side and maintainability of those writ petitions. I do not think I can make any useful addition to the discussion. I have, however, not been able to persuade myself to agree with his approach or reasonings on merit of the case. Hence, this separate judgment.
87. These five writ petitions can broadly be put in two categories; cases in which the Full Court agreed with the opinion of the Evaluation Committee and the cases in which the Full Court came to a different conclusion contrary to the opinion of the Evaluation Committee. While C.W.J.C. No. 11538 of 1994 by Sri Jiwan Tigga, C.W.J.C. No. 114 of 1995 by Shri Nagendra Narayan Singh and C.W.J.C. No. 243 of 1995 by Sri Indra Nand Pathak come in the first category, C.W.J.C. No. 534 of 1995 by Shri Anirudh Prasad Choudhary and C.W.J.C. No. 11380 of 1994 by Sri Raja Ram Singh come in the second category.
88. The first point that I propose to discuss is the jurisdiction of the Full Court. Whether the matter regarding giving or refusing to give the benefit of increased age of superannuation is to be laid before the Full Court? The point, according to me, stands settled by the decision of a Special Bench of this Court (of which I was a member) in the case of
89. Rule 3(x), aforesaid, runs as follows-
The Standing Committee shall have power, without reference to the Judges generally
(x) to make recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank:
Provided that a notice of the decision of the Standing Committee shall be circulated to the Full Court within three, days from the date of the decision and if any member of the Full Court desires, within ten days of the decision, the matter to be disposed at a meeting of the Full Court, then no action will be taken till the decision at such a meeting.
90. Dr. Sadanand Jha, learned Counsel for Shri Anirudh Prasad Choudhary, Petitioner of C.W.J.C. No. 534 of 1995, contended that in that case Sri Raza had been denied the benefit of increased retirement age and, therefore, Rule 3(x) of the Patna High Court Rules was rightly held to be applicable. But in the instant case, so far as Sri Anirudh Pd. Choudhary (also Sri Raja Ram Singh) is concerned, he had been found fit for being given the benefit of the increased retirement age and therefore, neither Rule 3(x) nor, consequently, the decision of the Special Bench in Raza''s case can be applicable. According to Dr. Jha, thus, in converse cases where the Evaluation Committee decides to give the benefit of the increased retirement age the matter is not required to be placed before the Full Court. He further pointed out that the decision was rendered on concession of the counsel for the High Court that having regard to the provision of Article 235 of the Constitution, whether Rule 3(x) in terms is applicable or notthe procedure in so far as it relates to the circulation of the decision of the Committee, should have been followed.
91. The Special Bench in Raza''s case observed :
There can be no doubt that the right of the subordinate Judicial Officers to continue in service beyond the age of 58 years flows from the review judgment and, therefore, it is necessary, to see what the judgment lays down. The relevant portion of the judgment has been quoted above. It would appear that while "the potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges", the benefit is to be made available to those who "in the opinion of the respective High Court" have the potential. It is not possible to read the two terms "appropriate committee" and "the High Court" as interchangeable expressions. Such a reading would not be in consonance with Article 235 of the Constitution. Even if two interpretations were possible the one which is in accord with the Constitutional provision should be preferred to the other.
And held:
It would appear, broadly speaking, that two interpretations of the matter are possible. According to the general or broad interpretation, the decision of the Evaluation Committee was subject to rectification by Full Court inasmuch as not only in terms of the express words used in the review judgment but also in view of the interpretation of Article 235 of the Constitution the control over subordinate judicial officer vests in the High Court as a whole and not in the Committee. According to narrow interpretation even if it is held that the Evaluation Committee was competent to finally decide the suitability of the judicial officers for their retention in service beyond the age of 58 years, in view of the procedure prescribed under Rule 3(x) of the High Court Rules laying down the manner in which the decision to compulsorily retire a Judicial Officer is to be effectuated, the matter had to be circulated amongst the Judges and in the event of dissent or otherwise the same had to be referred to Full Court for discussion and decision.
92. The above observations provide complete answer to the submission of Dr. Sadanand Jha. It is not possible to make distinction between the cases where the Judicial Officer has been found fit by the Evaluation Committee for being given the benefit of the increased retirement age and cases where the Judicial Officer has been found unfit for the same. The opinion of the Evaluation Committee with respect to both categories of cases has to be circulated/placed before the Full Court.
93. It should be kept in mind that the right of a Judicial Officer to continue upto the age of 60 years does not flow from any rule, it flows from the judgment of the Supreme Court in the All India Judges'' Association case (supra). So far as the superannuation age as contained in the statutory rules, known as Bihar Service Code in the State of Bihar, is concerned, the same remains to be 58 years. It is, therefore, necessary to see what the judgment holds in this regard. The relevant part of the judgment is as follows:
There is, however, one aspect we should emphasise here. To what extent the direction contained in the impugned judgment under review shall stand modified. The benefit of the increase of the retirement age to 60 years shall not be available automatically to all Judicial Officers irrespective of their past record of service and evidence of their continued utility to the judicial system. 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 windfall for the Indolent, the infirm, and those of doubtful integrity. 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 Justice of the High Courts and the evaluation shall be made on the basis of Judicial Officers'' past record of service, character rolls, quality of judgments and other relevant matters.
94. It would thus appear that while the benefit is to be made available to only those who, "in the opinion of the High Court have a potential for continued useful service, the potential for continued utility is to be assessed and evaluated by a Committee of Judges, called ''Evaluation Committee'' in this High Court. In other words, while the. Evaluation Committee has to assess and evaluate the potential of the Judicial Officers for their continued utility on the basis of their past record of service, character rolls, quality of judgments and other relevant matters, the final opinion in the matter of giving the benefit of the increased retirement age rests with the High Court, i.e. Full Court.
95. What is the position of the Evaluation Committee vis-a-vis the Full Court? It is not a creature of any statute (the provisions of which could show the nature and scope of its jurisdiction or authority) nor can it be said to be a delegate of the Full Court. In my opinion, when their Lordships of the Supreme Court entrusted the job of evaluation and assessment to a Committee of Judges, they clearly intended that the evaluation was to be done on behalf of the High Court without affecting the authority of the High Court as a whole, in consonance with Article 235 of the Constitution. The Committee is not a foreign body but a part of the High Court, its alter ego. The opinion of the Committee of Judges, therefore, although not binding on the High Court (as a whole), normally and ordinarily should be accepted, unless for cogent reasons the Full Court finds it to be unacceptable.
96. In
For answering this question it is necessary in the first place to bear in mind that the power of control over the subordinate courts which is vested in the High Courts comprises such numerous matters, often involving consideration of the minutest nature, that if the whole High Court is required to consider every one of those matters, the exercise of control instead of becoming effective will tend to cause delay and confusion in the administration of justice in the State. A construction which will frustrate the very object of the salient provisions contained in Article 235 ought, in so far as possible, to be avoided. The control vested in the High Court by that Article comprehends a large number of matters...if every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Court''s administrative affairs will pile into arrears like court arrears. In fact, it is not exaggeration to say that the control will be better and more effectively exercised if a smaller committee of Judges has the authority of the Court to consider the manifold matters falling within the purview of Article 235. Bearing in mind, therefore, the nature of the power which that Article confers on the High Court, we are of the opinion that it is wrong to characterise as ''delegation'' the process whereby the entire High Court authorises a Judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorisation effectuates the purpose of Article 235 and indeed without it the control vested in the High Courts over the subordinate courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Court''s constitutional functions. Judicial functions ought to occupy and do, in fact, consumes the best part of a Judge''s time. For balancing these two-fold functions it is inevitable that administrative duty should be left to be discharged by some on behalf of all the Judges. Judicial functions, brook no such sharing of responsibility by any instrumentality.
It appears to me that when in the All India Judges'' Association case (supra), the Supreme Court entrusted the work of evaluation and assessment of potential of the Judicial Officers to a committee of Judges, their Lordships had the legal position enunciated in Batuk Deo Pati Tripathi''s case (supra), quoted above, in their mind.
97. The evaluation of the potential is to be made, as noticed above, on the basis of the officer''s ''past record of services, character rolls, quality of judgments and other relevant matters''. There may be materials pertaining to past record of services, character rolls etc. which might not have been brought to the notice of the members of the Evaluation Committee. Such material (s) can certainly be discussed in the Full Court even on the basis of materials which were already before the Evaluation Committee the Judges sitting in the Full Court may think otherwise. Every Judge is entitled to have his own views and to articulate the same in course of discussion in Full Court meeting, which has to be considered with respect that it deserves. There cannot be two opinions about it.
98. What should be the manner of consideration by the Evaluation Committee or the Full Court? It is clear that no guidelines or parameters can be laid down. How the matter is to be deliberated and conclusions arrived at regarding the past record of service, character rolls, quality of judgments etc. of the officers concerned is for the members of the Evaluation Committee (or the Full Court) to decide. As the rule of audi alteram partem is not applicable the officers concerned have hardly any say in the matter. It is, therefore, of utmost importance that the decision must reflect that there was due and proper consideration. One of the ways in which this can be done is to ensure that reasons for coming to any adverse decision should be indicated.
99. The question as to whether an administrative body should record reasons for coming to the conclusions is not res Integra. Where there is statute its provisions will determine whether reasons are required to be given or not. If there is no statute an administrative authority is not obliged to give reasons and absence of reasons per se does not render the order bad. It is open to the authority, when its decision is challenged, to show that there were reasons available in the record for which it had come to that particular conclusion. But the trend of decisions not only abroad but also in India is in favour of giving of reasons.
100. In the United States the Courts have always insisted upon recording of reasons by administrative authority. There are judicial pronouncements and statutes, such as, the Federal Administrative Procedure Act, 1956, the United States Code to that effect. In England although the position at common law is that there is no requirement that reasons should be given for its decision by the administrative authority, there are observations in some judgments wherein the importance of giving reasons has been emphasised. In Bree v. Amalgamated Engineering Union (1971) 2 Q.B. 175, Lord Denning has observed:
The giving of reasons is one of the fundamentals of good administration.
In Alexander Machinery (Dudley) Limited v. Crabtree 1974 ICR 120 SIR John Donaldson has observed:
Failure to give reasons amounts to a denial of Justice.
In our own country a Constitution Bench of the Apex Court in the case of
But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority;
(ii) introduce clarity in the decisions, and
(iii) minimise chances of arbitrariness in decision-making.... These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. The said purpose would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review.
After making these observations, their Lordships summed up the legal position in these words:
Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities.
101. The point, thus, is whether in these cases the Full Court should have recorded reasons for coming to its conclusion. Normally, like any other administrative Authority, the Full Court is not required to state reasons but where it purports to reverse the decision of the Evaluation Committee, in my opinion, reasons ought to be recorded, if not for any other reason, for the sake of fair play and justice.
102. The Evaluation Committee, in the instant cases, considered the cases of these Petitioners, except that of Sri Indra Nand Pathak, in its meeting held on 28.9.94. (The case of Sri Indra Nand Pathak was considered earlier in another batch). The minutes of the proceeding, marked Annexure-7 to the writ petition in C.W.J.C. No. 534 of 1995, so far as relevant, runs as follows:
Having considered the principles and guidelines laid down by the Supreme Court; and
Having considered the question as to whether the benefit of the increased retirement age from 58 years to 60 years in terms of the said judgment/order shall be made available to the concerned Judicial Officers of this State; and
Having considered the question of potential for continued useful service of the Judicial Officers concerned; and
Having considered the records of services, character rolls, quality of judgments and other relevant matters including the general reputation regarding integrity, efficiency and honesty of the Judicial Officer concerned and upon evaluation made of the same;
It is resolved that
the benefit of increase of the retirement age from 58 years to 60 years be made available to the following concerned Judicial Officers:
1. ....
2. ....
3. Shri Anirudh Prasad Chaudhary
4. Shri Raja Ram Singh
5. ....
6. .... etc.
It is further resolved that
Such benefit be not made available to the following concerned Judicial Officers:
1. ....
2. Shri Jiwan Tigga
3. Shri Nagendra Narain Singh....
Relevant part of the resolution of the Full Court in the meeting held on 3.12.94., as regards the Petitioners herein (except Sri Indra Nand Pathak whose case had been considered alongwith others in earlier batch) runs as follows:
(ii) The decision of the aforesaid Evaluation Committee not allowing the benefit of enhancement of age from 58 years to 60 years is accepted and approved in respect of the following three officers:
1. ....
2. Shri Jiwan Tigga
3. Shri Nagendra Narain Singh
(iii) The Full Court differs with the commendation of the aforesaid Evaluation Committee and resolves by majority that the benefit of enhancement of retirement age from 58 years to 60 years be not allowed to the following two officers:
1. Sri Anirudh Prasad Choudhary
2. Sri Raja Ram Singh.
103. It would thus appear that while the Evaluation Committee after taking into consideration the records of service, character rolls, quality of judgments, general reputation regarding efficiency, integrity and honesty of the Judicial Officers concerned came to the conclusions, as indicated herein above, the Full Court simply "differed with the recommendation of the Evaluation Committee" without indicating the reasons of disagreement whatsoever. Whether such a decision can be said to be in conformity with the rules of natural justice? It is well settled principle that while an authority exercising appellate or supervisory powers is not required to state the reasons for coming to the same conclusion, in case of disagreement reasons should be indicated. The reasons may not be elaborate as is expected of Courts or Tribunals but it should certainly indicate something which could convey, that the authority has considered the matter but for certain reasons had come to a different conclusion.
104. The Courts have always made distinction between decisions of affirmance and decisions of reversal and it has been held that while the authority confirming the decision of an inferior authority is not required to state the reasons, where it proposes to reverse the decisions, reasons should be indicated. In
Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons. What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. The nature and the elaboration of the reasons necessarily depend upon facts of each case.
Bachawat, J. in the same case in his concurring judgment also observed that "There is vital difference between order of reversal and order of affirmance". Reference may also be made to Constitution Bench decision in the earlier case of
105. The members of this Special Bench, no doubt, had participated in the proceeding of the Full Court. The point is not whether there were good reasons which weighed with the members of the Full Court to differ from the opinion of the Evaluation Committee and come to a contrary conclusion. The point is that the Petitioners, i.e. the persons aggrieved ought also to know and feel, that there were reasons for which they were denied the benefit of extended age. Unless reasons are disclosed, howsoever brief they may be, how would they know as to what transpired within the four walls of the meeting room or, to put it bluntly, whether his case was considered at all Justice is not only to be done but also appear to have been done, goes the oft-quoted saying. Generally speaking, without meaning affront or disrespect to the authors of the minutes of the proceeding of the Full Court to which I am also a signatory, can it not be said by an aggrieved person that the kind of observation or statement made in the minutes that "The Full Court differs with the recommendation of the Evaluation Committee" can be fitted in every case?
106. It should be kept in mind that in terms of the judgment of the Apex Court in the All India Judges'' Association case (supra) the retirement age stands extended to 60 years. This is evident from the conclusion portion of the judgment (at page 2515 of AIR) which is as follows:
While superannuation age of every subordinate Judicial Officer shall stand extended up to 60 years, respective High Court should, as stated above, assess and evaluate the record of Judicial Officer for his continued utility. (emphasis by me)
It is thus not a matter of giving any additional advantage. The cases of Judicial Officers are to be considered only because the benefit of the extended retirement age is not to be given automatically; it is subject to evaluation and assessment of their potential. There cannot be any doubt that the Judicial Officers have acquired a right of consideration for being given the benefit of the increased, retirement age from 58 years to 60 years.
107. It is true, as Brother Yadav, J. has taken pains to point out, that a judicial review is not of the decision but of the decision-making process. The High Court on its judicial side is not supposed to sit and reappraise the materials as an appellate authority and substitute its own finding or opinion in place of the opinion of either the Evaluation Committee or the Full Court. But there cannot be any doubt that if the decision is found to be arbitrary the Court is not precluded from exercising its power of judicial review. Whether the action or the decision of the Full Court in the facts of these cases can be said to be arbitrary? I have already stated above that the minutes of the proceeding of the Full Court do not disclose any reason for coming to the conclusion different from the one reached by the Evaluation Committee. As Brother Yadav, J. has said in his proposed judgment, the High Court in its writ jurisdiction is not expected to go into the facts, to reappraise them and come to its own conclusion; it has only to see that the decision was arrived at in the correct manner. I ask a question to myself, ''Had I not participated in the proceeding of the Full Court and then this matter would have come before me on the judicial side, could I have felt confident and assured myself that the decision was taken in the correct manner? Now, ail that is before the Court is the minutes of the proceeding of the Evaluation Committee and the Full Court. If one goes by presumption that an august body like Full Court must have deliberated upon the matter and come to the conclusion in the correct manner, that would be end of the matter. But can there be any presumption like that in law? If that were so, there would be a few cases in which the decision making process could be said to be vitiated. Where there are rules laying down the procedure of decision-making it may be easy to find fault with the decision-making process but where there are no rules one has only to see whether there is violation of rules of natural justice, in the present case I am of the view that non-mentioning of reasons of disagreement is not a matter which can be lightly ignored. It is something which goes to the root of the matter and renders the whole decision arbitrary and violative of the rules of natural justice and fair play, and, as is well settled, anything that is arbitrary is judicially reviewable.
108. In the well known cases of
In the year 1990, it is not necessary for me to discuss in detail the authorities which have widened the horizons of Article 14 of the Constitution. Some of these precedents are directly on the point inasmuch as the validity of similar service rules was considered there. It is enough if I summarise the position of law as it obtains today.
There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individual, however, high placed they may be it is all the more Improper and undesirable to expose the previous rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite, to say that, the individuals are not and do not become wise because they occupy high seats, of power, and good sense, circumspection and fairness does not go with the posts, however, high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both wise and impolitic to leave any aspect of its life to be governed by discretion When it can conveniently and easily be covered by the rule of law.
The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental right and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
In an earlier case,
It thus appears well settled that Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equality of protection by law. The Constitution Bench pertinently observed in Ajay Hasia''s case and put the matter beyond controversy when it said ''wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action''. This view was further elaborated and affirmed in
109. For the reasons stated above and in view of the law laid down by the Apex Court, I find it difficult to hold that cases of Shri Anirudh Prasad Choudhary and Shri Raja Ram Singh are not amenable to judicial review.
110. Dr. Sadanand Jha and Mr. Shyama Prasad Mukherjee, learned Counsel for Sri Anirudh Prasad Choudhary and Sri Raja Ram Singh, were at pains to point out that their clients had far better record of service than those who were given the benefit of the increased retirement age by the same Full Court. They also referred to the case-law on compulsory retirement and submitted that service records do not at all justify the denial of the benefit. I do not, however, propose to deal with this aspect of the matter, for in any opinion, their cases deserve reconsideration by the Full Court and I propose to refer them back to the same for that purpose. Any expression of opinion on judicial side therefore would not be proper.
111. My conclusions, therefore, are that (i) these writ petitions are maintainable, (ii) High Court can issue writ to itself on administrative side, (iii) Normally and ordinarily the opinion of the Evaluation Committee as the alter ego of Full Court should be accepted by it unless there are cogent reasons and materials for coming to another conclusion, (iv) In which event the reasons of disagreement howsoever briefly should be indicated.
112. C.W.J.C. Nos. 11380 of 1994 and 534 of 1995, as indicated above, are cases in which the Full Court differed from the opinion of the Evaluation Committee. For the reasons stated above, they are fit to be allowed. So far as the other three cases are concerned, the Full Court affirmed the opinion of the Evaluation Committee, the minutes of the proceeding of which contain reasons for coming to adverse conclusions. The Petitioners of these cases, therefore, are not entitled to similar relief.
113. In the result, C.W.J.C. Nos. 11380 of 1994 and 534 of 1995 are allowed. Let mandamus issue to the Full Court to reconsider the cases of these Petitioners as early as possible. C.W.J.C. Nos. 11538 of 1994, 114 of 1995 and 243 of 1995 are dismissed. There will be no order as to costs.
114. Before I part, I would like to express my regret for the delay in delivering this judgment. I also feel that the points involved required more home work and better treatment than I have been able to give. But this was mainly because of constraints of time.
R.N. Prasad, J.
I agree with judgment of Brother B.L. Yadav, J.
S.K. Singh, J.
I agree with the judgment of S.N. Jha, J.
Atab Alam, J.
I have had the benefit of going through the separate (and in part differing) judgments prepared by B.L. Yadav and S.N. Jha, JJ. I am in complete agreement with Their Lordships that the objections raised by Mr. Basudeo Prasad, learned Counsel for the High Court, regarding the maintainability of these writ petitions were devoid of any substance. I fully share the view with Their Lordships that these writ petitions are perfectly maintainable and in an appropriate case, the High Court can issue a writ to set aside or rectify a decision taken by it on the administrative side. In this regard, I have nothing useful to add to what has been said by Yadav, J.
115. I am also in agreement with Their Lordships that C.W.J.C. Nos. 11538 of 1994, 114 of 1995 and 243 of 1995 are fit to be dismissed and in respect of those cases I have nothing more to say.
116. However, in so far as C.W.J.C. Nos. 11380 of 1994 and 534 of 1995 are concerned, I am unable to subscribe to the view expressed in the judgment prepared by S.N. Jha, J. that the omission by the Full Court to record reasons for its decision would without anything more render the decision unsustainable in law. I agree with B.L. Yadav, J. that these writ petitions too are fit to be dismissed. I would, however, like to record my reasons separately.
117. The facts of the two cases (C.W.J.C. Nos. 11380 of 1994 and 534 of 1995) are very brief and undisputed. Those are very adequately stated in the judgment of B.L. Yadav, J. There is, therefore, no need to repeat them here.
118. The benefit of extending the age of retirement from 58 years to 60 years was conferred on the Judicial Officers by the Supreme Court by its decision in
There is, however, one aspect we should emphasise here. To what extent, the direction contained in the main judgment under review shall stand modified. The benefit of the increase of the retirement age to 60 years shall not be available automatically to all Judicial Officers irrespective of their past record of service and evidence of their continued utility to the judicial system. 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, infirm 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 Justice 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 judgment and the other relevant matters.
The High Court should undertake and complete the exercise in cases of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective service rules applicable to the Judicial Officers. Those who will not be found fit and eligible by this standard, should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 years by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officer for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for compulsory retirement and the compulsory retirement at the earlier stage/sunder the respective service rules.
It may be noted here that the Supreme Court said "the benefit will be available to those who in the opinion of the respective High Courts...." It was then said, "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 Justice of the High Courts....
119. At this stage, it may be recalled that earlier one Judicial Officer Syed Iqbal Ali Imam Raza was found unsuitable and not entitled to the benefit of the increased age of superannuation by the Evaluation Committee constituted by the Chief Justice for this purpose and on the basis of the decision of the Evaluation Committee he was made to superannuate from service at the age of 58 years. He challenged the decision to superannuate him at the age of 58 years. The matter was heard by a Special Bench consisting of five Hon''ble Judges of this Court. One of the questions that arose for consideration in that case was whether It was the Evaluation Committee or the High Court which was competent, in the light of the judgment of the Supreme Court, to take the final decision on the question of retirement of a Judicial Officer at the age of 58 years? The stand taken by the Petitioner in that case was that it was the High Court which alone was competent to take a decision on that question and any decision by the Chief Justice or by any committee constituted by him was not final and hence of no effect. A two fold submission was advanced in support of this stand. It was first submitted that the observations made by the Supreme Court in the above quoted paras from the review judgment and the provisions contained in Article 235 of the Constitution left no room for doubt that the power to take the final decision on the question vested in the High Court and not in any Committee. It was secondly submitted that the Supreme Court in the review judgment had said that the evaluation should be made following the procedure for compulsory retirement as laid down in the respective service rules applicable to the Judicial Officers. It was accordingly pointed out that the proviso to Rule 3(x) of the Patna High Court Rules provided that a notice of the decision of the Standing Committee to recommend the compulsory retirement of any Judicial Officer should be circulated to the Full Court within three days from the date of the decision and if any member of the Full Court desired, within ten days from the decision, the matter to be discussed at a meeting of the Full Court, then no action should be taken till the decision at such a meeting.
120. Hon''ble Mr. Justice S.N. Jha who wrote the judgment for the Special Bench (reported in 1994 (2) PUR 453) held, vide para 14 of the judgment, as follows:
It would appear, broadly speaking that two Interpretations of the matter are possible. According to the general or broad interpretations, the decision of the Evaluation Committee was subject to ratification by Full Court inasmuch as not only in terms of the express words used in the review judgment but also in view of the interpretation of Article 235 of the Constitution, the control over subordinate Judicial Officers vests in the High Court as a whole and not in the committee. According to narrow Interpretation even if it is held that the Evaluation Committee was competent to finally decide the suitability of the Judicial Officers for their retention in service beyond the age of 58 years, in view of the procedure prescribed under Rule 3(x) of the High Court Rules laying down the manner in which the decision to compulsorily retire a Judicial Officer is to be effectuated, the matter had to be circulated amongst the judges and in the event of dissent or otherwise, the same had to be referred to Full Court for discussion and decision.
His Lordship further held vide para 15 of the judgment:
In the instant case, in view of the admitted position that the decision of the Committee was not circulated amongst the Judges and, as a result whereof, the other Judges of the Court did not have occasion to consider the matter it has to be held that the impugned communication (Annexure-12) directing that the Petitioner be ceased to be a member of the judicial service of the State on his attaining the age of 58 years on the basis of the decision of the Committee is not in accordance with law.
The question thus no longer remains resintegra and it stands conclusively settled by the pronouncement of the earlier Special Bench that the decision of the Evaluation Committee on the question whether a Judicial Officer, is entitled to the benefit of enhanced age of superannuation is not final and the decision would attain finality as and when it receives ratification by the Full Court.
121. At this stage, it may again be recalled that in Raza'' case the Evaluation Committee had found him not entitled to the benefit of the enhanced age of superannuation and, therefore, in the light of the directions of the Supreme Court in the review judgment the proviso to Rule 3(x) of the High Court Rules was plainly and directly attracted in his case.
122. Now, in a converse case where the Evaluation Committee has found an officer suitable for granting the benefit of the extended age of retirement, (as in the case of A.P. Choudhary, Petitioner in C.W.J.C. No. 534/1995 and R.R. Singh, Petitioner in C.W.J.C. No. 11380/1994) there is no question, of any application of the proviso to Rule 3(x) of the High Court Rules for the simple reason that there is no recommendation by the Committee to compulsorily retire the officer. But in such case also the decision of the Evaluation Committee will have to be ratified by the Full Court in view of Article 235 of the Constitution and the observations of the Supreme Court made in the review judgment. And the decision of the Evaluation Committee shall remain ineffective unless it is ratified by the Full Court.
123. Again in case the Full Court, disagreeing with the decision of the Evaluation Committee, took the view that the officer was not fit to be retained in service beyond 58 years then also no grievance can be made on the basis of Rule 3(x) of the High Court Rules inasmuch as the decision being of the Full Court and not of any Committee there would be no application of the proviso to that rule.
124. Coming now to the question of suitability of a Judicial Officer to be retained in service beyond the age of 58 years it is to be noted that, the Supreme Court has expressly laid down the guidelines in very definite, clear and unambiguous terms. It is mandated that the benefit of the enhanced age of retirement is not to come automatically and only such officers are entitled to the benefit who show evidence of continued utility to the judicial system and who in the opinion of the High Court have a potential for continued useful service; the indolent the infirm and those who with doubtful integrity, reputation and utility are not to be allowed to burden the system for a further period of two years. It is thus evident that the consideration of the questions would involve both negative and positive aspects. On the one hand the officer under consideration must not be indolent, infirm or of doubtful integrity, reputation and utility and on the other hand he must show evidence of continued utility to the judicial system and in the opinion of the High Court he should have potential for continued useful service. (It is both the absence of the former negative aspect and the presence of the latter positive aspect that would entitle the officer to be retained in service to the enhanced age of retirement at 60 years). Putting it differently the benefit to the individual is not intended at the expense of the judicial system but is meant to improve and strengthen the system.
125. The Supreme Court has also indicated the materials on the basis of which the question of suitability of an officer is to be examined; these are the Judicial Officer''s past record of service, character rolls, quality of judgment and other relevant matters.
126. In my opinion every member of the Evaluation Committee and every member of the Full Court must be deemed to be fully conscious and aware of the aforesaid guidelines laid down by the Supreme Court and when a Judicial Officer is subjected to evaluation for the purpose of granting the benefit of the enhanced age of retirement every member of the Evaluation Committee and the Full Court must be deemed to have carefully applied the guidelines laid down by the Supreme Court to his case. The perception of the different members of the committee or the Full Court may differ in respect of an individual officer but for that reason alone it cannot be said that the guidelines laid down by the Supreme Court were not correctly applied; for, it is evident that different persons may arrive at different conclusions applying the same guidelines. It must, therefore, be presumed that every decision of the Full Court, regardless of whether it was in, agreement with the decision of the Evaluation Committee or differing from it was correctly arrived at after due and careful application of the guidelines laid down by the Supreme Court. This being the axiomatic position the onus will be heavy upon any one challenging the Full Court''s decision to show that the decision arrived at without following the guidelines laid down by the Supreme Court or that on the basis of the materials indicated by the Supreme Court a reasonable person could have arrived at that decision.
127. In the following lines, I propose to consider how this proposition would work out in practice when a decision of the Full Court comes under challenge before the Court. It may here be noted that the only cases where the decision of the Full Court comes under challenge would be those where the Full Court has decided against an individual officer. The decision of the Full Court holding any officer entitled to the benefit of the enhanced age of retirement can be challenged only by some one else but in such a case the challenge will be hardly worth examining. However, in cases where the decision is against an officer, the concerned persons, as in this batch of cases, may challenge the decision and take the matter to the judicial side of the Court and in appropriate cases the Court may have to examine the challenge on merit and in some detail. In those cases there may not be any difficulty if the Full Court has also assigned some reasons in support of its decision. For, in such cases'' it can be easily tested whether the reasons given by the Full Court are in accordance with the guidelines laid down by the'' Supreme Court. Difficulty may arise, however, in cases where the Full Court does not give any reasons for its decision. But in my opinion the difficulty will be easily surmountable and there should be no problem in satisfactorily examining the challenge to the decision of the Full Court.
128. At this stage, I may pause and venture to make some respectful suggestions to the Full Court to be taken into consideration when it next takes up the matter of evaluation of the Judicial Officers.
129. It is first suggested that the decisions of the Evaluation Committee are entitled to more than the useful respect which the Full Court accords to the opinions/recommendations of the various committees of Judges'' constituted by it. It is to be borne in mind that the Evaluation Committee is not a consultative or advisory body but it is a Committee constituted according to the directions of the Supreme Court for the specific purpose of evaluation of the Judicial Officer. Its decisions, therefore, must be considered with the utmost respect and must not be over-ruled easily or lightly. This, however, is not to say that the Full Court is to be denied any deliberations on the matter and It must mechanically put its seal of approval to the decisions of the Evaluation Committee. The very object of the matter coming to the Full Court is that it should receive due consideration from the larger body of Judges which together constitute the High Court. But while considering the matter it should give due importance to the decisions of the Evaluation Committee and should take a contrary view only for substantial reasons.
130. It is secondly, suggested that at least in cases where the Full Court has taken the decision against the officer, it should as far as practicable, briefly record the reasons for its decision. The need for recording the reasons would be even greater in cases where the Full Court decides against the officer, over-ruling the Evaluation Committee''s decision in favour of the concerned officer. I am conscious that it may not be always possible for the Full Court to record the reasons for its decision holding an officer not suitable to be retained beyond the age of 58 years, for example, in a case where the members though sharing the same view have different reasons to hold that view. But obviously such cases would be few and far between and generally it should not be difficult for the Full Court to briefly record the reasons for its decision.
131. The question to be considered next is what would be the consequence if the Full Court does not record the reasons for its decision. Can it be said that the omission to record the reasons without anything more would vitiate the decision and render it unsustainable in the eye of law? I record this extreme proposition because such suggestion was made in the course of hearing of this batch of cases. For my part, I am not prepared to accept such a proposition even for a moment. I am not aware of any principle of natural Justice providing that for want of reasons recorded in support of a decision taken on the administrative side, it must be held bad. In Administrative Law by H.W.R. Wade, Fifth Edition, page 486, it has been stated as fallows:
It has never been a principle of natural justice that reasons should be given for decisions. Since there is no such rule even in the Court''s of law themselves, it has not been thought suitable to create one for administrative bodies.
It will also be useful here to refer to a five Judges Bench decision of the Supreme Court in
The function of the Government is administrative. In law administrative decisions are not generally required to be accompanied by a statement of reasons. There is nothing in the Industrial Disputes Act or the notification aforesaid requiring the State Government to state its reasons in support of its conclusions. There was nothing particular in the present case impelling the issuance of such a direction to the State Government.
The five Judges Bench of the Supreme Court approved the above quoted observations of the Division Bench of the High Court in the following words:
We find ourselves in complete agreement with the view taken by the High Court on this point. In a diverse society such as ours, the Government has to work through several administrative agencies which have got a very wide sphere and if every administrative order is required to give reasons, it will bring the Governmental machinery to a stand still. It is well settled that while the rules, of natural justice would apply to administrative proceedings, it is not necessary that the administrative orders should be speaking orders unless the statute specifically enjoins such a requirement. But we think it desirable that such orders should contain reasons when they decide matters affecting rights of parties.
(emphasis added)
In view of the above authority, I feel that it would amount to putting absolutely uncalled for and too much of a fetter on the Full Court to impose the condition that its decisions would be bad unless it also recorded reasons in support thereof. It will be hardly befitting the constitutional position of the Full Court.
132. But, then the aggrieved persons may legitimately ask how is he going to ventilate his grievance against the decision of the Full Court and how would the Court be able to effectively examine his grievance ? In answer to this I would that if such a decision comes under challenge before the judicial side, the High Court alongwith its reply affidavit must place the entire relevant records for the scrutiny of the judicial side so that the Judges may test the challenge to the decision with reference to the relevant records. But the aggrieved persons may say that it still left him dependent upon the Court (on the administrative side) and may ask what would happen if the High Court did not file a counter affidavit at all or filed an affidavit without enclosing the relevant record. In such a situation, when the Full Court does not record any reason for its decision and the High Court (on the administrative side) does not produce the relevant record even when that decision comes under challenge, the desired object can still be achieved by the simple device of calling for the records. The aggrieved person may satisfy the Court regarding the necessity of the relevant records for appreciating/testing" his challenge to the decision and in appropriate cases the Court may on its own or on a prayer made by the aggrieved person, call for the entire records or such of the documents as it may consider relevant.
133. In this case, I am surprised that it did not occur to the Petitioners to take this course although both of them were members of superior judicial service and have considerable experience of judicial work. R.R. Singh, Petitioner in C.W.J.C. No. 11380/1994, appeared to be quite contended with the counter affidavit filed in his case on behalf of the High Court and A.P. Choudhary, Petitioner in CWJC No. 534/1994, adopted a course which must be thoroughly disapproved.
134. Given above is the broad out-line of what I consider to be the correct legal position in matters pertaining to consideration of Judicial Officers for being retained in service beyond the age of 58 years and to cases coming to Court where a Judicial Officer seeks to challenge a decision in this regard taken against him by the Court on the administrative side. I now propose to consider the submissions advanced on behalf of the Petitioners in the two cases in the light of the general principles outlined above.
135. In C.W.J.C. No. 11380/1995, Mr. Shyama Prasad Mukherji, learned Counsel appearing on behalf of the Petitioner R.R. Singh, assailed the decision of the Full Court not to allow him the benefit of the enhanced age of retirement on the following grounds:
(i) There was no material before the Full Court to come to the inference that the Petitioner had no potential for continued useful service.
(ii) The decision of the Full Court was based on non-existent and irrelevant materials; and
(iii) The Full Court could not have travelled beyond what was there in black and white in the Petitioner''s service record and character rolls.
It may be noted that ground No. (iii) is apparently contrary to the direction of the Supreme Court inasmuch as in the review judgment, the Supreme Court said:
...and the evaluation shall be made on the basis of the Judicial Officers past record of service, character rolls, quality of judgment and other relevant matters.
(emphasis added)
This ground must, therefore, be summarily rejected.
136. Now coming to grounds (i) and (ii) it may be noted that these are not two different and separate grounds but in reality run into one another; hence, they are taken up together for consideration.
137. In the counter affidavit filed on behalf of the High Court, some of the materials which were before the Full Court while considering the case of this Petitioner are enumerated in the various Sub-paragraphs of paragraph 3. In paragraph 3 (ii) it is stated that while the Petitioners was posted as the District and Sessions Judge, Sitamarhi, (from 23.3.1991 to 2.11.1992) complaints were received that he had been showing favour on caste basis and was passing arbitrary bail orders; propriety of some bail orders passed by the Petitioner in some cases was also questioned. The allegations were enquired into by the Hon''ble Mr. Justice Choudhary S.N. Mishra, who at the material time was the Inspecting Judge of Sitamarhi Judgeship. In the enquiry report, the Hon''ble Judge observed as follows:
I am satisfied that grant of anticipatory bail to accused, Ashok Kumar Singh, and refusing the privilage to the other four co-accused persons in another anticipatory bail petitions, who are similarly situate as the former, smacks by extraneous considerations on the part of the learned Sessions Judge. I am further satisfied that the grievances of the Judicial Officers as well as the member of the bar to some extent seems to be genuine.
It is further stated in the counter affidavit that this enquiry report was considered by the Standing Committee in its meeting held on October 23 and 24, 1992, and it was decided that the Petitioner be transferred to Giridih.
138. It paragraph 3(iii) of the counter affidavit, it is stated that another petition was received from the lawyers of Sitamarhi Bar Association alleging that the Petitioner as the District Judge was a mis-behaved and ill-mannered person. He was in the habit of rebuking and chiding his subordinate Judicial Officers in his chamber within the hearing of the lawyers and the litigant public. He scolded and abused his Clerks and Peons and also misbehaved with lawyers in open Court. It was also alleged that he did not treat all lawyers equally but had maintained close relations with a few lawyers, who received patronage from him in the form of favourable orders in bail matters. On enquiry the Hon''ble Inspecting Judge of Sitamarhi observed that two divergent versions had come to light and correctness of either of them could not be confirmed. The Hon''ble Judge opined that since the District Judge had already been transferred from that Judgeship no further action was needed.
139. In paragraph 3(iv) of the counter affidavit it is stated that another allegation petition came to the Inspecting Judge of the Judgeship of Giridih where the Petitioner had gone on transfer from Sitamarhi in this petition also there were allegations of various administrative irregularities and it was also alleged that he granted bail only in cases in which a particular lawyer appeared. The Inspecting Judge inspected the Judgeship on September 23 and 24, 1994, to enquire into the allegations and gave his formal report on December 5, 1994, in which be found the allegations substantially true.
140. There, thus, appears to be a chain of grave allegations against the Petitioner which at least in two cases were found to be substantially correct. I am not taking into consideration the other meterials mentioned in the counter affidavit.
141. In the rejoinder affidavit filed on behalf of the Petitioner it is stated that in so far as the Sitamarhi allegations are concerned, the remarks of the Inspecting Judge made in his enquiry report were never conveyed to him and, hence, the same could not be used against him. In case of the Giridih allegations and the report of the Inspecting Judge finding them to be substantially true, it is stated that the report was dated December 5, 1994, whereas the Full Court meeting had taken place earlier and, hence, the report and any remarks made therein were quite irrelevant.
142. In my opinion the objections raised on behalf of the Petitioner are devoid of any substence. The Giridih allegations had been received in the High Court much earlier and the Inspecting Judge had inspected the Judgeship on September 23 and 24, 1994, in course of which he found the allegations substantially true. The Full Court meeting in which the case of the Petitioner came up for consideration was held on December 3, 1994 and it is, thus, obvious that at the time of the consideration of his case, the irregularities comitted by him at Giridih were fully within the knowledge of the Inspecting Judge and may be some other Judges on the basis of which they could have formed an opinion regarding his continued usefulness to the service. There was nothing to prevent the members of the Full Court from taking into consideration the Giridih allegations against the Petitioner and to judge his case in the light of those allegations even though, a formal report was submitted by the Inspecting Judge two days after the Full Court meeting.
143. At this stage, I would also like to point out that what falls for consideration before this Court is not as to whether on the materials before it the decision of the Full Court not to retain the Petitioner in service beyond the age of 58 years was right or wrong. What falls for consideration is whether on the materials before it can the decision of the Full Court be said to be reasonable or is it so unreasonable as to warrant an interference on the judicial side. The test is not what I should have decided on the basis of the materials as stated above; in fact, the Evaluation Committee on the basis of the same materials had decided in favour of the Petitioner. But, in case the Full Court taking a contrary view decided to make the Petitioner superannuate at the age of 58 years in my considered opinion the decision cannot be said to be unreasonable, arbitrary or based on no materials or on extraneous considerations. It Will not be out of place to recall here the oftquoted words of Lord Hailsham I.C. in re W. (an Infant) 1971 A.CC. 682 that two reasonable parents (or persons) can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable and that not every reasonable exercise off judgment is right, and not every mistaken exercise of judgment is unreasonable. I am, therefore, of the considered view that in this case the decision of the Full Court does not warrant any interference from the judicial side of the Court and no relief can be granted to the Petitioner.
144. In C.W.J.C. No. 534 of 1995, Dr. Sadanand Jha appearing for the Petitioner, A.P. Choudhary, submitted that the age of superannuation of the Judicial Officers was raised to 60 years by the decision of the Supreme Court and disallowing an officer to continue in service till that age amounted to compulsory retirement. He further submitted that Rule 3(x) of the Patna High Court Rules laid down the procedure to be followed in case of compulsory retirement of an officer and the provisions contained in this rule read with Rule 74 of the Bihar Service Code must be followed in all cases where an officer is to be disallowed the benefit of enhanced age of retirement or in other words he is compulsorily retired from service. In this case the Petitioner was made to retire at the age of 58 years without following the procedure laid down in the aforesaid provisions and, therefore, the action was bad and unsustainable in law. He also submitted that the decision of the Standing Committee (in this case the Evaluation Committee) in terms of Rule 3(x) becomes the decision of the High Court and the Evaluation Committee having taken the decision in favour of the Petitioner his case was not required to be referred to the Full Court. Hence, the decision of the Full Court was superfluous, inoperative and unenforceable. Learned Counsel also submitted that the earlier Special Bench decision in Raza''s case (supra) was based on a concession made by the counsel for the High Court and that considerably diluted its value as a binding precedent.
145. Before proceeding to examine the other submission made on behalf of the Petitioner, I would first like to dispose of the afore-mentioned points raised by the learned Counsel.
146. I am unable to accept the submission that the earlier Special Bench decision in Raza''s case does not qualify as a binding precedent. It is true that the counsel for the High Court had admitted that the decision taken about Raza, coming under challenge in that case, not being the decision of the High Court as a whole was not sustainable in law. It is, however, wholly incorrect to say that the judgment was based on the concession made by the counsel. In fact, in paragraph 11 of the judgment, it was observed as follows:
Nevertheless it has to be seen whether the concession is in accordance with law.
And thereafter the judgment went into a detailed examination of the material provisions, quite independent of the concession made by the counsel, to arrive at its conclusion and to lay down the law. I have no doubt, therefore, that the earlier Special Bench decision in Raza''s case is a fully binding precedent.
147. On the basis of Raza''s case I have held earlier in this judgment that the decision of the Evaluation Committee on the question whether a Judicial Officer is entitled to the benefit of the enhanced age of superannuation is not final and the decision would attain finality as and when it receives ratification by the Full Court. Therefore, the submission that the case of the Petitioner was not required to be referred to the Full Court must be rejected.
148. The submission that the decision of the Standing Committee, in terms of Rule 3(x) of the High Court Rules becomes the decision of the High Court must also be rejected for the same reason. Moreover, this submission is not supported by the plain language of Rule 3(x) and as shown earlier in this judgment, the provisions of Rule 3(x) had no application to the facts of this case inasmuch as the decision of the Evaluation Committee was not to superannuate the Petitioner at the age of 58 years but to allow him the enhanced age of retirement.
149. The submissions based on Rule 74(2) of the Bihar Service Code are also fully covered by the judgment in Raza''s case (vide paras 7, 24 and 25).
150. The next submission made on behalf of the Petitioner was that the decision of the Full Court not to allow him the benefit of the enhanced age of retirement was arbitrary and discriminatory inasmuch as the Full Court had allowed this benefit to officers with much inferior record of service and character rolls than the Petitioner. In my view, this submission is quite misconceived. It puts undue stress on the record of service and character rolls and tends to limit the basis of evaluation only to the entries made in those records. It is true that normally a member of the Full Court would ''know'' a Judicial Officer through his service record, character rolls and his judgments and would be able to evaluate him on those basis but the evaluation of Judicial Officers for the purpose of the enhanced age of retirement cannot be, in every case, rigidly limited to these sources alone. In a given case there may be other means of knowledge, for example, a Judge of the High Court, by virtue of his being the Inspecting Judge of a district may know an officer through personal contact and various other sources and may form an objective opinion about him on that basis. There is nothing to prevent a Judge from expressing his objective opinion about an officer in course of the deliberations in the Full Court and no objection can be taken if that becomes the over riding factor in evaluating the officer. In this case it may be noted that the petitioner had been posted as the Registrar General of the High Court on 1.1.1994. For about 15 months in that position he had inter-acted with many Judges of this Court and was watched by almost all the Judges who had, thus, an occasion to assess and evaluate him and to form an opinion about him which might not have been fully and correctly reflected in his service record and character rolls. The submission, therefore, that the Full Court could take only one decision (in his favour) on the basis of his service record and character rolls does not impress me, specially in the facts and circumstances of this case.
151. At this stage, I would also like to briefly examine the manner in which the writ petition has been drafted and the documents which have been enclosed with it as annexures. The writ petition contains detailed statements regarding the deliberations made and the decisions taken in the various meetings of the Evaluation Committee and the Full Court. Similarly High Court records and confidential documents for which there is no reason to go into private hands have been freely used as annexures to the writ petition. From Annexure 3 at page 55 to Annexure 21 ending at page 167, there are numerous confidential records of the High Court which are enclosed as annexures. Annexure 3 and Annexure 4 "series are the extracts from the Petitioner''s character roll; Annexure 5 Series are the photostat copies of the confidential remarks about, the Petitioner recorded by the different Inspecting Judges of the High Court; Annexure 5/5 is the remark, dated 28.5.1994, entered in the Green Book, volumn 3 by the then Chief Justice of the High Court; Annexure 6 is a copy of the minutes of the proceeding of the Evaluation Committee held in the chamber of the Hon''ble the Chief Justice of Patna High Court on November 12, 1993; Annexure 6/1 is the proceeding of the Full Court meeting held on October 1, 1994. There are also annexures which are copies of the character rolls of several other Judicial Officers, who according to the Petitioner, were retained in service though with an inferior service record than the Petitioner. The list of annexures goes on and on and there appears to be no document which the Petitioner might have considered too confidential to be bared in public.
152. For over two decades it has become customary to file writ petitions in this High Court enclosing documents from the Government Departments as annexures. Quite often the photostat copy of the entire relevant Government file is brought before the Court as an annexure to a writ petition. The Court has become used to consider those documents without asking any question as to how they were procured.
153. However, this is the first time, in my knowledge that the confidential records of the High Court have been purloined and openly used and that also by a person, who in his official capacity was supposed to be the custodian of those records. I must painfully record that in doing so the Petitioner''s clearly misused his official position.
154. I have given this matter my most anxious consideration and after taking into account all aspects of the matter I find myself unable to over look the Petitioner''s action. For, over looking it at this stage would amount to telling all the Judicial Officers that there is nothing wrong in procuring the confidential records of the High Court by whatever means and they may do so with the assurance that as and when they would use them, no questions would be asked as to how those records were procured.
155. I am, therefore, of the view that by this action, the Petitioner has disentitled himself to the discretionary relief from the High Court under Articles 226 and 227 of the Constitution and it also appears to me that the Full Court showed great perspicacity in assessing him and after all the decision of the Full Court was right and justified, notwithstanding the service record and the character rolls of the Petitioner.
156. I would, therefore, dismiss his writ petition also.
ORDER
157. In view of the majority opinion of the judgments, all these five analogous writ petitions are hereby dismissed but without any order as to costs.
