@JUDGMENTTAG-ORDER
A.N. Venugopala Gowda, J.@mdashBy these petitions filed under Article 226 of the Constitution of India, petitioners who were the members of the Karnataka State Judicial Service, in the cadre of District Judge and Civil Judge (Sr. Divn.) respectively, seek issuance of a writ in the nature of certiorari to quash the notification dated 13.05.2008 issued by the 1st respondent-State of Karnataka and for a mandamus to the respondents, to continue them in active service till they complete the age of 60 years and for consequential reliefs.
2. The 3rd respondent, Registrar General, High Court of Karnataka, had sent a communication to the District Surgeon, Bangalore City, to examine the judicial officers named therein and to furnish immediately, a certificate as to whether, they are medically 0t to continue in service beyond the age of 58 years, for taking further action as per Rule 95-A of the Karnataka Civil Service Rules, 1958 (for short ''Rules''). Thereafter, petitioners have received a copy of the notification dated 13.05.2008 of the 1st respondent, whereby sanction/permission was accorded to retire them from service under Rule 95-A of the Rules on they completing the age of 58 years, with effect from 31.05.2008.
3. We have heard Sri H. Subramanya Jois, learned Senior Counsel for the petitioners. We had directed the learned Government Advocate, Smt V. Vidya, to obtain from the Registrar General, High Court, all the records, which had led to the issue of the impugned communication in the writ petitions and to make available the records for our perusal. Accordingly, she made available all the records and we perused all the records relating to the continuance or otherwise of the service of judicial officers beyond the age of 58 years.
4. Learned Senior Counsel for the petitioners contended that, the 1st petitioner having received Annexures A and B communications, issued by the 3rd respondent, communicating the adverse remarks recorded in the confidential records, submitted the representation for expunging the adverse remarks, which was not considered and disposed of within the period of three months, in view of which, the adverse remarks should be deemed to have been expunged. In support of the contention, he relied upon the order dated 20.03.2008 passed in writ petition No. 9118/2000, in the case of Sri. S.K. Venkata Reddy v. State of Karnataka and Ors. Learned Counsel pointed out that, in the said decision it has been held that, Rule 10(2) of the Karnataka Civil Services (Performance Reports) Rules, 1994 mandate the reviewing authority or the accepting authority, to consider the representation and to pass suitable orders and communicate the same to the concerned officer, within three months from the date of receipt of the representation. Learned Counsel contended that, since the representation of 1st petitioner was not considered in terms of the said order, the adverse remarks as against the 1st petitioner are liable to be expunged. Learned Counsel further contended that, the impugned notification is not traceable to Rule 95-A of the Rules, under which the same was purported to have been issued and that there is a fundamentally erroneous assumption that, the petitioners have attained the age of superannuation on 31.05.2008, while under Rule 95-A, the only requirement is that, the petitioners should be medically fit and certified, for being continued in service till they complete the age of 60 years. Learned Counsel contended that, the petitioners were subjected to medical examination and they having been found medically fit, the impugned notification amounts to compulsory retirement from service, in flagrant, violation of the Rules. Learned Counsel further contended that, the impugned action is arbitrary, irrational and has no basis, in that no objective material has been taken into consideration besides the confidential records for continuance of their service under Rule 95-A of the Rule.
5. Considering the said contentions, the points that arise for our consideration are:
a) Whether the Karnataka Civil Service (Performance Reports) Rules, 1994 are applicable to the members of the Karnataka State Judicial Service?
b) Whether the order dated 20th March, 2008 passed in writ petition No. 9118/2000 is per incuriam?
c) Whether the case of the petitioners for continuance or otherwise in service beyond the age of 58 years upto 60 years, has been considered by the High Court of Karnataka in accordance with Rule 95-A of the Rules?
d) Are the petitioners entitled to the lelief prayed in the writ petitions?
6. We have carefully considered the contentions urged by the learned Senior Counsel, in the light of the governing position of law and the material facts on record. The grievance sought to be vindicated, seems to be merely borne out of surmises, baseless assessment and incorrect understanding of events which have taken place. The grievance is sought to be justified by adopting one or the other circumstance in a manner to suit the petitioners'' own stand rather than viewing the relevant facts in the proper perspective or objectively. That apart, it must be sufficiently substantiated, on the basis of properly established facts and further proof, for being accepted by the Court, in exercise of the power of judicial review. It is settled position of law by catena of decisions of the Hon''ble Supreme Court that, judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself. It is also well settled position of law by the pronouncements of the Hon''ble Supreme Court that, critical or independent analysis or appraisal of the materials by the courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions of administration of justice, by going into the correctness of the ACRs or assessment made by the Administrative Committee and approval accorded by the Full Court of the High Court.
7. The conditions of any government service are governed by statutory rules and orders. Rule 95-A has been introduced in the Rules by the State of Karnataka, by way of an amendment, in obedience to the directions issued by the Hon''ble Supreme Court in the case of
1) The High Court of Karnataka should assess and evaluate the record of the Judicial Officer for his continued utility well within the time before he attains the age of 58 years by following the procedure for the compulsory retirement under the service rules applicable to him and give him the benefit of the extended superannuation age from 58 to 60 years, only if he is found fit and eligible to continue in service.
2) If found not fit, and ineligible lie should be compulsorily retired on his attaining the age of 58 years.
3) The assessment as indicated above should be done before the attainment of the age of 58 years.
4) The above assessment is for evaluating the eligibility to continue in service beyond 58 year''s of age and is in addition to and independent of the assessment for compulsory retirement that may have to be undertaken as per the relevant service rules.
5) Those Judicial Officers, who are not desirous of availing of the benefit of enhanced superannuation age with the condition of compulsory retirement at the age of 58 years may give an option to retire at the age of 58 years and such an option shall be exercised in wilting by the Judicial Officer before he attains the age of 57 years.
6) Such of the Judicial Officers who do not exercise the said option mentioned above before attaining the age 57 years, shall be deemed to have opted for continuing in service till the enhanced superannuation age of 60 years with the liability to compulsorily retirement at the age of 58 years.
7) The benefit of the increase of the retirement age of 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 High Court have a potential for continued useful service. The potential for continued utility shall be assessed and evaluated by appropriate committees of Judges of the High Court constituted and headed by the Chief Judge of the High Court and the evaluation shall be made on the basis of the Judicial Officers past record of service, character rolls, quality of Judgments and other relevant, matters.
Regarding Points (a) & (b):
8. Government of Karnataka has made the Rules called, the Karnataka Civil Services (Performance Reports) Rules, 1994. Sub-rule (3) of Rule 1 of the said rules stipulates that, the said rules shall apply to all Government servants in the State Civil Service, except to the three categories shown therein, which include the Karnataka State Judicial services. The said Rules were repealed and the 2000 Rules were made operative with effect from 1.4.2000 which was published by the Government of Karnataka under its notification No. DPAK 06b ACR 97 dated 29.02.2000. It is clear from a reading of the said rules that, the same are not applicable to the conditions of service of the officers in the Karnataka State Judicial Service. In Writ Petition No. 9118/2000, learned Single Judge while passing the order dated 20th March, 2008 al para 12 has held as follows:
12. It is not in dispute that the petitioner was appointed as District Judge in the year 1988 under Karnataka Judicial Service (Recruitment) Rules 1983. Rule 3(2) of the Rules 1983 specifies that all Rules regulating the conditions of service of the members of the State Civil servants made from time to time are applicable to the judicial officers. The Government of Karnataka framed Rules called Karnataka Civil Services (Performance Report) Rules 1994 (for short Rules 1994) prescribing the procedure to be followed m the matter of preparing confidential reports. The High Court of Karnataka vide notification dated 15.11.1988 issued instructions and prescribed specific Formats in the matter of preparing confidential records. These Rules 1994 and the notification dated 15.11.1988 are binding on the respondents. The recording of remarks in the confidential record of any judicial officer shall be strictly in accordance with the Rules 1994 and the notification. Any deviation in this regard will affect the career of judicial officer and also on his reputation.
At para 18 of the said older it has been held as follows:
18. After the communication of impugned remarks dated 11.1.1999, the petitioner by his letter dated 16.1.1999, 18.2.1999, 8.4.1999 requested the respondents to furnish certain particulars but in vain. On 8.4.1999 the petitioner gave representation requesting the respondents to expunge the adverse remarks recorded in his confidential record and the same is not considered by the respondents. Under Rule 10 of Rules 1994 the petitioner is entitled to give a representation requesting to expunge the adverse remarks communicated to him. Accordingly, on 8.4.1999 petitioner gave a representation. Rule 10(2) of Rules 1994 mandates the reviewing authority or accepting authority to consider the representation and to pass suitable orders and communicate the same to the concerned officer within three months from the date of receipt, of representation. In the instant, case, no material is placed on record to show that respondents considered the representation of the petitioner and passed any order and communicated die same to the petitioner. Therefore the impugned remarks are liable to be quashed.
Learned Single Judge while passing the said order has not noticed the fact that, the said rules do not apply to the members of the Karnataka Slate Judicial Service, which is clear from a reading of Sub-rule (3) of Rule 1 which is as follows:
(3) These rules shall apply to all Government Servants in the State Civil Services except,-
(a) members of the All India Service;
(b) members of the Karnataka Judicial Services; and
(c) persons holding,-
(i) posts of Senior Drivel''s and
(ii) any of the Group- ''D'' posts.
(Underlining is by us)
Without noticing die inapplicability of the said rules, the learned Single Judge has passed the aforesaid order. Since the relevant statutory provision with regard to the non applicability of the said rules to the members of the Karnataka State Judicial Service has not been noticed, the Rule of per incuriam applies. Hon''ble Supreme Court in the case of
The Rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.
(emphasis supplied)
Applying the said principle, it has to be held that, the order passed by the learned Single Judge in writ petition No. 9118/2000 dated 20th March, 2008, cannot be said to have declared the law correctly, to be applied and followed and hence is not of any assistance to the case of the petitioners. The contention canvassed by the learned Counsel for the petitioners regarding the applicability of the said rules, by placing reliance on the said order, is untenable and fails. Points No. (a) & (b) are accordingly answered.
Regarding point Nos. (c) & (b)
9. A reading of Rule 95-A of the Rules makes it clear that, the extension of age of superannuation from 58 years to 60 years, is not automatic. The rule enables the High Court to retain in service, a judicial officer belonging to the Slate Judicial Service, upto the age of 60 years, if it is of the opinion that, such judicial officer has the potential to be continued in service. To find out whether the officer has the potential for continuance in service, assessment is to be made on the basis of the past record of service, diameter roles, quality of judgments and other relevant matters, which may include the overall assessment with regard to diameter, personality, reputation etc. it is only when the High Court, after reviewing all aspects of service including the past record of the officer concerned, specifically orders that, in the interest of the judicial service of the State, it is necessary to retain a particular officer beyond the age of 58 years and allows him to superannuate at the age of 60 years, the benefit will be available lo such officer. The officer can be continued in service by virtue of Rule 95-A of the Rules subject lo the fulfillment of the criteria stipulated in Sub-rule (7) i.e., if in the opinion of the High Court, the judicial officer concerned has the potential for continued useful service and not oilier otherwise. As stipulated in the said Sub-rule, the potential for continued utility should be assessed and evaluated by the appropriate committees of Judges of the High Court constituted and headed by the Chief Justice of the High Court and the evaluation made on the basis of the judicial officers past record of service, character roles, quality of judgments and other relevant matters. In other words, continuance beyond 58 years of age, is permissible only when the High Court makes a positive recommendation in favour of the judicial officer concerned. Otherwise Die judicial officer has to retire on completion of the age of 58 years. In the case of
...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 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 judgment and other relevant matters. The High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within lime 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 as 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 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 officers for the entitlement 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/s under the respective Service Rules.
The criteria indicated in the said judgment, are the criteria stipulated under Sub-rule (7) of Rule 95-A of the Rules.
10. Keeping in view the provision contained in Rule 95-A of the Rules, the point to be considered is, whether the High Court has evaluated the petitioners past record of service, character roles, quality of judgments and other relevant matters and has made the recommendation to the 1st respondent prior to the issue of the impugned notification?
11. In
2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Com! Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because order of compulsory retirement is based on the subjective satisfaction of the Authority.
12. In the back drop of the law laid down by the Hon''ble Supreme Court and the provision contained under Rule 95-A of the Rules, we have examined the record of the petitioners, on consideration of which, the recommendation was made by the High Court to the 1st respondent, to issue the impugned notification in the writ petitions.
13. The 1st petitioner-Sri M.S. Hegde Nagare was appointed as a Munsiff on 02.02.1983, and he was promoted to the cadre of Civil Judge on 25.05.1995 and later to the cadre of District Judge on 15.02.2003. In his confidential report for the period 1.1.2005 to 31.12.2005, it has been recorded as follows:
Quality of Judgment Order-
a. Language - not good
b. Narration - not good
d. Reasoning - not good reasoning
10. Over-all view - Judicial work not satisfactory
11. Special Remarks, if any - extension of service may
not be useful to the
institution.
The adverse remarks were communicated to him. He has submitted his representation dated 24.01.2008 and the same has been examined by die concerned authority and it was found to be devoid of merit and was rejected, which was communicated to him on 23.04.2008. Though the learned Counsel for the petitioners maintained that, the reply was not received, from the perusal of the original record, it was found that the communication was dispatched to the 1st petitioner, to the place of his working, on 29.04.2008. The work turned out during the past 5 years from 2002 to 2007 by the 1st petitioner shows that, there was decline and he had not readied the stipulated quota.
14. The 2nd Petitioner, Sri Haveii Swamirayachar Subbarmachar, has joined the service as a Munsiff on 05.12.1998 and later promoted to the cache of Civil Judge (Senior Division) on 02.12.2000. The remarks made in his ACR for the period 1.1.2005 to 31.12.2005 are as follows:
3. Promptitude for disposal of eases
a) cuneus )
b) Old ) poor
4. a. Industry - poor
b. Aptitude for hard - poor
heavy work - poor
c. Readiness io lake up
Responsibility - poor
10. Over-all view - ) has to put in more efforts
11. Spl. Remarks, if any- ) for disposal of cases.
The 2nd petitioner had sought for the expunction of the adverse remarks, considering which, it was treated as advisory remarks and was communicated. The work turned out by him during the past five years between 2002 to 2007 shows, decline in the performance and he has not reached the stipulate quota.
15. Before the Evaluation Committee coupling of 5 judges presided over by the Hon''ble the Chief Justice, in its meeting held on 14.01.2008, cases of 6 judicial officers came up for consideration. As to 9 officers, the Evaluation Committee resolved to give them the benefit of increase in the retirement age from 58 to 60 years. As to 3 officers, including both the petitioners, the Evaluation Committee has deferred the consideration. The resolution of the Committee reads as follows:
The Commit lee considered the confidential records, work performance, medical certificates regarding continuation in service, reputation and potential for continued useful service and other relevant aspects in respect of the following Judicial Officers and resolved to recommend to the Full Court that they are fit and suitable to continue in service beyond the age of 58 years till they attain the age of 60 years:
1 to 6 xxx xxx xxx
The Committee further resolved to defer the consideration of the following Judicial Officers, for the present:
01. Sri Haveri Swamirayachar Subbannachar, Prl. Civil Judge (Sr.Dn.) & CJM, Tumkur.
02. Xxx xxx xxx
03. Sri. M.S. Hegde Nagare, VII Addl. City Civil & Sessions Judge, Bangalore City.
16. The Evaluation/Administrative Committee consisting of live Judges presided over by the Hon''ble the Chief Justice in its meeting held on 04.04.2008 has considered the subject and has passed die resolution, which leads as follows:
Item No. 1 To consider the continuance or otherwise of the following Judicial Officers in service beyond the age of 58 years upto 60 years:
01. Sri Haveri Swamirayachar Subbannachar, Prl. Civil Judge, (Sr.Dn.) & CJM, Tumkur.
02. Xxx xxx xxx
03. Sri M.S. Hegde Nagare, VII Addl. City Civil & Sessions Judge, Bangalore City.
04. Xxx xxx xxx
05. Xxx xxx xxx
06. Xxx xxx xxx
Resolution: (a) Discussed. The Committee considered the confidential records, work performance, medical certificates regarding continuation in service, reputation and potential for continued useful service and other relevant aspects in respect of the following Judicial Officers and resolved to recommend to the Full Court that they are fit and suitable to continue in service beyond the age of 58 years till they attain the age of 60 years:
01. xxx xxx xxx
02. xxx xxx xxx
03. xxx xxx xxx
(b) Further, the committee screened the work performance reports, confidential records, reputation and considering the continued poor work performance of the following officers, resolved that they are not fit and suitable to be continued in service beyond the age of 58 years and that they should be retired on attaining the age of 58 years i.e., on the dates mentioned against their names and recommended accordingly to the Full Court.
----------------------------------------------------------------
Sl. Name and Designation of Date of
No. the Officer attaining the
age of 58
years
----------------------------------------------------------------
01 Sri. Haveri 31.05.2008
Swamirayachar
Subbannachar,
Prl. Civil Judge, (Sr.Dn.)
&
CJM, Tumkur.
----------------------------------------------------------------
02 Sri. M.S. Hegde Nagare, 31.05.2008
VII Addl. City Civil &
Sessions Judge,
Bangalore City.
----------------------------------------------------------------
03 Xxx xxx xxx
----------------------------------------------------------------
17. The meeting of the Full Court held on 08.04.2008 has considered the said resolution of the Evaluation/Administrative Committee dated 04.04.2008 which was at item No. 4 which reads as follows:
To consider the resolution dated 4.4.2008 of Administrative Committee No. 1 with regard to continuance or otherwise of the following Judicial Officers in service beyond the age of 58 years upto 60 years:
01. Sri Haveri Swamirayachar Subbannachar, Prl. Civil Judge, (Sr.Dn.) & CJM, Tumkur.
02. Xxx xxx xxx
03.Sri M.S. Hegde Nagare, VII Addl. City Civil & Sessions Judge, Bangalore City.
04. Xxx xxx xxx
Resolution:
(a) Discussed. The Full Court accepting the resolution dated 4.4.2008 of Administrative Committee No. 1, resolved that the following Judicial Officers are fit and suitable and they have potential for continued useful service and they are entitled to the benefit of extended superannuation age from 58 lo 60 years and recommended accordingly to the Government:
1 to 3. xxx xxx xxx
(b) Further, alter considering the work performance reports, confidential records, reputation and the continued poor work performance of the following Judicial Officers and on an overall assessment of their suitability and usefulness, the Full Court accepted the recommendation of Administrative Committee No. 1, and resolved that they are not fit and suitable to be continued in service beyond the age of 58 years and that they should be retired on attaining the age of 58 years, i.e., on the dates mentioned against their names, and recommended accordingly to the Government:
----------------------------------------------------------------
Sl. Name and Designation of Date of
No. the Officer attaining the
age of 58
years
----------------------------------------------------------------
01 Sri. Haveri 31.05.2008
Swamirayachar
Subbannachar,
Prl. Civil Judge, (Sr.Dn.)
&
CJM,
Tumkur.
----------------------------------------------------------------
02 Sri. M.S. Hegde Nagare, 31.05.2008
VII Addl. City Civil &
Sessions Judge,
Bangalore City.
----------------------------------------------------------------
03 Xxx xxx xxx
----------------------------------------------------------------
The record shows that the Committee has followed the procedure stipulated in Rule 95-A of the Rules. The record reveals that, the Full Court of the High Court has taken into consideration all the relevant facts and has passed the resolution that, the petitioners are not entitled to be retained in judicial service beyond the age of 58 years. Alter the resolution was passed by the Full Court, the 3rd respondent has forwarded the resolution of the High Court to the State Government, based on which the impugned notification dated 13.05.2008 has been issued, by the 1st respondent.
18. The petitioners have no right muchless any fundamental right, to continue in service beyond the age of 58 years, which is the normal age of retirement of judicial officers in the State under the existing Rules. Hence die question of granting any relief to the petitioners dehors their fulfillment of the conditions stipulated and in the manner prescribed under Rule 95-A of the Rules does not arise.
19. It is the settled position of law that in exercise of the power of judicial review, the High Court cannot substitute itself in the efforts of the Committee/Full Court of the High Court and make an independent reassessment of the material, as if sitting on an appeal. On careful consideration of the materials brought to our notice by the learned Government Advocate, we are satisfied that the evaluation made by the Committee/Full Court, forming a unanimous opinion is neither arbitrary nor capricious and cannot said to be irrational to shock the conscience of the Court, to warrant or justify any interference. As held in catena of decisions by the Hon''ble Supreme Court in cases of such assessment, evaluation and formation of opinion, a vast range of multiple factoid play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claim sought to be considered or asserted. Such exercise has been undertaken by the Committee and the Full Court arid having been convinced that the petitioners are not entitled to be retained and continued in service beyond the age of 58 years, has resolved to retire them at the age of 58 yeans. In the said circumstances, it cannot be said there was no material, on the basis of which, Evaluation/Administrative committee and subsequently the Full Court of the High Court formed opinion that, the petitioners are not suitable for continuation in service beyond the age of 58 years. The contention urged by the learned Counsel, that after the petitioners were required to under go medical fitness test, which they have undergone, itself shows that the petitioners are entitled to continue beyond the age of 58 years till they compete the age of 60 years, in our view, is totally devoid of merit. One of the factors to be taken in to consideration by the Administrative/Evaluation Committee and the Full Court was also the medical fitness of the officers concerned. Hence, petitioners and other judicial officers were informed lo undergo medical fitness test and submit the medical report. Simultaneous action had only been taken. The said report has also been considered by the Administrative Committee and the Full Court before passing die resolution to the effect that the petitioners are not suitable the continuance in service beyond the age of 58 years. Hence die fact that, the petitioners under went medical test and have been found to be medically fit, will not alone enure to their benefit for continuance beyond the age of 58 years.
20. Consequently we hold that, the High Cowl has considered the cases of the petitioners in terms of Rule 95-A of the Rules and has found them not fit, for continuing beyond the age of 58 years. The impugned notification, issued by the 1st respondent, pursuant to the recommendation of the High Court, does not amount to any penal action against the petitioners and has not given rise to any cause of action for them, to file these writ petitions, since no rights of the petitioners have been infringed, contrary to Rule 95-A of the Rules.
21. For the foregoing discussion and reasons, we do not find any merit in these writ petitions. Hence the writ petitions are dismissed. No costs.
